Exhibit 1(d)
EMPIRE DISTRICT ELECTRIC COMPANY
PREFERENCE STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
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The Empire District Electric Company
Form of Purchase Agreement
Preference Stock
------------------------
(Date)
The Empire District Electric Company
602 Joplin Street
Joplin, Missouri 64801
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 (the "standard Purchase
Provisions"), are hereby incorporated by
reference in their entirety and shall
be deemed to be a part of this Agreement to
the same extent as if such
provisions had been set forth in full
herein.
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If the foregoing
is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed
duplicate hereof, whereupon it will
become a binding agreement between the
Company and the several Purchasers in
accordance with its terms.
Very truly yours,
[NAME OF PURCHASER]
By:
-----------------------------------
Name:
Title:
Acting on behalf of itself and as
Representative(s) of the several
Purchasers named in
Schedule A hereto.(1)
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above written
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: _______________________________
Name:
Title:
----------
(1) To be deleted if the Purchase
Agreement is not executed by one or more
Purchasers
acting as Representative(s) of the Purchasers for purposes of
this
Agreement.
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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.
(c) The Company has an authorized capitalization as set forth in
the
Prospectus.
(d) 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 and the
Prospectus.
(e) 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"). The Company
has no
"significant subsidiary," as such term is defined in Rule 405 of
the
Rules and
Regulations.
(f) The Company (1) is not in violation of its charter or by-laws,
(2)
is not in
default in any material 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
material 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 material respect of any law, ordinance,
governmental
rule, regulation or court decree to which it or its
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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.
(g) 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), any provisions of the charter or by-laws of
the Company or
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 is a party or by which it or its respective properties
may be bound or
affected, or under any federal, state, local or foreign
law, regulation
or rule or any decree, judgment or order applicable to the
Company, except
for any such conflict, breach or default which would not
reasonably be
expected to result in a Material Adverse Effect.
(h) The Purchased Preference Stock has been duly authorized by
the
Company and when
issued and delivered by the Company against payment
therefor in
accordance with the Agreement will constitute legal, valid and
binding
obligations of the Company enforceable in accordance with their
terms, except as
the enforceability thereof may be limited by bankruptcy,
insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally
and general principles of equity.
(i) This Agreement has been duly authorized, executed and delivered
by
the Company.
(j) The Purchased Preference Stock conforms in all material
respects
to the
descriptions thereof contained in the Registration Statement
and
Prospectus.
(k) 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.
(l) 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, 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.
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(m) The audited financial statements included in the
Registration
Statement and
the Prospectus present fairly in all material respects the
consolidated
financial position of the Company as of the dates indicated
and the
consolidated results of operations and cash flows of the
Company
for the periods
specified; such financial statements have been prepared in
conformity with
generally accepted accounting principles applied on a
consistent basis
during the periods involved, except as otherwise set forth
therein. The
interim unaudited financial statements included in the
Registration
Statement 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.
(n) The accountants who certified the audited financial statements
of
the Company and
supporting schedules and notes thereto incorporated by
reference in 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").
(o) 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.
(p) 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 Sarbanes-Oxley Act of 2002 and all rules and regulations
of the
Commission and the New York Stock Exchange issued or adopted in
connection
therewith.
(q) 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
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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.
(r) The Company
has established and maintains disclosure controls and
procedures (as
such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act)
and (i) such disclosure controls and procedures are designed
to ensure that
material information relating to the Company, including its
consolidated
subsidiaries, is made known to the Company's Chief Executive
Officer and its
Chief Financial Officer by others within those entities;
(ii) such
disclosure controls and procedures are effective to perform the
functions for
which they were established; and (iii) since the date of the
most recent
evaluation there have been no changes in the Company's internal
control over
financial reporting that have materially affected, or are
reasonably
likely to materially affect the Company's internal control over
financial
reporting. Based on the most recent evaluation of internal
control over
financial reporting, the Company's auditors and the Audit
Committee of the
Board of Directors have been advised of: (i) all
significant
deficiencies and material weaknesses in the design or operation
of internal
control over financial reporting which are reasonably likely to
adversely affect
the Company's ability to record, process, summarize, and
report financial
information; and (ii) any fraud, whether or not material,
that involves
management or other employees who have a significant role in
the Company's
internal control over financial reporting.
(s) 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.
(t) 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.
(u) Any statistical and market-related data included in the
Registration
Statement and the Prospectus 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.
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
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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 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. For purposes of this clause (f), any information
filed by the
Company on the Commission's EDGAR system will be deemed
furnished to you
in satisfaction of this clause (f).
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(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.
(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 the Prospectus, of the suspension
of the
qualification of the Purchased Preference Stock for offering or
sale
in any
jurisdiction or of the initiation or threatening of any
proceeding
for any such
purpose; and, in the event of the issuance of any stop order
or of any order
preventing or suspending the use of the Prospectus or
suspending any
such qualification, promptly to use its reasonable
