The Empire District Electric Company Form of Purchase Agreement Preference Stock (Date)
Exhibit
1(d)
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:
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Title:
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__________ | |
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Liquidation
Amount at Maturity:
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__________ | |
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Dividend
Rate:
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__________ | |
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Dividend
Payment Dates:
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__________ | |
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Maturity:
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__________ | |
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Redemption
Provisions:
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__________ | |
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Listing:
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__________ | |
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The
“Applicable Time” (as
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defined
in Section 1
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of
the Company’s
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Standard
Purchase
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Provisions
— Preference
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____
[A.M./P.M.], New York
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Stock)
shall be:
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City
time on ______________
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The
“Closing Date” (as
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defined
in Section 2
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of
the Company’s
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Standard
Purchase
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Provisions
— Preference
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Stock)
shall be:
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__________ | |
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The
closing of the
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purchase
and sale of
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the
Purchased Preference
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Stock
shall take place at:
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__________ | |
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The
Purchased Preference Stock
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shall
be made available for
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inspection
and packaging at:
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___________
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The
purchase price for
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the
Purchased Preference
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Stock
shall be paid by:
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__________ | |
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The
funds used to pay
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for
the Purchased Preference
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Stock
shall be:
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__________ | |
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Other:
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__________ |
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Notice to
the Purchasers shall be sent to the addresses set forth in Schedule A
hereto.
If we are
acting as Representative(s) for the several Purchasers named in Schedule A
hereto, we represent that we are authorized to act for such several Purchasers
in connection with this financing, and that, if there are more than one of us,
any action under this Agreement taken by any of us will be binding upon all the
Purchasers.
All of
the provisions contained in the document entitled “The Empire District Electric
Company, Standard Purchase Provisions—Preference Stock,” a copy of which has
been previously furnished to us (the “Standard Purchase Provisions”), are hereby
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
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If the
foregoing is in accordance with your understanding of our agreement, kindly sign
and return to us the enclosed duplicate hereof, whereupon it will become a
binding agreement between the Company and the several Purchasers in accordance
with its terms.
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Very
truly yours,
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[NAME
OF PURCHASER]
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By:__________________________
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Name:
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Title:
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Acting
on behalf of itself and as Representative(s) of the several Purchasers
named in Schedule A hereto.1
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The
foregoing Purchase
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Agreement
is hereby confirmed
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as
of the date first above written
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THE
EMPIRE DISTRICT ELECTRIC COMPANY
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By:
_______________________________
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Name:
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Title:
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1To be deleted if the
Purchase Agreement is not executed by one or more Purchasers acting as
Representative(s) of the Purchasers for purposes of this
Agreement.
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SCHEDULE A TO PURCHASE
AGREEMENT
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Name
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Address
and
Telecopier
Number
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Number
of Shares of
Firm
Preference Stock
to Be
Purchased
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Total
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SCHEDULE B TO PURCHASE
AGREEMENT
EXHIBIT A TO PURCHASE
AGREEMENT
FORM OF CERTIFICATE OF
DESIGNATIONS
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 Purchased Preference Stock shall have the
rights, designations and preferences set forth in the Certificate of
Designations in the form attached hereto as Exhibit A to the Purchase Agreement
(“Certificate of Designations”). 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.
Except
where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement, as amended at the time of such registration
statement’s effectiveness for purposes of Section 11 of the Securities Act of
1933, as amended (the “Act”), as such section applies to the respective
Purchasers (the “Effective Time”), including (i) all documents filed as a part
thereof or incorporated or deemed to be incorporated by reference therein (other
than the Statements of Eligibility and Qualification of the trustees (the “Forms
T-1”) and (ii) any information contained or incorporated by reference in a
prospectus filed with the Securities and Exchange Commission (the “Commission”)
pursuant to Rule 424(b) under the Act, to the extent such information is deemed,
pursuant to Rule 430A, Rule 430B or Rule 430C under the Act, to be part of the
Registration Statement at the Effective Time.
The
Company has furnished to you, for use by the Purchasers and by dealers in
connection with the offering of the Purchased Preference Stock, copies of one or
more preliminary prospectus supplements, and the documents incorporated by
reference therein, relating to the Purchased Preference Stock. Except
where the context otherwise requires, “Pre-Pricing Prospectus,” as used herein,
means each such preliminary prospectus supplement, in the form so furnished,
together with any base prospectus (whether or not in preliminary form) included
in the Registration Statement furnished to you by the Company and attached to or
used with such preliminary prospectus supplement. Except where the
context otherwise requires, “Base Prospectus,” as used herein, means any such
base prospectus and any base
prospectus
furnished to you by the Company and attached to or used with the Prospectus
Supplement (as defined below).
Except
where the context otherwise requires, “Prospectus Supplement,” as used herein,
means the final prospectus supplement, relating to the Purchased Preference
Stock, filed by the Company with the Commission pursuant to Rule 424(b) under
the Act on or before the second business day after the date hereof (or such
earlier time as may be required under the Act), in the form furnished by the
Company to you for use by the Purchasers and by dealers in connection with the
offering of the Purchased Preference Stock.
Except
where the context otherwise requires, “Prospectus,” as used herein, means the
Prospectus Supplement together with the Base Prospectus attached to or used with
the Prospectus Supplement.
“Permitted
Free Writing Prospectuses,” as used herein, means the documents listed on Schedule B to
the Purchase Agreement.
“Disclosure
Package,” as used herein, means the Pre-Pricing Prospectus most recently
furnished to the Purchasers prior to the Applicable Time, together with the
Permitted Free Writing Prospectuses.
“General
Use Disclosure Package,” as used herein, means the Disclosure Package, other
than each “road show” (as defined in Rule 433 under the Act), if any, related to
the offering of the Purchased Preference Stock contemplated hereby.
“Applicable
Time,” as used herein, means the time set forth in the Purchase Agreement, which
is the time when sales of the Purchased Preference Stock will first be
made.
Any
reference herein to the Registration Statement, any Base Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and include the
documents, if any, incorporated by reference therein, as of the Effective Time
in the case of the Registration Statement and as of the date thereof in the case
of any other of such documents (the “Incorporated Documents”), including, unless
the context otherwise requires, the documents, if any, filed as exhibits to such
Incorporated Documents. Any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any Base
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to
and include the filing of any document under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), on or after the Effective Time, or the
date of such Base Prospectus, such Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the
case may be.
As used
in this Agreement, “business day” shall mean a day on which the New York Stock
Exchange (the “NYSE”) is open for trading. The terms “herein,”
“hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement,
shall in each case refer to this Agreement as a whole and not to any particular
section, paragraph, sentence or other subdivision of this
Agreement. The term “or,” as used herein, is not
exclusive.
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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.” Except as otherwise provided in this Agreement, the Company
agrees to make available to you for inspection and packaging at the place set
forth in the Purchase Agreement, at least one full business day prior to the
Closing Date, the Firm 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 an 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-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 and from time to time on or before the thirtieth day
following the date hereof, by your written notice to the
Company. Such notice shall set forth the aggregate number of shares
of Additional Preference Stock as to which the option is being exercised, and
the date and time when the Additional Preference Stock is to be delivered (each
such date and time being herein referred to as the “Additional Closing Date”);
provided, however, that an
Additional Closing Date shall not be earlier than the Closing Date nor earlier
than the third business day after the date on which the option shall have been
exercised nor later than the eighth business day after the date on which the
option shall have been exercised. The number of shares of Additional
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 applicable 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 an
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 such Additional Closing Date, or if no such
request is made, registered in the names of the several Purchasers as set forth
in Schedule A to the Purchase Agreement.
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If an
Additional Closing Date occurs after the Closing Date, then the obligation of
the Purchasers to purchase the Additional Preference Stock shall be conditioned
upon receipt of supplemental opinions, certificates and letters confirming as of
such Additional Closing Date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
3. Representations and
Warranties of the Company. The Company represents and warrants
as of the date hereof, as of the Applicable Time and as of the Closing Date (in
each case, unless otherwise indicated below with respect to any representation
or warranty) to each Purchaser that:
(a) The
Registration Statement has heretofore become effective under the Act; no stop
order of the Commission preventing or suspending the use of any Base Prospectus,
any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus, or the effectiveness of the Registration
Statement, has been issued, and no proceedings for such purpose or pursuant to
Section 8A of the Act against the Company or related to the offering of the
Purchased Preference Stock contemplated hereby have been instituted or, to the
Company’s knowledge, are contemplated by the Commission.
(b) The
Registration Statement complied at the Effective Time, complies as of the date
hereof and, as amended or supplemented, at the Closing Date and each Additional
Closing Date will comply, in all material respects, with the requirements of the
Act; the conditions to the use of Form S-3 in connection with the offering and
sale of the Purchased Preference Stock as contemplated hereby have been
satisfied; as of the eligibility determination date applicable to the
Registration Statement (and any amendment thereof) and the offering contemplated
hereby, the Company is not an “ineligible issuer” (as defined in Rule 405 of the
rules and regulations under the Act (the “Rules and Regulations”)) at any such
date; the Registration Statement did not, as of the Effective Time, contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
each Pre-Pricing Prospectus complied, at the time it was filed with the
Commission, and complies as of the date hereof, in all material respects with
the requirements of the Act; and, at the time such Pre-Pricing Prospectus was
filed with the Commission, as of the Applicable Time, at the Closing Date and at
each Additional Closing Date, such Pre-Pricing Prospectus, as then amended or
supplemented through the Applicable Time, together with the Permitted Free
Writing Prospectuses, if any (considered both with and without any “road show”),
did not or will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; each Base
Prospectus, as of its date and the date it was filed with the Commission,
complied, in all material respects, with the requirements of the Act, and did
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; each of the Prospectus
Supplement and the Prospectus, as of the date that it is filed with the
Commission, the date of the Prospectus Supplement, the Closing Date and each
Additional Closing Date complied, or will comply, in all material respects, with
the requirements of the Act (including, without limitation, Section 10(a) of the
Act) and did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the
Company makes no representation or warranty in this Section 3(b) with respect to
(i) any statement contained in the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus, any Prospectus Supplement or any Permitted Free
Writing Prospectus in reliance upon and in conformity with information furnished
in writ-
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ing by or
on behalf of a Purchaser to the Company expressly for use in the Registration
Statement, such Pre-Pricing Prospectus, the Prospectus, any Prospectus
Supplement or such Permitted Free Writing Prospectus and (ii) that part of the
Registration Statement that constitutes the Forms T-1; each Incorporated
Document, at the time such document was filed with the Commission or at the time
such document became effective, as applicable, complied in all material
respects, with the requirements of the Exchange Act and did not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) The
General Use Disclosure Package, at the Applicable Time, did not contain any
untrue statement of material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The
Company has an authorized capitalization as set forth in the Registration
Statement, the General Use Disclosure Package and the Prospectus. All
of the issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued, and are fully paid and
non-assessable.
(e) The
shares of Purchased Preference Stock to be issued and sold by the Company to the
Purchasers hereunder have been duly and validly authorized and, when issued and
delivered against payment therefor in accordance with this Agreement, will be
duly and validly issued, fully paid and non-assessable; and the Purchased
Preference Stock will conform to the description thereof contained in the
Registration Statement, the Disclosure Package and the Prospectus.
(f) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Kansas, with full corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Disclosure Package and the
Prospectus.
(g) The
Empire District Gas Company (“Empire Gas”) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Kansas, with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement,
the General Use Disclosure Package and the Prospectus. Other than
Empire Gas, the Company has no “significant subsidiary,” as such term is defined
in Rule 405 of the Rules and Regulations.
(h) The
Company is duly qualified to do business as a foreign corporation and in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its businesses requires such qualification, except where the
failure to so qualify would not reasonably be expected to have a material
adverse effect on the business, properties, financial condition or results of
operation of the Company and its subsidiaries taken as a whole (a “Material
Adverse Effect”).
(i) Empire
Gas is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its businesses requires such qualification, except where the
failure to so qualify would not reasonably be expected to have a Material
Adverse Effect.
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(j) Each of
the Company and Empire Gas (1) is not in violation of its charter or by-laws,
(2) is not in default in any respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject and (3) is not in violation in any respect of
any law, ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject and has not failed to obtain any material
license, permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business, except, in the case of clause (2) or (3) above, for any such default,
violation or failure that would not reasonably be expected to result in a
Material Adverse Effect.
(k) The
execution, delivery and performance of this Agreement and the issuance of the
Purchased Preference Stock and consummation of the transactions contemplated
hereby will not conflict with, or result in any breach of or constitute a
default under (nor constitute any event which with notice, lapse of time, or
both would result in any breach of, or constitute a default under), (1) any
provisions of the charter or by-laws of the Company or Empire Gas or (2) under
any provision of any license, indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or Empire Gas is a party or
by which it or its respective properties may be bound or affected, or (3) under
any federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company or Empire Gas, except, in the case
of clause (2) above, for any such conflict, breach or default which would not
reasonably be expected to result in a Material Adverse Effect.
(l) This
Agreement has been duly authorized, executed and delivered by the
Company.
(m) The
Purchased Preference Stock conforms in all material respects to the descriptions
thereof contained in the Registration Statement, the Disclosure Package and the
Prospectus.
(n) The
Company has obtained or made all approvals, authorizations, consents or orders
of or filings with any national, state or local governmental or regulatory
commission, board, body, authority or agency required in connection with the
issuance and sale of the Purchased Preference Stock or the consummation by the
Company of the transactions as contemplated hereby other than any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Purchased Preference Stock is being offered by the
Purchasers.
(o) There are
no actions, suits, claims, investigations or proceedings pending or threatened
to which the Company or Empire Gas or any of their officers is a party or of
which any of their properties is subject, at law, in equity, or before or by any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency which would reasonably be expected to result in a
Material Adverse Effect or prevent consummation of the transactions contemplated
hereby.
(p) The
audited financial statements incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus present fairly in all
material respects the consolidated financial position of the Company as of the
dates indicated and the consolidated results of opera-
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tions and
cash flows of the Company for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as otherwise
set forth therein. [The interim unaudited financial statements
incorporated by reference in the Registration Statement, the Disclosure Package
and the Prospectus present fairly in all material respects the consolidated
financial position of the Company as of the dates indicated and the consolidated
results of operations and cash flows of the Company for the periods specified
subject to year-end adjustments; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis during the periods involved, except as otherwise set forth
therein.] All disclosures contained in the Registration Statement,
the Disclosure Package or the Prospectus regarding “non-GAAP financial measures”
(as such term is defined by the Rules and Regulations) comply with Regulation G
of the Exchange Act and Item 10 of Regulation S-K under the Act, to the extent
applicable.
(q) The
accountants who certified the audited financial statements of the Company and
supporting schedules and notes thereto incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus are an
independent registered public accounting firm with respect to the Company within
the meaning of the Act and the applicable rules and regulations thereunder
adopted by the Commission and the Public Company Accounting Oversight Board (the
“PCAOB”).
(r) The
Company is not, and, as of the Closing Date after giving effect to the
application of the net proceeds as described in the Prospectus, will not be, an
“investment company” as defined in the Investment Company Act of 1940, as
amended.
(s) The
Company, and its directors and officers in their capacity as such, have each
complied, and currently are in compliance, in all material respects with the
Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations of the Commission and
the NYSE issued or adopted in connection therewith.
(t) There has
been no storage, disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries (or, to the
actual knowledge of the Company, any of their predecessors in interest) at, upon
or from any of the property now or previously owned or leased by the Company or
its subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which would not
reasonably be expected to have, singularly or in the aggregate with all such
violations and remedial actions, a Material Adverse Effect; there has been no
material spill, discharge, leak, emission, injection, escape, dumping or release
of any kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries have actual knowledge,
except for any such spill, discharge, leak, emission, injection, escape, dumping
or release which would not reasonably be expected to have, singularly or in the
aggregate with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases, a Material Adverse Effect; and the terms
“hazardous wastes,” “toxic wastes,” “hazardous substances” and “medical wastes”
shall have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental
protection.
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(u) (A) The
Company has devised and established and maintains the following, among other,
internal controls (without duplication):
(1) a system
of “internal accounting controls” as contemplated in Section 13(b)(2)(B) of the
Exchange Act;
(2) “disclosure
controls and procedures” as such term is defined in Rule 13a-15(e) under the
Exchange Act; and
(3) “internal
control over financial reporting” (as such term is defined in Rule 13a-15(f)
under the Exchange Act) (the internal controls referred to in clauses (1) and
(2) above and this clause (3) being hereinafter called, collectively, the
“Internal Controls”).
(B) The
Internal Controls are evaluated by the Company’s senior management periodically
as appropriate and, in any event, as required by law.
(C) The
Internal Controls are, individually and in the aggregate, effective in all
material respects to perform the functions for which they were
established.
(D) Based
on the most recent evaluations of the Company’s internal control over financial
reporting, (1) there are no material weaknesses in the design or operation
of the Company’s internal control over financial reporting, whether considered
individually or collectively, and (2) all significant deficiencies, if any, in
the design or operation of the Company’s internal control over financial
reporting have been identified and reported to the Company’s independent
auditors and the audit committee of the Company’s board of
directors.
(v) Subsequent
to the respective dates as of which information is given in the General Use
Disclosure Package and the Prospectus, there has been no material adverse
change, or any development that is reasonably likely to result in a material
adverse change, in the business, properties, financial condition or results of
operations of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business (any such change or development, a
“Material Adverse Change”).
(w) All
material tax returns required to be filed by the Company have been filed in all
jurisdictions where such returns are required to be filed, except where valid
extensions have been obtained; and all taxes, including withholding, value added
and franchise taxes, penalties and interest, assessments, fees and other charges
that are due and payable have been paid (or, with respect to those based on good
faith estimates, have been paid to the extent of such estimates), other than
those being contested in good faith and for which reserves have been provided in
accordance with generally accepted accounting principles or those currently
payable without penalty or interest and except where the failure to make such
required filings or payments could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. To the
knowledge of the Company, there are no material proposed additional tax
assessments against the Company or its assets or property.
-8-
(x) The
Company maintains insurance covering its properties, operations, personnel and
businesses as the Company deems adequate; such insurance insures against such
losses and risks to an extent which is adequate, in the good faith judgment of
management, to protect the Company and its business.
(y) Any
statistical and market-related data included in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources to the extent
required.
(z) Neither
the Company nor any of its subsidiaries nor, to the Company’s knowledge after
due inquiry, any employee or agent of the Company or its subsidiaries has made
any payment of funds of the Company or its subsidiaries or received or retained
any funds in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Registration Statement, the General Use Disclosure Package or the
Prospectus.
(aa) Neither
the Company nor any of its directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Purchased
Preference Stock other than actions taken pursuant to Section 4(h) of this
Agreement.
(bb) All
contracts or documents that are required to be described in the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus or to be filed as
exhibits to the Registration Statement have been so described and filed as
required.
4. Agreements of the
Company. The Company agrees with the several Purchasers
that:
(a) The
Company will advise you promptly of any proposal to amend or supplement the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus with respect to any Purchased 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 Pre-Pricing
Prospectus, Permitted Free Writing Prospectus, Prospectus, and all amendments
and supplements to such documents (except amendments to exhibits and supplements
relating to securities that are not Purchased 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 prior to the filing of the Prospectus, with respect to each Pre-Pricing
Prospectus or, thereafter, with respect to the Prospectus, when a prospectus
relating to the Purchased Preference Stock is required to be conveyed under the
Act or the Rules and Regulations, any event occurs as a result of which such
Pre-Pricing Prospectus or the Prospectus, as applicable, as then
-9-
amended
or supplemented would include any untrue statement of a material fact, or omit
to state a material fact necessary to make the statements therein, in light of
the circumstances under which made, not misleading, or if it is necessary at any
time to amend or supplement such Pre-Pricing Prospectus or the Prospectus, as
applicable, to comply with the Act or the Rules and Regulations, the Company
will promptly notify the Purchasers and promptly prepare and file with the
Commission an amendment or supplement to the Registration Statement or any
appropriate filing pursuant to Section 13 or 14 of the Exchange Act which will
correct such statement or omission or an amendment which will effect such
compliance, and convey in connection therewith, such Pre-Pricing Prospectus or
Prospectus or amendments or supplements to the Purchasers in such quantity as
may be necessary to permit compliance with the requirements of the Act and the
Rules and Regulations; provided that the
Company shall be so obligated only so long as the Company is notified of unsold
allotments (failure by the Purchasers to so notify the Company cancels the
Company’s obligation under this Section 4(c)); and provided further that any such
Pre-Pricing Prospectus or Prospectus or amendment or supplement required later
than nine months from the date hereof shall be furnished at the Purchasers’ sole
expense.
(d) The
Company will cooperate with the Purchasers in taking such action as may be
necessary to qualify the Purchased Preference Stock for offering and sale under
the securities laws of any state or jurisdiction of the United States as the
Purchasers may reasonably request and will use its best efforts to continue such
qualification in effect so long as required for the distribution of the
Purchased Preference Stock; provided, however, that the
Company shall not be required to qualify as a foreign corporation, or to file a
general consent to service of process, in any such state or jurisdiction or to
comply with any other requirement deemed by the Company to be unduly
burdensome.
(e) The
Company will make generally available to its security holders as soon as
practicable an earning statement (as contemplated by Rule 158 under the
Act) covering a period of twelve months after the effective date of the
Registration Statement.
(f) For a
period of one year, the Company will furnish to you copies of any report or
definitive proxy statement which the Company shall file with the Commission
under the Exchange Act, and copies of all reports and communications which shall
be sent to stockholders generally, at or about the time such reports and other
information are first furnished to stockholders generally. For
purposes of this clause (f), any information filed by the Company on the
Commission’s XXXXX system will be deemed furnished to you in satisfaction of
this clause (f).
(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 which are substantially
similar to the Purchased Preference Stock prior to [ ] days
after the Closing Date without the consent of the Purchasers.
(i) The
Company will advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Base Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus,
or the effectiveness of the Registration Statement, of the suspension of the
qualification of the Purchased Preference Stock for offering or sale in any
jurisdiction or of the initiation
-10-
or
threatening of any proceeding for any such purpose; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of
any Base Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, or suspending any such qualification, promptly to use
its reasonable best efforts to obtain the prompt withdrawal of such
order.
(j) The
Company represents that it has not made, and agrees that, unless it obtains the
prior written consent of
[ ] on behalf of the
Purchasers, it will not make, any offer relating to the Purchased Preference
Stock that would constitute an “issuer free writing prospectus” (as defined in
Rule 433 of the Act) or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405 of the Act) required to be filed by the
Company with the Commission or retained by the Company under Rule 433 of the
Act; provided
that the prior written consent of [ ] on behalf of the Purchasers shall be
deemed to have been given in respect of the Permitted Free Writing
Prospectuses. The Company agrees that (i) it has treated and will
treat, as the case may be, each Permitted Free Writing Prospectus as an issuer
free writing prospectus, and (ii) has complied and will comply, as the case may
be, with the requirements of Rules 164 and 433 of the Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping.
5. Expenses. The
Company and the Purchasers agree as follows:
(a) The
Company, whether or not the transactions contemplated hereunder are consummated,
will (except as provided in Section 4(c) hereof) pay all costs and expenses
incident to the performance of its obligations hereunder, including, without
limitation, all costs and expenses in connection with: (i) the
preparation and filing of the Registration Statement and each Pre-Pricing
Prospectus, Prospectus Supplement, Prospectus and Permitted Free Writing
Prospectus, and any supplements or amendments thereto; (ii) the
preparation, issuance and delivery to the Purchasers of the Purchased Preference
Stock (other than transfer taxes); (iii) any listing of the Purchased
Preference Stock on the NYSE; (iv) the reproduction or printing and mailing in
reasonable quantities of the Registration Statement and amendments thereto, each
Pre-Pricing Prospectus, the Prospectus, each Permitted Free Writing Prospectus,
if any, and any amendments or supplements thereto, this Agreement and any Blue
Sky memoranda delivered to the Purchasers; (v) reasonable filing fees and
expenses (including legal fees and disbursements, not in excess of $5,000)
incurred in connection with the qualification of the Purchased 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; (viii) the
costs and expenses of the Company relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the
Purchased Preference Stock to prospective investors and the Purchasers’ sales
forces, including, without limitation, travel, lodging and other expenses
incurred by the officers of the Company; and (ix) all other costs and
expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section.
(b) The
Purchasers will pay (i) the fees and disbursements of their respective
counsel, except as set forth in Section 5(a) and in Section 9(b) and
(ii) their own out-of-pocket expenditures.
6. Conditions of the
Purchasers’ Obligations with Respect to Firm Preference
Stock. The obligations of the Purchasers to purchase and pay
for the Firm Preference Stock shall be sub-
-11-
ject 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, LLP,
Kansas counsel for the Company, to the effect that:
(i) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Kansas, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Registration Statement, the General Use Disclosure Package and
the Prospectus;
(ii) The
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; 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 General Use Disclosure Package and the
Prospectus; and the Company has an authorized capitalization as set forth in the
General Use Disclosure Package and the Prospectus;
(iii) The
Purchased Preference Stock have been obtained; any conditions in such approvals
required to be satisfied prior to the issuance of the Purchased Preference Stock
have been duly satisfied; such approvals are in full force and effect; and no
further approval, authorization, consent or other order of any public board or
body in the State of Kansas is legally required for the issuance, sale and
delivery of the Purchased Preference Stock or the execution, delivery and
performance by the Company of this Agreement (it being understood that such
counsel need express no opinion as to any approvals which may be required under
the securities acts or Blue Sky laws of said state);
(iv) Neither
the issuance, sale and delivery of the Purchased Preference Stock nor the
execution, delivery and performance by the Company of this Agreement will
conflict with, violate or result in a breach of any Kansas law or administrative
regulation, or any court decree known to such counsel, applicable to the Company
(it being understood that such counsel need express no opinion as to any
approvals which may be required under the securities acts or Blue Sky laws of
said state); and
(v) This
Agreement has been duly authorized, executed and delivered by the
Company.
(c) You shall
have received an opinion, dated the Closing Date, of Xxxxxxx, Xxxxx & Xxxxx,
P.C., Missouri counsel for the Company, to the effect that:
-12-
(i) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Kansas, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Registration Statement, the General Use Disclosure Package and
the Prospectus; and the Company is duly qualified to do business as a foreign
corporation in good standing in the States of Arkansas, Missouri and Oklahoma,
which are the only jurisdictions (other than Kansas) in which it owns or leases
substantial properties or in which the conduct of its business requires such
qualification;
(ii) The
Company holds all the valid and subsisting franchises which are necessary to
authorize it to carry on the utility businesses in which it is engaged as
described in the Registration Statement, the General Use Disclosure Package and
the Prospectus;
(iii) Neither
the issuance, sale and delivery of the Purchased Preference Stock nor the
execution, delivery and performance by the Company of this Agreement will
conflict with, violate or result in the breach of any Missouri law or
administrative regulation or any court decree known to such counsel applicable
to the Company (it being understood that such counsel need express no opinion as
to matters subject to the jurisdiction of the Public Service Commission of the
State of Missouri, the Corporation Commission of Oklahoma, the State Corporation
Commission of the State of Kansas or the Arkansas Public Service Commission or
as to the securities or Blue Sky laws of any jurisdiction), conflict with or
result in a breach of any of the terms, conditions or provisions of the Restated
Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or
of any agreement or instrument known to such counsel to which the Company is a
party or by which the Company is bound or constitute a default thereunder, or
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of the
Company;
(iv) Such
counsel has no reason to believe that either (a) the Registration
Statement, as of the Effective Time, or the Prospectus, as of its issue date and
also as of the Closing Date, or (b) the General Use Disclosure Package, as of
the Applicable Time, contained any untrue statement of material fact or omitted
to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; the descriptions
in the Registration Statement, the General Use Disclosure Package and the
Prospectus of contracts and other documents are accurate and fairly present the
information therein shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the Prospectus by
Item 103 of Regulation S-K under the Act which are not described as so
required, nor of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus pursuant to Item 11
of Form S-3 under the Act or to be filed as exhibits to the Registration
Statement pursuant to Item 601 of Regulation S-K under the Act which
are not described and filed as so required; it being understood that such
counsel need express no opinion as to the financial statements or other
financial information contained in the General Use Disclosure Package or the
Prospectus;
-13-
(v) This
Agreement has been duly authorized, executed and delivered by the Company;
and
(vi) Other
than disclosed or contemplated by the General Use Disclosure Package and the
Prospectus, there are no actions, suits, claims, investigations or proceedings
pending or threatened to which the Company or any of its officers is a party or
of which any of its properties is subject, at law or in equity, or before or by
any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency which would reasonably be expected to result in
a Material Adverse Effect or prevent consummation of the transactions
contemplated hereby.
In
rendering such opinion, Xxxxxxx, Xxxxx & Xxxxx, P.C. may rely, as to the
incorporation of the Company and all matters governed by Kansas law, upon the
opinion of Xxxxxxxx & Xxxx, LLP referred to in paragraph (b) above and,
as to all matters covered thereby, upon the opinion of Brydon, Xxxxxxxxxx &
England, Professional Corporation referred to in paragraph (d)
below.
(d) You shall
have received an opinion, dated the Closing Date, of Brydon, Xxxxxxxxxx &
England, Professional Corporation, special regulatory counsel for the Company,
to the effect that no approval, authorization, consent or other order of any
public board or body in the State of Arkansas, Missouri or Oklahoma is legally
required for the issuance, sale and delivery of the Purchased Preference Stock
or the execution, delivery and performance by the Company of this Agreement (it
being understood that such counsel need express no opinion as to any approvals
which may be required under the securities acts or Blue Sky laws of any
jurisdiction).
(e) You shall
have received an opinion, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx
LLP, counsel for the Company, to the effect that:
(i) The
Purchased Preference Stock has been duly authorized and, when issued and
delivered to and paid for by the Purchasers pursuant to this Agreement, will be
fully paid and non-assessable and conform as to legal matters in all material
respects to the description thereof contained in or incorporated by reference
into the General Use Disclosure Package and the Prospectus;
(ii) All
approvals of the State Corporation Commission of the State of Kansas which are
required for the issuance, sale and delivery of the Purchased Preference Stock
have been obtained, and such counsel knows of no approval of any other
governmental regulatory body which is legally required in connection therewith
(other than any approvals required under the securities acts or Blue Sky laws of
any jurisdiction);
(iii) The
Registration Statement has become effective under the Act, and, to the best of
the knowledge of such counsel (after inquiry), no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
Act, and the Registration Statement, General Use Disclosure Package and the
Prospectus, and each amendment or supplement thereto (except, in each case, as
to the financial statements or other financial information included therein or
omitted therefrom and the Forms T-1, as
-14-
to which
such counsel need not express an opinion), as of their respective effective or
issue dates, appeared to comply as to form in all material respects with the
requirements of Form S-3, and the applicable Rules and Regulations;
and
(iv) This
Agreement has been duly authorized, executed and delivered by the
Company.
In
rendering such opinion Xxxxxx Xxxxxx & Xxxxxxx LLP may rely, as to the
incorporation of the Company and as to all other matters governed by the laws of
the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their
respective opinions, upon the opinions of Xxxxxxxx & Xxxx, LLP; Xxxxxxx,
Xxxxx & Xxxxx, P.C.; and Brydon, Xxxxxxxxxx & England, Professional
Corporation referred to above.
In
addition, such counsel shall state that: “We have participated in
conferences with officers and other representatives of the Company,
representatives of the independent registered public accounting firm for the
Company, representatives of counsel for the Purchasers and representatives of
the Purchasers at which the contents of the Registration Statement, the
Prospectus and the General Use Disclosure Package and related matters were
discussed. Although we have made certain inquiries and investigations
in connection with the preparation of the Registration Statement, the Prospectus
and the General Use Disclosure Package, the limitations inherent in the role of
outside counsel are such that we cannot and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in such
documents. Subject to the foregoing, we advise you that no facts have
come to our attention that lead us to believe that (i) the Registration
Statement, at the Effective Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Prospectus, as
of its date or as of the date hereof, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading or (iii) the General Use Disclosure
Package, taken together, as of the Applicable Time, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that we express no
comment with respect to the financial statements or other financial data that is
included in or omitted from the Registration Statement, the Prospectus or the
General Use Disclosure Package or the Forms T-1).”
(f) You shall
have received an opinion, dated the Closing Date, of Xxxxx & XxXxxxx LLP,
counsel for the Purchasers, with respect to such matters as the Purchasers may
reasonably request and in form and substance satisfactory to the
Purchasers.
(g) You shall
have received from PricewaterhouseCoopers LLP letters dated, respectively, the
date of this Agreement, the Closing Date and, if applicable, each Additional
Closing Date, and addressed to the Purchasers in form and substance reasonably
acceptable to
[ ].
(h) On the
Closing Date, subsequent to the respective dates as of which information is
given in the General Use Disclosure Package and the Prospectus, there shall have
been no Material
-15-
Adverse
Change and there shall have been furnished to you a certificate, dated the
Closing Date, from the Company, signed on behalf of the Company by the
President, or the Vice President-Finance, stating in effect that to the best
knowledge of the officer signing such certificate and except as may be reflected
in or contemplated by the Registration Statement or stated in such certificate
(i) the representations and warranties of the Company contained in Section 3 of
this Agreement are correct and the Company has complied with all the agreements
and satisfied all the conditions to be performed or satisfied on its part at or
prior to the Closing Date; (ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending, or, to the knowledge of the signer thereof,
are contemplated under the Act; and (iii) subsequent to the respective dates as
of which information is given in the General Use Disclosure Package and the
Prospectus, there has been no Material Adverse Change.
(i) The
Company shall have filed with the Secretary of State of the State of Kansas and
delivered to the Purchasers the Certificate of Designations.
(j) The
representations and warranties of the Company herein shall be true and correct
as of the Closing Date and all agreements herein contained to be performed on
the part of the Company at or prior to the Closing Date shall have been so
performed.
(k) 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.
(l) If the
Purchased Preference Stock is to be listed on the 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, each of the
Purchasers’ directors and officers, and the successors and assigns of all of the
foregoing persons, against the losses, claims, damages or liabilities, joint or
several, to which such Purchaser or such controlling person may become subject,
under the Act, the Exchange Act, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Pre-Pricing
Prospectus, any issuer free writing prospectus (as defined in Rule 433 under the
Act), the Prospectus, or any amendment or supplement to any thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse such Purchaser, and each such
controlling person for any legal or other expenses reasonably incurred by such
Purchaser or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of 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
-16-
furnished
to the Company by any Purchaser specifically for use therein. The
indemnification obligation contained in this Section 7 will be in addition
to any liability which the Company may otherwise have.
(b) Each
Purchaser, severally and not jointly, will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or action in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Pre-Pricing Prospectus, any Permitted Free
Writing Prospectus, the Prospectus or any amendment or supplement to any
thereof, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Purchaser specifically for
use therein, and will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action. The indemnification obligation contained in this
Section 7 will be in addition to any liability which the Purchasers may
otherwise have.
In addition to any other information
the Purchasers may furnish, the Purchasers hereby furnish to the Company
specifically for use in the Prospectus the information with respect to the
offering of the Purchased Preference Stock and the Purchasers set forth in
[ ]
on the cover page of the Prospectus Supplement and in
[ ] under
the heading “Underwriting”.2
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 7,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel selected
by the indemnifying party and acceptable to the indemnified party (the
indemnified party shall not unreasonably reject such counsel), and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. The indemnified
party shall have the right to employ its counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment of counsel by such indemnified party
has been authorized by the indemnifying party, (ii) the indemnified party shall
have
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reasonably
concluded that there may be a conflict of interest between the indemnifying
party and the indemnified party in the conduct of the defense of such action (in
which case the indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party) or (iii) the indemnifying
party shall not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of one counsel representing
all indemnified parties shall be at the expense of the indemnifying
party. An indemnifying party shall not be liable for any settlement
of any action or claim effected without its consent. No indemnifying
party shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding
and does not include an admission of fault, culpability or a failure to act, by
or on behalf of such indemnified party, or (ii) be liable for any settlement of
any action or claim effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment in accordance with the other provisions of this Section
7.
8. Contribution. If
recovery is not available under the foregoing indemnification provisions of
Section 7 of this Agreement, for any reason other than as specified therein, the
parties entitled to indemnification by the terms thereof shall be entitled to
contribution to liabilities and expenses, except to the extent that contribution
is not permitted under Section 11(f) of the Act. In determining the
amount of contribution to which the respective parties are entitled, there shall
be considered the relative benefits received by each party from the offering of
the Purchased 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 on or prior to the Closing Date or, with
respect to the Additional Preference Stock, any Additional Closing Date, by the
Purchasers, by written notice to the Company, if (i) a Material Adverse Change
has occurred since the respective dates as of which information is given in the
General Use Disclosure Package and the Prospectus, (ii) trading in securities on
the NYSE has been suspended or limited or minimum prices having been established
on such Exchange or a material disruption has occurred in commercial banking,
securities settlement or clearance services, (iii) a suspension or material
limitation in trading in the Company’s securities on the
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NYSE has
been imposed, (iv) a banking moratorium having been declared by the United
States, or by New York or Missouri state authorities, (v) (A) an outbreak or
substantial escalation of major hostilities between the United States and any
foreign power, or any other new insurrection or armed conflict involving the
United States having occurred, or (B) any material adverse change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in subclause (A) or (B) above in this clause
(v) in the Purchasers’ judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Purchased Preference Stock on
the terms and in the manner contemplated in the Registration Statement, the
General Use Disclosure Package and the Prospectus, or (vi) since the time of
execution of this Agreement, there shall have occurred any downgrading, or any
notice or announcement shall have been given or made of (A) any intended or
potential downgrading or (B) any watch, review or possible change that does not
indicate an affirmation or improvement in the rating accorded any securities of
or guaranteed by the Company by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the
Act.
(b) If the
sale to the Purchasers of the Purchased Preference Stock, as contemplated by
this Agreement, is not carried out by the Purchasers for any reason permitted
under this Agreement or if such sale is not carried out because the Company
shall be unable to comply with any of the terms of this Agreement, the Company
shall not be under any obligation or liability under this Agreement (except to
the extent provided in Sections 5(a), 7 and 8 hereof), and the Purchasers
shall be under no obligation or liability to the Company under this Agreement
(except to the extent provided in Sections 7 and 8, and the last sentence
of Section 11 hereof) or to one another hereunder.
10. Survival of Indemnities,
Representations and Warranties. The respective indemnities and
agreements for contribution of the Company and the Purchasers and the respective
representations and warranties of the Company and the Purchasers set forth in
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or the Purchasers or any of
their respective officers, directors, partners or any controlling person, and
will survive delivery of and payment for the Purchased 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 9 and
except that any default by a Purchaser with
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respect
to the purchase of Additional Preference Stock shall not affect the obligation
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 an Additional Closing Date, as the case may be,
for a period of not more than seven full business days in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus or in any other documents, and the Company will promptly file any
amendments to the Registration Statement or supplements to the Prospectus which
may thereby be made necessary. As used in this Agreement, the term
“Purchaser” includes any person substituted for a Purchaser under this
Section. Nothing herein will relieve a defaulting Purchaser from
liability for its default.
12. Parties in
Interest. This Agreement shall inure to the benefit of the
Company, the Purchasers, the officers, directors and partners of such parties,
each controlling person referred to in Section 7 hereof, and their respective
successors. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation (including, without
limitation, any purchaser of the Purchased Preference Stock from a Purchaser or
any subsequent holder thereof) any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein
contained.
The term
“successor” as used in this Agreement shall not include any purchaser, as such
purchaser, of any Purchased Preference Stock from any Purchaser or any
subsequent holder thereof.
This
Agreement constitutes the entire agreement between the parties concerning the
subject matter hereof, and supersedes any agreement previously entered
into.
13. Notices. All
communications, terminations and notices hereunder shall be in writing and, if
sent to any Purchaser, shall be mailed, delivered or telecopied and confirmed to
it by letter to the address set forth for such Purchaser in Schedule A to the
Purchase Agreement (or such other place as the Purchaser may specify in
writing); if sent to the Company shall be mailed, delivered or telecopied and
confirmed to the Company at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000,
telecopier no. (000) 000-0000 (Attn: Vice President - Finance) (or such other
place as the Company may specify in writing).
14. Counterparts. This
Agreement may be executed in any number of counterparts which, taken together,
shall constitute one and the same instrument.
15. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. Jurisdiction; Waiver of Jury
Trial. Except as set forth below, no claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in anyway relating to
this Agreement (“Claim”) may be commenced, prosecuted or continued in any court
other than the courts of the State of New York located in the City and County of
New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such
matters, and the Company consents to the jurisdiction of such courts and
personal service with respect thereto. The Company hereby consents to
personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party
against any Purchaser or any indemnified party. Each Purchaser and
the Company (on its behalf and, to the ex-
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tent
permitted by applicable law, on behalf of its stockholders and affiliates) each
waive all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) in any way arising out of or
relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts to the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
17. No Advisory or Fiduciary
Relationship. The Company acknowledges and agrees that (a) the
purchase and sale of the Purchased Preference Stock pursuant to this Agreement,
including the determination of the public offering price of the Purchased
Preference Stock and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several
Purchasers, on the other hand, (b) in connection with the offering contemplated
hereby and the process leading to such transaction each Purchaser is and has
been acting solely as a principal and is not the agent or fiduciary of the
Company, or its stockholders, creditors, employees or any other party, (c) no
Purchaser has assumed or will assume an advisory or fiduciary responsibility in
favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Purchaser has advised or
is currently advising the Company on other matters) and no Purchaser has any
obligation to the Company with respect to the offering contemplated hereby
except the obligations expressly set forth in this Agreement, (d) the Purchasers
and their respective affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company, and (e) the
Purchasers have not provided any legal, accounting, regulatory or tax advice
with respect to the offering contemplated hereby and the Company has consulted
its own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
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