As filed with the Securities and Exchange Commission on September 8, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
___________________
THE EMPIRE DISTRICT ELECTRIC COMPANY
(Exact Name of Registrant as Specified in its Charter)
Kansas 4-0236370
(State or other jurisdiction I.R.S. Employer
of incorporation or organization) Identification No.)
602 Joplin Street
Joplin, Missouri 64801
(417) 625-5100
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
Myron W. McKinney, President
602 Joplin Street
Joplin, Missouri 64801
(417) 625-5100
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Gary W. Wolf, Esq. Thomas A. Litz, Esq.
Cahill Gordon & Reindel Thompson Coburn
80 Pine Street One Mercantile Center
New York, New York 10005 St. Louis, Missouri 63101
(212) 701-3000 (314) 552-6000
_________________________
<PAGE>
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 the Form is a post-effective amendment filed pursuant
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.
____________________
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of each Amount offering aggregate Amount of
class of securities to be price offering registration
to be registered registered per unit price fee
<S> <C> <C> <C> <C>
Common Stock; (1)(3) (2) (1)(2)(3)
Preferred Stock; (1)(5) (2) (1)(2)(5)
First Mortgage (1)(4) (2) (1)(2)(4)
Bonds
Total $80,000,000 (2) $80,000,000 $24,242.42(6)
</TABLE>
<footnote>
(1) In no event will the aggregate maximum offering price of all
securities issued pursuant to this Registration Statement exceed
$80,000,000. Any securities registered hereunder may be sold
separately or as units with other securities registered
hereunder.
(2) The proposed maximum offering price per unit will be determined,
from time to time, by the Registrant in connection with the
issuance by the Registrant of the securities registered
hereunder.
(3) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of shares of Common Stock, par value $1.00
per share, together with attached Preference Stock Purchase
Rights.
(4) Subject to Footnote (1), there is being registered hereunder an
indeterminate principal amount of First Mortgage Bonds.
(5) Subject to Footnote (1), there are being registered hereunder an
indeterminate number of shares of Preferred Stock, par value
$10.00 per share.
(6) Calculated pursuant to Rule 457(o).
____________________
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER 8, 1997
PROSPECTUS
$
THE EMPIRE DISTRICT ELECTRIC COMPANY
COMMON STOCK
FIRST MORTGAGE BONDS
PREFERRED STOCK
____________________
The Empire District Electric Company (the "Company")
intends from time to time to sell shares of its Common Stock,
$1.00 par value (together with the attached Preference Share
Purchase Rights) (the "New Common Stock"), and/or its
Cumulative Preferred Stock, $10.00 par value (the "New
Preferred Stock"), and/or its First Mortgage Bonds (the "New
Bonds," and collectively with the New Common Stock and the New
Preferred Stock, the "Securities"), in one or more series, each
on terms to be determined at the time or times of sale. The
aggregate offering price of the Common Stock, the principal
amount of New Bonds and the par value of New Preferred Stock to
be sold will not exceed $80,000,000. All specific terms of the
offering and sale of the Securities, including (i) the specific
number of shares of New Common Stock to be sold and their
initial Public Offering price, (ii) Underwriting discounts and
proceeds to the Company, (iii) the specific number of shares,
designation, issue price, rate and terms of payment of
dividends and redemption provisions and sinking fund terms, if
any, liquidation preferences or other special rights, if any,
of the New Preferred Stock, (iv) the specific designation,
aggregate principal amount, maturity, rate and terms of payment
of interest, redemption provisions and sinking fund terms, if
any, of the New Bonds and (v) other specific terms and any
listing on a securities exchange of the Securities in respect
of which this Prospectus is being delivered will be set forth
in a Prospectus Supplement ("Prospectus Supplement"), together
with the terms of offering of such Securities. The Securities
will be offered as set forth under "Plan of Distribution".
____________________
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.
____________________
<PAGE>
The date of this Prospectus is _________ [ ], 199_
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.
<PAGE>
AVAILABLE INFORMATION
The Empire District Electric Company (the "Company")
is subject to the informational requirements of the Securities
Exchange Act of 1934 and in accordance therewith files reports
and other information with the Securities and Exchange
Commission which may be inspected and copied at the offices of
the Commission, Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549; 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661; and Seven World Trade Center, Suite 1300, New
York, New York 10048, and copies of such material can be
obtained from the Public Reference Section of the Commission,
Washington, D.C. 20549, at prescribed rates, and by accessing
the Commission's Web site, http://www.sec.gov. Certain
securities of the Company are listed on the New York Stock
Exchange (the "NYSE") and reports, proxy statements and other
information concerning the Company may be inspected at the
office of the NYSE at 20 Broad Street, New York, New York
10009.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission 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, 1996 (File No. 1-3368).
2. The Company's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1997 and June 30, 1997 (File No. 1-
3368).
3. The description of the Company's Common Stock as
set forth in the Company's Registration Statement on Form S-3
(File No. 33-37351) under the heading "Description of Common
Stock".
4. The description of the Company's Preference
Stock Purchase Rights as set forth in the Company's
Registration Statement on Form 8-A dated July 26, 1990 (File
No. 1-3368), filed pursuant to Section 12(b) of the Exchange
Act.
All documents filed by the Company pursuant to
Sections 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 date of
filing of such documents.
<PAGE>
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 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
information that are not specifically incorporated by reference
into such information). Requests for such copies should be
directed to The Empire District Electric Company, P.O. Box 127,
Joplin, Missouri 64802. Attention Vice President, Finance,
(417) 625-5100.
THE COMPANY
The Company is a public utility engaged in the
generation, purchase, transmission, distribution and sale of
electricity in Missouri, Kansas, Oklahoma and Arkansas. The
Company also provides water service to three towns in Missouri.
The executive offices of the Company are located at 602 Joplin
Street, Joplin, Missouri 64801, and its telephone number is
(417) 625-5100.
USE OF PROCEEDS
The proceeds from the sale of the Securities will be
used as described in the Prospectus Supplement by which such
Securities are offered.
EARNINGS RATIOS
The Ratio of Earnings to Fixed Charges and the Ratio
of Earnings to Combined Fixed Charges and Preferred Dividend
Requirements for each of the periods indicated is as follows:
<TABLE>
<CAPTION>
Twelve Months Ended
June 30, December 31,
1997 1996 1995 1994 1993 1992
Ratio of
Earnings to
<S> <C> <C> <C> <C> <C> <C>
Fixed Charges: 2.89x 3.11x 2.90x 3.16x 2.73x 2.91x
Combined Fixed
Charges and
Preferred
Dividend
Requirements: 2.39x 2.53x 2.36x 2.70x 2.63x 2.80x
</TABLE>
<PAGE>
The Ratios for future periods will be included in the
Company's Reports on Forms 10-K and 10-Q. Such Reports are
incorporated by reference into this Prospectus at the time they
are filed.
DESCRIPTION OF THE NEW PREFERRED STOCK
The following description of the New Preferred Stock
sets forth certain general terms and provisions of the
Company's Restated Articles of Incorporation, as amended (the
"Articles") applicable to any series of New Preferred Stock.
The definitive terms of any such series of New Preferred Stock
are set forth in the Prospectus as amended and supplemented by
the Prospectus Supplement by which such series of New Preferred
Stock is offered. The statements set forth below are summaries
of the terms of the Articles and do not purport to be complete.
These statements are qualified in their entirety by reference
to the Articles.
General
The Company is authorized to issue 5,000,000 shares
of Cumulative Preferred Stock, par value $10.00 per share
("Cumulative Preferred Stock"), of which 390,180 shares of 5%
Cumulative Preferred Stock, 400,000 shares of 4-3/4% Cumulative
Preferred Stock and 2,500,000 shares of 8-1/8% Cumulative
Preferred Stock are outstanding as of the date of this
Prospectus. The New Preferred Stock may be issued in one or
more series with the specific number of shares, designation,
liquidation preferences, issue price, dividend rate, redemption
provisions and sinking fund terms, voting or other special
rights or any other specific term of the series to be
determined by the Board of Directors without any further action
by the stockholders of the Company.
The New Preferred Stock will have the dividend,
liquidation, redemption and voting rights set forth below
unless otherwise provided for in a Prospectus Supplement
relating to any particular series of New Preferred Stock.
Reference is made to the Prospectus Supplement relating to the
particular series of New Preferred Stock offered thereby for
specific terms, which may include one or more of the following:
(i) the designation and number of shares offered; (ii) the
liquidation preferences per share; (iii) the initial public
offering price; (iv) the dividend rate or rates, or the method
of determining the dividend rate or rates; (v) the dates on
which dividends will accrue; (vi) any redemption or sinking
fund provision; (vii) voting or other special rights and (viii)
any additional terms, preferences or rights.
<PAGE>
Dividends
The holders of each series of Cumulative Preferred
Stock are, and the holders of the New Preferred Stock will be,
entitled to receive, if and when declared by the Board of
Directors out of funds legally available therefor, cumulative
quarterly dividends at the rates per annum fixed for each
series thereof, payable on March 1, June 1, September 1 and
December 1 in each year, before any dividends may be paid on or
set apart for the Company's common stock, $1.00 par value per
share ("Common Stock") or the Company's preference stock,
without par value ("Preference Stock"). Dividends on the New
Preferred Stock will be cumulative from the date of issuance.
Liquidation
Provisions relating to the liquidation preference
payable by the Company on each series of New Preferred Stock
will be as set forth in the Prospectus Supplement by which such
New Preferred Stock will be offered. If, upon any liquidation,
dissolution or winding up, the assets distributable among the
holders of the Cumulative Preferred Stock of all series shall
be insufficient to permit the payment of the full preferential
amounts to which they shall be entitled, then the entire assets
of the Company to be distributed shall be distributed among the
holders of the Cumulative Preferred Stock of all series then
outstanding, ratably in proportion to the full preferential
amounts to which they are respectively entitled. A
consolidation or merger of the Company or a sale or transfer of
substantially all of its assets as an entirety shall not be
deemed to be a liquidation, dissolution or winding up of the
Company.
Redemption Provisions
Any provisions relating to the optional redemption by
the Company of each series of New Preferred Stock will be as
set forth in the Prospectus Supplement by which such New
Preferred Stock is to be offered.
Any provisions relating to a sinking fund of any
series of the New Preferred Stock will be as set forth in the
Prospectus Supplement by which such New Preferred Stock is to
be offered.
There are no restrictions on the repurchase or
redemption, including redemption for any sinking fund, of
shares of the New Preferred Stock by the Company at prices not
exceeding the redemption price thereof while there is an
arrearage in the payment of dividends thereon.
<PAGE>
Voting Rights
The holders of New Preferred Stock shall not be
entitled to vote except as follows:
(a) In proceedings as to which their vote is
mandatorily required by the then existing laws of the
State of Kansas; or
(b) If dividends payable on the outstanding
Cumulative Preferred Stock shall be accumulated and unpaid
in an amount equivalent to four (4) full quarterly
dividends, the holders of such stock shall be entitled
thereafter and until, but only until, all dividends in
default shall have been paid, (i) voting for such purposes
as a single class, at each succeeding annual meeting of
stockholders, to elect the smallest number of directors
necessary to constitute a majority of the Board of
Directors, the remaining directors to be elected as usual
by the holders of the Common Stock or of the Preference
Stock as may be entitled to vote therefor; and (ii) to
vote on all questions other than for the election of
directors in such manner that the holders thereof shall
have the vote per share of Cumulative Preferred Stock
specified below; provided that if and when profits
available for dividends are in excess of such accumulated
and unpaid dividends, then the declaration and payment of
such dividends shall not be unreasonably withheld; or
(c) As set forth under "Restrictions on Corporate
Action" below.
On any matter on which holders of Cumulative
Preferred Stock shall be entitled to vote, each share of
Cumulative Preferred Stock entitled to vote shall entitle the
holder thereof to that number of votes (including any
fractional vote) determined by dividing the amount to which the
share is entitled in the event of involuntary liquidation,
dissolution or winding up of the Company (exclusive of accrued
or accumulated and unpaid dividends) by $10.
Restrictions on Corporate Action
The Articles provide that the vote of the holders of
Cumulative Preferred Stock having two-thirds of the total
number of votes possessed by the holders of the then
outstanding shares of Cumulative Preferred Stock will be
required: (a) to authorize or issue any additional stock
ranking prior to or on a parity with the Cumulative Preferred
<PAGE>
Stock as to dividends or assets; (b) to authorize additional
shares of Cumulative Preferred Stock or to authorize or issue
any obligation or security convertible into or evidencing the
right to purchase shares of Cumulative Preferred Stock or any
stock ranking prior to or on parity with the Cumulative
Preferred Stock as to dividends or assets; (c) to issue
additional Cumulative Preferred Stock or stock of equal rank
unless the net income of the Company determined in accordance
with generally accepted accounting practices, for a specified
twelve-month period, shall have been at least twice the annual
dividend requirements upon the entire amount of the Cumulative
Preferred Stock and all stock ranking prior to or on a parity
with the Cumulative Preferred Stock to be outstanding
immediately after the proposed issue of such additional shares,
and unless the net income of the Company available for interest
and dividends for such twelve months, determined in accordance
with generally accepted accounting practices to be available
for the payment of interest, shall have been at least 1 1/2
times the sum of (i) the annual interest requirements on the
Company's indebtedness to be outstanding immediately after the
proposed issue of such additional shares and (ii) the annual
dividend requirements on the entire amount of Cumulative
Preferred Stock and all stock ranking prior to or on a parity
with the Cumulative Preferred Stock to be outstanding
immediately after the proposed issuance of such additional
shares (provided that the approval of only a majority of the
outstanding Cumulative Preferred Stock shall be required if
only the net income available for interest and dividends test
is not met) or (d) amend the Articles so as to affect adversely
any of the preferences or other rights thereby given to the
Cumulative Preferred Stock.
The Articles provide that the vote of the holders of
Cumulative Preferred Stock having a majority of the total
number of votes possessed by the holders of the then
outstanding shares of Cumulative Preferred Stock will be
required to: (a) effect a merger or consolidation with any
other corporation, or sell the property of the Company as or
substantially as an entirety (other than a mortgage of the
Company's assets) or (b) create or issue any unsecured notes,
debentures or other unsecured indebtedness, or assume any such
unsecured securities, for purposes other than the refunding of
outstanding unsecured securities theretofore issued or assumed
by the Company, if immediately after such issue or assumption
the total principal amount of all such unsecured securities
issued or assumed by the Company and then outstanding would
exceed 20% of the aggregate of (i) the total principal amount
of all secured indebtedness issued or assumed by the Company
and then outstanding plus (ii) the capital and surplus of the
Company; provided that if such approval is sought at a meeting
of holders of the Cumulative Preferred Stock the approval of
only the holders of a majority of the Cumulative Preferred
Stock represented at such meeting, and constituting a quorum,
shall be required.
<PAGE>
Articles of Incorporation
The Articles require a vote of the holders of at
least 80% of the outstanding shares of capital stock possessing
full voting power for the election of directors, considered as
one class ("Voting Shares"), in order for the Company to enter
into a merger, consummate a sale of a substantial amount of
assets or enter into certain other transactions (each a
"Business Combination") with any beneficial holder (a
"Substantial Stockholder") of 5% or more of the Company's
outstanding Common Stock unless at least two-thirds of the
Continuing Directors (generally those in office before the
Substantial Stockholder became a Substantial Stockholder or
directors elected by such Continuing Directors) approve the
Business Combination, in which case a vote of the holders of a
majority of the capital stock entitled to vote is required to
approve the Business Combination. A majority vote of the
holders of capital stock entitled to vote would also be
sufficient if (i) the percentage premium over fair market value
paid to each stockholder of any class of capital stock is at
least as great as the ratio of (x) the highest price paid for
such capital stock by the Substantial Stockholder in the
previous two years to (y) the fair market value of such stock
prior to the Substantial Stockholder's initial acquisition of
stock within the previous two years, (ii) the per share
consideration received by stockholders is at least as much as
the greatest of: (a) the highest price paid by the Substantial
Stockholder for stock of the same class, (b) the fair market
value of the stock and (c) the book value of the stock,
(iii) the consideration paid by the Substantial Stockholder to
other stockholders is either cash or the same form used by the
Substantial Stockholder in acquiring stock prior to the
Business Combination, (iv) certain changes in the
capitalization of the Company do not occur between the time the
Substantial Stockholder acquires a 5% or greater interest and
the consummation of the Business Combination and (v) the
Substantial Stockholder delivers to the holders of all voting
stock an information statement indicating the views of the
Continuing Directors and, if requested by the Continuing
Directors, containing the opinion of an investment banking firm
on the fairness of the Business Combination.
The affirmative vote of the holders of at least 80%
of the voting power of the then outstanding Voting Shares or at
least two-thirds of the Continuing Directors is required to
amend or repeal the above described provision or to adopt a
provision inconsistent therewith.
<PAGE>
Certain Anti-Takeover Provisions
Each share of Common Stock currently is accompanied
by one half of one Preference Stock Purchase Right ("Right"),
which initially will be attached to and trade with such share.
Each Right enables the holder to acquire one one-hundredth of a
share of Series A Participating Preference Stock (or, under
certain circumstances, other securities) at a price of $75 per
one one-hundredth share, subject to adjustment. The Rights
(other than those held by an acquiring person or group
("Acquiring Person")), which expire July 25, 2000, will be
exercisable only if an Acquiring Person acquires 10% or more of
the Company's Common Stock or announces an intention to make a
tender offer or exchange offer which would result in the
Acquiring Person owning 10% or more of the Common Stock. The
Rights may be redeemed by the Company in whole, but not in
part, for $0.01 per Right, prior to 10 days after the first
public announcement of the acquisition of 10% or more of the
Company's Common Stock by an Acquiring Person.
In addition, upon the occurrence of a merger or other
business combination, or an event of the type described in the
preceding paragraph, holders of the Rights, other than an
Acquiring Person, will be entitled, upon exercise of a Right,
to receive either Common Stock of the Company or common stock
of the Acquiring Person having a value equal to two times the
exercise price of the Right. Any time after an Acquiring
Person acquires 10% or more (but less than 50%) of the
Company's outstanding Common Stock, the Board of Directors may,
at its option, exchange part or all of the Rights (other than
Rights held by the Acquiring Person) for Common Stock of the
Company on a one-for-two basis.
Severance pay agreements (each a "Severance Pay
Agreement") between the Company and certain officers and other
employees, subject to the terms of the Change of Control
Severance Pay Plan, and the First Amendment to the Change of
Control Severance Pay Plan provide for certain payments to be
made to any such employee if such employee is terminated in the
event of the occurrence of certain changes of control of the
Company. The amounts payable to a senior officer in such event
will be equal to 36 months of base salary as in effect as of
the date of termination plus three times the annual average
incentive compensation paid to such senior officer during the
prior three calendar years. Each Employee who is not a senior
officer will receive the greater of 17 weeks' compensation or
<PAGE>
compensation for a number of weeks equal to two times the
employee's number of full years of employment by the Company.
In each case, such compensation shall be paid in a single
payment if the involuntary termination occurs within three
years after the change of control. In the event of a voluntary
termination by an employee, during the period commencing twelve
months after and ending eighteen months after the triggering
change of control, the employee shall be entitled to receive
the same amount as in the case of involuntary termination.
However such payment will not take the form of a lump sum, but
rather will be made in equal monthly installments for the
period corresponding to the applicable multiple used in
calculating the amount of the payment, ceasing when the
employee becomes otherwise employed.
The Company is subject to the provisions of
Sections 17-12,100 to 12,104 of the Kansas General Corporation
Code. In general, Section 17-12,101 prevents an "interested
stockholder" from engaging in a "business combination" with a
Kansas corporation for three years following the date such
person became an interested stockholder, unless: (i) prior to
the date such person became an interested stockholder, the
board of directors of the corporation approved the transaction
in which the interested stockholder became an interested
stockholder or approved the business combination; (ii) upon
consummation of the transaction that resulted in the interested
stockholder's becoming an interested stockholder, the
interested stockholder owns at least 85% of the voting stock of
the corporation outstanding at the time the transaction
commenced, excluding stock held by directors who are also
officers of the corporation and stock held by certain employee
stock plans; or (iii) on or subsequent to the date of the
transaction in which such person became an interested
stockholder, the business combination is approved by the board
of directors of the corporation and authorized at a meeting of
stockholders by the affirmative vote of the holders of at least
two-thirds of the outstanding voting stock of the corporation
not owned by the interested stockholder.
Section 17-12,100 defines a "business combination" to
include: (i) any merger or consolidation involving the
corporation and an interested stockholder; (ii) any sale,
transfer, pledge or other disposition of 10% or more of the
assets of the corporation involving an interested stockholder;
(iii) subject to certain exceptions, any transaction which
results in the issuance or transfer by the corporation of any
stock of the corporation to an interested stockholder; (iv) any
transaction involving the corporation which has the effect of
increasing the proportionate share of the stock of any class or
series of the corporation beneficially owned by the interested
<PAGE>
stockholder; or (v) the receipt by an interested stockholder of
any loans, guarantees, pledges or other financial benefits
provided by or through the corporation. In addition,
Section 17-12,100 defines an "interested stockholder" as an
entity or person beneficially owning 15% or more of the
outstanding voting stock of the corporation and any entity or
person affiliated with or controlling or controlled by such
entity or person.
Miscellaneous
None of the Cumulative Preferred Stock, including the
New Preferred Stock, has any preemptive or conversion rights.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the New
Preferred Stock will be Chemical Bank, New York, New York.
DESCRIPTION OF THE NEW BONDS
The New Bonds will be issued as one or more new
series under the Indenture of Mortgage and Deed of Trust, dated
as of September 1, 1944 ("Original Indenture"), between the
Company and Harris Trust and Savings Bank ("Principal Trustee")
and State Street Bank and Trust Company of Missouri, N.A., as
Trustees ("Trustees"), as heretofore amended and supplemented
and as to be supplemented by a supplemental indenture for each
series of New Bonds, which Original Indenture as so amended and
supplemented is herein called the "Mortgage." The statements
herein concerning the New Bonds and the Mortgage are merely a
summary and do not purport to be complete. These statements
make use of terms defined in the Mortgage, which has been filed
as an Exhibit to the Registration Statement of which this
Prospectus is a part, and such statements are qualified in
their entirety by reference to said documents.
The definitive provisions of the New Bonds will not
be determined until the time of sale and, accordingly, the
provisions set forth below may be changed and new provisions
may be added. The definitive terms of each series of New Bonds
are set forth in the Prospectus as amended and supplemented by
the Prospectus Supplement by which such New Bonds are offered.
General
Each series of New Bonds will mature on the date or
dates and bear interest, payable semi-annually, at the rate or
rates set forth, or determined as set forth, in the Prospectus
Supplement by which such series of New Bonds is offered.
<PAGE>
The Company has designated the principal office of
Harris Trust and Savings Bank in the city of Chicago, Illinois,
as its office or agency where principal, premium (if any), and
interest on the New Bonds will be payable. Unless the
Prospectus Supplement with respect to a series of New Bonds
provides otherwise, interest on such series of New Bonds will
be paid to the person in whose name such New Bond is registered
at the close of business on the 15th day of the month preceding
the interest payment date in respect thereof. The New Bonds
will be issued as fully registered bonds, without coupons, in
denominations of $1,000 and integral multiples thereof. The
New Bonds will be transferable without any service or other
charge by the Company or the Principal Trustee except stamp or
other taxes and other governmental charges, if any. (Article I
of the Supplemental Indenture relating to each series of New
Bonds.)
Security
The New Bonds will rank pari passu, except as to any
sinking fund or similar fund provided for a particular series,
with all bonds at any time outstanding under the Mortgage. In
the opinion of Spencer, Scott & Dwyer, P.C., counsel for the
Company, the Mortgage constitutes a first mortgage lien on
substantially all the fixed property and franchises owned by
the Company, other than property specifically excepted, subject
only to Permitted Encumbrances as defined in the Mortgage and,
as to after-acquired property, to liens thereon existing or
liens placed thereon at the time of acquisition for unpaid
portions of the purchase price. The principal properties
subject to the lien of the Mortgage are the electric properties
owned by the Company. (Granting and Habendum Clauses and
Sections 1.04 and 1.05 of the Mortgage.)
The Mortgage contains restrictions on (1) the
acquisition of property (other than electric equipment subject
to chattel mortgages or similar liens) subject to a prior lien
securing indebtedness exceeding 60% of the sum of (i) the fair
value of the property and (ii) 166-2/3% of the amount of bonds
issuable on the basis of property additions and (2) the
issuance of bonds, withdrawal of cash or release of property on
the basis of property additions subject to a prior lien and
prior lien bonds. Indebtedness secured by a prior lien on
property at the time of its acquisition may not be increased
unless the evidences of such increases are pledged with the
Principal Trustee. (Sections 1.05, 4.16., 4.18 and 4.20 of the
Mortgage.)
<PAGE>
Issuance of Additional Bonds
The Mortgage limits the aggregate principal amount of
the bonds at any one time outstanding to $1,000,000,000.
(Section 2.01 of the Mortgage as amended by the Fourteenth
Supplemental Indenture.)
Additional bonds may be issued under the Mortgage in
a principal amount equal to (a) 60% of net property additions
(as defined in the Mortgage) acquired or constructed subsequent
to the date of the execution of the Original Indenture, (b) the
principal amount of certain retired bonds or prior lien bonds
and (c) the amount of deposited cash. (Article 3 of the
Mortgage.)
No bonds may be issued as provided in clauses (a) and
(c) above, nor as provided in clause (b) above with certain
exceptions, unless the net earnings of the Company (as defined
in Section 1.06 of the Mortgage) are at least two times the
annual interest on all bonds (including the bonds proposed to
be issued) and indebtedness secured by a prior lien.
(Article 3 of the Mortgage.) Net earnings are computed without
deduction of (i) income and profits taxes (as defined in the
Mortgage), (ii) expenses or provisions for interest on any
indebtedness, or for any sinking or similar fund for retirement
of indebtedness, or (iii) amortization of debt discount and
expense. (Section 1.06 of the Mortgage.)
Property additions must consist of property used or
useful in the electric business acquired or constructed by the
Company subsequent to the date of execution of the Original
Indenture. (Section 1.05 of the Mortgage.)
Cash deposited under clause (c) above may be
withdrawn by the Company in an amount equal to the bonds
issuable pursuant to clauses (a) and (b) above without regard
to net earnings, or may be applied to the purchase or
redemption of bonds of any series designated by the Company.
(Sections 3.09, 3.10 and 8.11 of the Mortgage.)
Redemption Provisions
Any provisions relating to the optional and mandatory
redemption by the Company of each series of New Bonds will be
as set forth in the Prospectus Supplement by which each such
series is to be offered.
Supplemental Indentures under which certain
outstanding series of bonds were issued allow the holders of
<PAGE>
those bonds to require the Company to redeem them under certain
circumstances. Provisions providing for mandatory redemption
of any series of New Bonds upon demand by the holders thereof
will be as set forth in the Prospectus Supplement by which each
such series is to be offered.
Supplemental indentures under which certain
outstanding series of bonds were issued provide for sinking
funds for the benefit of such respective series, each
applicable only so long as the bonds of such respective series
are outstanding. Sinking Fund provisions applicable to a
series of New Bonds, if any, will be as set forth in the
Prospectus Supplement by which such series of New Bonds is to
be offered.
Maintenance and Replacement Fund
The Mortgage does not provide for a Maintenance and
Replacement Fund for any series of New Bonds.
Dividend Restriction
So long as any of the New Bonds are outstanding, the
Company will not declare or pay any dividends (other than
dividends payable in shares of its Common Stock) or make any
other distribution on, or purchase (other than with the
proceeds of additional Common Stock financing) any shares of,
its Common Stock if the cumulative aggregate amount thereof
after August 31, 1944 (exclusive of the first quarterly
dividend of $98,000 paid after said date) would exceed the
earned surplus (as defined) accumulated subsequent to August
31, 1944, or the date of succession in the event that another
Company succeeds to the rights and liabilities of the Company
by a merger or consolidation. (Section 4.11 of the Mortgage
and Article IV of the Supplemental Indenture relating to such
series of New Bonds.)
Events of Default
The Mortgage provides generally that failure for 60
days to pay any interest due on any bonds issued thereunder;
failure to pay when due the principal of any bonds issued under
the Mortgage or the principal of or interest on any outstanding
prior lien bonds; failure to perform or observe for 90 days
after notice of such failure any other of the covenants,
agreements or conditions of the Mortgage, indentures
supplemental thereto or any of the bonds issued thereunder; and
the occurrence of insolvency, bankruptcy, receivership or
similar events, constitute defaults. (Section 9.01 of the
Mortgage.)
<PAGE>
Upon the occurrence and continuation of a default,
either of the Trustees, or the holders of not less than 25% in
principal amount of the outstanding bonds may declare the bonds
immediately due and payable, but the holders of a majority in
principal amount of the bonds may annul such declaration and
its consequences if such default has been cured. (Section 9.01
of the Mortgage.)
The holders of not less than 75% in principal amount
of the outstanding bonds (including not less than 60% in
aggregate principal amount of bonds of each series) may waive
any default under the Mortgage, except a default in payment of
principal of, or premium or interest on, the bonds and a
default arising from the creation of any lien prior to or on a
parity with the lien of the Mortgage. (Section 9.21 of the
Mortgage.)
The Company is required to file with the Principal
Trustee such information, documents and reports with respect to
compliance by the Company with the conditions and covenants of
the Mortgage as may be required by the rules and regulations of
the Securities and Exchange Commission. No periodic evidence
is required to be furnished, however, as to the absence of
default. (Article 9 of the Mortgage.)
Modification of the Mortgage
The Mortgage and the rights of bondholders may be
modified with the consent (in writing or given at a meeting of
bondholders) of the holders of not less than 60% in principal
amount of the bonds then outstanding or, in the event that all
series are not so affected, of not less than 60% in principal
amount of the outstanding bonds of all series which may be
affected by any such modification voting together. Without the
consent of the holder of each bond affected, the bondholders
have no power to (a) extend the time of payment of the
principal of or interest on any bonds, (b) reduce the principal
amount thereof or the rate of interest thereon or otherwise
modify the terms of payment of principal or interest,
(c) permit the creation of any lien ranking prior to or on a
parity with the lien of the Mortgage with respect to any of the
Mortgaged Property, (d) deprive any non-assenting bondholder of
a lien upon the Mortgaged Property for the security of such
bondholder's bonds or (e) reduce the percentage of bondholders
authorized to take such action. Such prohibition against
modification does not prevent abolition of or changes in any
sinking or other fund. (Article 15 of the Mortgage, as amended
by the Twenty-Fourth Supplemental Indenture.)
<PAGE>
Concerning the Trustees
The Company maintains a line of credit with the
Principal Trustee and has other banking and trust relationships
with each of the Trustees.
The Mortgage provides that the holders of a majority
in principal amount of the outstanding bonds will have the
right to require the Trustees to take certain action on behalf
of the bondholders but under certain circumstances the Trustees
may decline to follow such directions or to exercise certain of
their powers. Prior to taking such action the Trustees are
entitled to indemnity satisfactory to the Trustees against
costs, expenses and liabilities that may be incurred in the
course of such action. This right does not, however, impair
the absolute right of any bondholder to enforce payment of the
principal of and interest on his bond when due. (Sections 9.16
and 9.17 of the Mortgage.)
PLAN OF DISTRIBUTION
The Company may sell the Securities 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 Securities, including the names of any
underwriters or agents, the purchase price of such Securities
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 concessions allowed or reallowed or paid to
dealers and any securities exchanges on which such Securities
may be listed.
If underwriters are used in the sale of the
Securities, such Securities 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 Securities 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 Securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase
all of such Securities if any of such Securities are 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 Securities offered thereby.
<PAGE>
Securities also may 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 Securities 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 underwriters are used in any sale of the New
Common Stock, the purchase agreement in connection with such
sale may provide for an option on the part of the underwriters
to purchase additional shares of such New Common Stock within
thirty days of the execution of said purchase agreement, which
option may be exercised solely to cover overallotments. Any
such overallotment option will be disclosed in the Prospectus
Supplement in connection with the New Common Stock offered
thereby.
If so indicated in a Prospectus Supplement with
respect to the New Bonds, the Company will authorize agents,
underwriters or dealers to solicit offers by certain
institutions to purchase such New Bonds 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, and the aggregate amount of the New Bonds sold
pursuant to the Contracts shall be not less nor more 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 New Bonds 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 New Bonds are being sold to
underwriters, the Company shall have sold to such underwriters
the total amount of the New Bonds less the amount thereof
covered by the Contracts. The underwriters will not have any
responsibility in respect of the validity or performance of the
Contracts.
<PAGE>
If dealers are utilized in the sale of any
Securities, the Company will sell such Securities to the
dealers, as principal. Any dealer may then resell such
Securities 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 such Securities being
offered thereby.
It has not been determined whether the New Preferred
Stock or the New Bonds will be listed on a securities exchange.
Underwriters will not be obligated to make a market in any of
the Securities. The Company cannot predict the activity of
trading in, or liquidity of, the New Preferred Stock or the New
Bonds. The New Common Stock will be listed on the New York
Stock Exchange.
Any underwriters, dealers or agents participating in
the distribution of Securities may be deemed to be underwriters
and any discounts or commissions received by them on the sale
or resale of Securities may be deemed to be underwriting
discounts and commissions under the Securities Act of 1933, as
amended (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 service for, the Company or its
affiliates in the ordinary course of business.
LEGAL OPINIONS
Certain legal matters in connection with the
Securities are being passed upon by Spencer, Scott & Dwyer, P.C.,
Joplin, Missouri; Anderson, Byrd, Richeson & Flaherty, Ottawa,
Kansas; Brydon, Swearengen & England, Professional Corporation,
Jefferson City, Missouri; and Cahill Gordon & Reindel, New
York, New York counsel for the Company. Certain legal matters
are being passed upon for the underwriters by Thompson Coburn,
St. Louis Missouri. Cahill Gordon & Reindel is relying as to
the matters of Kansas law upon the opinion of Anderson, Byrd,
Richeson & Flaherty, as to matters of Missouri law (except as
to matters relating to the approval of the Missouri, Arkansas
and Oklahoma public utility commissions) upon the opinion of
Spencer, Scott & Dwyer, P.C.
<PAGE>
EXPERTS
The financial statements incorporated in this Prospectus
by reference to the Annual Report on Form 10-K for the year ended
December 31, 1996 and the financial statement schedule included in the
Registration Statement have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
<PAGE>
No dealer, salesman, or any other THE EMPIRE DISTRICT
person has been authorized to give ELECTRIC COMPANY
any information or to make any
representations other than those
contained in this Prospectus,
including any prospectus supplement
in connection with the offer
contained in this Prospectus, and,
if given or 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 $80,000,000
offer to sell or a solicitation of
an offer to buy any of these COMMON STOCK
securities in any jurisdiction to
any person to whom it is unlawful to FIRST MORTGAGE BONDS
make such offer or solicitation in
such jurisdiction. Neither the and
delivery of this Prospectus nor any CUMULATIVE PREFERRED STOCK
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.
__________________ _____________
PROSPECTUS
TABLE OF CONTENTS
Page
Available Information
Incorporation of Certain
Documents by Reference
The Company
Use of Proceeds
Earnings Ratios
Description of New
Preferred Stock
Description of New Bonds
Plan of Distribution
Legal Opinions Dated , 199
Experts
<PAGE>
<TABLE>
<CAPTION>
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<S> <C>
Securities and Exchange Commission
Registrant Fee $ 24,242
Counsel Fees and Expenses 126,500(1)
Services of Independent Accountants 38,500(1)
Trustee's Fees and Expenses 33,000(1)(2)
Printing Expenses, including Engraving 154,000(1)
First Mortgage Bonds Rating Fees 44,000(1)(2)
Blue Sky Fees and Expense 16,500(1)
Transfer Agent and Registrar Fees 5,500(1)(3)
Miscellaneous Expenses 12,758(1)
Total $455,000(1)
</TABLE>
<footnote>
(1) Estimated as if the Securities were sold in three
different offerings with three separate Prospectus
Supplements.
(2) Required only if First Mortgage Bonds are issued.
(3) Required only if New Preferred Stock and/or Common Stock
are issued.
<PAGE>
Item 15. Indemnification of Officers and Directors.
The Company is organized under the laws of the State
of Kansas and its Articles of Incorporation and Bylaws contain
provisions permitted by the Kansas General Corporation Code
which, in general terms, provided that directors and officers
will be indemnified by the Company for all losses that may be
incurred by them in connection with any claim or legal action
in which they may become involved by reason of their service as
a director or officer of the Company, if they meet certain
specified conditions, and provide for the advancement by the
Company to directors and officers of expenses incurred by them
in defending suits arising out of their service as such.
The directors and officers of the Company are covered
by insurance indemnifying them against certain liabilities
which might be incurred by them in their capacities as such,
including certain liabilities arising under the Securities Act
of 1933. The premium for this insurance is paid by the
Company.
The proposed forms of Purchase Agreement between the
Company and any purchaser, filed as Exhibits 1(a), 1(b) and
1(c) hereto, contain descriptions of the indemnification
arrangements with respect to this offering, and are
incorporated herein by reference.
Item 16. Exhibits.
Reference is made to the Exhibit Index filed as a
part of this Registration Statement.
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 being
offered (if the total dollar value of securities
<PAGE>
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 purposed of determining any liability under the Securities
Act of 1933, each filing of the 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 provisions described under Item 15 above, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification in
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
<PAGE>
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 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.
The undersigned registrant hereby undertakes to file
an application for the purpose of determining the eligibility
of the trustee to act under subSection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, 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 Joplin, State of Missouri, on
September 8, 1997.
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: /s/ Myron W. McKinney
Myron W. McKinney
President
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
/s/ Myron W. McKinney President, Chief September 8, 1997
Myron W. McKinney Executive Officer and
Director (Principal
Executive Officer)
/s/ R.B. Fancher Vice President-Finance September 8, 1997
R.B. Fancher (Principal Financial
Officer)
/s/ G.A. Knapp* Controller and September 8, 1997
G.A. Knapp Assistant Treasurer
(Principal Accounting
Officer)
/s/ V.E. Brill* Director September 8, 1997
V.E. Brill
/s/ M.F. Chubb, Jr.* Director September 8, 1997
M.F. Chubb, Jr.
/s/ R.D. Hammons* Director September 8, 1997
R.D. Hammons
/s/ R.C. Hartley* Director September 8, 1997
R.C. Hartley
<PAGE>
/s/ J.R. Herschend* Director September 8, 1997
J.R. Herschend
/s/ F.E. Jeffries* Director September 8, 1997
F.E. Jeffries
/s/ R.L. Lamb* Director September 8, 1997
R.L. Lamb
/s/ R.E. Mayes* Director September 8, 1997
R.E. Mayes
/s/ M.M. Posner* Director September 8, 1997
M.M. Posner
*By /s/ R.B. Fancher
(R.B. Fancher, as
attorney in fact
for each of the
persons indicated)
<PAGE>
EXHIBIT INDEX
Exhibit
Number_ Description of Exhibit
1(a)* - Form of Purchase Agreement for New
Common Stock.
1(b)* - Form of Purchase Agreement for New
Bonds
1(c)* - Form of Purchase Agreement for New
Preferred Stock
4(a) - Restated Articles of Incorporation
(Incorporated by reference to
Exhibit 4(a) to Registration
Statement No. 33-54539 on Form S-
3).
(b) - Rights Agreement dated July 26,
1990 (Incorporated by reference to
Exhibit 4(a) to Form 8-K, File
No. 1-3368).
(c) - Amendment to Rights Agreement
dated July 26, 1990 between the
Company and Chemical Bank
(successor to Manufacturers
Hanover Trust Company), as Rights
Agent (incorporated by reference
to Exhibit 4 to Report on Form 10-
Q for the quarter ended
September 30, 1991, File No. 1-
3368).
(d) - Indenture of Mortgage and Deed of
Trust dated as of September 1,
1944 and First Supplemental
Indenture thereto (Incorporated by
reference to Exhibits B(1) and
B(2) to Form 10, File No. 1-3368).
(e) - Third and Sixth through Eighth
Supplemental Indentures to
Indenture of Mortgage and Deed of
Trust (Incorporated by reference
to Exhibit 2(c) to Form S-7, File
No. 2-59924).
(f) - Fourteenth Supplemental Indenture
to Indenture of Mortgage and Deed
of Trust.
<PAGE>
(g) - Sixteenth Supplemental Indenture
to Indenture of Mortgage and Deed
of Trust (Incorporated by
reference to Exhibit 4(i) to
Report on Form 10-K for the year
ended December 31, 1989, File
No. 1-3368).
(h) - Seventeenth Supplemental Indenture
to Indenture of Mortgage and Deed
of Trust (Incorporated by
reference to Exhibit 4(j) to
Report on Form 10-K for the year
ended December 31, 1990, File
No. 1-3368).
(i) - Eighteenth Supplemental Indenture
to Indenture of Mortgage and Deed
of Trust (Incorporated by
reference to Exhibit 4 to Report
on Form 10-Q for the quarter ended
June 30, 1992, File No. 1-3368).
(j) - Nineteenth Supplemental Indenture
to Indenture of Mortgage and Deed
of Trust (Incorporated by
reference to Exhibit 4(1) to
Registration Statement No.33-66748
on Form S-3, filed July 30, 1993).
(k) - Twentieth Supplemental Indenture
to Indenture of Mortgage and Deed
of Trust (Incorporated by
reference to Exhibit 4(m) to
Registration Statement No.33-66748
on Form S-3, filed July 30, 1993).
(l) - Twenty-First Supplemental
Indenture to Indenture of Mortgage
and Deed of Trust (Incorporated by
reference to Exhibit 4 to Report
on Form 10-Q for the quarter ended
September 30, 1993, File No. 1-
3368).
(m) - Twenty-Second Supplemental
Indenture to Indenture of Mortgage
and Deed of Trust (Incorporated by
reference to Exhibit 4(k) to
Annual Report on Form 10-K for the
year ended December 31, 1993, File
No. 1-3368).
<PAGE>
(n) - Twenty-Third Supplemental
Indenture to Indenture of Mortgage
and Deed of Trust (Incorporated by
reference to Exhibit 4(l) to
Annual Report on Form 10-K for the
year ended December 31, 1993, File
No. 1-3368).
(o) - Twenty-Fourth Supplemental
Indenture to Indenture of Mortgage
and Deed of Trust (Incorporated by
reference to Exhibit 4(m) to
Annual Report on Form 10-K for the
year ended December 31, 1993, File
No. 1-3368).
(p) - Twenty-Fifth Supplemental
Indenture dated as of November 1,
1994 to Indenture of Mortgage and
Deed of Trust (Incorporated by
reference to Exhibit 4(p) to Form
S-3, File No. 33-56635).
(q) - Twenty-Sixth Supplemental
Indenture dated as of April 1,
1995 to Indenture of Mortgage and
Deed of Trust (Incorporated by
reference to Exhibit 4 to Form 10-
Q for quarter ended March 31,
1995, File No. 1-3368).
(r) - Twenty-Seventh Supplemental
Indenture dated as of June 1, 1995
to Indenture of Mortgage and Deed
of Trust (Incorporated by
reference to Exhibit 4 to Form 10-
Q for quarter ended June 30, 1995,
File No. 1-3368).
(s) - Twenty-Eighth Supplemental
Indenture dated as of December 1,
1996 to Indenture of Mortgage and
Deed of Trust (Incorporated by
reference to Exhibit 4 to Form 10-
K for fiscal year ended December
31, 1996, File No. 1-3368.
<PAGE>
(t)* - Form of Supplemental Indenture
relating to the New Bonds.
(u) - Form of Certificate of Designation
Description and Certain Terms of
____% Cumulative Preferred Stock,
$10.00 par value (Incorporated by
reference to Exhibit 4(p) to
Registration Statement No. 33-
66748 on Form S-3 filed July 30,
1993).
5(a)* - Opinion of Anderson, Byrd,
Richeson & Flaherty regarding the
legality of the New Common Stock
and the New Preferred Stock.
5(b)* - Opinion of Spencer, Scott & Dwyer,
P.C. regarding the legality of the
New Bonds.
23(a)* - Consent of Price Waterhouse LLP.
(b) - Consent of Anderson, Byrd,
Richeson & Flaherty (included in
Exhibit 5(a) hereto).
(c) - Consent of Spencer, Scott & Dwyer
(included in Exhibit 5(b) hereto).
24* - Powers of Attorney.
25(a)* - Statement of Eligibility and
Qualification under the Trust
Indenture Act of 1939 (on Form T-
1) of Harris Trust and Savings
Bank.
25(b)* - Statement of Eligibility and
Qualification under the Trust
Indenture Act of 1939 (on Form T-
1) of State Street Bank and Trust
Company of Missouri, N.A.
27 - Financial Data Schedule (Incorporated by reference
to Exhibit 27 to Report on Form 10-Q for quarter
ended June 30, 1997, File No. 1-3368).
_______________________
* Filed herewith.
EXHIBIT 1(a)
EMPIRE DISTRICT ELECTRIC COMPANY
COMMON STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
<PAGE>
THE EMPIRE DISTRICT ELECTRIC COMPANY
COMMON STOCK STANDARD PURCHASE PROVISIONS
From time to time, The Empire District Electric
Company, a Kansas corporation ("Company"), may enter into
purchase agreements that provide for the sale of shares of the
Company's common stock to the purchaser or purchasers named
therein. The standard provisions set forth herein may be
incorporated by reference in any such purchase agreement
("Purchase Agreement"). The Purchase Agreement, including the
provisions incorporated therein by reference, is herein
sometimes referred to as "this Agreement." Unless otherwise
defined herein, terms defined in the Purchase Agreement are
used herein as therein defined.
1. Introductory. The Company proposes to issue and
sell, from time to time, common stock, $1.00 par value,
registered under the registration statement referred to in
Section 3(a) ("Common Stock"). The shares of Common Stock
referred to on Schedule A of the Purchase Agreement are
hereinafter referred to as the "Firm Common Stock." The
Purchase Agreement may provide for an additional number of
shares of Common Stock (the "Additional Common Stock") which
the purchasers may purchase on the terms and conditions set
forth in this Agreement for the sole purpose of covering over-
allotments. The Firm Common Stock and the Additional Common
Stock, if any, are collectively referred to as the "Purchased
Common Stock." The firm or firms, as the case may be, which
agree to purchase the Purchased Common Stock are hereinafter
referred to as the "Purchasers" of such Purchased Common Stock.
The terms "you" and "your" refer to those Purchasers (or the
Purchaser) who sign the Purchase Agreement either on behalf of
themselves (or itself) only or on behalf of the several
Purchasers named in Schedule A thereto, as the case may be.
2. Sale and Delivery of Common Stock. Subject to
the terms and conditions set forth in this Agreement, the
Company will deliver the Firm Common Stock to you for the
account of the Purchasers, at the place set forth in the
Purchase Agreement against payment of the purchase price
therefor by wire transfer or certified or official bank check
or checks in immediately available funds or clearing house
funds payable to the order of the Company, all as set forth in
the Purchase Agreement, at the time set forth in the Purchase
Agreement or at such other time not later than seven full
business days thereafter as you and the Company determine, such
<PAGE>
time being herein referred to as the "Closing Date." The
Company agrees to make available to you for inspection and
packaging at the place set forth in the Purchase Agreement, at
least one full business day prior to the Closing Date, the Firm
Common Stock so to be delivered in good delivery form and in
such denominations and registered in such names as you shall
have requested, all such requests to have been made in writing
at least three full business days prior to the Closing Date, or
if no such request is made, registered in the names of the
several Purchasers as set forth in Schedule A to the Purchase
Agreement.
If there is any Additional Common Stock, the
Purchasers shall have the option to purchase, severally and not
jointly, from the Company, ratably in accordance with the
number of shares of Firm Common Stock to be 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
<PAGE>
available to you for inspection and packaging at the place set
forth in the Purchase Agreement, at least one full business day
prior to the Additional Closing Date, the Additional Common
Stock so to be delivered in good delivery form and in such
denominations and registered in such names as you shall have
requested, all such requests to have been made in writing at
least three full business days prior to the Additional Closing
Date, or if no such request is made, registered in the names of
the several Purchasers as set forth in Schedule A to the
Purchase Agreement.
If the Additional Closing Date occurs after the
Closing Date, then the obligation of the Purchasers to purchase
the Additional Common Stock shall be conditioned upon receipt
of supplemental opinions, certificates and letters confirming
as of the Additional Closing Date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6
hereof.
3. Representations and Warranties of the Company.
The Company represents and warrants to each Purchaser that:
(a) The registration statement referred to in the
Purchase Agreement and relating to the Common Stock
including a prospectus and all documents incorporated by
reference therein has been filed on Form S-3 with the
Securities and Exchange Commission ("Commission") and has
become effective. Such registration statement, including
the prospectus supplement with respect to the Purchased
Common Stock referred to in Section 2 and all prior
amendments and supplements thereto (other than supplements
and amendments relating to Common Stock that is not
Purchased Common Stock) and all documents filed as a part
thereof or incorporated therein pursuant to Item 12 of
Form S-3, is hereinafter referred to as the "Registration
Statement" and such prospectus, as so amended or
supplemented (including all material so incorporated by
reference therein), in the form first filed by the Company
pursuant to Rule 424(b) under the Act is hereinafter
referred to as the "Prospectus."
(b) The Registration Statement and the Prospectus
conform in all respects to the requirements of the
Securities Act of 1933, as amended ("Act") and the
pertinent published rules and regulations ("Rules and
Regulations") of the Commission, and none of such
documents includes any untrue statement of a material fact
or omits to state any material fact required to be stated
therein or necessary to make the statements therein not
<PAGE>
misleading, except that the foregoing does not apply to
statements or omissions in either of such documents based
upon written information furnished to the Company by any
Purchaser specifically for use therein. The documents
incorporated by reference in the Registration Statement or
the Prospectus pursuant to Item 12 of Form S-3 of the Act,
at the time they were filed with the Commission, complied
in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the pertinent published rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and
any additional documents deemed to be incorporated by
reference in the Prospectus will, when they are filed with
the Commission, comply in all material respects with the
requirements of the Exchange Act and the Exchange Act
Rules and Regulations and will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances
under which they were made, not misleading.
4. Agreements of the Company. The Company agrees
with the several Purchasers that:
(a) The Company will advise you promptly of any
proposal to amend or supplement the Registration Statement
or the Prospectus with respect to any Purchased Common
Stock, and will furnish you a copy thereof prior to the
filing thereof with the Commission.
(b) The Company will furnish to you copies of the
registration statement relating to the Common Stock as
originally filed and all amendments thereto (at least one
of which will be signed and will include all exhibits
except those incorporated by reference to previous filings
with the Commission), each related prospectus, the
Prospectus, and all amendments and supplements to such
documents (except supplements relating to Common Stock
which is not Purchased Common Stock), in each case as soon
as available and in such quantities as you reasonably
request for the purposes contemplated by the Act.
(c) If at any time when a prospectus relating to the
Purchased Common Stock is required to be delivered under
the Act or the Rules and Regulations, any event occurs as
a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a
material fact, or omit to state a material fact necessary
<PAGE>
to make the statements therein, in light of the
circumstances under which made, not misleading, or if it
is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Rules and
Regulations, the Company will promptly notify the
Purchasers and promptly prepare and file with the
Commission an amendment or supplement to the Registration
Statement or any appropriate filing pursuant to Section 13
or 14 of the Exchange Act which will correct such
statement or omission or an amendment which will effect
such compliance, and deliver in connection therewith, such
Prospectus or amendments or supplements to the Purchasers
in such quantity as may be necessary to permit compliance
with the requirements of the Act and the Rules and
Regulations, provided that the Company shall be so
obligated only so long as the Company is notified of
unsold allotments (failure by the Purchasers to so notify
the Company cancels the Company's obligation under this
Section 4(c)), and provided further that any such
Prospectus or amendment or supplement required later than
nine months from the date hereof shall be furnished at the
Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers
in taking such action as may be necessary to qualify the
Purchased Common Stock for offering and sale under the
securities laws of any state or jurisdiction of the United
States as the Purchasers may reasonably request and will
use its best efforts to continue such qualification in
effect so long as required for the distribution of the
Purchased Common Stock; provided, however, that the
Company shall not be required to qualify as a foreign
corporation, or to file a general consent to service of
process, in any such state or jurisdiction or to comply
with any other requirement deemed by the Company to be
unduly burdensome.
(e) The Company will make generally available to its
security holders as soon as practicable an earning
statement (as contemplated by Rule 158 under the Act)
covering a period of twelve months commencing after the
effective date of the Registration Statement.
(f) For a period of three years, the Company will
furnish to you copies of any report or definitive proxy
statement which the Company shall file with the Commission
under the Exchange Act, and copies of all reports and
communications which shall be sent to stockholders
generally, at or about the time such reports and other
information are first furnished to stockholders generally.
<PAGE>
(g) The Company will apply the net proceeds from the
offering of the Purchased Common Stock as set forth under
the caption "Use of Proceeds" in the Prospectus.
(h) If a public offering of the Purchased Common
Stock is to be made, the Company will not offer or sell
any of its other common stock (other than pursuant to the
Company's dividend reinvestment and stock purchase plan or
any employee benefit or other plan in effect on the date
of this Agreement) prior to 120 days after the Closing
Date without the consent of the Purchasers.
5. Expenses. The Company and the Purchasers agree
as follows:
(a) The Company, whether or not the transactions
contemplated hereunder are consummated, will (except as
provided in Section 4(c) hereof) pay all costs and
expenses incident to the performance of its obligations
hereunder, including without limitation, all costs and
expenses in connection with (i) the preparation and filing
of the Registration Statement and Prospectus and any
supplements or amendments thereto; (ii) the preparation,
issuance and delivery to the Purchasers of the Purchased
Common Stock (other than transfer taxes); (iii) the
reproduction or printing and mailing in reasonable
quantities of the Registration Statement and amendments
thereto, each preliminary prospectus, the Prospectus and
any amendments or supplements thereto, this Agreement, any
Blue Sky memoranda delivered to the Purchasers;
(iv) reasonable filing fees and expenses (including legal
fees and disbursements, not in excess of $5,000) incurred
in connection with the qualification of the Purchased
Common Stock under the Blue Sky or securities laws of the
various states, and the preparation of Blue Sky memoranda
for the offering; (v) the fees and expenses of the
accountants and the counsel for the Company and (vi) all
other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise
specifically provided for in this Section.
(b) The Purchasers will pay (i) the fees and
disbursements of their respective counsel, except as set
forth in Section 5(a) above and (ii) their own
out-of-pocket expenditures.
<PAGE>
6. Conditions of the Purchasers' Obligations with
Respect to Firm Common Stock. The obligations of the
Purchasers to purchase and pay for the Firm Common Stock shall
be subject to their discretion to the accuracy of and
compliance in all material respects with the representations
and the warranties of the Company herein contained as of the
date hereof and the Closing Date, to the performance by the
Company of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement shall have been issued under
the Act or proceedings therefor initiated or threatened by
the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the
Closing Date, of Anderson, Byrd, Richeson & Flaherty,
counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of Kansas, with power and
authority (corporate and other) to own its properties
and conduct its business as described in the
Prospectus;
(ii) The outstanding shares of the Company's common
stock have been duly authorized and issued, are fully
paid and non-assessable; the Purchased Common Stock
has been duly authorized, and, when issued and
delivered to and paid for by the Purchasers pursuant
to this Agreement, will be fully paid and
non-assessable; and the Purchased Common Stock
conforms to the description thereof incorporated by
reference into the Prospectus;
(iii) All approvals of the State Corporation
Commission of the State of Kansas which are required
for the issuance, sale and delivery of the Purchased
Common Stock have been obtained; any conditions in
such approvals required to be satisfied prior to the
issuance of the Purchased Common Stock have been duly
satisfied; such approvals are in full force and
effect; and no further approval, authorization,
consent or other order of any public board or body in
the State of Kansas is legally required for the
issuance, sale and delivery of the Purchased Common
Stock or the execution, delivery and performance by
the Company of this Agreement (it being understood
that such counsel need express no opinion as to any
approvals which may be required under the securities
acts or Blue Sky laws of said state); and
<PAGE>
(iv) This Agreement has been duly authorized,
executed and delivered by the Company.
(c) You shall have received an opinion, dated the
Closing Date, of Spencer, Scott & Dwyer, P.C., counsel for
the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of Kansas, with power and
authority (corporate and other) to own its properties
and conduct its business as described in the
Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in
the State of Arkansas, Missouri and Oklahoma, which
are the only jurisdictions (other than Kansas) in
which it owns or leases substantial properties or in
which the conduct of its business requires such
qualification;
(ii) The Company holds all the valid and subsisting
franchises which are necessary to authorize it to
carry on the utility businesses in which it is
engaged as described in the Prospectus;
(iii) Neither the issuance of the Purchased
Common Stock nor the execution, delivery and
performance by the Company of this Agreement will
conflict with, violate or result in the breach of any
Missouri law or administrative regulation or any
court decree known to such counsel applicable to the
Company (it being understood that such counsel need
express no opinion as to the securities or Blue Sky
law of any jurisdiction), conflict with or result in
a breach of any of the terms, conditions or
provisions of the Restated Articles of Incorporation,
as amended, or By-Laws, as amended, of the Company or
of any agreement or instrument known to such counsel
to which the Company is a party or by which the
Company is bound or constitute a default thereunder,
or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon
any of the properties or assets of the Company;
<PAGE>
(iv) Relying as to materiality to a large extent upon
the statements and opinions of representatives of the
Company, such counsel have no reason to believe that
either the Registration Statement or the Prospectus,
or any amendment or supplement thereto, as of their
respective effective or issue dates, contained any
untrue statement of material fact or omitted to state
any material fact necessary to make the statements
therein not misleading; the descriptions in the
Registration Statement and Prospectus of contracts
and other documents are accurate and fairly present
the information therein shown; and such counsel do
not know of any legal or governmental proceedings
required to be described in the Prospectus by
Item 103 of Regulation S-K under the Act which are
not described as so required, nor of any contracts or
documents of a character required to be described in
the Registration Statement or Prospectus pursuant to
Item 11 of Form S-3 or to be filed as exhibits to the
Registration Statement pursuant to Item 601 of such
Regulation S-K which are not described and filed as
so required; it being understood that such counsel
need express no opinion as to the financial
statements or other financial or statistical
information contained in the Registration Statement
or the Prospectus; and
(v) This Agreement has been duly authorized,
executed and delivered by the Company.
In rendering such opinion, Spencer, Scott & Dwyer, P.C.
may rely, as to the incorporation of the Company and all
matters governed by Kansas law, upon the opinion of
Anderson, Byrd, Richeson & Flaherty referred to in
paragraph (b) above.
(d) You shall have received an opinion, dated the
Closing Date, of Brydon, Swearengen & England,
Professional Corporation, counsel for the Company, to the
effect that no approval of any governmental regulatory
authority in the State of Arkansas, Missouri or Oklahoma
is legally required for the valid authorization and
issuance of the Purchased Common Stock and the valid sale
thereof under this Agreement (other than any approvals
required under securities acts or Blue Sky laws of any
jurisdiction).
<PAGE>
(e) You shall have received an opinion, dated the
Closing Date, of Cahill Gordon & Reindel, counsel for the
Company, to the effect that:
(i) The Purchased Common Stock has been duly
authorized and, when issued and delivered to and paid
for by the Purchasers pursuant to this Agreement,
will be fully paid and non-assessable and conforms to
the description thereof incorporated by reference
into the Prospectus;
(ii) All approvals of the State Corporation
Commission of the State of Kansas which are required
for the valid authorization and issuance of the
Purchased Common Stock and the valid sale thereof
under this Agreement have been obtained, and such
counsel knows of no approval of any other
governmental regulatory body which is legally
required in connection therewith (other than any
approvals required under the securities acts or Blue
Sky laws of any jurisdiction);
(iii) The Registration Statement has become
effective under the Act, and, to the best of the
knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under
the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto
(except, in the case, as to the financial statements
or other financial or statistical information
included therein, as to which such counsel need not
express an opinion), as of their respective effective
or issue dates, appeared to comply as to form in all
material respects with the requirements of Form S-3,
and the applicable Rules and Regulations; and
(iv) This Agreement has been duly authorized,
executed and delivered by the Company.
In rendering such opinion Cahill Gordon & Reindel may
rely, as to the incorporation of the Company and as to all
other matters governed by the laws of the States of
Arkansas, Kansas, Missouri and Oklahoma, and covered by
their respective opinions, upon the opinions of Anderson,
Byrd, Richeson & Flaherty, Spencer, Scott & Dwyer, P.C.
and Brydon, Swearengen & England, Professional
Corporation, referred to above.
<PAGE>
In addition, such counsel shall state that such
counsel has participated in conferences with officers and
other representatives of the Company, counsel for the
Company, representatives of the independent accountants of
the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus,
and any subsequent amendments or supplements thereto, and
related matters were discussed and, although such counsel
is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and
Prospectus, or any subsequent amendments or supplements
thereto, on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of
officers, counsel and other representatives of the
Company), no facts have come to the attention of such
counsel which lead such counsel to believe that either the
Registration Statement or the Prospectus, and any
subsequent amendments or supplements thereto, as of their
respective effective or issue dates, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(it being understood that such counsel need make no
comment with respect to the financial statements and other
financial and statistical information included in the
Registration Statement or Prospectus or any such
amendments or supplements).
(f) You shall have received an opinion, dated the
Closing Date, of Thompson Coburn, counsel for the
Purchasers, to the effect that:
(i) The Purchased Common Stock has been duly
authorized and, when issued and delivered to and paid
for by the Purchasers pursuant to this Agreement,
will be fully paid and non-assessable and conforms to
the descriptions thereof incorporated by reference
into the Prospectus;
(ii) All approvals of the State Corporation
Commission of the State of Kansas which are required
for the valid authorization and issuance of the
Purchased Common Stock and the valid sale thereof
under this Agreement have been obtained, and such
counsel knows of no approval of any other
governmental regulatory body which is legally
required in connection therewith (other than any
approvals required under the securities acts or Blue
Sky laws of any jurisdiction);
<PAGE>
(iii) The Registration Statement has become
effective under the Act, and, to the best of the
knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under
the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto
(except, in the case, as to the financial statements
or other financial or statistical information
included therein, as to which such counsel need not
express an opinion), as of their respective effective
or issue dates, appeared to comply as to form in all
material respects with the requirements of Form S-3,
and the applicable Rules and Regulations; and
(iv) This Agreement has been duly authorized,
executed and delivered by the Company.
In rendering such opinion Thompson Coburn may rely, as to
the incorporation of the Company and as to all other
matters governed by the laws of the States of Arkansas,
Kansas and Oklahoma, and covered by their respective
opinions, upon the opinions of Anderson, Byrd, Richeson &
Flaherty and Brydon, Swearengen & England, Professional
Corporation, referred to above. Thompson Coburn need not
express any opinion with respect to the matters set forth
in paragraphs (i), (ii) and (iii) of the opinion of
Spencer, Scott & Dwyer, P.C. referred to above.
In addition, such counsel shall state that such
counsel has participated in conferences with officers and
other representatives of the Company, counsel for the
Company, representatives of the independent accountants of
the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus,
and any subsequent amendments or supplements thereto, and
related matters were discussed and reviewed. Such counsel
shall also state that, on the basis of such participation
(relying as to materiality to a large extent upon the
opinions of officers, counsel and other representatives of
the Company), but without independently verifying, passing
upon or assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in
the Registration Statement and Prospectus, or any
<PAGE>
subsequent amendments or supplements thereto, no facts
have come to the attention of such counsel which lead such
counsel to believe that either the Registration Statement
or the Prospectus, and any subsequent amendments or
supplements thereto, as of their respective effective or
issue dates, contained an untrue statement of a material
fact or omitted to state a material fact required to be
stated therein or necessary make the statements therein,
in the light of the circumstances under which they were
made, not misleading (it being understood that such
counsel need make no comment with respect to the financial
statements and other financial and statistical information
included in the Registration statement or Prospectus or
any such amendments or supplements).
(g) You shall have received a letter from the
Company's independent accountant(s), dated the Closing
Date addressed to you, confirming that they are
independent public accountants within the meaning of the
Act and the Rules and Regulations, and stating in effect
that:
(i) In their opinion, the financial statements and
schedules examined by them which are included in the
Company's most recent Annual Report on Form 10-K,
which is incorporated by reference in the Prospectus
(the "Form 10-K") comply as to form in all material
respects with the accounting requirements of the Act
and the Rules and Regulations and the Exchange Act
and the Exchange Act Rules and Regulations;
(ii) On the basis of procedures specified in such
letter (but not an examination in accordance with
generally accepted auditing standards), including
reading the minutes of meetings of the stockholders
and the Board of Directors of the Company since the
end of the year covered by the Form 10-K as set forth
in the minute books through a specified date not more
than five business days prior to the Closing Date,
reading the unaudited interim financial statements of
the Company incorporated by reference in the
Prospectus and the latest available unaudited interim
financial statements of the Company, and making
inquiries of certain officials of the Company who
have responsibility for financial and accounting
matters, nothing has come to their attention that has
caused them to believe that (1) any unaudited
financial statements incorporated by reference in the
Prospectus do not comply as to form in all material
<PAGE>
respects with the accounting requirements of the Act
and the Rules and Regulations or the Exchange Act and
the Exchange Act Rules and Regulations; (2) the
latest available financial statements, not
incorporated by reference in the Prospectus, have not
been prepared on a basis substantially consistent
with that of the audited financial statements
incorporated in the Prospectus; (3) for the period
from the closing date of the latest income statement
incorporated by reference in the Prospectus to the
closing date of the latest available income statement
read by them there were any decreases, as compared
with the corresponding period of the previous year,
in operating revenues, operating income or net
income; or (4) at a specified date not more than five
business days prior to the Closing Date, there was
any change in the capital stock or long term debt of
the Company or, at such date, there was any decrease
in net assets of the Company as compared with amounts
shown in the latest balance sheet incorporated by
reference in the Prospectus, except in all cases for
changes or decreases which the Prospectus discloses
have occurred or may occur, or which are described in
such letter; and
(iii) Certain specified procedures have been
applied to certain financial or other statistical
information (to the extent such information was
obtained from the general accounting records of the
Company) set forth or incorporated by reference in
the Prospectus and that such procedures have not
revealed any disagreement between the financial and
statistical information so set forth or incorporated
and the underlying general accounting records of the
Company, except as described in such letter.
(h) On the Closing Date there shall have been
furnished to you a certificate, dated the Closing Date,
from the Company, signed on behalf of the Company by the
President, or the Vice President-Finance, stating in
effect that to the best knowledge of the officer signing
such certificate and except as may be reflected in or
contemplated by the Registration Statement or stated in
such certificate (i) the representations and warranties of
the Company contained in Section 3 of this Agreement are
correct and the Company has complied with all the
agreements and satisfied all the conditions to be
performed or satisfied on its part at or prior to the
Closing Date; (ii) no stop order suspending the
<PAGE>
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are pending, or, to the knowledge of the
signer thereof, are contemplated under the Act; and (iii)
subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, as
supplemented or amended, there has been no material
adverse change in the financial position or results of
operations of the Company,
(i) If a public offering of the Purchased Common
Stock is to be made, subsequent to the date of this
Agreement and prior to the Closing Date, no rating of the
Company's First Mortgage Bonds by any nationally
recognized rating agency shall have been lowered by such
agency.
(j) The representations and warranties of the
Company herein shall be true and correct in all material
respects as of the Closing Date and all agreements herein
contained to be performed on the part of the Company at or
prior to the Closing Date shall have been so performed,
(k) You shall have been furnished such additional
certificates and other evidence as you or your counsel may
reasonably request showing fulfillment of the conditions
contained in this Section 6 and existence of the facts to
which the representations and warranties contained in
Section 3 hereof relate.
(l) The New York Stock Exchange, Inc. shall have
approved for listing upon official notice of issuance, the
Purchased Common Stock.
7. Indemnification.
(a) The Company will indemnify and hold harmless
each Purchaser and each person, if any, who controls any
Purchaser within the meaning of the Act against the losses,
claims, damages or liabilities, joint or several, to which such
Purchaser or such controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto or any
related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and will reimburse
<PAGE>
such Purchaser and each such controlling person for any legal
or other expenses reasonably incurred by such Purchaser or such
controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made
in any of such documents in reliance upon and in conformity
with written information furnished to the Company by any
Purchaser specifically for use therein. The indemnification
obligation contained in this Section 7 will be in addition to
any liability which the Company may otherwise have.
(b) Each Purchaser will indemnify and hold harmless
the Company, each of its directors, each of its officers who
has signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of the Act, against
any losses, claims, damages or liabilities to which the Company
or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement of any material fact contained in the
Registration Statement, the Prospectus or any amendment or
supplement thereto or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by
such Purchaser specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company
or any such director, officer or controlling person in
connection with investigating or defending any such loss,
claim, damage, liability or action. The indemnification
obligation contained in this Section 7 will be in addition to
any liability which the Purchasers may otherwise have.
In addition to any other information the Purchasers
may furnish, the Purchasers hereby furnish to the Company
specifically for use in the Prospectus the information with
respect to the offering of the Purchased Common Stock and the
Purchasers set forth on the cover page and inside cover page of
the Prospectus Supplement and under "Underwriting" or similar
caption therein.
<PAGE>
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel selected by the indemnifying party and
acceptable to the indemnified party (the indemnified party
shall not unreasonably reject such counsel), and after notice
from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. The
indemnified party shall have the right to employ its counsel in
any such action, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i)
the employment of counsel by such indemnified party has been
authorized by the indemnifying party, (ii) the indemnified
party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense of such action
(in which case the indemnifying party shall not have the right
to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in
fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of one
counsel representing all indemnified parties shall be at the
expense of the indemnifying party. An indemnifying party shall
not be liable for any settlement of any action or claim
effected without its consent.
8. Contribution. If recovery is not available
under the foregoing indemnification provisions of Section 7 of
this Agreement, for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof
shall be entitled to contribution to liabilities and expenses,
except to the extent that contribution is not permitted under
Section 11(f) of the Act. In determining the amount of
contribution to which the respective parties are entitled,
there shall be considered the relative benefits received by
<PAGE>
each party from the offering of the Purchased Common Stock
(taking into account the portion of the proceeds of the
offering realized by each), the parties' relative knowledge and
access to information concerning the matter with respect to
which the claim was asserted, the opportunity to correct and
prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances. The
Company and the Purchasers agree that it would not be equitable
if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Purchasers were treated
as one entity for such purpose). No Purchaser or any person
controlling such Purchaser shall be obligated to make
contribution hereunder which in the aggregate exceeds the total
public offering price of the Purchased Common Stock purchased
by such Purchaser, less the aggregate amount of any damages
which such Purchaser and its controlling persons have otherwise
been required to pay in respect of the same claim or any
substantially similar claim.
9. Termination.
(a) This Agreement may be terminated at any time
prior to the Closing Date or, with respect to the Additional
Common Stock, the Additional Closing Date, by the Purchasers by
written notice to the Company, if in the reasonable judgment of
the Purchasers it is impracticable to offer for sale or to
enforce contracts made by the Purchasers for the resale of the
Firm Common Stock or the Additional Common Stock, as the case
may be, by reason of (i) the Company sustaining a loss, whether
or not insured, by reason of fire, flood, accident or other
calamity, which, in the reasonable opinion of the Purchasers,
substantially affects the value of the properties of the
Company or which materially interferes with the operation of
the properties of the Company or which materially interferes
with the operation of the business of the Company, (ii) trading
in securities on the New York Stock Exchange having been
suspended or limited, other than a temporary suspension in
trading to provide for an orderly market, or minimum prices
having been established on such Exchange, (iii) a banking
moratorium having been declared by the United States, or by New
York or Missouri state authorities, or (iv) an outbreak of
major hostilities between the United States and any foreign
power, or any other new insurrection or armed conflict
involving the United States having occurred.
(b) If this Agreement shall be terminated pursuant
to Section 6 or this Section 9, or if the purchase of the Firm
Common Stock or the Additional Common Stock, if any, by the
Purchasers is not consummated because of any refusal, inability
<PAGE>
or failure on the part of the Company to comply with any of the
terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform all
the obligations under this Agreement, the Company shall not be
liable to the Purchasers for damages arising out of the
transactions covered by this Agreement, but the Company and the
Purchasers shall remain liable to the extent provided in
Sections 5(a), 7(a) and 8 hereof.
10. Survival of Indemnities, Representations and
Warranties. The respective indemnities and agreements for
contribution of the Company and the Purchasers and the
respective representations and warranties of the Company and
the Purchasers set forth in this Agreement will remain in full
force and effect, regardless of any investigation made by or on
behalf of the Company or the Purchasers or any of their
respective officers, directors, partners or any controlling
person, and will survive delivery of and payment for the
Purchased Common Stock or termination of this Agreement.
11. Default of Purchasers. If any Purchaser or
Purchasers default in their obligations to purchase Firm Common
Stock or Additional Common Stock, as the case may be, hereunder
and the aggregate number of shares of Firm Common Stock or
Additional Common Stock, as the case may be, which such
defaulting Purchaser or Purchasers agreed but failed to
purchase is equal to or less than 10% of the total number of
shares of Firm Common Stock or Additional Common Stock, as the
case may be, you may make arrangements satisfactory to the
Company for the purchase of such Firm Common Stock or
Additional Common Stock, as the case may be, by other persons,
including any of the Purchasers, but if no such arrangements
are made by the Closing Date or the Additional Closing Date, as
the case may be, the non-defaulting Purchasers shall be
obligated severally, in proportion to their respective
commitments hereunder, to purchase the Firm Common Stock or
Additional Common Stock, as the case may be, which such
defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate amount of
Firm Common Stock or Additional Common Stock, as the case may
be, with respect to which such default or defaults occur is
more than the above percentage and arrangements satisfactory to
you and the Company for the purchase of such Firm Common Stock
or Additional Common Stock, as the case may be, by other
persons are not made within thirty-six hours after such
default, this Agreement will terminate without liability on the
part of any non-defaulting Purchaser or the Company, except as
provided in Section 10 and expect that any default by a
Purchaser with respect to the purchase of Additional Common
<PAGE>
Stock shall not affect the obligation of the Purchasers to
purchase the Firm Common Stock. In the event that any
Purchaser or Purchasers default in their obligation to purchase
Firm Common Stock or Additional Common Stock, as the case may
be, hereunder, the Company may, by prompt written notice to the
non-defaulting Purchasers, postpone the Closing Date for a
period of not more than seven full business days in order to
effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other
documents, and the Company will promptly file any amendments to
the Registration Statement or supplements to the Prospectus
which may thereby be made necessary. As used in this
Agreement, the term "Purchaser" includes any person substituted
for a Purchaser under this Section. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
12. Parties in Interest. This Agreement shall inure
to the benefit of the Company, the Purchasers, the officers,
directors and partners of such parties, each controlling person
referred to in Section 7 hereof, and their respective
successors. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation
(including, without limitation, any purchaser of the Purchased
Common Stock from a Purchaser or any subsequent holder thereof)
any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall
not include any purchaser, as such purchaser, of any Purchased
Common Stock from any Purchaser or any subsequent holder
thereof.
This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof, and
supersedes any agreement previously entered into.
13. Notices. All communications, terminations and
notices hereunder shall be in writing and, if sent to any
Purchaser, shall be mailed, delivered or telecopied and
confirmed to it by letter to the address set forth for such
Purchaser in Schedule A to the Purchase Agreement (or such
other place as the Purchaser may specify in writing); if sent
to the Company shall be mailed, delivered or telecopied and
confirmed to the Company at 602 Joplin Street, Joplin, Missouri
64801 (Attn: Vice President - Finance) telecopier: (417) 625-
5153 (or such other place as the Company may specify in
writing).
<PAGE>
14. Counterparts. This Agreement may be executed in
any number of counterparts which, taken together, shall
constitute one and the same instrument.
15. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Missouri.
EXHIBIT 1(b)
EMPIRE DISTRICT ELECTRIC COMPANY
FIRST MORTGAGE BONDS
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
<PAGE>
THE EMPIRE DISTRICT ELECTRIC COMPANY
STANDARD PURCHASE PROVISIONS
From time to time, The Empire District Electric
Company, a Kansas corporation ("Company"), may enter into
purchase agreements that provide for the sale of a designated
series of First Mortgage Bonds to the purchaser or purchasers
named therein. The standard provisions set forth herein may be
incorporated by reference in any such purchase agreement
("Purchase Agreement"). The Purchase Agreement, including the
provisions incorporated therein by reference, is herein
sometimes referred to as "this Agreement." Unless otherwise
defined herein, terms defined in the Purchase Agreement are
used herein as therein defined.
1. Introductory. The Company proposes to issue and
sell from time to time First Mortgage Bonds registered under
the registration statement referred to in Section 3(a)
("Bonds"). The Bonds will be issued under an Indenture of
Mortgage and Deed of Trust, dated as of September 1, 1944
("Original Mortgage"), by and between the Company and Harris
Trust and Savings Bank and State Street Bank and Trust Company
of Missouri, N.A., as trustees ("Trustees"), as supplemented
and amended, including by a supplemental indenture
("Supplemental Indenture") pertaining to the particular series
of Bonds involved in the offering (the Original Mortgage as so
amended and supplemented, the "Indenture") and will have
varying designations, interest rates and terms of payment of
interest, maturities, redemption and sinking fund provisions,
if any, and other terms, with all of such terms for any
particular series of Bonds being determined at the time of sale
and being as set forth in the Purchase Agreement and
Supplemental Indenture relating to such series of Bonds. The
Bonds referred to in Schedule A of the Purchase Agreement are
hereinafter referred to as the "Purchased Bonds." The firm or
firms, as the case may be, which agree to purchase the
Purchased Bonds are hereinafter referred to as the "Purchasers"
of such Purchased Bonds. The terms "you" and "your" refer to
those Purchasers (or the Purchaser) who sign the Purchase
Agreement either on behalf of themselves (or itself) only or on
behalf of the several Purchasers named in Schedule A thereto,
as the case may be. Purchased Bonds to be purchased by
Purchasers are herein referred to as "Purchasers' Bonds," and
any Purchased Bonds to be purchased pursuant to Delayed
Delivery Contracts (as defined below) as hereinafter provided
are herein referred to as "Contract Bonds."
<PAGE>
2. Sale and Delivery of the Bonds. Subject to the
terms and conditions set forth in this Agreement, the Company
will deliver the Purchasers' Bonds to you for the account of
the Purchasers, at the place set forth in the Purchase
Agreement against payment of the purchase price therefor by
wire transfer or certified or official bank check or checks in
immediately available funds or clearing house funds payable to
the order of the Company, all as set forth in the Purchase
Agreement, at the time set forth in the Purchase Agreement or
at such other time not later than seven full business days
thereafter as you and the Company determine, such time being
herein referred to as the "Closing Date." The Company agrees
to make available to you for inspection and packaging at the
place set forth in the Purchase Agreement, at least one full
business day prior to the Closing Date, the Purchasers' Bonds
so to be delivered in good delivery form and in such
denominations and registered in such names as you shall have
requested, all such requests to have been made in writing at
least three full business days prior to the Closing Date, or if
no such request is made, registered in the names of the several
Purchasers as set forth in Schedule A to the Purchase
Agreement.
If any Purchase Agreement provides for sales of
Purchased Bonds pursuant to delayed delivery contracts, the
Company authorizes the Purchasers to solicit offers to purchase
Contract Bonds 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. Each
Delayed Delivery Contract shall provide for the purchase and
sale of a principal amount of Contract Bonds not less than the
amount set forth in the Purchase Agreement and the aggregate
principal amount of all Contract Bonds shall not exceed the
amount set forth in the Purchase Agreement. 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 principal amount of
Contract Bonds. 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 Bonds shall
be deducted from the Purchased Bonds to be purchased by the
several Purchasers and the aggregate principal amount of
Purchased Bonds to be purchased by each Purchaser shall be
reduced pro rata in proportion to the principal amount of
Purchased Bonds 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.
<PAGE>
3. Representations and Warranties of the Company.
The Company represents and warrants to each Purchaser that:
(a) The registration statement referred to in the
Purchase Agreement and relating to the Bonds, including a
prospectus and all documents incorporated by reference
therein, has been filed on Form S-3 with the Securities
and Exchange Commission ("Commission") and has become
effective. Such registration statement, including the
prospectus supplement with respect to the offering of
Purchased Bonds referred to in Section 2 and all prior
amendments and supplements thereto (other than supplements
and amendments relating to Bonds that are not Purchased
Bonds), including all documents filed as a part thereof or
incorporated therein pursuant to Item 12 of Form S-3
(other than the Statements of Eligibility and
Qualification of the Trustees (the "Forms T-1")), is
hereinafter referred to as the "Registration Statement"
and such prospectus, as so amended or supplemented
(including all material so incorporated by reference
therein) in the form first filed by the Company pursuant
to Rule 424(b) under the Act is hereinafter referred to as
the "Prospectus."
(b) The Registration Statement and the Prospectus
conform in all respects to the requirements of the
Securities Act of 1933, as amended ("Act"), the Trust
Indenture Act of 1939, as amended ("Trust Indenture Act")
and the pertinent published rules and regulations ("Rules
and Regulations") of the Commission, and none of such
documents includes any untrue statement of a material fact
or omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to
statements or omissions in either of such documents based
upon written information furnished to the Company by any
Purchaser specifically for use therein. The documents
incorporated by reference in the Registration Statement or
the Prospectus pursuant to Item 12 of Form S-3 of the Act,
at the time they were filed with the Commission, complied
in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the pertinent published rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and
any additional documents deemed to be incorporated by
<PAGE>
reference in the Prospectus will, when they are filed with
the Commission, comply in all material respects with the
requirements of the Exchange Act and the Exchange Act
Rules and Regulations and will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances
under which they were made, not misleading.
4. Agreements of the Company. The Company agrees
with the several Purchasers that:
(a) The Company will advise you promptly of any
proposal to amend or supplement the Registration Statement
or the Prospectus with respect to any Purchased Bonds, and
will furnish you a copy thereof prior to the filing
thereof with the Commission.
(b) The Company will furnish to you copies of the
registration statement relating to the Bonds as originally
filed and all amendments thereto (at least one of which
will be signed and will include all exhibits except those
incorporated by reference to previous filings with the
Commission), each related prospectus, the Prospectus, and
all amendments and supplements to such documents (except
supplements relating to Bonds that are not Purchased
Bonds), in each case as soon as available and in such
quantities as you reasonably request for the purposes
contemplated by the Act.
(c) If at any time when a prospectus relating to the
Purchased Bonds is required to be delivered under the Act
or the Rules and Regulations, any event occurs as a result
of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact, or
omit to state a material fact necessary to make the
statements therein, in light of the circumstances under
which made, not misleading, or if it is necessary at any
time to amend or supplement the Prospectus to comply with
the Act or the Rules and Regulations, the Company will
promptly notify the Purchasers and promptly prepare and
file with the Commission an amendment or supplement to the
Registration Statement or any appropriate filing pursuant
to Section 13 or 14 of the Exchange Act which will correct
such statement or omission or an amendment which will
effect such compliance, and deliver in connection
therewith, such Prospectus or amendments or supplements to
the Purchasers in such quantity as may be necessary to
<PAGE>
permit compliance with the requirements of the Act and the
Rules and Regulations, provided that the Company shall be
so obligated only so long as the Company is notified of
unsold allotments (failure by the Purchasers to so notify
the Company cancels the Company's obligation under this
Section 4(c)), and provided further that any such
Prospectus or amendment or supplement required later than
nine months from the date hereof shall be furnished at the
Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers
in taking such action as may be necessary to qualify the
Purchased Bonds for offering and sale under the securities
laws of any state or jurisdiction of the United States as
the Purchasers may reasonably request and will use its
best efforts to continue such qualification in effect so
long as required for the distribution of the Purchased
Bonds; provided, however, that the Company shall not be
required to qualify as a foreign corporation, or to file a
general consent to service of process, in any such state
or jurisdiction or to comply with any other requirement
deemed by the Company to be unduly burdensome.
(e) The Company will make generally available to its
security holders as soon as practicable an earning
statement (as contemplated by Rule 158 under the Act)
covering a period of twelve months after the effective
date of the Registration Statement.
(f) For a period of three years, the Company will
furnish to you copies of any report or definitive proxy
statement which the Company shall file with the Commission
under the Exchange Act, and copies of all reports and
communications which shall be sent to stockholders
generally, at or about the time such reports and other
information are first furnished to stockholders generally.
(g) The Company will apply the net proceeds from the
offering of the Purchased Bonds as set forth under the
caption "Use of Proceeds" in the Prospectus.
(h) The Company will record and file the
Supplemental Indenture pertaining to the Purchased Bonds
in each place in which such recording or filing is
required to protect and preserve the lien of the Indenture
and will pay all taxes and recording fees required to be
paid with respect to the execution, recording and filing
of the Supplemental Indenture and the issuance of the
Purchased Bonds.
<PAGE>
(i) If a public offering of the Purchased Bonds is
to be made, the Company will not offer or sell any of its
other debt securities which are substantially similar to
the Purchased Bonds prior to ten business days after the
Closing Date without the consent of the Purchasers.
5. Expenses. The Company and the Purchasers agree
as follows:
(a) The Company, whether or not the transactions
contemplated hereunder are consummated, will (except as
provided in Section 4(c) hereof) pay all costs and
expenses incident to the performance of its obligations
hereunder, including without limitation, all costs and
expenses in connection with (i) the preparation and filing
of the Registration Statement, Prospectus and Indenture
and any supplements or amendments thereto; (ii) the
preparation, issuance and delivery to the Purchasers of
the Purchasers' Bonds and the preparation, issuance and
delivery to the purchasers thereof of the Contract Bonds;
(iii) the reproduction or printing and mailing in
reasonable quantities of the Registration Statement, the
Supplemental Indenture, amendments thereto, each
preliminary prospectus, the Prospectus and any amendments
or supplements thereto, this Agreement, any Blue Sky
memoranda and legal investment survey delivered to the
Purchasers; (iv) reasonable filing fees and expenses
(including legal fees and disbursements, not in excess of
$5,000) incurred in connection with the qualification of
the Purchased Bonds under the Blue Sky or securities laws
of the various states, and the preparation of Blue Sky
memoranda and legal investment survey for the offering;
(v) the fees and expenses of the accountants and the
counsel for the Company; (vi) the fees of the Trustees and
any agent of the Trustees (including legal fees and
disbursements, if any, of counsel to the Trustees); and
(vii) all other costs and expenses incident to the
performance of its obligations hereunder which are not
otherwise specifically provided for in this Section.
(b) The Purchasers will pay (i) the fees and
disbursements of their respective counsel, except as set
forth in Section 5(a) above and (ii) their own
out-of-pocket expenditures.
<PAGE>
6. Conditions of the Purchasers' Obligations. The
obligations of the Purchasers to purchase and pay for the
Purchasers' Bonds shall be subject in their discretion to the
accuracy of and compliance in all material respects with the
representations and the warranties of the Company herein
contained as of the date hereof and the Closing Date, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement shall have been issued under
the Act or proceedings therefor initiated or threatened by
the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the
Closing Date, of Anderson, Byrd, Richeson & Flaherty,
counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good
standing under the laws of the State of Kansas,
with power and authority (corporate and other)
to own its properties and conduct its business
as described in the Prospectus;
(ii) All approvals of the State Corporation
Commission of the State of Kansas which are
required for the issuance, sale and delivery of
the Purchased Bonds have been obtained; any
conditions in such approvals required to be
satisfied prior to the issuance of the
Purchased Bonds have been duly satisfied; such
approvals are in full force and effect; and no
further approval, authorization, consent or
other order of any public board or body in the
State of Kansas is legally required for the
issuance, sale and delivery of the Purchased
Bonds or the execution, delivery and
performance by the Company of the Supplemental
Indenture, the Purchased Bonds, any Delayed
Delivery Contracts or this Agreement (it being
understood that such counsel need express no
opinion as to any approvals which may be
required under the securities acts or Blue Sky
laws of said state); and
<PAGE>
(iii) This Agreement and any Delayed
Delivery Contracts have been duly authorized,
executed and delivered by the Company.
(c) You shall have received an opinion, dated the
Closing Date, of Spencer, Scott & Dwyer, P.C., counsel for
the Company, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good
standing under the laws of the State of Kansas,
with power and authority (corporate and other)
to own its properties and conduct its business
as described in the Prospectus; and the Company
is duly qualified to do business as a foreign
corporation in good standing in the States of
Arkansas, Missouri and Oklahoma, which are the
only jurisdictions (other than Kansas) in which
it owns or leases substantial properties or in
which the conduct of its business requires such
qualification;
(ii) The Company holds all the valid and
subsisting franchises which are necessary to
authorize it to carry on the utility businesses
in which it is engaged as described in the
Prospectus;
(iii) The Purchasers' Bonds have been duly
authorized, executed, authenticated, issued and
delivered by the Company and constitute, and
the Contract Bonds have been duly authorized
and when executed and authenticated in
accordance with the Indenture and delivered to
and paid for by the purchasers pursuant to
Delayed Delivery Contracts will constitute,
valid and legally binding obligations of the
Company entitled to the benefits and security
provided by the Indenture except as the same
may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or
affecting the enforcement of creditors' rights
or the enforcement of the security provided by
the Indenture and by general principles of
equity and, as to the Company's interest in the
Iatan Generating Station, except as the same
may be limited by the terms of the Iatan
Station Ownership Agreement, dated July 31,
1978, among Kansas City Power & Light Company,
St. Joseph Light & Power Company and the
Company and of any other agreements by the
Company relating to its interest in such
Station;
<PAGE>
(iv) The Indenture has been duly authorized,
executed and delivered by the Company, has been
duly qualified under the Trust Indenture Act
and constitutes a valid and legally binding
instrument of the Company enforceable in
accordance with its terms except as the same
may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or
affecting the enforcement of creditors' rights
or the enforcement of the security provided by
the Indenture or by general principles of
equity and, as to the Company's interest in the
Iatan Generating Station, except as the same
may be limited by the terms of the Iatan
Station Ownership Agreement, dated July 31,
1978, among Kansas City Power & Light Company,
St. Joseph Light & Power Company and the
Company and of any other agreements by the
Company relating to its interest in such
Station;
(v) The Indenture constitutes a direct and
valid mortgage lien upon substantially all of
the properties and assets of the Company
specifically or generally described or referred
to in the Indenture as being subject to the
lien thereof (except such property as may have
been disposed of, or released from the lien
thereof, in accordance with the terms thereof)
and will create a similar lien upon all
properties and assets acquired by the Company
after the date hereof located in counties in
which the Indenture has been recorded and
required to be subjected to the lien of the
Indenture when acquired by the Company; the
Indenture (except as otherwise herein stated
with respect to the Supplemental Indenture) has
been duly recorded as a mortgage of real estate
or recorded or filed as a chattel mortgage in
each county or recording or filing district in
which any of the properties or assets of the
Company subject to the lien of the Indenture
are situated; the Supplemental Indenture has
been filed for record as a mortgage of real
<PAGE>
estate in Cherokee County, Kansas and in
Jasper, Lawrence, and Newton Counties, Missouri
(and specifying any other recording or filing
at the Closing Date) and, upon the Supplemental
Indenture being duly filed and recorded as a
mortgage of real estate in all other counties
in the States of Arkansas, Kansas and Missouri
in which real estate subject to the lien of the
Indenture is located and being filed as a
chattel mortgage in the office of the Secretary
of State of each of the States of Kansas,
Missouri and Oklahoma, and upon the filing of
an appropriate amendment to a financing
statement in the office of the Secretary of
State of the State of Arkansas, no further
recording or filing and, under present law, no
periodic or other re-recording or refiling of
the Indenture or any other instrument will be
required in order to preserve and protect the
lien of the Indenture either as a mortgage on
real estate or as a chattel mortgage except
that if the Company shall hereafter acquire
property in any county in which the Indenture
shall not be of record, further recording or
filing may be required, depending upon the law
of the State in which such county is located;
(vi) All taxes and recording fees required by
the laws of the States of Arkansas, Kansas,
Missouri and Oklahoma to be paid with respect
to the execution, recording or filing of the
Indenture and the issuance of the Purchased
Bonds have been paid except such fees as are
not payable until the filing for record of the
Supplemental Indenture in the offices mentioned
in the next preceding paragraph in which it has
not been filed on the Closing Date, provision
for the payment of which fees has been made by
the Company, and upon payment of such fees by
the Company no taxes or recording fees required
by the laws of the States of Arkansas, Kansas,
Missouri and Oklahoma with respect to the
execution, recording or filing of the Indenture
or the issuance of the Purchased Bonds will be
payable;
<PAGE>
(vii) The Company has good and marketable
title in fee simple to substantially all real
and fixed properties and good and marketable
title to substantially all other properties and
assets specifically or generally described or
referred to in the Indenture as being subject
to the lien thereof (except such property as
may have been disposed of, or released from the
lien thereof, in accordance with the terms
thereof), in each case free and clear of all
liens, charges and encumbrances prior to the
lien of the Indenture except permitted
encumbrances as defined in the Indenture (it
being understood that such foregoing opinion
may be based (1) on searches of available
public records performed within five business
days prior to the Closing Date and (2) upon a
certificate of the Company); and the
descriptions of all such properties and assets
contained in the granting clauses of the
Indenture are correct and adequate for the
purposes of the Indenture;
(viii) This Agreement and any Delayed
Delivery Contracts have been duly authorized,
executed and delivered by the Company;
(ix) Neither the issuance, sale and delivery of
the Purchased Bonds nor the execution, delivery
and performance by the Company of this
Agreement, any Delayed Delivery Contract, the
Supplemental Indenture or the Purchased Bonds
will conflict with, violate or result in breach
of any Missouri law or administrative
regulation or any court decree known to such
counsel applicable to the Company (it being
understood that such counsel need express no
opinion as to matters subject to the
jurisdiction of the Public Service Commission
of the State of Missouri, the Corporation
Commission of Oklahoma, the State Corporation
Commission of the State of Kansas or the
Arkansas Public Service Commission or as to the
securities or Blue Sky law of any
jurisdiction), conflict with or result in a
breach of any of the terms, conditions or
provisions of the Restated Articles of
Incorporation, as amended, or By-Laws, as
amended, of the Company or of any agreement or
instrument known to such counsel to which the
Company is a party or by which the Company is
bound or constitute a default thereunder, or
<PAGE>
result in the creation or imposition of any
lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets
of the Company (other than the lien of the
Indenture); and
(x) Relying as to materiality to a large
extent upon the statements and opinions of
representatives of the Company, such counsel
have no reason to believe that either the
Registration Statement or the Prospectus, or
any amendment or supplement thereto, as of
their respective effective or issue dates,
contained any untrue statement of material fact
or omitted to state any material fact necessary
to make the statements therein not misleading;
the descriptions in the Registration Statement
and Prospectus of contracts and other documents
are accurate and fairly present the information
therein shown; and such counsel do not know of
any legal or governmental proceedings required
to be described in the Prospectus by Item 103
of the Regulation S-K under the Act which are
not described as so required, nor of any
contracts or documents of a character required
to be described in the Registration Statement
or Prospectus pursuant to Item 11 of Form S-3
or to be filed as exhibits to the Registration
Statement pursuant to Item 601 of such
Regulation S-K which are not described and
filed as so required; it being understood that
such counsel need express no opinion as to the
financial statements or other financial or
statistical information contained in the
Registration Statement or the Prospectus.
In rendering such opinion, Spencer, Scott & Dwyer, P.C.
may rely, as to the incorporation of the Company and all
matters governed by Kansas law, upon the opinion of
Anderson, Byrd, Richeson & Flaherty referred to in
paragraph (b) above and, as to all matters covered
thereby, upon the opinion of Brydon, Swearengen & England,
Professional Corporation referred to in paragraph (d)
below.
(d) You shall have received an opinion, dated the
Closing Date, of Brydon, Swearengen & England,
Professional Corporation, counsel for the Company, to the
effect that all approvals of the Public Service Commission
of the State of Missouri, the Corporation Commission of
<PAGE>
Oklahoma and the Arkansas Public Service Commission which
are required for the issuance, sale and delivery of the
Purchased Bonds have been obtained; any conditions in such
approvals required to be satisfied prior to the issuance
of the Purchased Bonds have been duly satisfied; such
approvals are in full force and effect; and no further
approval, authorization, consent or other order of any
public board or body in the States of Missouri, Oklahoma
or Arkansas is legally required for the issuance, sale and
delivery of the Purchased Bonds or the execution, delivery
and performance by the Company of the Supplemental
Indenture, the Purchased Bonds, this Agreement or any
Delayed Delivery Contract (it being understood that such
counsel need express no opinion as to any approvals which
may be required under the securities acts or Blue Sky laws
of any jurisdiction).
(e) You shall have received an opinion, dated the
Closing Date, of Cahill Gordon & Reindel, counsel for the
Company, to the effect that:
(i) The Purchasers' Bonds have been duly
authorized, executed, authenticated, issued and
delivered by the Company and constitute, and
the Contract Bonds have been duly authorized
and when executed and authenticated in
accordance with the Indenture and delivered to
and paid for by the purchasers pursuant to
Delayed Delivery Contracts will constitute,
valid and legally binding obligations of the
Company entitled to the benefits and security
provided by the Indenture except as the same
may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or
affecting the enforcement of creditors' rights
or the enforcement of the security provided by
the Indenture or by general principles of
equity and, as to the Company's interest in the
Iatan Generating Station, except as the same
may be limited by the terms of the Iatan
Station Ownership Agreement, dated July 31,
1978, among Kansas City Power & Light Company,
St. Joseph Light & Power Company and the
Company and of any other agreements by the
Company relating to its interest in such
Station;
(ii) The Indenture has been duly authorized,
executed and delivered by the Company, has been
<PAGE>
duly qualified under the Trust Indenture Act
and constitutes a valid and legally binding
instrument of the Company enforceable in
accordance with its terms except as the same
may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or
affecting the enforcement of creditors' rights
or the enforcement of the security provided by
the Indenture or by general principles of
equity and, as to the Company's interest in the
Iatan Generating Station, except as the same
may be limited by the terms of the Iatan
Station Ownership Agreement, dated July 31,
1978, among Kansas City Power & Light Company,
St. Joseph Light & Power Company and the
Company and of any other agreements by the
Company relating to its interest in such
Station;
(iii) All approvals of the State
Corporation Commission of the State of Kansas,
the Public Service Commission of the State of
Missouri, the Corporation Commission of
Oklahoma and the Arkansas Public Service
Commission which are required for the issuance,
sale and delivery of the Purchased Bonds have
been obtained, and such counsel knows of no
approval of any other governmental regulatory
body which is legally required in connection
therewith (other than any approvals required
under the securities acts or Blue Sky laws of
any jurisdiction);
(iv) The Registration Statement has become
effective under the Act, and, to the best of
the knowledge of such counsel, no stop order
suspending the effectiveness of the
Registration Statement has been issued and no
proceedings for that purpose have been
instituted or are pending or contemplated under
the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement
thereto (except, in each case, as to the
financial statements or other financial or
statistical information included therein and
the Forms T-1 of the Trustees, as to which such
counsel need not express an opinion), as of
their respective effective or issue dates,
appeared to comply as to form in all material
respects with the requirements of Form S-3, the
Trust Indenture Act and the applicable Rules
and Regulations; and
<PAGE>
(v) This Agreement and any Delayed Delivery
Contracts have been duly authorized, executed
and delivered by the Company.
In rendering such opinion Cahill Gordon & Reindel may
rely, as to the incorporation of the Company and as to all
other matters governed by the laws of the States of
Kansas, Missouri, Arkansas and Oklahoma, and covered by
their respective opinions, upon the opinions of Anderson,
Byrd, Richeson & Flaherty; Brydon, Swearengen & England,
Professional Corporation and Spencer, Scott & Dwyer, P.C.
referred to above.
In addition, such counsel shall state that such
counsel has participated in conferences with officers and
other representatives of the Company, counsel for the
Company, representatives of the independent accountants of
the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus,
and any subsequent amendments or supplements thereto, and
related matters were discussed and, although such counsel
is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and
Prospectus, or any subsequent amendments or supplements
thereto, on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of
officers, counsel and other representatives of the
Company), no facts have come to the attention of such
counsel which lead such counsel to believe that either the
Registration Statement or the Prospectus, and any
subsequent amendments or supplements thereto, as of their
respective effective or issue dates, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(it being understood that such counsel need make no
comment with respect to the financial statements and other
financial and statistical information included in the
Registration Statement or Prospectus or any such
amendments or supplements or the Forms T-1 of the
Trustees).
<PAGE>
(f) You shall have received an opinion, dated the
Closing Date, of Thompson Coburn, counsel for the
Purchasers, to the effect that:
(i) The Purchasers' Bonds have been duly
authorized, executed, authenticated, issued and
delivered by the Company and constitute, and
the Contract Bonds have been duly authorized
and when executed and authenticated in
accordance with the Indenture and delivered to
and paid for by the purchasers pursuant to
Delayed Delivery Contracts will constitute,
valid and legally binding obligations of the
Company entitled to the benefits and security
provided by the Indenture except as the same
may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or
affecting the enforcement of creditors' rights
or the enforcement of the security provided by
the Indenture or by general principles of
equity and, as to the Company's interest in the
Iatan Generating Station, except as the same
may be limited by the terms of the Iatan
Station Ownership Agreement, dated July 31,
1978, among Kansas City Power & Light Company,
St. Joseph Light & Power Company and the
Company and of any other agreements by the
Company relating to its interest in such
Station;
(ii) The Indenture has been duly authorized,
executed and delivered by the Company, has been
duly qualified under the Trust Indenture Act
and constitutes a valid and legally binding
instrument of the Company enforceable in
accordance with its terms except as the same
may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or
affecting the enforcement of creditors' rights
or the enforcement of the security provided by
the Indenture or by general principles of
equity and, as to the Company's interest in the
Iatan Generating Station, except as the same
may be limited by the terms of the Iatan
Station Ownership Agreement, dated July 31,
1978, among Kansas City Power & Light Company,
St. Joseph Light & Power Company and the
Company and of any other agreements by the
Company relating to its interest in such
Station;
<PAGE>
(iii) All approvals of the State
Corporation Commission of the State of Kansas,
the Public Service Commission of the State of
Missouri, the Corporation Commission of
Oklahoma and the Arkansas Public Service
Commission which are required for the issuance,
sale and delivery of the Purchased Bonds have
been obtained, and such counsel knows of no
approval of any other governmental regulatory
body which is legally required in connection
therewith (other than any approvals required
under the securities acts or Blue Sky laws of
any jurisdiction);
(iv) The Registration Statement has become
effective under the Act, and, to the best of
the knowledge of such counsel, no stop order
suspending the effectiveness of the
Registration Statement has been issued and no
proceedings for that purpose have been
instituted or are pending or contemplated under
the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement
thereto (except, in each case, as to the
financial statements or other financial or
statistical information included therein and
the Forms T-1 of the Trustees, as to which such
counsel need not express an opinion), as of
their respective effective or issue dates,
appeared to comply as to form in all material
respects with the requirements of Form S-3, the
Trust Indenture Act and the applicable Rules
and Regulations; and
(v) This Agreement and any Delayed Delivery
Contracts have been duly authorized, executed
and delivered by the Company.
In rendering such opinion Thompson Coburn may rely, as to
the incorporation of the Company and as to all other
matters governed by the laws of the States of Kansas,
Arkansas and Oklahoma, and covered by their respective
opinions, upon the opinions of Anderson, Byrd, Richeson &
Flaherty; Brydon, Swearengen & England, Professional
Corporation and Spencer, Scott & Dwyer, P.C. referred to
above. Thompson Coburn need not express any opinion with
respect to the matters set forth in paragraphs (i), (ii),
(v), (vi), (vii) and (ix) of the opinion of Spencer, Scott
& Dwyer, P.C. referred to above.
<PAGE>
In addition, such counsel shall state that such
counsel has participated in conferences with officers and
other representatives of the Company, counsel for the
Company, representatives of the independent accountants of
the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus,
and any subsequent amendments or supplements thereto, and
related matters were discussed and reviewed. Such counsel
shall also state that, on the basis of such participation
(relying as to materiality to a large extent upon the
opinions of officers, counsel and other representatives of
the Company), but without independently verifying, passing
upon or assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in
the Registration Statement and Prospectus, or any
subsequent amendments or supplements thereto, no facts
have come to the attention of such counsel which lead such
counsel to believe that either the Registration Statement
or the Prospectus, and any subsequent amendments or
supplements thereto, as of their respective effective or
issue dates, contained an untrue statement of a material
fact or omitted to state a material fact required to be
stated therein or necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading (it being understood that
such counsel need make no comment with respect to the
financial statements and other financial and statistical
information included in the Registration Statement or
Prospectus or any such amendments or supplements or the
Forms T-1 of the Trustees).
(g) You shall have received a letter or letters from
the Company's independent accountant(s), dated the Closing
Date and addressed to you, confirming that they are
independent public accountants within the meaning of the
Act and the Rules and Regulations, and stating in effect
that:
(i) In their opinion, the financial statements
and schedules examined by them which are
included in the Company's most recent Annual
Report on Form 10-K, which is incorporated by
reference in the Prospectus (the "Form 10-K")
comply as to form in all material respects with
the accounting requirements of the Act and the
Rules and Regulations and the Exchange Act and
the Exchange Act Rules and Regulations;
<PAGE>
(ii) On the basis of procedures specified in
such letter(s) (but not an examination in
accordance with generally accepted auditing
standards), including reading the minutes of
meetings of the stockholders and the Board of
Directors of the Company since the end of the
year covered by the Form 10-K as set forth in
the minute books through a specified date not
more than five days prior to the Closing Date,
reading the unaudited interim financial
statements of the Company incorporated by
reference in the Prospectus and the latest
available unaudited interim financial
statements of the Company, and making inquiries
of certain officials of the Company who have
responsibility for financial and accounting
matters, nothing has come to their attention
that has caused them to believe that (1) any
unaudited financial statements incorporated by
reference in the Prospectus do not comply as to
form in all material respects with the
accounting requirements of the Act and the
Rules and Regulations and the Exchange Act and
the Exchange Act Rules and Regulations; (2) the
latest available financial statements, not
incorporated by reference in the Prospectus,
have not been prepared on a basis substantially
consistent with that of the audited financial
statements incorporated in the Prospectus;
(3) for the period from the closing date of the
latest income statement incorporated by
reference in the Prospectus to the closing date
of the latest available income statement read
by them there were any decreases, as compared
with the corresponding period of the previous
year, in operating revenues, operating income,
net income or in ratio of earnings to fixed
charges; or (4) at a specified date not more
than five business days prior to the Closing
Date, there was any change in the capital stock
or long term debt of the Company or, at such
date, there was any decrease in net assets of
the Company as compared with amounts shown in
the latest balance sheet incorporated by
reference in the Prospectus, except in all
cases for changes or decreases which the
Prospectus discloses have occurred or may
occur, or which are described in such letter;
and
<PAGE>
(iii) Certain specified procedures have
been applied to certain financial or other
statistical information (to the extent such
information was obtained from the general
accounting records of the Company) set forth or
incorporated by reference in the Prospectus and
that such procedures have not revealed any
disagreement between the financial and
statistical information so set forth or
incorporated and the underlying general
accounting records of the Company, except as
described in such letter.
(h) On the Closing Date there shall have been
furnished to you a certificate, dated the Closing Date,
from the Company, signed on behalf of the Company by the
President, or the Vice President - Finance, stating in
effect that to the best knowledge of the officer signing
such certificate and except as may be reflected in or
contemplated by the Registration Statement or stated in
such certificate (i) the representations and warranties of
the Company contained in Section 3 of this Agreement are
correct and the Company has complied with all the
agreements and satisfied all the conditions to be
performed or satisfied on its part at or prior to the
Closing Date; (ii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are pending, or, to the knowledge of the
signer thereof, are contemplated under the Act; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, as supplemented or amended, there has been no
material adverse change in the financial position or
results of operations of the Company.
(i) Trading in securities on the New York Stock
Exchange shall not have been suspended nor shall minimum
prices have been established on such Exchange; a banking
moratorium shall not have been declared by New York or
Missouri or United States authorities; and there shall not
have been an outbreak of major hostilities between the
United States and any foreign power, or any other new
insurrection or armed conflict involving the United States
which, in your reasonable judgment, makes it impracticable
to proceed with the public offering or the delivery of the
Purchasers' Bonds on the terms and in the manner
contemplated in the Prospectus.
<PAGE>
(j) If a public offering of the Purchasers' Bonds is
to be made, subsequent to the date of this Agreement and
prior to the Closing Date, no rating of the Company's
First Mortgage Bonds by any nationally recognized rating
agency shall have been lowered by such agency.
(k) The representations and warranties of the
Company herein shall be true and correct in all material
respects as of the Closing Date and all agreements herein
contained to be performed on the part of the Company at or
prior to the Closing Date shall have been so performed.
(l) You shall have been furnished such additional
certificates and other evidence as you or your counsel may
reasonably request showing fulfillment of the conditions
contained in this Section 6 and existence of the facts to
which the representations and warranties contained in
Section 3 hereof relate.
(m) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Bonds
arranged by the Purchasers have been approved by the
Company.
7. Indemnification.
(a) The Company will indemnify and hold harmless
each Purchaser and each person, if any, who controls any
Purchaser within the meaning of the Act against the losses,
claims, damages or liabilities, joint or several, to which such
Purchaser or such controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto or any
related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and will reimburse
such Purchaser and each such controlling person for any legal
or other expenses reasonably incurred by such Purchaser or such
controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made
<PAGE>
in any of such documents in reliance upon and in conformity
with written information furnished to the Company by any
Purchaser specifically for use therein. The indemnification
obligation contained in this Section 7 will be in addition to
any liability which the Company may otherwise have.
(b) Each Purchaser will indemnify and hold harmless
the Company, each of its directors, each of its officers who
has signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of the Act, against
any losses, claims, damages or liabilities to which the Company
or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or action in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement of any material fact contained in the
Registration Statement, the Prospectus or any amendment or
supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by
such Purchaser specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company
or any such director, officer or controlling person in
connection with investigating or defending any such loss,
claim, damage, liability or action. The indemnification
obligation contained in this Section 7 will be in addition to
any liability which the Purchasers may otherwise have.
In addition to any other information the Purchasers
may furnish, the Purchasers hereby furnish to the Company
specifically for use in the Prospectus the information with
respect to the offering of the Purchased Bonds and the
Purchasers set forth on the cover page and inside cover page of
the Prospectus Supplement and under "Underwriting" or similar
caption therein.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any
<PAGE>
indemnified party otherwise than under this Section 7. In case
any action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel selected by the indemnifying party and
acceptable to the indemnified party (the indemnified party
shall not unreasonably reject such counsel), and after notice
from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. The
indemnified party shall have the right to employ its counsel in
any such action, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless
(i) the employment of counsel by such indemnified party has
been authorized by the indemnifying party, (ii) the indemnified
party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense of such action
(in which case the indemnifying party shall not have the right
to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in
fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of one
counsel representing all indemnified parties shall be at the
expense of the indemnifying party. An indemnifying party shall
not be liable for any settlement of any action or claim
effected without its consent.
8. Contribution. If recovery is not available
under the foregoing indemnification provisions of Section 7 of
this Agreement, for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof
shall be entitled to contribution to liabilities and expenses,
except to the extent that contribution is not permitted under
Section 11(f) of the Act. In determining the amount of
contribution to which the respective parties are entitled,
there shall be considered the relative benefits received by
each party from the offering of the Purchased Bonds (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
<PAGE>
Purchasers agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita
allocation (even if the Purchasers were treated as one entity
for such purpose). No Purchaser or any person controlling such
Purchaser shall be obligated to make contribution hereunder
which in the aggregate exceeds the total public offering price
of the Purchasers' Bonds purchased by such Purchaser and any
Contract Bonds, less the aggregate amount of any damages which
such Purchaser and its controlling persons have otherwise been
required to pay in respect of the same claim or any
substantially similar claim.
9. Termination.
(a) This Agreement may be terminated at any time
prior to the Closing Date by the Purchasers by written notice
to the Company, if in the reasonable judgment of the Purchasers
it is impracticable to offer for sale or to enforce contracts
made by the Purchasers for the resale of the Purchasers' Bonds
by reason of (i) the Company sustaining a loss, whether or not
insured, by reason of fire, flood, accident or other calamity,
which, in the reasonable opinion of the Purchasers,
substantially affects the value of the properties of the
Company or which materially interferes with the operation of
the properties of the Company or which materially interferes
with the operation of the business of the Company, (ii) trading
in securities on the New York Stock Exchange having been
suspended or limited or minimum prices having been established
on such Exchange, (iii) a banking moratorium having been
declared by the United States, or by New York or Missouri state
authorities, or (iv) an outbreak of major hostilities between
the United States and any foreign power, or any other new
insurrection or armed conflict involving the United States
having occurred.
(b) If this Agreement shall be terminated pursuant
to Section 6 or this Section 9, or if the purchase of the
Purchasers' Bonds by the Purchasers is not consummated because
of any refusal, inability or failure on the part of the Company
to comply with any of the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company
shall be unable to perform all the obligations under this
Agreement, the Company shall not be liable to the Purchasers
for damages arising out of the transactions covered by this
Agreement, but the Company and the Purchasers shall remain
liable to the extent provided in Sections 5(a), 7(a) and 8
hereof.
10. Survival of Indemnities, Representations and
Warranties. The respective indemnities and agreements for
contribution of the Company and the Purchasers and the
<PAGE>
respective representations and warranties of the Company and
the Purchasers set forth in this Agreement will remain in full
force and effect, regardless of any investigation made by or on
behalf of the Company or the Purchasers or any of their
respective officers, directors, partners or any controlling
person, and will survive delivery of and payment for the
Purchased Bonds or termination of this Agreement.
11. Default of Purchasers. If any Purchaser or
Purchasers default in their obligations to purchase Purchasers'
Bonds hereunder and the aggregate principal amount of
Purchasers' Bonds which such defaulting Purchaser or Purchasers
agreed but failed to purchase is 10% of the principal amount of
Purchasers' Bonds or less, you may make arrangements
satisfactory to the Company for the purchase of such
Purchasers' Bonds by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing
Date, the non-defaulting Purchasers shall be obligated
severally, in proportion to their respective commitments
hereunder, to purchase the Purchasers' Bonds which such
defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal
amount of Purchasers' Bonds with respect to which such default
or defaults occur is more than the above percentage and
arrangements satisfactory to you and the Company for the
purchase of such Purchasers' Bonds by other persons are not
made within thirty-six hours after such default, this Agreement
will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in
Section 10. In the event that any Purchaser or Purchasers
default in their obligation to purchase Purchasers' Bonds
hereunder, the Company may, by prompt written notice to the
non-defaulting Purchasers, postpone the Closing Date for a
period of not more than seven full business days in order to
effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other
documents, and the Company will promptly file any amendments to
the Registration Statement or supplements to the Prospectus
which may thereby be made necessary. As used in this
Agreement, the term "Purchaser" includes any person substituted
for a Purchaser under this Section. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
12. Parties in Interest. This Agreement shall inure
to the benefit of the Company, the Purchasers, the officers,
directors and partners of such parties, each controlling person
referred to in Section 7 hereof, and their respective
successors. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation
<PAGE>
(including, without limitation, any purchaser of the
Purchasers' Bonds from a Purchaser or any subsequent holder
thereof or any purchaser of any Contract Bonds 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
Bonds from any Purchaser or any subsequent holder thereof or
any purchaser, as such purchaser, of any Contract Bonds or any
subsequent holder thereof.
This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof, and
supersedes any agreement previously entered into.
13. Notices. All communications, terminations and
notices hereunder shall be in writing and, if sent to any
Purchaser, shall be mailed, delivered or telecopied and
confirmed to it by letter to the address set forth for such
Purchaser in Schedule A to the Purchase Agreement (or such
other place as the Purchaser may specify in writing); if sent
to the Company shall be mailed, delivered or telecopied and
confirmed to the Company at 602 Joplin Street, Joplin, Missouri
64801, telecopier no. (417) 625-5155 (Attn: Vice President -
Finance) (or such other place as the Company may specify in
writing).
14. Counterparts. This Agreement may be executed in
any number of counterparts which, taken together, shall
constitute one and the same instrument.
15. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Missouri.
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
Dated: , 199
THE EMPIRE DISTRICT ELECTRIC COMPANY
602 Joplin Street
Joplin, Missouri 64801
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from The
Empire District Electric Company (the "Company"), and the
Company agrees to sell to the undersigned,
$___________________
principal amount of the Company's [state title of issue] (the
"Bonds") 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 % of the principal
amount thereof plus accrued interest and on the further terms
and conditions set forth in this contract.
The undersigned agrees to purchase such Bonds in the
principal amounts and on the delivery dates (the "Delivery
Dates") set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
________________ $_______________ ________________
________________ $_______________ ________________
________________ $_______________ ________________
Payment for the Bonds 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] at [ ]
(or at such other place as the undersigned and the Company
shall agree) at 11:00 A.M., New York City Time, on such
<PAGE>
Delivery Date upon issuance and delivery to the undersigned of
the Bonds 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.
The obligation of the Company to sell and deliver,
and of the undersigned to take delivery of and make payment
for, Bonds on each Delivery Date shall be subject to the
conditions that (1) the purchase of Bonds 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 Bonds 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 delivered to
the Purchasers such principal amount of the Purchased Bonds as
is to be sold and delivered to them. In the event that Bonds
are 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
Bonds 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 Bonds hereby agreed to be purchased
and (b) the undersigned does not contemplate selling the Bonds
which it has agreed to purchase hereunder prior to the Delivery
Date therefor.
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
<PAGE>
be governed by and construed in accordance with the laws of the
State of Missouri. 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
The Empire District Electric Company
By_________________________________
<PAGE>
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
EXHIBIT 1(c)
EMPIRE DISTRICT ELECTRIC COMPANY
PREFERRED STOCK
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
<PAGE>
THE EMPIRE DISTRICT ELECTRIC COMPANY
CUMULATIVE PREFERRED STOCK STANDARD PURCHASE PROVISIONS
From time to time, The Empire District Electric
Company, a Kansas corporation ("Company"), may enter into
purchase agreements that provide for the sale of shares of the
Company's cumulative preferred stock to the purchaser or
purchasers named therein. The standard provisions set forth
herein may be incorporated by reference in any such purchase
agreement ("Purchase Agreement"). The Purchase Agreement,
including the provisions incorporated therein by reference, is
herein sometimes referred to as "this Agreement." Unless
otherwise defined herein, terms defined in the Purchase
Agreement are used herein as therein defined.
1. Introductory. The Company proposes to issue and
sell, from time to time, cumulative preferred stock, $10.00 par
value, registered under the registration statement referred to
in Section 3(a) ("Preferred Stock"). The shares of Preferred
Stock referred to on Schedule A of the Purchase Agreement are
hereinafter referred to as the "Purchased Preferred Stock" and
the firm or firms, as the case may be, which agree to purchase
the same are hereinafter referred to as the "Purchasers" of
such Purchased Preferred Stock. The terms "you" and "your"
refer to those Purchasers (or the Purchaser) who sign the
Purchase Agreement either on behalf of themselves (or itself)
only or on behalf of the several Purchasers named in Schedule A
thereto, as the case may be.
2. Sale and Delivery of Preferred Stock. Subject
to the terms and conditions set forth in this Agreement, the
Company will deliver the Purchased Preferred Stock to you for
the account of the Purchasers, at the place set forth in the
Purchase Agreement against payment of the purchase price
therefor by wire transfer or certified or official bank check
or checks in immediately available funds or clearing house
funds payable to the order of the Company, all as set forth in
the Purchase Agreement, at the time set forth in the Purchase
Agreement or at such other time not later than seven full
business days thereafter as you and the Company determine, such
time being herein referred to as the "Closing Date." The
Company agrees to make available to you for inspection and
packaging at the place set forth in the Purchase Agreement, at
least one full business day prior to the Closing Date, the
Purchased Preferred 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
<PAGE>
in writing at least three full business days prior to the
Closing Date, or if no such request is made, registered in the
names of the several Purchasers as set forth in Schedule A to
the Purchase Agreement.
3. Representations and Warranties of the Company.
The Company represents and warrants to each Purchaser that:
(a) The registration statement referred to in the
Purchase Agreement and relating to the Preferred Stock,
including a prospectus and all documents incorporated by
reference therein, has been filed on Form S-3 with the
Securities and Exchange Commission ("Commission") and has
become effective. Such registration statement, including
all documents filed as a part thereof or incorporated
therein pursuant to Item 12 of Form S-3, is hereinafter
referred to as the "Registration Statement" and such
prospectus, as included in the Registration Statement at
the time such amendment thereto became effective and as
amended by the prospectus supplement with respect to the
offering of Purchased Preferred Stock referred to in
Section 2 and all prior amendments and supplements thereto
(other than supplements and amendments relating to
Preferred Stock which is not Purchased Preferred Stock),
including all material so incorporated by reference
therein, in the form first filed by the Company pursuant
to Rule 424(b)(2) under the Act is hereinafter referred to
as the "Prospectus."
(b) The Registration Statement and the Prospectus
conform in all respects to the requirements of the
Securities Act of 1933, as amended ("Act") and the
pertinent published rules and regulations ("Rules and
Regulations") of the Commission, and none of such
documents includes any untrue statement of a material fact
or omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to
statements or omissions in either of such documents based
upon written information furnished to the Company by any
Purchaser specifically for use therein. The documents
incorporated by reference in the Registration Statement or
the Prospectus pursuant to Item 12 of Form S-3 of the Act,
at the time they were filed with the Commission, complied
in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the pertinent published rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and
<PAGE>
any additional documents deemed to be incorporated by
reference in the Prospectus will, when they are filed with
the Commission, comply in all material respects with the
requirements of the Exchange Act and the Exchange Act
Rules and Regulations and will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances
under which they were made, not misleading.
4. Agreements of the Company. The Company agrees
with the several Purchasers that:
(a) The Company will advise you promptly of any
proposal to amend or supplement the Registration Statement
or the Prospectus with respect to any Purchased Preferred
Stock, and will furnish you a copy thereof prior to the
filing thereof with the Commission.
(b) The Company will furnish to you copies of the
registration statement relating to the Preferred Stock as
originally filed and all amendments thereto (at least one
of which will be signed and will include all exhibits
except those incorporated by reference to previous filings
with the Commission), each related prospectus, the
Prospectus, and all amendments and supplements to such
documents (except supplements relating to Preferred Stock
which is not Purchased Preferred Stock), in each case as
soon as available and in such quantities as you reasonably
request for the purposes contemplated by the Act.
(c) If at any time when a prospectus relating to the
Purchased Preferred Stock is required to be delivered
under the Act or the Rules and Regulations, any event
occurs as a result of which the Prospectus as then amended
or supplemented would include any untrue statement of a
material fact, or omit to state a material fact necessary
to make the statements therein, in light of the
circumstances under which made, not misleading, or if it
is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Rules and
Regulations, the Company will promptly notify the
Purchasers and promptly prepare and file with the
Commission an amendment or supplement to the Registration
Statement or any appropriate filing pursuant to Section 13
or 14 of the Exchange Act which will correct such
statement or omission or an amendment which will effect
such compliance, and deliver in connection therewith, such
Prospectus or amendments or supplements to the Purchasers
<PAGE>
in such quantity as may be necessary to permit compliance
with the requirements of the Act and the Rules and
Regulations, provided that the Company shall be so
obligated only so long as the Company is notified of
unsold allotments (failure by the Purchasers to so notify
the Company cancels the Company's obligation under this
Section 4(c)), and provided further that any such
Prospectus or amendment or supplement required later than
nine months from the date hereof shall be furnished at the
Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers
in taking such action as may be necessary to qualify the
Purchased Preferred Stock for offering and sale under the
securities laws of any state or jurisdiction of the United
States as the Purchasers may reasonably request and will
use its best efforts to continue such qualification in
effect so long as required for the distribution of the
Purchased Preferred Stock; provided, however, that the
Company shall not be required to qualify as a foreign
corporation, or to file a general consent to service of
process, in any such state or jurisdiction or to comply
with any other requirement deemed by the Company to be
unduly burdensome.
(e) The Company will make generally available to its
security holders as soon as practicable, but not later
than twenty months after the effective date of the
Registration Statement, an earning statement (as
contemplated by Rule 158 under the Act) covering a period
of twelve months commencing after the effective date of
the Registration Statement.
(f) For a period of three years, the Company will
furnish to you copies of any report or definitive proxy
statement which the Company shall file with the Commission
under the Exchange Act, and copies of all reports and
communications which shall be sent to stockholders
generally, at or about the time such reports and other
information are first furnished to stockholders generally.
(g) The Company will apply the net proceeds from the
offering of the Purchased Preferred Stock as set forth
under the caption "Use of Proceeds" in the Prospectus.
(h) If a public offering of the Purchased Preferred
Stock is to be made, the Company will not offer or sell
any of its other preferred stock (other than pursuant to
any employee benefit or other plan in effect on the date
of this Agreement) prior to 120 days after the Closing
Date without the consent of the Purchasers.
<PAGE>
5. Expenses. The Company and the Purchasers agree
as follows:
(a) The Company, whether or not the transactions
contemplated hereunder are consummated, will (except as
provided in Section 4(c) hereof) pay all costs and
expenses incident to the performance of its obligations
hereunder, including without limitation, all costs and
expenses in connection with (i) the preparation and filing
of the Registration Statement and Prospectus and any
supplements or amendments thereto; (ii) the preparation,
issuance and delivery to the Purchasers of the Purchased
Preferred Stock (other than transfer taxes); (iii) the
reproduction or printing and mailing in reasonable
quantities of the Registration Statement and amendments
thereto, each preliminary prospectus, the Prospectus and
any amendments or supplements thereto, this Agreement and
any Blue Sky memoranda delivered to the Purchasers; (iv)
reasonable filing fees and expenses (including legal fees
and disbursements, not in excess of $5,000) incurred in
connection with the qualification of the Purchased
Preferred Stock under the Blue Sky or securities laws of
the various states, and the preparation of Blue Sky
memoranda for the offering; (v) the fees and expenses of
the accountants and the counsel for the Company and (vi)
all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise
specifically provided for in this Section.
(b) The Purchasers will pay (i) the fees and
disbursements of their respective counsel, except as set
forth in Section 5(a) above, and (ii) their own out-of-
pocket expenditures.
6. Conditions of the Purchasers' Obligations. The
obligations of the Purchasers to purchase and pay for the
Purchased Preferred Stock shall be subject in their discretion
to the accuracy of and compliance in all material respects with
the representations and the warranties of the Company herein
contained as of the date hereof and the Closing Date, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
<PAGE>
(a) No stop order suspending the effectiveness of
the Registration Statement shall have been issued under
the Act or proceedings therefor initiated or threatened by
the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the
Closing Date, of Anderson, Byrd, Richeson & Flaherty,
counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Kansas, with power and
authority (corporate and other) to own its properties
and conduct its business as described in the
Prospectus;
(ii) The Purchased Preferred Stock has been duly
authorized, and, when issued and delivered to and
paid for by the Purchasers pursuant to this
Agreement, will be fully paid and non-assessable; and
the Preferred Stock conforms to the description
thereof contained in the Prospectus under
"Description of New Preferred Stock";
(iii) All approvals of the State Corporation
Commission of the State of Kansas which are required
for the issuance, sale and delivery of the Purchased
Preferred Stock have been obtained; any conditions in
such approvals required to be satisfied prior to the
issuance of the Purchased Preferred Stock have been
duly satisfied; such approvals are in full force and
effect; and no further approval, authorization,
consent or other order of any public board or body in
the State of Kansas is legally required for the
issuance, sale and delivery of the Purchased
Preferred Stock or the execution, delivery and
performance by the Company of this Agreement (it
being understood that such counsel need express no
opinion as to any approvals which may be required
under the securities acts or Blue Sky laws of said
state); and
(iv) This Agreement has been duly authorized,
executed and delivered by the Company.
(c) You shall have received an opinion, dated the
Closing Date, of Spencer, Scott & Dwyer, P.C., counsel for
the Company, to the effect that:
<PAGE>
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Kansas, with power and
authority (corporate and other) to own its properties
and conduct its business as described in the
Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in
the States of Arkansas, Missouri and Oklahoma, which
are the only jurisdictions (other than Kansas) in
which it owns or leases substantial properties or in
which the conduct of its business requires such
qualification;
(ii) The Company holds all the valid and
subsisting franchises which are necessary to
authorize it to carry on the utility businesses in
which it is engaged as described in the Prospectus;
(iii) Neither the issuance of the Purchased
Preferred Stock nor the execution, delivery and
performance by the Company of this Agreement will
conflict with, violate or result in the breach of any
Missouri law or administrative regulation or any
court decree known to such counsel applicable to the
Company (it being understood that such counsel need
express no opinion as to the securities or Blue Sky
law of any jurisdiction), conflict with or result in
a breach of any of the terms, conditions or
provisions of the Restated Articles of Incorporation,
as amended, or By-Laws, as amended, of the Company or
of any agreement or instrument known to such counsel
to which the Company is a party or by which the
Company is bound or constitute a default thereunder,
or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon
any of the properties or assets of the Company;
(iv) Relying as to materiality to a large extent
upon the statements and opinions of representatives
of the Company, such counsel have no reason to
believe that either the Registration Statement or the
Prospectus in the form first filed pursuant to Rule
424(b)(2) under the Act, or any amendment or
supplement thereto, as of their respective effective
or issue dates, contained any untrue statement of
material fact or omitted to state any material fact
necessary to make the statements therein not
misleading; the descriptions in the Registration
<PAGE>
Statement and Prospectus of contracts and other
documents are accurate and fairly present the
information therein shown; and such counsel do not
know of any legal or governmental proceedings
required to be described in the Prospectus by Item
103 of the Regulation S-K under the Act which are not
described as so required, nor of any contracts or
documents of a character required to be described in
the Registration Statement or Prospectus pursuant to
Item 11 of Form S-3 or to be filed as exhibits to the
Registration Statement pursuant to Item 601 of such
Regulation S-K which are not described and filed as
so required; it being understood that such counsel
need express no opinion as to the financial
statements or other financial or statistical
information contained in the Registration Statement
or the Prospectus; and
(v) This Agreement has been duly authorized,
executed and delivered by the Company.
In rendering such opinion, Spencer, Scott & Dwyer, P.C.
may rely, as to the incorporation of the Company and all
matters governed by Kansas law, upon the opinion of
Anderson, Byrd, Richeson & Flaherty referred to in
paragraph (b) above.
(d) You shall have received an opinion, dated the
Closing Date, of Brydon, Swearengen & England,
Professional Corporation, counsel for the Company, to the
effect that no approval of any governmental regulatory
authority in the State of Arkansas, Missouri or Oklahoma
is legally required for the valid authorization and
issuance of the Purchased Preferred Stock and the valid
sale thereof under this Agreement (other than any
approvals required under securities acts or Blue Sky laws
of any jurisdiction).
(e) You shall have received an opinion, dated the
Closing Date, of Cahill Gordon & Reindel, counsel for the
Company, to the effect that:
(i) The Purchased Preferred Stock has been duly
authorized and, when issued and delivered to and paid
for by the Purchasers pursuant to this Agreement,
will be fully paid and non-assessable and conforms to
the description thereof contained in the Prospectus
under "Description of New Preferred Stock";
<PAGE>
(ii) All approvals of the State Corporation
Commission of the State of Kansas which are required
for the valid authorization and issuance of the
Purchased Preferred Stock and the valid sale thereof
under this Agreement have been obtained, and such
counsel knows of no approval of any other
governmental regulatory body which is legally
required in connection therewith (other than any
approvals required under the securities acts or Blue
Sky laws of any jurisdiction);
(iii) The Registration Statement has become
effective under the Act, and, to the best of the
knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under
the Act, and the Registration Statement and the
Prospectus in the form first filed pursuant to Rule
424(b)(2) under the Act, and each amendment or
supplement thereto (except, in each case, as to the
financial statements or other financial or
statistical information included therein, as to which
such counsel need not express an opinion), as of
their respective effective or issue dates, appeared
to comply as to form in all material respects with
the requirements of Form S-3, and the applicable
Rules and Regulations; and
(iv) This Agreement has been duly authorized,
executed and delivered by the Company.
In rendering such opinion Cahill Gordon & Reindel may
rely, as to the incorporation of the Company and as to all
other matters governed by the laws of the States of
Arkansas, Kansas, Missouri and Oklahoma, and covered by
their respective opinions, upon the opinions of Anderson,
Byrd, Richeson & Flaherty, Spencer, Scott & Dwyer, P.C.
and Brydon, Swearengen & England, Professional Corporation
referred to above.
In addition, such counsel shall state that such
counsel has participated in conferences with officers and
other representatives of the Company, counsel for the
Company, representatives of the independent auditors of
the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus,
and any subsequent amendments or supplements thereto, and
related matters were discussed and, although such counsel
<PAGE>
is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and
Prospectus, or any subsequent amendments or supplements
thereto, on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of
officers, counsel and other representatives of the
Company), no facts have come to the attention of such
counsel which lead such counsel to believe that either the
Registration Statement or the Prospectus, and any
subsequent amendments or supplements thereto, as of their
respective effective or issue dates, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(it being understood that such counsel need make no
comment with respect to the financial statements and other
financial and statistical information included in the
Registration Statement or Prospectus or any such
amendments or supplements).
(f) You shall have received an opinion, dated the
Closing Date, of Thompson Coburn, counsel for the
Purchasers, to the effect that:
(i) The Purchased Preferred Stock has been duly
authorized and, when issued and delivered to and paid
for by the Purchasers pursuant to this Agreement,
will be fully paid and non-assessable and conforms to
the description thereof contained in the Prospectus
under "Description of New Preferred Stock";
(ii) All approvals of the State Corporation
Commission of the State of Kansas which are required
for the valid authorization and issuance of the
Purchased Preferred Stock and the valid sale thereof
under this Agreement have been obtained, and such
counsel knows of no approval of any other
governmental regulatory body which is legally
required in connection therewith (other than any
approvals required under the securities acts or Blue
Sky laws of any jurisdiction);
(iii) The Registration Statement has become
effective under the Act, and, to the best of the
knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under
<PAGE>
the Act, and the Registration Statement and the
Prospectus in the form first filed pursuant to Rule
424(b)(2) under the Act, and each amendment or
supplement thereto (except, in each case, as to the
financial statements or other financial or
statistical information included therein, as to which
such counsel need not express an opinion), as of
their respective effective or issue dates, appeared
to comply as to form in all material respects with
the requirements of Form S-3, and the applicable
Rules and Regulations; and
(iv) This Agreement has been duly authorized,
executed and delivered by the Company.
In rendering such opinion Thompson Coburn may rely, as to
the incorporation of the Company and as to all other
matters governed by the laws of the States of Arkansas,
Kansas and Oklahoma, and covered by their respective
opinions, upon the opinions of Anderson, Byrd, Richeson &
Flaherty and Brydon, Swearengen & England, Professional
Corporation, referred to above. Thompson Coburn need not
express any opinion with respect to the matters set forth
in paragraphs (i), (ii) and (iii) of the opinion of
Spencer, Scott & Dwyer, P.C. referred to above.
In addition, such counsel shall state that such
counsel has participated in conferences with officers and
other representatives of the Company, counsel for the
Company, representatives of the independent auditors of
the Company and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus,
and any subsequent amendments or supplements thereto, and
related matters were discussed and reviewed. Such counsel
shall also state that, on the basis of such participation
(relying as to materiality to a large extent upon the
opinions of officers, counsel and other representatives of
the Company), but without independently verifying, passing
upon or assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in
the Registration Statement and Prospectus, or any
subsequent amendments or supplements thereto, no facts
have come to the attention of such counsel which lead such
counsel to believe that either the Registration Statement
or the Prospectus, and any subsequent amendments or
supplements thereto, as of their respective effective or
issue dates, contained an untrue statement of a material
fact or omitted to state a material fact required to be
<PAGE>
stated therein or necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading (it being understood that
such counsel need make no comment with respect to the
financial statements and other financial and statistical
information included in the Registration Statement or
Prospectus or any such amendments or supplements).
(g) You shall have received from the Company's
independent accountant(s) a letter or letters, dated the
Closing Date and addressed to you, confirming that they
are independent public auditors within the meaning of the
Act and the Rules and Regulations, and covering the
following in a manner satisfactory to you:
(i) In their opinion, the financial statements
and schedules examined by them which are included in
the Company's most recent Annual Report on Form 10-K,
which is incorporated by reference in the Prospectus
(the "Form 10-K") comply as to form in all material
respects with the accounting requirements of the Act
and the Rules and Regulations and the Exchange Act
and the Exchange Act Rules and Regulations;
(ii) On the basis of procedures specified in the
letter(s) (but not an examination in accordance with
generally accepted auditing standards), including
reading the minutes of meetings of the stockholders
and the Board of Directors of the Company since the
end of the year covered by the Form 10-K as set forth
in the minute books through a specified date not more
than five business days prior to the Closing Date,
reading the unaudited interim financial statements of
the Company incorporated by reference in the
Prospectus and the latest available unaudited interim
financial statements of the Company, and making
inquiries of certain officials of the Company who
have responsibility for financial and accounting
matters, nothing has come to their attention that has
caused them to believe that (1) any unaudited
financial statements incorporated by reference in the
Prospectus do not comply as to form in all material
respects with the accounting requirements of the Act
and the Rules and Regulations and the Exchange Act
and the Exchange Act Rules and Regulations; (2) the
latest available financial statements, not
incorporated by reference in the Prospectus, have not
been prepared on a basis substantially consistent
<PAGE>
with that of the audited financial statements
incorporated in the Prospectus; (3) for the period
from the closing date of the latest income statement
incorporated by reference in the Prospectus to the
closing date of the latest available income statement
read by them there were any decreases, as compared
with the corresponding period of the previous year,
in operating revenues, operating income or net
income; or (4) at a specified date not more than five
business days prior to the Closing Date, there was
any change in the capital stock or long term debt of
the Company or, at such date, there was any decrease
in net assets of the Company as compared with amounts
shown in the latest balance sheet incorporated by
reference in the Prospectus, except in all cases for
changes or decreases which the Prospectus discloses
have occurred or may occur, or which are described in
such letter; and
(iii) Certain specified procedures have been
applied to certain financial or other statistical
information (to the extent such information was
obtained from the general accounting records of the
Company) set forth or incorporated by reference in
the Prospectus and that such procedures have not
revealed any disagreement between the financial and
statistical information so set forth or incorporated
and the underlying general accounting records of the
Company, except as described in such letters.
(h) On the Closing Date there shall have been
furnished to you a certificate, dated the Closing Date,
from the Company, signed on behalf of the Company by the
President, or the Vice President-Finance, stating in
effect that to the best knowledge of the officer signing
such certificate and except as may be reflected in or
contemplated by the Registration Statement or stated in
such certificate (i) the representations and warranties of
the Company contained in Section 3 of this Agreement are
correct and the Company has complied with all the
agreements and satisfied all the conditions to be
performed or satisfied on its part at or prior to the
Closing Date; (ii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are pending, or, to the knowledge of the
signer thereof, are contemplated under the Act; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, as supplemented or amended, there has been no
material adverse change in the financial position or
results of operations of the Company,
<PAGE>
(i) If a public offering of the Purchased Preferred
Stock is to be made, subsequent to the date of this
Agreement and prior to the Closing Date, no rating of the
Company's First Mortgage Bonds by any nationally
recognized rating agency shall have been lowered by such
agency,
(j) The representations and warranties of the
Company herein shall be true and correct in all material
respects as of the Closing Date and all agreements herein
contained to be performed on the part of the Company at or
prior to the Closing Date shall have been so performed,
(k) You shall have been furnished such additional
certificates and other evidence as you or your counsel may
reasonably request showing fulfillment of the conditions
contained in this Section 6 and existence of the facts to
which the representations and warranties contained in
Section 3 hereof relate.
7. Indemnification.
(a) The Company will indemnify and hold harmless each
Purchaser and each person, if any, who controls any Purchaser
within the meaning of the Act against the losses, claims,
damages or liabilities, joint or several, to which such
Purchaser or such controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto or any
related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and will reimburse
such Purchaser and each such controlling person for any legal
or other expenses reasonably incurred by such Purchaser or such
controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made
in any of such documents in reliance upon and in conformity
with written information furnished to the Company by any
<PAGE>
Purchaser specifically for use therein. The indemnification
obligation contained in this Section 7 will be in addition to
any liability which the Company may otherwise have.
(b) Each Purchaser will indemnify and hold harmless the
Company, each of its directors, each of its officers who has
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of the Act, against any
losses, claims, damages or liabilities to which the Company or
any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement of any material fact contained in the
Registration Statement, the Prospectus or any amendment or
supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by
such Purchaser specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company
or any such director, officer or controlling person in
connection with investigating or defending any such loss,
claim, damage, liability or action. The indemnification
obligation contained in this Section 7 will be in addition to
any liability which the Purchasers may otherwise have.
In addition to any other information the Purchasers
may furnish, the Purchasers hereby furnish to the Company
specifically for use in the Prospectus the information with
respect to the offering of the Purchased Preferred Stock and
the Purchasers set forth on the cover page and inside cover
page of the Prospectus Supplement and under "Underwriting" or
similar caption therein.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 7,
notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any action is brought against any indemnified party, and it
<PAGE>
notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel selected by the indemnifying party and
acceptable to the indemnified party (the indemnified party
shall not unreasonably reject such counsel), and after notice
from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. The
indemnified party shall have the right to employ its counsel in
any such action, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless
(i) the employment of counsel by such indemnified party has
been authorized by the indemnifying party, (ii) the indemnified
party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense of such action
(in which case the indemnifying party shall not have the right
to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in
fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of one
counsel representing all indemnified parties shall be at the
expense of the indemnifying party. An indemnifying party shall
not be liable for any settlement of any action or claim
effected without its consent.
8. Contribution. If recovery is not available
under the foregoing indemnification provisions of Section 7 of
this Agreement, for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof
shall be entitled to contribution to liabilities and expenses,
except to the extent that contribution is not permitted under
Section 11(f) of the Act. In determining the amount of
contribution to which the respective parties are entitled,
there shall be considered the relative benefits received by
each party from the offering of the Purchased Preferred Stock
(taking into account the portion of the proceeds of the
offering realized by each), the parties' relative knowledge and
access to information concerning the matter with respect to
which the claim was asserted, the opportunity to correct and
prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances. The
Company and the Purchasers agree that it would not be equitable
if the amount of such contribution were determined by pro rata
<PAGE>
or per capita allocation (even if the Purchasers were treated
as one entity for such purpose). No Purchaser or any person
controlling such Purchaser shall be obligated to make
contribution hereunder which in the aggregate exceeds the total
public offering price of the Purchased Preferred Stock
purchased by such Purchaser, less the aggregate amount of any
damages which such Purchaser and its controlling persons have
otherwise been required to pay in respect of the same claim or
any substantially similar claim.
9. Termination.
(a) This Agreement may be terminated at any time prior to
the Closing Date by the Purchasers by written notice to the
Company, if in the reasonable judgment of the Purchasers it is
impracticable to offer for sale or to enforce contracts made by
the Purchasers for the resale of the Purchased Preferred Stock
by reason of (i) the Company sustaining a loss, whether or not
insured, by reason of fire, flood, accident or other calamity,
which, in the reasonable opinion of the Purchasers,
substantially affects the value of the properties of the
Company or which materially interferes with the operation of
the properties of the Company or which materially interferes
with the operation of the business of the Company, (ii) trading
in securities on the New York Stock Exchange having been
suspended or limited, other than a temporary suspension in
trading to provide for an orderly market, or minimum prices
having been established on such Exchange, (iii) a banking
moratorium having been declared by the United States, or by New
York or Missouri state authorities, or (iv) an outbreak of
major hostilities between the United States and any foreign
power, or any other new insurrection or armed conflict
involving the United States having occurred.
(b) If this Agreement shall be terminated pursuant to
Section 6 or this Section 9, or if the purchase of the
Purchased Preferred Stock by the Purchasers is not consummated
because of any refusal, inability or failure on the part of the
Company to comply with any of the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the
Company shall be unable to perform all the obligations under
this Agreement, the Company shall not be liable to the
Purchasers for damages arising out of the transactions covered
by this Agreement, but the Company and the Purchasers shall
remain liable to the extent provided in Sections 5(a), 7(a) and
8 hereof.
<PAGE>
10. Survival of Indemnities, Representations and
Warranties. The respective indemnities and agreements for
contribution of the Company and the Purchasers and the
respective representations and warranties of the Company and
the Purchasers set forth in this Agreement will remain in full
force and effect, regardless of any investigation made by or on
behalf of the Company or the Purchasers or any of their
respective officers, directors, partners or any controlling
person, and will survive delivery of and payment for the
Purchased Preferred Stock or termination of this Agreement.
11. Default of Purchasers. If any Purchaser or
Purchasers default in their obligations to purchase Purchased
Preferred Stock hereunder and the aggregate number of shares of
Purchased Preferred Stock which such defaulting Purchaser or
Purchasers agreed but failed to purchase is equal to or less
than 10% of the total number of shares of Purchased Preferred
Stock you may make arrangements satisfactory to the Company for
the purchase of such Purchased Preferred Stock by other
persons, including any of the Purchasers, but if no such
arrangements are made by the Closing Date, the non-defaulting
Purchasers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Purchased
Preferred Stock or which such defaulting Purchasers agreed but
failed to purchase. If any Purchaser or Purchasers so default
and the aggregate amount of Purchased Preferred Stock with
respect to which such default or defaults occur is more than
the above percentage and arrangements satisfactory to you and
the Company for the purchase of such Purchased Preferred Stock
by other persons are not made within thirty-six hours after
such default, this Agreement will terminate without liability
on the part of any non-defaulting Purchaser or the Company,
except as provided in Section 10. In the event that any
Purchaser or Purchasers default in their obligation to purchase
Purchased Preferred Stock hereunder, the Company may, by prompt
written notice to the non-defaulting Purchasers, postpone the
Closing Date for a period of not more than seven full business
days in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus or in
any other documents, and the Company will promptly file any
amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made necessary. As used in
this Agreement, the term "Purchaser" includes any person
substituted for a Purchaser under this Section. Nothing herein
will relieve a defaulting Purchaser from liability for its
default.
<PAGE>
12. Parties in Interest. This Agreement shall inure
to the benefit of the Company, the Purchasers, the officers,
directors and partners of such parties, each controlling person
referred to in Section 7 hereof, and their respective
successors. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation
(including, without limitation, any purchaser of the Purchased
Preferred Stock from a Purchaser or any subsequent holder
thereof) any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall
not include any purchaser, as such purchaser, of any Purchased
Preferred Stock from any Purchaser or any subsequent holder
thereof.
This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof, and
supersedes any agreement previously entered into.
13. Notices. All communications, terminations and
notices hereunder shall be in writing and, if sent to any
Purchaser, shall be mailed, delivered or telecopied and
confirmed to it by letter to the address set forth for such
Purchaser in Schedule A to the Purchase Agreement (or such
other place as the Purchaser may specify in writing); if sent
to the Company shall be mailed, delivered or telecopied and
confirmed to the Company at 602 Joplin Street, Joplin, Missouri
64801 (Attn: Vice President - Finance), telecopier: (417) 625-
5155 (or such other place as the Company may specify in
writing).
14. Counterparts. This Agreement may be executed in
any number of counterparts which, taken together, shall
constitute one and the same instrument.
15. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Missouri.
EXHIBIT 4(t)
THE EMPIRE DISTRICT ELECTRIC COMPANY
TO
HARRIS TRUST AND SAVINGS BANK
AND
STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A.
Trustees
__________________
*A* SUPPLEMENTAL INDENTURE
Dated as of *B*
__________________
(Supplemental to Indenture dated as of September 1, 1944)
_________________
$*C*
First Mortgage Bonds, [*D*% Series due *E*]*V*
(See Accompanying Legend on Final Page)
<PAGE>
TABLE OF CONTENTS1
Page
Parties
Recitals
Form of Bond
Form of Principal Trustee's Certificate of
Authentication
Granting Clauses
Property Now Owned or Hereafter Acquired
Subject to Permitted Encumbrances, Liens on After
Acquired Property and Certain Vendor's Liens
Habendum
Grant in Trust
Defeasance
General Covenant
1This Table of Contents is not a part of the annexed supplemental Indenture
as executed.
<PAGE>
ARTICLE I
Creation and Description of First Mortgage Bonds,
[*D*% Series Due *E*]*V*.
Section 1. Title and Terms
Bonds to be dated as of
authentication date
Record Date
Restriction on transfer or exchange
Denominations
Registrable and interchangeable,
tax or government charge
No service charge on exchange or
transfer
Section 2. Issue of Bonds of the New Series
limited to $*C*. All or a portion
of Bonds of Series may be
authenticated prior to recording of
this Supplemental Indenture
ARTICLE II
Redemption of Bonds of the New Series.
Section 1. Rights of redemption
[Also redeemable under Sinking Fund ]*F*
Section 2. Manner and method of redemption
Section 3. Bondholder agrees to accept payment
upon terms of this Article
<PAGE>
[ARTICLE III
Sinking and Improvement Fund for Bonds of the New Series.
Section 1. Sinking Fund Payment Dates
Section 2. Amount of Sinking Fund Payment
Section 3. (a) Satisfaction of
Sinking Fund requirement in lieu of cash payment, by
surrender of Bonds of the New Series or by a credit on basis
of net property additions
(b) Right to anticipate
Sinking Fund requirements by surrender of Bonds or credit on
account of Bonds previously redeemed
(c) Restriction on Bonds
available for surrender or credit on Sinking Fund
Section 4. All cash paid in applicable to
retirement of Bonds of the New
Series
Section 5. Sinking Fund Redemption Price
Section 6. Description of "statement", to be
delivered to Principal Trustee
Section 7. Procedure if credit taken for net
property additions
<PAGE>
Section 8. Net property additions utilized as
a credit to become funded property
Section 9. Application of cash (Sinking Fund
Cash) to redemption of Bonds of the
New Series
Form of Notice of Redemption
Principal Trustee may, upon failure
of Company, give notice of
redemption, at expense of Company
Interest ceases to accrue on bonds
called for redemption, unless
Company fails to make payment of
redemption price
Bonds redeemed or retired under
this Article to be cancelled ]*P*
ARTICLE IV
Dividends and Similar Distributions.
Covenants in 4.11 of the Original
Indenture to continue in effect so
long as any Bonds of the New Series
are outstanding
<PAGE>
ARTICLE V
The Trustees.
The Trustees accept the trusts
created by this Supplemental
Indenture and agree to perform the
same upon terms set forth in the
Original Indenture as supplemented
ARTICLE VI
Miscellaneous Provisions.
Section 1. Provision regarding legal holidays
Section 2. Original Indenture, as supplemented
and amended, ratified and confirmed
Section 3. This Supplemental Indenture may be
executed in counterparts
Section 4. Rights conferred only on holder of
bonds, Company and Trustees
Testimonium
Signatures and Seals
Acknowledgments
<PAGE>
*A* SUPPLEMENTAL INDENTURE, dated as of *B*, between
The Empire District Electric Company, a corporation organized
and existing under the laws of the State of Kansas (hereinafter
called the "Company"), party of the first part, and Harris
Trust and Savings Bank, a corporation organized and existing
under the laws of the State of Illinois and having its
principal place of business at 111 West Monroe Street, Chicago,
Illinois, and State Street Bank and Trust Company of Missouri, N.A.,
a corporation organized and existing under the laws of the United States of
America and having its principal place of business at One Metropolitan
Square, 39th Floor, 211 North Broadway, in the City of St. Louis,
Missouri (hereinafter sometimes called respectively
the "Principal Trustee" and the "Missouri Trustee" and together
the "Trustees" and each thereof a "Trustee"), as Trustees,
parties of the second part.
Whereas the Company has heretofore executed and
delivered to the Trustees its Indenture of Mortgage and Deed of
Trust, dated as of September 1, 1944 (hereinafter sometimes
referred to as the "Original Indenture"), to secure an issue of
First Mortgage Bonds of the Company, issuable in series, and
created thereunder a series of bonds designated as First
Mortgage Bonds, 3-1/2% Series due 1969, being the initial series
of bonds issued under the Original Indenture; and
WHEREAS the Company has heretofore executed and
delivered to the Trustees *G* Supplemental Indentures
supplemental to the Original Indenture as follows:
Title Dated
First Supplemental Indenture as of June 1, 1946
Second Supplemental Indenture as of January 1, 1948
Third Supplemental Indenture as of December 1, 1950
Fourth Supplemental Indenture as of December 1, 1954
Fifth Supplemental Indenture as of June 1, 1957
Sixth Supplemental Indenture as of February 1, 1968
Seventh Supplemental Indenture as of April 1, 1969
Eighth Supplemental Indenture as of May 1, 1970
Ninth Supplemental Indenture as of July 1, 1976
Tenth Supplemental Indenture as of November 1, 1977
Eleventh Supplemental Indenture as of August 1, 1978
Twelfth Supplemental Indenture as of December 1, 1978
Thirteenth Supplemental Indenture as of November 1, 1979
Fourteenth Supplemental Indenture as of September 15, 1983
Fifteenth Supplemental Indenture as of October 1, 1988
Sixteenth Supplemental Indenture as of November 28, 1989
Seventeenth Supplemental Indenture as of December 18, 1990
Eighteenth Supplemental Indenture as of July 1, 1992
<PAGE>
Nineteenth Supplemental Indenture as of May 1, 1993
Twentieth Supplemental Indenture as of June 1, 1993
Twenty-First Supplemental Indenture as of October 1, 1993
Twenty-Second Supplemental Indenture as of November 1, 1993
Twenty-Third Supplemental Indenture as of November 1, 1993
Twenty-Fourth Supplemental Indenture as of March 1, 1994
*G*
Twenty-Fifth Supplemental Indenture as of November 1, 1994
Twenty-Sixth Supplemental Indenture as of April 1, 1995
Twenty-Seventh Supplemental Indenture as of June 1, 1995
Twenty-Eighth Supplemental Indenture as of December 1, 1996
some for the purpose of creating an additional series of bonds
and of conveying additional property of the Company, and some
for the purpose of modifying or amending provisions of the
Original Indenture (the Original Indenture, all said
Supplemental Indentures and this Supplemental Indenture are
herein collectively called the "Indenture"); and
[Whereas the Company has acquired certain additional
property hereinafter described or mentioned and, in compliance
with its covenants in the Original Indenture, desires, by this
*A* Supplemental Indenture, to evidence the subjection of such
additional property to the lien of the Indenture; and] *F*
Whereas provided by the Original Indenture, the Board
of Directors of the Company, by resolution, has authorized a
new series of bonds, to mature *E*, and to be designated as
"First Mortgage Bonds, [*D*% Series due *E*]*V*," and has
authorized provisions permitted by the Original Indenture in
respect of the bonds of said series; and
Whereas the Board of Directors of the Company has
authorized the Company to enter into this *A* Supplemental
Indenture (herein sometimes referred to as "this *A*
Supplemental Indenture" or "this Supplemental Indenture")
conveying to the Trustees and subjecting to the lien of the
Indenture the property hereinafter described or mentioned,
creating and designating the new series of bonds, and
specifying the form and provisions of the bonds of said series
provided or permitted by the Original Indenture; and
Whereas the texts of the First Mortgage Bonds, [*D*%
Series due *E*]*V*, and of the Principal Trustee's Certificate
of Authentication to be endorsed thereon are to be
substantially in the forms following, respectively:
<PAGE>
[Form of Bond]
[Face]
THE EMPIRE DISTRICT ELECTRIC COMPANY
First Mortgage Bond
[*D*% Series Due *E*]*V*
[Interest Rate: *D*%]*X*
Due *E*
No. $..........
The Empire District Electric Company, a corporation
organized and existing under the laws of the State of Kansas
(hereinafter sometimes called the "Company"), for value
received, hereby promises to pay to or registered
assigns, on *E* (unless this bond shall have been called for
previous redemption and provision made for the payment of the
redemption price thereof)*N*, Dollars ($ ) at its
office or agency in the city of Chicago, Illinois, and to pay
interest thereon at said office or agency at the rate per annum
specified in the title hereof from *R*, or from the most recent
interest payment date to which interest has been paid or duly
provided for on the bonds of this series, semi-annually on *H*
and *H* in each year, commencing on *I*, until the Company's
obligation with respect to such principal sum shall be
discharged. The principal of and the premium, if any, and the
interest on this bond shall be payable in any coin or currency
of the United States of America which at the time of payment
shall be legal tender for the payment of public and private
debts. The interest so payable on any *H* or *H* will, subject
to certain exceptions provided in the *A* Supplemental
Indenture referred to on the reverse hereof, be paid to the
person in whose name this bond is registered at the close of
business on the *J* or *J* next preceding such *H* or *H*.
Reference is made to the further provisions of this
bond set forth on the reverse hereof. Such provisions shall
for all purposes have the same effect as though fully set forth
at this place.
This bond shall not be valid or become obligatory for
any purpose until the certificate of authentication endorsed
hereon shall have been signed by Harris Trust and Savings Bank
or its successor, as a Trustee under the Indenture referred to
on the reverse hereof.
IN WITNESS WHEREOF, The Empire District Electric
Company has caused this bond to be signed in its name by the
facsimile signature of its President or a Vice President, and
<PAGE>
its corporate seal to be imprinted hereon and attested by the
facsimile signature of its Secretary or an Assistant Secretary.
Dated:
The Empire District Electric
Company,
By
President
Attest:
.............................
Secretary
[Form of Bond]
[Reverse]
This bond is one of an issue of bonds of the Company,
known as its First Mortgage Bonds, issued and to be issued in
one or more series under and equally and ratably secured
(except as any sinking, amortization, improvement or other
fund, established in accordance with the provisions of the
indenture hereinafter mentioned may afford additional security
for the bonds of any particular series) by a certain indenture
of mortgage and deed of trust, dated as of September 1, 1944,
made by the Company to Harris Trust and Savings Bank and State
Street Bank and Trust Company of Missouri, N.A., as Trustees
(hereinafter called the "Trustees"), and certain indentures
supplemental thereto, including a Third Supplemental Indenture,
a Sixth Supplemental Indenture, a Seventh Supplemental
Indenture, an Eighth Supplemental Indenture, a Fourteenth
Supplemental Indenture, a Twenty-Fourth Supplemental Indenture
and a *A* Supplemental Indenture (dated respectively as of
December 1, 1950, February 1, 1968, April 1, 1969, May 1, 1970,
September 15, 1983, March 1, 1994 and *B*) made by the Company
to the Trustees (said indenture of mortgage and deed of trust
and all indentures supplemental thereto being hereinafter
collectively called the "Indenture"), to which Indenture
reference is hereby made for a description of the property
mortgaged, the nature and extent of the security, the rights
and limitations of rights of the Company, the Trustees, and the
holders of said bonds, and the terms and conditions upon which
said bonds are secured, to all of the provisions of which
Indenture, including the provisions permitting the issuance of
<PAGE>
bonds of any series for property which, under the restrictions
and limitations therein specified, may be subject to liens
prior to the lien of the Indenture, the holder, by accepting
this bond, assents. To the extent permitted by, and as
provided in, the Indenture, the rights and obligations of the
Company and of the holders of said bonds may be changed and
modified, with the consent of the Company, by the holders of at
least 60% in aggregate principal amount of the bonds then
outstanding, such percentage being determined as provided in
the Indenture, or in the event that one or more but less than
all of the series of bonds then outstanding are affected by
such change or modification, by the holders of 60% in aggregate
principal amount of the outstanding bonds of such one or more
series so affected. Without the consent of the holder hereof
no change or modification of the rights and obligations of the
Company and of the holders of the bonds shall be made which
will extend the time of payment of the principal of or the
interest on this bond or reduce the principal amount hereof or
the rate of interest hereon or will otherwise modify the terms
of payment of such principal or interest (other than changes in
any sinking or other fund) or will permit the creation of any
lien ranking prior to or on a parity with the lien of the
Indenture on any of the mortgaged property, or will deprive any
non-assenting bondholder of a lien upon the mortgaged property
for the security of such bondholder's bonds, subject to certain
exceptions, or will, except as provided above, reduce the
percentage of bonds required for the aforesaid action under the
Indenture. This bond is one of a series of bonds designated as
the First Mortgage Bonds, [*D*% Series due *E*]*V*, of the
Company.
[This bond is subject to redemption prior to
maturity, upon not less than thirty nor more than sixty days'
prior notice, all as more fully provided in the Indenture,
(a) through the operation of the Sinking Fund provided for this
series in the Indenture, on *L* and on each *M* thereafter
prior to maturity, at the [applicable] principal amount thereof
[set forth in the table below], together with accrued interest
to the date fixed for redemption, and (b) at the option of the
Company, - on and after *R*, - at any time as a whole or from
time to time in part, at the principal amount thereof, with
accrued interest to the date fixed for redemption and the
applicable premium (expressed as a percentage of the principal
amount) set forth in the table below for the twelve-month
period beginning *M* in the appropriate year under the heading
"Optional Redemption Premium":
<PAGE>
Sinking Sinking
Optional Fund Optional Fund
Redemption Redemption Redemption Redemption
Year Premium Price Year Premium Price
*T* *U* *U* % *T* *U* *U* %
; provided, however, that this bond may not be redeemed
pursuant to clause (b) above prior to *R*, directly or
indirectly as a part of, or in anticipation of, any refunding
operation involving the incurring of indebtedness having an
interest cost to the Company (calculated in accordance with
accepted financial practice and before deduction of commissions
and expenses) of less than *D* per annum.]*O*
If this bond shall be called for redemption in whole
or in part, and payment of the redemption price shall be duly
provided by the Company as specified in the Indenture, interest
shall cease to accrue hereon (or on the portion hereof to be
redeemed) from and after the date of redemption fixed in the
notice thereof.]*N*
The principal of this bond may be declared or may
become due before the maturity hereof, on the conditions, in
the manner and at the times set forth in the Indenture, upon
the happening of a default as therein defined.
This bond is transferable by the registered owner
hereof in person or by his duly authorized attorney at the
office or agency of the Company in the city of Chicago,
Illinois, upon surrender and cancellation of this bond, and
thereupon a new bond of this series, for a like principal
amount, will be issued to the transferee in exchange therefor,
as provided in the Indenture. If this bond is transferred or
exchanged between a record date, as defined in the
aforementioned *A* Supplemental Indenture, dated as of *B*, and
the interest payment date in respect thereof, the new bond or
bonds will bear interest from such interest payment date unless
the interest payable on such date is not duly paid or provided
<PAGE>
for on such date. The Company and the Trustees and any paying
agent may deem and treat the person in whose name this bond is
registered as the absolute owner hereof for the purpose of
receiving payment as herein provided and for all other
purposes. This bond, alone or with other bonds of this series,
may in like manner be exchanged at such office or agency for
one or more new bonds of this series in authorized
denominations, of the same aggregate principal amount, all as
provided in the Indenture. Upon each such transfer or exchange
the Company may require the payment of any stamp or other tax
or governmental charge incident thereto.
No recourse under or upon any covenant or obligation
of the Indenture, or of any bonds thereby secured, or for any
claim based thereon, or otherwise in any manner in respect
thereof, shall be had against any incorporator, subscriber to
the capital stock, stockholder, officer or director, as such,
of the Company, whether former, present or future, either
directly, or indirectly through the Company or the Trustees or
either of them, by the enforcement of any subscription to
capital stock, assessment or otherwise, or by any legal or
equitable proceeding by virtue of any statute or otherwise
(including, without limiting the generality of the foregoing,
any proceeding to enforce any claimed liability of stockholders
of the Company based upon any theory of disregarding the
corporate entity of the Company or upon any theory that the
Company was acting as the agent or instrumentality of the
stockholders), any and all such liability of incorporators,
stockholders, subscribers, officers and directors, as such,
being released by the holder hereof, by the acceptance of this
bond, and being likewise waived and released by the terms of
the Indenture under which this bond is issued.
_______________________
[Form of Principal Trustee's Certificate of
Authentication]
This bond is one of the bonds, of the series
designated therein, described in the within-mentioned
Indenture.
Harris Trust and Savings Bank,
As Trustee,
By
Authorized Officer.
<PAGE>
and
Whereas the Company represents that all acts and
things necessary have happened, been done, and been performed,
to make the First Mortgage Bonds, [*D*% Series due *E*]*V*,
when duly executed by the Company and authenticated by the
Principal Trustee, and duly issued, the valid, binding and
legal obligations of the Company, and to make the Original
Indenture, the aforementioned *G* Supplemental Indentures and
this Supplemental Indenture valid and binding instruments for
the security thereof, in accordance with their terms;
Now, Therefore, This *A* Supplemental Indenture
Witnesseth: That The Empire District Electric Company, the
Company herein named, in consideration of the premises and of
One Dollar ($1.00) to it duly paid by the Trustees at or before
the ensealing and delivery of these presents, the receipt
whereof is hereby acknowledged, and in order to secure the
payment of the principal of and the interest on all bonds from
time to time outstanding under the Indenture, according to the
terms of said bonds and of the coupons attached thereto, has
granted, bargained, sold, warranted, aliened, remised,
released, conveyed, assigned, transferred, mortgaged, pledged,
set over and confirmed, and by these presents does grant
bargain, sell, warrant, alien, remise, release, convey, assign,
transfer, mortgage, pledge, set over and confirm unto Harris
Trust and Savings Bank and State Street Bank and Trust Company
of Missouri, N.A., as Trustees, and their respective successor
or successors in the trust, and its or their assigns forever,
the following property, with the same force and effect and
subject to the same reservations and exceptions, as though
specifically described in the granting clauses of the Original
Indenture, that is to say:
[INSERT HERE DESCRIPTION OF PROPERTY]
Also all other property, whether real, personal or
mixed (except as in the Original Indenture expressly excepted)
of every nature and kind and wheresoever situated now owned or
hereafter acquired by the Company;
Together with all and singular the tenements,
hereditaments and appurtenances belonging or in anywise
<PAGE>
appertaining to the aforesaid mortgaged property or any part
thereof, with the reversion and reversions, remainder and
remainders and (subject to the provisions of 8.01 of the
Original Indenture) the tolls, rents, revenues, issues,
earnings, income, products and profits thereof, and all the
estate, right, title and interest and claim whatsoever, at law
as well as in equity, which the Company now has or may
hereafter acquire in and to the aforesaid mortgaged property,
and every part and parcel thereof;
Subject, however, to permitted encumbrances as
defined in the Original Indenture and, as to any property
hereafter acquired by the Company, to any lien thereon
existing, and to any liens for unpaid portions of the purchase
money placed thereon at the time of such acquisition, and also
subject to the provisions of Article 12 of the Original
Indenture.
To Have and to Hold the same, unto the Trustees and
their and each of their respective successors and assigns
forever;
In Trust, nevertheless, upon the terms and trusts set
forth in the Indenture, so that the same shall be held
specifically by the Trustees under and subject to the terms of
the Indenture in the same manner and for the same trusts, uses
and purposes as if said properties had been specifically
contained and described in the Original Indenture;
Provided, however, and these presents are upon the
condition that, if the Company, its successors or assigns,
shall pay or cause to be paid unto the holders of the bonds the
principal and interest, and premium, if any, to become due in
respect thereof at the times and in the manner stipulated
therein and in the Indenture and shall keep, perform and
observe all and singular the covenants and promises in said
bonds and in the Indenture expressed to be kept, performed and
observed by or on the part of the Company, then the Indenture
and the estate and rights thereby granted shall cease,
determine and be void, otherwise to be and remain in full force
and effect.
And the Company, for itself and its successors, does
hereby covenant and agree to and with the Trustees, for the
benefit of those who shall hold the bonds and the coupons
appertaining thereto, or any of them, issued or to be issued
under the Indenture, as follows:
<PAGE>
ARTICLE I
CREATION AND DESCRIPTION OF FIRST MORTGAGE BONDS,
[*D*% SERIES DUE *E*]*V*.
Section 1. A new series of bonds to be issued
under and secured by the Indenture is hereby created, to be
designated as First Mortgage Bonds, [*D*% Series due *E*]*V*
(herein sometimes called the "Bonds of the New Series" or
"Bonds"). The Bonds of the New Series shall be limited to an
aggregate principal amount of *C* Dollars ($*C*), excluding any
Bonds of the New Series which may be authenticated in lieu of
or in substitution or exchange for other Bonds of the New
Series pursuant to the provisions of Article 2 or of 15.09 of
the Original Indenture. Said Bonds and the certificate of
authentication of the Principal Trustee to be endorsed upon the
Bonds shall be substantially in the forms hereinbefore recited,
respectively. Each Bond shall be dated as of the date of its
authentication and all Bonds of the New Series shall mature and
shall bear interest at the rate of *D*% per annum, payable semi-
annually on *H* and *H* in each year, commencing *I*; both
principal and interest shall be payable at the office or agency
of the Company in the city of Chicago, Illinois, and in any
coin or currency of the United States of America which at the
time of payment shall be legal tender for the payment of public
and private debts. [The Bonds shall be initially authenticated
and delivered from time to time upon delivery to the Principal
Trustee of the documents required by the Indenture, including a
resolution of the Board of Directors of the Company, or the
Executive Committee thereof specifying the principal amount of
the Bonds of the New Series to be issued on the specified date
of issuance, the numbers, denominations, date or dates,
maturity date or dates, redemption prices and interest rate or
rates of such Bonds of the New Series; provided, that no Bond
of the New Series shall mature on a date less than nine months
or more than thirty years from the date of issue and provided
further, that all Bonds of the New Series having the same date
of maturity shall be identical as to rate of interest and terms
of redemption, if redeemable.
Each Bond of the New Series shall be dated as of the
date of its authentication. Each Bond of the New Series shall
bear interest at such rate or rates per annum and have such
other terms and provisions as the Board of Directors of the
Company, or the Executive Committee thereof, may determine.
Such interest shall be payable semi-annually on *H* and *H* in
each year, commencing *I*; both principal and interest shall be
<PAGE>
payable at the office or agency of the Company in the city of
Chicago, Illinois, and in any coin or currency of the United
States of America which at the time of payment shall be legal
tender for the payment of public and private debts.
The definitive Bonds of the New Series shall be
issued in fully registered form without coupons of the
denomination of $ *Y* or any larger number that is an integral
multiple of $1,000.
Bonds of the New Series which are to be deposited
upon issuance with The Depository Trust Company or such other
depositary designated by the Board of Directors or a committee
authorized by such Board of Directors shall be issued in the
form of one or more global securities. Upon issuance, all
Bonds having the same date, maturity date, redemption
provisions and interest rates shall be represented by a single
global security.] *Z*
The holder of any Bond on any record date (as
hereinbelow defined) with respect to any interest payment date
shall be entitled to receive the interest payable on such
interest payment date notwithstanding the cancellation of such
Bond upon any exchange or transfer thereof subsequent to the
record date and prior to such interest payment date, except if
and to the extent that the Company shall default in the payment
of the interest due on such interest payment date, in which
case such defaulted interest shall be paid to the person in
whose name such Bond (or any Bond or Bonds issued upon transfer
or exchange thereof) is registered on a date fixed by the
Company, which shall be not more than fifteen and not less than
ten days before the date of payment of such defaulted interest.
The term "record date" as used in this Section with respect to
any interest payment date shall mean the close of business on
the *J* or *J*, as the case may be, next preceding such
interest payment date, whether or not such *J* or *J* shall be
a legal holiday or a day on which banking institutions in the
state of Illinois are authorized by law to remain closed.
The Company shall not be required to make any
transfer or exchange of any Bonds for a period of ten days next
preceding any selection of Bonds for redemption, nor shall it
be required to make transfers or exchanges of any bonds which
shall have been selected for redemption in whole or in part.
The Bonds of the New Series shall be issued as fully
registered Bonds only, in denominations of $1,000 and multiples
thereof.
<PAGE>
The Bonds of the New Series shall be registrable and
interchangeable at the office or agency of the Company in the
city of Chicago, Illinois, in the manner and upon the terms set
forth in 2.05 of the Original Indenture, upon payment of such
an amount as shall be sufficient to reimburse the Company for,
or to pay, any stamp or other tax or governmental charge
incident thereto.
Notwithstanding the provisions of 2.08 of the
Original Indenture, no service or other charge will be made for
any exchange or transfer of any Bond of the New Series.
Section 2. The Bonds of the New Series described
in Section 1 of this Article, in the aggregate principal amount
of *C* Dollars ($*C*), shall be executed by the Company and
delivered to the Principal Trustee and, upon compliance with
all the provisions and requirements of the Original Indenture
in respect thereof, all or any portion of the Bonds of the New
Series may, from time to time, be authenticated by the
Principal Trustee and delivered (without awaiting the filing or
recording of this Supplemental Indenture) in accordance with
the written order or orders of the Company.
ARTICLE II
REDEMPTION OF BONDS OF THE NEW SERIES.
Section 1. The Bonds of the New Series, in the
manner provided in Article 5 of the Original Indenture, shall
be redeemable at any time [on or after *R* and]*F* prior to
maturity, in whole or in part, at the option of the Company, at
the principal amount of the Bonds so to be redeemed and accrued
interest to the date fixed for redemption together with any
applicable premium as specified under the heading "Redemption
Premium" in the form of Bond set forth in this Supplemental
Indenture. [provided, however, that no Bonds of the New Series
may be so redeemed prior to *R*, directly or indirectly as a
part of, or in anticipation of, any refunding operation
involving the incurring of indebtedness having an interest cost
to the Company (calculated in accordance with accepted
financial practice and before deduction of commissions and
expenses) of less than *D*% per annum.]*O*
[The Bonds of the New Series shall also be redeemable
through the operation of the Sinking Fund therefor in the
<PAGE>
manner, to the extent and at the Sinking Fund Redemption
Price[s] provided for in Article III of this Supplemental
Indenture.]*N*
Section 2. The provisions of 5.03, 5.04 and
5.05 of the Original Indenture shall be applicable to Bonds
of the New Series. The principal amount of Bonds of the
Series registered in the name of any holder and to be redeemed
on any partial redemption shall be $1,000, or a multiple
thereof.
Section 3. The holder of each and every Bond of
the New Series issued hereunder hereby, and by accepting the
Bond, agrees to accept payment thereof prior to maturity on the
terms and conditions provided for in Articles II [and III]*N*
hereof.
ARTICLE III
SINKING AND IMPROVEMENT FUND FOR BONDS OF THE NEW SERIES.
Section 1. For the purpose of this Article, the
*L* and each *M* thereafter, to and including *R*, are called
Sinking Fund Payment Dates.
Section 2. The Company covenants and agrees that
it will on *L* create, and so long as any Bonds of the New
Series are outstanding maintain, a Sinking and Improvement Fund
for the Bonds of New Series, and that, except as in this
Article otherwise permitted, it will pay to the Principal
Trustee on or before each Sinking Fund Payment Date, so long as
any Bonds of the New Series are outstanding, for the account of
such Sinking and Improvement Fund, cash sufficient in amount to
retire *Q* principal amount of Bonds of the New Series, at the
[applicable] Sinking Fund Redemption Price provided for in
Section 5 of this Article.
Section 3. (a) The Company may satisfy all or
any part of its obligations under this Article otherwise than
by payment of cash as provided in Section 2 hereof by (i) the
delivery to the Principal Trustee of bonds of the New Series
theretofore acquired by the Company, subject to compliance with
paragraph (c) of this Section 3, and each such Bond shall be
received by the Principal Trustee in lieu of cash in an amount
equal to the [applicable] Sinking Fund Redemption Price of such
Bond or (ii) utilizing as a credit any net property additions
which might otherwise be made the basis for the authentication
and delivery of bonds under the provisions of Article 3 of the
<PAGE>
Original Indenture and which the Company elects to make the
basis of a credit under this Article. Such net property
additions shall be accepted by the Principal Trustee in lieu of
cash in an amount equal to 60% of the amount of such net
property additions.
(b) The Company shall also have the right at any
time and from time to time to anticipate payment of all or any
part of any one or more Sinking Fund payments (but not, in
respect of any particular Sinking Fund payment, after the
delivery to the Principal Trustee of the statement of the
Company required by Section 6 of this Article) and to receive a
credit on its obligations under this Article, to the extent of
the [applicable] Sinking Fund Redemption Price in respect of
(1) any Bonds of the New Series theretofore acquired
by the Company and then or theretofore delivered by it to
the Principal Trustee for cancellation, or
(2) any Bonds of the New Series previously redeemed,
or called for redemption, and no longer outstanding,
subject to compliance with paragraph (c) of this Section 3, by
delivery to the Principal Trustee of a statement of the Company
setting forth in detail the Sinking Fund payments or parts
thereof which the Company elects to anticipate, and the
principal amount of the Bonds of the New Series the retirement
of which under clauses (1) and/or (2) above is made the basis
of such anticipated payment or payments, and otherwise showing
compliance with the requirements of this Section 3.
[(c) No Bond shall be made the basis of a credit
under this Article upon any Sinking Fund payment or anticipated
payment (i) if such Bond shall have been acquired, retired,
redeemed or called for redemption by operation of the Sinking
Fund or any maintenance, improvement or other fund under the
Indenture or by the use of the proceeds of insurance on, or of
the release or other disposition of, any funded property or by
use as provided in 3.10 of the Original Indenture of any cash
deposited under 3.08 of the Original Indenture or (ii) if the
acquisition, retirement, redemption or call for redemption of
such Bond has theretofore been made the basis for the issue of
any bond or the withdrawal of cash or the taking of a credit
under any of the provisions of the Indenture.]*P*
Section 4. All cash paid by the Company to the
Principal Trustee pursuant to the provisions of this Article
shall be applied to the redemption of Bonds of the New Series
as provided in this Article.
<PAGE>
Section 5. The Sinking Fund Redemption Price
applicable to Bonds of the New Series to be retired under the
provisions of this Article shall be the [percentage of the]
principal amount thereof [set forth under the heading Sinking
Fund Redemption Price in the form of Bond set forth in this
Supplemental Indenture] together with accrued interest to the
redemption date (herein referred to as the "Sinking Fund
Redemption Price").
Section 6. The Company will at least sixty days
prior to each Sinking Fund Payment Date (except in a case where
the Sinking Fund Payment due on such date shall have been
anticipated in full pursuant to Section 3(b) of this Article)
deliver a statement of the Company to the Principal Trustee
stating (i) the aggregate principal amount of Bonds of the New
Series acquired by the Company which it intends to deliver to
the Principal Trustee on such Sinking Fund Payment Date
pursuant to Section 3(a)(i) of this Article on account of such
Sinking Fund obligation (or on account of all or any part of
the unanticipated balance thereof) and otherwise showing
compliance with said Section 3(a)(i), and (ii) the amount of
net property additions which the Company intends to use as a
credit to such Sinking Fund obligation pursuant to Section
3(a)(ii) of this Article.
Section 7. In case credit under this Article is
taken in whole or in part on the basis of net property
additions, the Company shall comply with all provisions of the
Indenture which would be applicable if such net property
additions were made the basis of an application for the
authentication of bonds as provided in 3.04 of the Original
Indenture except as hereinafter in this Section provided.
In any such case, the Company shall file with the
Principal Trustee appropriate documents evidencing compliance
with all such applicable provisions; provided, however, that in
no such case shall the Company be required to deliver to the
Principal Trustee any resolution or documents such as are
described in subdivisions (1), (2) and (6) of 3.06 of the
Original Indenture, or any opinions with respect to the
authorization of the issuance of bonds by governmental
authorities and by the Company and with respect to tax laws
applicable to the issuance of bonds, or to comply with any
earnings requirements, or, unless the Principal Trustee shall
so request, to comply with the requirements of the proviso in
subdivision (8) of 3.06 of the Original Indenture.
<PAGE>
Section 8. In case any net property additions
shall be utilized as a basis for credit under this Article, the
property additions included therein shall forthwith become
funded property (as defined in 1.07 of the Original
Indenture), and the engineer's certificate filed with the
Principal Trustee pursuant to Section 7 of this Article shall
be considered as though it had been filed pursuant to
subdivision (3) of 3.06 of the Original Indenture for the
purposes of Clause (A) of said subdivision (3); provided,
however, that any net property additions certified in such
engineer's certificate in excess of the amount utilized for
such credit may be added to, and treated as part of, the
"unapplied balance of property additions" (as defined in 1.05
of the Original Indenture) and be available for any purpose for
which the "unapplied balance of property additions" is
available under the Indenture, and for the purpose of a credit
under this Article. Any certificate executed pursuant to the
provisions of 3.06 of the Original Indenture shall give
effect to the provisions of this Section.
Section 9. On each Sinking Fund Payment Date, it
shall be the duty of the Principal Trustee to apply the cash
paid to it under this Article for the account of the Sinking
Fund (hereinafter called "Sinking Fund Cash") to the redemption
of Bonds of the New Series at the Sinking Fund Redemption
Price. Such redemption, including the selection of the Bonds
or portions thereof to be redeemed, shall be carried out in the
manner provided in Article 5 of the Original Indenture, and the
portion of any Bond of the New Series to be redeemed shall be
$1,000 or a multiple thereof.
Each notice of redemption shall state (i) the date of
redemption (which shall be the next succeeding Sinking Fund
Payment Date), (ii) the place of redemption (which shall be the
main office of the Principal Trustee in the city of Chicago,
Illinois, (iii) the Sinking Fund Redemption Price, (iv) the
numbers and principal amount of Bonds of the New Series of each
owner to be then redeemed in whole or in part and (v) that on
the date fixed for redemption interest on such Bonds of the New
Series, or portion of Bonds of the New Series to be redeemed,
shall cease.
In case any Bond of the New Series shall be redeemed
in part only, said notice shall also specify (i) the principal
amount thereof to be redeemed and (ii) that, upon the
presentation of such Bond of the New Series for partial
redemption, a new Bond or Bonds of the New Series of an
aggregate principal amount equal to the unredeemed portion of
such Bond of the New Series will be issued in lieu thereof; and
<PAGE>
in such case the Company shall execute, and the Principal
Trustee shall authenticate and deliver to or upon the written
order of the owner of any such Bond of the New Series, at the
expense of the Company, a Bond or Bonds of the New Series (but
only in authorized denominations) for the principal amount of
the unredeemed portion of such Bond of the New Series or, at
the option of the owner of such Bond, the Principal Trustee
shall, upon presentation thereof for the purpose, make a
notation thereon of the payment of the portion thereof so
called for partial redemption.
In case the Company shall fail to give to the
Principal Trustee evidence to its satisfaction that notice of
redemption as in this Article provided will be given, the
Principal Trustee may, at the expense of the Company, give such
notice with the same effect as if such notice had been given by
the Company as hereinbefore required.
Notice of redemption having been given in the manner
hereinabove provided, the Bonds of the New Series (or the
specified portions thereof) so to be redeemed shall, on the
Sinking Fund Payment Date designated in such notice, become due
and payable at the Sinking Fund Redemption Price; and from and
after such Sinking Fund Payment Date so designated, interest on
the Bonds of the New Series so called for redemption (or in the
case of a partial redemption, on the portion thereof to be
redeemed) shall cease to accrue, unless default shall be made
by the Company in the payment of the Sinking Fund Redemption
Price.
All Bonds of the New Series redeemed or retired under
the provisions of this Article shall forthwith be cancelled,
and the Principal Trustee shall note on its records the fact of
such cancellation and shall deliver the Bonds of the New Series
so cancelled to or upon the written order of the Company.]*P*
ARTICLE IV
DIVIDENDS AND SIMILAR DISTRIBUTIONS.
The Company hereby covenants that, so long as any of
the Bonds of the New Series shall remain outstanding, the
covenants and agreements of the Company set forth in 4.11 of
the Original Indenture as heretofore supplemented shall be and
remain in full force and effect and be duly observed and
complied with by the Company, notwithstanding that no First
Mortgage Bonds, 3-1/2% Series due 1969, remain outstanding.
<PAGE>
ARTICLE V
THE TRUSTEES.
The Trustees accept the trusts created by this
Supplemental Indenture upon the terms and conditions hereof and
agree to perform such trusts upon the terms and conditions set
forth in the Original Indenture as heretofore supplemented and
in this Supplemental Indenture set forth. In general, each and
every term and condition contained in Article 13 of the
Original Indenture shall apply to this Supplemental Indenture
with the same force and effect as if the same were herein set
forth in full, with such omissions, variations and
modifications thereof as may be appropriate to make the same
conform to this Supplemental Indenture.
ARTICLE VI
MISCELLANEOUS PROVISIONS.
Section 1. If the date for making any payment of
principal, interest, or premium, if any, or the last date for
performance of any act or the exercising of any right, as
provided in this Supplemental Indenture, shall be a legal
holiday or a day on which banking institutions in the city of
Chicago, Illinois, are authorized by law to remain closed, such
payment may be made or act performed or right exercised on the
next succeeding day not a legal holiday or a day on which such
banking institutions are authorized by law to remain closed,
with the same force and effect as if done on the nominal date
provided in this Supplemental Indenture, and no interest shall
accrue for the period after such nominal date.
Section 2. The Original Indenture as heretofore
and hereby supplemented and amended is in all respects ratified
and confirmed; and the Original Indenture, this Supplemental
Indenture and all other indentures supplemental to the Original
Indenture shall be read, taken and construed as one and the
same instrument. Neither the execution of this Supplemental
Indenture nor anything herein contained shall be construed to
impair the lien of the Original Indenture as heretofore
supplemented on any of the property subject thereto, and such
lien shall remain in full force and effect as security for all
bonds now outstanding or hereafter issued under the Indenture.
All terms defined in Article 1 of the Original Indenture, as
heretofore supplemented, for all purposes of this Supplemental
Indenture, shall have the meanings therein specified, unless
the context otherwise requires.
<PAGE>
Section 3. This Supplemental Indenture may be
simultaneously executed in any number of counterparts, and all
said counterparts executed and delivered, each as an original,
shall constitute but one and the same instrument
Section 4. Nothing in this Supplemental Indenture
contained, shall, or shall be construed to, confer upon any
person other than a holder of bonds issued under the Indenture,
the Company and the Trustees any right or interest to avail
himself of any benefit under any provision of the Indenture, as
heretofore supplemented and amended, or of this Supplemental
Indenture.
<PAGE>
IN WITNESS WHEREOF, The Empire District Electric
Company, party of the first part, has caused its corporate name
to be hereunto affixed and this instrument to be signed by its
President or a Vice President, and its corporate seal to be
hereunto affixed and attested by its Secretary or an Assistant
Secretary for and in its behalf; and Harris Trust and Savings
Bank and State Street Bank and Trust Company of Missouri, N.A.,
parties of the second part, have each caused its corporate name
to be hereunto affixed, and this instrument to be signed by its
President or a Vice President and its corporate seal to be
hereunto affixed and attested by its Secretary or an Assistant
Secretary for and in its behalf, all as of the day and year
first above written.
THE EMPIRE DISTRICT ELECTRIC
COMPANY
By _________________________
Name:
Title:
[Corporate Seal]
Attest:
_______________________________
Name:
Title: Secretary
Signed, sealed and delivered by
The Empire District Electric
Company in the presence of:
_______________________________
Name:
_______________________________
Name:
<PAGE>
Harris Trust and Savings Bank,
as Trustee
By___________________________
Name:
Title: Vice President
[Corporate Seal]
Attest:
_______________________________
Name:
Title: Assistant Secretary
Signed, sealed and delivered by
[
] in the presence of:
_______________________________
Name:
_______________________________
Name:
<PAGE>
State Street Bank and
Trust Company of
Missouri, N.A.
as Trustee
By_______________________
Name:
Title: Vice President
[Corporate Seal]
Attest:
_______________________________
Name:
Title: Secretary
Signed, sealed and delivered by
[
]in
the presence of:
_______________________________
Name:
_______________________________
Name:
<PAGE>
State of Missouri)
: ss.:
County of Jasper)
Be It Remembered, and I do hereby certify, that on
this day of , before me, a Notary Public in and
for the County and State aforesaid, personally appeared ,
the of The Empire District Electric Company, a
Kansas corporation and , the Secretary of
said corporation, who are both to me personally known, and both
personally known to me to be such officers and to be the
identical persons whose names are subscribed to the foregoing
instrument as such and Secretary,
respectively, and as the persons who subscribed the name and
affixed the seal of said The Empire District Electric Company,
one of the makers thereof, to the foregoing instrument as its
and Secretary, and they each acknowledged
to me that they, being thereunto duly authorized, executed the
same for the uses, purposes and consideration therein set forth
and expressed, and in the capacities therein stated, as their
free and voluntary act and deed, and as the free and voluntary
act and deed of said corporation.
And the said and , being each
duly sworn by me, severally deposed and said: that they reside
in the City of Joplin, Missouri; that they were at that time
and Secretary, of said corporation; that
they knew the corporate seal of said corporation, and that the
seal affixed to said instrument was such corporate seal, and
was thereto affixed by said Secretary, and the said
instrument was signed by said , in
pursuance of the power and authority granted them by the By-
Laws of said corporation, and by authority of the Board of
Directors thereof.
In Testimony Whereof, I have hereunto set my hand and
affixed my official and notarial seal at my office in said
County and State the day and year last above written.
My commission expires
[Notarial Seal]
______________________
Notary Public
<PAGE>
State of Illinois )
: ss.:
County of Cook )
Be It Remembered, and I do hereby certify, that on
the day of , before me, a Notary Public in and
for the County and State aforesaid, personally appeared ,
Vice President of Harris Trust and Savings Bank, an
Illinoiscorporation and Assistant Secretary of
said corporation, who are both to me personally known, and both
personally known to me to be such officers and to be the
identical persons whose names are subscribed to the foregoing
instrument as such Vice President and Assistant Secretary,
respectively, and as the persons who subscribed the name and
affixed the seal of said Harris Trust and Savings Bank one of
the makers thereof, to the foregoing instrument as its Vice
President and Assistant Secretary, and they each acknowledged
to me that they, being thereunto duly authorized, executed the
same for the uses, purposes and consideration therein set forth
and expressed, and in the capacities therein stated, as their
free and voluntary act and deed, and as the free and voluntary
act and deed of said corporation.
And the said and , being each
duly sworn by me, severally deposed and said: that they reside
at ____________________ and ___________, respectively, that
they were at that time respectively Vice President and
Assistant Secretary, of said corporation; that they knew the
corporate seal of said corporation, and that the seal affixed
to said instrument was such corporate seal, and was thereto
affixed by said Assistant Secretary, and the said instrument
was signed by said Vice President, in pursuance of the power
and authority granted them by the By-Laws of said corporation,
and by authority of the Board of Directors thereof.
In Testimony Whereof, I have hereunto set my hand and
affixed my official and notarial seal at my office in said
County and State the day and year last above written.
My commission expires
[Notarial Seal]
______________________
Notary Public
<PAGE>
State of Missouri )
: ss.:
County of )
Be It Remembered, and I do hereby certify, that on
this day of , before me, a Notary Public in and
for the County and State aforesaid, personally appeared Vice
President of State Street Bank and Trust Company of Missouri,
N.A., a corporation organized under the laws of the United
States of America, and , Secretary of said corporation,
who are both to me personally known, and both personally known
to me to be such officers and to be the identical persons whose
names are subscribed to the foregoing instrument as such Vice
President and Secretary, respectively, and as the persons who
subscribed the name and affixed the seal of said State Street
Bank and Trust Company of Missouri, N.A., one of the makers
thereof, to the foregoing instrument as its Vice President
and Secretary, and they each acknowledged to me
that they, being thereunto duly authorized, executed the same
for the uses, purposes and consideration therein set forth and
expressed, and in the capacities therein stated, as their free
and voluntary act and deed, and as the free and voluntary act
and deed of said corporation.
And the said and , being each duly
sworn by me, severally deposed and said: that they reside in
[ ], Missouri; that they were at that time
respectively Vice President and Secretary of said corporation;
that they knew the corporate seal of said corporation, and that
the seal affixed to said instrument was such corporate seal,
and was thereto affixed by said Secretary, and the said
instrument was signed by said Vice President, in pursuance of
the power and authority granted them by the By-Laws of said
corporation, and by authority of the Board of Directors
thereof.
In Testimony Whereof, I have hereunto set my hand and
affixed my official seal at my office in said County and State
the day and year last above written.
My commission expires
[Notarial Seal]
_______________________
Notary Public
<PAGE>
LEGEND
The following descriptions correspond to the dates,
amounts and other information not contained in this Form of
Supplemental Indenture, and are to be determined as appropriate
for the series of debentures created under the designed
Supplemental Indenture.
*A* Insert applicable number of the Supplemental Indenture.
*B* Insert applicable date of the Supplemental Indenture.
*C* Insert principal amount authorized by applicable
Supplemental Indenture.
*D* Insert applicable interest rate.
*E* Insert applicable maturity date of series.
*F* Bracketed information to be included or deleted based on
the provisions of the Bonds.
*G* Insert applicable information concerning preceding
Supplemental Indentures.
*H* Insert applicable interest payment dates.
*I* Insert first interest payment date.
*J* Insert applicable record dates.
*K* Insert initial applicable authentication date.
*L* Insert applicable date for the first sinking fund
redemption including year, month and day.
*M* Insert applicable annual sinking fund date, month and day.
*N* Delete or revise to reflect actual redemption provisions,
if any.
*O* Delete or revise provision to reflect actual refunding
protection, if any.
*P* Delete or revise to reflect actual sinking fund
provisions, if any.
<PAGE>
*Q* Insert applicable principal amount.
*R* Insert applicable date.
*S* Insert applicable principal amount.
*T* Insert applicable year.
*U* Insert applicable amount.
*V* If the Supplemental Indenture relates to Secured Medium-
Term Notes, replace bracketed information with "Secured
Medium-Term Notes, Series *W*".
*W* Insert applicable series designation.
*X* Bracketed information to be included if the Supplemental
Indenture relates to Secured Medium-Term Notes.
*Y* Insert applicable minimum principal amount.
*Z* Bracketed information will replace preceding sentence if
the Supplemental Indenture relates to Secured Medium-Term
Notes.
EXHIBIT 5(a)
[ANDERSON, BYRD, RICHESON & FLAHERTY LETTERHEAD]
The Empire District Electric Company
602 Joplin Street
Joplin, Missouri 64801
Ladies and Gentlemen:
We are acting as counsel for The Empire District
Electric Company, a Kansas corporation (the "Company"), in
connection with the registration under the Securities Act of
1933, as amended (the "Act"), pursuant to the Company's
Registration Statement on Form S-3 (the "Registration
Statement"), of up to $80,000,000 principal amount of shares of
the Company's Common Stock, par value $1.00 (the "New Common
Stock"), and the related Preference Stock Purchase Rights (the
"Rights") and/or shares of the Company's ____% Cumulative
Preferred Stock, par value $10.00 (the "New Preferred Stock"),
and/or one or more series of the Company's ___% First Mortgage
Bonds due _______.
We advise you that in our opinion:
1. The Company is a corporation duly organized and
validly existing under the laws of the State of Kansas.
2. When (i) the Registration Statement has become
effective under the Act, (ii) the Board of Directors of the
Company has adopted the appropriate resolutions, (iii) a
Certificate of Designation with respect to the New Preferred
Stock, in the form to be filed as an exhibit to the
Registration Statement is filed and recorded in accordance with
the Kansas General Corporation Code and (iv) the State
Corporation Commission of the State of Kansas has issued its
order authorizing the issuance and sale of the New Common Stock
and/or the New Preferred Stock, the New Common Stock and/or the
New Preferred Stock will have been duly authorized, legally
issued, fully paid and non-assessable.
<PAGE>
3. The issuance of the Rights has been validly
authorized by all necessary corporate action on the part of the
Company and, when issued in accordance with the Rights
Agreement, dated July 26, 1990 between the Company and Chemical
Bank, as Rights Agent, will be validly issued.
We hereby consent to the use of a copy of this
opinion as an exhibit to said Registration Statement. We also
consent to the use of our name and the making of the statements
with respect to our firm in the Registration Statement and the
Prospectus constituting a part thereof.
Very truly yours,
James G. Flaherty
----------------------
James G. Flaherty
EXHIBIT 5(b)
[SPENCER, SCOTT & DWYER, P.C. LETTERHEAD]
September 8, 1997
The Empire District Electric Company
602 Joplin Street
Joplin, Missouri 64801
Dear Sirs:
We refer to the proposed issue and sale of up to
$80,000,000 principal of shares of Common Stock, par value
$1.00 and/or shares of ____% Cumulative Preferred Stock, par
value $10.00 and/or ____% First Mortgage Bonds due ____________
(the "New Bonds") from time to time, in one or more series, of
The Empire District Electric Company (the "Company"), with
respect to which the Company proposes to file a Registration
Statement on Form S-3 with the Securities and Exchange
Commission under the Securities Act of 1933.
The New Bonds are to be issued under the Indenture of
Mortgage and Deed of Trust, dated as of September 1, 1944,
under which Harris Trust and Savings Bank and State Street Bank
and Trust Company of Missouri, N.A. act as Trustees, as
heretofore supplemented and amended (the "Mortgage"), and as to
be supplemented by a supplemental indenture relating to each
series of New Bonds (each a "Supplemental Indenture").
We advise you that in our opinion:
1. The Company is a corporation duly organized and
validly existing under the laws of the State of Kansas.
2. When (i) the Registration Statement has become
effective under the Securities Act of 1933, (ii) the Board of
Directors of the Company has duly adopted appropriate
resolutions, (iii) the proposed Supplemental Indenture has been
duly executed and delivered, (iv) the New Bonds have been duly
issued in accordance with the provisions of the Mortgage and
<PAGE>
the Supplemental Indenture relating thereto and sold by the
Company for cash at a price approved by the Board of Directors,
and (v) the State Corporation Commission of the State of
Kansas, the Public Service Commission of the State of Missouri,
the Corporation Commission of the State of Oklahoma, and the
Arkansas Public Service Commission shall have issued their
respective orders authorizing the issuance and sale of the New
Bonds and the mortgaging of the property of the Company in such
States to secure the New Bonds, the New Bonds will have been
duly authorized and legally issued and will constitute binding
obligations of the Company.
We hereby consent to the use of a copy of this
opinion as an exhibit to said Registration Statement. We also
consent to the use of our name and the making of the statements
with respect to our firm in the Registration Statement and the
prospectus constituting a part thereof.
Very truly yours,
SPENCER, SCOTT & DWYER, P.C.
By E.P. Dwyer, Jr.
-------------------------
E.P. Dwyer, Jr.
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement
on Form S-3 of our report dated January 16, 1997 appearing
on page 20 of The Empire District Electric Company's Annual
Report on Form 10-K for the year ended December 31, 1996.
We also consent to the reference to us under the heading
"Experts" in such Prospectus.
PRICE WATERHOUSE LLP
St. Louis, Missouri
September 8, 1997
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, an officer and/or director of THE EMPIRE
DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of
Kansas, which Company proposes to file with the Securities
and Exchange Commission a Registration Statement and
amendments thereto under the Securities Act of 1933, as
amended, with respect to the issuance by the Company of
shares of the Company's Common Stock and/or shares of the
Company's Cumulative Preferred Stock and/or of one or more
new series of First Mortgage Bonds issued under the
Company's Indenture of Mortgage and Deed of Trust dated as
of September 1, 1944, does hereby constitute and appoint
Myron W. McKinney and Robert B. Fancher, and each of them,
the true and lawful attorney-in-fact of the undersigned, in
the name, place and stead of the undersigned to sign the
name of the undersigned to said Registration Statement and
any Amendment or Post-Effective Amendment thereto, and to
cause the same to be filed with the Securities and Exchange
Commission, it being intended to give and hereby giving and
granting unto said attorneys-in-fact, and each of them, full
power and authority to do and perform any act and thing
necessary and proper to be done in the premises as fully and
to all intents and purposes as the undersigned could do if
personally present; and the undersigned hereby ratifies and
confirms all that said attorneys-in-fact, or any one of
them, shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney this 29th day of August, 1997.
G.A. Knapp
____________________________
G.A. Knapp
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, an officer and/or director of THE EMPIRE
DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of
Kansas, which Company proposes to file with the Securities
and Exchange Commission a Registration Statement and
amendments thereto under the Securities Act of 1933, as
amended, with respect to the issuance by the Company of
shares of the Company's Common Stock and/or shares of the
Company's Cumulative Preferred Stock and/or of one or more
new series of First Mortgage Bonds issued under the
Company's Indenture of Mortgage and Deed of Trust dated as
of September 1, 1944, does hereby constitute and appoint
Myron W. McKinney and Robert B. Fancher, and each of them,
the true and lawful attorney-in-fact of the undersigned, in
the name, place and stead of the undersigned to sign the
name of the undersigned to said Registration Statement and
any Amendment or Post-Effective Amendment thereto, and to
cause the same to be filed with the Securities and Exchange
Commission, it being intended to give and hereby giving and
granting unto said attorneys-in-fact, and each of them, full
power and authority to do and perform any act and thing
necessary and proper to be done in the premises as fully and
to all intents and purposes as the undersigned could do if
personally present; and the undersigned hereby ratifies and
confirms all that said attorneys-in-fact, or any one of
them, shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney this 29th day of August, 1997.
V.E. Brill
____________________________
V.E. Brill
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, an officer and/or director of THE EMPIRE
DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of
Kansas, which Company proposes to file with the Securities
and Exchange Commission a Registration Statement and
amendments thereto under the Securities Act of 1933, as
amended, with respect to the issuance by the Company of
shares of the Company's Common Stock and/or shares of the
Company's Cumulative Preferred Stock and/or of one or more
new series of First Mortgage Bonds issued under the
Company's Indenture of Mortgage and Deed of Trust dated as
of September 1, 1944, does hereby constitute and appoint
Myron W. McKinney and Robert B. Fancher, and each of them,
the true and lawful attorney-in-fact of the undersigned, in
the name, place and stead of the undersigned to sign the
name of the undersigned to said Registration Statement and
any Amendment or Post-Effective Amendment thereto, and to
cause the same to be filed with the Securities and Exchange
Commission, it being intended to give and hereby giving and
granting unto said attorneys-in-fact, and each of them, full
power and authority to do and perform any act and thing
necessary and proper to be done in the premises as fully and
to all intents and purposes as the undersigned could do if
personally present; and the undersigned hereby ratifies and
confirms all that said attorneys-in-fact, or any one of
them, shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney this 29th day of August, 1997.
M.F. Chubb Jr.
____________________________
M.F. Chubb Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, an officer and/or director of THE EMPIRE
DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of
Kansas, which Company proposes to file with the Securities
and Exchange Commission a Registration Statement and
amendments thereto under the Securities Act of 1933, as
amended, with respect to the issuance by the Company of
shares of the Company's Common Stock and/or shares of the
Company's Cumulative Preferred Stock and/or of one or more
new series of First Mortgage Bonds issued under the
Company's Indenture of Mortgage and Deed of Trust dated as
of September 1, 1944, does hereby constitute and appoint
Myron W. McKinney and Robert B. Fancher, and each of them,
the true and lawful attorney-in-fact of the undersigned, in
the name, place and stead of the undersigned to sign the
name of the undersigned to said Registration Statement and
any Amendment or Post-Effective Amendment thereto, and to
cause the same to be filed with the Securities and Exchange
Commission, it being intended to give and hereby giving and
granting unto said attorneys-in-fact, and each of them, full
power and authority to do and perform any act and thing
necessary and proper to be done in the premises as fully and
to all intents and purposes as the undersigned could do if
personally present; and the undersigned hereby ratifies and
confirms all that said attorneys-in-fact, or any one of
them, shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney this 14th day of August, 1997.
R.D. Hammons
____________________________
R.D. Hammons
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, an officer and/or director of THE EMPIRE
DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of
Kansas, which Company proposes to file with the Securities
and Exchange Commission a Registration Statement and
amendments thereto under the Securities Act of 1933, as
amended, with respect to the issuance by the Company of
shares of the Company's Common Stock and/or shares of the
Company's Cumulative Preferred Stock and/or of one or more
new series of First Mortgage Bonds issued under the
Company's Indenture of Mortgage and Deed of Trust dated as
of September 1, 1944, does hereby constitute and appoint
Myron W. McKinney and Robert B. Fancher, and each of them,
the true and lawful attorney-in-fact of the undersigned, in
the name, place and stead of the undersigned to sign the
name of the undersigned to said Registration Statement and
any Amendment or Post-Effective Amendment thereto, and to
cause the same to be filed with the Securities and Exchange
Commission, it being intended to give and hereby giving and
granting unto said attorneys-in-fact, and each of them, full
power and authority to do and perform any act and thing
necessary and proper to be done in the premises as fully and
to all intents and purposes as the undersigned could do if
personally present; and the undersigned hereby ratifies and
confirms all that said attorneys-in-fact, or any one of
them, shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney this 29th day of August, 1997.
R.C. Hartley
____________________________
R.C. Hartley
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, an officer and/or director of THE EMPIRE
DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of
Kansas, which Company proposes to file with the Securities
and Exchange Commission a Registration Statement and
amendments thereto under the Securities Act of 1933, as
amended, with respect to the issuance by the Company of
shares of the Company's Common Stock and/or shares of the
Company's Cumulative Preferred Stock and/or of one or more
new series of First Mortgage Bonds issued under the
Company's Indenture of Mortgage and Deed of Trust dated as
of September 1, 1944, does hereby constitute and appoint
Myron W. McKinney and Robert B. Fancher, and each of them,
the true and lawful attorney-in-fact of the undersigned, in
the name, place and stead of the undersigned to sign the
name of the undersigned to said Registration Statement and
any Amendment or Post-Effective Amendment thereto, and to
cause the same to be filed with the Securities and Exchange
Commission, it being intended to give and hereby giving and
granting unto said attorneys-in-fact, and each of them, full
power and authority to do and perform any act and thing
necessary and proper to be done in the premises as fully and
to all intents and purposes as the undersigned could do if
personally present; and the undersigned hereby ratifies and
confirms all that said attorneys-in-fact, or any one of
them, shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney this 29th day of August, 1997.
J.R. Herschend
____________________________
J.R. Herschend
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, an officer and/or director of THE EMPIRE
DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of
Kansas, which Company proposes to file with the Securities
and Exchange Commission a Registration Statement and
amendments thereto under the Securities Act of 1933, as
amended, with respect to the issuance by the Company of
shares of the Company's Common Stock and/or shares of the
Company's Cumulative Preferred Stock and/or of one or more
new series of First Mortgage Bonds issued under the
Company's Indenture of Mortgage and Deed of Trust dated as
of September 1, 1944, does hereby constitute and appoint
Myron W. McKinney and Robert B. Fancher, and each of them,
the true and lawful attorney-in-fact of the undersigned, in
the name, place and stead of the undersigned to sign the
name of the undersigned to said Registration Statement and
any Amendment or Post-Effective Amendment thereto, and to
cause the same to be filed with the Securities and Exchange
Commission, it being intended to give and hereby giving and
granting unto said attorneys-in-fact, and each of them, full
power and authority to do and perform any act and thing
necessary and proper to be done in the premises as fully and
to all intents and purposes as the undersigned could do if
personally present; and the undersigned hereby ratifies and
confirms all that said attorneys-in-fact, or any one of
them, shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney this 29th day of August, 1997.
F.E. Jeffries
____________________________
F.E. Jeffries
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, an officer and/or director of THE EMPIRE
DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of
Kansas, which Company proposes to file with the Securities
and Exchange Commission a Registration Statement and
amendments thereto under the Securities Act of 1933, as
amended, with respect to the issuance by the Company of
shares of the Company's Common Stock and/or shares of the
Company's Cumulative Preferred Stock and/or of one or more
new series of First Mortgage Bonds issued under the
Company's Indenture of Mortgage and Deed of Trust dated as
of September 1, 1944, does hereby constitute and appoint
Myron W. McKinney and Robert B. Fancher, and each of them,
the true and lawful attorney-in-fact of the undersigned, in
the name, place and stead of the undersigned to sign the
name of the undersigned to said Registration Statement and
any Amendment or Post-Effective Amendment thereto, and to
cause the same to be filed with the Securities and Exchange
Commission, it being intended to give and hereby giving and
granting unto said attorneys-in-fact, and each of them, full
power and authority to do and perform any act and thing
necessary and proper to be done in the premises as fully and
to all intents and purposes as the undersigned could do if
personally present; and the undersigned hereby ratifies and
confirms all that said attorneys-in-fact, or any one of
them, shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney this 14th day of August, 1997.
R.L. Lamb
____________________________
R.L. Lamb
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, an officer and/or director of THE EMPIRE
DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of
Kansas, which Company proposes to file with the Securities
and Exchange Commission a Registration Statement and
amendments thereto under the Securities Act of 1933, as
amended, with respect to the issuance by the Company of
shares of the Company's Common Stock and/or shares of the
Company's Cumulative Preferred Stock and/or of one or more
new series of First Mortgage Bonds issued under the
Company's Indenture of Mortgage and Deed of Trust dated as
of September 1, 1944, does hereby constitute and appoint
Myron W. McKinney and Robert B. Fancher, and each of them,
the true and lawful attorney-in-fact of the undersigned, in
the name, place and stead of the undersigned to sign the
name of the undersigned to said Registration Statement and
any Amendment or Post-Effective Amendment thereto, and to
cause the same to be filed with the Securities and Exchange
Commission, it being intended to give and hereby giving and
granting unto said attorneys-in-fact, and each of them, full
power and authority to do and perform any act and thing
necessary and proper to be done in the premises as fully and
to all intents and purposes as the undersigned could do if
personally present; and the undersigned hereby ratifies and
confirms all that said attorneys-in-fact, or any one of
them, shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney this 29th day of August, 1997.
R.E. Mayes
____________________________
R.E. Mayes
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the
undersigned, an officer and/or director of THE EMPIRE
DISTRICT ELECTRIC COMPANY (the "Company"), a corporation
organized and existing under the laws of the State of
Kansas, which Company proposes to file with the Securities
and Exchange Commission a Registration Statement and
amendments thereto under the Securities Act of 1933, as
amended, with respect to the issuance by the Company of
shares of the Company's Common Stock and/or shares of the
Company's Cumulative Preferred Stock and/or of one or more
new series of First Mortgage Bonds issued under the
Company's Indenture of Mortgage and Deed of Trust dated as
of September 1, 1944, does hereby constitute and appoint
Myron W. McKinney and Robert B. Fancher, and each of them,
the true and lawful attorney-in-fact of the undersigned, in
the name, place and stead of the undersigned to sign the
name of the undersigned to said Registration Statement and
any Amendment or Post-Effective Amendment thereto, and to
cause the same to be filed with the Securities and Exchange
Commission, it being intended to give and hereby giving and
granting unto said attorneys-in-fact, and each of them, full
power and authority to do and perform any act and thing
necessary and proper to be done in the premises as fully and
to all intents and purposes as the undersigned could do if
personally present; and the undersigned hereby ratifies and
confirms all that said attorneys-in-fact, or any one of
them, shall lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney this 29th day of August, 1997.
M.M. Posner
____________________________
M.M. Posner
EXHIBIT 25(a)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer
Identification No.)
111 West Monroe Street; Chicago, Illinois 60603
(Address of principal executive offices)
Frank A. Pierson, Harris Trust and Savings Bank,
111 West Monroe Street, Chicago, Illinois, 60603
312-461-2533
(Name, address and telephone number for agent for service)
EMPIRE DISTRICT ELECTRIC COMPANY
(Name of obligor)
Kansas 44-0236370
(State of Incorporation) (I.R.S. Employer
Identification No.)
602 Joplin Street
Joplin, Missouri 64801
(Address of principal executive offices)
First Mortgage Bonds, % Series due
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the
Federal Reserve System,Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the
Trustee, describe each such
affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1.A copy of the articles of association of the Trustee is now in effect
which includes the authority of the trustee to commence business and
to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between
Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc.
which constitutes the articles of association of the Trustee as now
in effect and includes the authority of the Trustee to commence
business and to exercise corporate trust powers was filed in
connection with the Registration Statement of Louisville Gas and
Electric Company, File No. 2-44295, and is incorporated herein by
reference.
2.A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Commercial Federal Corporation,
File No. 333-20711, and is incorporated herein by reference.
3.The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4.A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago, and State of Illinois, on the 28th day of August,
1997.
HARRIS TRUST AND SAVINGS BANK
By: Frank A. Pierson
--------------------
Frank A. Pierson
Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents
that reports of examinations of said trustee by Federal and State authorities
may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
HARRIS TRUST AND SAVINGS BANK
By: Frank A. Pierson
-----------------------
Frank A. Pierson
Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of March 31, 1997, as published in accordance with
a call made by the State Banking Authority and by the Federal Reserve Bank
of the Seventh Reserve District.
HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on March 31, 1997, a state banking institution organized and
operating under the banking laws of this State and a member of the Federal
Reserve System. Published in accordance with a call made by the Commissioner
of Banks and Trust Companies of the State of Illinois and by the Federal
Reserve Bank of this District.
<TABLE>
<CAPTION>
Bank's Transit Number 71000288
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin.. $1,594,951
Interest bearing balances............................ $620,847
Securities:...........................................
a. Held-to-maturity securities $0
b. Available-for-sale securities $3,674,321
Federal funds sold and securities purchased under
agreements to resell in
domestic offices of the bank and of its Edge and
Agreement
subsidiaries, and in IBF's:
Federal funds sold.................................. $447,375
Securities purchased under agreements to resell..... $0
Loans and lease financing receivables:
Loans and leases, net of unearned income............ $8,499,011
LESS: Allowance for loan and lease losses.......... $110,978
Loans and leases, net of unearned income,
allowance, and reserve
(item 4.a minus 4.b)................................ $8,388,033
Assets held in trading accounts............................ $126,309
Premises and fixed assets (including capitalized leases.... $188,993
Other real estate owned.................................... $446
Investments in unconsolidated subsidiaries and
associated companies....................................... $53
Customer's liability to this bank on acceptances
outstanding................................................ $66,859
Intangible assets.......................................... $292,918
Other assets............................................... $495,997
TOTAL ASSETS $15,897,102
3
<PAGE>
LIABILITIES
Deposits:
In domestic offices...................................... $8,252,773
Non-interest bearing................................ $3,414,150
Interest bearing.................................... $4,838,623
In foreign offices, Edge and Agreement subsidiaries,
and IBF's................................ $1,989,792
Non-interest bearing................................ $54,391
Interest bearing.................................... $1,935,401
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the
bank and of its Edge and Agreement subsidiaries, and
in IBF's:
Federal funds purchased.& securites sold under
agreements to repurchase................................... $2,896,616
Trading Liabilities 81,381
Other borrowed
money:.....................................................
....................................
a. With remaining maturity of one year or less $991,442
b. With remaining maturity of more than one year $0
Bank's liability on acceptances executed and outstanding $66,859
Subordinated notes and debentures.......................... $310,000
Other liabilities.......................................... $138,427
TOTAL LIABILITIES $14,727,290
EQUITY CAPITAL
Common stock............................................... $100,000
Surplus.................................................... $600,566
a. Undivided profits and capital reserves................. $519,518
b. Net unrealized holding gains (losses) on available-
for-sale securities ($50,272)
TOTAL EQUITY CAPITAL $1,169,812
Total liabilities, limited-life preferred stock, and $15,897,102
equity capital......................................
I, Steve Neudecker, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with
the instructions issued by the Board of Governors of the Federal Reserve
System and is true to the best of my knowledge and belief.
STEVE NEUDECKER
4/30/97
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and, to the best of
our knowledge and belief, has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and the Commissioner of Banks and Trust Companies of the State of Illinois
and is true and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
MARIBETH S. RAHE
Directors.
4
</TABLE>
EXHIBIT 25(b)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20649
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) -
STATE STREET BANK AND TRUST COMPANY OF MISSOURI, NA
(Exact name of trustee as specified in its charter)
U.S. national bank 43-1745664
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification
No.)
127 West 10th Street, Kansas City, Missouri 64105
(Address of principal executive offices) (Zip
Code)
Susan James, Vice President
State Street Bank and Trust Company of Missouri, N.A.
211 North Broadway, Suite 3900
St. Louis, Missouri 63102
(Name, address and telephone number of agent for service)
THE EMPIRE DISTRICT ELECTRIC COMPANY
(Exact name of obligor as specified in its charter)
Kansas 44-0236370
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
602 Joplin Street
Joplin, Missouri 64801
(Address of principal executive offices) (Zip Code)
__________________________
First Mortgage Bonds __% Series __ Due _____
(Title of indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following Information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject
Comptroller of the Currency of the United States,
Washington, D.C.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe
each such affiliation.
The obligor is not an affiliate of the trustee or of its
parent, State Street Bank and Trust Company. (See note
on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the articles of association of the trustee
as now In effect.
A copy of the articles of association of the Trustee,
as now in effect, is attached hereto as Exhibit 1 and made
a part hereof.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the articles of
association.
A copy of the certificate of the Comptroller of the
Currency authorizing the trustee to commence the business of
banking as a national banking association is attached hereto as
Exhibit 2 and made a part hereof.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in paragraph (1) or (2), above.
A copy of the certificate of the Comptroller of the
Currency dated September 15,1995 authorizing the trustee to
excersise corporate trust powers is attached hereto as
Exhibit 3 and made a part hereof.
4. A copy of the existing by-laws of the trustee, or
instruments corresponding thereto.
A copy of the existing amended and restated by-laws of
the trustee is attached hereto as Exhibit 4.
1
<PAGE>
5. A copy of each indenture referred to in Item 4. if
the obligor is in default.
Not applicable.
6. The consents of United States institutional trustees
required by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b)
of the Act is annexed hereto as Exhibit 6 and made a
part hereof.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements of
its supervising or examining authority.
A copy of the latest report of condition of the
trustee published pursuant to law or the requirements of
its supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility and
Qualification which relates to matters peculiarly within the
knowledge of the obligor or any underwriter for the obligor, the
trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such
information.
The answer furnished to Item 2. of this statement will be
amended, if necessary, to reflect any facts which differ from
those stated and which would have been required to be stated if
known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, State Street Bank and Trust
Company of Missouri N. A., a national banking association
existing under the laws of the United States of America, has
duly caused this statement of eligibility and qualification to
be signed on its behalf by the undersigned, thereunto duly
authorized, all In the City of St. Louis and the State of
Missouri, on the 3rd day of September, 1997.
STATE STREET BANK AND TRUST
COMPANY OF MISSOURI, N.A.
By: /s/Brian P. Krippner
------------------------
Brian P. Krippner
Vice President
2
<PAGE>
EXHIBIT 1
ARTICLES OF ASSOCIATION
OF
STATE STREET BANK AND TRUST COMPANY OF MISSOURI,
NATIONAL ASSOCIATION
Filed
Comptroller of The Currency
Northeastern District
Date 5/3/95
For the purpose of organizing an Association to carry on
the business of a limited purpose trust company under the laws
of the United States, the undersigned do enter into the
following Articles of Association:
FIRST. The title of this Association shall be State
Street Bank and Trust Company of Missouri, National Association.
SECOND. The Main Office of the Association shall be in
the City of Kansas City, County of Jackson, State of Missouri.
The business of the Association will be limited to the
operations of a national trust company and to support activities
incidental thereto. The Association will not expand or alter
its business beyond that stated in this Article Second without
the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall
consist of not less than five nor more than twenty-five
shareholders, the exact number to be fixed and determined from
time to time by resolution of a majority of the full Board of
Directors or by resolution of the shareholders at any annual or
special meeting thereof. Each Director, during the full term of
his or her directorship, shall own a minimum of $1,000 aggregate
par value of stock of this Association or a minimum par, market
value or equity interest of $1,000 of stock in the bank holding
company controlling this Association.
Any vacancy in the Board of Directors may be filled by
action of the Board of Directors; provided, however, that a
majority of the full Board of Directors may not increase the
number of Directors to a number which: (1) exceeds by more than
two the number of Directors last elected by shareholders where
the number was 15 or less; and (2) exceeds by more than four the
number of Directors last elected by shareholders where the
number was 16 or more, but in no event shall the number of
directors exceed 25.
Terms of Directors, including Directors selected to fill
vacancies, shall expire at the next regular meeting of
shareholders at which Directors are elected, unless the
Directors resign or are removed from office. Despite the
expiration of a Director's term, the Director shall continue to
serve until his or her successor is elected and qualifies or
until there is a decrease in the number of Directors and his or
her position is eliminated.
<PAGE>
Filed
Comptroller of The Currency
Northeastern District
Date 5/3/95
FOURTH. There shall be an annual meeting of the
shareholders to elect Directors and transact whatever other
business may be brought before the meeting. It shall be held at
the main office or any other convenient place as the Board of
Directors may designate, on the day of each year specified
therefore in the By-laws, but if no election is held on that
day, it may be held on any subsequent day according to such
lawful rules as may be prescribed by the Board of Directors.
Nominations for election to the Board of Directors may be
made by the Board of Directors or by any shareholder of any
outstanding class of capital stock of this Association entitled
to vote for election of Directors. Nominations other than those
made by or on behalf of the existing management shall be made in
writing and be delivered or mailed to the president of this
Association and to the Comptroller of the Currency, Washington,
D.C., not less than 14 days nor more than 50 days prior to any
meeting of shareholders called for the election of Directors;
provided, however, that if less than 21 days, notice of the
meeting is given to the shareholders, such nominations shall be
mailed or delivered to the president of this Association and to
the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the
notice of meeting was mailed. Such notification shall contain
the following information to the extent known to the notifying
shareholder: the name and address of each proposed nominee; the
principal occupation of each proposed nominee; the total number
of shares of capital stock of this Association that will be
voted for each proposed nominee; the name and residence address
of the notifying shareholder; and the number of shares of
capital stock of this Association owned by the notifying
shareholder. Nominations not made in accordance herewith may, in
his or her discretion, be disregarded by the chairperson of the
meeting, and upon his or her instructions, the vote tellers may
disregard all votes cast for each such nominee.
FIFTH. The authorized amount of capital stock of this
Association shall be 1,000,000 shares of common stock of the par
value of one dollar ($1) each; but said capital stock may be
increased or decreased from time to time, in accordance with the
provisions of the laws of the United States.
No holder of shares of the capital stock of any class of
this Association shall have any preemptive or preferential right
of subscription to any shares of any class of stock of this
Association, whether now or hereafter authorized, or to any
obligations convertible into stock of this Association, issued,
or sold, nor any right of subscription to any thereof other than
such, if any, as the Board of Directors, in its discretion may
from time to time determine and at such price as the Board of
Directors may from time to time fix.
Transfers of the Association's capital stock are subject to
the prior approval of a federal depository institution
regulatory agency. If no other agency approval is required, the
Comptroller
<PAGE>
Filed
Comptroller of The Currency
Northeastern District
Date 5/3/95
of the Currency's approval shall be obtained prior to the
transfers. In such cases where the Comptroller of the Currency
approval is required, the Comptroller of the Currency will apply
the definitions and standards set forth in the Change in Bank
Control Act and the Comptroller of the Currency's implementing
regulation (12 U.S.C. 1817(j) and 12 C.F.R. 5.50) to ownership
changes in the Association.
This Association, at any time and from time to time, may
authorize and issue debt obligations, whether or not
subordinated, without the approval of the shareholders.
SIXTH. The Board of Directors shall appoint one of its
members President of this Association, who shall be Chairperson
of the Board, unless the Board appoints another director to be
the Chairperson. The Board of Directors shall have the power to
appoint one or more Vice Presidents; and to appoint a Cashier
and such other officers and employees as may be required to
transact the business of this Association.
The Board of Directors shall have the power to define the
duties of the officers and employees of this Association; to fix
the salaries to be paid to the officers and employees; to
dismiss officers and employees; to require bonds from officers
and employees and to fix the penalty thereof; to regulate the
manner in which any increase of the capital of this Association
shall be made; to manage and administer the business and affairs
of this Association; to make all By-laws that it may be lawful
for the Board of Directors to make; and generally to do and
perform all acts that it may be legal for a Board of Directors
to do and perform.
SEVENTH. The Board of Directors shall have the power to
change the location of the main office to any other place within
the limits of the City of Kansas City, without the approval of
the shareholders, and shall have the power to establish or
change the location of any branch or branches of this
Association to any other location, without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall
continue until terminated in accordance with the laws of the
United States.
NINTH. The Board of Directors of this Association, or any
shareholder owning, in the aggregate, not less than ten percent
of the stock of this Association, may call a special meeting of
shareholders at any time. Unless otherwise provided by the laws
of the United States, a notice of the time, place, and purpose
of every annual and special meeting of the shareholders shall be
given by first-class mail, postage prepaid, mailed at least ten
days prior to the date of such meeting to each shareholder of
record at his address as shown upon the books of this
Association.
<PAGE>
Filed
Comptroller of The Currency
Northeastern District
Date 5/3/95
TENTH. This Association shall to the fullest extent
legally permissible indemnify each person who is or was a
director, officer, employee or other agent of this Association
and each person who is or was serving at the request of this
Association as a director, trustee, officer, employee or other
agent of another organization or of any partnership, joint
venture, trust, employee benefit plan or other enterprise or
organization against all liabilities, costs and expenses,
including but not limited to amounts paid in satisfaction of
judgments, in settlement or as fines and penalties, and counsel
fees and disbursements, reasonably incurred by him in connection
with the defense or disposition of or otherwise in connection
with or resulting from any action, suit or other proceeding,
whether civil, criminal, administrative or investigative, before
any court or administrative or legislative or investigative body
in which he may be or may have been involved as a party or
otherwise or with which he may be or may have been threatened,
while in office or thereafter, by reason of his being or having
been such a director, officer, employee, agent or trustee, or by
reason of any action taken or not taken in any such capacity,
except with respect to any matter as to which he shall have been
finally adjudicated by a court of competent jurisdiction not to
have acted in good faith in the reasonable belief that his
action was in the best interests of the corporation (any person
serving another organization in one or more of the indicated
capacities at the request of this Association who shall not have
been adjudicated in any proceeding not to have acted in good
faith in the reasonable belief that his action was in the best
interest of such other organization shall be deemed so to have
acted in good faith with respect to the National Trust Company)
or to the extent that such matter relates to service with
respect to an employee benefit plan, in the best interest of the
participants or beneficiaries of such employee benefit plan.
Expenses, including but not limited to counsel fees and
disbursements, so incurred by any such person in defending any
such action, suit or proceeding, shall be paid from time to time
by this Association in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or
on behalf of the person indemnified to repay the amounts so paid
if it shall ultimately be determined that indemnification of
such expenses is not authorized hereunder.
As to any matter disposed of by settlement by any such
person, pursuant to a consent decree or otherwise, no such
indemnification either for the amount of such settlement or for
any other expenses shall be provided unless such settlement
shall be approved as in
the best interests of the National Trust Company, after notice
that it involves such indemnification, (a) by vote of a majority
of the disinterested directors then in office (even though the
disinterested directors be less than a quorum), or (b) by any
disinterested person or persons to whom the question may be
referred by vote of a majority of such disinterested directors,
or (c) by vote of the holders of
a majority of the outstanding stock at the time entitled to vote
for directors, voting as a single class, exclusive of any stock
<PAGE>
Filed
Comptroller of The Currency
Northeastern District
Date 5/3/95
owned by any interested person, or (d) by any disinterested
person or persons to whom the question may be referred by vote
of the holders of a majority of such stock. No such approval
shall prevent the recovery from any such director, officer,
employee, agent or trustee of any amounts paid to him or on his
behalf as indemnification in accordance with the preceding
sentence if such person is subsequently adjudicated by a court
of competent jurisdiction not to have acted in good faith in the
reasonable belief that his action was in the best interests of
this Association. The right of indemnification hereby provided
shall not be exclusive of or affect any other rights to which
any director, officer, employee, agent or trustee may be
entitled or which may lawfully be granted to him. As used
herein, the terms "director", "officer", "employee", "agent"
and "trustee" include their respective executors, administrators
and other legal representatives, an "interested" person is one
against whom the action, suit or other proceeding in question or
another action, suit or other proceeding on the same or similar
grounds is then or had been pending or threatened, and a
"disinterested" person is a person against whom no such action,
suit or other proceeding is then or had been pending or
threatened. By action of the board of directors,
notwithstanding any interest of the directors in such action,
this Association may purchase and maintain insurance, in such
amounts as the board of directors may from time to time deem
appropriate, on behalf of any person who is or was a director,
officer, employee or other agent of this Association, or is or
was serving at the request of this Association as a director,
trustee, officer, employee or other agent of another
organization or of any partnership, joint venture, trust,
employee benefit plan or other enterprise or organization
against any liability incurred by him in any such capacity, or
arising out of his status as such, whether or not this
Association would have the power to indemnify him against such
liability.
Nothing contained in this Article Tenth shall be construed
to (i) allow the indemnification of or insurance coverage for a
director, trustee, officer, employee or agent of this
Association against expenses, penalties or other payments
incurred in an administrative action instituted by an
appropriate bank regulatory agency which results in a final
order assessing civil money penalties or requires the payment of
money to the Association, or (ii) exceed the provisions of
Massachusetts General Laws, chapter 156B, section 67, as in
effect from time to time.
ELEVENTH. These Articles of Association may be amended at
any regular or special meeting of the shareholders by the
affirmative vote of the holders of a majority of the stock of
this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote
of the holders of such greater amount.
TWELFTH. This Association may be a partner in any
business or enterprise which this Association would have power
to conduct by itself.
<PAGE>
Filed
Comptroller of The Currency
Northeastern District
Date 5/3/95
IN WITNESS WHEREOF, we have hereunto set our hands this
27th day of April, 1995.
/s/ Marshall N. Carter
--------------------------
Marshall N. Carter
/s/ David A. Spina
--------------------------
David A. Spina
/s/ A. Edward Allinson
--------------------------
A. Edward Allinson
/s/ Ronald E. Logue
--------------------------
Ronald E. Logue
/s/ John R. Towers
---------------------------
John R. Towers
<PAGE>
EXHIBIT 2
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT OF THE UNITED STATES
WASHINGTON, D.C.
Whereas, satisfactory evidence has been presented to the
Comptroller of the Currency that "State Street Bank and Trust
Company of Missouri, National Association" located in Kansas
City, State of Missouri, has complied with all provisions of the
statutes of the United States required to be complied with
before being authorized to commence the business of banking as a
National Banking Association;
Now, therefore, I hereby certify that the above-named
association is authorized to commence the business of banking as
a National Banking Association.
In testimony whereof, witness my signature and seal
of office this fifteenth day of September, 1995.
Charter No. 22874 David A. Bomgarrs
District Administrator
Comptroller of the Currency
<PAGE>
EXHIBIT 3
Comptroller of the Currency
Administrator of National Banks
Northeastern District
1114 Avenue of the Americas, Suite 3900
New York, New York 10036
TRUST PERMIT
WHEREAS, State Street Bank and Trust Company of Missouri,
National Association, located in Kansas City, state of
Missouri, being a National Banking Association, organized
under the statutes of the United States, has made
application for authority to act as fiduciary;
AND WHEREAS, applicable provisions of the statutes of the
United States authorize the grant of such authority;
NOW THEREFORE, I hereby certify that the said association is
authorized to act in all fiduciary capacities permitted by
such statutes.
IN TESTIMONY WHEREOF, witness my signature and seal of Office
this 15th day of September, 1995.
CHARTER NO.22874
/s/ David A. Bomgarrs
David A. Bomgarrs
District Administrator
**OCC SEAL**
<PAGE>
EXHIBIT 4
STATE STREET BANK AND TRUST COMPANY OF MISSOURI
NATIONAL ASSOCIATION
AMENDED AND RESTATED
BY-LAWS
ARTICLE I
Meetings of Shareholders
Section 1.1 Annual Meeting. The regular annual meeting
of the shareholders to elect directors and transact whatever
other business may properly come before the meeting, shall be
held at the Main Office of the National Trust Company, in the
City of Kansas City, State of Missouri or such other places as
the Board of Directors may designate, at 10 o'clock, on the
fourth Wednesday of April of each year. Notice of such meeting
shall be mailed, postage prepaid, at least ten days prior to the
date thereof, addressed to each shareholder at his/her address
appearing on the books of the National Trust Company. If, for
any cause, an election of directors is not made on that day, the
Board of Directors shall order the election to be held on some
subsequent day, as soon thereafter as practicable, according to
the provisions of law; and notice thereof shall be given in the
manner herein provided for the annual meeting.
Section 1.2. Special Meetings. Except as otherwise
specifically provided by statute, special meetings of the
shareholders may be called for any purpose at any time by the
Board of Directors or by any shareholder owning, in the
aggregate, not less than 10 percent of the stock of the National
Trust Company. Every such special meeting, unless otherwise
provided by law, shall be called by mailing, postage prepaid,
not less than ten days prior to the date fixed for such meeting,
to each shareholder at his address appearing on the books of the
National Trust Company a notice stating the purpose of the
meeting.
Section 1.3. Nominations for Director. Nominations for
election to the Board of Directors may be made by the Board of
Directors or by any shareholder of any outstanding class of
capital stock of the National Trust Company entitled to vote for
the election of directors. Nominations, other than those made
by
<PAGE>
or on behalf of the existing management of the National Trust
Company, shall be made in writing and shall be delivered or
mailed to the President of the National Trust Company and to the
Comptroller of the Currency, Washington, D.C., not less than 14
days nor more than 50 days prior to any meeting of shareholders
called for the election of directors, provided however, that if
less than 21 days' notice of the meeting is given to
shareholders such nomination shall be mailed or delivered to the
President of the National Trust Company and to the Comptroller
of the Currency not later than the close of business on the
seventh day following the day on which the notice of meeting was
mailed. Such notification shall contain the following
information to the extent known to the notifying shareholder:
(a) the name and address of each proposed nominee; (b) the
principal occupation of each proposed nominee; (c) the total
number of shares of capital stock of the National Trust Company
that will be voted for each proposed nominee; (d) the name and
residence address of the notifying shareholder; and (e) the
number of shares of capital stock of the National Trust Company
owned by the notifying shareholder. Nominations not made in
accordance herewith may, in his/her discretion, be disregarded
b~ the Chairperson of the meeting, and upon his/her
instructions, the vote tellers may disregard all votes cast for
each such nominee.
Section 1.4. Proxies. Shareholders may vote at any
meeting of the shareholders by proxies duly authorized in
writing, but no officer or employee of this National Trust
Company shall act as proxy. Proxies shall be valid only for one
meeting, to be specified therein, and any adjournments of such
meeting. Proxies shall be dated and shall be filed with the
records of the meeting.
Section 1.5. Quorum. A majority of the outstanding
capital stock, represented in person or by proxy, shall
constitute a quorum at any meeting of shareholders, unless
otherwise provided by law; but less than a quorum may adjourn
any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. A majority of the votes cast
shall decide every question or matter submitted to the
shareholders at any meeting, unless otherwise provided by law or
by the Articles of Association.
<PAGE>
ARTICLE II
Directors
Section 2.1 Board of Directors. The Board of Directors
shall have the power to manage and administer the business and
affairs of the National Trust Company. Except as expressly
limited by law, all corporate powers of the National Trust
Company shall be vested in and may be exercised by the Board of
Directors.
Section 2.2 Number. The Board of Directors shall consist
of not less than five nor more than twenty-five shareholders,
the exact number within such minimum and maximum limits to be
fixed and determined from time to time by resolution of a
majority of the full Board or by resolution of the shareholders
at any meeting thereof.
Section 2.3. Organization Meeting. The Cashier, upon
receiving the results of any election, shall notify the
directors-elect of their election and of the time at which they
are required to meet at the Main Office of the National 'Trust
Company to organize the new Board and elect and appoint officers
of the National Trust Company for the succeeding year. Such
meeting shall be held on the day of the election or as soon
thereafter as practicable, and, in any event, within thirty days
thereof. If, at the time fixed for such meeting, there shall
not be a quorum present, the Directors present may adjourn the
meeting, from time to time, until a quorum is obtained.
Section 2.4. Regular Meetings. Regular Meetings of the
Board of Directors shall be held, without notice, at least once
in each quarter on such days and at such hours as the Directors
may from time to time determine. When any regular meeting of
the Board falls upon a holiday, the meeting shall be held on the
next banking business day unless the Board shall designate some
other day. (Amended 1/1/97)
Section 2.5. Special Meetings. Special meetings of the
Board of Directors may be called by the Chairman of the Board of
the National Trust Company, or at the request of three or more
directors. Each member of the Board of Directors shall be given
notice stating the time and place, by telegram, letter, or in
person, of each such special meeting.
<PAGE>
Section 2.6. Quorum. A majority of the directors shall
constitute a quorum at any meeting, except when otherwise
provided by law; but a less number may adjourn any meeting, from
time to time, and the meeting may be held, as adjourned, without
further notice.
Section 2.7. Vacancies. When any vacancy occurs among the
directors, the remaining members of the Board, in accordance
with the laws of the United States, may appoint a director to
fill such vacancy at any regular meeting of the Board, or at a
special meeting called for that purpose in conformance with
Section 2.2 of this Article.
Section 2.8. Action Without a Meeting. Any action
required or permitted to be taken at any meeting of the
Directors may be taken without a meeting if all the Directors
consent to the action in writing and the written consents are
filed with the records of the meetings of the Directors. Such
consents shall be treated for all purposes as a vote at a
meeting.
Section 2.9. Meeting by Telecommunications. Members of
the Board of Directors or any committee elected thereby may
participate in a meeting of such Board or committee by means of
a conference telephone or similar communications equipment by
means of which all persons participating in a meeting can hear
each other at the time and participation by such means shall
constitute presence in person at the meeting.
ARTICLE III
Committees of the Board
Section 3.1. Investment Committee. There shall be an
Investment Committee composed of not less than two Directors,
appointed by the Board annually or more often. The Investment
Committee shall have the power to insure adherence to Investment
Policy, to recommend amendments thereto, to purchase and sell
securities, to exercise authority regarding investments and to
exercise, when the Board is not in session, all other powers of
the Board regarding investment securities that may be lawfully
delegated. The Investment Committee shall keep minutes of its
meetings, and such minutes shall be submitted at the next
regular meeting of the Board of Directors at which a quorum is
present, and any action taken by the Board with respect thereto
shall be entered in the minutes of the Board
<PAGE>
Section 3.2. Examining Committee. There shall be an
Examining Committee composed of not less than two directors,
exclusive of any active officers, appointed by the Board
annually or more often, whose duty it shall be to make an
examination at least once during each calendar year into the
affairs of the National Trust Company or cause suitable
examinations to be made by auditors responsible only to the
Board of Directors and to report the result of such examination
in writing to the Board at the next regular meeting thereafter.
Such report shall state whether the National Trust Company is in
a sound condition, and whether adequate internal controls and
procedures are being maintained and shall recommend to the Board
of Directors such changes in the manner of conducting the
affairs of the National Trust Company as shall be deemed
advisable. (Amended 8/s/97)
Section 3.3. Other Committees. The Board of Directors may
appoint, from time to time, from its own members, other
committees of one or more persons, for such purposes and with
such powers as the Board may determine. However, a committee
may not authorize distribution of assets or dividends; approve
action required to be approved by shareholders; fill vacancies
on the board of directors or any of its committees; amend
articles of association; adopt, amend or repeal by-laws; or
authorize or approve issuance or sale or contract for sale of
shares, or determine the designation and relative rights,
preferences and limitations of a class or series of shares.
ARTICLE IV
Officers and Employees
Section 4.1. Chairperson of the Board. The Board of
Directors shall appoint one of its members to be Chairperson of
the Board to serve at its pleasure. Such person shall preside
at all meetings of the Board of Directors. The Chairperson of
the Board shall supervise the carrying out of the policies
adopted or approved by the Board; shall have general executive
powers, as well as the specific powers conferred by these
Bylaws; and shall also have and may exercise such further powers
and duties as from time to time may be conferred upon, or
assigned by the Board of Directors.
<PAGE>
Section 4.2. President. The Board of Directors shall
appoint one of its members to be President of the National Trust
Company. In the absence of the Chairperson, the President shall
preside at any meeting of the Board. The President shall have
general executive powers, and shall have and may exercise any
and all other powers and duties pertaining by law, regulations,
or practice, to the Office of President, or imposed by these
Bylaws. The President shall also have and may exercise such
further powers and duties as from time to time may be conferred,
or assigned by the Board of Directors.
Section 4.3. Vice President. The Board of Directors may
appoint one or more Vice Presidents. Each Vice President shall
have such powers and duties as may be assigned by the Board of
Directors. One Vice President shall be designated by the Board
of Directors, in the absence of the President, to perform all
the duties of the President.
Section 4.4. Secretary. The Board of Directors shall
appoint a Secretary, Cashier, or other designated officer who
shall be Secretary of the Board and of the National Trust
Company, and shall keep accurate minutes of all meetings. The
Secretary shall attend to the giving of all notices required by
these Bylaws to be given; shall be custodian of the corporate
seal, records, documents and papers of the National Trust
Company; shall provide for the keeping of proper records of all
transactions of the National Trust Company; shall have and may
exercise any and all other powers and duties pertaining by law,
regulation or practice, to the Office of Cashier, or imposed by
these Bylaws; and shall also perform such other duties as may be
assigned from time to time, by the Board of Directors.
Section 4.5. Other Officers. The Board of Directors may
appoint one or more Executive Vice Presidents, Senior Vice
Presidents, Assistant Vice Presidents1 one or more Assistant
Secretaries, one or more Assistant Cashiers, one or more
Managers and Assistant Managers of offices and such other
officers and attorneys in fact as from time to time may appear
to the Board of Directors to be required or desirable to
transact the business of the National Trust Company. Such
officers shall respectively exercise such powers and perform
such duties as pertain to the several offices, or as may be
conferred upon, or assigned to, them by the Board of Directors,
the Chairperson of the Board, or the President. The Board of
Directors may authorize an officer to appoint one or more
officers or assistant officers.
<PAGE>
Section 4.6. Tenure of Office. The President and all
other officers shall hold office for the current year for which
the Board was elected, unless they shall resign, become
disqualified, or be removed; and any vacancy occurring in the
Office of President shall be filled promptly by the Board of
Directors.
Section 4.7. Resignation. An officer may resign at any
time by delivering notice to the National Trust Company. A
resignation is effective when the notice is given unless the
notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 5.1. Trust Department. There shall be a
department of the National Trust Company known as the Trust
Department that shall perform the fiduciary responsibilities of
the National Trust Company.
Section 5.2. Trust Officer. There shall be a Trust
Officer of this National Trust Company whose duties shall be to
manage, supervise and direct all the activities of the Trust
Department. Such persons shall do or cause to be done all
things necessary or proper in carrying on the business of the
Trust Department according to provisions of law and applicable
regulations; and shall act pursuant to opinion of counsel where
such opinion is deemed necessary. Opinions of counsel shall be
retained on file in connection with all important matters
pertaining to fiduciary activities. The Trust Officer shall be
responsible for all assets and documents held by the National
Trust Company in connection with fiduciary matters.
The Board of Directors may appoint other trust officers of
the Trust Department, as it may deem necessary, with such duties
as may be assigned.
Section 5.3. Trust Investment Committee. There shall be
a Trust Investment Committee of this National Trust Company
composed of not less than two members, who shall be capable and
experienced officers or directors of the National Trust Company.
All investments of funds held in a fiduciary capacity shall be
made, retained or disposed of only with the approval of the
Trust
<PAGE>
Investment Committee, and the Committee shall keep minutes of
all its meetings, showing the disposition of all matters
considered and passed upon by it. The Committee shall, promptly
after the acceptance of an account for which the National Trust
Company has investment responsibilities, review the assets
thereof, to determine the advisability of retaining or disposing
of such assets. The Committee shall conduct a similar review at
least once during each calendar year thereafter and within 15
months of the last such review. A report of all such reviews,
together with the action taken as a result thereof, shall be
noted in the minutes of the Committee.
Section 5.4. Trust Audit Committee. The Board of
Directors shall appoint a committee of not less than two
directors, exclusive of any active officer of the National Trust
Company, which shall, at least once during each calendar year
make suitable audits of the Trust Department or cause suitable
audits to be made by auditors responsible only to the Board of
Directors, and at such time shall ascertain whether the
Department has been administered according to law, Part 9 of the
Regulations of the Comptroller of the Currency, and sound
fiduciary principles. (Amended 8/5/97)
Section 5.5. Fiduciary Files. There shall be maintained
in the Trust Department files all fiduciary records necessary to
assure that its fiduciary responsibilities have been properly
undertaken and discharged.
Section 5.6. Trust Investments. Funds held in a fiduciary
capacity shall be invested according to the instrument
establishing the fiduciary relationship and local law. Where
such instrument does not specify the character and class of
investments to be made and does not vest in the National Trust
Company a discretion in the matter, funds held pursuant to such
instrument shall be invested in investments in which corporate
fiduciaries may invest under local law.
ARTICLE VI
Stock and Stock Certificates
Section 6.1. Transfers. Shares of stock shall be
transferable on the books of the National Trust Company, and a
transfer book shall be kept in which all transfers of stock
shall
<PAGE>
be recorded. Every person becoming a shareholder by such
transfer shall, in proportion to his shares, succeed to all
rights of the prior holder of such shares.
Section 6.2. Stock Certificates. Certificates of stock
shall bear the signature of the President (which may be
engraved, printed or impressed), and shall be signed manually or
by facsimile process by the Secretary, Assistant Secretary,
Cashier, Assistant 'Cashier, or any other officer appointed by
the Board of Directors for that purpose, to be known as an
Authorized Officer, and the seal of the National Trust Company
shall be engraved thereon. Each certificate shall recite on its
face that the stock represented thereby is transferable only
upon the books of the National Trust Company properly endorsed.
ARTICLE VII
Corporate Seal
The President, the Cashier, the Secretary or any Assistant
Cashier or Assistant Secretary, or other officer thereunto
designated by the Board of Directors, shall have authority to
affix the corporate seal to any document requiring such seal,
and to attest the same. Such seal shall be substantially in the
following form:
ARTICLE VIII
Miscellaneous Provisions
Section 8.1. Fiscal Year. The Fiscal Year of the National
Trust Company shall be the calendar year.
Section 8.2. Execution of Instruments. All agreements,
indentures, mortgages, deeds, conveyances, transfers,
certificates, declarations, receipts, discharges, releases,
satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments
or documents may be signed, executed,
<PAGE>
acknowledged, verified, delivered or accepted in behalf of the
National Trust Company by the Chairperson of the Board, or the
President, or any Executive Vice President, or any Vice
President, or the Secretary, or the Cashier. Any such
instruments may also be executed, acknowledged, verified,
delivered or accepted in behalf of the National Trust Company in
such other manner and by such other officers as the Board of
Directors may from time to time direct. The provisions of this
Section 8.2. are supplementary to any other provision of these
Bylaws.
Section 8.3. Records. The Articles of Association, the By-laws
and the proceedings of all meetings of the shareholders, the
Board of Directors, and standing committees of the Board, shall
be recorded in appropriate minute books provided for the
purpose. The minutes of each meeting shall be signed by the ~
Secretary, Cashier or other Officer appointed to act as
Secretary of the meeting.
ARTICLE IX
By-laws
Section 9.1 Inspection. A copy of the By-laws, with all
amendments thereto, shall at all times be kept in a convenient
place at the Main Office of the National Trust Company, and
shall be open for inspection to all shareholders, during banking
hours.
Section 9.2. Amendments. The By-laws may be amended, altered
or repealed, at any regular meeting of the Board of Directors,
by a vote of a majority of the total number of the Directors.
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939, as amended, in connection with the
proposed issuance by The Empire District Electric Company of its
First Mortgage Bonds % Series __ Due -, we hereby consent that
reports of examination by Federal, State, Territorial or
District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST
COMPANY OF MISSOURI, N.A.
By: /s/Brian P. Krippner
--------------------------
Brian P. Krippner
Vice President
Dated: September 3, 1997
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
State Street Bank & Trust Company of Missouri, N.A.
Consolidated Statement of Condition
Jun-97
<S> <S>
Assets
Cash and Due from Bank $ 223,527
Total Investment Securities 292,500
Total Premises and Equipment 11,178
Accrued Income Receivable 579,277
Other Assets 11,282
Goodwill Net 8,670,678
Total Assets $ 9,788,441
Liabilities
Accrued Tax and Other $ (13,979)
Unearned Revenue 269,222
Total Liabilities $ 255,243
Stockholders Equity
Common Stock $ 500,000
Paid In Surplus 9,250,000
Retained Earnings (216,802)
Total Stockholders Equity $ 9,533,198
Total Liabilities and Stockholders $ 9,788,441
Equity
</TABLE>
