-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, U9gwhHeogqswT2xXQbVv8RvcIugN0YCA+1WAQA+QjivQ5pf0pB/ymaH5bkIzhIk/ 00aZU1FjCZlLvN5cd+t+ag== 0000950162-05-000968.txt : 20051017 0000950162-05-000968.hdr.sgml : 20051017 20051017163731 ACCESSION NUMBER: 0000950162-05-000968 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 14 FILED AS OF DATE: 20051017 DATE AS OF CHANGE: 20051017 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMPIRE DISTRICT ELECTRIC CO CENTRAL INDEX KEY: 0000032689 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 440236370 STATE OF INCORPORATION: KS FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-129069 FILM NUMBER: 051141188 BUSINESS ADDRESS: STREET 1: 602 JOPLIN ST CITY: JOPLIN STATE: MO ZIP: 64801 BUSINESS PHONE: 4176255100 MAIL ADDRESS: STREET 1: P.O. BOX 127 CITY: JOPLIN STATE: MO ZIP: 64802 S-3 1 empires3-101405.txt As filed with the Securities and Exchange Commission on October 17, 2005 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 44-0236370 (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 registrant's principal executive offices) William L. Gipson President and Chief Executive Officer The Empire District Electric Company 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: Robert Usadi, Esq. Thomas A. Litz, Esq. Cahill Gordon & Reindel LLP Thompson Coburn LLP 80 Pine Street One US Bank Plaza, Suite 3400 New York, New York 10005 St. Louis, Missouri 63101 (212) 701-3000 (314) 552-6000 ___________________ 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. / / ____________________
CALCULATION OF REGISTRATION FEE =================================== ================== ==================== ==================== ================== Proposed Proposed maximum maximum Title of each class of Amount to be offering price aggregate offering Amount of securities to be registered registered per unit price registration fee - ----------------------------------- ------------------ -------------------- -------------------- ------------------ Unsecured Debt Securities....... (1)(3) (2) (1)(2)(3) First Mortgage Bonds............ (1)(4) (2) (1)(2)(4) Common Stock.................... (1)(5) (2) (1)(2)(5) Preference Stock................ (1)(6) (2) (1)(2)(6) Preference Stock Purchase Rights (1)(7) N/A N/A Total........................ $400,000,000 (2) $400,000,000 $47,080 (8) =================================== ================== ==================== ==================== ==================
(1) In no event will the aggregate maximum offering price of all securities issued pursuant to this Registration Statement exceed $400,000,000. 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 principal amount of Unsecured Debt Securities. (4) Subject to Footnote (1), there is being registered hereunder an indeterminate principal amount of First Mortgage Bonds. (5) 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. (6) Subject to Footnote (1), there is being registered hereunder an indeterminate number of shares of Preference Stock, no par value. (7) Subject to Footnote (1), there is being registered hereunder an indeterminate number of Preference Stock Purchase Rights, which will only be issued with shares of the Registrant's common stock. (8) Calculated pursuant to Rule 457(o). Pursuant to Rule 457(p), this fee has been reduced by the registration fee of $4,012.18 previously paid with respect to $49,625,000 of securities of the Registrant covered by Registration Statement No. 333-107687 filed with the Commission on August 5, 2003, which is being carried over to this Registration Statement. ____________________ 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. ================================================================================ The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. SUBJECT TO COMPLETION, DATED OCTOBER 17, 2005 PROSPECTUS $400,000,000 THE EMPIRE DISTRICT ELECTRIC COMPANY UNSECURED DEBT SECURITIES FIRST MORTGAGE BONDS COMMON STOCK PREFERENCE STOCK ____________________ We may offer from time to time: o our unsecured debt securities, in one or more series; o our first mortgage bonds, in one or more series; o shares of our common stock; o shares of our preference stock; and o units comprised of some of the securities listed above. The aggregate initial offering price of the securities that we offer under this prospectus will not exceed $400,000,000. We will offer the securities in amounts, at prices and on terms to be determined by market conditions at the time of our offering. We may offer the securities in units. We will provide the specific terms of the securities in supplements to this prospectus. You should read this prospectus and the prospectus supplements carefully before you invest in the securities. This prospectus may not be used to consummate sales of securities unless accompanied by a prospectus supplement. Our common stock is listed on the New York Stock Exchange under the trading symbol "EDE." Investing in our securities involves risks. See the section entitled "Risk Factors" beginning on page 2 of this prospectus and any similarly entitled section in any prospectus supplement. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. ____________________ The date of this prospectus is , 2005 RISK FACTORS Any reduction in our credit ratings could materially and adversely affect our business, financial condition and results of operations. Currently, the ratings for our securities are as follows:
Moody's Standard & Poor's First Mortgage Bonds............................. Baa1 A- First Mortgage Bonds -- Pollution Control Series. Aaa AAA Senior Notes..................................... Baa2 BBB- Commercial Paper................................. P-2 A-2 Trust Preferred Securities....................... Baa3 BB+
Moody's and Standard & Poor's currently have a stable outlook and a negative outlook, respectively, on Empire. These ratings indicate the agencies' assessment of our ability to pay interest, distributions and principal on these securities. The lower the rating the higher the interest cost of the securities when they are sold. If any of our ratings were to fall below investment grade (Baa3 or above for Moody's and BBB- or above for Standard & Poor's), our ability to issue short-term debt, commercial paper or other securities or to market those securities would be impaired or made more difficult. We cannot assure you that any of our current ratings will remain in effect for any given period of time or that a rating will not be lowered or withdrawn entirely by a rating agency if, in its judgment, circumstances in the future so warrant. Any downgrade in our senior unsecured long-term debt rating would, under the terms of our revolving credit facility, result in an increase in our borrowing costs under that credit facility. Any downgrade below investment grade could have a material adverse effect on our business, financial condition and results of operations. We are exposed to market risk in our fuel procurement strategy and may incur losses from these activities. We have established a risk management practice of purchasing contracts for future fuel needs to meet underlying customer needs. Within this activity, we may incur losses from these contracts. These losses could have a material adverse effect on our results of operations. By using physical and financial instruments, we are exposed to credit risk and market risk. Credit risk is the risk that the counterparty might fail to fulfill its obligations under contractual terms. Market risk is the exposure to a change in the value of commodities caused by fluctuations in market variables, such as price. The fair value of derivative financial instruments we hold is adjusted cumulatively on a monthly basis until prescribed determination periods. At the end of each determination period, which is the last day of each calendar month in the period, any realized gain or loss for that period related to the contract will be reclassified to fuel expense. We are subject to regulation in the jurisdictions in which we operate. We are subject to comprehensive regulation by several federal and state utility regulatory agencies, which significantly influences our operating environment and our ability to recover our costs from utility customers. The utility commissions in the states where we operate (which include the Missouri Public Service Commission, the Kansas Corporation Commission, the Oklahoma Corporation Commission, and the Arkansas Public Service Commission) regulate many aspects of our utility operations, including siting and construction of facilities, customer -2- service, our ability to recover increases in our fuel and purchased power costs and the rates that we can charge customers. The Federal Energy Regulatory Commission has jurisdiction over wholesale rates for electric transmission service and electric energy sold in interstate commerce. Federal, state and local agencies also have jurisdiction over many of our other activities. Information concerning recent filings requesting increases in rates and related matters is set forth in our Second Quarter 2005 Quarterly Report under Item 2, "Management's Discussion and Analysis of Financial Condition and Results of Operations--Results of Operations--Electric Operating Revenues and Kilowatt-Hour Sales--Rate Matters." We are unable to predict the impact on our operating results from the regulatory activities of any of these agencies. Although we have attempted to actively manage the rate-making process, and we believe we have had recent success in advocating for rate increases when necessary, we can offer no assurances as to future success in the rate-making process. Despite our requests, these regulatory commissions have sole discretion to leave rates unchanged, grant increases or order decreases in the base rates we charge our customers. They have similar authority with respect to our recovery of increases in our fuel and purchased power costs. In the event that our costs increase and we are unable to recover increased costs through base rates, interim energy charges or fuel adjustment clauses, our results of operations could be materially adversely affected. Changes in regulations or the imposition of additional regulations could also have a material adverse effect on our results of operations. A combination of increases in customer demand, decreases in output from our power plants and/or the failure of performance by purchased power contract counterparties could have a material adverse effect on our results of operations. In the event that demand for power increases significantly and rapidly (due to weather or other conditions) and either our power plants do not operate as planned or the parties with which we have contracted to purchase power are not able to, or fail to, deliver that power, we would be forced to purchase power in the spot-market. Those unforeseen costs could have a material adverse effect on our results of operations. See our 2004 Annual Report under Item 1, "Business--Fuel," Item 2, "Properties--Electric Facilities" and Item 7, "Management's Discussion and Analysis of Financial Condition and Results of Operations--Results of Operations--Operating Revenue Deductions" and our Second Quarter 2005 Quarterly Report under Item 2, "Management's Discussion and Analysis of Financial Condition and Results of Operations--Results of Operations--Operating Revenue Deductions" for more information. We are exposed to increases in costs and reductions in revenue which we cannot control and which may adversely affect our business, financial condition and results of operations. The primary drivers of our electric operating revenues in any period are: (1) weather, (2) rates we can charge our customers, (3) customer growth and (4) general economic conditions. The primary drivers of our electric operating expenses in any period are: (1) fuel and purchased power expense, including the transportation thereof, (2) maintenance and repairs expense, (3) employee pension and health care costs, (4) taxes and (5) non-cash items such as depreciation and amortization expense. Of the factors driving revenues, weather has the greatest short-term effect on the demand for electricity for our regulated business. Mild weather reduces demand and, as a result, our electric operating revenues. Of the factors driving expenses, fuel and purchased power costs are our largest expense items. Increases in the price of natural gas or the cost of purchased power will result in increases in electric operating expenses. Our existing strategies for mitigating such risks include hedging against changes in natural gas prices and utilizing interim energy charges and fuel adjustment clauses to recover actual fuel and purchased power expenses. Such efforts, however, may not offset or permit us to recover all of such increased costs. Therefore, significant increases in electric operating expenses or reductions in electric operating revenues may occur and result in a material adverse effect on our business, financial condition and results of operations. -3- We have recently experienced, and may continue to experience, coal delivery shortfalls which could require us to reduce the output of our coal-fired generating facilities and lead to increases in our fuel and purchased power costs. We depend upon regular deliveries of coal as fuel for our Riverton, Asbury and Iatan plants, and as fuel for the Jeffrey facility, which supplies us with purchased power under our contract with Westar Energy. Substantially all of this coal comes from mines in the Powder River Basin of Wyoming and is delivered to the plants by railroad. In recent months, due to widespread railroad congestion problems, the railroads have been unable to achieve the delivery cycle times required to maintain our plants' inventory levels. As a result, inventory levels at our plants have declined. As of September 30, 2005, we had over 30 days of inventory at our Riverton plant and approximately 50 days of inventory at our Asbury plant. We expect that the railroads' congestion problems and resulting delivery delays will continue for an indefinite period. As a result, we have implemented coal conservation and supply replacement measures to retain adequate reserve inventories at our facilities. These measures have included, or may include in the future, reducing the output of these plants, increasing the utilization of our gas-fired generation facilities, purchasing power from other suppliers, adding additional leased trains to our supply system and purchasing locally mined coal which can be delivered without using the railroads. Such measures may result in increases in our fuel and purchased power costs and could have a material adverse effect on our financial condition and results of operations. We are subject to environmental laws and the incurrence of environmental liabilities which may adversely affect our business, financial condition and results of operations. We are subject to extensive federal, state and local regulation with regard to air and other environmental matters. Failure to comply with these laws and regulations could have a material adverse effect on our results of operations and financial position. In addition, new environmental laws and regulations, and new interpretations of existing environmental laws and regulations, have been adopted and may in the future be adopted which may substantially increase our future environmental expenditures for both new facilities and our existing facilities. Although we generally recover such costs through our rates, there can be no assurance that we will recover all, or any part of, such increased costs in future rate cases. The incurrence of additional material environmental costs which are not recovered in our rates may result in a material adverse effect on our business, financial condition and results of operations. Future acquisitions, including the contemplated acquisition of the Missouri natural gas distribution operations of Aquila, Inc., are subject to integration and other risks. On September 21, 2005 we entered into an Asset Purchase Agreement with Aquila, Inc. pursuant to which we agreed to acquire the Missouri natural gas distribution operations of Aquila. In addition, we anticipate that we may, from time to time, selectively acquire additional regulated and non-regulated businesses or assets that we believe would provide a strategic fit with our business. Acquisitions are accompanied by risks, such as potential exposure to unknown liabilities of acquired companies and the possible loss of key employees and customers of the acquired business. Further, acquisitions are subject to risks associated with the difficulty and expense of obtaining regulatory approval for the acquisitions, obtaining the necessary financing for the acquisitions and integrating the operations and personnel of the acquired businesses or assets. If any of these risks materialize, they may result in disruptions to our business and the diversion of management time and attention, which could increase the costs of operating our existing or acquired businesses or negate the expected benefits of the acquisitions. -4- WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document we file at the SEC's public reference room at 450 Fifth Street, N.W. Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Reports, proxy statements and other information concerning Empire can also be inspected and copied at the offices of the New York Stock Exchange at 20 Broad Street, New York, New York 10005. Additional information about Empire may be found over the Internet at our website at http://www.empiredistrict.com. The information on our website is not a part of this prospectus and is not incorporated by reference herein. The SEC allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC prior to the time the registration statement of which this prospectus forms a part becomes effective and thereafter under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we sell all of the securities. o Our Annual Report on Form 10-K for the year ended December 31, 2004. o Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005 and June 30, 2005. o Our Current Reports on Form 8-K filed with the Commission on January 28, 2005, February 8, 2005, February 9, 2005, March 31, 2005, April 29, 2005 (to the extent filed with the Commission), May 11, 2005, May 27, 2005, June 16, 2005, June 28, 2005, July 18, 2005, September 22, 2005 and September 23, 2005. o The description of our preference stock purchase rights as set forth in our Registration Statement on Form 8-A dated July 18, 2000. You may request a copy of these filings at no cost, by writing or telephoning us at the following address: Corporate Secretary The Empire District Electric Company 602 Joplin Street Joplin, Missouri 64801 Tel: (417) 625-5100 You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents. -5- FORWARD-LOOKING STATEMENTS Certain matters discussed in this prospectus and in the documents incorporated by reference in this prospectus are "forward-looking statements" intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. Such statements address or may address future plans, objectives, expectations and events or conditions concerning various matters such as capital expenditures, earnings, competition, litigation, our construction program, our financing plans, potential acquisitions, rate and other regulatory matters, liquidity and capital resources and accounting matters. Forward-looking statements may contain words like "anticipate," "believe," "expect," "project," "objective" or similar expressions to identify them as forward-looking statements. Factors that could cause actual results to differ materially from those currently anticipated in such statements include: o the amount, terms and timing of rate relief that we receive or seek, and related matters; o the cost and availability of purchased power and fuel, and the results of our activities (such as hedging) to reduce the volatility of such costs; o electric utility restructuring, including ongoing state and federal activities; o weather, business and economic conditions and other factors which may impact customer growth; o operation of our generation facilities; o legislation; o regulation, including environmental regulation (such as NOx regulation); o competition; o the impact of deregulation on off-system sales; o changes in accounting requirements; o other circumstances affecting anticipated rates, revenues and costs, including pension and post-retirement costs; o the timing of, and integration costs relating to, contemplated acquisitions and the performance of acquired businesses; o matters such as the effect of changes in credit ratings on the availability and cost of funds; o the periodic revision of our construction and capital expenditure plans and cost estimates; o the performance and liquidity needs of our non-regulated businesses; o the success of efforts to invest in and develop new opportunities; and o costs and effect of legal and administrative proceedings, settlements, investigations and claims. All of these factors are difficult to predict, contain uncertainties that may materially affect actual results, and may be beyond our control. New factors emerge from time to time and it is not possible for management to predict all such factors or to assess the impact of each factor on us. Any forward-looking statement speaks only as -6- of the date on which the statement is made, and we do not undertake any obligation to update any forward-looking statement to reflect events or circumstances after the date on which that statement is made. We caution you that any forward-looking statements are not guarantees of future performance and involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to differ materially from the future results, performance or achievements we have anticipated in the forward-looking statements. -7- INFORMATION ABOUT EMPIRE We are an operating regulated public utility which generates, purchases, transmits, distributes and sells electricity. Our service territory covers approximately 10,000 square miles and includes parts of southwest Missouri, southeast Kansas, northeast Oklahoma and northwest Arkansas. The region includes many small towns, and is known for its popular family-oriented vacation destination, Branson, Missouri. Our headquarters location, Joplin, Missouri, ranks among the lowest in cost of living in the United States, and our electric rates are below the national average. The population in our service territory, which currently exceeds 450,000 has grown steadily over the past ten years. The industrial base is diverse and, as a result, we are not dependent upon any single customer or particular industry. In addition to our regulated utility operations, we have undertaken certain non-regulated businesses. We lease capacity on our fiber optics network and provide Internet services, close-tolerance custom manufacturing and other energy services. We also provide water service to three towns in Missouri. In addition, we have entered into an Asset Purchase Agreement with Aquila, Inc. pursuant to which we agreed to acquire the Missouri natural gas distribution operations of Aquila. Pursuant to the Asset Purchase Agreement, we will pay a base purchase price of $84.0 million in cash to Aquila at the closing of the Acquisition, plus working capital and subject to net plant adjustments. This acquisition is subject to regulatory approval and other customary closing conditions. Our executive offices are located at 602 Joplin Street, Joplin, Missouri 64801, telephone number (417) 625-5100. USE OF PROCEEDS The proceeds from the sale of the securities will be used as described in the prospectus supplements by which the securities are offered. The proceeds from the sale of the securities may be used to, among other things, fund acquisitions, including the contemplated acquisition of the Missouri natural gas distribution operations of Aquila, Inc. EARNINGS RATIOS The ratio of earnings to fixed charges for each of the periods indicated is as follows:
Six Months Ended Year Ended December 31, June 30, 2005 2004 2003 2002 2001 2000 ------------- ---- ---- ---- ---- ---- Ratio of earnings to fixed charges(1)... 1.30x 2.12x 2.44x 2.25x 1.31x 2.25x
- ------------ (1) In each of the periods presented, the ratio of combined fixed charges and preference dividends to earnings is equal to the ratio of earnings to fixed charges. For purposes of calculating these ratios, earnings consist of income before income taxes plus fixed charges. Fixed charges consist of interest expense (including capitalized interest) plus the estimated interest portion of rent expense. The ratios for future periods will be included in our reports on Forms 10-K and 10-Q. These reports will be incorporated by reference into this prospectus at the time they are filed. -8- DESCRIPTION OF UNSECURED DEBT SECURITIES The unsecured debt securities will be our direct unsecured general obligations. The unsecured debt securities will be either senior unsecured debt securities, subordinated unsecured debt securities or junior subordinated unsecured debt securities. The unsecured debt securities will be issued in one or more series under the indenture between us and Wells Fargo Bank, National Association (as successor by merger to Norwest Bank Minnesota, National Association), as trustee, and under a securities resolution (which may be in the form of a board resolution or a supplemental indenture) authorizing the particular series. We have summarized all material provisions of the indenture below. The summary is not complete. The indenture and a form of securities resolution are incorporated by reference as exhibits to the registration statement of which this prospectus is a part. The securities resolution for each series will be filed or incorporated by reference as an exhibit to the registration statement. You should read the indenture and the applicable securities resolution for provisions that may be important to you. In the summary below, we have included references to section numbers in the indenture so that you can easily find those provisions. The particular terms of any unsecured debt securities we offer will be described in the related prospectus supplement, along with any applicable modifications of or additions to the general terms of the unsecured debt securities described below and in the indenture. For a description of the terms of any series of unsecured debt securities, you should review both the prospectus supplement relating to that series and the description of the unsecured debt securities set forth in this prospectus before making an investment decision. General The indenture does not significantly limit our operations. In particular, it does not: o limit the amount of unsecured debt securities that we can issue under the indenture; o limit the number of series of unsecured debt securities that we can issue from time to time; o restrict the total amount of debt that we may incur; or o contain any covenant or other provision that is specifically intended to afford any holder of the unsecured debt securities special protection in the event of a highly leveraged transaction or any other transaction resulting in a decline in our ratings or credit quality. As of the date of this prospectus, the following series of unsecured debt securities are outstanding under the indenture: o $40,000,000 aggregate principal amount of senior notes 5.80% series due 2035; o $62,000,000 aggregate principal amount of senior notes 6.70% series due 2033; o $51,550,000 aggregate principal amount of junior subordinated debentures 8 1/2% series due 2031; o $49,937,000 aggregate principal amount of senior notes 7.05% series due 2022; and o $98,000,000 aggregate principal amount of senior notes 4 1/2% series due 2013. The ranking of each new series of unsecured debt securities with respect to this existing indebtedness under the indenture and all of our other indebtedness will be established by the securities resolution creating the series. Although the indenture permits the issuance of unsecured debt securities in other forms or currencies, the unsecured debt securities covered by this prospectus will only be denominated in U.S. dollars in registered form without coupons, unless otherwise indicated in the applicable prospectus supplement. -9- We may from time to time without notice to, or the consent of, the holders of unsecured debt securities of a series at the time outstanding, create and further issue new securities of the same series equal in rank and having the same terms (except for the payment of interest accruing prior to the issue date of the new securities or except for the first payment of interest following the issue date of the new securities) as the outstanding series. Terms A prospectus supplement and a securities resolution relating to the offering of any series of unsecured debt securities will include specific terms relating to the offering. The terms will include some or all of the following: o the designation, aggregate principal amount, currency or composite currency and denominations of the unsecured debt securities; o the price at which the unsecured debt securities will be issued and, if an index, formula or other method is used, the method for determining amounts of principal or interest; o the maturity date and other dates, if any, on which the principal of the unsecured debt securities will be payable; o the interest rate or rates, if any, or method of calculating the interest rate or rates which the unsecured debt securities will bear; o the date or dates from which interest will accrue and on which interest will be payable, and the record dates for the payment of interest; o the manner of paying principal and interest on the unsecured debt securities; o the place or places where principal and interest will be payable; o the terms of any mandatory or optional redemption of the unsecured debt securities by us, including any sinking fund; o the terms of any conversion or exchange right; o the terms of any redemption of unsecured debt securities at the option of holders; o any tax indemnity provisions; o if payments of principal or interest may be made in a currency other than U.S. dollars, the manner for determining these payments; o the portion of principal payable upon acceleration of any discounted unsecured debt security (as described below); o whether and upon what terms unsecured debt securities may be defeased (which means that we would be discharged from our obligations under those securities by depositing sufficient cash or government securities to pay the principal, interest, any premiums and other sums due to the stated maturity date or a redemption date of the unsecured debt securities of the series); o whether any events of default or covenants in addition to or instead of those set forth in the indenture apply; o provisions for electronic issuance of unsecured debt securities or for unsecured debt securities in uncertificated form; -10- o the ranking of the unsecured debt securities issued under the indenture or otherwise, including the relative degree, if any, to which the unsecured debt securities of that series are subordinated to one or more other series of unsecured debt securities in right of payment, whether outstanding or not; o any provisions relating to extending or shortening the date on which the principal and premium, if any, of the unsecured debt securities of the series is payable; o any provisions relating to the deferral of payment of any interest; and o any other terms not inconsistent with the provisions of the indenture, including any covenants or other terms that may be required or advisable under United States or other applicable laws or regulations, or advisable in connection with the marketing of the unsecured debt securities. (Section 2.01) We may issue unsecured debt securities of any series as registered unsecured debt securities, bearer unsecured debt securities or uncertificated unsecured debt securities, and in such denominations as we specify in the securities resolution and prospectus supplement for the series. (Section 2.01) In connection with its original issuance, no bearer unsecured debt security will be offered, sold or delivered to any location in the United States. We may deliver a bearer unsecured debt security in definitive form in connection with its original issuance only if a certificate in a form we specify to comply with United States laws and regulations is presented to us. (Section 2.04) A holder of registered unsecured debt securities may request registration of a transfer upon surrender of the unsecured debt security being transferred at any agency we maintain for that purpose and upon fulfillment of all other requirements of the agent. (Sections 2.03 and 2.07) We may issue unsecured debt securities under the indenture as discounted unsecured debt securities to be offered and sold at a substantial discount from the principal amount of those unsecured debt securities. Special United States federal income tax and other considerations applicable to discounted unsecured debt securities will be described in the related prospectus supplement. A discounted unsecured debt security is an unsecured debt security where the amount of principal due upon acceleration is less than the stated principal amount. (Sections 1.01 and 2.10) Conversion and Exchange The terms, if any, on which unsecured debt securities of any series will be convertible into or exchangeable for our common stock or other equity or debt securities, property, cash or obligations, or a combination of any of the foregoing, will be summarized in the prospectus supplement relating to the series. The terms may include provisions for conversion or exchange, either on a mandatory basis, at the option of the holder or at our option. (Section 9.01) Certain Covenants Any restrictive covenants which may apply to a particular series of unsecured debt securities will be described in the related prospectus supplement. Ranking of Unsecured Debt Securities Unless stated otherwise in a prospectus supplement, the unsecured debt securities issued under the indenture will rank equally and ratably with our other unsecured and unsubordinated debt. The unsecured debt securities will not be secured by any properties or assets and will represent our unsecured debt. Our first mortgage bonds, which are secured by substantially all of our property, will effectively rank senior to any of our unsecured debt securities to the extent of the value of the property so securing our first mortgage bonds. If we become bankrupt, liquidate or reorganize, the trustees for the first mortgage bonds could use this col- -11- lateral property to satisfy our obligations under the first mortgage bonds before holders of unsecured debt securities would receive any payments. As of June 30, 2005 we had approximately $108.2 million aggregate principal amount of outstanding first mortgage bonds. Successor Obligor The indenture provides that, unless otherwise specified in the securities resolution establishing a series of unsecured debt securities, we will not consolidate with or merge into another company if we are not the survivor and we will not transfer all or substantially all of our assets to another company unless: o that company is organized under the laws of the United States or a state or is organized under the laws of a foreign jurisdiction and consents to the jurisdiction of the courts of the United States or a state; o that company assumes by supplemental indenture all of our obligations under the indenture, the unsecured debt securities and any coupons; o all required approvals of any regulatory body having jurisdiction over the transaction shall have been obtained; and o immediately after the transaction no default exists under the indenture. In any case, the successor shall be substituted for us as if it had been an original party to the indenture, securities resolutions and unsecured debt securities. Thereafter the successor may exercise our rights and powers under the indenture, the unsecured debt securities and any coupons, and all of our obligations under those documents will terminate. (Section 5.01) Exchange of Unsecured Debt Securities Registered unsecured debt securities may be exchanged for an equal principal amount of registered unsecured debt securities of the same series and date of maturity in the denominations requested by the holders upon surrender of the registered unsecured debt securities at an agency we maintain for that purpose and upon fulfillment of all other requirements of the agent. The agent may require a holder to pay an amount sufficient to cover any taxes imposed on an exchange of registered unsecured debt securities. (Section 2.07) Defaults and Remedies Unless the securities resolution establishing the series provides for different events of default, in which event the prospectus supplement will describe the change, an event of default with respect to a series of unsecured debt securities will occur if: o we default in any payment of interest on any unsecured debt securities of that series when the payment becomes due and payable and the default continues for a period of 60 days; o we default in the payment of the principal or premium, if any, of any unsecured debt securities of the series when those payments become due and payable at maturity or upon redemption, acceleration or otherwise; o we default in the payment or satisfaction of any sinking fund obligation with respect to any unsecured debt securities of the series as required by the securities resolution establishing the series and the default continues for a period of 60 days; o we default in the performance of any of our other agreements applicable to the series and the default continues for 90 days after the notice specified below; -12- o pursuant to or within the meaning of any Bankruptcy Law (as defined below), we: -- commence a voluntary case, -- consent to the entry of an order for relief against us in an involuntary case, -- consent to the appointment of a custodian for us and for all or substantially all of our property, or -- make a general assignment for the benefit of our creditors; o a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that remains unstayed and in effect for 60 days and that: -- is for relief against us in an involuntary case, -- appoints a custodian for us and for all or substantially all of our property, or -- orders us to liquidate; or o there occurs any other event of default provided for in such series. (Section 6.01) The failure to complete the redemption of unsecured debt securities which have been called for redemption on a conditional basis because the condition was not satisfied, shall not constitute an event of default. The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state law for the relief of debtors. The term "custodian" means any receiver, trustee, assignee, liquidator or a similar official under any Bankruptcy Law. (Section 6.01) A default under the indenture means any event which is, or after notice or passage of time would be, an event of default under the indenture. A default under the fourth bullet point above is not an event of default until the trustee or the holders of at least 25% in principal amount of the series notify us of the default and we do not cure the default within the time specified after receipt of the notice. (Section 6.01) If an event of default occurs under the indenture and is continuing on a series, the trustee by notice to us, or the holders of at least 25% in principal amount of the series by notice both to us and to the trustee, may declare the principal of and accrued interest on all the unsecured debt securities of the series to be due and payable immediately. (Section 6.02) The holders of a majority in principal amount of a series of unsecured debt securities, by notice to the trustee, may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing events of default on the series have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration. (Section 2.02) If an event of default occurs and is continuing on a series, the trustee may pursue any available remedy to collect principal or interest then due on the series, to enforce the performance of any provision applicable to the series, or otherwise to protect the rights of the trustee and holders of the series. (Section 6.03) The trustee may require indemnity satisfactory to it before it performs any duty or exercises any right or power under the indenture or the unsecured debt securities which it reasonably believes may expose it to any loss, liability or expense. (Section 7.01) With some limitations, holders of a majority in principal amount of the unsecured debt securities of the series may direct the trustee in its exercise of any trust or power with respect to that series. (Section 6.05) Except in the case of default in payment on a series, the trustee may withhold notice of any continuing default if it determines that withholding the notice is in the interest of holders of the series. (Section -13- 7.04) We are required to furnish the trustee annually a brief certificate as to our compliance with all conditions and covenants under the indenture. (Section 4.04) The indenture does not have a cross-default provision. Thus, a default by us on any other debt, including our first mortgage bonds or any other series of unsecured debt securities, would not constitute an event of default under the indenture. A securities resolution, however, may provide for a cross-default provision. In that case, the prospectus supplement will describe the terms of that provision. Amendments and Waivers Unless the securities resolution provides otherwise, in which event the prospectus supplement will describe that provision, we and the trustee may amend the unsecured debt securities issued under the indenture or otherwise, the indenture and any coupons with the written consent of the holders of a majority in principal amount of the unsecured debt securities of all series affected voting as one class. (Section 10.02) However, without the consent of each unsecured debt security holder affected, no amendment or waiver may: o reduce the principal amount of unsecured debt securities whose holders must consent to an amendment or waiver; o reduce the interest on or change the time for payment of interest on any unsecured debt security (except an election to defer interest in accordance with the applicable securities resolution); o change the fixed maturity of any unsecured debt security (subject to any right we may have retained in the securities resolution and described in the prospectus supplement); o reduce the principal of any non-discounted unsecured debt security or reduce the amount of the principal of any discounted unsecured debt security that would be due on acceleration thereof; o change the currency in which the principal or interest on an unsecured debt security is payable; o make any change that materially adversely affects the right to convert or exchange any unsecured debt security; or o change the provisions in the indenture relating to waiver of past defaults or relating to amendments with the consent of holders (except to increase the amount of unsecured debt securities whose holders must consent to an amendment or waiver or to provide that other provisions of the indenture cannot be amended or waived without the consent of each holder affected thereby). Without the consent of any unsecured debt security holder, we may amend the indenture or the unsecured debt securities: o to cure any ambiguity, omission, defect or inconsistency; o to provide for the assumption of our obligations to unsecured debt security holders by the surviving company in the event of a merger or consolidation requiring such assumption; o to provide that specific provisions of the indenture shall not apply to a series of unsecured debt securities not previously issued; o to create a series of unsecured debt securities and establish its terms; o to provide for a separate trustee for one or more series of unsecured debt securities; or -14- o to make any change that does not materially adversely affect the rights of any unsecured debt security holder. (Section 10.01) Legal Defeasance and Covenant Defeasance Unsecured debt securities of a series may be defeased at any time in accordance with their terms and as set forth in the indenture and described briefly below, unless the securities resolution establishing the terms of the series otherwise provides. Any defeasance may terminate all of our obligations (with limited exceptions) with respect to a series of unsecured debt securities and the indenture ("legal defeasance"), or it may terminate only our obligations under any restrictive covenants which may be applicable to a particular series ("covenant defeasance"). We may exercise our legal defeasance option even though we have also exercised our covenant defeasance option. If we exercise our legal defeasance option, that series of unsecured debt securities may not be accelerated because of an event of default. If we exercise our covenant defeasance option, that series of unsecured debt securities may not be accelerated by reference to any restrictive covenants which may be applicable to that particular series. (Section 8.01) To exercise either defeasance option as to a series of unsecured debt securities, we must: o irrevocably deposit in trust (the "defeasance trust") with the trustee under the indenture or another trustee money or U.S. government obligations; o deliver a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due on the deposited U.S. government obligations, without reinvestment, plus any deposited money without investment, will provide cash at the times and in the amounts necessary to pay the principal, premium, if any, and interest when due on all unsecured debt securities of the series to maturity or redemption, as the case may be; and o comply with certain other conditions. In particular, we must obtain an opinion of tax counsel that the defeasance will not result in recognition of any gain or loss to holders for federal income tax purposes. "U.S. government obligations" are direct obligations of (a) the United States or (b) an agency or instrumentality of the United States, the payment of which is unconditionally guaranteed by the United States, which, in either case (a) or (b), have the full faith and credit of the United States of America pledged for payment and which are not callable at the issuer's option. Such term also includes certificates representing an ownership interest in those obligations. (Section 8.02) Regarding the Trustee Wells Fargo Bank, National Association (as successor by merger to Norwest Bank Minnesota, National Association) will act as trustee and registrar for unsecured debt securities issued under the indenture and, unless otherwise indicated in a prospectus supplement, Wells Fargo Bank will also act as transfer agent and paying agent with respect to the unsecured debt securities. (Section 2.03) We may remove the trustee with or without cause if we so notify the trustee at least three months in advance of the date of the removal and if no default occurs during that period. (Section 7.07) The indenture provides that the holders of a least 25% or a majority in principal amount of the outstanding debt securities will have the right to require the trustee to take certain actions on behalf of the holders, as described in more detail above. Wells Fargo Bank also serves as the transfer agent and registrar of our common stock and provides other services to us in the ordinary course of business. -15- DESCRIPTION OF FIRST MORTGAGE BONDS The first mortgage 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, between us and The Bank of New York ("Principal Trustee") and UMB Bank & Trust, N.A., as trustees, as heretofore amended and supplemented and as to be supplemented by a supplemental indenture for each series of first mortgage bonds. In this prospectus, we refer to the original indenture as so amended and supplemented as the "mortgage." We have summarized all material provisions of the mortgage below. The summary is not complete. The mortgage (including certain supplemental indentures) are incorporated by reference as exhibits to the registration statement of which this prospectus is a part. The supplemental indenture for each new series will be filed or incorporated by reference as an exhibit to the registration statement. You should read the indenture and the applicable supplemental indenture for provisions that may be important to you. In the summary below, we have included references to section numbers in the mortgage so that you can easily find those provisions. The particular terms of any first mortgage bonds we offer will be described in the related prospectus supplement, along with any applicable modifications of or additions to the general terms of the first mortgage bonds described below and in the mortgage. For a description of the terms of any series of first mortgage bonds, you should also review both the prospectus supplement relating to that series and the description of the first mortgage bonds set forth in this prospectus before making an investment decision. General Each series of first mortgage 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 the series of first mortgage bonds is offered. As of June 30, 2005, the following first mortgage bonds were outstanding under the Indenture of Mortgage and Deed of Trust: o $20,000,000 aggregate principal amount of first mortgage bonds 8 1/8% series due 2009; o $50,000,000 aggregate principal amount of first mortgage bonds 6 1/2% series due 2010; o $25,000,000 aggregate principal amount of first mortgage bonds 7.20% series due 2016; o $8,000,000 aggregate principal amount of first mortgage bonds 5.3% Pollution Control Series due 2013; and o $5,200,000 aggregate principal amount of first mortgage bonds 5.2% Pollution Control Series due 2013. We have designated the principal office of The Bank of New York in the City of New York, New York, as our office or agency where principal, premium (if any), and interest on the first mortgage bonds will be payable. Unless the prospectus supplement with respect to a series of first mortgage bonds provides otherwise, interest on that series of first mortgage bonds will be paid to the person in whose name the first mortgage bond is registered at the close of business on the 15th day of the month preceding the interest payment date in respect thereof. The first mortgage bonds will be issued as fully registered bonds, without coupons, in denominations of $1,000 and integral multiples thereof. The first mortgage bonds will be transferable without any service or other charge by us 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 first mortgage bonds) -16- Security The first mortgage bonds will rank equally, 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 our counsel, Spencer, Scott & Dwyer, P.C., the mortgage constitutes a first mortgage lien on substantially all the fixed property and franchises owned by The Empire District Electric 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 that we own. (Granting and Habendum Clauses and Sections 1.04 and 1.05) The mortgage contains restrictions on o 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 the fair value of the property and 166 2/3% of the amount of bonds issuable on the basis of all available property additions; and o the issuance of bonds, withdrawal of cash or release of property on the basis of prior lien bonds and property additions subject to a prior lien. In addition, 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) Issuance of Additional First Mortgage Bonds The mortgage limits the aggregate principal amount of the bonds at any one time outstanding to $1,000,000,000. (Section 2.01, as amended by the fourteenth supplemental indenture) Additional first mortgage 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 after September 1, 1944; (b) the principal amount of certain retired bonds or prior lien bonds; and (c) the amount of cash deposited with the principal trustee. (Article 3) No bonds may be issued as provided in clauses (a) and (c) above, nor as provided in clause (b) above with certain exceptions, unless our net earnings (as defined in Section 1.06) are at least two times the annual interest on all first mortgage bonds (including the first mortgage bonds proposed to be issued) and indebtedness secured by a prior lien. (Article 3) Net earnings are computed without deduction of o income and profits taxes (as defined in the mortgage); o expenses or provisions for interest on any indebtedness, or for any sinking or similar fund for retirement of indebtedness; or o amortization of debt discount and expense. (Section 1.06) At June 30, 2005, we had net property additions and retired bonds which would enable the issuance of approximately $448.1 million of new first mortgage bonds, subject to meeting the earnings test. Our earnings for the -17- twelve months ended June 30, 2005 would permit us to issue approximately $206.0 million of new first mortgage bonds at an assumed interest rate of 6.0% per annum. Property additions must consist of property used or useful in the electric business acquired or constructed by us after September 1, 1944. (Section 1.05) We may withdraw cash deposited under clause (c) above in an amount equal to the first mortgage bonds issuable under clauses (a) and (b) above without regard to net earnings, or we may apply that cash to the purchase or redemption of first mortgage bonds of any series designated by us. (Sections 3.09, 3.10 and 8.11) Redemption Provisions Any provisions relating to the optional and mandatory redemption by us of a series of first mortgage bonds will be as set forth in the prospectus supplement by which such series is to be offered. Supplemental indentures under which certain outstanding series of first mortgage bonds were issued allow the holders of those bonds to require us to redeem or purchase them under certain circumstances. Provisions providing for mandatory redemption of any series of first mortgage bonds upon demand by the holders thereof will be as set forth in the prospectus supplement by which such series is to be offered. Sinking fund provisions applicable to a series of first mortgage bonds, if any, will be as set forth in the prospectus supplement by which that series is to be offered. Maintenance and Replacement Fund The mortgage does not provide for a maintenance and replacement fund for any series of first mortgage bonds. Dividend Restriction So long as any of the existing first mortgage bonds are outstanding, we will not declare or pay any dividends (other than dividends payable in shares of our common stock) or make any other distribution on, or purchase (other than with the proceeds of additional common stock financing) any shares of, our common stock if the cumulative aggregate amount thereof after August 31, 1944 (excluding the first quarterly dividend of $98,000) would exceed the earned surplus accumulated after August 31, 1944, or the date of succession in the event another corporation succeeds to our rights and liabilities by a merger or consolidation. (Section 4.11, as continued by the supplemental indentures relating to the existing first mortgage bonds) If we choose to continue this dividend restriction in a new series of first mortgage bonds issued with this prospectus, the prospectus supplement and supplemental indenture relating to that series will so state. Events of Default The mortgage provides generally that the following events constitute defaults under the mortgage: o failure for 60 days to pay any interest due on any outstanding first mortgage bonds; o failure to pay when due the principal of any outstanding first mortgage bonds or the principal of or interest on any outstanding prior lien bonds; o failure to perform or observe for 90 days after notice of that failure, any other covenant, agreement or condition of the mortgage (including the supplemental indentures) or any of the outstanding first mortgage bonds; and o the occurrence of insolvency, bankruptcy, receivership or similar events. (Section 9.01) -18- 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 first mortgage bonds may declare the first mortgage bonds immediately due and payable, but the holders of a majority in principal amount of the first mortgage bonds may rescind a declaration and its consequences if that default has been cured. (Section 9.01) The holders of not less than 75% in principal amount of the outstanding first mortgage bonds (including not less than 60% in aggregate principal amount of first mortgage 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 first mortgage 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) We are required to file with the Principal Trustee such information, documents and reports with respect to our compliance with the conditions and covenants of the mortgage as may be required by the rules and regulations of the SEC. No periodic evidence is required to be furnished, however, as to the absence of defaults. (Article 9) 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 first mortgage 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 first mortgage bonds of all series which may be affected by any such modification voting together. Without the consent of the holder of each first mortgage bond affected, the bondholders have no power to: o extend the time of payment of the principal of or interest on any first mortgage bonds; o reduce the principal amount of or the rate of interest on any first mortgage bonds or otherwise modify the terms of payment of principal or interest; o 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; o deprive any non-assenting bondholder of a lien upon the mortgaged property for the security of such bondholder's bonds; or o reduce the percentage of bondholders necessary to modify the mortgage. The consent of each holder, however, is not required for a modification that abolishes or changes any sinking or other fund. (Article 15, as amended by the twenty-fourth supplemental indenture) Concerning the Trustees The mortgage provides that the holders of a majority in principal amount of the outstanding first mortgage bonds will have the right to require the trustees to take certain action on behalf of the bondholders. Under certain circumstances, however, the trustees may decline to follow such directions or to exercise certain of their powers. Prior to taking an action, the trustees are entitled to indemnity satisfactory to them against costs, expenses and liabilities that may be incurred in the course of that action. This right does not, however, impair the absolute right of any bondholder to enforce payment of the principal of and interest on the holder's first mortgage bonds when due. (Sections 9.16 and 9.17) -19- DESCRIPTION OF COMMON STOCK Authorized and Outstanding Capital Stock Our authorized capital stock consists of 100,000,000 shares of common stock, par value $1.00 per share, of which 26,009,678 shares were outstanding as of August 1, 2005, 5,000,000 shares of cumulative preferred stock, par value $10.00 per share, of which no shares are outstanding, and 2,500,000 shares of preference stock, no par value, of which no shares are outstanding, but 500,000 shares are reserved for issuance under a shareholder rights agreement between Empire and Wells Fargo Bank, National Association (as successor to ChaseMellon Shareholder Services, L.L.C.). Dividend Rights Holders of our common stock are entitled to dividends, if, as and when declared by our board of directors out of funds legally available therefor subject to the prior rights of holders of our outstanding cumulative preferred and preference stock. Our indenture of mortgage and deed of trust governing our first mortgage bonds restricts our ability to pay dividends on our common stock as described under "--Certain Anti-Takeover Provisions" below. In addition, during interest deferral periods permitted thereunder and during defaults thereunder, our junior subordinated debentures, 8 1/2% series due 2031, may also restrict our ability to pay dividends on our common stock. Holders of our cumulative preferred or preference stock, if any, will be entitled to receive cumulative dividends if and when declared by our board of directors, and no dividend may be paid on our common stock unless full dividends on any outstanding cumulative preferred and preference stock have been paid or declared and set apart for payment and any required sinking fund or similar payments with respect to that stock have been made. The terms of any preference stock hereafter issued may place further limitations on the payment of dividends on or the purchase of our common stock. Voting Rights Subject to the voting rights of holders of the cumulative preferred and preference stock, if any, and any series thereof, each holder of common stock is entitled to one vote per share. Holders of the cumulative preferred stock, if any, will not be entitled to vote except: o as required by the laws of the State of Kansas; o upon a proposal to merge or consolidate or to sell substantially all of our assets; o upon proposals to authorize or issue specified shares of cumulative preferred stock or to create, issue or assume specified indebtedness or to amend our Restated Articles of Incorporation in a way that would adversely affect any of the preferences or other rights given to holders of the cumulative preferred stock, if any; or o if dividends payable on outstanding shares of the cumulative preferred stock, if any, shall be accumulated and unpaid in an amount equivalent to four full quarterly dividends (in this case, until those dividends are paid, holders of preferred stock would have the right to elect a majority of our board of directors and have the right to vote, together with the holders of common stock and the holders of preference stock, if any, entitled to vote, on all questions other than for the election of directors). Holders of any series of preference stock (subject to the prior rights of holders of any outstanding cumulative preferred stock) will have those voting rights as may be fixed by our board of directors for that series. Holders of preference stock will not otherwise be entitled to vote except as may be required by the laws of the State of Kansas. -20- Preference Stock Purchase Rights Each share of our common stock carries with it one Preference Stock Purchase Right (Right). A brief summary of the material features of these Rights is set forth below. This summary is not complete. For a full description of those Rights, please see our Form 8-A Registration Statement dated July 18, 2000, which is incorporated into this prospectus by reference. 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, 2010, will be exercisable only if an Acquiring Person acquires 10% or more of our common stock or if certain other events occur. The Rights may be redeemed by us 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 our common stock by an Acquiring Person. In addition, upon the occurrence of a merger or other business combination, or an event of the type referred to in the preceding paragraph, holders of the Rights, other than an Acquiring Person, will be entitled, upon exercise of a Right, to receive either our common stock or common stock of the Acquiring Person having an equal value to two times the exercise price of the Right. Any time after an Acquiring Person acquires 10% or more (but less than 50%) of our outstanding common stock, our board of directors may, at their option, exchange part or all of the Rights (other than Rights held by the Acquiring Person) for our common stock on a one-for-one basis. Articles of Incorporation Business Combinations. Our articles require the affirmative vote of holders of at least 80% of all outstanding shares of our voting stock to approve any Business Combination, as defined below, with a Substantial Stockholder, as defined below. For this purpose, a Substantial Stockholder means any person or company that owns 5% of our outstanding voting stock. A Business Combination means: o any merger, consolidation or share exchange involving Empire; o any sale or other disposition by us to a Substantial Stockholder, or by a Substantial Stockholder to us, of assets worth $10 million or more; o the issuance or transfer by us of securities worth $10 million or more; o the adoption of any plan of liquidation or dissolution proposed by a Substantial Stockholder; or o any recapitalization or other restructuring of Empire that has the effect of increasing the proportionate ownership of a Substantial Stockholder. The 80% voting requirement does not apply if at least two-thirds of our Continuing Directors, as defined below, approve the Business Combination, or all of the following conditions have been met: o the ratio of (1) the per share consideration received by our stockholders in the Business Combination to (2) the fair market value of our stock immediately before the announcement of the Business Combination is at least equal to the ratio of (1) the highest price per share that the Substantial Stockholder paid for any shares of stock within the two-year period prior to the Business Combination to (2) the fair market value of our stock immediately prior to the initial acquisition by the Substantial Stockholder of any stock during the two-year period; o the per share consideration received by our stockholders in the Business Combination must be at least equal to the highest of the following: -21- o The highest price per share paid by the Substantial Stockholder within the two-year period prior to the first public announcement of the Business Combination or in the transaction in which the stockholder became a Substantial Stockholder, whichever is higher, plus interest; o the fair market value per share of our stock on the date of the first public announcement of the Business Combination or the date the stockholder became a Substantial Stockholder, whichever is higher; o the book value per share of our stock on the last day of the calendar month immediately before (1) the date of the first public announcement of the Business Combination or (2) the date the stockholder became a Substantial Stockholder, whichever is higher; or o the highest preferential amount to which the stockholder is entitled in the event of a voluntary or involuntary liquidation or dissolution; o the consideration received by our stockholders must be in the same form paid by the Substantial Stockholder in acquiring its shares; o except as required by law, after the stockholder became a Substantial Stockholder there is no reduction in the rate of dividends, except as approved by at least two-thirds of the Continuing Directors; we do not take any action which allows any holder of any cumulative preferred stock or any preference stock to elect directors without the approval of the Continuing Directors; the Substantial Stockholder does not acquire any newly issued voting shares from Empire; and the Substantial Stockholder does not acquire any additional Empire voting shares or securities convertible into Empire voting shares after becoming a Substantial Stockholder; o prior to the consummation of the Business Combination, the Substantial Stockholder does not receive any financial assistance from us and does not make any change in our business or equity capital structure without approval of the Continuing Directors; and o a disclosure statement that satisfies the SEC's proxy rules is sent to the voting stockholders describing the Business Combination. For this purpose, Continuing Directors means directors who were directors before a Substantial Stockholder became a Substantial Stockholder or any person designated as a Continuing Director by at least two-thirds of the then Continuing Directors. Amendment of By-Laws. The articles also require the affirmative vote of holders of at least 80% of the shares entitled to vote or at least two-thirds of the Continuing Directors to amend our By-Laws. Classified Board. Under the articles, our board of directors is divided into three classes, one of which is elected for a three-year term at each annual meeting of stockholders. Notice Provisions. The articles further require that stockholders give timely written notice to us of nominations for Empire directors they intend to make and business they intend to bring before a meeting of the stockholders. Notice is timely if received by our Secretary not less than 35 nor more than 50 days prior to a meeting. In the case of proposed business, the stockholder's notice must set forth information describing the business and in the case of nominations for directors, the articles further require that the stockholder's notice set forth certain information concerning the stockholder and the nominee. Amendment. The affirmative vote of the holders of at least 80% of the shares entitled to vote or at least two-thirds of the Continuing Directors is required to amend or repeal the above described provisions or adopt a provision inconsistent therewith. -22- Certain Anti-Takeover Provisions General. We have a Severance Plan which provides certain key employees with severance benefits following a change of control of Empire. Some of our executive officers and senior managers were selected by the Compensation Committee of the board of directors to enter into one-year agreements under the Severance Plan which are automatically extended for one-year terms unless we have given prior notice of termination. A participant in the Severance Plan is entitled to receive specified benefits in the event of certain involuntary terminations of employment occurring (including terminations by the employee following specified changes in duties, benefits, etc. that are treated as involuntary terminations) within three years after a change in control, or a voluntary termination of employment occurring between 12 and 18 months after a change in control. A senior officer participant would be entitled to receive benefits of three times such participant's annual compensation. A participant who is not a senior officer would receive approximately two weeks of severance compensation for each full year of employment with us with a minimum of 17 weeks. Payments to participants resulting from involuntary terminations are to be paid in a lump sum within 30 days following termination, while payments resulting from voluntary termination are paid in monthly installments and cease if the participant becomes otherwise employed. In addition, all restricted stock held by a participant vests upon voluntary or involuntary termination after a change of control. Also, participants who qualify for payments under the Severance Plan will continue to receive benefits for a specified period of time under health, insurance and our other employee benefit plans in existence at the time of the change in control. If any payments are subject to the excise tax on "excess parachute payments" under Section 4999 of the Internal Revenue Code, senior officer participants are also entitled to an additional amount essentially designed to put them in the same after-tax position as if this excise tax had not been imposed. Certain terms of the indenture of mortgage and deed of trust governing our first mortgage bonds may also have the effect of delaying, deferring or preventing a change of control. The indenture provides that we may not declare or pay any dividends (other than dividends payable in shares of our common stock) or make any other distribution on, or purchase (other than with the proceeds of additional common stock financing) any shares of, our common stock if the cumulative aggregate amount thereof after August 31, 1944 (exclusive of the first quarterly dividend of $98,000 paid after that date) would exceed the earned surplus (as defined in the indenture) accumulated subsequent to August 31, 1944, or the date of succession in the event that another corporation succeeds to our rights and liabilities by a merger or consolidation. Please refer to "--Preference Stock Purchase Rights" above for information with respect to such Rights. Kansas Business Combination Statute. We are subject to the provisions of the "business combination statute" in Kansas (Sections 17-12,100 to 12,104 of the Kansas General Corporation Code). This statute 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: o prior to that time, the board of directors of the corporation approved either the business combination or the transaction that resulted in such person becoming an interested stockholder; o upon consummation of the transaction that resulted in such person becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding shares owned by persons who are directors and also officers of the corporation and shares held by specified employee stock ownership plans; or o on or after 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. The statute defines a "business combination" to include: -23- o any merger or consolidation involving the corporation and an interested stockholder; o any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving an interested stockholder; o 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; o 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 stockholder; or o the receipt by an interested stockholder of any loans, guarantees, pledges or other financial benefits provided by or through the corporation. In addition, the statute 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. See also "--Business Combinations" above for restrictions on business combinations in our Restated Articles of Incorporation. Liquidation Rights On liquidation the holders of the common stock are entitled to receive any of our assets remaining after distribution to the holders of cumulative preferred and preference stock, if any, of the liquidation preferences of those classes of stock and accumulated unpaid dividends thereon. Other In addition to the limitations described above under "--Dividend Rights," we may not purchase any shares of common stock unless full dividends shall have been paid or declared and set apart for payment on the outstanding cumulative preferred and preference stock, if any, and any required sinking fund payments with respect to that stock have been made. The common stock is not subject to redemption and has no conversion or preemptive rights. -24- DESCRIPTION OF PREFERENCE STOCK General We are authorized to issue 2,500,000 shares of preference stock, no par value, of which no shares are outstanding, but 500,000 shares are reserved for issuance under a shareholder rights agreement between Empire and Wells Fargo Bank, National Association (as successor to ChaseMellon Shareholder Services, L.L.C.). The preference 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 our board of directors without any further action by our stockholders. The preference stock will have the dividend, liquidation, redemption, voting, and conversion or exchange rights set forth below and as provided for in a prospectus supplement relating to any particular series of preference stock. Reference is made to the prospectus supplement relating to the particular series of preference stock offered thereby for that series' specific terms, which may include one or more of the following: 1) the designation and number of shares offered; 2) the liquidation preferences per share; 3) the initial public offering price; 4) the dividend rate or rates, or the method of determining the dividend rate or rates; 5) the dates on which dividends will accrue; 6) any redemption or sinking fund provision; 7) voting or other special rights; 8) the conversion or exchange rights, if any, and the terms and conditions of such conversion or exchange, including provisions for adjustment of the conversion or exchange rate and the triggering events; 9) any restrictive covenants or conditions on matters such as the payment of dividends on or the purchase of common stock; and 10) any designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions. Dividends Subject to the prior rights of the holders of any outstanding cumulative preferred stock, the holders of the preference stock will be entitled to receive, if and when declared by our board of directors out of funds legally available therefor, those dividends as may be fixed for the series thereof, payable on such date or dates or upon such terms and conditions as are so fixed by our board of directors. Dividends on preference stock of all series will be cumulative from the date of issuance. In addition, under certain circumstances (including defaults thereunder), our junior subordinated debentures, 8 1/2% series due 2031, may also restrict our ability to pay dividends on our preferred stock. -25- Liquidation Provisions relating to the liquidation preference payable by us on each series of preference stock will be as set forth in the prospectus supplement related to such series of preference stock. Subject to the prior rights of holders of any outstanding cumulative preferred stock, if, upon any liquidation, dissolution or winding up, the assets distributable among the holders of preference 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 Empire to be distributed shall be distributed among the holders of preference 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 Empire 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 Empire. Redemption Provisions Any provisions relating to the optional redemption by us of each series of preference stock will be as set forth in the prospectus supplement related to that series of preference stock. Any provisions relating to a sinking fund of any series of the preference stock will be as set forth in the prospectus supplement by which that preference stock is to be offered. Subject to the prior rights of the holders of any outstanding cumulative preferred stock, we may repurchase or redeem, including redemption for any sinking fund, shares of the preference stock at prices not exceeding the redemption price thereof while there is an arrearage in the payment of dividends thereon. Subject to the prior rights of the holders of any outstanding cumulative preferred stock, to the extent provided in the related prospectus supplement, shares of preference stock of any series may also be subject to (1) redemption at the option of the holder thereof, or upon the happening of a specified event, if and as fixed for such series, upon the terms and conditions fixed for that series and (2) redemption or purchase through the operation of a sinking fund, purchase fund or similar fund fixed for that series, upon the terms and conditions fixed for such series. If at any time we are prohibited by the terms of our junior subordinated debentures, 8 1/2% series due 2031, from paying dividends on our preference stock, then we will also be prohibited from repurchasing or redeeming any shares of our preference stock. Voting Rights Holders of any series of preference stock (subject to the prior rights of holders of any outstanding cumulative preferred stock) will have those voting rights as may be fixed by our board of directors for that series and described in the related prospectus supplement. Holders of preference stock will not otherwise be entitled to vote except as may be required by the laws of the State of Kansas. Conversion and Exchange Rights To the extent provided in the related prospectus supplement, the preference stock of each series may be convertible into or exchangeable for shares of any other class or classes or any other series of the same or any other class or classes of our stock, at the option of the holders or us upon the happening of a specified event, at such price or prices or at the rate or rates of exchange and with the adjustments, and upon the other terms and conditions, as may be fixed for that series; provided that no shares of preference stock may be convertible into or exchangeable for shares of our cumulative preferred stock or any of our stock that ranks prior to or on a parity with that preference stock in respect of dividends or assets. Shares of preference stock purchased, redeemed or converted into or exchanged for shares of any other series or class will be deemed to be, and will be restored to the status of, authorized but unissued shares of preference stock undesignated as to series. -26- PLAN OF DISTRIBUTION We may sell the securities in any of the following ways: o through underwriters or dealers; o directly to one or more purchasers; or o through agents. The applicable prospectus supplement will set forth the terms of the offering of any securities, including: o the names of any underwriters or agents; o the purchase price of the securities being offered and the proceeds to us from such sale; o any underwriting discounts and other items constituting underwriters' compensation; o any initial public offering price; o any discounts or concessions allowed or reallowed or paid to dealers; and o any securities exchange on which the securities being offered may be listed. If underwriters are used in the sale of the securities, the 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. Those securities may be offered to the public either through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Unless otherwise described in the applicable prospectus supplement, the obligations of the underwriters to purchase the securities being offered will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all of the securities being offered if any of the securities being offered 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. Securities also may be sold directly by us or through agents that we designate from time to time. Any agent involved in the offer or sale of securities will be named and any commissions payable by us to such agent will be described in the applicable prospectus supplement. Unless otherwise described 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 our securities, the purchase agreement in connection with that sale may provide for an option on the part of the underwriters to purchase additional securities within 30 days of the execution of the purchase agreement, which option may be exercised solely to cover over-allotments. Any over-allotment option will be disclosed in the prospectus supplement in connection with the securities offered thereby. If indicated in a prospectus supplement relating to our unsecured debt securities or first mortgage bonds, we may authorize agents, underwriters or dealers to solicit offers by certain institutions to purchase the unsecured debt securities or first mortgage bonds from us at the public offering price set forth in the prospectus supplement under delayed delivery contracts providing for payment and delivery on the date or dates stated in the prospectus supplement. Each delayed delivery contract will be for an amount not less than, and the aggregate amount of the unsecured debt securities or first mortgage bonds sold under the delayed delivery contracts shall be not less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the delayed delivery contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, -27- investment companies, educational and charitable institutions, and other institutions, but will in all cases be subject to our approval. The delayed delivery contracts will not be subject to any conditions except: o the purchase by an institution of the unsecured debt securities or first mortgage bonds covered by its delayed delivery 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 o if the unsecured debt securities or first mortgage bonds are being sold to underwriters, we shall have sold to those underwriters the total amount of the securities less the amount of the unsecured debt securities or first mortgage bonds covered by the delayed delivery contracts. The underwriters will not have any responsibility in respect of the validity or performance of the delayed delivery contracts. If dealers are utilized in the sale of any securities we will sell those securities to the dealers, as principal. Any dealer may then resell those securities to the public at varying prices as it determines at the time of resale. The name of any dealer and the terms of the transaction will be set forth in the prospectus supplement relating to the securities being offered thereby. We have not determined whether the preference stock, unsecured debt securities or first mortgage bonds will be listed on a securities exchange. Underwriters will not be obligated to make a market in any of the securities. We cannot predict the activity of trading in, or liquidity of, our preference stock, unsecured debt securities or first mortgage bonds. The common stock (and the related preference stock purchase rights) 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. Agents and underwriters may be entitled under agreements entered into with us to indemnification by us 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, us or our affiliates in the ordinary course of business. LEGAL OPINIONS Certain legal matters in connection with the securities will be passed upon for us by Spencer, Scott & Dwyer, P.C., Joplin, Missouri; Anderson & Byrd, Ottawa, Kansas; Brydon, Swearengen & England, Professional Corporation, Jefferson City, Missouri; and Cahill Gordon & Reindel LLP, New York, New York. Certain legal matters will be passed upon for the underwriters by Thompson Coburn LLP, St. Louis Missouri. Cahill Gordon & Reindel LLP will rely as to the matters of Kansas law upon the opinion of Anderson & Byrd, and as to matters of Missouri law (except as to matters relating to the approval of public utility commissions as to which such counsel will rely on the opinion of Brydon, Swearengen & England, Professional Corporation) upon the opinion of Spencer, Scott & Dwyer, P.C. As of June 30, 2005 members of Spencer, Scott & Dwyer, P.C. held an aggregate of 5,075 shares of our common stock. EXPERTS The financial statements and management's assessment of the effectiveness of internal control over financial reporting (which is included in Management's Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to Empire's Annual Report on Form 10-K for the year ended December 31, 2004 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting. -28-
No dealer, salesperson, or other person is authorized to give THE EMPIRE DISTRICT any information or to represent anything not contained in this ELECTRIC COMPANY prospectus. You must not rely on any unauthorized information or representations. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in this prospectus is current only as of its date. ________________ $400,000,000 TABLE OF CONTENTS Page UNSECURED DEBT SECURITIES Risk Factors..................................2 FIRST MORTGAGE BONDS Where You Can Find More Information...........4 Forward Looking Statements....................5 COMMON STOCK Information About Empire......................6 Use of Proceeds...............................6 AND Earnings Ratios...............................6 Description of Unsecured Debt Securities......7 PREFERENCE STOCK Description of First Mortgage Bonds...........14 ________________ Description of Common Stock...................18 Description of Preference Stock...............23 PROSPECTUS Plan of Distribution..........................25 ________________ Legal Opinions................................26 Experts.......................................26 Dated , 2005
INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission Registration Fee.............................. $43,068 Counsel Fees and Expenses........................................................ 250,000(1) Services of Registered Public Accounting Firm.................................... 38,500(1) Trustee's Fees and Expenses...................................................... 33,000(1)(2) Printing Expenses, including Engraving........................................... 150,000(1) Unsecured Debt Securities, First Mortgage Bonds and Preference Stock Rating Fees. 44,000(1)(2) Blue Sky Fees and Expense........................................................ 16,500(1) Transfer Agent and Registrar Fees................................................ 5,500(1)(3) Stock Exchange Listing Fees...................................................... 10,000(3) Miscellaneous Expenses........................................................... 9,432(1) ---------------------- Total.......................................................... 600,000(1)
____________________ (1) Estimated as if the securities were sold in three different offerings with three separate prospectus supplements. (2) Required only if unsecured debt securities or first mortgage bonds are issued. (3) Required only if common stock or preference stock is issued. II-1 Item 15. Indemnification of Officers and Directors. The Empire District Electric Company is organized under the laws of the State of Kansas. Our Restated Articles of Incorporation and Bylaws contain provisions permitted by the Kansas General Corporation Code which, in general terms, provide that directors and officers will be indemnified by us 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 Empire, if they meet certain specified conditions, and provide for the advancement by us to our directors and officers of expenses incurred by them in defending suits arising out of their service as such. Our directors and officers 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 us. The proposed forms of purchase agreements between us and any purchaser, filed as Exhibits 1(a), 1(b), 1(c) and 1(d) 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. We, the undersigned registrant, hereby undertake: (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 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; (ii) 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. II-2 The undersigned registrant hereby undertakes that, for purposes 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 is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, The Empire District Electric Company 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 October 17, 2005. THE EMPIRE DISTRICT ELECTRIC COMPANY By: /s/ William L. Gipson ---------------------------------- Name: William L. Gipson Title: 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/ William L. Gipson President, Chief Executive Officer - ----------------------------------- and Director (Principal Executive William L. Gipson Officer) October 17, 2005 /s/ Gregory A. Knapp Vice President-Finance (Principal - ----------------------------------- Financial Officer) October 17, 2005 Gregory A. Knapp * Controller, Assistant Treasurer and - ----------------------------------- Assistant Secretary (Principal Laurie A. Delano Accounting Officer) October 17, 2005 * Director - ----------------------------------- Kenneth R. Allen October 17, 2005 * Director - ----------------------------------- Ross C. Hartley October 17, 2005 * Director - ----------------------------------- Bill D. Helton October 17, 2005 * Director - ----------------------------------- D. Randy Laney October 17, 2005 * Director - ----------------------------------- Julio S. Leon October 17, 2005 * Director - ----------------------------------- Myron W. McKinney October 17, 2005 * Director - ----------------------------------- B. Thomas Mueller October 17, 2005 * Director - ----------------------------------- Mary M. Posner October 17, 2005 * Director - ----------------------------------- Allan T. Thoms October 17, 2005 *By /s/ Gregory A. Knapp --------------------------------------- (Gregory A. Knapp, as attorney in fact for each of the persons indicated) October 17, 2005
EXHIBIT INDEX Exhibit Number Description of Exhibit - ------ ---------------------- 1(a)* - Form of Purchase Agreement for Common Stock. 1(b)* - Form of Purchase Agreement for Unsecured Debt Securities. 1(c)* - Form of Purchase Agreement for First Mortgage Bonds. 1(d)* - Form of Purchase Agreement for Preference Stock. 2(a) - Asset Purchase Agreement by and between Aquila, Inc. and Empire dated as of September 21, 2005 (Incorporated by reference to Exhibit 2.1 to Current Report on Form 8-K filed on September 23, 2005, File No. 1-3368). 4(a) - Restated Articles of Incorporation (Incorporated by reference to Exhibit 4(a) to Registration Statement No. 33-54539 on Form S-3). 4(b) - Rights Agreement dated April 27, 2000 between Empire and Wells Fargo Bank, National Association (successor to ChaseMellon Shareholder Services, L.L.C.), as Rights Agent (Incorporated by reference to Exhibit 4 to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, File No. 1-3368). 4(c) - Indenture for Unsecured Debt Securities, dated as of September 10, 1999 between Empire and Wells Fargo Bank, National Association (as successor by merger to Norwest Bank Minnesota, National Association) (Incorporated by reference to Exhibit 4(v) to Registration Statement No. 333-87105 on Form S-3). 4(d) - Securities Resolution No. 2, dated as of February 22, 2001, of Empire under the Indenture for Unsecured Debt Securities (Incorporated by reference to Exhibit 4(s) to the Annual Report on Form 10-K for the year ended December 31, 2000, File No. 1-3368). 4(e) - Securities Resolution No. 3, dated as of December 18, 2002, of Empire under the Indenture for Unsecured Debt Securities (Incorporated by reference to Exhibit 4(s) to the Annual Report on Form 10-K for the year ended December 31, 2002, File No. 1-3368). 4(f) - Securities Resolution No. 4, dated as of June 10, 2003, of Empire under the Indenture for Unsecured Debt Securities. (Incorporated by reference to Exhibit 4 to the Current Report on Form 8-K filed on July 29, 2003, File No. 1-3368). 4(g) - Securities Resolution No. 5, dated as of October 29, 2003, of Empire under the Indenture for Unsecured Debt Securities. (Incorporated by reference to Exhibit 4 to the Quarterly Report on Form 10-Q filed on November 10, 2003, File No. 1-3368). 4(h) - Securities Resolution No. 6, dated as of June 27, 2005, of Empire under the Indenture for Unsecured Debt Securities. (Incorporated by reference to Exhibit 4 to the Current Report on Form 8-K filed on June 28, 2005, File No. 1-3368). 4(i) - Form of Securities Resolution for Unsecured Debt Securities (Incorporated by reference to Exhibit 4(w) to Registration Statement No. 333-87105 on Form S-3). 4(j) - Indenture of Mortgage and Deed of Trust dated as of September 1, 1944 among Empire, The Bank of New York and UMB Bank & Trust, N.A. (Incorporated by reference to Exhibits B(1) and B(2) to Form 10, File No. 1-3368). 4(k) - 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). 4(l) - Fourteenth Supplemental Indenture to Indenture of Mortgage and Deed of Trust (Incorporated by reference to Exhibit 4(f) to Registration No. 333-56635 on Form S-3). 4(m) - Twenty-Second Supplemental Indenture to Indenture of Mortgage and Deed of Trust (Incorporated by reference to Exhibit 4(k) to Form 10-K for the year ended December 31, 1993, File No. 1-3368). 4(n) - Twenty-Third Supplemental Indenture to Indenture of Mortgage and Deed of Trust (Incorporated by reference to Exhibit 4(l) to Form 10-K for the year ended December 31, 1993, File No. 1-3368). 4(o) - Twenty-Fourth Supplemental Indenture to Indenture of Mortgage and Deed of Trust (Incorporated by reference to Exhibit 4(m) to Form 10-K for the year ended December 31, 1993, File No. 1-3368). 4(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 Registration Statement No. 333-56635 on Form S-3). 4(q) - 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 the year ended December 31, 1996, File No. 1-3368). 4(r) - Twenty-Ninth Supplemental Indenture dated as of April 1, 1998 to Indenture of Mortgage and Deed of Trust (Incorporated by reference to Exhibit 4 to Form 10-Q for the quarter ended March 31, 1998, File No. 1-3368). 4(s) - Form of Supplemental Indenture relating to the First Mortgage Bonds (Incorporated by reference to Exhibit 4(t) to Registration Statement No. 333-35129 on Form S-3). 4(t) - $150,000,000 Unsecured Credit Agreement, dated as of July 15, 2005, among Empire, UMB Bank, N.A., as administrative agent, Bank of America, N.A., as syndication agent, and the lenders named therein. (Incorporated by reference to Exhibit 4 to Quarterly Report on Form 10-Q for the quarter ended June 30, 2005, File No. 1-3368). 4(u)* - Form of Certificate of Designation for Preference Stock. 5(a)* - Opinion of Anderson & Byrd regarding the legality of the Common Stock, the Unsecured Debt Securities and Preference Stock. 5(b)* - Opinion of Spencer, Scott & Dwyer P.C. regarding the legality of the First Mortgage Bonds. 12(a)* - Computation of Ratios of Earnings to Fixed Charges for the six months ended June 30, 2005. 12(b) - Computation of Ratios of Earnings to Fixed Charges for the year ended December 31, 2004 (incorporated by reference to Exhibit 12 to Form 10-K for the year ended December 31, 2004, File No. 1-3368). 23(a)* - Consent of PricewaterhouseCoopers LLP. -2- 23(b) - Consent of Anderson & Byrd (included in Exhibit 5(a) hereto). 23(c) - Consent of Spencer, Scott & Dwyer P.C. (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 Wells Fargo Bank, National Association. 25(b)* - Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 (on Form T-1) of The Bank of New York. 25(c)* - Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 (on Form T-1) of UMB Bank & Trust, N.A. _______________________ * Filed with this Registration Statement. -3- EX-1.A 2 empires3-101405ex1a.txt STANDARD PURCHASE PROVISIONS Exhibit 1(a) THE EMPIRE DISTRICT ELECTRIC COMPANY COMMON STOCK STANDARD PURCHASE PROVISIONS INCLUDING FORM OF PURCHASE AGREEMENT The Empire District Electric Company Form of Purchase Agreement Common Stock ----------------------- (Date) The Empire District Electric Company 602 Joplin Street Joplin, Missouri 64801 Ladies and Gentlemen: We refer to the Common Stock, $1.00 par value, of The Empire District Electric Company (the "Company"), a Kansas corporation, covered by Registration Statement No. 333-________, which became effective on _________________ (the "Registration Statement"). On the basis of the representations, warranties and agreements contained in this Agreement, but subject to the terms and conditions herein set forth, the purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to purchase, severally, and the Company agrees to sell to the Purchasers, severally, the respective numbers of shares of the Company's Common Stock referred to below (the "Firm Common Stock") set forth opposite the name of each Purchaser on Schedule A hereto. The Company also grants to the Purchasers an option to purchase _______ additional shares of the Company's Common Stock (the "Additional Common Stock") on the terms and conditions contained in this Agreement for the sole purpose of covering over-allotments. The Firm Common Stock and the Additional Common Stock are collectively referred to as the "Purchased Common Stock." The price at which the Purchased Common Stock shall be purchased from the Company by the Purchasers shall be $______ per share. The initial public offering price shall be $______ per share. The Purchased Common Stock will be offered as set forth in the Prospectus Supplement relating to such Purchased Common Stock. The Sale of the Purchased Common Stock will take place as follows: The "Closing Date" (as defined in Section 2 of the Company's Standard Purchase Provisions -- Common Stock) shall be: _______________________ -2- The closing of the purchase and sale of the Purchased Common Stock shall take place at: _______________________ The purchase price for the Purchased Common Stock shall be paid by: _______________________ The funds used to pay for the Purchased Common Stock shall be: _______________________ Other: _______________________ Notice to the Purchasers shall be sent to the addresses set forth in Schedule A hereto: If we are acting as Representative(s) for the several Purchasers named in Schedule A hereto, we represent that we are authorized to act for such several Purchasers in connection with this financing, and that, if there are more than one of us, any action under this Agreement taken by any of us will be binding upon all the Purchasers. All of the provisions contained in the document entitled "The Empire District Electric Company, Standard Purchase Provisions--Common Stock," a copy of which has been previously furnished to us (the "Standard Purchase Provisions"), are hereby incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. -3- If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and the several Purchasers in accordance with its terms. Very truly yours, [NAME OF PURCHASER] By: Name: Title: Acting on behalf of itself and as Representative(s) of the several Purchasers named in Schedule A hereto.(a) The foregoing Purchase Agreement is hereby confirmed as of the date first above written THE EMPIRE DISTRICT ELECTRIC COMPANY By: _______________________________ Name: Title: - ---------- (a) To be deleted if the Purchase Agreement is not executed by one or more Purchasers acting as Representative(s) of the Purchasers for purposes of this Agreement. SCHEDULE A TO PURCHASE AGREEMENT Number of Shares of Address and Firm Common Stock Name Telecopier Number to Be Purchased - ---- ----------------- --------------- ------------ Total ============ THE EMPIRE DISTRICT ELECTRIC COMPANY STANDARD PURCHASE PROVISIONS -- COMMON STOCK From time to time, The Empire District Electric Company, a Kansas corporation ("Company"), may enter into purchase agreements that provide for the sale of shares of the Company's 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"). Each share of Common Stock will have associated with it one preference stock purchase right. Each such right enables the holder to acquire one one-hundredth of a share of the Company's Series A Participating Preference Stock under certain circumstances. 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 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. The Closing Date and the Additional Closing Date may be the same. 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 -2- purchased by each of them (subject to such adjustment as you shall determine to avoid fractional shares), all or a portion of the Additional Common Stock, if any, as may be necessary to cover over-allotments made in connection with the offering of the Firm Common Stock, at the same purchase price per share to be paid by the Purchasers to the Company for the Firm Common Stock, all subject to the terms and conditions set forth in this Agreement. This option may be exercised at any time (but not more than once) on or before the thirtieth day following the date hereof, by your written notice to the Company. Such notice shall set forth the aggregate number of shares of Additional Common Stock as to which the option is being exercised, and the date and time when the Additional Common Stock is to be delivered (such date and time being herein referred to as the "Additional Closing Date"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date nor earlier than the third business day after the date on which the option shall have been exercised nor later than the eighth business day after the date on which the option shall have been exercised. The number of shares of Additional Common Stock to be sold to each Purchaser shall be the number which bears the same proportion to the aggregate number of shares of Additional Common Stock being purchased as the number of shares of Firm Common Stock set forth opposite the name of such Purchaser on Schedule A to the Purchase Agreement bears to the total number of shares of Firm Common Stock (subject, in each case, to such adjustment as you may determine to eliminate fractional shares). Payment of the purchase price for the Additional Common Stock, if any, shall be made on the Additional Closing Date in the same manner and at the same office as the payment for the Firm Common Stock. The Company agrees to make available to you for inspection and packaging at the place set forth in the Purchase Agreement, at least one full business day prior to the Additional Closing Date, the Additional Common Stock so to be delivered in good delivery form and in such denominations and registered in such names as you shall have requested, all such requests to have been made in writing at least three full business days prior to the Additional Closing Date, or if no such request is made, registered in the names of the several Purchasers as set forth in Schedule A to the Purchase Agreement. 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 (the "Prospectus Supplement") and all prior amendments and supplements thereto (other than supplements and amendments relating to securities that are not Purchased Common Stock) and all documents filed as a part thereof or incorporated therein pursuant to Item 12 of Form S-3 (other than the Statements of Eligibility and Qualification of trustees filed as a part thereof (the "Forms T-1")), is hereinafter referred to as the "Registration Statement" and such prospectus, -3- as so amended or supplemented (including all material so incorporated by reference therein), in the form first filed by the Company pursuant to Rule 424(b) under the Act is hereinafter referred to as the "Prospectus." (b) The Registration Statement and the Prospectus conform in all respects to the requirements of the Securities Act of 1933, as amended ("Act"), and the pertinent published rules and regulations ("Rules and Regulations") of the Commission, and none of such documents includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements or omissions in either of such documents based upon written information furnished to the Company by any Purchaser specifically for use therein. The documents incorporated by reference in the Registration Statement or the Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time they were filed with the Commission, complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the pertinent published rules and regulations thereunder (the "Exchange Act Rules and Regulations") and any additional documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the Exchange Act and the Exchange Act Rules and Regulations and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (b) The Company has an authorized capitalization as set forth in the Prospectus. (c) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectus. (d) The Company is duly qualified to do business as a foreign corporation and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its businesses requires such qualification, except where the failure to so qualify would not reasonably be expected to have a material adverse effect on the business, properties, financial condition or results of operation of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). The Company has no "significant subsidiary," as such term is defined in Rule 405 of the Rules and Regulations. (e) The Company (1) is not in violation of its charter or by-laws, (2) is not in default in any material respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject and (3) is not in violation in any material respect of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject and has not failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except, in the case of -4- clause (2) or (3) above, for any such default, violation or failure that would not reasonably be expected to result in a Material Adverse Effect. (f) The execution, delivery and performance of this Agreement and the issuance of the Purchased Common Stock and consummation of the transactions contemplated hereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would result in any breach of, or constitute a default under), any provisions of the charter or by-laws of the Company or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Company is a party or by which it or its respective properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company, except for any such conflict, breach or default which would not reasonably be expected to result in a Material Adverse Effect. (g) The Purchased Common Stock has been duly authorized by the Company and when issued and delivered by the Company against payment therefor in accordance with the Agreement will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and general principles of equity. (h) This Agreement has been duly authorized, executed and delivered by the Company. (i) The Purchased Common Stock conforms in all material respects to the descriptions thereof contained in the Registration Statement and Prospectus. (j) The Company has obtained or made all approvals, authorizations, consents or orders of or filings with any national, state or local governmental or regulatory commission, board, body, authority or agency required in connection with the issuance and sale of the Purchased Common Stock or the consummation by the Company of the transactions as contemplated hereby other than any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Purchased Common Stock is being offered by the Purchasers. (k) There are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law, in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. (l) The audited financial statements included in the Registration Statement and the Prospectus present fairly in all material respects the consolidated financial position of the Company as of the dates indicated and the consolidated results of operations and cash flows of the Company for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved, except as otherwise set forth therein. The interim unaudited financial statements included in the Registration -5- Statement and the Prospectus present fairly in all material respects the consolidated financial position of the Company as of the dates indicated and the consolidated results of operations and cash flows of the Company for the periods specified subject to year-end adjustments; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved, except as otherwise set forth therein. (m) The accountants who certified the audited financial statements of the Company and supporting schedules and notes thereto incorporated by reference in the Prospectus are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (the "PCAOB"). (n) The Company is not, and, as of the Closing Date after giving effect to the application of the net proceeds as described in the Prospectus, will not be, an "investment company" as defined in the Investment Company Act of 1940, as amended. (o) The Company, and its directors and officers in their capacity as such, have each complied, and currently are in compliance, in all material respects with the Sarbanes-Oxley Act of 2002 and all rules and regulations of the Commission and the New York Stock Exchange issued or adopted in connection therewith. (p) There has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes or hazardous substances by the Company or any of its subsidiaries (or, to the actual knowledge of the Company, any of their predecessors in interest) at, upon or from any of the property now or previously owned or leased by the Company or its subsidiaries in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial action under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or remedial action which would not reasonably be expected to have, singularly or in the aggregate with all such violations and remedial actions, a Material Adverse Effect; there has been no material spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environment surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous substances due to or caused by the Company or any of its subsidiaries or with respect to which the Company or any of its subsidiaries have actual knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not reasonably be expected to have, singularly or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumpings and releases, a Material Adverse Effect; and the terms "hazardous wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to environmental protection. (q) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and (i) such disclosure controls and procedures are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company's Chief Executive Officer and its Chief Financial Officer by others within those entities; (ii) such disclosure controls and procedures -6- are effective to perform the functions for which they were established; and (iii) since the date of the most recent evaluation there have been no changes in the Company's internal control over financial reporting that have materially affected, or are reasonably likely to materially affect the Company's internal control over financial reporting. Based on the most recent evaluation of internal control over financial reporting, the Company's auditors and the Audit Committee of the Board of Directors have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company's ability to record, process, summarize, and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company's internal control over financial reporting. (r) 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. (s) The Company maintains insurance covering its properties, operations, personnel and businesses as the Company deems adequate; such insurance insures against such losses and risks to an extent which is adequate, in the good faith judgment of management, to protect the Company and its business. (t) Any statistical and market-related data included in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, and the Company has obtained the written consent to the use of such data from such sources to the extent required. 4. Agreements of the Company. The Company agrees with the several Purchasers that: (a) The Company will advise you promptly of any proposal to amend or supplement the Registration Statement or the Prospectus with respect to any Purchased 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 amendments to exhibits and supplements relating to securities that 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 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 -7- 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 after the effective date of the Registration Statement. (f) For a period of one year, the Company will furnish to you copies of any report or definitive proxy statement which the Company shall file with the Commission under the Exchange Act, and copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally. For purposes of this clause (f), any information filed by the Company on the Commission's EDGAR system will be deemed furnished to you in satisfaction of this clause (f). (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 Supplement. (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. (i) The Company will advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, of the suspension of the qualification of the Purchased Common Stock -8- for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the prompt withdrawal of such order. 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 listing of the Purchased Common Stock on the New York Stock Exchange; (iv); the reproduction or printing and mailing in reasonable quantities of the Registration Statement and amendments thereto, each preliminary prospectus, the Prospectus and any amendments or supplements thereto, this Agreement, any Blue Sky memoranda delivered to the Purchasers; (v) reasonable filing fees and expenses (including legal fees and disbursements, not in excess of $5,000) incurred in connection with the qualification of the Purchased Common Stock under the Blue Sky or securities laws of the various states, and the preparation of Blue Sky memoranda for the offering; (vi) the fees and expenses of the transfer agent and registrar for the Purchased Common Stock (vii) the fees and expenses of the accountants and the counsel for the Company and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. (b) The Purchasers will pay (i) the fees and disbursements of their respective counsel, except as set forth in Section 5(a) and Section 9(c) and (ii) their own out-of-pocket expenditures. 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 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, Kansas counsel for the Company, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and -9- 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 and 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 as to legal matters in all material respects to the descriptions thereof contained in or 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); (iv) Neither the issuance, sale and delivery of the Purchased Common Stock nor the execution, delivery and performance by the Company of this Agreement will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and (v) This Agreement has been duly authorized, executed and delivered by the Company. (c) You shall have received an opinion, dated the Closing Date, of Spencer, Scott & Dwyer, P.C., Missouri 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; -10- (iii) Neither the issuance, sale and delivery 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 matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company; (iv) 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 and, with respect to the Prospectus, also as of the Closing Date, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the Registration Statement or the Prospectus; (v) This Agreement has been duly authorized, executed and delivered by the Company; and (vi) Other than disclosed or contemplated by the Registration Statement and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. -11- 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 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, special regulatory counsel for the Company, to the effect that no approval , authorization, consent or other order of any public board or body in the State of Arkansas, Missouri or Oklahoma is legally required for issuance, sale and delivery of the Purchased 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 any jurisdiction). (e) You shall have received an opinion, dated the Closing Date, of Cahill Gordon & Reindel LLP, 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 conform as to legal matters in all material respects to the description thereof contained in or incorporated by reference into the Prospectus; (ii) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Common Stock have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction); (iii) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Forms T-1, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, and the applicable Rules and Regulations; and (iv) This Agreement has been duly authorized, executed and delivered by the Company. In rendering such opinion Cahill Gordon & Reindel LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Mis- -12- souri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson & Byrd; 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 accountants of the Company and representatives of the Purchasers at which the contents of the Registration Statement and Prospectus, and any subsequent amendments or supplements thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto, on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that the Registration Statement, and any subsequent amendments thereto, at the time they became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no facts have come to the attention of such counsel which lead such counsel to believe that the Prospectus, and any subsequent amendment or supplement thereto, as of its date and as of the Closing Date, 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 or incorporated by reference the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1). (f) You shall have received an opinion, dated the Closing Date, of Thompson Coburn LLP, 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 conform as to legal matters in all material respects to the descriptions thereof contained in or incorporated by reference into the Prospectus; (ii) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Common Stock have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction); (iii) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for -13- that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included or incorporated by reference therein or the Forms T-1, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, and the applicable Rules and Regulations; and (iv) This Agreement has been duly authorized, executed and delivered by the Company. In rendering such opinion Thompson Coburn LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson & Byrd; Brydon, Swearengen & England, Professional Corporation; and Spencer, Scott & Dwyer, P.C., referred to above. Thompson Coburn LLP 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 or incorporated by reference in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto, no facts have come to the attention of such counsel which lead such counsel to believe that the Registration Statement, and any subsequent amendments thereto at the time they became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no facts have come to the attention of such counsel which lead such counsel to believe that the Prospectus, and any subsequent amendment or supplement thereto, as of its date and as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical information included or incorporated by reference in the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1). (g) You shall have received a letter or letters from the Company's independent registered public accounting firm, dated the date of this Agreement and the Closing Date and addressed to you, confirming that they are an independent registered public accounting firm -14- with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the PCAOB, and stating in effect that: (i) In their opinion, the consolidated financial statements and schedule of the Company 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(s) (but not an audit in accordance with the standards of the PCAOB), consisting of 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, performing the procedures specified by the PCAOB for a review of interim financial information as described in SAS 100 "Interim Financial Information," on the unaudited condensed interim financial statements of the Company incorporated by reference in the Prospectus and reading the latest available unaudited interim financial data of the Company for the period from the latest balance sheet date incorporated into the Registration Statement to the date of the latest available interim financial data, 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 material modifications should be made to any unaudited financial statements incorporated by reference in the Prospectus for them to be in conformity with generally accepted accounting principles; (2) 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; (3) 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; (4) 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 (5) at a specified date not more than five business days prior to the date hereof (in the case of the letter delivered on the date hereof) and at a specified date not more than three business days prior to the Closing Date (in the case of the letter delivered on the Closing Date), there was any change in the capital stock or increase in total debt (including current maturities) 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 -15- (iii) Certain specified procedures have been applied to certain financial 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 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) Subsequent to the execution and delivery of this Agreement, (i) the Company shall not have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus and (ii) there shall not have been any change in the capital stock or long-term debt of the Company or any material change, or any development involving a prospective material change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Purchased Common Stock on the terms and in the manner contemplated in the Prospectus. (j) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange (the "NYSE") or trading in any securities of the Company on the NYSE shall have been suspended (other than in the case of marketwide temporary halts or curbs) or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on the NYSE by the Commission, by the NYSE or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption in securities clearance or settlement systems, (iii) the United States shall have become engaged in major hostilities, there shall have been a substantial escalation in hostilities involving the United States or there -16- shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including without limitation as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Purchasers, impracticable or inadvisable to proceed with the public offering or the delivery of the Purchasers' Common Stock, on the terms and in the manner contemplated in the Prospectus. (k) If a public offering of the Purchasers' Common Stock is to be made, subsequent to the date of this Agreement and prior to the Closing Date, no rating of any of the Company's debt securities by any nationally recognized rating agency shall have been lowered by such agency and, subsequent to the date of this Agreement (except as set forth in the Prospectus), there shall have been no public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible further downgrading, of such rating).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 any of the Company's debt securities by any nationally recognized rating agency shall have been lowered by such agency. (l) The representations and warranties of the Company herein shall be true and correct as of the Closing Date and all agreements herein contained to be performed on the part of the Company at or prior to the Closing Date shall have been so performed. (m) 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. (n) 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, its directors and officers 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, its directors and officers -17- and each such controlling person for any legal or other expenses reasonably incurred by such Purchaser, its directors and officers 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, severally and not jointly, will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or action in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, 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 of the Prospectus Supplement and under "Underwriting" or similar caption therein.(a) (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 - ---------- (a) Specific language to be identified. -18- 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. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any action or claim effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment in accordance with the other provisions of this Section 7. 8. Contribution. If recovery is not available under the foregoing indemnification provisions of Section 7 of this Agreement, for any reason other than as specified therein, the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses, except to the extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by each party from the offering of the Purchased 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, -19- 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 any of the events described in Section 6(i) or 6(j). (b) If this Agreement shall be terminated pursuant to Section 6 or 11 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 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 and 8 hereof. (c) If the Company shall fail to deliver the Purchasers' Common Stock to the Purchasers by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or the Purchasers terminate this Agreement because any other condition of the Purchasers' obligations hereunder required to be fulfilled by the Company (except for Section 6(j)) is not fulfilled, the Company will reimburse the Purchasers for all reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) incurred by the Purchasers in connection with this Agreement and the proposed purchase of the Purchasers' Common Stock, and upon demand the Company shall pay the full amount thereof to the Purchasers. If this Agreement is terminated pursuant to Section 11 by reason of the default of one or more Purchasers, the Company shall not be obligated to reimburse any defaulting Purchaser on account of those expenses. 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 -20- 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 9 and except that any default by a Purchaser with respect to the purchase of Additional Common 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 and the Additional Closing Dated, as the case may be, for a period of not more than seven full business days in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or in any other documents, and the Company will promptly file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary. As used in this Agreement, the term "Purchaser" includes any person substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser from liability for its default. 12. Parties in Interest. This Agreement shall inure to the benefit of the Company, the Purchasers, the officers, directors and partners of such parties, each controlling person referred to in Section 7 hereof, and their respective successors. Nothing in this Agreement is intended or shall be construed to give to any other person, firm or corporation (including, without limitation, any purchaser of the Purchased 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). -21- 14. Counterparts. This Agreement may be executed in any number of counterparts which, taken together, shall constitute one and the same instrument. 15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. EX-1.B 3 empires3-101405ex1b.txt UNSECURED DEBT SECURITIES Exhibit 1(b) THE EMPIRE DISTRICT ELECTRIC COMPANY UNSECURED DEBT SECURITIES STANDARD PURCHASE PROVISIONS INCLUDING FORM OF PURCHASE AGREEMENT The Empire District Electric Company Form of Purchase Agreement Unsecured Debt Securities -------------------------- (Date) The Empire District Electric Company 602 Joplin Street Joplin, Missouri 64801 Ladies and Gentlemen: We refer to the unsecured debt securities of The Empire District Electric Company (the "Company"), a Kansas corporation, covered by Registration Statement No. 333-__________, which became effective on _______________ (the "Registration Statement"). On the basis of the representations, warranties and agreements contained in this Agreement, but subject to the terms and conditions herein set forth, the purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to purchase, severally, and the Company agrees to sell to the Purchasers, severally, the respective principal amounts of the Company's unsecured debt securities referred to below (the "Purchased Debt Securities") set forth opposite the name of each Purchaser on Schedule A hereto. The price at which the Purchased Debt Securities shall be purchased from the Company by the Purchasers shall be ______% plus accrued interest, if any, from ____________. The initial public offering price shall be _____% plus accrued interest, if any, from ______________. The Purchased Debt Securities will be offered as set forth in the Prospectus Supplement relating to such Purchased Debt Securities. The Purchased Debt Securities will have the following terms: Title of Debt Securities: ______________ Interest Rate: ___% per annum Interest Payment Dates: ______________ Maturity: ______________ Redemption Provisions: ______________ Sinking Fund: ______________ Conversion Provisions: ______________ -2- The "Closing Date" (as defined in Section 2 of the Company's Standard Purchase Provisions-- Unsecured Debt Securities) shall be: ______________ The closing of the purchase and sale of the Purchased Debt Securities shall take place at: ______________ The purchase price for the Purchased Debt Securities shall be paid by: ______________ The funds used to pay for the Purchased Debt Securities shall be: ______________ Other: ______________ Delayed Delivery Contracts: [Authorized]/ [Not authorized] [Delivery Date _____________] Minimum principal amount of Purchased Debt Securities to be sold pursuant to any Delayed Delivery Contract: _____________ Maximum aggregate principal amount of Purchased Debt Securities to be sold pursuant to all Delayed Delivery Contracts: _____________ Compensation to Purchasers: ___________(a) Notice to the Purchasers shall be sent to the addresses as set forth on Schedule A hereto. If we are acting as Representative(s) for the several Purchasers named in Schedule A hereto, we represent that we are authorized to act for such several Purchasers in connection with this financing, and that, if there are more than one of us, any action under this Agreement taken by any of us will be binding upon all the Purchasers. All of the provisions contained in the document entitled "The Empire District Electric Company, Standard Purchase Provisions--Unsecured Debt Securities," a copy of which has been previously - ---------- (a) To be used if Delayed Delivery Contracts are authorized. -3- furnished to us (the "Standard Purchase Provisions"), are hereby incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. -4- If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and the several Purchasers in accordance with its terms. Very truly yours, [NAME OF PURCHASER] By: Name: Title: Acting on behalf of itself and as Representative(s) of the several Purchasers named in Schedule A hereto.(a) The foregoing Purchase Agreement is hereby confirmed as of the date first above written. THE EMPIRE DISTRICT ELECTRIC COMPANY By: _______________________________ Name: Title: - ---------- (a) To be deleted if the Purchase Agreement is not executed by one or more Purchasers acting as Representative(s) of the Purchasers for purposes of this Agreement. SCHEDULE A TO PURCHASE AGREEMENT Principal Amount of Purchased Debt Address and Securities to Be Name Telecopier Number Purchased - ---- ----------------- --------- ------------------ Total $ ================== THE EMPIRE DISTRICT ELECTRIC COMPANY STANDARD PURCHASE PROVISIONS--UNSECURED DEBT SECURITIES 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 unsecured debt securities 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 unsecured debt securities registered under the registration statement referred to in Section 3(a) ("Debt Securities"). The Debt Securities will be issued under an Indenture, dated as of September 10, 1999 ("Original Indenture"), by and between the Company and Wells Fargo Bank, National Association (as successor by merger to Norwest Bank Minnesota, National Association), National Association, as trustee ("Trustee"), as supplemented and amended, including by a Securities Resolution (as defined in the Indenture) pertaining to the particular series of Debt Securities involved in the offering (the Original Indenture 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 Debt Securities being determined at the time of sale and being as set forth in the Purchase Agreement and Securities Resolution relating to such series of Debt Securities. The Debt Securities referred to in Schedule A of the Purchase Agreement are hereinafter referred to as the "Purchased Debt Securities." The firm or firms, as the case may be, which agree to purchase the Purchased Debt Securities are hereinafter referred to as the "Purchasers" of such Purchased Debt Securities. 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 Debt Securities to be purchased by Purchasers are herein referred to as "Purchasers' Debt Securities," and any Purchased Debt Securities to be purchased pursuant to Delayed Delivery Contracts (as defined below) as hereinafter provided are herein referred to as "Contract Debt Securities." 2. Sale and Delivery of the Debt Securities. Subject to the terms and conditions set forth in this Agreement, the Company will deliver the Purchasers' Debt Securities 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' Debt Securities 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. -2- If any Purchase Agreement provides for sales of Purchased Debt Securities pursuant to delayed delivery contracts, the Company authorizes the Purchasers to solicit offers to purchase Contract Debt Securities 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 Debt Securities not less than the amount set forth in the Purchase Agreement and the aggregate principal amount of all Contract Debt Securities 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 Debt Securities. 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 Debt Securities shall be deducted from the Purchased Debt Securities to be purchased by the several Purchasers and the aggregate principal amount of Purchased Debt Securities to be purchased by each Purchaser shall be reduced pro rata in proportion to the principal amount of Purchased Debt Securities set forth opposite each Purchaser's name in such Purchase Agreement, except to the extent that you determine that such reduction shall be otherwise allocated and so advise the Company. 3. 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 Debt Securities, 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 Debt Securities referred to in Section 2 (the "Prospectus Supplement") and all prior amendments and supplements thereto (other than supplements and amendments relating to securities that are not Purchased Debt Securities), 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 Trustee (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 reference in the Prospectus will, -3- when they are filed with the Commission, comply in all material respects with the requirements of the Exchange Act and the Exchange Act Rules and Regulations and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) The Company has an authorized capitalization as set forth in the Prospectus. (d) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectus. (e) The Company is duly qualified to do business as a foreign corporation and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its businesses requires such qualification, except where the failure to so qualify would not reasonably be expected to have a material adverse effect on the business, properties, financial condition or results of operation of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). The Company has no "significant subsidiary," as such term is defined in Rule 405 of the Rules and Regulations. (f) The Company (1) is not in violation of its charter or by-laws, (2) is not in default in any material respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject and (3) is not in violation in any material respect of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject and has not failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except, in the case of clause (2) or (3) above, for any such default, violation or failure that would not reasonably be expected to result in a Material Adverse Effect. (g) The execution, delivery and performance of this Agreement and the issuance of the Purchased Debt Securities and consummation of the transactions contemplated hereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would result in any breach of, or constitute a default under), any provisions of the charter or by-laws of the Company or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Company is a party or by which it or its respective properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company, except for any such conflict, breach or default which would not reasonably be expected to result in a Material Adverse Effect. (h) The Indenture has been duly authorized by the Company and is a legal, valid and binding agreement of the Company enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and general principles of equity. -4- (i) The Purchased Debt Securities have been duly authorized by the Company and when executed and delivered by the Company against payment therefore in accordance with the Agreement will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and general principles of equity. (j) This Agreement has been duly authorized, executed and delivered by the Company. (k) The Purchased Debt Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Registration Statement and Prospectus. (l) The Company has obtained or made all approvals, authorizations, consents or orders of or filings with any national, state or local governmental or regulatory commission, board, body, authority or agency required in connection with the issuance and sale of the Purchased Debt Securities or the consummation by the Company of the transactions as contemplated hereby other than any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Purchased Debt Securities are being offered by the Purchasers. (m) There are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law, in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. (n) The audited financial statements included in the Registration Statement and the Prospectus present fairly in all material respects the consolidated financial position of the Company as of the dates indicated and the consolidated results of operations and cash flows of the Company for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved, except as otherwise set forth therein. The interim unaudited financial statements included in the Registration Statement and the Prospectus present fairly in all material respects the consolidated financial position of the Company as of the dates indicated and the consolidated results of operations and cash flows of the Company for the periods specified subject to year-end adjustments; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved, except as otherwise set forth therein. (o) The accountants who certified the audited financial statements of the Company and supporting schedules and notes thereto incorporated by reference in the Prospectus are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (the "PCAOB"). -5- (p) The Company is not, and, as of the Closing Date after giving effect to the application of the net proceeds as described in the Prospectus, will not be, an "investment company" as defined in the Investment Company Act of 1940, as amended. (q) The Company, and its directors and officers in their capacity as such, have each complied, and currently are in compliance, in all material respects with the Sarbanes-Oxley Act of 2002 and all rules and regulations of the Commission and the New York Stock Exchange issued or adopted in connection therewith. (r) There has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes or hazardous substances by the Company or any of its subsidiaries (or, to the actual knowledge of the Company, any of their predecessors in interest) at, upon or from any of the property now or previously owned or leased by the Company or its subsidiaries in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial action under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or remedial action which would not reasonably be expected to have, singularly or in the aggregate with all such violations and remedial actions, a Material Adverse Effect; there has been no material spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environment surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous substances due to or caused by the Company or any of its subsidiaries or with respect to which the Company or any of its subsidiaries have actual knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not reasonably be expected to have, singularly or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumpings and releases, a Material Adverse Effect; and the terms "hazardous wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to environmental protection. (s) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and (i) such disclosure controls and procedures are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company's Chief Executive Officer and its Chief Financial Officer by others within those entities; (ii) such disclosure controls and procedures are effective to perform the functions for which they were established; and (iii) since the date of the most recent evaluation there have been no changes in the Company's internal control over financial reporting that have materially affected, or are reasonably likely to materially affect the Company's internal control over financial reporting. Based on the most recent evaluation of internal control over financial reporting, the Company's auditors and the Audit Committee of the Board of Directors have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company's ability to record, process, summarize, and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company's internal control over financial reporting. -6- (t) 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. (u) The Company maintains insurance covering its properties, operations, personnel and businesses as the Company deems adequate; such insurance insures against such losses and risks to an extent which is adequate, in the good faith judgment of management, to protect the Company and its business. (v) Any statistical and market-related data included in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, and the Company has obtained the written consent to the use of such data from such sources to the extent required. 4. Agreements of the Company. The Company agrees with the several Purchasers that: (a) The Company will advise you promptly of any proposal to amend or supplement the Registration Statement or the Prospectus with respect to any Purchased Debt Securities, 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 Debt Securities as originally filed and all amendments thereto (at least one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the Commission), each related prospectus, the Prospectus, and all amendments and supplements to such documents (except amendments to exhibits and supplements relating to securities that are not Purchased Debt Securities), 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 Debt Securities is required to be delivered under the Act or the Rules and Regulations, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company will promptly notify the Purchasers and promptly prepare and file with the Commission an amendment or supplement to the Registration Statement or any appropriate filing pursuant to Section 13 or 14 of the Exchange Act which will correct such statement or omission or an amendment which will effect such compliance, and deliver in connection therewith, such Prospectus or amendments or supplements to the Purchasers in such quantity as may be necessary to permit compliance with the requirements of the Act and the Rules and Regulations, provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Purchasers to so notify the Company cancels the Company's obligation under this Section 4(c)), and provided further that any such Prospectus or amendment or supplement required later than nine months from the date hereof shall be furnished at the Purchasers' sole expense. (d) The Company will cooperate with the Purchasers in taking such action as may be necessary to qualify the Purchased Debt Securities 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 -7- use its best efforts to continue such qualification in effect so long as required for the distribution of the Purchased Debt Securities; provided, however, that the Company shall not be required to qualify as a foreign corporation, or to file a general consent to service of process, in any such state or jurisdiction or to comply with any other requirement deemed by the Company to be unduly burdensome. (e) The Company will make generally available to its security holders as soon as practicable an earning statement (as contemplated by Rule 158 under the Act) covering a period of twelve months after the effective date of the Registration Statement. (f) For a period of one year, the Company will furnish to you copies of any report or definitive proxy statement which the Company shall file with the Commission under the Exchange Act, and copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally. For purposes of this clause (f), any information filed by the Company on the Commission's EDGAR system will be deemed furnished to you in satisfaction of this clause (f). (g) The Company will apply the net proceeds from the offering of the Purchased Debt Securities as set forth under the caption "Use of Proceeds" in the Prospectus Supplement. (h) If a public offering of the Purchased Debt Securities is to be made, the Company will not offer or sell any of its other debt securities which are substantially similar to the Purchased Debt Securities prior to ten business days after the Closing Date without the consent of the Purchasers. (i) The Company will advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, of the suspension of the qualification of the Purchased Debt Securities for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the prompt withdrawal of such order. 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' Debt Securities and the preparation, issuance and delivery to the purchasers thereof of the Contract Debt Securities; (iii) the reproduction or printing and mailing in reasonable quantities of the Registration Statement, 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 Debt Securities under the Blue Sky or securities laws of the various states, and the -8- 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 Trustee and any agent of the Trustee (including legal fees and disbursements, if any, of counsel to the Trustee); (vii) any fees payable to investment rating agencies with respect to the Purchased Debt Securities; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. (b) The Purchasers will pay (i) the fees and disbursements of their respective counsel, except as set forth in Section 5(a) and in Section 9(c), 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 Purchasers' Debt Securities 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, Kansas counsel for the Company, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; (ii) The Purchasers' Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute, and the Contract Debt Securities 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 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 by general principles of equity; (iii) 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 by general principles of equity; (iv) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus; -9- (v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Debt Securities 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 Debt Securities or the execution, delivery and performance by the Company of the Securities Resolution, the Purchased Debt Securities, 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); (vi) Neither the issuance, sale and delivery of the Purchased Debt Securities nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and (vii) 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., Missouri 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) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; (iv) Neither the issuance, sale and delivery of the Purchased Debt Securities nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities 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 -10- the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company; (v) 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 and, with respect to the Prospectus, also as of the Closing Date, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the Registration Statement or the Prospectus; and (vi) Other than disclosed or contemplated by the Registration Statement and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, 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 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, special regulatory counsel for the Company, to the effect that no approval, authorization, consent or other order of any public board or body in the States of Missouri, Oklahoma or Arkansas is legally required for the issuance, sale and delivery of the Purchased Debt Securities or the execution, delivery and performance by the Company of the Securities Resolution, the Purchased Debt Securities, 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). -11- (e) You shall have received an opinion, dated the Closing Date, of Cahill Gordon & Reindel LLP, counsel for the Company, to the effect that: (i) The Purchasers' Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute, and the Contract Debt Securities 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 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 by general principles of equity; (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 by general principles of equity; (iii) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus; (iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities 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); (v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Forms T-1, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations; and (vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion Cahill Gordon & Reindel LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson & Byrd; Brydon, Swearengen & England, Professional Corporation; and Spencer, Scott & Dwyer, P.C. referred to above. -12- In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent accountants of the Company and representatives of the Purchasers at which the contents of the Registration Statement and Prospectus, and any subsequent amendments or supplements thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto (other than to the extent set forth in paragraph (iii) above), 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 the Registration Statement, and any subsequent amendments thereto, at the time they became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no facts have come to the attention of such counsel which lead such counsel to believe that the Prospectus, and any subsequent amendment or supplement thereto, as of its date and as of the Closing Date, 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 or incorporated by reference in the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1). (f) You shall have received an opinion, dated the Closing Date, of Thompson Coburn LLP, counsel for the Purchasers, to the effect that: (i) The Purchasers' Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute, and the Contract Debt Securities 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 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 by general principles of equity; (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 by general principles of equity; (iii) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus; (iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other -13- than any approvals required under the securities acts or Blue Sky laws of any jurisdiction); (v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Forms T-1, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations; and (vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion Thompson Coburn LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson & Byrd; Brydon, Swearengen & England, Professional Corporation; and Spencer, Scott & Dwyer, P.C. referred to above. Thompson Coburn LLP need not express any opinion with respect to the matters set forth in paragraphs (i), (ii) and (iv) 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 or incorporated by reference in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto (except to the extent set forth in paragraph (iii) above), no facts have come to the attention of such counsel which lead such counsel to believe that the Registration Statement, and any subsequent amendments thereto at the time they became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no facts have come to the attention of such counsel which lead such counsel to believe that the Prospectus, and any subsequent amendment or supplement thereto, as of its date and as of the Closing Date, 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 or incorporated by reference the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1). -14- (g) You shall have received a letter or letters from the Company's independent registered public accounting firm, dated the date of this Agreement and the Closing Date and addressed to you, confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the PCAOB, and stating in effect that: (i) In their opinion, the consolidated financial statements and schedule of the Company 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(s) (but not an audit in accordance with the standards of the PCAOB), consisting of 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, performing the procedures specified by the PCAOB for a review of interim financial information as described in SAS 100 "Interim Financial Information," on the unaudited condensed interim financial statements of the Company incorporated by reference in the Prospectus and reading the latest available unaudited interim financial data of the Company for the period from the latest balance sheet date incorporated into the Registration Statement to the date of the latest available interim financial data, 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 material modifications should be made to any unaudited financial statements incorporated by reference in the Prospectus for them to be in conformity with generally accepted accounting principles; (2) 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; (3) 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; (4) 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 (5) at a specified date not more than five business days prior to the date hereof (in the case of the letter delivered on the date hereof) and at a specified date not more than three business days prior to the Closing Date (in the case of the letter delivered on the Closing Date), there was any change in the capital stock or increase in total debt (including current maturities) 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 information (to the extent such information was obtained from the general accounting -15- 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 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) Subsequent to the execution and delivery of this Agreement, (i) the Company shall not have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus and (ii) there shall not have been any change in the capital stock or long-term debt of the Company or any material change, or any development involving a prospective material change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Purchased Debt Securities on the terms and in the manner contemplated in the Prospectus. (j) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange (the "NYSE") or trading in any securities of the Company on the NYSE shall have been suspended (other than in the case of marketwide temporary halts or curbs) or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on the NYSE by the Commission, by the NYSE or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption in securities clearance or settlement systems, (iii) the United States shall have become engaged in major hostilities, there shall have been a substantial escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including without limitation as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Purchasers, impracticable or inadvisable to proceed with the public offering or the delivery of the Purchasers' Debt Securities, on the terms and in the manner contemplated in the Prospectus. -16- (k) If a public offering of the Purchasers' Debt Securities is to be made, subsequent to the date of this Agreement and prior to the Closing Date, no rating of any of the Company's debt securities by any nationally recognized rating agency shall have been lowered by such agency and, subsequent to the date of this Agreement (except as set forth in the Prospectus), there shall have been no public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible further downgrading, of such rating). (l) The representations and warranties of the Company herein shall be true and correct as of the Closing Date and all agreements herein contained to be performed on the part of the Company at or prior to the Closing Date shall have been so performed. (m) 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. (n) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Debt Securities arranged by the Purchasers have been approved by the Company. 7. Indemnification. (a) The Company will indemnify and hold harmless each Purchaser, its directors and officers 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, its directors and officers and each such controlling person for any legal or other expenses reasonably incurred by such Purchaser, its directors and officers 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, severally and not jointly, will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or action in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, 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 -17- 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 Debt Securities and the Purchasers set forth on the cover page of the Prospectus Supplement and under "Underwriting" or similar caption therein.(a) (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. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any action or claim effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in - ---------- (a) Specific language to be identified. -18- any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment in accordance with the other provisions of this Section 7. 8. Contribution. If recovery is not available under the foregoing indemnification provisions of Section 7 of this Agreement, for any reason other than as specified therein, the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses, except to the extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by each party from the offering of the Purchased Debt Securities (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 Purchasers' Debt Securities purchased by such Purchaser and any Contract Debt Securities, 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' Debt Securities by reason of any of the events described in Section 6(i) or 6(j). (b) If this Agreement shall be terminated pursuant to Section 6 or 11 or this Section 9, or if the purchase of the Purchasers' Debt Securities 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 and 8 hereof. (c) If the Company shall fail to deliver the Purchasers' Debt Securities to the Purchasers by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or the Purchasers terminate this Agreement because any other condition of the Purchasers' obligations hereunder required to be fulfilled by the Company (except for Section 6(j)) is not fulfilled, the Company will reimburse the Purchasers for all reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) incurred by the Purchasers in connection with this Agreement and the proposed purchase of the Purchasers' Debt Securities, and upon demand the Company shall pay the full amount thereof to the Purchasers. If this Agreement is terminated pursuant to Section 11 by reason of the default of one or more Purchasers, the Company shall not be obligated to reimburse any defaulting Purchaser on account of those expenses. 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 -19- their respective officers, directors, partners or any controlling person, and will survive delivery of and payment for the Purchased Debt Securities or termination of this Agreement. 11. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to purchase Purchasers' Debt Securities hereunder and the aggregate principal amount of Purchasers' Debt Securities which such defaulting Purchaser or Purchasers agreed but failed to purchase is 10% of the principal amount of Purchasers' Debt Securities or less, you may make arrangements satisfactory to the Company for the purchase of such Purchasers' Debt Securities 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' Debt Securities which such defaulting Purchasers agreed but failed to purchase. If any Purchaser or Purchasers so default and the aggregate principal amount of Purchasers' Debt Securities 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' Debt Securities by other persons are not made within thirty-six hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Purchaser or the Company, except as provided in Section 9. In the event that any Purchaser or Purchasers default in their obligation to purchase Purchasers' Debt Securities 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 Purchasers' Debt Securities from a Purchaser or any subsequent holder thereof or any purchaser of any Contract Debt Securities 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 Debt Securities from any Purchaser or any subsequent holder thereof or any purchaser, as such purchaser, of any Contract Debt Securities 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) 625-5153 (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. -20- 15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Schedule I DELAYED DELIVERY CONTRACT Dated: THE EMPIRE DISTRICT ELECTRIC COMPANY 602 Joplin Street Joplin, Missouri 64801 Attention: Ladies and Gentlemen: 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 "Debt Securities") offered by the Company's Prospectus dated ________ and a Prospectus Supplement dated ________, 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 Debt Securities 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 Debt Securities 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 Delivery Date upon issuance and delivery to the undersigned of the Debt Securities 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, Debt Securities on each Delivery Date shall be subject to the conditions that (1) the purchase of Debt Securities to be made by the undersigned shall not at the time of delivery be prohibited -2- under the laws of the jurisdiction to which the undersigned is subject, (2) the sale of the Debt Securities 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 Debt Securities as is to be sold and delivered to them. In the event that Debt Securities 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 Debt Securities 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 Debt Securities hereby agreed to be purchased and (b) the undersigned does not contemplate selling the Debt Securities which it has agreed to purchase hereunder prior to the Delivery Date therefore. This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. This contract shall be governed by and construed in accordance with the laws of the State of New York. This contract may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. It is understood that the acceptance of any Delayed Delivery Contract is in the Company's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If the contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is so signed. -3- Yours very truly, __________________________________ By:_______________________________ _______________________________ _______________________________ Address Accepted, as of the date first above written The Empire District Electric Company By: ______________________________ 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 ---- --------------------- ---------- EX-1.C 4 empires3-101405ex1c.txt FIRST MORTGAGE BONDS Exhibit 1(c) THE EMPIRE DISTRICT ELECTRIC COMPANY FIRST MORTGAGE BONDS STANDARD PURCHASE PROVISIONS INCLUDING FORM OF PURCHASE AGREEMENT The Empire District Electric Company Form of Purchase Agreement First Mortgage Bonds ------------------- (Date) The Empire District Electric Company 602 Joplin Street Joplin, Missouri 64801 Ladies and Gentlemen: We refer to the First Mortgage Bonds of The Empire District Electric Company (the "Company"), a Kansas corporation, covered by Registration Statement No. 333-______, which became effective on _________________ (the "Registration Statement"). On the basis of the representations, warranties and agreements contained in this Agreement, but subject to the terms and conditions herein set forth, the purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to purchase, severally, and the Company agrees to sell to the Purchasers, severally, the respective principal amounts of the Company's First Mortgage Bonds referred to below (the "Purchased Bonds") set forth opposite the name of each Purchaser on Schedule A hereto. The price at which the Purchased Bonds shall be purchased from the Company by the Purchasers shall be ______% plus accrued interest, if any, from ____________. The initial public offering price shall be _____% plus accrued interest, if any, from ______________. The Purchased Bonds will be offered as set forth in the Prospectus Supplement relating to such Purchased Bonds. The Purchased Bonds will have the following terms: Title of Bonds: Interest Rate: ___% per annum Interest Payment Dates: ______________ Maturity: ______________ Redemption Provisions: ______________ Sinking Fund: ______________ The "Closing Date" (as defined in Section 2 of the Company's Standard Purchase Provisions -2- -- First Mortgage Bonds) shall be: ______________ The closing of the purchase and sale of the Purchased Bonds shall take place at: ______________ The purchase price for the Purchased Bonds shall be paid by: ______________ The funds used to pay for the Purchased Bonds shall be: ______________ Other: ______________ Delayed Delivery [Authorized]/[Not Contracts: authorized] [Delivery Date ______________ Minimum principal amount of Purchased Bonds to be sold pursuant to any Delayed Delivery Contract: ______________ Maximum aggregate principal amount of Purchased Bonds to be sold pursuant to all Delayed Delivery Contracts: ______________ Compensation to Purchasers: ______________](a) Notice to the Purchasers shall be sent to the addresses as set forth on Schedule A hereto. If we are acting as Representative(s) for the several Purchasers named in Schedule A hereto, we represent that we are authorized to act for such several Purchasers in connection with this financing, and that, if there are more than one of us, any action under this Agreement taken by any of us will be binding upon all the Purchasers. - ---------- (a) To be used if Delayed Delivery Contracts are authorized. -3- All of the provisions contained in the document entitled "The Empire District Electric Company, Standard Purchase Provisions--First Mortgage Bonds," a copy of which has been previously furnished to us (the "Standard Purchase Provisions"), are hereby incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. -4- If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and the several Purchasers in accordance with its terms. Very truly yours, [NAME OF PURCHASER] By: ---------------------------------------- Name: Title: Acting on behalf of itself and as Representative(s) of the several Purchasers named in Schedule A hereto.(a) The foregoing Purchase Agreement is hereby confirmed as of the date first above written THE EMPIRE DISTRICT ELECTRIC COMPANY By: _______________________________ Name: Title: - ---------- (a) To be deleted if the Purchase Agreement is not executed by one or more Purchasers acting as Representative(s) of the Purchasers for purposes of this Agreement. SCHEDULE A TO PURCHASE AGREEMENT Principal Amount Address and of Purchased Bonds Name Telecopier Number to Be Purchased - ---- ----------------- --------------- --------------- Total $ =============== THE EMPIRE DISTRICT ELECTRIC COMPANY STANDARD PURCHASE PROVISIONS -- FIRST MORTGAGE BONDS 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 The Bank of New York and UMB Bank & Trust, 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." 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 -2- 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. 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 (the "Prospectus Supplement") and all prior amendments and supplements thereto (other than supplements and amendments relating to securities 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 -3- 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. (c) The Company has an authorized capitalization as set forth in the Prospectus. (d) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectus. (e) The Company is duly qualified to do business as a foreign corporation and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its businesses requires such qualification, except where the failure to so qualify would not reasonably be expected to have a material adverse effect on the business, properties, financial condition or results of operation of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). The Company has no "significant subsidiary," as such term is defined in Rule 405 of the Rules and Regulations. (f) The Company (1) is not in violation of its charter or by-laws, (2) is not in default in any material respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject and (3) is not in violation in any material respect of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject and has not failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except, in the case of clause (2) or (3) above, for any such default, violation or failure that would not reasonably be expected to result in a Material Adverse Effect. (g) The execution, delivery and performance of this Agreement and the issuance of the Purchased Bonds and consummation of the transactions contemplated hereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would result in any breach of, or constitute a default -4- under), any provisions of the charter or by-laws of the Company or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Company is a party or by which it or its respective properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company, except for any such conflict, breach or default which would not reasonably be expected to result in a Material Adverse Effect. (h) The Indenture has been duly authorized by the Company and is a legal, valid and binding agreement of the Company enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and general principles of equity. (i) The Purchased Bonds have been duly authorized by the Company and when executed and delivered by the Company against payment therefore in accordance with the Agreement will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and general principles of equity. (j) This Agreement has been duly authorized, executed and delivered by the Company. (k) The Purchased Bonds and the Indenture conform in all material respects to the descriptions thereof contained in the Registration Statement and Prospectus. (l) The Company has obtained or made all approvals, authorizations, consents or orders of or filings with any national, state or local governmental or regulatory commission, board, body, authority or agency required in connection with the issuance and sale of the Purchased Bonds or the consummation by the Company of the transactions as contemplated hereby other than any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Purchased Bonds are being offered by the Purchasers. (m) There are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law, in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. (n) The audited financial statements included in the Registration Statement and the Prospectus present fairly in all material respects the consolidated financial position of the Company as of the dates indicated and the consolidated results of operations and cash flows of the Company for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during -5- the periods involved, except as otherwise set forth therein. The interim unaudited financial statements included in the Registration Statement and the Prospectus present fairly in all material respects the consolidated financial position of the Company as of the dates indicated and the consolidated results of operations and cash flows of the Company for the periods specified subject to year-end adjustments; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved, except as otherwise set forth therein. (o) The accountants who certified the audited financial statements of the Company and supporting schedules and notes thereto incorporated by reference in the Prospectus are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (the "PCAOB"). (p) The Company is not, and, as of the Closing Date after giving effect to the application of the net proceeds as described in the Prospectus, will not be, an "investment company" as defined in the Investment Company Act of 1940, as amended. (q) The Company, and its directors and officers in their capacity as such, have each complied, and currently are in compliance, in all material respects with the Sarbanes-Oxley Act of 2002 and all rules and regulations of the Commission and the New York Stock Exchange issued or adopted in connection therewith. (r) There has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes or hazardous substances by the Company or any of its subsidiaries (or, to the actual knowledge of the Company, any of their predecessors in interest) at, upon or from any of the property now or previously owned or leased by the Company or its subsidiaries in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial action under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or remedial action which would not reasonably be expected to have, singularly or in the aggregate with all such violations and remedial actions, a Material Adverse Effect; there has been no material spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environment surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous substances due to or caused by the Company or any of its subsidiaries or with respect to which the Company or any of its subsidiaries have actual knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not reasonably be expected to have, singularly or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumpings and releases, a Material Adverse Effect; and the terms "hazardous wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to environmental protection. -6- (s) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and (i) such disclosure controls and procedures are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company's Chief Executive Officer and its Chief Financial Officer by others within those entities; (ii) such disclosure controls and procedures are effective to perform the functions for which they were established; and (iii) since the date of the most recent evaluation there have been no changes in the Company's internal control over financial reporting that have materially affected, or are reasonably likely to materially affect the Company's internal control over financial reporting. Based on the most recent evaluation of internal control over financial reporting, the Company's auditors and the Audit Committee of the Board of Directors have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company's ability to record, process, summarize, and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company's internal control over financial reporting. (t) 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. (u) The Company maintains insurance covering its properties, operations, personnel and businesses as the Company deems adequate; such insurance insures against such losses and risks to an extent which is adequate, in the good faith judgment of management, to protect the Company and its business. (v) Any statistical and market-related data included in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, and the Company has obtained the written consent to the use of such data from such sources to the extent required. 4. Agreements of the Company. The Company agrees with the several Purchasers that: (a) The Company will advise you promptly of any proposal to amend or supplement the Registration Statement or the Prospectus with respect to any Purchased 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 amendments to exhibits and 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. -7- (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 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 one year, the Company will furnish to you copies of any report or definitive proxy statement which the Company shall file with the Commission under the Exchange Act, and copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally. For purposes of this clause (f), any information filed by the Company on the Commission's EDGAR system will be deemed furnished to you in satisfaction of this clause (f). (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 Supplement. (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 -8- with respect to the execution, recording and filing of the Supplemental Indenture and the issuance of the Purchased Bonds. (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. (j) The Company will advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, of the suspension of the qualification of the Purchased Bonds for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the prompt withdrawal of such order. 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); (vii) any fees payable to investment rating agencies with respect to the Purchased Bonds; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. (b) The Purchasers will pay (i) the fees and disbursements of their respective counsel, except as set forth in Section 5(a) and in Section 9(c) 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 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 -9- 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, 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); (iii) 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 or the Purchased Bonds will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and (iv) 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., Missouri 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 for- -10- eign 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, 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, (A) 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 and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility; (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, (A) 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 and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility; -11- (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 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; (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 un- -12- derstood 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) The Indenture and the Purchased Bonds conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus; (ix) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; (x) 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 laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company (other than the lien of the Indenture); (xi) 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 and, with respect to the Prospectus, also as of the Closing Date, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or -13- other financial or statistical information contained in the Registration Statement or the Prospectus; and (xii) Other than disclosed or contemplated by the Registration Statement and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, 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 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, special regulatory counsel for the Company, to the effect that all approvals of 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; 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 LLP, counsel for the Company, to the effect that: (i) The Purchasers' Bonds have been duly authorized, executed, 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, (A) 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 -14- other agreements by the Company relating to its interest in such station and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility; (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, (A) 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 and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility; (iii) The Indenture and the Purchased Bonds conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus; (iv) 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); (v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement 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 -15- 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 (vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion Cahill Gordon & Reindel LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson & Byrd; 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 or incorporated by reference in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto (other than to the extent set forth in paragraph (iii) above), 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 the Registration Statement, and any subsequent amendments thereto, at the time they became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no facts have come to the attention of such counsel which lead such counsel to believe that the Prospectus, and any subsequent amendment or supplement thereto, as of its date and as of the Closing Date, 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 or incorporated by reference in the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1 of the Trustees). (f) You shall have received an opinion, dated the Closing Date, of Thompson Coburn LLP, counsel for the Purchasers, to the effect that: (i) The Purchasers' Bonds have been duly authorized, executed, 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 -16- 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, (A) 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 and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility; (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, (A) 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 and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility; (iii) The Indenture and the Purchased Bonds conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus; (iv) 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); (v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending -17- 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 (vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion Thompson Coburn LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson & Byrd; Brydon, Swearengen & England, Professional Corporation; and Spencer, Scott & Dwyer, P.C. referred to above. Thompson Coburn LLP need not express any opinion with respect to the matters set forth in paragraphs (i), (ii), (v), (vi), (vii) and (x) 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 or incorporated by reference in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto (except to the extent set forth in paragraph (iii) above), no facts have come to the attention of such counsel which lead such counsel to believe that the Registration Statement, and any subsequent amendments thereto at the time they became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no facts have come to the attention of such counsel which lead such counsel to believe that the Prospectus, and any subsequent amendment or supplement thereto, as of its date and as of the Closing Date, 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 or incorporated by reference to the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1 of the Trustees). -18- (g) You shall have received a letter or letters from the Company's independent registered public accounting firm, dated the date of this Agreement and the Closing Date and addressed to you, confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the PCAOB, and stating in effect that: (i) In their opinion, the consolidated financial statements and schedule of the Company 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(s) (but not an audit in accordance with the standards of the PCAOB), consisting of 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, performing the procedures specified by the PCAOB for a review of interim financial information as described in SAS 100 "Interim Financial Information," on the unaudited condensed interim financial statements of the Company incorporated by reference in the Prospectus and reading the latest available unaudited interim financial data of the Company for the period from the latest balance sheet date incorporated into the Registration Statement to the date of the latest available interim financial data, 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 material modifications should be made to any unaudited financial statements incorporated by reference in the Prospectus for them to be in conformity with generally accepted accounting principles; (2) 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; (3) 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; (4) 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 (5) at a specified date not more than five business days prior to the date hereof (in the case of the letter delivered on the date hereof) and at a specified date not more than three business days prior to the Closing Date (in the case of the letter delivered on the Closing Date), there was any change in the capital stock or increase in total debt (including current maturities) 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 -19- 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 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 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) Subsequent to the execution and delivery of this Agreement, (i) the Company shall not have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus and (ii) there shall not have been any change in the capital stock or long-term debt of the Company or any material change, or any development involving a prospective material change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Purchased Bonds on the terms and in the manner contemplated in the Prospectus. (j) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange (the "NYSE") or trading in any securities of the Company on the NYSE shall have been suspended (other than in the case of marketwide temporary halts or curbs) or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on the NYSE by the Commission, by the NYSE or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption in securities clearance or -20- settlement systems, (iii) the United States shall have become engaged in major hostilities, there shall have been a substantial escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including without limitation as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Purchasers, impracticable or inadvisable to proceed with the public offering or the delivery of the Purchasers' Bonds, on the terms and in the manner contemplated in the Prospectus. (k) 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 any of the Company's debt securities by any nationally recognized rating agency shall have been lowered by such agency and, subsequent to the date of this Agreement (except as set forth in the Prospectus), there shall have been no public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible further downgrading, of such rating). (l) The representations and warranties of the Company herein shall be true and correct as of the Closing Date and all agreements herein contained to be performed on the part of the Company at or prior to the Closing Date shall have been so performed. (m) 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. (n) 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, its directors and officers 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, its directors and officers and each such controlling person for any legal or other expenses reasonably incurred by such Purchaser, its directors and officers or such controlling person in connec- -21- tion 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, severally and not jointly, will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or action in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, 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 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 -22- 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. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any action or claim effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment in accordance with the other provisions of this Section 7. 8. Contribution. If recovery is not available under the foregoing indemnification provisions of Section 7 of this Agreement, for any reason other than as specified therein, the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses, except to the extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by each party from the offering of the Purchased 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 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 -23- impracticable to offer for sale or to enforce contracts made by the Purchasers for the resale of the Purchasers' Bonds by reason of any of the events described in Section 6(i) or 6(j). (b) If this Agreement shall be terminated pursuant to Section 6 or 11 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. (c) If the Company shall fail to deliver the Purchasers' Bonds to the Purchasers by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or the Purchasers terminate this Agreement because any other condition of the Purchasers' obligations hereunder required to be fulfilled by the Company (except for Section 6(j)) is not fulfilled, the Company will reimburse the Purchasers for all reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) incurred by the Purchasers in connection with this Agreement and the proposed purchase of the Purchasers' Bonds, and upon demand the Company shall pay the full amount thereof to the Purchasers. If this Agreement is terminated pursuant to Section 11 by reason of the default of one or more Purchasers, the Company shall not be obligated to reimburse any defaulting Purchaser on account of those expenses. 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 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 9. 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 -24- 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 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) 625-5153 (Attn: Vice President - Finance) (or such other place as the Company may specify in writing). 14. Counterparts. This Agreement may be executed in any number of counterparts which, taken together, shall constitute one and the same instrument. 15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Schedule I DELAYED DELIVERY CONTRACT Dated: THE EMPIRE DISTRICT ELECTRIC COMPANY 602 Joplin Street Joplin, Missouri 64801 Attention: Ladies and Gentlemen: 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 __________ and a Prospectus Supplement dated __________, 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 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. -2- 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 therefore. This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. This contract shall be governed by and construed in accordance with the laws of the State of 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 ___________________________ ___________________________ -3- ___________________________ Address Accepted, as of the date first above written The Empire District Electric Company By_________________________________ -4- 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 ---- --------------------- ---------- EX-1.D 5 empires3-101405ex1d.txt PREFERENCE STOCK Exhibit 1(d) EMPIRE DISTRICT ELECTRIC COMPANY PREFERENCE STOCK STANDARD PURCHASE PROVISIONS INCLUDING FORM OF PURCHASE AGREEMENT The Empire District Electric Company Form of Purchase Agreement Preference Stock ------------------------ (Date) The Empire District Electric Company 602 Joplin Street Joplin, Missouri 64801 Ladies and Gentlemen: We refer to the Preference Stock, no par value, of The Empire District Electric Company (the "Company"), a Kansas corporation, covered by Registration Statement No. 333-________, which became effective on _________________ (the "Registration Statement"). On the basis of the representations, warranties and agreements contained in this Agreement, but subject to the terms and conditions herein set forth, the purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to purchase, severally, and the Company agrees to sell to the Purchasers, severally, the respective numbers of shares of the Company's Preference Stock referred to below (the "Firm Preference Stock") set forth opposite the name of each Purchaser on Schedule A hereto. The Company also grants to the Purchasers an option to purchase _______ additional shares of the Company's Preference Stock (the "Additional Preference Stock") on the terms and conditions contained in this Agreement for the sole purpose of covering over-allotments. The Firm Preference Stock and the Additional Preference Stock are collectively referred to as the "Purchased Preference Stock." The price at which the Purchased Preference Stock shall be purchased from the Company by the Purchasers shall be $______ per share. The initial public offering price shall be $______ per share. The Purchased Preference Stock will be offered as set forth in the Prospectus Supplement relating to such Purchased Preference Stock. The Purchased Preference Stock will have the following terms: Title: ___________________ Liquidation Amount at Maturity: ___________________ Dividend Rate: ___________________ Dividend Payment Dates: ___________________ -2- Maturity: ___________________ Redemption Provisions: ___________________ Listing: ___________________ The "Closing Date" (as defined in Section 2 of the Company's Standard Purchase Provisions -- Preference Stock) shall be: ___________________ The closing of the purchase and sale of the Purchased Preference Stock shall take place at: ___________________ The purchase price for the Purchased Preference Stock shall be paid by: ___________________ The funds used to pay for the Purchased Preference Stock shall be: ___________________ Other: ___________________ Notice to the Purchasers shall be sent to the addresses set forth in Schedule A hereto: If we are acting as Representative(s) for the several Purchasers named in Schedule A hereto, we represent that we are authorized to act for such several Purchasers in connection with this financing, and that, if there are more than one of us, any action under this Agreement taken by any of us will be binding upon all the Purchasers. All of the provisions contained in the document entitled "The Empire District Electric Company, Standard Purchase Provisions--Preference Stock," a copy of which has been previously furnished to us (the "standard Purchase Provisions"), are hereby incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein. -3- If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Company and the several Purchasers in accordance with its terms. Very truly yours, [NAME OF PURCHASER] By: ----------------------------------- Name: Title: Acting on behalf of itself and as Representative(s) of the several Purchasers named in Schedule A hereto.(1) The foregoing Purchase Agreement is hereby confirmed as of the date first above written THE EMPIRE DISTRICT ELECTRIC COMPANY By: _______________________________ Name: Title: - ---------- (1) To be deleted if the Purchase Agreement is not executed by one or more Purchasers acting as Representative(s) of the Purchasers for purposes of this Agreement. SCHEDULE A TO PURCHASE AGREEMENT Number of Shares of Address and Firm Preference Stock Name Telecopier Number to Be Purchased - ---- ----------------- --------------- ---------------- Total ================ THE EMPIRE DISTRICT ELECTRIC COMPANY STANDARD PURCHASE PROVISIONS - PREFERENCE STOCK From time to time, The Empire District Electric Company, a Kansas corporation ("Company"), may enter into purchase agreements that provide for the sale of shares of the Company's preference stock to the purchaser or purchasers named therein. The standard provisions set forth herein may be incorporated by reference in any such purchase agreement ("Purchase Agreement"). The Purchase Agreement, including the provisions incorporated therein by reference, is herein sometimes referred to as "this Agreement." Unless otherwise defined herein, terms defined in the Purchase Agreement are used herein as therein defined. 1. Introductory. The Company proposes to issue and sell, from time to time, preference stock, no par value, registered under the registration statement referred to in Section 3(a) ("Preference Stock"). The shares of Preference Stock referred to on Schedule A of the Purchase Agreement are hereinafter referred to as the "Firm Preference Stock." The Purchase Agreement may provide for an additional number of shares of Preference Stock (the "Additional Preference Stock") which the purchasers may purchase on the terms and conditions set forth in this Agreement for the sole purpose of covering over-allotments. The Firm Preference Stock and the Additional Preference Stock, if any, are collectively referred to as the "Purchased Preference Stock." The firm or firms, as the case may be, which agree to purchase the Purchased Preference Stock are hereinafter referred to as the "Purchasers" of such Purchased Preference Stock. The terms "you" and "your" refer to those Purchasers (or the Purchaser) who sign the Purchase Agreement either on behalf of themselves (or itself) only or on behalf of the several Purchasers named in Schedule A thereto, as the case may be. 2. Sale and Delivery of Preference Stock. Subject to the terms and conditions set forth in this Agreement, the Company will deliver the Firm Preference Stock to you for the account of the Purchasers, at the place set forth in the Purchase Agreement against payment of the purchase price therefor by wire transfer or certified or official bank check or checks in immediately available funds or clearing house funds payable to the order of the Company, all as set forth in the Purchase Agreement, at the time set forth in the Purchase Agreement or at such other time not later than seven full business days thereafter as you and the Company determine, such time being herein referred to as the "Closing Date." The Company agrees to make available to you for inspection and packaging at the place set forth in the Purchase Agreement, at least one full business day prior to the Closing Date, the Firm Preference Stock so to be delivered in good delivery form and in such denominations and registered in such names as you shall have requested, all such requests to have been made in writing at least three full business days prior to the Closing Date, or if no such request is made, registered in the names of the several Purchasers as set forth in Schedule A to the Purchase Agreement. The Closing Date and the Additional Closing Date may be the same. If there is any Additional Preference Stock, the Purchasers shall have the option to purchase, severally and not jointly, from the Company, ratably in accordance with the number of shares of Firm Preference Stock to be purchased by each of them (subject to such adjustment as you shall determine to avoid fractional shares), all or a portion of the Additional Preference Stock, if any, as may be necessary to cover over- -2- allotments made in connection with the offering of the Firm Preference Stock, at the same purchase price per share to be paid by the Purchasers to the Company for the Firm Preference Stock, all subject to the terms and conditions set forth in this Agreement. This option may be exercised at any time (but not more than once) on or before the thirtieth day following the date hereof, by your written notice to the Company. Such notice shall set forth the aggregate number of shares of Additional Preference Stock as to which the option is being exercised, and the date and time when the Additional Preference Stock is to be delivered (such date and time being herein referred to as the "Additional Closing Date"); provided, however, that the Additional Closing Date shall not be earlier than the Closing Date nor earlier than the third business day after the date on which the option shall have been exercised nor later than the eighth business day after the date on which the option shall have been exercised. The number of shares of Additional Preference Stock to be sold to each Purchaser shall be the number which bears the same proportion to the aggregate number of shares of Additional Preference Stock being purchased as the number of shares of Firm Preference Stock set forth opposite the name of such Purchaser on Schedule A to the Purchase Agreement bears to the total number of shares of Firm Preference Stock (subject, in each case, to such adjustment as you may determine to eliminate fractional shares). Payment of the purchase price for the Additional Preference Stock, if any, shall be made on the Additional Closing Date in the same manner and at the same office as the payment for the Firm Preference Stock. The Company agrees to make available to you for inspection and packaging at the place set forth in the Purchase Agreement, at least one full business day prior to the Additional Closing Date, the Additional Preference Stock so to be delivered in good delivery form and in such denominations and registered in such names as you shall have requested, all such requests to have been made in writing at least three full business days prior to the Additional Closing Date, or if no such request is made, registered in the names of the several Purchasers as set forth in Schedule A to the Purchase Agreement. If the Additional Closing Date occurs after the Closing Date, then the obligation of the Purchasers to purchase the Additional Preference Stock shall be conditioned upon receipt of supplemental opinions, certificates and letters confirming as of the Additional Closing Date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 6 hereof. 3. Representations and Warranties of the Company. The Company represents and warrants to each Purchaser that: (a) The registration statement referred to in the Purchase Agreement and relating to the Preference Stock, including a prospectus and all documents incorporated by reference therein, has been filed on Form S-3 with the Securities and Exchange Commission ("Commission") and has become effective. Such registration statement, including the prospectus supplement with respect to the Purchased Preference Stock referred to in Section 2 (the "Prospectus Supplement") and all prior amendments and supplements thereto (other than supplements and amendments relating to securities that are not Purchased Preference Stock) and all documents filed as a part thereof or incorporated therein pursuant to Item 12 of Form S-3 (other than the Statements of Eligibility and Qualification of trustees filed as a part thereof (the "Forms T-1")), is hereinafter referred to as the "Registration Statement" and such -3- prospectus, as so amended or supplemented (including all material so incorporated by reference therein), in the form first filed by the Company pursuant to Rule 424(b) under the Act is hereinafter referred to as the "Prospectus." (b) The Registration Statement and the Prospectus conform in all respects to the requirements of the Securities Act of 1933, as amended ("Act"), and the pertinent published rules and regulations ("Rules and Regulations") of the Commission, and none of such documents includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements or omissions in either of such documents based upon written information furnished to the Company by any Purchaser specifically for use therein. The documents incorporated by reference in the Registration Statement or the Prospectus pursuant to Item 12 of Form S-3 under the Act, at the time they were filed with the Commission, complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the pertinent published rules and regulations thereunder (the "Exchange Act Rules and Regulations") and any additional documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the Exchange Act and the Exchange Act Rules and Regulations and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) The Company has an authorized capitalization as set forth in the Prospectus. (d) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectus. (e) The Company is duly qualified to do business as a foreign corporation and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its businesses requires such qualification, except where the failure to so qualify would not reasonably be expected to have a material adverse effect on the business, properties, financial condition or results of operation of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). The Company has no "significant subsidiary," as such term is defined in Rule 405 of the Rules and Regulations. (f) The Company (1) is not in violation of its charter or by-laws, (2) is not in default in any material respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject and (3) is not in violation in any material respect of any law, ordinance, governmental rule, regulation or court decree to which it or its -4- property or assets may be subject and has not failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except, in the case of clause (2) or (3) above, for any such default, violation or failure that would not reasonably be expected to result in a Material Adverse Effect. (g) The execution, delivery and performance of this Agreement and the issuance of the Purchased Preference Stock and consummation of the transactions contemplated hereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time, or both would result in any breach of, or constitute a default under), any provisions of the charter or by-laws of the Company or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Company is a party or by which it or its respective properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company, except for any such conflict, breach or default which would not reasonably be expected to result in a Material Adverse Effect. (h) The Purchased Preference Stock has been duly authorized by the Company and when issued and delivered by the Company against payment therefor in accordance with the Agreement will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and general principles of equity. (i) This Agreement has been duly authorized, executed and delivered by the Company. (j) The Purchased Preference Stock conforms in all material respects to the descriptions thereof contained in the Registration Statement and Prospectus. (k) The Company has obtained or made all approvals, authorizations, consents or orders of or filings with any national, state or local governmental or regulatory commission, board, body, authority or agency required in connection with the issuance and sale of the Purchased Preference Stock or the consummation by the Company of the transactions as contemplated hereby other than any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Purchased Preference Stock is being offered by the Purchasers. (l) There are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law, in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. -5- (m) The audited financial statements included in the Registration Statement and the Prospectus present fairly in all material respects the consolidated financial position of the Company as of the dates indicated and the consolidated results of operations and cash flows of the Company for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved, except as otherwise set forth therein. The interim unaudited financial statements included in the Registration Statement and the Prospectus present fairly in all material respects the consolidated financial position of the Company as of the dates indicated and the consolidated results of operations and cash flows of the Company for the periods specified subject to year-end adjustments; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved, except as otherwise set forth therein. (n) The accountants who certified the audited financial statements of the Company and supporting schedules and notes thereto incorporated by reference in the Prospectus are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (the "PCAOB"). (o) The Company is not, and, as of the Closing Date after giving effect to the application of the net proceeds as described in the Prospectus, will not be, an "investment company" as defined in the Investment Company Act of 1940, as amended. (p) The Company, and its directors and officers in their capacity as such, have each complied, and currently are in compliance, in all material respects with the Sarbanes-Oxley Act of 2002 and all rules and regulations of the Commission and the New York Stock Exchange issued or adopted in connection therewith. (q) There has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes or hazardous substances by the Company or any of its subsidiaries (or, to the actual knowledge of the Company, any of their predecessors in interest) at, upon or from any of the property now or previously owned or leased by the Company or its subsidiaries in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial action under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or remedial action which would not reasonably be expected to have, singularly or in the aggregate with all such violations and remedial actions, a Material Adverse Effect; there has been no material spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environment surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous substances due to or caused by the Company or any of its subsidiaries or with respect to which the Company or any of its subsidiaries have actual knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not reasonably be expected to have, singularly or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumpings and releases, a Material Adverse Effect; and -6- the terms "hazardous wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to environmental protection. (r) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and (i) such disclosure controls and procedures are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company's Chief Executive Officer and its Chief Financial Officer by others within those entities; (ii) such disclosure controls and procedures are effective to perform the functions for which they were established; and (iii) since the date of the most recent evaluation there have been no changes in the Company's internal control over financial reporting that have materially affected, or are reasonably likely to materially affect the Company's internal control over financial reporting. Based on the most recent evaluation of internal control over financial reporting, the Company's auditors and the Audit Committee of the Board of Directors have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company's ability to record, process, summarize, and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company's internal control over financial reporting. (s) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, as supplemented or amended, there has been no material adverse change in the financial position or results of operations of the Company. (t) The Company maintains insurance covering its properties, operations, personnel and businesses as the Company deems adequate; such insurance insures against such losses and risks to an extent which is adequate, in the good faith judgment of management, to protect the Company and its business. (u) Any statistical and market-related data included in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, and the Company has obtained the written consent to the use of such data from such sources to the extent required. 4. Agreements of the Company. The Company agrees with the several Purchasers that: (a) The Company will advise you promptly of any proposal to amend or supplement the Registration Statement or the Prospectus with respect to any Purchased Preference Stock, and will furnish you a copy thereof prior to the filing thereof with the Commission. (b) The Company will furnish to you copies of the registration statement relating to the Preference Stock as originally filed and all amendments thereto (at least one of which -7- will be signed and will include all exhibits except those incorporated by reference to previous filings with the Commission), each related prospectus, the Prospectus, and all amendments and supplements to such documents (except amendments to exhibits and supplements relating to Preference Stock that is not Purchased Preference Stock), in each case as soon as available and in such quantities as you reasonably request for the purposes contemplated by the Act. (c) If at any time when a prospectus relating to the Purchased Preference Stock is required to be delivered under the Act or the Rules and Regulations, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company will promptly notify the Purchasers and promptly prepare and file with the Commission an amendment or supplement to the Registration Statement or any appropriate filing pursuant to Section 13 or 14 of the Exchange Act which will correct such statement or omission or an amendment which will effect such compliance, and deliver in connection therewith, such Prospectus or amendments or supplements to the Purchasers in such quantity as may be necessary to permit compliance with the requirements of the Act and the Rules and Regulations, provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Purchasers to so notify the Company cancels the Company's obligation under this Section 4(c)), and provided further that any such Prospectus or amendment or supplement required later than nine months from the date hereof shall be furnished at the Purchasers' sole expense. (d) The Company will cooperate with the Purchasers in taking such action as may be necessary to qualify the Purchased Preference Stock for offering and sale under the securities laws of any state or jurisdiction of the United States as the Purchasers may reasonably request and will use its best efforts to continue such qualification in effect so long as required for the distribution of the Purchased Preference Stock; provided, however, that the Company shall not be required to qualify as a foreign corporation, or to file a general consent to service of process, in any such state or jurisdiction or to comply with any other requirement deemed by the Company to be unduly burdensome. (e) The Company will make generally available to its security holders as soon as practicable an earning statement (as contemplated by Rule 158 under the Act) covering a period of twelve months after the effective date of the Registration Statement. (f) For a period of one year, the Company will furnish to you copies of any report or definitive proxy statement which the Company shall file with the Commission under the Exchange Act, and copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally. For purposes of this clause (f), any information filed by the Company on the Commission's EDGAR system will be deemed furnished to you in satisfaction of this clause (f). -8- (g) The Company will apply the net proceeds from the offering of the Purchased Preference Stock as set forth under the caption "Use of Proceeds" in the Prospectus Supplement. (h) If a public offering of the Purchased Preference Stock is to be made, the Company will not offer or sell any of its other Preference Stock (other than pursuant to any employee benefit or other plan in effect on the date of this Agreement) prior to 120 days after the Closing Date without the consent of the Purchasers. (i) The Company will advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus, of the suspension of the qualification of the Purchased Preference Stock for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the prompt withdrawal of such order. 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 Preference Stock (other than transfer taxes); (iii) the listing of the Purchased Preference Stock on the New York Stock Exchange; (iv) the reproduction or printing and mailing in reasonable quantities of the Registration Statement and amendments thereto, each preliminary prospectus, the Prospectus and any amendments or supplements thereto, this Agreement, any Blue Sky memoranda delivered to the Purchasers; (v) reasonable filing fees and expenses (including legal fees and disbursements, not in excess of $5,000) incurred in connection with the qualification of the Purchased Preference Stock under the Blue Sky or securities laws of the various states, and the preparation of Blue Sky memoranda for the offering; (vi) the fees and expenses of the transfer agent and registrar for the Purchased Preference Stock; (vii) the fees and expenses of the accountants and the counsel for the Company; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. (b) The Purchasers will pay (i) the fees and disbursements of their respective counsel, except as set forth in Section 5(a) and in Section 9(c), and (ii) their own out-of-pocket expenditures. 6. Conditions of the Purchasers' Obligations with Respect to Firm Preference Stock. The obligations of the Purchasers to purchase and pay for the Firm Preference Stock shall be subject in their discretion to the accuracy of and compliance in all material respects with the -9- 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, Kansas counsel for the Company, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; (ii) The Purchased Preference Stock has been duly authorized, and, when issued and delivered to and paid for by the Purchasers pursuant to this Agreement, will be fully paid and non-assessable; and the Purchased Preference Stock conforms as to legal matters in all material respects to the descriptions thereof contained in or incorporated by reference into the Prospectus; (iii) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preference Stock have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preference Stock have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale and delivery of the Purchased Preference Stock or the execution, delivery and performance by the Company of this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); (iv) Neither the issuance, sale and delivery of the Purchased Preference Stock nor the execution, delivery and performance by the Company of this Agreement will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and (v) This Agreement has been duly authorized, executed and delivered by the Company. -10- (c) You shall have received an opinion, dated the Closing Date, of Spencer, Scott & Dwyer, P.C., Missouri counsel for the Company, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification; (ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Prospectus; (iii) Neither the issuance, sale and delivery of the Purchased Preference Stock nor the execution, delivery and performance by the Company of this Agreement will conflict with, violate or result in the breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company; (iv) 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 and, with respect to the Prospectus, also as of the Closing Date, 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 -11- Registration Statement pursuant to Item 601 of Regulation S-K which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the Registration Statement or the Prospectus; (v) This Agreement has been duly authorized, executed and delivered by the Company; and (vi) Other than disclosed or contemplated by the Registration Statement and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, 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 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, special regulatory counsel for the Company, to the effect that no approval, authorization, consent or other order of any public board or body in the State of Arkansas, Missouri or Oklahoma is legally required for issuance, sale and delivery of the Purchased Preference Stock or the execution , delivery and performance by the Company of this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction). (e) You shall have received an opinion, dated the Closing Date, of Cahill Gordon & Reindel LLP, counsel for the Company, to the effect that: (i) The Purchased Preference Stock has been duly authorized and, when issued and delivered to and paid for by the Purchasers pursuant to this Agreement, will be fully paid and non-assessable and conform as to legal matters in all material respects to the description thereof contained in or incorporated by reference into the Prospectus; (ii) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preference Stock have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith -12- (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction); (iii) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Forms T-1, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, and the applicable Rules and Regulations; and (iv) This Agreement has been duly authorized, executed and delivered by the Company. In rendering such opinion Cahill Gordon & Reindel LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson & Byrd, 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 accountants of the Company and representatives of the Purchasers at which the contents of the Registration Statement and Prospectus, and any subsequent amendments or supplements thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto, on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that the Registration Statement, and any subsequent amendments thereto, at the time they became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no facts have come to the attention of such counsel which lead such counsel to believe that the Prospectus, and any subsequent amendment or supplement thereto, as of its date and as of the Closing Date, 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 or incorporated by reference the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1). -13- (f) You shall have received an opinion, dated the Closing Date, of Thompson Coburn LLP, counsel for the Purchasers, to the effect that: (i) The Purchased Preference Stock has been duly authorized and, when issued and delivered to and paid for by the Purchasers pursuant to this Agreement, will be fully paid and non-assessable and conform as to legal matters in all material respects to the descriptions thereof contained in or incorporated by reference into the Prospectus; (ii) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preference Stock have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction); (iii) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included or incorporated by reference therein or the Forms T-1, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, and the applicable Rules and Regulations; and (iv) This Agreement has been duly authorized, executed and delivered by the Company. In rendering such opinion Thompson Coburn LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson & Byrd, Brydon, Swearengen & England, Professional Corporation; and Spencer, Scott & Dwyer, P.C., referred to above. Thompson Coburn LLP 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 -14- extent upon the opinions of officers, counsel and other representatives of the Company), but without independently verifying, passing upon or assuming any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto, no facts have come to the attention of such counsel which lead such counsel to believe that the Registration Statement, and any subsequent amendments thereto at the time they became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no facts have come to the attention of such counsel which lead such counsel to believe that the Prospectus, and any subsequent amendment or supplement thereto, as of its date and as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical information included or incorporated by reference in the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1). (g) You shall have received a letter or letters from the Company's independent registered public accounting firm, dated the date of this Agreement and the Closing Date and addressed to you, confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the PCAOB, and stating in effect that: (i) In their opinion, the consolidated financial statements and schedule of the Company 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(s) (but not an audit in accordance with the standards of the PCAOB), consisting of 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, performing the procedures specified by the PCAOB for a review of interim financial information as described in SAS 100 "Interim Financial Information," on the unaudited condensed interim financial statements of the Company incorporated by reference in the Prospectus and reading the latest available unaudited interim financial data of the Company for the period from the latest balance sheet date incorporated into the Registration Statement to the date of the latest available interim financial data, 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 material modifications should be made to any unaudited financial statements incorporated by reference in the Prospectus for them to be in -15- conformity with generally accepted accounting principles; (2) 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; (3) 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; (4) 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 (5) at a specified date not more than five business days prior to the date hereof (in the case of the letter delivered on the date hereof) and at a specified date not more than three business days prior to the Closing Date (in the case of the letter delivered on the Closing Date), there was any change in the capital stock or increase in total debt (including current maturities) 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 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 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) Subsequent to the execution and delivery of this Agreement, (i) the Company shall not have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or -16- governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus and (ii) there shall not have been any change in the capital stock or long-term debt of the Company or any material change, or any development involving a prospective material change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Purchased Preference Stock on the terms and in the manner contemplated in the Prospectus. (j) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange (the "NYSE") or trading in any securities of the Company on the NYSE shall have been suspended (other than in the case of marketwide temporary halts or curbs) or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on the NYSE by the Commission, by the NYSE or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption in securities clearance or settlement systems, (iii) the United States shall have become engaged in major hostilities, there shall have been a substantial escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including without limitation as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of the Purchasers, impracticable or inadvisable to proceed with the public offering or the delivery of the Purchasers' Preference Stock, on the terms and in the manner contemplated in the Prospectus. (k) If a public offering of the Purchasers' Preference Stock is to be made, subsequent to the date of this Agreement and prior to the Closing Date, no rating of any of the Company's debt securities by any nationally recognized rating agency shall have been lowered by such agency and, subsequent to the date of this Agreement (except as set forth in the Prospectus), there shall have been no public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible further downgrading, of such rating). (l) If a public offering of the Purchased Preference Stock is to be made, subsequent to the date of this Agreement and prior to the Closing Date, no rating of any of the Company's debt securities by any nationally recognized rating agency shall have been lowered by such agency. (m) The representations and warranties of the Company herein shall be true and correct as of the Closing Date and all agreements herein contained to be performed on the part of the Company at or prior to the Closing Date shall have been so performed. -17- (n) 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. (o) If the Purchased Preference Stock is to be listed on the New York Stock Exchange, Inc. ("NYSE"), the NYSE shall have approved for listing upon official notice of issuance, the Purchased Preference Stock. 7. Indemnification. (a) The Company will indemnify and hold harmless each Purchaser, its directors and officers 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, its directors and officers and each such controlling person for any legal or other expenses reasonably incurred by such Purchaser, its directors and officers 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, severally and not jointly, will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or action in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, 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 -18- contained in this Section 7 will be in addition to any liability which the Purchasers may otherwise have. In addition to any other information the Purchasers may furnish, the Purchasers hereby furnish to the Company specifically for use in the Prospectus the information with respect to the offering of the Purchased Preference Stock and the Purchasers set forth on the cover page of the Prospectus Supplement and under "Underwriting" or similar caption therein.(2) (c) Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 7. In case any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel selected by the indemnifying party and acceptable to the indemnified party (the indemnified party shall not unreasonably reject such counsel), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. The indemnified party shall have the right to employ its counsel in any such action, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the employment of counsel by such indemnified party has been authorized by the indemnifying party, (ii) the indemnified party shall have reasonably concluded that there may be a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of such action (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party) or (iii) the indemnifying party shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of one counsel representing all indemnified parties shall be at the expense of the indemnifying party. An indemnifying party shall not be liable for any settlement of any action or claim effected without its consent. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any action or claim effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any - ---------- (2) Specific language to be identified. -19- such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment in accordance with the other provisions of this Section 7. 8. Contribution. If recovery is not available under the foregoing indemnification provisions of Section 7 of this Agreement, for any reason other than as specified therein, the parties entitled to indemnification by the terms thereof shall be entitled to contribution to liabilities and expenses, except to the extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount of contribution to which the respective parties are entitled, there shall be considered the relative benefits received by each party from the offering of the Purchased Preference Stock (taking into account the portion of the proceeds of the offering realized by each), the parties' relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and any other equitable considerations appropriate under the circumstances. The Company and the Purchasers agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation (even if the Purchasers were treated as one entity for such purpose). No Purchaser or any person controlling such Purchaser shall be obligated to make contribution hereunder which in the aggregate exceeds the total public offering price of the Purchased Preference Stock purchased by such Purchaser, less the aggregate amount of any damages which such Purchaser and its controlling persons have otherwise been required to pay in respect of the same claim or any substantially similar claim. 9. Termination. (a) This Agreement may be terminated at any time prior to the Closing Date or, with respect to the Additional Preference Stock, the Additional Closing Date, by the Purchasers by written notice to the Company, if in the reasonable judgment of the Purchasers it is impracticable to offer for sale or to enforce contracts made by the Purchasers for the resale of the Firm Preference Stock or the Additional Preference Stock, as the case may be, by reason of any of the events described in Section 6(i) or 6(j). (b) If this Agreement shall be terminated pursuant to Section 6 or 11 or this Section 9, or if the purchase of the Firm Preference Stock or the Additional Preference Stock, if any, by the Purchasers is not consummated because of any refusal, inability or failure on the part of the Company to comply with any of the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform all the obligations under this Agreement, the Company shall not be liable to the Purchasers for damages arising out of the transactions covered by this Agreement, but the Company and the Purchasers shall remain liable to the extent provided in Sections 5(a), 7(a) and 8 hereof. (c) If the Company shall fail to deliver the Purchasers' Preference Stock to the Purchasers by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or the Purchasers terminate this Agreement because any other condition of the Purchasers' obligations hereunder required to be fulfilled -20- by the Company (except for Section 6(j)) is not fulfilled, the Company will reimburse the Purchasers for all reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) incurred by the Purchasers in connection with this Agreement and the proposed purchase of the Purchasers' Preference Stock, and upon demand the Company shall pay the full amount thereof to the Purchasers. If this Agreement is terminated pursuant to Section 11 by reason of the default of one or more Purchasers, the Company shall not be obligated to reimburse any defaulting Purchaser on account of those expenses. 10. Survival of Indemnities, Representations and Warranties. The respective indemnities and agreements for contribution of the Company and the Purchasers and the respective representations and warranties of the Company and the Purchasers set forth in this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Company or the Purchasers or any of their respective officers, directors, partners or any controlling person, and will survive delivery of and payment for the Purchased Preference Stock or termination of this Agreement. 11. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to purchase Firm Preference Stock or Additional Preference Stock, as the case may be, hereunder and the aggregate number of shares of Firm Preference Stock or Additional Preference Stock, as the case may be, which such defaulting Purchaser or Purchasers agreed but failed to purchase is equal to or less than 10% of the total number of shares of Firm Preference Stock or Additional Preference Stock, as the case may be, you may make arrangements satisfactory to the Company for the purchase of such Firm Preference Stock or Additional Preference Stock, as the case may be, by other persons, including any of the Purchasers, but if no such arrangements are made by the Closing Date or the Additional Closing Date, as the case may be, the non-defaulting Purchasers shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Firm Preference Stock or Additional Preference Stock, as the case may be, which such defaulting Purchasers agreed but failed to purchase. If any Purchaser or Purchasers so default and the aggregate amount of Firm Preference Stock or Additional Preference Stock, as the case may be, with respect to which such default or defaults occur is more than the above percentage and arrangements satisfactory to you and the Company for the purchase of such Firm Preference Stock or Additional Preference Stock, as the case may be, by other persons are not made within thirty-six hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Purchaser or the Company, except as provided in Section 10 and except that any default by a Purchaser with respect to the purchase of Additional Preference Stock shall not affect the obligations of the Purchasers to purchase the Firm Preference Stock. In the event that any Purchaser or Purchasers default in their obligation to purchase Firm Preference Stock or Additional Preference Stock, as the case may be, hereunder, the Company may, by prompt written notice to the non-defaulting Purchasers, postpone the Closing Date and the Additional Closing Date, as the case may be, for a period of not more than seven full business days in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or in any other documents, and the Company will promptly file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary. As used in this Agreement, the term "Purchaser" includes any person -21- substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser from liability for its default. 12. Parties in Interest. This Agreement shall inure to the benefit of the Company, the Purchasers, the officers, directors and partners of such parties, each controlling person referred to in Section 7 hereof, and their respective successors. Nothing in this Agreement is intended or shall be construed to give to any other person, firm or corporation (including, without limitation, any purchaser of the Purchased Preference Stock from a Purchaser or any subsequent holder thereof) any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. The term "successor" as used in this Agreement shall not include any purchaser, as such purchaser, of any Purchased Preference Stock from any Purchaser or any subsequent holder thereof. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes any agreement previously entered into. 13. Notices. All communications, terminations and notices hereunder shall be in writing and, if sent to any Purchaser, shall be mailed, delivered or telecopied and confirmed to it by letter to the address set forth for such Purchaser in Schedule A to the Purchase Agreement (or such other place as the Purchaser may specify in writing); if sent to the Company shall be mailed, delivered or telecopied and confirmed to the Company at 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). 14. Counterparts. This Agreement may be executed in any number of counterparts which, taken together, shall constitute one and the same instrument. 15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. EX-4.U 6 empires3-101405ex4u.txt CERTIFICATE OF DESIGNATION Exhibit 4(u) THE EMPIRE DISTRICT ELECTRIC COMPANY ______________________________________________________________________________ CERTIFICATE OF DESIGNATION DESCRIPTION AND CERTAIN TERMS OF SERIES __ PREFERENCE STOCK, NO PAR VALUE ______________________________________________________________________________ The Empire District Electric Company (the "Company"), a corporation organized and existing under and by virtue of the General Corporation Code of the State of Kansas. DOES HEREBY CERTIFY as follows: 1. That pursuant to Article IV of the Restated Articles of Incorporation, as amended, of the Company (the "Articles"), the Company has authorized 2,500,000 shares of Preference Stock, no par value, of which [ ] shares are now outstanding. The Board of Directors of the Company is expressly authorized under the Company's Articles to fix, to the extent permitted by law, certain of the terms with respect to each particular series of Preference Stock (other than the Series A Participating Preference Stock, the terms of which are set forth in Article IV of the Articles). 2. That the Board of Directors of the Company, at a meeting duly convened and held on *A*, at which a quorum was present and voting throughout, duly adopted the following resolution fixing the designations, preferences, voting powers and relative and other rights and qualifications, limitations and restrictions other than those which apply to all series of Preference Stock of the Company, irrespective of any variations between the different Series (for a statement of which reference is made to said aforesaid Article IV) and authorizing the issuance of a new series of Preference Stock as follows: RESOLVED, There has been created by the Board of Directors, a series of preference stock limited to *B* shares, no par value, authorized and unissued, known as "Series *C* Preference Stock" (the "Series *C* Preference Stock"). Shares of said series have, in addition to the general terms and characteristics of all the authorized shares of preference stock of the corporation, as set forth in its Restated Articles of Incorporation, the following terms and characteristics as fixed by the Board of Directors: (a) The holders of Series *C* Preference Stock shall be entitled to receive cumulative dividends, if and when declared payable by the Board of Directors, at the rate of *D* % per annum from the date of original issue on all shares issued before *E*, which date shall be the first dividend payment date for said series and payable thereafter on *F*. (b) [The holders of Series *C* Preference Stock shall be entitled to receive in the case of redemption thereof, at any time, at the option of the Company, in whole or in part, $*G* per share prior to *H* and at the following applicable prices per share during the respective 12-month periods ending *I* of the years indicated: Optional Optional Redemption Redemption Year Premium Year Premium ---- ------- ---- ------- *J* *K* *J* *K* and at *L* per share thereafter; in each case, plus accrued and unpaid dividends thereon to the date fixed for redemption, whether or not earned or declared,] *M* [provided that such Series *C* Preference Stock shall not be redeemable, directly or indirectly, prior to *N* with the proceeds of borrowed funds, or the issue of any stock ranking prior to or on a parity with the Series *C* Preference Stock, having a cost of money (before deduction of commissions and expenses) to the Company lower than *O* % per annum] *P* (c) [In the case of a mandatory sinking fund, except to the extent prevented from doing so by restrictions contained in the Articles or in any mortgage, indenture or loan agreement of the Company or to the extent prevented from doing so for any other reason, on *Q* and on each *R* thereafter so long as any shares of the Series *C* Preference Stock are outstanding, redeem *S* such shares (or all such shares outstanding on any such *R* if less than *S*), in each case at the sinking fund redemption price of $*T* per share plus accrued and unpaid dividends thereon to the date fixed for redemption. The obligation of the Company to redeem the shares of Series *C* Preference Stock pursuant to this sub-paragraph (c) shall be cumulative so that if it shall be prevented by the aforesaid restriction from redeeming on any such *R* the number of such shares which in the absence of such restrictions it would be required to redeem on such date, the number of such shares not so redeemed shall be redeemed as soon as the Company shall not be so prevented from redeeming the shares of the stock of such series] *U*. Any purchase or other acquisition of shares of Series *C* Preference Stock pursuant to sub-paragraph (b) and (d) hereof by the corporation shall constitute a credit against any sinking fund retirement required by this sub-paragraph (c). (d) The Company may increase the number of shares of the stock of such series to be redeemed on any *R* commencing *Q* pursuant to sub-paragraph (c), at the sinking fund redemption price of $*T* per share plus accrued and unpaid dividends to the date fixed for redemption, by a number of shares not to exceed *V* shares on any one such date; provided, however, that the aggregate of such increase in the number of shares redeemed pursuant to sub-paragraph (c) which are effected pursuant to this sub-paragraph (d) shall not exceed *W*] *X*. -2- (e) [All redemptions pursuant to sub-paragraphs (b), (c) and (d) hereof shall be by lot or pro rata as the Board of Directors may determine, among the holders of the Series *C* Preference Stock. All shares of the Series *C* Preference Stock redeemed pursuant to sub-paragraph (b), (c) and (d), and all such shares purchased or otherwise acquired by the Company shall be deemed to be, and shall be restored to the status of, authorized and unissued shares of preference stock of no par value, each undesignated as to series, and shall not be reissued as shares of such series.] *Y* (f) [The holders of Series *C* Preference Stock shall be entitled to convert or exchange the Series *C* Preference Stock for shares of *Z* stock of the Company [at its option] [upon the happening of [specify event]]. Appropriate adjustments shall be made to this Certificate of Designation, including the term "Preference Stock," to give effect to each such conversion or exchange.] (g) The holders of Series *C* Preference Stock shall be entitled to receive in the case of voluntary or involuntary liquidation, dissolution or winding up of the Company, the same amount per share as is then payable in the case of redemption, plus accrued and unpaid dividends thereon, whether or not earned or declared. IN WITNESS WHEREOF, The Empire District Electric Company has caused this Certificate to be signed by its Vice President - Finance and its corporate seal to be affixed and attested by its Secretary-Treasurer, this [ ] day of [ ], [ ]. THE EMPIRE DISTRICT ELECTRIC COMPANY By: ------------------------------------ Name: Title: Vice President - Finance Attest: ________________________ Secretary- Treasurer -3- LEGEND The following descriptions correspond to the dates, amounts and other information not contained in this Form of Certificate of Designation, and are to be determined as appropriate for each series of Preference Stock. *A* Insert applicable Board of Directors meeting date *B* Insert number of shares authorized for such series *C* Insert applicable series *D* Insert applicable dividend payment rate *E* Insert first dividend payment date *F* Insert dividend payment date(s) *G* Insert applicable redemption amount *H* Insert first redemption date *I* Insert applicable annual redemption date, month and day *J* Insert applicable year *K* Insert applicable redemption amount *L* Insert applicable redemption amount *M* Delete or revise to reflect actual redemption provisions, if any *N* Insert refunding date *O* Insert applicable rate *P* Delete or revise to reflect actual refunding protection, if any *Q* Insert first sinking fund date *R* Insert applicable annual sinking fund date, month and year *S* Insert applicable number of shares to be redeemed annually under the sinking fund *T* Insert applicable sinking fund redemption price *U* Delete or revise to reflect actual sinking fund provision, if any *V* Insert applicable number of additional shares which the Company may redeem annually under the sinking fund *W* Insert applicable limit to aggregate number of additional shares which the Company may redeem under the sinking fund *X* Delete or revise to reflect actual additional sinking fund allowance provisions, if any *Y* Delete or revise to reflect any redemption or sinking fund provision *Z* Insert applicable security. EX-5.A 7 empires3-101405ex5a.txt OPINION OF ANDERSON & BYRD Exhibit 5(a) [Letterhead of Anderson & Byrd] October 6, 2005 The Empire District Electric Company 602 Joplin Street Joplin, Missouri 64801 Re: SEC Registration Statement on Form S-3 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 $400,000,000 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 Preference Stock, no par value (the "New Preference Stock") and/or one or more series of the Company's unsecured debt securities (the "New Debt Securities") and/or one or more series of the Company's First Mortgage Bonds. The New Debt Securities are to be issued under the indenture dated September 10, 1999 (the "Indenture") between the Company and Wells Fargo Bank, National Association (as successor by merger to Norwest Bank Minnesota, National Association), as trustee, which may hereafter be supplemented by one or more Securities Resolutions (as defined in the Indenture) creating each series of New Debt Securities (a form of which is filed as an exhibit to the Registration Statement). 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. The New Common Stock and/or the New Preference Stock will have been duly authorized, legally issued, fully paid and non-assessable under Kansas law 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 Preference Stock, in the form filed as an exhibit to the Registration Statement, is filed and recorded in accordance with the Kansas General Corporation Code, (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 Preference Stock, and (v) the New Common Stock and/or the New Preference Stock has been sold by the Company for cash at a price approved by the Board of Directors. 3. The New Debt Securities will have been duly authorized and legally issued and under Kansas law, will constitute binding obligations of the Company when (i) the Registration Statement has become effective under the Act, (ii) the Board of Directors of the Company and/or the authorized officers have adopted the appropriate resolutions, (iii) the Securities Resolution, if in the form of a supplemental indenture, has been duly executed and delivered, or, if in the form of a resolution, has been duly adopted, (iv) the State Corporation Commission of the State of Kansas has issued its order authorizing the issuance and sale of the New Debt Securities and (v) the New Debt Securities have been duly issued in accordance with the provisions of the Indenture and the Securities Resolution relating thereto and sold by the Company for cash at a price approved by the Board of Directors. 4. The issuance of the Rights has been validly authorized by all necessary corporation action on the part of the Company and, when issued in accordance with the Rights Agreement, dated July 26, 2000, as amended, between the Company and Wells Fargo Bank, National Association, 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. Sincerely, /s/ Daniel D. Covington ------------------------------ Daniel D. Covington dancovington@abrfh.com EX-5.B 8 empires3-101405ex5b.txt OPINION OF SPENCER, SCOTT & DWYER Exhibit 5(b) [Letterhead of Spencer, Scott & Dwyer, P.C.] October 5, 2005 The Empire District Electric Company 602 Joplin Street Joplin, Missouri 64801 Re: SEC Registration Statement on Form S-3 Dear Sirs: We refer to the proposed issue and sale of up to $400,000,000 principal amount of shares of Common Stock, par value $1.00, and the related Preference Stock Purchase Rights and/or shares of Preference Stock, no par value and/or one or more series of First Mortgage Bonds (the "New Bonds") and/or one or more series of Unsecured Debt Securities, in one or more series, from time to time, of The Empire District Electric Company (the "Company"), with respect to which the Company has filed 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 The Bank of New York and UMB Bank & Trust, 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 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, under Missouri law, 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. /s/ Alexander B. Curchin By Alexander B. Curchin EX-12.A 9 empires3-101405ex12a.txt COMPUTATION OF RATIOS OF EARNINGS EXHIBIT 12(a) COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES Six Months Ended June 30, 2005 ------------- Income before provision for income taxes and fixed charges (Note A) $ 19,041,726 Fixed charges: Interest on first mortgage bonds and secured debt $ 4,975,453 Amortization of debt discount and expense less premium 967,729 Interest on short-term debt 109,463 Interest on unsecured long-term debt 6,176,205 Interest on note payable to securitization trust 2,125,000 Other interest 260,185 Rental expense representative of an interest factor (Note B) 14,262 ------------------- Total fixed charges $ 14,628,297 Ratio of earnings to fixed charges 1.30x NOTE A: For the purpose of determining earnings in the calculation of the ratio, net income has been increased by the provision for income taxes, non-operating income taxes, minority interest and by the sum of fixed charges as shown above. NOTE B: One-third of rental expense (which approximates the interest factor). EX-23.A 10 empirese-101405ex23a.txt CONSENT OF IND. REG. PUBLIC ACCT. Exhibit 23(a) CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated March 10, 2005 relating to the financial statements, financial statement schedule, management's assessment of the effectiveness of internal control over financial reporting and the effectiveness of internal control over financial reporting, which appears in The Empire District Electric Company's Annual Report on Form 10-K for the year ended December 31, 2004. We also consent to the reference to us under the heading "Experts" in such Registration Statement. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP St. Louis, Missouri October 17, 2005 EX-24.A 11 empires3-101405ex24a.txt POWER OF ATTORNEY Exhibit 24(a) 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 Preference Stock and/or of one or more new series of Unsecured Debt Securities issued under the Company's Indenture dated as of September 10, 1999 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 William L. Gipson and Gregory A. Knapp, 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 13th day of September 2005. /s/ Laurie A. Delano --------------------------- Laurie A. Delano 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 Preference Stock and/or of one or more new series of Unsecured Debt Securities issued under the Company's Indenture dated as of September 10, 1999 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 William L. Gipson and Gregory A. Knapp, 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 September 2005. /s/ Kenneth R. Allen ------------------------- Kenneth R. Allen 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 Preference Stock and/or of one or more new series of Unsecured Debt Securities issued under the Company's Indenture dated as of September 10, 1999 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 William L. Gipson and Gregory A. Knapp, 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 23rd day of September 2005. /s/ Ross C. Hartley ------------------------- Ross C. Hartley 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 Preference Stock and/or of one or more new series of Unsecured Debt Securities issued under the Company's Indenture dated as of September 10, 1999 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 William L. Gipson and Gregory A. Knapp, 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 September 2005. /s/ Bill D. Helton ----------------------------- Bill D. Helton 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 Preference Stock and/or of one or more new series of Unsecured Debt Securities issued under the Company's Indenture dated as of September 10, 1999 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 William L. Gipson and Gregory A. Knapp, 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 September 2005. /s/ D. Randy Laney ----------------------- D. Randy Laney 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 Preference Stock and/or of one or more new series of Unsecured Debt Securities issued under the Company's Indenture dated as of September 10, 1999 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 William L. Gipson and Gregory A. Knapp, 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 September 2005. /s/ Julio S. Leon -------------------------- Julio S. Leon 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 Preference Stock and/or of one or more new series of Unsecured Debt Securities issued under the Company's Indenture dated as of September 10, 1999 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 William L. Gipson and Gregory A. Knapp, 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 September 2005. /s/ Myron W. McKinney ---------------------------- Myron W. McKinney 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 Preference Stock and/or of one or more new series of Unsecured Debt Securities issued under the Company's Indenture dated as of September 10, 1999 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 William L. Gipson and Gregory A. Knapp, 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 15th day of September 2005. /s/ B. Thomas Mueller ----------------------------- B. Thomas Mueller 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 Preference Stock and/or of one or more new series of Unsecured Debt Securities issued under the Company's Indenture dated as of September 10, 1999 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 William L. Gipson and Gregory A. Knapp, 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 28th day of September 2005. /s/ Mary McCleary Posner ----------------------------- Mary McCleary Posner 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 Preference Stock and/or of one or more new series of Unsecured Debt Securities issued under the Company's Indenture dated as of September 10, 1999 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 William L. Gipson and Gregory A. Knapp, 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 September 2005. /s/ Allan T. Thoms --------------------------- Allan T. Thoms EX-25.A 12 empires3-101405ex25a.txt FORM T-1 WELLS FARGO BANK 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) WELLS FARGO BANK, NATIONAL ASSOCIATION (Exact name of trustee as specified in its charter) A National Banking Association 94-1347393 (Jurisdiction of incorporation or (I.R.S. Employer organization if not a U.S. national Identification No.) bank) 101 North Phillips Avenue Sioux Falls, South Dakota 57104 (Address of principal executive offices) (Zip code) Wells Fargo & Company Law Department, Trust Section MAC N9305-175 Sixth Street and Marquette Avenue, 17th Floor Minneapolis, Minnesota 55479 (612) 667-4608 (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 St Joplin, Missouri 64801 (Address of principal executive offices) (Zip code) _____________________________ Unsecured Debt Securities (Title of the indenture securities) ================================================================================ Item 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. Comptroller of the Currency Treasury Department Washington, D.C. Federal Deposit Insurance Corporation Washington, D.C. Federal Reserve Bank of San Francisco San Francisco, California 94120 (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None with respect to the trustee. No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13. Item 15. Foreign Trustee. Not applicable. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. Exhibit 1. A copy of the Articles of Association of the trustee now in effect.* Exhibit 2. A copy of the Comptroller of the Currency Certificate of Corporate Existence and Fiduciary Powers for Wells Fargo Bank, National Association, dated February 4, 2004.** Exhibit 3. See Exhibit 2 Exhibit 4. Copy of By-laws of the trustee as now in effect.*** Exhibit 5. Not applicable. Exhibit 6. The consent of the trustee required by Section 321(b) of the Act. Exhibit 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. Exhibit 8. Not applicable. Exhibit 9. Not applicable. * Incorporated by reference to the exhibit of the same number to the trustee's Form T-1 filed as exhibit 25 to the Form T-3 dated March 3, 2004 of Trans-Lux Corporation file number 022-28721. ** Incorporated by reference to the exhibit of the same number to the trustee's Form T-1 filed as exhibit 25 to the Form T-3 dated March 3, 2004 of Trans-Lux Corporation file number 022-28721. *** Incorporated by reference to the exhibit of the same number to the trustee's Form T-1 filed as exhibit 25 to the Form S-4 dated May 26, 2005 of Penn National Gaming Inc file number 333-125274. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Minneapolis and State of Minnesota on the 29th day of September 2005. WELLS FARGO BANK, NATIONAL ASSOCIATION /s/ Timothy P. Mowdy ------------------------------------- Timothy P. Mowdy Vice President EXHIBIT 6 September 29, 2005 Securities and Exchange Commission Washington, D.C. 20549 Gentlemen: In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, WELLS FARGO BANK, NATIONAL ASSOCIATION /s/ Timothy P. Mowdy --------------------------- Timothy P. Mowdy Vice President EXHIBIT 7 Consolidated Report of Condition of Wells Fargo Bank National Association of 101 North Phillips Avenue, Sioux Falls, SD 57104 And Foreign and Domestic Subsidiaries, at the close of business June 30, 2005, filed in accordance with 12 U.S.C. ss.161 for National Banks.
Dollar Amounts In Millions ______________ ASSETS Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin $ 13,712 Interest-bearing balances 1,968 Securities: Held-to-maturity securities 0 Available-for-sale securities 24,158 Federal funds sold and securities purchased under agreements to resell: Federal funds sold in domestic offices 1,518 Securities purchased under agreements to resell 905 Loans and lease financing receivables: Loans and leases held for sale 32,024 Loans and leases, net of unearned income 249,760 LESS: Allowance for loan and lease losses 2,336 Loans and leases, net of unearned income and allowance 247,424 Trading Assets 6,313 Premises and fixed assets (including capitalized leases) 3,676 Other real estate owned 125 Investments in unconsolidated subsidiaries and associated companies 330 Customers' liability to this bank on acceptances outstanding 94 Intangible assets Goodwill 8,613 Other intangible assets 9,109 Other assets 14,151 ___________ Total assets $364,120 LIABILITIES Deposits: In domestic offices $255,501 Noninterest-bearing 81,024 Interest-bearing 174,477 In foreign offices, Edge and Agreement subsidiaries, and IBFs 28,344 Noninterest-bearing 3 Interest-bearing 28,341 Federal funds purchased and securities sold under agreements to repurchase: Federal funds purchased in domestic offices 9,370 Securities sold under agreements to repurchase 3,423 Dollar Amounts In Millions _______________ Trading liabilities 4,966 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) 10,763 Bank's liability on acceptances executed and outstanding 94 Subordinated notes and debentures 7,038 Other liabilities 10,508 _______ Total liabilities $330,007 Minority interest in consolidated subsidiaries 64 EQUITY CAPITAL Perpetual preferred stock and related surplus 0 Common stock 520 Surplus (exclude all surplus related to preferred stock) 24,521 Retained earnings 8,517 Accumulated other comprehensive income 491 Other equity capital components 0 ________ Total equity capital 34,049 ________ Total liabilities, minority interest, and equity capital $364,120
I, Karen B. Martin, 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 appropriate Federal regulatory authority and is true to the best of my knowledge and belief. Karen B. Martin Vice President 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 appropriate Federal regulatory authority and is true and correct. Howard Atkins Carrie Tolstedt Directors Pat Callahan EX-25.B 13 empires3-101405ex25b.txt FORM T-1 THE BANK OF NEW YORK Exhibit 25(b) ================================================================================ FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 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) |__| ___________________________ THE BANK OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-5160382 (State of incorporation (I.R.S. employer if not a U.S. national bank) identification no.) One Wall Street, New York, N.Y. 10286 (Address of principal executive offices) (Zip code) ___________________________ 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 (Title of the indenture securities) ================================================================================ 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. - -------------------------------------------------------------------------------- Name Address - -------------------------------------------------------------------------------- Superintendent of Banks of the One State Street, New York, N.Y. State of New York 10004-1417, and Albany, N.Y. 12223 Federal Reserve Bank of New York 33 Liberty Street, New York, N.Y. 10045 Federal Deposit Insurance Corporation Washington, D.C. 20429 New York Clearing House Association New York, New York 10005 (b) Whether it is authorized to exercise corporate trust powers. Yes. 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. 16. List of Exhibits. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d). 1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195.) 4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-121195.) -2- 6. The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-106702.) 7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. -3- SIGNATURE Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 29th day of September, 2005. THE BANK OF NEW YORK By: /S/ STACEY POINDEXTER ----------------------------------- Name: STACEY POINDEXTER Title: ASSISTANT VICE PRESIDENT -4- EXHIBIT 7 - -------------------------------------------------------------------------------- Consolidated Report of Condition of THE BANK OF NEW YORK of One Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business June 30, 2005, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts ASSETS In Thousands Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin.. $2,753,000 Interest-bearing balances........................... 6,045,000 Securities: Held-to-maturity securities......................... 2,183,000 Available-for-sale securities....................... 21,741,000 Federal funds sold and securities purchased under agreements to resell Federal funds sold in domestic offices.............. 5,486,000 Securities purchased under agreements to resell.............................................. 192,000 Loans and lease financing receivables: Loans and leases held for sale...................... 0 Loans and leases, net of unearned income............................................ 32,953,000 LESS: Allowance for loan and lease losses...................................... 558,000 Loans and leases, net of unearned income and allowance.............................. 32,395,000 Trading Assets......................................... 6,114,000 Premises and fixed assets (including capitalized leases)............................................. 812,000 Other real estate owned................................ 0 Investments in unconsolidated subsidiaries and associated companies................................ 278,000 Customers' liability to this bank on acceptances outstanding......................................... 68,000 Intangible assets: Goodwill............................................ 2,039,000 Other intangible assets............................. 736,000 -5- Other assets........................................... 5,237,000 ----------- Total assets........................................... $86,079,000 =========== LIABILITIES Deposits: In domestic offices................................. $38,768,000 Noninterest-bearing................................. 18,417,000 Interest-bearing.................................... 20,351,000 In foreign offices, Edge and Agreement subsidiaries, and IBFs............................ 26,246,000 Noninterest-bearing................................. 462,000 Interest-bearing.................................... 25,784,000 Federal funds purchased and securities sold under agreements to repurchase Federal funds purchased in domestic offices........................................... 1,224,000 Securities sold under agreements to repurchase........................................ 126,000 Trading liabilities.................................... 2,927,000 Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases)........................... 1,245,000 Not applicable Bank's liability on acceptances executed and outstanding......................................... 69,000 Subordinated notes and debentures...................... 1,440,000 Other liabilities...................................... 5,976,000 ----------- Total liabilities...................................... $78,021,000 =========== Minority interest in consolidated subsidiaries........................................ 139,000 EQUITY CAPITAL Perpetual preferred stock and related surplus............................................. 0 Common stock........................................... 1,135,000 Surplus (exclude all surplus related to preferred stock).............................................. 2,089,000 Retained earnings...................................... 4,716,000 Accumulated other comprehensive income................. -21,000 Other equity capital components........................ 0 Total equity capital................................... 7,919,000 ----------- -6- Total liabilities, minority interest, and equity capital............................................. $86,079,000 ===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief. Thomas J. Mastro, Senior Vice President and Comptroller We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We 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 and is true and correct. Thomas A. Renyi Gerald L. Hassell Alan R. Griffith Directors - -------------------------------------------------------------------------------- -7- EX-25.C 14 empires3-101405ex25c.txt FORM T-1 UMB BANK & TRUST Registration No. 333- Exhibit 25(c) 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) UMB BANK & TRUST, N.A. (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.) 2 South Broadway, Suite 435, St. Louis, Missouri 63102 (Address of principal executive offices) (Zip Code) Robert A. Clasquin, Assistant Vice President 2 South Broadway, Suite 435, St. Louis, Missouri 63102 (314) 612-8483 (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 (417) 625-5100 (Address of principal executive offices) (Zip Code) FIRST MORTGAGE BONDS ___% Series due (Title of indenture securities) 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 Sates, Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Trustee is authorized to exercise corporate trust powers. 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, UMB Bank, N.A. 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 exercise 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 and made a part hereof. 1 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. 2 SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, UMB Bank & Trust, N.A., a national banking association existing under the laws of the United States of America, has duly caused this statement of eligibility 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 4th day of October, 2005. UMB BANK & TRUST, N.A. By: /s/ Robert A. Clasquin --------------------------------- NAME: Robert A. Clasquin TITLE: Vice President 3 EXHIBIT 1 ARTICLES OF ASSOCIATION OF STATE STREET BANK AND TRUST COMPANY OF MISSOURI, NATIONAL ASSOCIATION 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. 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 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. -2- 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. -3- 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 a 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 owned by any interested person, or -4- (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 payments 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. -5- 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 -6- EXHIBIT 2 [COMPTROLLER OF THE CURRENCY TREASURY DEPARTMENT LOGO] 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. /s/ DAVID A. BOMGAARS ----------------------------------------- District Administrator Comptroller of the Currency Charter No. 22874 EXHIBIT 3 [LOGO] 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. BOMGAARS --------------------------------- David A. Bomgaars District Administrator **OCC SEAL** EXHIBIT 4 UMB BANK & TRUST, NATIONAL ASSOCIATION BYLAWS ARTICLE I Meetings of Shareholders Section 1.1 - Where Held. All meetings of shareholders of this association shall be held at its main banking house in Kansas City, Jackson County, Missouri, or at such other place as the board of directors may from time to time designate. Section 1.2 - Annual Meeting. The annual meeting of shareholders shall be held at 11 o'clock in the forenoon, or at such other time as shall be stated in the notice thereof, on the third Wednesday of January in each year or, if that day be a legal holiday, on the next succeeding banking day, for the purpose of electing a board of directors and transacting such other business as may properly come before the meeting. Section 1.3 - Special Meetings. Except as otherwise provided by law, special meetings of shareholders may be called for any purpose, at any time, by the board of directors or by any three or more shareholders owning, in the aggregate, not less than ten percent (10%) of the outstanding stock in the association. Section 1.4 - Notice of Meetings. Written notice of the time, place, and purpose of any meeting of shareholders shall be given to each shareholder (a) by delivering a copy thereof in person to the shareholder, or (b) by depositing a copy thereof in the U.S. mails, postage prepaid, addressed to the shareholder at his address appearing on the books of the association, in either case at least ten (10) and no more than sixty (60) days prior to the date fixed for the meeting. So long as the association is a wholly-owned subsidiary, the sole shareholder may waive notice of any shareholder meeting. Section 1.5 - Quorum. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of shareholders, unless otherwise provided by law. 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. Section 1.6 - Adjournment. Any meeting of shareholders may, by majority vote of the shares represented at such meeting, in person or by proxy, though less than a quorum, be adjourned from day to day or from time to time, not exceeding, in the case of elections of directors, sixty (60) days from such adjournment, without further notice, until a quorum shall attend or the business thereof shall be completed. At any such adjourned meeting, any business may be transacted which might have been transacted at the meeting as originally called. Section 1.7 - Nominations of Directors. Nominations for election to the board of directors may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association entitled to vote for the election of directors. Nominations, other than those made by or on behalf of the existing management of the association, shall be made in writing and shall be delivered or mailed to the president of the 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 shareholders, such nomination shall be mailed or delivered to the president of the 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: -1- (1) The name and address of each proposed nominee. (2) The principal occupation of each proposed nominee. (3) The total number of shares of capital stock of the association that will be voted for each proposed nominee. (4) The name and residence address of the notifying shareholder. (5) The number of shares of capital stock of the association owned by the notifying shareholder. Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and upon his/her instructions, the vote tellers may disregard all votes cast for each such nominee. ARTICLE II Directors Section 2.1 - Board of Directors. The board shall manage and administer the business and affairs of the association. Except as expressly limited by law, all corporate powers of the association shall be vested in and may be exercised by said board. It may not delegate responsibility for its duties to others, but may assign the authority and responsibility for various functions to such directors, committees and officers or other employees as it shall see fit. Section 2.2 - Number and Qualifications. The board of directors shall consist of not less than five (5) nor more than twenty-five (25) shareholders, the exact number, within such limits, 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 meeting thereof. No person who has attained the age of seventy (70) shall be eligible for election to the board of directors unless such person is actively engaged in business at the time of his election, but any person not so disqualified at the time of his election as a director shall be entitled to serve until the end of his term. All directors shall hold office for one (1) year and until their successors are elected and qualified. Section 2.3 - Advisory Directors. The board of directors may appoint advisory directors, chosen from former directors of the association or such other persons as the board shall select. The advisory directors shall meet with the board at all regular and special meetings of the board and may participate in such meetings but shall have no vote. They shall perform such other advisory functions and shall render such services as may from time to time be directed by the board. Section 2.4 - Vacancies. In case of vacancy occurring on the board through death, resignation, disqualification, removal, disability or any other cause, such vacancy may be filled at any regular or special meeting of the board by vote of a majority of the surviving or remaining directors then in office. Any director elected to fill a vacancy shall hold office for the unexpired term of the director whose place was vacated and until the election and qualification of his successor. Section 2.5 - Organization Meeting. Following the annual meeting of shareholders, the corporate secretary shall notify the directors elect of their election and of the time and place of the next regular meeting of the board, at which the new board will be organized and the members of the board will take the oath required by law, after which the board will appoint committees and the executive officers of the association, and transact such other business as may properly come before the meeting; provided, however, that if the organization meeting of the board shall be held immediately following the annual meeting of shareholders, no notice thereof shall be required except an announcement thereof at the meeting of shareholders. -2- Section 2.6 - Regular Meetings. The regular meetings of the board of directors shall be held, without notice except as provided for the organization meeting, on the __ day of each January, April, July and October, at the main banking house in Kansas City, Jackson County, Missouri. When any regular meeting of the board falls upon a holiday, the meeting shall be held on the next banking day, unless the board shall designate some other day. A regular monthly meeting of the board may, by action of the board at its preceding meeting, be postponed to a later day in the same month. Section 2.7 - Special Meetings. Special meetings of the board may be called by the corporate secretary on direction of the president or of the chairman of the board, or at the request of three (3) or more directors. Each member of the board shall be given notice, by telegram, letter, or in person, stating the time, place and purpose of such meeting. Section 2.8 - Waiver of Notice of Special Meetings. If a director has actual notice of a special meeting, a written waiver of the required formal notice may take the place of the required notice. Section 2.9 - Quorum. Except when otherwise provided by law, a majority of the directors shall constitute a quorum for the transaction of business at any meeting, but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. If the number of directors is reduced below the number that would constitute a quorum, no business may be transacted, except selecting directors to fill vacancies as provided in Section 2.4 above. Section 2.10 - Voting. A majority of the directors present and voting at any meeting of the board shall decide each matter considered. A director may not vote by proxy. Section 2.11 - Compensation of Directors. The compensation to be paid the directors of the association for their services shall be determined from time to time by the board. Section 2.12 - Participation in Meetings by Telephone Conference Call. A director or others may participate in a regular meeting, by means of a telephone conference call in which all of the parties may hear and speak to each other. Conference telephone calls may be utilized for special meetings of the directors and the telephone participants shall count for purposes of determining a quorum. Section 2.13 - Actions by Unanimous Consent. For good cause and in the exercise of good business judgment, the directors may act by unanimous written consent between regular board meetings, including emergency situations. ARTICLE III Committees Appointed by the board Section 3.1 - Standing Committees. The standing committees of this association shall be the Management Committee, and the Trust Policy Committee. The members of the standing committees shall be appointed annually by the board of directors at its organization meeting, or, on notice, at any subsequent meeting of the board, to serve until their respective successors shall have been appointed. The president and the chairman of the board shall be, ex officio, members of all standing committees. Each standing committee shall keep minutes of its meetings, showing the action taken on all matters considered. A report of all action so taken shall be made to the board, and a copy of such minutes shall be available for examination by members of the board. Provisions of the articles and bylaws governing place of meetings, notice of meeting, quorum and voting requirements of the board of directors, apply to committees and their members as well. Section 3.2 - Management Committee. The Management Committee shall consist of such executive officers of the association as shall be designated by the board. One of the members of the committee shall be designated by the board as chairman. The committee may adopt policies (not inconsistent with policies and delegations of authority prescribed by these bylaws or by the board) with respect to the executive and -3- administrative functions of the association, and in general, it shall coordinate the performance of such functions in and among the various departments of the association, assisting and advising the executive officers or department heads upon matters referred to it by such officers or department heads. When the board is not in session, the committee shall have the authority to exercise all powers of the board that may be lawfully delegated and shall report its actions under this delegation of authority to the board at its next meeting. The committee shall make reports and recommendations to the board upon such policies or other matters as it deems advisable or as may be referred to it by the board, and shall have such other powers and duties as may be delegated or assigned to it by the board from time to time. The secretary of the committee may be designated by the board, or, in default thereof, by the committee, and may but need not be a member thereof. Section 3.3 - Reserved. Section 3.4 - Reserved. Section 3.5 - Reserved. Section 3.6 - Trust Policy Committee. The Trust Policy Committee shall consist of such directors and officers of the association as shall be designated by the board of directors. Such committee shall have and exercise such of the bank's fiduciary powers as may be assigned to it by the board, with power to further assign, subject to its control, the exercise of such powers to other committees, officers and employees. The action of the Trust Policy Committee shall, at all times, be subject to control by the board. Section 3.7 - Reserved. Section 3.8 - Reserved. Section 3.9 - Other Committees. The board may appoint, from time to time, from its own members or from officers of the association, or both, other committees of one or more persons for such purposes and with such powers as the board may determine. However, a committee may not: (1) authorize distributions of assets or dividends (2) approve action required to be approved by shareholders (3) fill vacancies on the board of directors or any of its committees (4) amend articles of association (5) adopt, amend or repeal bylaws and (6) 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. Section 3.10 - Compensation of Committee Members. The board shall determine the compensation to be paid to each member of any committee appointed by it for services on such committee, but no such compensation shall be paid to any committee member who shall at the time be receiving a salary from the association as an officer thereof. ARTICLE IV Officers and Employees Section 4.1 - Chairman of the Board. The board of directors shall appoint one of its members (who may, but need not, be president of the association) as chairman of the board. He shall preside at all meeting of the board of directors. The chairman of the board shall have general executive powers and such further powers and duties as from time to time may be conferred upon, or assigned to, him by the board of directors. He shall be, ex officio, a member of all standing committees except the Bank Examining Committee and the Trust Auditing Committee. Section 4.2 - President. The board of directors shall appoint one of its members to be the president of this association. The president shall be the chief executive officer of the association, except as the board of directors may otherwise provide. The president shall have general executive powers and shall have and -4- may exercise any and all other powers and duties pertaining to bylaws, regulation, practice of these bylaws to such office. He shall also have and may exercise such further powers and duties as from time to time may be conferred upon, or assigned to, him by the board of directors. In the absence of the chairman, the president shall preside at any meeting of the board. He shall be, ex officio, a member of all standing committees except the Bank Examining Committee and the Trust Auditing Committee. Section 4.3 - Chairman of the Management Committee. The board of directors may appoint a chairman of the Management Committee, who shall have general executive powers and shall have and may exercise such further powers and duties as from time to time may be conferred upon, or assigned to, him by the board of directors. Section 4.4 - Vice Presidents. The board of directors may appoint one or more vice presidents (including divisional executive vice presidents, executive vice presidents, senior vice presidents and assistant vice presidents). Each vice president shall have such powers and duties as may be assigned to him by the board and may be given such descriptive or functional titles as the board may designate. Section 4.5 - Trust Officers. The board of directors shall appoint one or more trust officers. Each trust officer shall have such powers and duties as may be assigned to him by the board of directors in accordance with the provisions of Article V. The trust officers may be given such descriptive or functional titles as the board may designate. Section 4.6 - Corporate Secretary. The board of directors shall appoint a corporate secretary. The corporate secretary shall be responsible for the minutes book of the association, in which he shall maintain and preserve the organization papers of the association, the articles of association, the bylaws, minutes of regular and special meetings of the shareholders and of the board of directors, and reports by officers and committees of the association to the shareholders and to the board of directors. He shall attend all meetings of the shareholders and of the board of directors and shall act as the clerk of such meetings and shall prepare and sign the minutes of such meetings. He shall have custody of the corporate seal of the association and of the stock transfer books, except as given to other officers to act as transfer agent and registrar of the association's capital stock, and of such other documents and records as the board of directors shall entrust to him. The secretary shall give such notice of meetings of the shareholders and of the board of directors as is required by law, the articles of the association and the bylaws. In addition, he shall perform such other duties as may be assigned to him from time to time by the board of directors. The assistant secretaries shall render the corporate secretary such assistance as he shall require in the performance of his office. During his absence or inability to act, the assistant secretaries shall be vested with the powers and perform the duties of the corporate secretary. Section 4.7 - Cashier. The board of directors may appoint a cashier. He shall have such powers and shall perform such duties as may be assigned to him by resolution of the board of directors. Section 4.8 - Other Officers. The board of directors may appoint 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 association. The power to appoint such additional officers may be delegated to the chairman of the board or the president, or to such other executive officer or officers as the board may designate, but the power to appoint any assistant secretary may not be so delegated. Any officer and attorney-in-fact appointed as herein provided shall exercise such powers and perform such duties as pertain to his office or as may be conferred upon or assigned to him by the board of directors of by the officer authorized to make such appointment. Section 4.9 - Tenure of Office. The chairman of the board, president and all other officers shall hold office for the current year for which board of directors was elected, unless any of them shall resign, become disqualified or be removed, and any vacancy occurring in the office of the chairman of the board or -5- president shall be filled promptly by the board of directors. All other officers of the association shall serve at the pleasure of the board of directors. Section 4.10 - Compensation of Officers. The compensation of the officers of the association shall be fixed and may be altered, from time to time, by the board of directors or, in the case of officers appointed by another officer, as authorized by Section 4.8 of this article, by the officer or officers making such appointment, subject to the supervisory control of, and in accordance with the policies established by, the board. Section 4.11 - Combining Offices. The board of directors, in its discretion, may combine two or more offices and direct that they be filled by the same individual, except that the office of corporate secretary shall not be combined with that of the chairman of the board or of the president. Section 4.12 - Succession. During the absence of the chairman of the board, or such other officer designated as chief executive officer, all of the duties pertaining to his office under these Bylaws and the resolutions of the board of directors shall, subject to the supervisory control of the board, devolve upon, and be performed by, the officers, successively, who are next in the order of authority as established by the board of directors from time to time, or, in the absence of an order of authority so established, in the order of chairman of the board, president and chairman of the Management Committee as may be applicable in the particular case. Section 4.13 - Clerks and Agents. Any one of the chairman of the board, president or chairman of the Management Committee, or any officer of the association authorized by them, may appoint and dismiss all or any clerks, agents and employees and prescribe their duties and the conditions of their employment, and from time to time fix their compensation. ARTICLE V Administration of Trust Powers Section 5.1 - Trust Department Organization. There shall be a Trust Department of the association which shall perform the fiduciary responsibilities of the association. Section 5.2 - Management of Department. The board of directors shall be responsible for the management and administration of the Trust Department, but it may assign or delegate such of its powers and authority to the Trust Policy Committee and to such other committees and officers of the association as it may deem advisable. Section 5.3 - Department Heads. The board of directors shall designate one of the Trust Officers as the chief executive of the Trust Department. His duties shall be to manage, supervise and direct all fiduciary activities, subject to such supervision as may be vested in the Trust Policy and other committees. He shall do, or cause to be done, all things necessary or proper in carrying on the fiduciary business of the association in accordance with provisions of law, applicable regulations and policies established by authority of the board. He shall act pursuant to opinions of counsel where such opinion is deemed necessary. He shall be responsible for all assets and documents held by the association in connection with fiduciary matters, in such department, except as otherwise provided in this Article V. Section 5.4 - Trust Department Files. There shall be maintained files containing all fiduciary records necessary to assure that it fiduciary responsibilities have been properly undertaken and discharged. Section 5.5 - Trust Investments. Funds held in a fiduciary capacity shall be invested in accordance with the instrument establishing the fiduciary relationship and governing law. Where such instrument does not specify the character and class of investments to be made and does not vest in the association a discretion in -6- the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under the laws of the State of Missouri and the decisions of its courts. ARTICLE VI Stock and Stock Certificates Section 6.1 - Transfers. Shares of the capital stock of the association shall be transferable only on the books of the association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Section 6.2 - Stock Certificates. Certificates of stock shall bear the signatures of (i) the chairman of the board, the president or any vice president, and (ii) the secretary, cashier, any assistant secretary, or any other officer appointed by the board of directors for that purpose; and the seal of the association shall be impressed, engraved, or printed thereon. Such signatures may be manual or engraved, printed or otherwise impressed by facsimile process; but if both of the required signatures are by facsimile then such certificates shall be manually countersigned by the person or persons thereunto authorized by the board of directors. Certificates bearing the facsimile signature of an authorized officer may be validly issued even though the person so named shall have ceased to hold such office at the time of issuance. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the association upon the surrender of such certificate properly endorsed. Section 6.3 - Closing Transfer Books or Fixing Record Date. The board of directors shall have power to close the transfer books of the association for a period not exceeding thirty (30) days preceding the date of any meeting of shareholders, or the date of payment of any dividend, or the date of allotment of rights, or the date when any change or conversion of exchange of shares shall go into effect; provided, however, that in lieu of closing the said transfer books, the board of directors may fix, in advance, a date, not exceeding thirty (30) days preceding the date of any such event, as record date for the determination of the shareholders entitled to notice of, and to vote at, any such meeting (and any adjournment thereof), or entitled to receive payment of any such dividend or allotment of such rights, or to exercise rights in respect of any such change, conversion or exchange of shares, and in such case, only such shareholders as shall be shareholders of record at the close of business on the date of closing the transfer books or on the record date so fixed shall be entitled to notice of, and to vote at, such meeting (and any adjournment thereof), or to receive payment of such dividend or allotment of such rights, or to exercise such rights, as the case may be. ARTICLE VII Corporate Seal Section 7.1 - Authority to Affix. The president, the corporate secretary, the cashier, and any assistant secretary or other officer designated by the board of directors, shall have authority to affix the corporate seal on any document requiring such seal, and to attest the same. The seal shall be substantially in the following form: ARTICLE VIII Indemnification Section 8.1 - Any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer or employee of the corporation, or is or was serving at the request of the corporation as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise (which shall be deemed to include any employee benefit plan of the corporation or any other corporation) may be indemnified against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement -7- (which shall include any excise taxes assessed against a person with respect to an employee benefit plan) actually and reasonably incurred by him in connection with such action, suit or proceeding so long as the results of an investigation of the matter as described in Section 4 includes a finding that he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation or the participants or beneficiaries of any employee benefit plan, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, provided, however, that in an action by or in the right of the corporation no indemnification shall be made in respect of any judgments, fines and amounts paid in settlement and provided further that in such an action there shall be no indemnification for any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that a court of competent jurisdiction so orders. Section 8.2 - The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Section 8.3 - Any person who has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 1 above, shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. Section 8.4 - Except as provided in Section 3, indemnification of anyone under Section 1, unless ordered by a court, shall be made by the corporation only as authorized in each case upon a determination that it is proper because the director, officer or employee has met the applicable standard of conduct set forth. Such a determination shall be made by the board of directors by a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding, or if such a quorum is not obtainable, or even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or by the shareholders. Section 8.5 - Notwithstanding anything herein to the contrary, no director, officer or employee shall be indemnified against any expenses, penalties or other payments incurred in an administrative proceeding or action instituted by an appropriate bank regulatory agency which proceeding or action results in a final order assessing civil money penalties or requiring affirmative action by an individual or individuals in the form of payments to the bank. Section 8.6 - If authorized by the board of directors, the corporation may advance the costs and expenses incurred in defending a civil or criminal action, suit or proceeding upon receipt of an undertaking by or on behalf of the director, officer or employee to repay such amount if it is ultimately determined that he is not entitled to indemnification. Section 8.7 - The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer or employee of the corporation or is or was serving at the request of the corporation as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise against any liability for which it may indemnify such people under the terms of this Article. Section 8.8 - The indemnification provided for directors, officers or employees of the corporation shall not be deemed exclusive of any other rights to which those officers, directors or employees may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise, both as to actions in his or her official capacity and as to actions in another capacity while holding such office, and shall continue as to any person who has ceased to be a director, officer or employee of the corporation and shall inure to the benefit of his or her heirs, executors and administrators. -8- Section 8.9 - To the extent that the indemnification provided for herein in any manner exceeds that permitted by applicable laws or regulations, the events covered and the amounts of indemnification provided for herein shall be reduced to the maximum permitted by such laws or regulations. ARTICLE IX Miscellaneous Provisions Section 9.1 - Fiscal Year. The fiscal year of the association shall be the calendar year. Section 9.2 - 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, acknowledged, verified, delivered or accepted on behalf of the association by the chairman of the board, the president, any vice president, or the cashier; and, if in connection with the exercise of fiduciary powers of the association, by any of said officers or by any authorized officer of the Trust Department. Any such instruments may also be executed, acknowledged, verified, delivered, or accepted on behalf of the association 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 are supplementary to any other provisions of these bylaws. Section 9.3 - Records. The articles of association, the bylaws 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 that 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 X Bylaws Section 10.1 - Inspection. A copy of the bylaws, with all amendments thereto, shall at all times be kept in a convenient place at the main office of the association and shall be open for inspection to all shareholders during banking hours. Section 10.2 - Amendments. The bylaws may be amended, altered or repealed by vote of a majority of the entire board of directors at any meeting of the board. No amendment may be made unless the bylaws, as amended, are consistent with the requirements of the laws of the United States and with the provisions of the articles of the association. -9- 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, 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. UMB BANK & TRUST, N.A. By: /s/ Robert A. Clasquin -------------------------------- NAME: Robert A. Clasquin TITLE: Vice President Dated: October 4, 2005 EXHIBIT 7 UMB Bank & Trust, N.A. Consolidated Statement of Condition As of September 30
Assets 2005 2004 ------------------ ----------------- Cash and Due from Bank $0 $0 Total Investment Securities 0 0 Total Premises and Equipment 0 0 Accrued Income Receivable 0 0 Other Assets 3,000,000 3,000,000 Goodwill Net ------------------ ----------------- Total Assets $3,000,000 $ 3,000,000 ------------------ ----------------- Liabilities Accrued Tax and Other 0 0 Unearned Revenue 0 0 ------------------ ----------------- Total Liabilities $ 0 $ 0 ------------------ ----------------- Stockholders Equity Common Stock 1,000,000 1,000,000 Paid In Surplus 2,000,000 2,000,000 Retained Earnings 0 0 ------------------ ----------------- Total Stockholders Equity $3,000,000 $3,000,000 ------------------ ----------------- Total Liabilities and Stockholders Equity $3,000,000 $3,000,000 ================== =================
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