View:
As filed with the Securities and Exchange Commission on March 28, 1996.
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WESTERN RESOURCES, INC.
(Exact name of registrant as specified in its charter)
KANSAS 48-0290150
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
818 KANSAS AVENUE
TOPEKA, KANSAS 66612
(913) 575-6300
(Address, including zip code, and telephone number, including
area code, of principal executive offices)
-----------------------------
JOHN K. ROSENBERG, ESQ. STEVEN L. KITCHEN
EXECUTIVE VICE PRESIDENT EXECUTIVE VICE PRESIDENT AND
AND GENERAL COUNSEL CHIEF FINANCIAL OFFICER
WESTERN RESOURCES, INC. WESTERN RESOURCES, INC.
TOPEKA, KANSAS 66612 TOPEKA, KANSAS 66612
(913) 575-6300 (913) 575-6300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO
THE PUBLIC: From time to time after the effective date of
this Registration Statement.
-----------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
==============================================================================================================
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered unit(1) price(1) registration fee
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Common Stock,
Par Value $5.00 . . . . . . . 10,000,000 Shares $30.063 $300,630,000 $103,665.52
==============================================================================================================
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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11,175,000 SHARES
WESTERN RESOURCES, INC.
COMMON STOCK
(PAR VALUE $5.00 PER SHARE)
Western Resources, Inc. (the "Company") intends from time to time to issue
up to 11,175,000 shares of its Common Stock, par value $5.00 per share (the
"Common Stock"). For each offering of Common Stock for which this Prospectus is
being delivered (the "Offered Common Stock"), there will be an accompanying
Prospectus Supplement (the "Prospectus Supplement"). The Common Stock will be
offered as set forth under "Plan of Distribution".
The reported last sale price of the Common Stock on the
New York Stock Exchange on March 27, 1996 was $30.625 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is March 28, 1996.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OF
THE COMPANY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL ON THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR
OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Reports, proxy and information statements, and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, Room
1024, N.W., Washington, D.C. 20549 and at certain of its Regional Offices at
Seven World Trade Center, Suite 1300, New York, N.Y. 10048 and 500 West Madison
Street, Suite 1400, Chicago, Ill. 60661. Copies of such material can be obtained
at prescribed rates from the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D.C. 20549. Certain securities of the Company
are listed on the New York Stock Exchange, Inc. (the "New York Stock Exchange")
and reports, proxy and information statements and other information concerning
the Company can be inspected at the offices of the New York Stock Exchange, 20
Broad Street, New York, N.Y. 10005.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits thereto, referred to as
the "Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
1-3523) pursuant to the 1934 Act are incorporated herein by reference as of
their respective dates of filing and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1995 (the "1995 Form 10-K"), which report includes the Annual Report on Form
10-K of Kansas Gas and Electric Company ("KGE") for the year ended December 31,
1995 (the "KGE 1995 Form 10-K").
2. The description of the Company's Common Stock contained in Item 7 of
the Company's Form 10-Q filed for the quarter ended March 31, 1979.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act after the date of this Prospectus and prior to the
termination of this offering shall also be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the respective dates
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
herein or in any other subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a copy of any or
all documents referred to above which have been or may be incorporated by
reference in this Prospectus (not including exhibits to such incorporated
documents that are not specifically incorporated by reference into such
documents). Requests for such copies should be directed to Richard D. Terrill,
Esq., Secretary of the Company, 818 Kansas Avenue, Topeka, Kansas 66612, (913)
575-6322.
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THE COMPANY
GENERAL
The Company and its wholly owned subsidiaries include KPL, a
rate-regulated electric and gas division of the Company, KGE, a rate-regulated
utility and wholly owned subsidiary of the Company, the Westar companies, non-
utility subsidiaries, and Mid Continent Market Center, Inc., a regulated gas
transmission service provider. KGE owns 47% of Wolf Creek Nuclear Operating
Corporation, the operating company for Wolf Creek Generating Station.
The Company is an investor owned holding company. The Company is engaged
principally in the production, purchase, transmission, distribution and sale of
electricity and the delivery and sale of natural gas. The Company serves
approximately 601,000 electric customers in eastern and central Kansas and
approximately 648,000 natural gas customers in Kansas and northeastern Oklahoma.
The Company's non-utility subsidiaries market natural gas primarily to large
commercial and industrial customers, provide electronic security services and
provide other energy-related products and services.
The Company was incorporated under the laws of the State of Kansas in
1924. The Company's corporate headquarters is located at 818 Kansas Avenue,
Topeka, Kansas 66612 and its telephone number is (913) 575-6300.
USE OF PROCEEDS
The net proceeds from the sale of the Offered Common Stock will be added
to the general funds of the Company to be used for repayment of short-term
indebtedness, to refinance certain long-term indebtedness and for general
corporate purposes. Further information concerning the use of proceeds from the
sale of the Offered Common Stock will be set forth in the Prospectus Supplement
relating to such sale.
DESCRIPTION OF CAPITAL STOCK
The amount of authorized capital stock of the Company is 95,600,000
shares, of which 85,000,000 shares are Common Stock, par value $5.00 per share,
4,000,000 shares are Preference Stock without par value, 600,000 shares are
Preferred Stock, par value $100.00 per share (the "Par Value Preferred Stock")
and 6,000,000 shares are preferred stock without par value (the "No Par Value
Preferred Stock"). The Par Value Preferred Stock and the No Par Value Preferred
Stock are referred to herein together as the "Preferred Stock".
COMMON STOCK
As of December 31, 1995, the Company had 62,855,961 shares of Common Stock
issued and outstanding. The holders of Common Stock and the Preferred Stock,
voting as one class, are entitled to one vote per share on all matters requiring
stockholder action (except for the election of directors) subject to the special
voting rights of holders of Preferred Stock and Preference Stock described
below. In all elections for directors, each holder of Preferred Stock or Common
Stock has the right to cast as many votes in the aggregate as equals the number
of shares held by him multiplied by the number of directors to be elected;
provided, however, that if the holders of the Preferred Stock are entitled to
vote separately as a class for the election of certain directors or the
Preferred Stock and the Preference Stock are each entitled to vote separately as
a class for the election of certain directors, the holders of the Common Stock
shall be entitled to vote separately as a class for the remaining directors. The
holders of Preferred Stock are entitled to elect a majority of the board of
directors if, and so long as, dividends payable on outstanding Preferred Stock
are in default in an amount equal to four or more quarterly dividends, whether
or not consecutive. The holders of Preference Stock are entitled to elect two
directors if, and so long as, dividends payable on outstanding Preference Stock
are in default in an amount equal to six or more quarterly dividends, whether or
not consecutive. The holders of the Common Stock participate ratably in
liquidation, subject to the payment to the
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holders of the Preferred Stock and Preference Stock of the preferential amounts
to which they are respectively entitled.
Dividends on the Common Stock may be declared and paid only out of surplus
or net profits legally available for the payment of dividends and only when the
full dividends on the Preferred Stock and the Preference Stock have been paid or
declared and a sum sufficient for the payment thereof shall have been set apart.
In addition, the Company's Restated Articles of Incorporation contain further
restrictions on the dividends which may be paid to holders of the Common Stock.
In the event the Capitalization Ratio (as defined below) is less than 20%,
dividends (including the proposed payment) on the Common Stock and the
Preference Stock during the twelve month period ending with and including the
date of the proposed payment of such dividends may not exceed 50% of the net
income available for dividends during the twelve calendar month period ending
with and including the second calendar month immediately preceding the date of
the proposed payment of dividends on such shares of capital stock. Similarly, if
the Capitalization Ratio is 20% or more, but less than 25%, then the payment of
dividends on the Common Stock and the Preference Stock (including the proposed
payment) during the twelve month period ending with and including the date of
the proposed payment of such dividends may not exceed 75% of the net income of
the Company available for dividends for the twelve calendar months ending with
and including the second calendar month immediately preceding the date of the
proposed payment of dividends on such shares of capital stock. Except as
permitted by the provisions of the Company's Restated Articles of Incorporation
summarized in this paragraph, the Company may not pay dividends on the Common
Stock and the Preference Stock which would reduce the Capitalization Ratio to
less than 25%. "Capitalization Ratio" is defined to mean the ratio of the
capital represented by the Common Stock and the Preference Stock, including
premiums on the capital stock of the Company, plus the surplus accounts of the
Company, to the total capital of the Company, plus the surplus accounts of the
Company, at the end of the second calendar month immediately preceding the date
of the proposed payment of dividends, adjusted to reflect the proposed payment
of dividends.
PREFERRED STOCK
The Company is authorized to issue 6,600,000 shares of Preferred Stock,
which may be issued from time to time in one or more series, each such series to
have such distinctive designation or title as may be fixed by the Board prior to
the issuance of any shares thereof. Each series may differ from each other
series already outstanding as may be declared from time to time by the Board in
the following respects: (i) the rate of dividend; (ii) the amount per share, if
any, which the Preferred Stock shall be entitled to receive upon redemption,
liquidation, distribution or sale of assets, dissolution or winding up of the
Company; (iii) terms and conditions of conversion, if any; and (iv) terms of
sinking fund, redemption or purchase account, if any. As of December 31, 1995,
the Company had three series of Par Value Preferred Stock outstanding, the 4
1/2% Series (138,576 shares outstanding), the 4 1/4% Series (60,000 shares
outstanding) and the 5% Series (50,000 shares outstanding), and no shares of No
Par Value Preferred Stock were outstanding.
The Preferred Stock has special voting rights which are triggered when
dividends on the stock are in default in an amount equal to four or more
quarterly dividends, whether or not consecutive. If dividends are not paid for
four or more dividend periods on all series of Preferred Stock then outstanding,
the holders of the Preferred Stock are entitled to elect the smallest number of
directors necessary to constitute a majority of the full Board until such unpaid
dividends shall be paid. In addition, the Company may not, without the consent
of the holders of at least two-thirds of the Preferred Stock then outstanding,
voting as a class, (i) define or specify preferences, qualifications,
limitations or other rights for authorized but unissued shares of Preferred
Stock superior to those of outstanding shares of such stock (except for
differences described in items (i) through (iv) in the previous paragraph) or
amend, alter, change or repeal any of the express terms or provisions of the
then outstanding Preferred Stock in a manner substantially prejudicial to the
holders thereof, or (ii) issue or sell any Preferred Stock or any class of stock
ranking prior to or on a parity with the Preferred Stock other than in exchange
for or for the purpose of effecting the retirement of not less than a like
number of shares of Preferred Stock or shares of stock ranking prior to or on a
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parity therewith or securities convertible into not less than a like number of
such shares unless (a) aggregate capital applicable to Common Stock and
Preference Stock plus surplus equals the involuntary liquidation preference of
all Preferred Stock and any such other stock ranking prior thereto or on a
parity therewith and (b) the Company's net earnings (as defined) for a period of
12 consecutive calendar months within the 15 calendar months preceding the date
of issuance, available for the payment of dividends, shall be at least two times
the annual dividend requirements on the Preferred Stock and on any such other
stock ranking prior thereto or on a parity therewith after giving effect to the
proposed issuance, and the net earnings (as defined), for the same period,
available for payment of interest shall be at least one and one-half times the
sum of annual interest requirements and dividend requirements on Preferred Stock
and such other stock ranking prior thereto or on a parity therewith after giving
effect to the proposed issuance.
The Restated Articles of Incorporation of the Company also provide that
without the consent of the holders of at least a majority of the Preferred Stock
then outstanding, voting as a class, or if more than one-third shall vote
negatively, the Company shall not: (i) merge or consolidate with or into any
other corporation; (ii) sell, lease or exchange all or substantially all of its
property or assets unless the fair value of the net assets of the Company after
completion of such transaction shall at least equal the liquidation value of all
outstanding shares of Preferred Stock; or (iii) reacquire or pay any dividends
or make any other distribution upon shares of the Preference Stock or the Common
Stock or any other class of the stock of the Company over which the Preferred
Stock has preference with respect to the payment of dividends or the
distribution of assets, unless after any such action the sum of (a) the capital
of the Company represented by the outstanding Preference Stock, Common Stock or
other stock over which the Preferred Stock has preference, (b) the Company's
earned surplus, and (c) any capital surplus of the Company, shall not be less
than the sum of $10,500,000 plus an amount equal to twice the annual dividend
requirement on all outstanding shares of the Preferred Stock and on any such
other stock ranking prior thereto or on a parity therewith.
For consideration at the Company's 1996 Annual Shareholders' Meeting is a
proposal to amend the Company's Restated Articles of Incorporation by removing
certain voting rights of the holders of Preferred Stock relating to the issuance
of unsecured indebtedness. The Company's Restated Articles of Incorporation
currently provides that so long as any shares of Preferred Stock are
outstanding, the Company shall not, without the consent of the holders of a
majority of the Preferred Stock then outstanding, voting together as a class, or
if more than one-third of such shares vote negatively, issue or assume any
unsecured indebtedness (except for refunding outstanding unsecured securities or
redeeming or retiring shares of outstanding Preferred Stock) unless, immediately
after such issuance or assumption, the total principal amount of all outstanding
unsecured indebtedness would not exceed 15% of the total principal amount of all
secured indebtedness, issued or assumed by the Company, then to be outstanding,
plus capital and surplus of the Company. The proposed amendment would eliminate
such limitation on the Company's issuance of unsecured debt.
PREFERENCE STOCK
The Company is authorized to issue 4,000,000 shares of Preference Stock,
which may be issued from time to time in one or more series, each such series to
have such distinctive designation or title as may be fixed by the Board prior to
the issuance of any shares thereof. Each series may differ from each other
series already outstanding, as may be declared from time to time by the Board,
in the following respects: (i) the rate of dividend; (ii) whether shares of
Preference Stock are subject to redemption, and if so, the amount or amounts per
share which the shares of such series would be entitled to receive in case of
redemption, and the terms on which such shares may be redeemed; (iii) the
amounts payable in the case of the liquidation, distribution or sale of assets,
dissolution or winding up of the Company; (iv) terms and conditions of
conversion, if any; (v) terms of sinking fund, redemption or purchase account,
if any; and (vi) any designations, preferences and relative participating,
optional or other special rights and qualifications, limitations or restrictions
thereof. As of December 31, 1995, the Company had two series of Preference Stock
outstanding: the 7.58% Series, of which 500,000 shares were outstanding; and the
8.50% Series, of which 1,000,000 shares were outstanding.
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The Preference Stock has voting rights which are triggered when dividends
on the stock are in default in an amount equal to six or more quarterly
dividends, whether or not consecutive. If dividends are not paid for six or more
dividend periods, the holders of the Preference Stock are entitled to elect two
directors to the Board until such unpaid dividends shall be paid. In addition,
the Company may not, without the consent of the holders of at least two-thirds
of the Preference Stock then outstanding, voting as a class, (i) amend, alter,
change or repeal any of the express terms and conditions of the then outstanding
Preference Stock in a manner substantially prejudicial to the holders thereof,
or (ii) create any class of stock ranking prior to the Preference Stock as to
dividends or upon liquidation, or securities convertible into shares ranking
prior to the Preferred Stock in such respects; provided, no such consent shall
be required with respect to the taking of any such action relating to the
Preferred Stock.
TRANSFER AGENTS AND REGISTRARS
The Transfer Agents for the Common Stock are Western Resources, Inc.,
Topeka, Kansas, and Continental Stock Transfer and Trust Company, New York, New
York. The Registrars for the Common Stock are Western Resources, Inc., Topeka,
Kansas, and Continental Stock Transfer and Trust Company, New York, New York.
ANTI-TAKEOVER CONSIDERATIONS
Article XVII of the Company's Restated Articles of Incorporation requires
the affirmative vote of the holders of not less than 80% of the outstanding
shares of Common and Preferred Stock entitled to vote and the affirmative vote
of the holders of not less than a majority of the outstanding shares of stock
entitled to vote held by any stockholders other than any stockholder, together
with its affiliates and associates, which becomes the beneficial owner of 10% or
more of the outstanding shares entitled to vote (an "Interested Stockholder"),
to approve or authorize certain "Business Combinations" (including any merger,
consolidation, self-dealing transaction, recapitalization or reclassification or
issuance of stock) with an Interested Stockholder. This Article does not apply
to any Business Combination with an Interested Stockholder (i) that has been
approved by a majority of the directors of the Company who were members of the
Board immediately prior to the time an Interested Stockholder involved in a
Business Combination became an Interested Stockholder, or (ii) in which the cash
or fair market value of the consideration offered in such Business Combination
is not less than the highest price per share paid by the Interested Stockholder
in acquiring any of its holdings of each class of the Company's stock.
The Preferred Stock is also entitled to supermajority voting rights with
respect to certain mergers, consolidations, sales, leases or exchanges of all or
substantially all of the assets of the Company, issuance or assumption of
unsecured indebtedness or distributions of dividends or assets to stockholders.
See "Description of Capital Stock -- Preferred Stock".
The Company's Restated Articles of Incorporation provide for a classified
board of directors consisting of not less than seven nor more than fifteen
directors. The directors are divided into three classes as nearly equal in
number as may be. Voting for directors is on a cumulative basis, and directors
are elected to serve a term of three years. Under the By-laws, directors may be
removed only for cause as set forth therein. Provisions in the By-laws relating
to the classified board of directors and removal of directors may only be
amended, altered or repealed by the affirmative vote of at least 80% of the
outstanding shares entitled to vote in any election.
PLAN OF DISTRIBUTION
The Company may sell the Common Stock in any of the following ways: (i)
through underwriters or dealers; (ii) directly to one or more purchasers; or
(iii) through agents. The applicable Prospectus Supplement will set forth the
terms of the offering of any of the Common Stock, including the names of any
underwriters or agents, the purchase price of such Common Stock and the proceeds
to the Company from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price, any
discounts or
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concessions allowed or reallowed or paid to dealers and any securities exchanges
on which such Common Stock may be listed.
If underwriters are used in the sale, the Common Stock will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Such Common
Stock may be offered to the public either through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
Unless otherwise set forth in the applicable Prospectus Supplement, the
obligations of the underwriters to purchase such Common Stock will be subject to
certain conditions precedent, and the underwriters will be obligated to purchase
all of such Common Stock if any of such Common Stock is purchased. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time. Only underwriters named in a
Prospectus Supplement are deemed to be underwriters in connection with the
Common Stock offered thereby.
The Common Stock may also be sold directly by the Company or through
agents designated by the Company from time to time. Any agent involved in the
offer or sale of the Common Stock will be named, and any commissions payable by
the Company to such agent will be set forth in the applicable Prospectus
Supplement. Unless otherwise indicated in the applicable Prospectus Supplement,
any such agent will act on a best efforts basis for the period of its
appointment.
If so indicated in a Prospectus Supplement with respect to the Common
Stock, the Company will authorize agents, underwriters or dealers to solicit
offers by certain institutions to purchase such Common Stock from the Company at
the public offering price set forth in the Prospectus Supplement pursuant to
Delayed Delivery Contracts ("Contracts") providing for payment and delivery on
the date or dates stated in the Prospectus Supplement. Each Contract will be for
an amount not less than the respective amounts stated in the Prospectus
Supplement. Institutions with whom the Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions, but will in all cases be subject to the approval of the Company.
The Contracts will not be subject to any conditions except (i) the purchase by
an institution of the Common Stock covered by its Contract shall not at the time
of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (ii) if the Common Stock is
being sold to underwriters, the Company shall have sold to such underwriters the
amount of Common Stock less the number of shares covered by the Contracts. The
underwriters will not have any responsibility in respect of the validity or
performance of the Contracts.
If dealers are utilized in the sale of any Common Stock, the Company will
sell such Common Stock to the dealers, as principals. Any dealer may then resell
such Common Stock to the public at varying prices to be determined by such
dealer at the time of resale. The name of any dealer and the terms of the
transaction will be set forth in the Prospectus Supplement with respect to the
Common Stock being offered thereby.
Any underwriters, dealers or agents participating in the distribution of
the Common Stock may be deemed to be underwriters and any discounts or
commissions received by them on the sale or resale of the Common Stock may be
deemed to be underwriting discounts and commissions under the Securities Act of
1933 (the "Securities Act"). Agents and underwriters may be entitled under
agreements entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act, or
to contribution with respect to payments that the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be customers
of, engaged in transactions with, or perform services for, the Company or its
affiliates in the ordinary course of business.
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LEGAL OPINIONS
The statements as to matters of law and legal conclusions set forth in
this Prospectus and in the documents incorporated by reference herein have been
reviewed by John K. Rosenberg, Esq., Executive Vice President and General
Counsel of the Company, and are set forth or incorporated by reference herein in
reliance upon the opinion of Mr. Rosenberg. At December 31, 1995, Mr. Rosenberg
owned directly and/or beneficially 2,900 shares of Common Stock and had been
granted pursuant to and subject to the terms of the Company's Long-Term
Incentive Program 999 performance shares.
Certain legal matters in connection with the Common Stock will be passed
upon by John K. Rosenberg, Esq., Executive Vice President and General Counsel of
the Company, and by Cahill Gordon & Reindel, a partnership including a
professional corporation, counsel for the Company. Cahill Gordon & Reindel will
not pass upon the incorporation of the Company and will rely upon the opinion of
John K. Rosenberg, Esq. as to matters of Kansas law.
EXPERTS
The financial statements and schedules included in or incorporated by
reference in Western Resources' 1995 Annual Report on Form 10-K have been
audited by Arthur Andersen LLP, independent public accountants, as set forth in
their reports. Since 1993, Arthur Andersen LLP has audited both the Company and
KGE. The financial statements and supporting schedules referred to above have
been incorporated herein in reliance upon the authority of Arthur Andersen LLP
as experts in giving said reports.
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NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS
BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO
MAKE ANY REPRESENTATIONS OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS, INCLUDING ANY
PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE
OFFER OF THE COMMON STOCK, AND, IF GIVEN OR WESTERN RESOURCES, INC.
MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN ----------
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER,
DEALER, OR AGENT. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER BY THE COMPANY OR BY ANY 11,175,000 SHARES
UNDERWRITER, DEALER OR AGENT TO SELL
SECURITIES IN ANY STATE TO ANY PERSON TO WHOM COMMON STOCK
IT IS UNLAWFUL FOR THE COMPANY OR ANY
UNDERWRITER, DEALER OR AGENT TO MAKE SUCH
OFFER IN SUCH STATE. NEITHER THE DELIVERY OF (PAR VALUE $5.00 PER SHARE)
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF.
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TABLE OF CONTENTS
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PAGE
Available Information................ 2
Incorporation of Certain
Documents by Reference............. 2 PROSPECTUS
The Company.......................... 3
Use of Proceeds...................... 3
Description of Capital Stock......... 3
Plan of Distribution................. 6
Legal Opinions....................... 8 -------------
Experts.............................. 8
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
An estimate of expenses, other than underwriting discount, follows:
Securities and Exchange Commission registration fee................$103,665.52
New York Stock Exchange listing fee................................ 39,100.00
Printing........................................................... 150,000.00
Legal fees and expenses............................................ 60,000.00
Accountants' fees and expenses..................................... 20,000.00
Blue sky expenses.................................................. 5,000.00
Transfer agent fees................................................ 5,000.00
Miscellaneous expenses ............................................ 27,234.48
--------
Total ...............................................$410,000.00*
========
* All expenses, except the Securities and Exchange Commission registration
fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XVIII of the Registrant's Restated Ar icles of Incorporation,
as amended, provides that a director of the Registrant shall not be personally
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for paying a dividend or approving a stock
repurchase in violation of the Kansas General Corporation Law or (iv) for any
transaction from which the director derived an improper personal benefit. This
provision is specifically authorized by Section 17-6002(b)(8) of the Kansas
General Corporation Law.
Section 17-6305 of the Kansas General Corporation Law (the
"Indemnification Statute") provides for indemnification by a corporation of its
corporate officers, directors, employees and agents. The Indemnification Statute
provides that a corporation may indemnify such persons who have been, are, or
may become a party to an action, suit or proceeding due to his or her status as
a director, officer, employee or agent of the corporation. Further, the
Indemnification Statute grants authority to a corporation to implement its own
broader indemnification policy. Article XVIII of the Registrant's Restated
Articles of Incorporation, as amended, requires the Registrant to indemnify its
directors and officers to the fullest extent provided by Kansas law. Further, as
is provided for in Article XVIII, the Registrant has entered into
indemnification agreements with its directors, which provide indemnification
broader than that available under Article XVIII and the Indemnification Statute.
The form of Standard Purchase Agreement filed as Exhibit 1 to the
Registration Statement includes provisions requiring underwriters to indemnify
the Registrant and its directors and officers who signed this Registration
Statement, and its controlling persons, against certain civil liabilities,
including liabilities under the Securities Act of 1933, in certain
circumstances.
II-1
ITEM 16. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Exhibit
Index on Page E-1 of this Registration Statement, which Index is incorporated
herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of Prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to
II-2
a court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Western
Resources, Inc., the Registrant, certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Topeka, State of Kansas
on the 28th day of March, 1996.
WESTERN RESOURCES, INC.
(Registrant)
By /s/JOHN E. HAYES, JR.
---------------------------
John E. Hayes, Jr.
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/JOHN E. HAYES, JR.
- ---------------------------
John E. Hayes, Jr. Chairman of the March 28, 1996
Board and Chief
Executive Officer
(Principal Executive
Officer)
/s/STEVEN L. KITCHEN
- ---------------------------
Steven L. Kitchen Executive Vice March 28, 1996
President and
Chief Financial Officer
(Principal Financial
and Accounting Officer)
/s/FRANK J. BECKER
- ---------------------------
Frank J. Becker Director March 28, 1996
/s/GENE A. BUDIG
- ---------------------------
Gene A. Budig Director March 28, 1996
/s/C. Q. CHANDLER
- ---------------------------
C. Q. Chandler Director March 28, 1996
II-4
/s/THOMAS R. CLEVENGER
- --------------------------
Thomas R. Clevenger Director March 28, 1996
/s/JOHN C. DICUS
- --------------------------
John C. Dicus Director March 28, 1996
/s/DAVID H. HUGHES
- --------------------------
David H. Hughes Director March 28, 1996
/s/RUSSELL W. MEYER, JR.
- --------------------------
Russell W. Meyer, Jr. Director March 28, 1996
/s/JOHN H. ROBINSON
- --------------------------
John H. Robinson Director March 28, 1996
/s/LOUIS W. SMITH
- --------------------------
Louis W. Smith Director March 28, 1996
/s/SUSAN M. STANTON
- --------------------------
Susan M. Stanton Director March 28, 1996
/s/KENNETH J. WAGNON
- --------------------------
Kenneth J. Wagnon Director March 28, 1996
/s/DAVID C. WITTIG
- --------------------------
David C. Wittig Director March 28, 1996
II-5
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
1 -- Form of Standard Purchase Agreement (1)
4(a) -- Restated Articles of Incorporation of the Company,
as amended May 25, 1988 (2)
4(b) -- Certificate of Correction to Restated Articles of
Incorporation (2)
4(c) -- Amendment to the Restated Articles of Incorporation,
as amended May 5, 1992 (2)
4(d) -- Amendments to the Restated Articles of Incorporation
of the Company (2)
4(e) -- By-laws of the Company (2)
5 -- Opinion of John K. Rosenberg, Esq. (1)
23(a) -- Consent of John K. Rosenberg, Esq. (contained in
Exhibit 5) (1)
23(b) -- Consent of Arthur Andersen LLP (1)
(1) Filed herewith.
(2) Incorporated by reference to exhibits previously filed with the SEC as
follows:
Exhibit Number
In this Registration Former Exhibit File
Statement Reference Reference
- -------------------- -------------- --------------
4(a) 4 33-23022*
4(b) 3(b) Form 10-K
Year Ended December 31, 1991**
4(c) Filed electronically
4(d) 3 Form 10-Q
Quarter Ended June 15, 1994**
4(e) 3(e) Form 10-K
Year Ended December 31, 1995**
- -------
(*) Registration Statements under the Securities Act of 1933.
(**) File No. 1-3523 under the Securities Exchange Act of 1934.
EXHIBIT 1
WESTERN RESOURCES, INC.
COMMON STOCK
(PAR VALUE $5.00 PER SHARE)
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
E-2
WESTERN RESOURCES, INC.
STANDARD PURCHASE PROVISIONS
From time to time, Western Resources, Inc., a corporation
organized and existing under the laws of the State of Kansas (the "Company") may
enter into purchase agreements that provide for the sale of designated
securities to the purchaser or purchasers named therein. The standard provisions
set forth herein may be incorporated by reference in any such purchase agreement
(the "Purchase Agreement"). The Purchase Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as "this
Agreement." The term "Common Stock" shall mean the Common Stock, par value $5.00
per share, of the Company to be sold by the Company pursuant to the applicable
Purchase Agreement. Unless otherwise defined herein, terms defined in the
Purchase Agreement are used herein as therein defined.
The Company has filed ("filing" as used herein shall be deemed
to include electronic filings pursuant to the EDGAR program), in accordance with
the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission thereunder (collectively
called the "Act"), with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (including a prospectus),
relating to the Common Stock, which pursuant to Item 12 of Form S-3 incorporates
by reference documents which the Company has filed in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively called the "Exchange Act"). Such
registration statement has been declared effective by the Commission. Promptly
upon the execution of this Agreement, the Company will prepare a prospectus
supplement relating to the Common Stock (the "Prospectus Supplement"). The
Company has furnished to you, for use by the Purchasers (as defined herein) and
dealers if the Common Stock is to be sold to the public, copies of one or more
preliminary prospectuses and the documents so incorporated therein (each
thereof, including the documents so incorporated therein, is herein called the
"Preliminary Prospectus"). The terms Registration Statement and Prospectus shall
have the meanings ascribed to them in the Purchase Agreement.
1. INTRODUCTORY. The Company proposes to issue and sell from
time to time Common Stock registered under the Registration Statement. The
Common Stock referred to in Section A of the Purchase Agreement is hereinafter
referred to as the "Firm Common Stock." The Purchase Agreement may provide for
an additional number of shares of Common Stock (the "Additional Common Stock")
which the purchasers may purchase on the terms and conditions set forth in the
Agreement for the sole purpose of covering over-allotments. The Firm Common
Stock and the Additional Common Stock, if any, are referred to as the "Purchased
Common Stock." The firm or firms, as the case may be, which agree to purchase
any of the Purchased Common Scock are hereinafter referred to as the
"Purchasers" of such Purchased Common Stock. The terms "you" and "your" refer to
those Purchasers who sign the Purchase Agreement either on behalf of themselves
only or on behalf of themselves and as representatives of the several Purchasers
named in Schedule A thereto, as the case may be. Purchased Common Stock to be
purchased by Purchasers is herein referred to as "Purchasers' Common Stock," and
any Purchased Common Stock to be purchased pursuant to Delayed Delivery
Contracts (as defined below) as hereinafter provided is herein referred to as
"Contract Common Stock."
2. DELIVERY AND PAYMENT. The Company will deliver the Firm
Common Stock to you for the accounts of the Purchasers at the place specified in
the Purchase Agreement, against payment of the purchase price by certified or
bank cashier's check in same day or New York Clearing House funds (as agreed to
by the parties and specified in the Purchase Agreement) drawn to the order of
the Company, at the time set forth in this 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." Unless otherwise
provided for in the Purchase Agreement, the Firm Common Stock so to be delivered
will be in definitive fully registered form registered in such authorized
1
denominations and in such names as you request in writing not later than 10:00
A.M.,* on the third business day prior to the Closing Date, or, if no such
request is received, in the names of the respective Purchasers in the amounts
agreed to be purchased by them pursuant to this Agreement. For the purpose of
expediting the checking of the Firm Common Stock, the Company agrees to make the
Firm Common Stock available to you (at the place specified in the Purchase
Agreement) in definitive form not later than 10:00 A.M. on the first business
day preceding the Closing Date.**
If there is any Additional Common Stock, the Purchasers shall
also have the option to purchase, severally and not jointly, from the Company,
ratably in accordance with the number of shares of Firm Common Stock to be
purchased by each of them (subject to such adjustment as you shall determine to
avoid fractional shares), all or a portion of the Additional Common Stock, if
any, as may be necessary to cover over-allotments made in connection with the
offering of the Firm Common Stock, at the same purchase price per share to be
paid by the Purchasers to the Company for the firm Common Stock, all subject to
the terms and conditions set forth in this Agreement. This option may be
exercised at any time (but not more than once) on or before the thirtieth day
following the date hereof, by your written notice to the Company. Such notice
shall set forth the aggregate number of shares of Additional Common Stock as to
which the option is being exercised, and the date and time when the Additional
Common Stock is to be delivered (such date and time being herein referred to as
the "Additional Closing Date"); provided, however, that the Additional Closing
Date shall not be earlier than the Closing Date nor earlier than the third
business day after the date on which the option shall have been exercised nor
later than the eighth business day after the date on which the option shall have
been exercised. The number of shares of Additional Common Stock to be sold to
each Purchaser shall be the number which bears the same proportion to the
aggregate number of shares of Additional Common Stock being purchased as the
number of shares of Firm Common Stock set forth opposite the name of such
Purchaser on Schedule A to the Purchase Agreement bears to the total number of
shares of Firm Common Stock (subject, in each case, to such adjustment as you
may determine to eliminate fractional shares).
Payment of the purchase price for the Additional Common Stock,
if any, shall be made on the Additional Closing Date in the same manner and at
the same office as the payment for the Firm Common Stock. The Company agrees to
make available to you for inspection and packaging at the place set forth in the
Purchase Agreement, at least one full business day prior to the Additional
Closing Date, the Additional Common Stock so to be delivered in good delivery
form and in such denominations and registered in such names as you shall have
requested, all such requests to have been made in writing at least three full
business days prior to the Additional Closing Date, or if no such request is
made, registered in the names of the several Purchasers as set forth in Schedule
A to the Purchase Agreement.
The obligation of the Purchasers to purchase the Additional
Common Stock shall be conditioned upon receipt of the certificate pursuant to
Section 4 hereto and such other supplemented opinions, certificates and letters
as you may reasonably request.
If any Purchase Agreement provides for sales of Firm Common
Stock pursuant to delayed delivery contracts, the Company authorizes the
Purchasers to solicit offers to purchase Contract Common Stock pursuant to
delayed delivery contracts substantially in the form of Schedule I attached
hereto (the Delayed Delivery Contracts) with such changes therein as the Company
may approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies, and educational and charitable institutions. On the
Closing Date, the Company will pay you as compensation, for the accounts of the
Purchasers, the compensation set forth in such Purchase Agreement in respect of
the number of
- --------
* Times mentioned herein are New York City Time.
** As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
2
shares of Contract Common Stock. The Purchasers will not have any responsibility
in respect of the validity or the performance of Delayed Delivery Contracts. If
the Company executes and delivers Delayed Delivery Contracts, the Contract
Common Stock shall be deducted from the Firm Common Stock to be purchased by the
several Purchasers and the aggregate number of shares of Firm Common Stock to be
purchased by each Purchaser shall be reduced pro rata in proportion to the
number of shares of Firm Common Stock set forth opposite each Purchaser's name
in such Purchase Agreement, except to the extent that you determine that such
reduction shall be otherwise allocated and so advise the Company.
3. CERTAIN COVENANTS OF THE COMPANY. The Company agrees:
(a) As soon as possible after the execution and
delivery of this Agreement to file, or mail for filing, the
Prospectus with the Commission pursuant to its Rule 424 under
the Act and, if and when required at any time after such
execution and delivery, to file amendments to the applications
the Company has previously filed with any state regulatory
agencies having jurisdiction to govern the Company's issuance
of its securities setting forth, among other things, the
necessary information with respect to the price and terms of
offering of the Purchased Common Stock;
(b) To file no amendment or supplement to the
Registration Statement or Prospectus subsequent to the
execution of this Agreement to which you object in writing
unless, in the opinion of counsel to the Company, such filing
is required by law;
(c) If the Purchased Common Stock is to be sold to
the public, to furnish such proper information as may be
required and otherwise to cooperate in qualifying the
Purchased Common Stock for sale under the laws of such
jurisdictions as you may designate and in determining their
eligibility for investment under the laws of such
jurisdictions; provided that the Company shall not hereby be
required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(d) If the Purchased Common Stock is to be sold to
the public, to the extent not previously furnished to you, to
furnish to you two signed copies of the Registration
Statement, as initially filed with the Commission, of all
amendments thereto, and of all documents incorporated by
reference therein (including all exhibits filed therewith,
other than exhibits which have previously been furnished to
you and exhibits incorporated by reference in such documents),
and to furnish to you sufficient unsigned copies of the
foregoing (other than exhibits) for distribution of a copy to
you and to each of the other Purchasers (if any);
(e) If the Purchased Common Stock is to be sold to
the public, to deliver to the Purchasers without charge as
soon as practicable after the execution and delivery of this
Agreement and thereafter from time to time to furnish to the
Purchasers, without charge, as many copies of the Prospectus
in final form and any documents incorporated by reference
therein at or after the date thereof (and of the Registration
Statement as amended or supplemented, if the Company shall
have made any amendment or supplement after the effective date
of the Registration Statement) as you or the respective
Purchasers may reasonably request for the purposes
contemplated by the Act;
(f) To advise you promptly (confirming such advice in
writing) of any official request made by the Commission for
amendments to the Registration Statement or Prospectus or for
additional information with respect thereto, or of official
notice of institution of proceedings for, or the entry of, a
stop order suspending the effectiveness of the Registration
Statement and, if such a stop order should be entered by the
3
Commission, to make every reasonable effort to obtain the
lifting or removal thereof as soon as possible, or of the
suspension of qualification of the Purchased Common Stock for
offering or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose;
(g) In the event the Purchased Common Stock is to be
sold to the public, to advise the Purchasers of the happening
of any event known to the Company within the time during which
a prospectus relating to the Purchased Common Stock is
required to be delivered under the Act which, in the judgment
of the Company, would require the making of any change in the
Prospectus or any amended or supplemented Prospectus or in the
information incorporated by reference therein so that as
thereafter delivered to purchasers such Prospectus 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, and on request to
prepare and furnish to the Purchasers and to dealers and other
persons designated by you such amendments or supplements
(including appropriate filings under the Exchange Act) to the
Prospectus as may be necessary to reflect any such change,
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 3(g));
(h) As soon as practicable, to make generally
available to its security holders an earnings statement (as
contemplated by Rule 158 under the Act) covering a period of
twelve months after the effective date (as the term "effective
date" is defined in Rule 158) of the Registration Statement;
(i) To pay the reasonable fees and expenses of
counsel for the Purchasers, and to reimburse the Purchasers
for their reasonable out-of-pocket expenses incurred in
contemplation of the performance of this Agreement, in the
event that the Purchasers' Common Stock is not delivered to
and taken up and paid for by the Purchasers hereunder for any
reason whatsoever except the failure or refusal of any
Purchaser to take up and pay for Purchasers' Common Stock for
some reason not permitted by the terms of this Agreement, the
Purchasers agreeing to pay the fees and expenses of counsel
for the Purchasers in any other event;
(j) To pay all expenses, fees and taxes (other than
transfer taxes and fees and disbursements of counsel for the
Purchasers except as set forth under 3(i) above or (iv) below)
in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus and the
Prospectus, any documents incorporated by reference therein at
or after the date thereof and any amendments or supplements
thereto, and the printing and furnishing of copies of each
thereof to the Purchasers and to dealers, (ii) the issue, sale
and delivery of the Purchased Common Stock, (iii) the printing
and reproduction of this Agreement and the opinions and
letters referred to in Section 4(a) hereof, (iv) the
qualification of the Purchased Common Stock for sale and
determination of their eligibility for investment under state
laws as aforesaid, including the legal fees (not to exceed
$3,000) and all filing fees and disbursements of counsel for
the Purchasers and all other filing fees, and the printing and
furnishing of copies of the "Blue Sky Survey" to the
Purchasers and to dealers and (v) the performance of the
Company's other obligations hereunder; and
(k) To furnish to the Purchasers, at or before the time of
filing with the Commission subsequent to the effective date of the Registration
Statement and prior to
4
the termination of the distribution of the Purchased Common
Stock if it is sold to the public, a copy of any document
proposed to be filed pursuant to Section 13(a), 13(d), 14 or
15(d) of the Exchange Act.
4. CONDITIONS OF PURCHASERS' OBLIGATIONS WITH RESPECT TO THE
FIRM COMMON STOCK AND THE ADDITIONAL COMMON STOCK. The several obligations of
the Purchasers hereunder are subject to the following conditions:
(a) That, on the Closing Date with respect to the
Firm Common Stock, you shall receive the signed opinions of
John K. Rosenberg, Esq., Executive Vice President and General
Counsel of the Company; Cahill Gordon & Reindel, counsel for
the Company; and counsel for the Purchasers, substantially in
the forms heretofore furnished to you, addressed to the
Purchasers (with reproduced or conformed copies thereof for
each of the other Purchasers); and that, if the Firm Common
Stock is to be sold to the public at the time of purchase, you
shall receive the signed letter of Arthur Andersen & Co.,
independent public accountants of the Company, substantially
in the forms heretofore furnished to you and in substance
satisfactory to you addressed to the Purchasers (with
reproduced or conformed copies thereof for each of the other
Purchasers);
(b) That all orders, approvals or consents of state
or federal regulatory commissions necessary to permit the
issue, sale and delivery of the Firm Common Stock or the
Additional Common Stock, as the case may be, shall have been
issued; on the Closing Date, such orders shall be in full
force and effect; and prior to the Closing Date or the
Additional Closing Date, as the case may be, no stop order
with respect to the effectiveness of the Registration
Statement shall have been issued under the Act by the
Commission and on the Closing Date no proceedings therefor
shall be pending or threatened;
(c) That, at the time the Registration Statement
became effective, the Registration Statement did 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 not misleading, and that the
Prospectus at its issue date and at the time of purchase shall
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 the light of the
circumstances under which they were made, not misleading,
other than any statement contained in, or any matter omitted
from, the Registration Statement or the Prospectus in reliance
upon, and in conformity with, information furnished in writing
by or on behalf of any Purchaser through you to the Company
expressly for use with reference to such Purchaser in the
Registration Statement or Prospectus;
(d) That, subsequent to the respective dates as of
which information is given in the Registration Statement and
in the Prospectus, at the time the Prospectus is first filed,
or mailed for filing, pursuant to Rule 424 under the Act, and
prior to the Closing Date, in your opinion no material adverse
change in the condition of the Company, financial or
otherwise, shall have taken place (other than as referred to
in or contemplated by the Registration Statement and
Prospectus as of such time) which in the reasonable judgment
of the Purchasers, is sufficiently material and adverse so as
to render it impractical or inadvisable to offer or deliver
the Firm Common Stock on the terms and in the manner
contemplated in the Prospectus;
5
(e) That the Company shall have performed all of its
obligations under this Agreement which are to be performed by
the terms hereof at or before the Closing Date or the
Additional Closing Date, as the case may be;
(f) That the Company shall, on the Closing Date,
deliver to you (with reproduced or conformed copies thereof
for each of the other Purchasers) a signed certificate of two
of its executive officers stating that, subsequent to the
respective dates as of which information is given in the
Registration Statement and in the Prospectus, at the time the
Prospectus is first filed, or mailed for filing, pursuant to
Rule 424 under the Act, and prior to the Closing Date, with
respect to the Firm Common Stock, or the Additional Closing
Date, with respect to the Additional Common Stock, no material
adverse change in the condition of the Company, financial or
otherwise, shall have taken place (other than as referred to
in or contemplated by the Registration Statement and
Prospectus as of such time) and also covering the matters set
forth in (c) and (e) of this Section 4;
(g) That the Company shall have accepted Delayed
Delivery Contracts in any case where sales of Contract Common
Stock arranged by the Purchasers have been approved by the
Company.
5. TERMINATION OF AGREEMENT. The obligations of the several
Purchasers hereunder shall be subject to termination in your absolute
discretion, if, at any time prior to the Closing Date, with respect to the Firm
Common Stock, or the Additional Closing Date, with respect to the Additional
Common Stock, trading in securities on the New York Stock Exchange shall have
been suspended (other than a temporary suspension to provide for an orderly
market) or minimum prices shall have been established on the New York Stock
Exchange, or if a banking moratorium shall have been declared either by the
United States or New York State authorities, or if the United States shall have
declared war in accordance with its constitutional processes or there shall have
occurred any outbreak or material escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your reasonable judgment, to make
it impracticable to market the Purchased Common Stock.
If you elect to terminate this Agreement as provided in this
Section 5, the Company and each other Purchaser shall be notified promptly in
writing or by telephone, confirmed in writing.
If the sale to the Purchasers of the Purchasers' Common Stock,
as herein contemplated, is not carried out by the Purchasers for any reason
permitted hereunder or if such sale is not carried out because the Company shall
be unable to comply with any of the terms thereof, the Company shall not be
under any obligation or liability under this Agreement (except to the extent
provided in Sections 3(i), 3(j), 7(b) and 9 hereof), and the Purchasers shall be
under no obligation or liability to the Company (except to the extent provided
in Sections 8(b) and 9 hereof) or to one another under this Agreement.
6. INCREASE IN PURCHASERS' COMMITMENTS: If any Purchaser shall
default in its obligation to take up and pay for the Firm Common Stock or
Additional Common Stock, as the case may be, to be purchased by it hereunder and
if the number of shares of the Firm Common Stock or Additional Common Stock, as
the case may be, which all Purchasers so defaulting shall have so failed to take
up and pay for does not exceed 10% of the total number of shares of the Firm
Common Stock or Additional Common Stock, as the case may be, the non-defaulting
Purchasers shall take up and pay for (in addition to the number of shares of the
Firm Common Stock or Additional Common Stock, as the case may be, they are
obligated to purchase pursuant to this Agreement) the number of shares of the
Firm Common Stock or Additional Common Stock, as the case may be, agreed to be
purchased by all such defaulting Purchasers, as herein provided. Such Firm
Common Stock or Additional Common Stock, as the case may be, shall be taken up
and paid for by such non-defaulting Purchaser or Purchasers in such
6
amount or amounts as you may designate with the consent of each Purchaser so
designated or, in the event no such designation is made, such Firm Common Stock
or Additional Common Stock, as the case may be, shall be taken up and paid for
by all non-defaulting Purchasers pro rata in proportion to the number of shares
of the Firm Common Stock or Additional Common Stock, as the case may be, set
opposite the names of all such non-defaulting Purchasers in Schedule A to the
Purchase Agreement.
Without relieving any defaulting Purchaser of its obligations
hereunder, the Company agrees with the non-defaulting Purchasers that it will
not sell any Firm Common Stock or Additional Common Stock, as the case may be,
hereunder unless all of the Firm Common Stock or Additional Common Stock, as the
case may be, is purchased by the Purchasers (or by substituted Purchasers
selected by you with the approval of the Company or selected by the Company with
your approval).
If a new Purchaser or Purchasers are substituted by the
Purchasers or by the Company for a defaulting Purchaser or Purchasers in
accordance with the foregoing provision, the Company or you will have the right
to postpone the Closing Date for a period of not exceeding five business days in
order that necessary changes in the Registration Statement and Prospectus and
other documents may be effected.
The term Purchaser as used in this Agreement will refer to and
include any purchaser substituted under this Section 6 with like effect as if
such substituted Purchaser had originally been named in Schedule A to the
Purchase Agreement.
7. WARRANTIES AND REPRESENTATIONS OF AND INDEMNITY BY THE
COMPANY. (a)The Company warrants and represents that, when the Registration
Statement became effective, the Registration Statement complied in all material
respects, and, when the Prospectus is first filed, or mailed for filing,
pursuant to Rule 424 under the Act, and at the time of purchase the Prospectus
will comply in all material respects with the provisions of the Act, and that
neither will contain any 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; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in, or any matter omitted
from, the Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished in writing by or on behalf of any
Purchaser through you to the Company expressly for use with reference to the
Purchaser in the Registration Statement or Prospectus. The Company also warrants
and represents that the documents incorporated by reference in the Prospectus
complied at the time they were filed in all material respects with the
requirements of the Exchange Act 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 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 the light of the circumstances under which they
are made, not misleading.
(b) The Company agrees to indemnify and hold harmless each
Purchaser, and any person who controls any Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
loss, expense, liability or claim which arises out of or is based upon any
alleged untrue statement of a material fact in the Registration Statement, any
prospectus contained in the Registration Statement at the time it became
effective or the Prospectus, or any related preliminary prospectus, or arises
out of or is based upon any alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements made therein
not misleading. The foregoing shall not cover any such loss, expense, liability
or claim, however, which arises out of or is based upon any alleged untrue
statement of a material fact contained in, and in conformity with information
furnished in writing by or on behalf of such Purchaser through you to the
Company expressly for use with reference to the Purchaser in, any such documents
or arises out of or is based upon any alleged omission to state a material fact
in connection with such information required to be stated in any such documents
or necessary to make such information not misleading.
7
If any action is brought against a Purchaser or controlling
person in respect of which indemnity may be sought against the Company pursuant
to the foregoing paragraph, such Purchaser shall promptly notify the Company in
writing or by telephone, confirmed in writing, of the institution of such action
and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses; provided, however, that the
failure so to notify the Company will not relieve it from any liability that it
may have to such Purchaser under this Section 7(b) unless, and only to the
extent that such failure results in the forfeiture of substantive rights or
defenses by the Company. Such Purchaser or controlling person shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Purchaser or such
controlling person unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of such
action or the Company shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company (in which
case the Company shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such fees
and expenses of one counsel for all indemnified parties selected by such
Purchaser shall be borne by the Company. Anything in this paragraph to the
contrary notwithstanding, the Company shall not be liable for any settlement of
any such claim or action effected without its written consent. The Company's
indemnity agreement contained in this Section 7(b) and its warranties and
representations contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any Purchaser or
controlling person, and shall survive any termination of this Agreement or the
issuance and delivery of the Purchased Common Stock.
The Company agrees promptly to notify the Purchasers of the
commencement of any litigation or proceedings against the Company or any of its
officers, directors or controlling persons in connection with the issue and sale
of the Purchased Common Stock or with the Registration Statement or Prospectus.
8. WARRANTIES AND REPRESENTATIONS OF AND INDEMNITY BY
PURCHASERS. (a) Each Purchaser warrants and represents that the information
furnished in writing by or on behalf of such Purchaser through you to the
Company expressly for use with reference to such Purchaser in the Registration
Statement at the time it became effective or the Prospectus when the Prospectus
is first filed, or mailed for filing, pursuant to Rule 424 under the Act, will
not contain an untrue statement of a material fact and does not omit to state a
material fact in connection with such information required to be stated in the
Registration Statement or the Prospectus or necessary to make such information
not misleading. Each Purchaser, in addition to other information furnished by
such Purchaser or on its behalf through you to the Company in writing expressly
for use with reference to such Purchaser in the Registration Statement and
Prospectus, hereby furnishes to the Company in writing expressly for use with
reference to such Purchaser the statements with respect to the terms of offering
of the Purchased Common Stock by the Purchasers set forth on the cover page of
the Prospectus and under "Underwriting" therein.
(b) Each Purchaser severally agrees to indemnify and hold
harmless the Company, its directors and its officers from and against any loss,
expense, liability or claim which arises out of or is based upon any alleged
untrue statement of a material fact contained in, and in conformity with
information furnished in writing by or on behalf of such Purchaser through you
to the Company expressly for use with reference to such Purchaser in, the
Registration Statement, any prospectus contained in the Registration Statement
at the time it became effective or the Prospectus, or any related preliminary
prospectus, or arises out of or is based upon any alleged omission to state a
material fact in connection with such information required to be stated in such
documents or necessary to make such information not misleading.
If any action is brought against the Company or any such
person in respect of which indemnity may be sought against any Purchaser
pursuant to the foregoing paragraph, the Company or such person shall promptly
notify such Purchaser in writing or by telephone, confirmed in writing, of the
institution of such action and such Purchaser shall assume the defense of such
action, including the employment of counsel and payment of expenses; provided,
however, that the failure so to notify such Purchaser will not relieve it from
any liability that it may have to the Company under this Section 8(b) unless,
and only to the extent that such failure results in the
8
forfeiture of substantive rights or defenses by such Purchaser. The Company or
such person shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of the
Company or such person unless the employment of such counsel shall have been
authorized in writing by such Purchaser in connection with the defense of such
action or such Purchaser shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to such Purchaser (in which
case such Purchaser shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses for all indemnified parties of one counsel selected by
the Company shall be borne by such Purchaser. Anything in this paragraph to the
contrary notwithstanding, no Purchaser shall be liable for any settlement of any
such claim or action effected without the written consent of such Purchaser. The
indemnity agreement on the part of each Purchaser contained in this Section 8(b)
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Company or such person, and shall survive any termination of
this Agreement or the issuance and delivery of the Purchased Common Stock. Each
Purchaser agrees promptly to notify the Company of the commencement of any
litigation or proceedings against such Purchaser in connection with the issue
and sale of the Purchased Common Stock or with such Registration Statement or
Prospectus.
9. CONTRIBUTION. If the indemnification provided for in
Sections 7(b) or 8(b) above is unavailable in respect of any losses, expenses,
liabilities or claims referred to therein, then the parties entitled to
indemnification by the terms thereof shall be entitled to contribution to
liabilities and expenses except to the extent that contribution is not permitted
under Section 11(f) of the Act. In determining the amount of contribution to
which the respective parties are entitled, there shall be considered the
relative benefits received by each party from the offering of the Purchased
Common Stock (taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The Company and
the Purchasers and such controlling persons 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 and such controlling persons were treated as
one entity for such purpose). The contribution agreement contained in this
Section 9 shall remain in full force and effect regardless of any investigation
made by or on behalf of any Purchaser or the Company or any of its officers or
directors or any controlling person and shall survive any termination of this
Agreement or the issuance and delivery of the Purchased Common Stock.
10. NOTICES. All statements, requests, notices and agreements
shall be in writing or by telegram and, if to the Purchasers, shall be
sufficient in all respects if delivered or sent by registered mail to the
address furnished in writing for the purpose of such statements, requests,
notices and agreements hereunder, and, if to the Company shall be sufficient in
all respects if delivered or sent by registered mail to the Company at 818
Kansas Avenue, Topeka, Kansas 66612, Attention: Steven L. Kitchen, Executive
Vice President and Chief Financial Officer.
11. CONSTRUCTION. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this agreement.
12. PARTIES IN INTEREST. The Agreement herein set forth has
been and is made solely for the benefit of the Purchasers and the Company, and
the controlling persons, directors and officers referred to in Sections 7, 8 and
9 hereof, and their respective successors, assigns, executors and
administrators, and no other person shall acquire or have any right under or by
virtue of this Agreement. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation (including, without
limitation, any purchaser of the Purchased Common Stock from a Purchaser or any
subsequent holder thereof or any purchaser of any Contract
9
Common Stock or any subsequent holder thereof) any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained.
The term "successor" as used in this Agreement shall not
include any purchaser, as such purchaser, of any Purchased Common Stock from any
Purchaser or any subsequent holder thereof or any purchaser, as such purchaser,
of any Contract Common Stock or any subsequent holder thereof.
10
Schedule I
DELAYED DELIVERY CONTRACT
Dated: , 199
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Attention: Chief Financial Officer
Dear Sirs:
The undersigned hereby agrees to purchase from Western
Resources, Inc. (the "Company"), and the Company agrees to sell to the
undersigned,
___________________ Shares
of the Company's Common Stock, par value $5.00 per share (the Common Stock)
offered by the Company's Prospectus dated , 199 and a Prospectus
Supplement dated , 199 , receipt of copies of which is hereby
acknowledged, at a purchase price of per share on the further terms and
conditions set forth in this contract.
The undersigned agrees to purchase such Common Stock in the
share amounts and on the delivery dates (the Delivery Dates) set forth below:
Delivery
Date Shares
-------- ------
- ---------------- ---------------
- ---------------- ---------------
- ---------------- ---------------
Payment for the Common Stock which the undersigned has agreed
to purchase on each Delivery Date shall be made to the Company or its order by
certified or bank cashier's check in same day or New York Clearing House funds
(as agreed to by the Company and the undersigned) at the (or at such other place
as the undersigned and the Company shall agree) at 11:00 A.M., New York City
Time, on such Delivery Date upon issuance and delivery to the undersigned of the
Common Stock to be purchased by the undersigned on such Delivery Date in such
authorized denominations and, unless otherwise provided herein, registered in
such names as the undersigned may designate by written or telegraphic
communications addressed to the Company not less than five full business days
prior to such Delivery Date.
I-1
The obligation of the Company to sell and deliver, and of the
undersigned to take delivery of and make payment for, Common Stock on each
Delivery Date shall be subject to the conditions that (1) the purchase of Common
Stock to be made by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the undersigned is
subject, (2) the sale of the Common Stock by the Company pursuant to this
contract shall not at the time of delivery be prohibited under the laws of any
jurisdiction to which the Company is subject and (3) the Company shall have
sold, and delivery shall have taken place, to the Purchasers such shares of the
Common Stock as are to be sold and delivered to them. In the event that the
Common Stock is not sold to the undersigned because one of the foregoing
conditions is not met, the Company shall not be liable to the undersigned for
damages arising out of the transactions covered by this contract.
Promptly after completion of the sale and delivery to the
Purchasers, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by copies of the opinions of
counsel for the Company delivered to the Purchasers.
Failure to take delivery of and make payment for the Common
Stock by any purchaser under any other Delayed Delivery Contract shall not
relieve the undersigned of its obligations under this contract.
The undersigned represents and warrants that (a) as of the
date of this contract, the undersigned is not prohibited under the laws of the
jurisdictions to which the undersigned is subject from purchasing the Common
Stock hereby agreed to be purchased and (b) the undersigned does not contemplate
selling the Common Stock which it has agreed to purchase hereunder prior to the
Delivery Date therefore.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other. This contract
shall be governed by and construed in accordance with the laws of the State of
New York. This contract may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
It is understood that the acceptance of any Delayed Delivery
Contract is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If the contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned when such counterpart is so signed.
Yours very truly,
-----------------------------------
By
--------------------------------
--------------------------------
--------------------------------
Address
Accepted, as of the date first above written.
I-2
WESTERN RESOURCES, INC.
By_________________________________
Title______________________________
I-3
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of
the Purchaser with whom details of delivery on the Delivery Date may be
discussed are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
- ---- --------------------- ----------
WESTERN RESOURCES, INC.
PURCHASE AGREEMENT
COMMON STOCK
(par value $5.00 per share)
----------------
(Date)
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Dear Sirs:
Referring to the Common Stock, par value $5.00 per share, of
Western Resources, Inc. (the "Company") ("Common Stock") covered by registration
statement on Form S-3 (No. 33-____), such registration statement including (i)
the prospectus included therein, dated ________________________, as supplemented
by a prospectus supplement dated ____________ in the form filed under Rule
424(b) and any additional prospectus supplements relating to the Common Stock
filed under Rule 424 (such prospectus as so supplemented, including each
document incorporated by reference therein is hereinafter called the
"Prospectus") and (ii) all documents filed as part thereof or incorporated by
reference therein, is hereinafter called 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 number of shares of the Company's Common Stock (the "Firm Common
Stock") set forth opposite the name of each Purchaser on Schedule A hereto. [The
Company also grants to the Purchasers an option to purchase _____ additional
shares of the Company's Common Stock (the "Additional Common Stock") on the
terms and conditions contained in this Agreement for the sole purpose of
covering over-allotments.]*
The price at which the Firm Common Stock and the Additional
Common Stock, if any,) shall be purchased from the Company by the Purchasers
shall be $___ per share. The initial public offering price shall be $___ per
share. The Firm Common Stock [(and the Additional Common Stock, if any)] will be
offered by the Purchaser as set forth in the Prospectus relating to such
Purchased Common Stock.
Payment for the
Firm Common Stock
[(and Additional
Common Stock, if
any,)]* shall be made
in the following funds: _______________________
- --------
* Delete bracketed language regarding Additional Common Stock throughout
if over-allotment option is not granted by the Company.
-2-
The Closing Date
shall be: _______________________
The place to which the
Firm Common Stock [(and
Additional Common Stock,
if any,)]* may be checked
and packaged shall be: _______________________
The place(s) at which the
Firm Common Stock [(and
Additional Common Stock,
if any,)]* shall be
delivered and sold shall be: _______________________
Delayed Delivery
Contracts: [authorized] [not authorized]
[Delivery Date _______________________
Minimum number of
shares of Purchased
Common Stock to be
sold pursuant to any
Delayed Delivery
Contract: _______________________
Maximum number of
shares of Purchased
Common Stock to be
sold pursuant to all
Delayed Delivery
Contracts: _______________________
Compensation to
Purchasers: _______________________]*
Notices to the Purchasers shall be sent to the following
address(es) or telecopier number(s):
- --------
* Delete bracketed information if delayed delivery contracts are not authorized.
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 the transactions contemplated
in this Agreement, 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
"Western Resources, Inc., Common Stock (par value $5.00 per share), Standard
Purchase Provisions," a copy of which has been previously furnished to us, are
hereby incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein.
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,
[Firm Name]
By _________________________
Title: _____________________
[Firm Name]
By _________________________
Title: _____________________
Acting on behalf of and as
Representative(s) of the
several Purchasers named
in Schedule A hereto.*
The foregoing Purchase Agreement is hereby confirmed as of the date first above
written.
WESTERN RESOURCES, INC.
By ___________________________
Title _________________________
- --------
* To be deleted if the Purchase Agreement is not executed by one or more
Purchasers acting as Representative(s) of the Purchasers for purposes
of this Agreement.
SCHEDULE A
Number of
Name [Firm]* Shares
- ---- --------------
- --------
* Delete bracketed language if over-allotment option is not granted by
the Company.
Exhibit 5
March 28, 1996
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Dear Sirs:
As Executive Vice President and General Counsel of Western
Resources, Inc. (the "Company"), and in connection with the proposed issue and
sale, from time to time, of up to 11,175,000 shares of Common Stock, par value
$5.00 per share, of the Company (hereinafter called the "Offered Common Stock"),
with respect to which the Company is filing a Registration Statement on Form S-3
with the Securities and Exchange Commission under the Securities Act of 1933 to
which Registration Statement this opinion shall be filed as an exhibit, I advise
you that, in my opinion:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Kansas.
2. Upon (a) authorization of the issue and sale of the Offered
Common Stock by state regulatory commissions having jurisdiction, (b) the
Registration Statement becoming effective under the Securities Act of 1933, (c)
the authorization of the issuance, sale and delivery of the Offered Common Stock
by the Board of Directors of the Company and (d) full payment therefor, the
Offered Common Stock will be legally issued, validly outstanding, fully paid and
nonassessable and the holders thereof will be entitled to the rights and
privileges appertaining thereto, as set forth in the Company's Restated Articles
of Incorporation, as amended.
I hereby consent to the filing of a copy of this opinion as an
exhibit to said Registration Statement. I also consent to the use of my name and
the making of the statements with respect to myself in the Registration
Statement and the Prospectus constituting a part thereof.
Very truly yours,
John K. Rosenberg
Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-3 of our
reports dated January 26, 1996, included in or incorporated by reference in
Western Resources, Inc.'s Form 10-K for the year ended December 31, 1995, and to
all references to our firm included in this Registration Statement on Form S-3.
ARTHUR ANDERSEN LLP
Dated: Kansas City, Missouri,
March 28, 1996