<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 7, 1994
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
CONNECTICUT ENERGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CONNECTICUT 06-0869582
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
855 MAIN STREET
BRIDGEPORT, CONNECTICUT 06604
(203) 579-1732
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
J. RICHARD TIANO, ESQUIRE
VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
CONNECTICUT ENERGY CORPORATION
855 MAIN STREET
BRIDGEPORT, CONNECTICUT 06604
(203) 579-1732
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES TO:
SAMUEL W. BOWLBY, ESQUIRE MICHAEL F. CUSICK, ESQUIRE
TYLER COOPER & ALCORN WINTHROP, STIMSON, PUTNAM & ROBERTS
205 CHURCH STREET ONE BATTERY PARK PLAZA
P.O. BOX 1936 NEW YORK, NEW YORK 10004-1490
NEW HAVEN, CONNECTICUT 06509-1910 (212) 858-1000
(203) 784-8200
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
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. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SHARES TO BE AMOUNT TO BE AGGREGATE AGGREGATE AMOUNT OF
REGISTERED REGISTERED* PRICE PER UNIT** OFFERING PRICE REGISTRATION FEE
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1 Par
Value.................. 1,000,000 $22.56 $22,560,000 $7,779.37
shares
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</TABLE>
- --------------------------------------------------------------------------------
* Includes 100,000 shares to cover an over-allotment option granted the
Underwriters.
** Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933 based on the
average of the high and low prices of the Common Stock reported on the New
York Stock Exchange on February 1, 1994.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION DATED FEBRUARY 7, 1994
PROSPECTUS
900,000 SHARES
[LOGO]
CONNECTICUT ENERGY CORPORATION
COMMON STOCK
(PAR VALUE $1 PER SHARE)
-----------
The outstanding shares of the Common Stock of Connecticut Energy Corporation
(the "Company") are, and the shares offered hereby will be, listed on the New
York Stock Exchange under the symbol "CNE." On February 3, 1994, the last
reported sale price of the Common Stock on the New York Stock Exchange
Composite Tape was $22.875 per share. See "Common Stock Price Range and
Dividends."
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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<TABLE>
<CAPTION>
UNDERWRITING PROCEEDS
PRICE TO DISCOUNTS AND TO
PUBLIC COMMISSIONS(1) COMPANY(2)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Per Share.............................. $ $ $
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Total(3)............................... $ $ $
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</TABLE>
(1) The Company has agreed to indemnify the several Underwriters against
certain liabilities, including liabilities under the Securities Act of
1933. See "Underwriting."
(2) Before deduction of expenses payable by the Company, estimated at $142,000.
(3) The Company has granted to the Underwriters a 30-day option to purchase up
to an aggregate of 100,000 additional shares of Common Stock at the Price
to Public, less the Underwriting Discount, for the purpose of covering
over-allotments, if any. If all such additional shares are purchased by the
Underwriters, the total Price to Public, Underwriting Discounts and
Commissions and Proceeds to the Company will be $ , $ and
$ , respectively. See "Underwriting."
-----------
The shares of Common Stock are being offered by the several Underwriters
named herein, subject to prior sale, when, as and if accepted by them and
subject to certain conditions. It is expected that certificates for the shares
of Common Stock offered hereby will be made available for delivery on or about
March , 1994, at the offices of Smith Barney Shearson Inc., 388 Greenwich
Street, New York, New York 10013.
-----------
SMITH BARNEY SHEARSON INC.
A.G. EDWARDS & SONS, INC.
EDWARD D. JONES & CO.
March , 1994
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK
OF THE COMPANY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
---------------
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (hereinafter, together with
all amendments and exhibits, referred to as the "Registration Statement") under
the Securities Act of 1933 (the "1933 Act") with respect to the Common Stock
offered hereby. Certain information contained in this Prospectus summarizes, is
based upon, or refers to, information and financial statements contained in one
or more documents incorporated by reference in the Registration Statement.
Accordingly, the information contained herein is qualified in its entirety by
reference to such documents and should be read in conjunction therewith. Copies
of the Registration Statement may be inspected without charge at offices of the
Commission, and copies of all or any portion thereof may be obtained from the
Commission upon payment of the prescribed fee.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "1934 Act") and in accordance therewith files reports
and other information with the Commission. Such reports, proxy statements and
other information can be inspected and copied at the Public Reference Section
of the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices at 7 World
Trade Center, 13th Floor, New York, New York 10048-1102, and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of
this material can also be obtained at prescribed rates from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549. The Company's Common Stock is listed on the New York Stock Exchange (the
"NYSE"). Reports, proxy statements and other information concerning the Company
can be inspected and copied at the office of the NYSE at Room 401, 20 Broad
Street, New York, New York.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended September
30, 1993 and the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1993, filed by the Company with the Commission pursuant to
the 1934 Act, are hereby incorporated in this Prospectus by reference.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 Act after the date of this Prospectus and prior
to the termination of the offering made by this Prospectus shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from
the date of filing of such documents; provided, however, that the documents
enumerated above or subsequently filed by the Company pursuant to Section 13 of
the 1934 Act prior to the filing of the Company's most recent Form 10-K with
the Commission shall not be incorporated by reference in this Prospectus or be
a part hereof from and after the filing of such Form 10-K.
Any statement contained herein or in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
subsequently incorporated document modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO
WHOM A COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, ON THE WRITTEN OR ORAL
REQUEST OF SUCH PERSON, A COPY OF ANY AND ALL OF THE DOCUMENTS WHICH HAVE BEEN
OR MAY BE INCORPORATED IN THIS PROSPECTUS BY REFERENCE, OTHER THAN EXHIBITS TO
SUCH DOCUMENTS, UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE
INTO THE INFORMATION THAT THIS PROSPECTUS INCORPORATES. REQUESTS FOR SUCH
COPIES SHOULD BE DIRECTED TO J. RICHARD TIANO, ESQUIRE, VICE PRESIDENT, GENERAL
COUNSEL AND SECRETARY, CONNECTICUT ENERGY CORPORATION, 855 MAIN STREET,
BRIDGEPORT, CONNECTICUT 06604 (TELEPHONE: 203-579-1732).
2
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the detailed
information and financial statements (including the notes thereto) appearing
elsewhere in this Prospectus and in the documents incorporated herein by
reference. Unless otherwise indicated, the information in this Prospectus
assumes that the Underwriters' over-allotment option will not be exercised.
THE COMPANY
The Company is a public utility holding company whose principal subsidiary,
The Southern Connecticut Gas Company ("Southern"), is engaged in the retail
distribution of natural gas for residential, commercial and industrial uses.
Southern serves approximately 152,000 customers in parts of New Haven,
Fairfield and Middlesex Counties in Connecticut. Southern's service area
includes two of Connecticut's largest cities, Bridgeport and New Haven, a
concentration of residential communities and a large number of commercial
businesses and service industries.
THE OFFERING
<TABLE>
<C> <S>
Securities Offered.................... 900,000 Shares of Common Stock, par
value $1 per share
Common Shares to be Outstanding after
the Offering......................... Approximately 8,444,413 shares (a)
Listing............................... New York Stock Exchange (Symbol:
"CNE")
Common Stock Price Range (January 3,
1993 through February 3, 1994)....... $22 1/4 to $26 1/2
Indicated Annual Dividend Rate........ $1.28. The Company's Board of
Directors declared a regular quarterly
dividend on January 25, 1994 of $.32
per share on the Company's Common
Stock, payable on March 31, 1994, to
shareholders of record on March 18,
1994. Holders, as of the record date,
of the Common Stock offered hereby
will be entitled to receive this
dividend.
Use of Proceeds....................... To reduce short-term debt incurred
primarily in connection with
Southern's capital expenditures
program and for other corporate
purposes.
</TABLE>
- --------
(a) As of February 1, 1994; assumes the subsequent issuance through March 1,
1994 of 9,186 shares of Common Stock pursuant to the Company's Dividend
Reinvestment and Stock Purchase Plan.
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
FISCAL YEARS ENDED SEPTEMBER 30,
TWELVE MONTHS ENDED ------------------------------------
DECEMBER 31, 1993 1993 1992 1991 1990
------------------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Operating Revenues.... $215,313 $212,762 $203,011 $179,172 $174,059
Operating Income...... 22,648 23,125 22,328 19,817 16,906
Net Income............ 10,214 11,053 10,227 9,004 8,219(a)(b)
Net Income Per Share.. 1.37 1.50 1.43 1.38 1.33(a)(b)
Dividends Per Share... 1.28 1.28 1.265 1.24 1.23
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, 1993
---------------------------------------
ACTUAL AS ADJUSTED(C)
------------------- -------------------
AMOUNT PERCENTAGE AMOUNT PERCENTAGE
-------- ---------- -------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C>
BALANCE SHEET DATA:
Long-Term Debt.......... $120,511 54% $120,511 49%
Common Shareholders' Eq-
uity................... 103,455 46 123,240 51
-------- --- -------- ---
Total Capitalization.... $223,966 100% $243,751 100%
======== === ======== ===
Total Short-Term Debt... $ 38,900 $ 19,115
Net Utility Plant and
Other Property......... $223,359 $223,359
Total Assets............ $361,470 $361,470
</TABLE>
- --------
(a) Includes the cumulative effect of accounting change for municipal property
taxes which increased earnings by $1,280 or $.21 per share.
(b) A writedown of the value of oil and gas properties reduced earnings by $611
or $.10 per share in 1990.
(c) Adjusted to reflect the sale of the Common Stock offered hereby and the
application of the net proceeds thereof (estimated to be $19,785). See "Use
of Proceeds."
3
<PAGE>
THE COMPANY
The Company is a public utility holding company whose principal subsidiary,
The Southern Connecticut Gas Company ("Southern"), is primarily engaged in the
retail distribution of natural gas for residential, commercial and industrial
uses.
The Company was incorporated in Connecticut in 1979, and its principal
executive offices are located at 855 Main Street, Bridgeport, Connecticut 06604
(Telephone: 203-579-1732). The Company is subject to the provisions of the
Public Utility Holding Company Act of 1935 but claims an exemption from all
provisions thereof except Section 9(a)(2). Southern's predecessor companies,
New Haven Gas Company and The Bridgeport Gas Light Company, were originally
incorporated in Connecticut in 1847 and 1849, respectively. The Company has in
the past engaged, and may in the future from time to time engage, in
discussions regarding possible mergers with or acquisitions of companies
involved in gas distribution or other business activities. The Company is not
currently engaged in any such discussions.
Southern, a Connecticut public service company, serves approximately 152,000
customers in Connecticut, primarily in twenty-two towns, including Bridgeport
and New Haven, in an area along the southern Connecticut coast from Westport to
Old Saybrook. Southern is also authorized to lay mains and sell gas in an
additional ten towns in its service area, but does not currently provide any
service to these towns.
Southern's operating revenue breakdown for the fiscal year ended September
30, 1993 was 61.9% residential, 21.6% commercial, 9.0% industrial, 7.2%
interruptible and other, and 0.3% transportation. Southern is regulated as to
rates and other matters by the Connecticut Department of Public Utility Control
("DPUC").
THE SOUTHERN CONNECTICUT GAS COMPANY
FRANCHISE AND SERVICE AREAS
[MAP]
LONG ISLAND SOUND
FRANCHISE AREA CURRENTLY SERVED
FRANCHISE AREA NOT CURRENTLY
SERVED
4
<PAGE>
RATE MATTERS
On December 1, 1993, the DPUC issued a final Decision allowing an increase in
Southern's rates designed to produce additional annual revenues of $13,400,000
(an increase of approximately 6.6%). The Decision also approved a Partial
Settlement of Certain Issues ("Partial Settlement") which resolved most of the
significant financial aspects of the original rate request filed on April 23,
1993. In addition to the $13,400,000 rate increase based upon Southern's sales
forecast, the Partial Settlement included an allowed return on equity of 11.45%
and implementation of a weather normalization adjustment clause which will
adjust customers' bills for the difference between actual and normally expected
weather conditions and result in a leveling of bills during periods of unusual
weather. Southern was also allowed to recover a number of previously deferred
costs over amortization periods of from three to five years. There can be no
assurances that the additional revenues authorized by the rate increase will
actually be received.
The Partial Settlement also provides for current recovery of postretirement
health care expenses accrued under SFAS No. 106 and the establishment of a
target margin of $4,000,000 associated with sales and transportation services
to Southern's interruptible customers with excess margins shared between firm
customers and shareholders on an 80%/20% split. As part of the Partial
Settlement, Southern agreed that, except in the event of certain circumstances
which would adversely affect its financial condition, Southern would not apply
for rate relief prior to November 30, 1995. The new rates became effective on
December 9, 1993.
RECENT FINANCIAL INFORMATION
The Company's results of operations for the three months ended December 31,
1993 are summarized below (dollars in thousands, except per share data):
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-------------------------
DECEMBER 31, DECEMBER 31,
1993 1992
------------ ------------
(UNAUDITED)
<S> <C> <C> <C>
Operating Revenues...... $ 66,714 $ 64,163
Gross Margin............ $ 30,107 $ 29,360
Net Income.............. $ 4,998 $ 5,837
Net Income Per Share.... $ 0.67 $ 0.80
Weighted Average Common
Shares Outstanding..... 7,498,194 7,284,225
</TABLE>
Results for the quarter ended December 31, 1993 do not reflect the full
impact of Southern's recent rate increase. New rates did not become effective
until December 9, 1993 and, therefore, were in place for only the last three
weeks of the quarter.
Factors contributing to the decrease in net income for the three month period
ended December 31, 1993 were slightly warmer weather, which was partially
mitigated by the implementation of the 6.6% rate increase on December 9, 1993
and higher operations expenses in respect of uncollectibles, insurance costs,
wages, depreciation and lease costs. Earnings for the three month period ended
December 31, 1992 were positively impacted by a DPUC decision that allowed
Southern to defer shortfalls in energy assistance from state and federal
agencies. This decision allowed Southern to significantly reduce its provision
for uncollectibles during the three months ended December 31, 1992. Results for
the three months ended December 31, 1993 were also affected by higher interest
costs due to the issuance of $15,000,000 and $12,000,000 in additional long-
term debt in December 1992 and September 1993, respectively. The increase in
long-term debt costs was partially offset by lower short-term interest costs.
5
<PAGE>
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Common Stock being
offered hereby are estimated to be $19,784,588 (assuming a public offering
price of $22.875 per share (the closing price per share on February 3, 1994, as
reported on the NYSE Composite Tape)), and will be used to reduce short-term
debt incurred primarily in connection with Southern's capital expenditures
program and for other corporate purposes. At December 31, 1993, the Company's
consolidated outstanding short-term debt totaled $38,900,000 and had a weighted
average annual interest rate of 3.47%.
CAPITAL EXPENDITURES PROGRAM
Southern's capital expenditures totaled approximately $26,100,000 in fiscal
1993, a significant portion of which was funded by cash flow provided by
operations. Construction expenditures in fiscal 1994 are estimated at
$24,000,000, approximately 35% of which will be used for additions to
Southern's utility plant to serve new customers and the balance of which will
be used to maintain and improve existing facilities. Over the fiscal 1994-1998
periods, Southern estimates that total capital expenditures will range between
$110,000,000 and $130,000,000. Additionally, Southern has $7,033,000 of long-
term debt maturing during the fiscal 1994 through 1998 periods. The Company
intends to continue to finance a significant portion of Southern's capital
requirements and financing obligations with internally generated funds. The
remainder of such expenditures will be financed through external sources,
including the issuance of securities and additional borrowings.
COMMON STOCK PRICE RANGE AND DIVIDENDS
The Company and its predecessors have paid 336 consecutive quarterly cash
dividends since 1909 and cash dividends in each year since 1850. See
"Description of Common Stock" for information regarding dividend restrictions.
The Company's Board of Directors reviews the Company's dividend policy from
time to time. The amount of future dividends will depend upon financial
conditions, earnings and such other factors as the Board of Directors deems
relevant.
The Company's Common Stock is traded on the NYSE under the symbol "CNE." The
following table sets forth, for each of the periods indicated, the high and low
sale prices as reported on the NYSE Composite Tape and the quarterly cash
dividends declared per share on the Company's Common Stock.
<TABLE>
<CAPTION>
PRICE RANGE DIVIDENDS
--------------- DECLARED
FISCAL YEAR HIGH LOW PER SHARE
----------- ------- ------- ---------
<S> <C> <C> <C>
1992 QUARTER ENDED
December 31.................................. $20 3/8 $18 5/8 $.312
March 31..................................... 21 7/8 18 7/8 .312
June 30...................................... 22 5/8 19 1/2 .320
September 30................................. 24 3/4 21 5/8 .320
1993 QUARTER ENDED
December 31.................................. $23 1/2 $20 1/8 $.320
March 31..................................... 25 3/8 22 1/2 .320
June 30...................................... 26 1/2 24 5/8 .320
September 30................................. 26 24 3/8 .320
1994 QUARTER ENDING
December 31.................................. $ 26 $ 23 $.320
March 31 (through February 3, 1994).......... 24 5/8 22 1/4 .320*
</TABLE>
- --------
* The Company's Board of Directors declared a regular quarterly dividend on
January 25, 1994 of $.32 per share on the Company's Common Stock, payable on
March 31, 1994 to shareholders of record on March 18, 1994. Holders, as of
the record date, of the Common Stock offered hereby will be entitled to
receive this dividend.
6
<PAGE>
As of January 28, 1994, there were 11,108 common shareholders of record.
The Company has a Dividend Reinvestment and Stock Purchase Plan (the "Plan"),
offered by separate prospectus, pursuant to which shareholders automatically
reinvest their dividends and invest optional cash payments in newly issued
shares of Common Stock at 100% of the market price. The Company amended the
Plan in 1992 to permit participation by residential customers of Southern who
reside in Connecticut. Eligible customers who are not already record holders of
Common Stock may purchase shares with a minimum cash investment of $250 and a
maximum cash investment of $50,000. In addition, the Company has amended the
Plan (a) to permit optional cash purchases of not less than $50 per investment
and not more than $50,000 per year; (b) to permit contributions for optional
cash purchases to be made by wire transfer or automatic debit from a bank
account; (c) to allow Plan participants to transfer shares of Common Stock held
in their accounts into Plan accounts for other persons who would be eligible to
participate in the amended Plan and to family members of the participant
initiating the transfer; (d) to allow participants to hold shares of Common
Stock in an individual retirement account ("IRA"); (e) to eliminate the fee
charged for the safekeeping feature of the Plan; and (f) to increase the number
of shares of Common Stock reserved for issuance and sale under the Plan from
1,500,000 shares (after adjustment for a 1989 stock split) to 2,500,000 shares.
The Company absorbs substantially all of the expenses of the Plan.
One of the investment funds under the employee benefit plan for Southern's
employees invests in the Company's Common Stock. The Company has filed
registration statements under the 1933 Act pursuant to which interests in the
plan have been registered and up to 500,000 shares of the Company's Common
Stock may be offered to participants in the plan. The shares of the Company's
Common Stock to be offered through the plan either will be obtained through
open-market purchases or will be newly-issued shares.
DESCRIPTION OF COMMON STOCK
The outstanding Common Stock of the Company is, and the Common Stock offered
hereby when issued and paid for will be, fully paid and non-assessable. The
following summary description of certain provisions of the Company's Amended
and Restated Certificate of Incorporation (the "Company's Certificate") does
not purport to be complete and is qualified in its entirety by reference to
said provisions.
The Company's Certificate authorizes 20,000,000 shares of Common Stock having
a par value of $1 per share. The Company's Certificate also authorizes a class
of 1,000,000 shares of preference stock having a par value of $1 per share. The
Board of Directors is authorized to issue shares of the Company's Common Stock
and preference stock from time to time, without common shareholder approval. To
date, no shares of preference stock have been issued.
DIVIDEND RIGHTS
The Company is a legal entity distinct from its subsidiaries. The right of
the Company and its shareholders to participate in any distribution of the
assets or earnings of any subsidiary is subject to the prior claims of
creditors and preferred shareholders of such subsidiary, if any, except to the
extent that claims of the Company in its capacity as a creditor of any
subsidiary may be recognized.
Subject to the preferential rights of the Company's preference stock, if any
should be issued, dividends may be declared on the Common Stock out of the
funds legally available therefor. The major source of funds for payment of the
Company's dividends is dividends received on the shares of Southern's Common
Stock owned by the Company. Southern's indenture relating to long-term debt,
line of credit/term loan agreement and its Amended and Restated Certificate of
Incorporation ("Southern's Certificate") contain restrictions as to the
declaration or payment of cash dividends on, or the reacquisition of, capital
stock. Under the most restrictive of such provisions, $17,960,000 of Southern's
retained earnings at September 30, 1993 were available for such purposes. The
Company's receipt of dividends from Southern is subject to action by
7
<PAGE>
Southern's Board of Directors. In addition, Southern's Certificate authorizes
the issuance of preference stock, but none has been issued.
VOTING RIGHTS
Each holder of the Common Stock is entitled to one vote for each share held
of record on the books of the Company. Shareholders do not have cumulative
voting rights with respect to the election of directors.
LIQUIDATION AND PREEMPTIVE RIGHTS
After satisfaction of the preferential liquidation rights of the Company's
preference stock, if any should be issued, the holders of the Common Stock are
entitled to share ratably in the distribution of all remaining assets.
The holders of the Common Stock have no preemptive rights.
PROVISIONS RELATING TO CHANGE IN CONTROL
The Company's Certificate and By-Laws contain provisions which could have the
effect of delaying, deferring or preventing a change in control of the Company.
Some of these provisions operate only with respect to an extraordinary
corporate transaction involving the Company, such as a merger, reorganization,
tender offer, sale or transfer of substantially all of its assets, or
liquidation. Provisions relating to the Company's Board of Directors (1) divide
the Board of Directors into three classes of directors, as nearly equal in
number as possible, serving for staggered three-year terms, (2) provide that
directors can only be removed for cause (as defined in the Company's
Certificate) upon the affirmative vote of (i) the Board of Directors acting by
not less than a majority of directorships or (ii) 80% of the combined voting
power of the then outstanding shares of all classes and series of the Company's
stock entitled to vote generally in the election of directors ("Voting Stock"),
voting as a single class, (3) provide that vacancies on the Board of Directors
may only be filled by the affirmative vote of the majority of the Board of
Directors then in office, even though less than a quorum of the Board, (4)
require that written notice be given to the Board of Directors of a
shareholder's intention to nominate a director at least ninety (90) days in
advance of an annual meeting of shareholders or, in the case of a special
shareholders' meeting, not later than the close of business on the seventh day
following the date on which notice of such meeting was first given to
shareholders, (5) require that a special shareholders' meeting shall only be
called by the affirmative vote of a majority of the Board of Directors, or by
the President or Chairman, unless otherwise required by law, (6) require that,
unless otherwise voted by the Board of Directors, notice shall be given to
shareholders at least thirty (30) days in advance of any special shareholders'
meeting, (7) provide that shareholder action may only be taken at a meeting
unless the unanimous written consent of shareholders is obtained, (8) confirm
that the Board of Directors may consider, in exercising its judgment on any
decision, the impact of its decisions upon employees, customers and communities
served by Southern and Southern's ability to carry out its duties as a public
service company, (9) provide that, when recommended by two-thirds of the
Disinterested Directors (as defined in the Company's Certificate), the
affirmative vote of the holders of 80% of the combined voting power of the then
outstanding shares of the Voting Stock, voting as a single class, and the
additional vote of a majority of the Disinterested Shareholders (as defined in
the Company's Certificate), voting as a single class, shall be required to
amend, repeal or adopt any provisions inconsistent with certain provisions of
the Company's Certificate and (10) provide that the By-Laws may be adopted,
repealed or amended only upon the affirmative vote of (i) 80% of the combined
voting power of the then outstanding shares of Voting Stock, voting as a single
class, or (ii) the Board of Directors acting by not less than a majority of the
entire Board.
The Company's Certificate contains provisions designed to ensure that under
certain circumstances all shareholders receive a minimum price in the event of
a merger or certain other business combinations initiated by a holder of at
least 10% of the Voting Stock of the Company ("Interested Shareholder"). Under
the terms of the amendments, a business combination with an Interested
Shareholder must be approved by the holders
8
<PAGE>
of 80% of the voting power of the then outstanding shares of Voting Stock,
voting as a single class, and also by the holders of a majority of such voting
power not held by the Interested Shareholder unless (i) such business
combination shall have been approved by a majority of the members of the Board
who were directors before the purchaser became an Interested Shareholder
("Disinterested Directors") and the Interested Shareholder acquired his status
as an Interested Shareholder in a manner substantially consistent with an
agreement or understanding approved by the Board of Directors prior to the time
such Interested Shareholder became an Interested Shareholder, (ii) in the case
of some business combinations, approval is voted by a majority of Disinterested
Directors, or (iii) certain minimum price and procedural requirements are met.
Under some circumstances, when approval of the Disinterested Directors has been
obtained, an amendment to the Company's Certificate would require the approval
of only a majority of the voting power of the Voting Stock. In the case of a
merger, consolidation or sale of all or substantially all of the Company's
assets approved by the Disinterested Directors, the Connecticut Stock
Corporation Act (the "Act") requires the vote of the holders of two-thirds of
the voting power of the Voting Stock. Effective June 4, 1984, the Act was
amended to include provisions regulating the minimum price to be paid to
shareholders in certain business combinations. Such provisions of the Act may
supersede the provisions of the Company's Certificate relating to such business
combinations. If the provisions of the Act apply, and subject to the exemptions
contained therein, a business combination must first be approved by the Board
of Directors and then be approved by the affirmative vote of at least (1) the
holders of 80% of the voting power of the outstanding shares of the voting
stock of the corporation and (2) the holders of two-thirds of the voting power
of the outstanding shares of the voting stock of the corporation other than
voting stock held by the interested shareholder who is, or whose affiliate or
associate is, a party to the business combination or held by an affiliate or
associate of the interested shareholder. The above vote required by the Act
does not apply, among other things, to business combinations (1) in which the
minimum price conditions of the Act and certain procedural requirements have
been satisfied, or (2) which have been approved by a resolution of the Board of
Directors involving transactions with a particular interested shareholder. The
Act defines an interested shareholder as the beneficial owner of 10% or more of
the voting power of the outstanding shares of voting stock of the corporation.
GENERAL
The Company's Common Stock is listed, and the Common Stock offered hereby
will be listed, on the NYSE under the symbol "CNE."
The First National Bank of Boston is the registrar and transfer agent for the
Company's Common Stock.
The Company's Certificate contains a provision pursuant to which the personal
liability of a director of the Company to the Company or its shareholders for
monetary damages for breach of duty as a director shall be limited to the
compensation received by the director for serving the Company as a director
during the year of the violation if such breach did not (a) involve a knowing
and culpable violation of law by the director, (b) enable the director or an
associate, as defined in subsection (3) of Section 33-374d of the Act, to
receive an improper personal gain, (c) show a lack of good faith and a
conscious disregard for the duty of the director to the Company under
circumstances in which the director was aware that his conduct or omission
created an unjustifiable risk of serious injury to the Company, (d) constitute
a sustained or unexcused pattern of inattention that amounted to an abdication
of the director's duty to the Company, or (e) create liability under Section
33-321 of the Act. The provision does not preclude or limit a director's
liability for acts or omissions occurring prior to the effective date of the
provision.
SPECIAL REDEMPTION OF BONDS RELATING TO CHANGE IN CONTROL
Bond purchase agreements with holders of first mortgage bonds issued by
Southern in the aggregate principal amount of $121,106,000 contain provisions
that require Southern, if requested by such bondholders, to redeem all of such
bonds in the event of a change in control of Southern. Such special redemption
shall be
9
<PAGE>
made not less than 15 days nor more than 45 days after receiving a request from
the bondholder for redemption of its bonds. Such request must be made not later
than 45 days after the change in control has taken place. A change in control
occurs when any person or group of related persons (other than the Company) (i)
has beneficial ownership of a majority in interest of Southern's outstanding
voting stock or (ii) acquires all or substantially all of Southern's assets.
Neither of such events shall be deemed to be a change in control if Southern
shall have merged or sold all or substantially all of its assets in compliance
with and as permitted by Southern's current bond indenture and, after either of
such events, no person or group of related persons shall have beneficial
ownership of a majority in interest of the outstanding voting stock of the
successor corporation.
If a special redemption occurs, the special redemption price shall equal the
sum of the respective Payment Values of each prospective Interest Payment and
Principal Payment, as such terms are defined in the bond purchase agreements.
The existence of the special redemption provisions may act as a deterrent to a
person desiring to take control of the Company as it could require the
refinancing of a substantial portion of Southern's long-term debt.
Southern's revolving credit/term loan agreement also contains provisions
requiring repayment in certain circumstances of the outstanding indebtedness in
the event of a "change in control," as such term is defined in that agreement.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
the Company has agreed to sell an aggregate of 900,000 shares of Common Stock
to Smith Barney Shearson Inc., A.G. Edwards & Sons, Inc. and Edward D. Jones &
Co. (the "Underwriters"), and each Underwriter has severally agreed to purchase
300,000 shares of Common Stock from the Company.
In the Underwriting Agreement, the several Underwriters have agreed, subject
to the terms and conditions set forth therein, to purchase all of the shares of
Common Stock offered hereby if any such shares are purchased.
The Company has been advised by the Underwriters that the several
Underwriters propose initially to offer the Common Stock to the public at the
initial public offering price set forth on the cover page of this Prospectus,
and in part to certain securities dealers at such price less a concession not
in excess of $ per share. The Underwriters may allow and such dealers
may reallow a concession not in excess of $ per share to certain brokers
and dealers. After the initial public offering, the public offering price and
such concessions may be changed.
The Company has granted to the Underwriters an option, exercisable for 30
days after the date of this Prospectus, to purchase up to an aggregate of
100,000 additional shares of Common Stock to cover over-allotments, if any. If
the Underwriters exercise their over-allotment option, Smith Barney Shearson
Inc., A.G. Edwards & Sons, Inc. and Edward D. Jones & Co., have severally
agreed, subject to certain conditions, to purchase 33,334, 33,333 and 33,333
shares of Common Stock, respectively. The Underwriters may exercise such option
only to cover over-allotments in connection with the sale of the 900,000 shares
of Common Stock offered hereby.
The Company has agreed in the Underwriting Agreement not to offer, sell or
otherwise dispose of any shares of Common Stock for a period of 120 days after
the date of this Prospectus, without the prior written consent of the
Underwriters, provided that the Company may issue shares under its Dividend
Reinvestment and Stock Purchase Plan.
The Company and the Underwriters have agreed to indemnify each other against
certain liabilities, including liabilities under the 1933 Act.
10
<PAGE>
LEGAL OPINIONS
The validity of shares of the Company's Common Stock offered hereby will be
passed upon for the Company by Tyler Cooper & Alcorn, 205 Church Street, New
Haven, Connecticut 06510, and for the Underwriters by Winthrop, Stimson, Putnam
& Roberts, One Battery Park Plaza, New York, New York 10004-1490, who will rely
on Tyler Cooper & Alcorn for all matters governed by the laws of the State of
Connecticut.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries as
of September 30, 1993 and 1992 and for the years ended September 30, 1993, 1992
and 1991 and the financial statement schedules of the Company and its
subsidiaries for the years ended September 30, 1993, 1992 and 1991 incorporated
by reference in this Prospectus have been incorporated herein in reliance on
the reports of Coopers & Lybrand, independent accountants, given on the
authority of that firm as experts in accounting and auditing.
11
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION, OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER
CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR BY ANY OF THE REPRESENTATIVES OR ANY UNDERWRITERS OR BY ANY OTHER
PERSON. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION IN
WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
Prospectus Summary......................................................... 3
The Company................................................................ 4
Map........................................................................ 4
Rate Matters............................................................... 5
Recent Financial Information............................................... 5
Use of Proceeds............................................................ 6
Capital Expenditures Program............................................... 6
Common Stock Price Range and
Dividends................................................................. 6
Description of Common Stock................................................ 7
Underwriting............................................................... 10
Legal Opinions............................................................. 11
Experts.................................................................... 11
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
900,000 SHARES
[LOGO]
CONNECTICUT
ENERGY
CORPORATION
COMMON STOCK
(PAR VALUE $1 PER SHARE)
---------------
PROSPECTUS
MARCH , 1994
---------------
SMITH BARNEY SHEARSON INC.
A.G. EDWARDS & SONS, INC.
EDWARD D. JONES & CO.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
CONNECTICUT ENERGY CORPORATION
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................ $ 7,779.37
National Association of Securities Dealers, Inc. ("NASD")
filing fee.................................................. 2,756.00
New York Stock Exchange listing fees......................... 3,500.00
Transfer agent's fees........................................ 2,500.00
Costs of printing and engraving.............................. 37,000.00
Legal fees and expenses...................................... 70,000.00
Accounting fees and expenses................................. 10,000.00
Blue sky fees and expenses................................... 6,000.00
Miscellaneous expenses....................................... 2,464.63
-----------
Total.................................................... $142,000.00
===========
</TABLE>
All of the above amounts are estimated except for Securities and Exchange
Commission and NASD filing fees and the New York Stock Exchange listing fees.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the statutes of the State of Connecticut, a director, officer or
employee of a corporation is entitled, under specified circumstances, to
indemnification by the corporation against reasonable expenses, including
attorney's fees, incurred by him in connection with the defense of a civil or
criminal proceeding to which he has been made, or threatened to be made, a
party by reason of the fact that he was a director, officer or employee. In
certain circumstances, indemnity is provided against judgments, fines and
amounts paid in settlement. In general, indemnification is not available where
the director, officer or employee has been adjudged to have breached his duty
to the corporation or where he did not act in good faith. Specific court
approval is required in some cases. The foregoing statement is subject to the
detailed provisions of Section 33-320a of the Connecticut General Statutes.
Article 7 of the registrant's by-laws provides that its directors, officers and
employees shall be indemnified and reimbursed to the full extent in the manner
provided in Section 33-320a of the Connecticut General Statutes. In addition,
the Company maintains an insurance policy providing coverage for certain
liabilities of directors and officers, including liabilities under the federal
securities laws.
ITEM 16. LIST OF EXHIBITS
See Exhibit Index
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Act"), each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
II-1
<PAGE>
Insofar as indemnification for liabilities arising under the Act 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
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 Act and
will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A of the Act and contained
in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus 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.
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF BRIDGEPORT, STATE OF CONNECTICUT, ON THE 4TH DAY OF
FEBRUARY, 1994.
CONNECTICUT ENERGY CORPORATION
By /s/ Carol A. Forest
-----------------------------------
(Carol A. Forest)
Its Duly Authorized Vice
President, Finance, Treasurer and
Chief Financial Officer
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.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ J.R. CRESPO* Chairman of the Board of February 4, 1994
- ------------------------------------ Directors, President and
(J.R. Crespo) Chief Executive Officer
(Principal Executive
Officer)
/s/ CAROL A. FOREST Vice President, Finance, February 4, 1994
- ------------------------------------ Treasurer and Chief
(Carol A. Forest) Financial Officer
(Principal Financial
Officer)
/s/ VINCENT L. AMMANN. JR.* Vice President and Chief February 4, 1994
- ------------------------------------ Accounting Officer
(Vincent L. Ammann, Jr.) (Principal Accounting
Officer)
/s/ HENRY CHAUNCEY, JR.* Director February 4, 1994
- ------------------------------------
(Henry Chauncey, Jr.)
/s/ JAMES P. COMER, M.D.* Director February 4, 1994
- ------------------------------------
(James P. Comer, M.D.)
/s/ RICHARD F. FREEMAN* Director February 4, 1994
- ------------------------------------
(Richard F. Freeman)
/s/ RICHARD M. HOYT* Director February 4, 1994
- ------------------------------------
(Richard M. Hoyt)
/s/ PAUL H. JOHNSON* Director February 4, 1994
- ------------------------------------
(Paul H. Johnson)
/s/ NEWMAN M. MARSILIUS, III* Director February 4, 1994
- ------------------------------------
(Newman M. Marsilius, III)
/s/ SAMUEL M. SUGDEN* Director February 4, 1994
- ------------------------------------
(Samuel M. Sugden)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ CHRISTOPHER D. TURNER* Director February 4, 1994
- ------------------------------------
(Christopher D. Turner)
/s/ HELEN B. WASSERMAN* Director February 4, 1994
- ------------------------------------
(Helen B. Wasserman)
*By /s/ CAROL A. FOREST
- ------------------------------------
(Carol A. Forest)
As Attorney-in-Fact
</TABLE>
II-4
<PAGE>
GRAPHICS APPENDIX LIST
Following the last paragraph under the caption "The Company" in the
Prospectus which forms a part of the Registration Statement on Form S-3 of
Connecticut Energy Corporation, the registrant has presented a map of the State
of Connecticut which describes the franchise and service areas of the
registrant's wholly-owned subsidiary, The Southern Connecticut Gas Company
("Southern"). The map includes two shaded areas of the southern coast of
Connecticut. One shaded area illustrates twenty-two towns in Southern's
franchise area currently served, and the other shaded area illustrates an
additional ten towns in Southern's franchise area not currently served.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO.
-------
<C> <S>
1. --Form of Underwriting Agreement.
4.1 --Amended and Restated Certificate of Incorporation of Connecticut
Energy Corporation, incorporated by reference to Item 6 of Form 10-Q
for the quarter ended March 31, 1991, at pages 16 through 27.
4.2 --Amended and Restated By-Laws of Connecticut Energy Corporation,
incorporated by reference to Item 6 of Form 10-Q for the quarter
ended June 30, 1993, at pages 21 through 32.
5. --Opinion of Tyler Cooper & Alcorn as to the legality of the Common
Stock offered pursuant to this Registration Statement.
23.1 --Consent of Coopers & Lybrand dated February 3, 1994.
23.2 --Consent of Tyler Cooper & Alcorn, contained in Exhibit 5 of this
Registration Statement.
24. --Powers of Attorney authorizing the signing of the Registration
Statement and any Amendments thereto on behalf of the Directors and
Officers of Connecticut Energy Corporation.
</TABLE>
<PAGE>
Exhibit 1
---------
2/3/94
900,000 Shares
CONNECTICUT ENERGY CORPORATION
Common Stock
UNDERWRITING AGREEMENT
----------------------
____________, 1994
SMITH BARNEY SHEARSON INC.
A.G. EDWARDS & SONS, INC.
EDWARD D. JONES & CO.
c/o SMITH BARNEY SHEARSON INC.
1345 Avenue of the Americas
New York, New York 10105
Dear Sirs:
Connecticut Energy Corporation, a Connecticut corporation (the "Company"),
proposes to issue and sell an aggregate of 900,000 shares (the "Firm Shares") of
its common stock, $1 par value per share (the "Common Stock"), to you (the
"Underwriters"). The Company also proposes to sell to the Underwriters, upon
the terms and conditions set forth in Section 2 hereof, up to an additional
100,000 shares (the "Additional Shares") of Common Stock. The Firm Shares and
the Additional Shares are hereinafter collectively referred to as the "Shares".
The Company wishes to confirm as follows its agreement with the
Underwriters in connection with the several purchases of the Shares by the
Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and
-------------------------------------
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Shares. The term "Registration Statement" as used in this Agreement means the
registration
<PAGE>
statement (including all financial schedules and exhibits), as amended at the
time it becomes effective, or, if the registration statement became effective
prior to the execution of this Agreement, as supplemented or amended prior to
the execution of this Agreement. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the offering of
the Shares may commence, the term "Registration Statement" as used in this
Agreement means the registration statement as amended by said post-effective
amendment. The term "Prospectus" as used in this Agreement means the prospectus
in the form included in the Registration Statement, or, if the prospectus
included in the Registration Statement omits information in reliance on Rule
430A under the Act and such information is included in a prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, the term "Prospectus" as
used in this Agreement means the prospectus in the form included in the
Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b). The term "Prepricing Prospectus" as used in this Agreement means
the prospectus subject to completion in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission, and as such prospectus shall have been amended from time to time
prior to the date of the Prospectus. Any reference in this Agreement to the
registration statement, the Registration Statement, any Prepricing Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act,
as of the date of the registration statement, the Registration Statement, such
Prepricing Prospectus or the Prospectus, as the case may be, and any reference
to any amendment or supplement to the registration statement, the Registration
Statement, any Prepricing Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") which, upon filing, are
incorporated by reference therein, as required by paragraph (b) of Item 12 of
Form S-3. As used herein, the term "Incorporated Documents" means the documents
which at the time are incorporated by reference in the registration statement,
the Registration Statement, any Prepricing Prospectus, the Prospectus, or any
amendment or supplement thereto.
2. Agreements to Sell and Purchase. The Company hereby agrees, subject to
-------------------------------
all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Company, at a purchase price of $_____ per Share (the
"purchase price per share"), the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I
-2-
<PAGE>
hereto (or such number of Firm Shares increased as set forth in Section 10
hereof).
The Company also agrees, subject to all the terms and conditions set forth
herein, to sell to the Underwriters, and, upon the basis of the representations,
warranties and agreements of the Company herein contained and subject to all the
terms and conditions set forth herein, the Underwriters shall have the right to
purchase from the Company, at the purchase price per share, pursuant to an
option (the "over-allotment option") which may be exercised by written notice to
the Company as described in Section 4 at any time and from time to time prior to
9:00 P.M., New York City time, on the 30th day after the date of the Prospectus
(or, if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for trading),
up to an aggregate of 100,000 Additional Shares. Additional Shares may be
purchased only for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, each Underwriter, severally and not jointly, agrees to purchase from the
Company the number of Additional Shares (subject to such adjustments as the
Underwriters may determine in order to avoid fractional shares) which bears the
same proportion to the aggregate number of Additional Shares to be purchased by
the Underwriters as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such number of Firm Shares increased
as set forth in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Company has been advised by the
------------------------
Underwriters that they propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in the judgment of the Underwriters is
advisable and initially to offer the Shares upon the terms set forth in the
Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
-------------------------------------------
Underwriters of and payment for the Firm Shares shall be made at the office of
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New York
10004, at 10:00 A.M., New York City time, on ____________, 1994 (the "Closing
Date"). The place of closing for the Firm Shares and the Closing Date may be
varied by agreement between the Underwriters and the Company.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at the aforementioned office of
Winthrop, Stimson, Putnam & Roberts at such time on such date (the "Option
Closing Date"), which may be the same as the Closing Date but shall in no event
be earlier that the Closing Date nor earlier than three nor later than ten
business days after the giving of the notice hereinafter
-3-
<PAGE>
referred to, as shall be specified in a written notice from the Underwriters to
the Company of the Underwriters' determination to purchase a number, specified
in such notice, of Additional Shares. The place of closing for any Additional
Shares and the Option Closing Date for such Shares may be varied by agreement
between the Underwriters and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as the Underwriters shall request prior to 1:00 P.M., New York City time, on the
third business day preceding the Closing Date or any Option Closing Date, as the
case may be. Such certificates shall be made available to the Underwriters in
New York City for inspection and packaging not later than 9:30 A.M., New York
City time, on the business day next preceding the Closing Date or the Option
Closing Date, as the case may be. The certificates evidencing the Firm Shares
and any Additional Shares to be purchased hereunder shall be delivered to the
Underwriters on the Closing Date or the Option Closing Date, as the case may be,
against payment therefor in next day funds.
5. Agreements of the Company. The Company agrees with the several
-------------------------
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise the
Underwriters promptly and, if requested by them, will confirm such advice in
writing, when the Registration Statement or such post-effective amendment has
become effective.
(b) The Company will advise the Underwriters promptly and, if requested by
them, will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the happening
of any event, which makes any statement of a material fact made in the
Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Act or the regulations thereunder
to be stated
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<PAGE>
therein or necessary in order to make the statements therein not misleading, or
of the necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to the Underwriters, without charge (i) four
(4) signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, (ii) such number of conformed copies of
the registration statement as originally filed and of each amendment thereto,
but without exhibits, as the Underwriters may request, and (iii) such number of
copies of the Incorporated Documents, without exhibits, as the Underwriters may
request.
(d) The Company will not file any amendment to the Registration Statement
or make any amendment or supplement to the Prospectus or, prior to the end of
the period of time referred to in the first sentence in subsection (f) below,
file any document which upon filing becomes an Incorporated Document, of which
the Underwriters shall not previously have been advised or to which, after they
shall have received a copy of the document proposed to be filed, they shall
reasonably object.
(e) Prior to the execution and delivery of this Agreement, the Company has
delivered to the Underwriters, without charge, in such quantities as they have
requested, copies of each form of the Prepricing Prospectus. The Company
consents to the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are offered
by the several Underwriters and by dealers, prior to the date of the Prospectus,
of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible
and thereafter from time to time for such period as in the opinion of counsel
for the Underwriters a prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer, the Company will
expeditiously deliver to each Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
the Underwriters may request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by all dealers to
whom Shares may be sold, both in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required by
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<PAGE>
the Act to be delivered in connection with sales by any Underwriter or dealer.
If during such period of time any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus (or to file under the Exchange Act any
document which, upon filing, becomes an Incorporated Document) in order to
comply with the Act or any other law, the Company will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and will
expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof. In the event that the Company and the Underwriters agree that
the Prospectus should be amended or supplemented, the Company, if requested by
the Underwriters, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with the Underwriters and with counsel for
the Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers under
the securities or Blue Sky laws of such jurisdictions as they may designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
(h) The Company will make generally available to its security holders a
consolidated earning statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earning statement shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(i) During the period of two years hereafter, the Company will furnish to
the Underwriters (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed with the Commission, and (ii) from time to time
such other information concerning the Company as the Underwriters may request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10
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hereof or by notice given by the Underwriters terminating this Agreement
pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be
terminated by the Underwriters because of any failure or refusal on the part of
the Company to comply with the terms or fulfill any of the conditions of this
Agreement, the Company agrees to reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by the Underwriters in connection herewith.
(k) If Rule 430A of the Act is employed, the Company will timely file the
Prospectus pursuant to Rule 424(b) under the Act and will advise the
Underwriters of the time and manner of such filing.
(l) Except as provided in this Agreement, the Company will not sell,
contract to sell or otherwise dispose of any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or grant any
options or warrants to purchase Common Stock, for a period of 120 days after the
date of the Prospectus, without the prior written consent of Smith Barney
Shearson Inc.; provided, however, that the Company may issue and sell Common
-------- -------
Stock pursuant to any employee stock option plan, employee restricted stock
plan, employee savings plan, employee stock ownership plan, 401(k) plan,
dividend reinvestment or stock purchase plan, restricted stock incentive plan,
long-range performance share plan, directors stock plan or any similar plan of
the Company in effect at the date of this Agreement and the Company may issue
Common Stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the date of execution of this Agreement.
(m) Except as stated in this Agreement and in the Prepricing Prospectus
and Prospectus, the Company has not taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares.
(n) The Company will use its best efforts to have the shares of Common
Stock which it agrees to sell under this Agreement listed, subject to notice of
issuance, on the New York Stock Exchange on or before the Closing Date.
6. Representations and Warranties of the Company. The Company represents
---------------------------------------------
and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the provisions of the Act. The Commission has not issued
any order preventing or suspending the use of any Prepricing Prospectus.
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<PAGE>
(b) The Company and the transactions contemplated by this Agreement meet
the requirements for using Form S-3 under the Act. The registration statement
in the form in which it became or becomes effective and also in such form as it
may be when any post-effective amendment thereto shall become effective and the
prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act, complied or will comply in all
material respects with the provisions of the Act and will not at any such times
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except that this representation and warranty does not apply to
statements in or omissions from the registration statement or any Prepricing
Prospectus or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
or on behalf of any Underwriter expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were filed (or,
if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the requirements
of the Exchange Act and the rules and regulations thereunder, any further
Incorporated Documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act and the rules and
regulations thereunder; no such document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and no such further document, when it is filed, will
contain an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
(d) All the outstanding shares of Common Stock of the Company have been
duly authorized and validly issued, are fully paid and nonassessable and are
free of any preemptive or similar rights; the Shares have been duly authorized
and, when issued and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights; and the capital
stock of the Company conforms to the description thereof in the Registration
Statement and the Prospectus.
(e) The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Connecticut with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus, and is
duly qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties
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<PAGE>
or the conduct of its business requires such qualification, except where the
failure so to qualify does not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations
of the Company and Southern (as hereinafter defined) taken as a whole.
(f) The Southern Connecticut Gas Company ("Southern") is a corporation
duly organized and in existence in the State of Connecticut, with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus, and is
duly qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such qualification, except where the failure so to qualify
does not have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company and
Southern taken as a whole; all the outstanding shares of capital stock of
Southern have been duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company directly, free and clear of any lien,
adverse claim, security interest, equity, or other encumbrance.
(g) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, against the Company or Southern, or to
which the Company or Southern, or to which any of their respective properties is
subject, that are required to be described in the Registration Statement or the
Prospectus but are not described as required, and there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement or any Incorporated Document that are not
described or filed as required by the Act or the Exchange Act.
(h) Except as specifically disclosed in the Incorporated Documents
heretofore filed (and subject to the qualifications contained therein), neither
the Company nor Southern is in violation of its certificate or articles of
incorporation or by-laws, or other organizational documents, or of any law,
ordinance, administrative or governmental rule or regulation applicable to the
Company or Southern or of any decree of any court or governmental agency or body
having jurisdiction over the Company or Southern, or in default in any material
respect in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease or other instrument to which the Company or
Southern is a party or by which any of them or any of their respective
properties may be bound, except where any such violation or default does not
have, individually or in the aggregate, a material adverse effect on the
condition (financial or other), business, net worth or results of operations of
the Company and Southern taken as a whole.
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<PAGE>
(i) Neither the issuance and sale of the Shares, the execution, delivery
or performance of this Agreement by the Company nor the consummation by the
Company of the transactions contemplated hereby (i) requires any consent,
approval, authorization or other order of or registration or filing with, any
court, regulatory body, administrative agency or other governmental body, agency
or official (except such as may be required for the registration of the Shares
under the Act and the Exchange Act and compliance with the securities or Blue
Sky laws of various jurisdictions, all of which have been or will be effected in
accordance with this Agreement) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the certificate
or articles of incorporation or bylaws, or other organizational documents, of
the Company or Southern or (ii) conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, any agreement, indenture,
lease or other instrument to which the Company or Southern is a party or by
which any of them or any of their respective properties may be bound, or
violates or will violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Company or Southern or any of
their respective properties, or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
Southern pursuant to the terms of any agreement or instrument to which any of
them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
(j) The accountants, Coopers & Lybrand, who have certified or shall
certify the financial statements included or incorporated by reference in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) are independent public accountants as required by the Act.
(k) The financial statements, together with related schedules and notes,
included or incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and Southern on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the other
financial and statistical information and data included or incorporated by
reference in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company and
Southern.
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<PAGE>
(l) The execution and delivery of, and the performance by the Company of
its obligations under, this Agreement have been duly and validly authorized by
the Company, and this Agreement has been duly executed and delivered by the
Company and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws and subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization and other laws of general applicability relating to or affecting
creditors rights and to general equitable principles.
(m) Except as disclosed in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), subsequent to the respective dates as
of which such information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), neither the Company nor
Southern has incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business, that is
material to the Company and Southern taken as a whole, and there has not been
any change in the capital stock, or material increase in the short-term debt or
long-term debt, of the Company or Southern, or any material adverse change, or
any development involving or which may reasonably be expected to involve, a
prospective material adverse change, in the condition (financial or other),
business, net worth or results of operations of the Company and Southern taken
as a whole.
(n) Each of the Company and Southern has good and marketable title to all
property (real and personal) described in the Prospectus as being owned by it,
free and clear of all liens, claims, security interests or other encumbrances
which might materially interfere with the conduct of the business of the Company
or Southern taken as a whole (except such as are described in the Registration
Statement and the Prospectus or in a document filed as an exhibit to the
Registration Statement) and all the property described in the Prospectus as
being held under lease by each of the Company and Southern is held by it under
valid, subsisting and enforceable leases.
(o) The Company has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Shares, will
not distribute any offering material in connection with the offering and sale of
the Shares other than the Registration Statement, the Prepricing Prospectus, the
Prospectus or other materials, if any, permitted by the Act.
(p) Each of the Company and Southern has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("permits") as are necessary to own its respective properties and to conduct its
business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus; each of the Company and
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<PAGE>
Southern has fulfilled and performed all its material obligations with respect
to such permits and no event has occurred which allows, or after notice or lapse
of time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such permit, subject in
each case to such qualification as may be set forth in the Prospectus; and,
except as described in the Prospectus, none of such permits contains any
restriction that is materially burdensome to the Company or Southern.
(q) No holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the Company
because of the filing of the Registration Statement or consummation of the
transactions contemplated by this Agreement.
(r) The Company has complied with all provisions of Florida Statutes,
(S) 517.075, relating to issuers doing business with Cuba.
(s) The Company is exempt from all provisions of the Public Utility
Holding Company Act of 1935 other than Section 9(a)(2) thereof.
7. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Prepricing Prospectus or in the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to such Underwriter furnished in writing to the Company by or on behalf
of any Underwriter expressly for use in connection therewith; provided, however,
that the indemnification contained in this paragraph (a) with respect to any
Prepricing Prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of any person controlling such Underwriter) on account of any such
loss, claim, damage, liability or expense arising from the sale of the Shares by
such Underwriter to any person if a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Act and the
regulations thereunder, and the
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<PAGE>
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel and
payment of all fees and expenses. Such Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action, suit
or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the Company has agreed in writing to pay such fees
and expenses, (ii) the Company has failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such Underwriter or such
controlling person and the Company and such Underwriter or such controlling
person shall have been advised by its counsel that representation of such
indemnified party and the Company by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the Company shall not have the
right to assume the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood, however, that the
Company shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Underwriters and controlling persons, which firm shall be designated in
writing by Smith Barney Shearson Inc., and that all such fees and expenses shall
be reimbursed as they are incurred. The Company shall not be liable for any
settlement of any such action, suit or proceeding effected without its written
consent, but if settled with such written consent, or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the Company
agrees to indemnify and hold harmless any Underwriter, to the extent provided in
the preceding paragraph, and any such controlling person from and against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment.
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<PAGE>
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with respect
to information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter expressly for use in the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or supplement thereto.
If any action, suit or proceeding shall be brought against the Company, any of
its directors, any such officer, or any such controlling person based on the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against any Underwriter pursuant to this paragraph (c), such Underwriter shall
have the rights and duties given to the Company by paragraph (b) above (except
that if the Company shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and the Company, its directors, any
such officer, and any such controlling person shall have the rights and duties
given to the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters may
otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of the
Shares, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things,
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whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Underwriters on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by a pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price of the Shares
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto (or such numbers of Firm Shares increased as set forth in Section 10
hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or
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on behalf of any Underwriter or any person controlling any Underwriter, the
Company, its directors or officers, or any person controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to the Company, its directors or officers, or
any person controlling the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
7.
8. Conditions of Underwriters' Obligations. The several obligations of
----------------------------------------
the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
registration statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by the
Underwriters, and all filings, if any, required by Rules 424 and 430A under the
Act shall have been timely made; no stop order suspending the effectiveness of
the registration statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission, and any request of the Commission for
additional information (to be included in the registration statement or the
prospectus or otherwise) shall have been complied with to the satisfaction of
the Underwriters.
(b) Subsequent to the effective date of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective change,
in or affecting the condition (financial or other), business, properties, net
worth, or results of operations of the Company and Southern, taken as a whole,
not contemplated by the Prospectus, which in the opinion of the Underwriters,
would materially adversely affect the market for the Shares, or (ii) any event
or development relating to or involving the Company or any officer or director
of the Company, which makes any statement made in the Prospectus untrue or
which, in the opinion of the Company and its counsel or the Underwriters and
their counsel, requires the making of any addition to or change in the
Prospectus in order to state a material fact required by the Act or any other
law to be stated therein or necessary in order to make the statements therein
not misleading if amending or supplementing the Prospectus to reflect such event
or development would, in the opinion of the Underwriters materially adversely
affect the market for the Shares.
-16-
<PAGE>
(c) The Underwriters shall have received on the Closing Date, an
opinion of Tyler Cooper & Alcorn, counsel for the Company, dated the Closing
Date and addressed to them to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Connecticut with
full corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), and is duly
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such qualification, except where the failure so to
qualify does not have a material adverse effect on the condition (financial
or other), business, properties, net worth or results of operations of the
Company and Southern taken as a whole;
(ii) Southern is a corporation duly organized and validly
existing under the laws of the State of Connecticut, with full corporate
power and authority to own, lease, and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement thereto); and all the
outstanding shares of capital stock of Southern have been duly authorized
and validly issued, are fully paid and nonassessable, and are owned by the
Company directly, free and clear of any perfected security interest;
(iii) The authorized and outstanding capital stock of the Company
is as set forth in the Prospectus; and the authorized capital stock of the
Company conforms in all material respects as to legal matters to the
description thereof contained in the Prospectus under "Description of
Common Stock";
(iv) All the shares of capital stock of the Company outstanding
prior to the issuance of the Shares have been duly authorized and validly
issued, and are fully paid and nonassessable;
(v) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and nonassessable and
free of any preemptive, or to the knowledge of such counsel, similar rights
that entitle or will entitle any person to acquire any Shares upon the
issuance thereof by the Company;
(vi) The form of certificates for the Shares conforms to the
requirements of the Connecticut Stock Corporation Act;
-17-
<PAGE>
(vii) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the best
knowledge of such counsel after reasonable inquiry, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose are pending before or threatened by the
Commission;
(viii) The Company has corporate power and authority to enter into
this Agreement and to issue, sell and deliver the Shares to the
Underwriters as provided herein, and this Agreement has been duly
authorized, executed and delivered by the Company;
(ix) To the best knowledge of such counsel after reasonable
inquiry, neither the Company nor Southern is in default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any material bond, debenture, note or other evidence or
indebtedness, except as may be disclosed in the Prospectus;
(x) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement, compliance by the
Company with the provisions hereof nor consummation by the Company of the
transactions contemplated hereby conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws, or other organizational
documents, of the Company or Southern or any agreement, indenture, lease or
other instrument to which the Company or Southern is a party or by which
any of them or any of their respective properties is bound that is an
exhibit to the Registration Statement or to any Incorporated Document, or
is known to such counsel, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or Southern, nor will any such action result in any violation of any
existing law, regulation, ruling (assuming compliance with all applicable
state securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel, applicable to the Company, Southern or any of their
respective properties;
(xi) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required on the
part of the Company (except as have been obtained under the Act and the
Exchange Act or such as may be required under state securities or Blue Sky
laws governing the purchase and distribution of the Shares) for the valid
issuance and sale of the Shares to the Underwriters as contemplated by this
Agreement;
-18-
<PAGE>
(xii) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements and
the notes thereto and the schedules and other financial and statistical
data included therein, as to which such counsel need not express any
opinion) comply as to form in all material respects with the requirements
of the Act; and each of the Incorporated Documents (except for the
financial statements and the notes thereto and the schedules and other
financial and statistical data included therein, as to which counsel need
not express any opinion) complies as to form in all material respects with
the Exchange Act and the rules and regulations of the Commission
thereunder;
(xiii) To the best knowledge of such counsel after reasonable
inquiry, (A) other than as described or contemplated in the Prospectus (or
any supplement thereto) or any Incorporated Document, there are no legal or
governmental proceedings pending or threatened against the Company or
Southern, or to which the Company or Southern, or any of their property, is
subject, which are required to be described in the Registration Statement
or Prospectus (or any amendment or supplement thereto) and (B) there are no
agreements, contracts, indentures, leases or other instruments, that are
required to be described in the Registration Statement or the Prospectus
(or any amendment or supplement thereto) or to be filed as an exhibit to
the Registration Statement or any Incorporated Document that are not
described or filed as required, as the case may be;
(xiv) The Company is exempt from all provisions of the Public
Utility Holding Company Act of 1935 other than Section 9(a)(2) thereof;
(xv) Except as specifically disclosed in the Incorporated Documents
heretofore filed (and subject to the qualifications contained therein), to
the best knowledge of such counsel after reasonable inquiry, neither the
Company nor Southern is in violation of any law, ordinance, administrative
or governmental rule or regulation applicable to the Company or Southern or
of any decree of any court or governmental agency or body having
jurisdiction over the Company or Southern, except where any such violation
does not have, individually or in the aggregate, a material adverse effect
on the condition (financial or other), business, net worth or results of
operations of the Company and Southern taken as a whole.
(xvi) Except as described in the Prospectus, there are no
outstanding options, warrants or other rights calling for the issuance of,
and such counsel does not know of any commitment, plan or arrangement to
issue, any shares of capital stock of the Company or any security
convertible
-19-
<PAGE>
into or exchangeable or exercisable for capital stock of the Company;
(xvii) Except as described in the Prospectus, there is no holder of
any security of the Company or any other person who has the right,
contractual or otherwise, to cause the Company to sell or otherwise issue
to them, or to permit them to underwrite the sale of, the Shares or the
right to have any Common Stock or other securities of the Company included
in the registration statement or the right, as a result of the filing of
the registration statement, to require registration under the Act of any
shares of Common Stock or other securities of the Company;
(xviii) The statements in the Registration Statement and
Prospectus, insofar as they are descriptions of contracts, agreements or
other legal documents, or refer to statements of law or legal conclusions,
are accurate and present fairly the information required to be shown; and
(xix) Although counsel has not undertaken, except as otherwise
indicated in their opinion, to determine independently, and does not assume
any responsibility for, the accuracy or completeness of the statements in
the Registration Statement, such counsel has participated in the
preparation of the Registration Statement and the Prospectus, including
review and discussion of the contents thereof (including review and
discussion of the contents of all Incorporated Documents), and nothing has
come to the attention of such counsel that has caused them to believe that,
at the time it became effective, the Registration Statement (including the
Incorporated Documents and all information (if any) deemed to be a part of
the Registration Statement pursuant to Rule 430A under the Act) 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 or that the Prospectus, at the time it was first filed with
the Commission pursuant to Rule 424(b) under the Act and at the Closing
Date or the Option Closing Date, as the case may be, contained or contains
an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to
the financial statements and the notes thereto and the schedules and other
financial and statistical data included in the Registration Statement or
the Prospectus or any Incorporated Document).
(d) The Underwriters shall have received on the Closing Date an opinion
of Winthrop, Stimson, Putnam & Roberts, counsel for the Underwriters, dated the
Closing Date and addressed to the Underwriters, with respect to the
matters
-20-
<PAGE>
referred to in subparagraphs (v) and (vii), the second clause of subparagraph
(viii), and subparagraphs (xii) and (xix) of the foregoing paragraph (c) and
such other related matters as the Underwriters may request.
(e) The Underwriters shall have received letters addressed to them, and
dated the date hereof and the Closing Date from Coopers & Lybrand, independent
certified public accountants, substantially in the forms heretofore approved by
the Underwriters.
(f) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be threatened by the
Commission at or prior to the Closing Date; (ii) there shall not have been any
change in the capital stock of the Company or Southern nor any material increase
in the short-term or long-term debt of the Company or Southern (other than in
the ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company and
Southern taken as a whole; (iv) the Company and Southern shall not have any
liabilities or obligations, direct or contingent (whether or not in the ordinary
course of business), that are material to the Company and Southern taken as a
whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company contained in this Agreement shall
be true and correct on and as of the date hereof and on and as of the Closing
Date as if made on and as of the Closing Date, and the Underwriters shall have
received a certificate, dated the Closing Date and signed by the chief executive
officer or the president and the chief financial officer of the Company (or such
other officers as are acceptable to the Underwriters), to the effect set forth
in this Section 8(f) and in Section 8(g) hereof.
(g) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(h) Prior to commencement of the offering of the Shares, the Shares
shall have been listed, subject to notice of issuance, on the New York Stock
Exchange.
-21-
<PAGE>
(i) The Company shall have furnished or caused to be furnished to the
Underwriters such further certificates and documents as they shall have
requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Underwriters and their counsel.
Any certificate or document signed by any officer of the Company and
delivered to the Underwriters, or to counsel for the Underwriters, shall be
deemed a representation and warranty by the Company to each Underwriter as to
the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (g) shall be dated the Option
Closing Date in question and the opinions and letter called for by paragraphs
(c), (d) and (e) shall be revised to reflect the sale of Additional Shares.
9. Expenses. The Company agrees to pay the following costs and
--------
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, each
Prepricing Prospectus, the Prospectus, the Incorporated Documents, and all
amendments or supplements to any of them, as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) the preparation,
printing, issuance and delivery of certificates for the Shares, including any
stamp taxes in connection with the original issuance and sale of the Shares;
(iv) the printing (or reproduction) and delivery of this Agreement, the
preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Shares; (v) the listing of the Shares on the New York Stock Exchange;
(vi) the registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of the several states as provided in Section
5(g) hereof (including the reasonable fees, expenses and disbursements of
counsel for the Underwriters relating to the preparation, printing or
reproduction, and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the transportation and
other expenses incurred by or on behalf of
-22-
<PAGE>
Company representatives in connection with presentations to prospective
purchasers of the Shares; (viii) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; and (ix) the filing fees and the fees and expenses
of counsel for the Underwriters in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.
10. Effective Date of Agreement. This Agreement shall become effective:
---------------------------
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the registration statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Company, by notifying the
Underwriters, or by the Underwriters, by notifying the Company.
If any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate number of Shares which such defaulting Underwriter or
Underwriters are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of Shares which the Underwriters are obligated
to purchase on the Closing Date, each non-defaulting Underwriter shall be
obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as the non-defaulting Underwriters may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Smith
Barney Shearson Inc., to purchase the Shares which such defaulting Underwriter
or Underwriters are obligated, but fail or refuse, to purchase. If any one or
more of the Underwriters shall fail or refuse to purchase Shares which it or
they are obligated to purchase on the Closing Date and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares which the Underwriters are obligated to purchase on
the Closing Date and arrangements satisfactory to the non-defaulting
Underwriters and the Company for the purchase of such Shares by one or more
non-defaulting Underwriters or other party or parties approved by the
non-defaulting Underwriters and the Company are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case which does not
result in termination of this Agreement, either the non-defaulting Underwriters
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any such default
of any such Underwriter under this Agreement. The term
-23-
<PAGE>
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I hereto who, with the approval of
the non-defaulting Underwriters and the approval of the Company, purchases
Shares which a defaulting Underwriter is obligated, but fails or refuses, to
purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
------------------------
termination in the absolute discretion of the Underwriters, without liability on
the part of any Underwriter to the Company, by notice to the Company, if at or
prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York or Connecticut shall have been declared by either federal
or state authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis or
change in political, financial or economic conditions, the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Underwriters, impracticable or inadvisable to commence or
continue the offering of the Shares at the offering price to the public set
forth on the cover page of the Prospectus or to enforce contracts for the resale
of the Shares by the Underwriters. Notice of such termination may be given to
the Company by telegram, telecopy or telephone and shall be subsequently
confirmed by letter.
12. Information Furnished by the Underwriters. The statements set forth
-----------------------------------------
in the last paragraph on the cover page, the stabilization legend on the inside
front cover, and the statements in the third paragraph under "Underwriting" in
any Prepricing Prospectus and in the Prospectus, constitute the only information
furnished by the Underwriters as such information is referred to in Sections
6(b) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and
--------------
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at 855 Main Street, Bridgeport, Connecticut 06604, Attention:
Treasurer; or (ii) if to the Underwriters, care of Smith Barney
Shearson Inc., 1345 Avenue of the Americas, New York, New York 10105, Attention:
Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, its directors and officers, and the other controlling
persons referred to in
-24-
<PAGE>
Section 7 hereof and their respective successors and assigns, to the extent
provided herein, and no other person shall acquire or have any right under or by
virtue of this Agreement. Neither the term "successor" nor the term "successors
and assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Shares in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
-25-
<PAGE>
Please conform that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
CONNECTICUT ENERGY CORPORATION
By
----------------------------
Name:
Title:
Confirmed as of the date first
above mentioned
SMITH BARNEY SHEARSON INC.
A.G. EDWARDS & SONS, INC.
EDWARD D. JONES & CO.
By SMITH BARNEY SHEARSON INC.
By
---------------------------
Managing Director
-26-
<PAGE>
SCHEDULE I
CONNECTICUT ENERGY CORPORATION
<TABLE>
<CAPTION>
Number of
Underwriter Firm Shares
- ----------- -----------
<S> <C>
Smith Barney Shearson Inc. . . . . . . . . . . . . . .
A.G. Edwards & Sons, Inc. . . . . . . . . . . . . . .
Edward D. Jones & Co. . . . . . . . . . . . . . . . .
Total 900,000
===========
</TABLE>
<PAGE>
EXHIBIT 5
February 7, 1994
Securities and Exchange Commission
Division of Corporation Finance
450 Fifth Street, N.W.
Washington, D.C. 20549-1004
Re: Connecticut Energy Corporation Registration Statement on Form S-3 under the
Securities Act of 1933
Dear Sirs:
We have acted as counsel for Connecticut Energy Corporation (the "Company")
in connection with the Company's proposed public offering of up to 1,000,000
shares of its common stock, $1.00 par value (the "Common Stock"), including up
to 100,000 shares of the Common Stock to cover over-allotments, if any.
We have examined and are familiar with the originals or copies, certified or
otherwise identified to our satisfaction, of pertinent documents, corporate
records and other instruments relating to the issuance of the Common Stock and
other actions and proceedings relating thereto. In rendering this opinion, we
have assumed that there will be no change in applicable law between the date of
this opinion and the date of issuance of the shares proposed to be issued and
sold by the Company pursuant to a Registration Statement on Form S-3 filed with
the Securities and Exchange Commission (the "Registration Statement").
Based upon the foregoing, we are of the opinion that the Common Stock
proposed to be issued and sold by the Company pursuant to the Registration
Statement, when issued and sold as set forth therein, will be legally issued,
fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Opinions" in the Prospectus which forms a part of the Registration Statement.
Very truly yours,
TYLER COOPER & ALCORN
By /s/ Samuel W. Bowlby
--------------------------------
Samuel W. Bowlby, a Partner
<PAGE>
(LOGO OF COOPERS & LYBRAND APPEARS HERE)
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We consent to the incorporation by reference in the Prospectus constituting
part of the Registration Statement on Form S-3 of Connecticut Energy Corporation
of our report dated November 2, 1993 appearing on page 35 of the Annual Report
to Shareholders on our audits of the consolidated financial statements of
Connecticut Energy Corporation as of September 30, 1993 and 1992 and for the
years ended September 30, 1993, 1992 and 1991. We also consent to the
incorporation by reference in such Prospectus of our report dated November 2,
1993 appearing on page 23 of the Annual Report on Form 10K on our audits of the
financial statement schedules of Connecticut Energy Corporation for the years
ended September 30, 1993, 1992 and 1991. We also consent to the reference to
our firm under the caption "Experts" in such Prospectus.
Coopers & Lybrand
New Haven, Connecticut
February 3, 1994
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
We, the undersigned officers and directors of CONNECTICUT ENERGY CORPORATION,
hereby severally constitute J. Richard Tiano and Carol A. Forest, and each of
them singly, our true and lawful attorneys with full power of substitution, to
sign for us and in our names in the capacities indicated below, the
Registration Statement on Form S-3 relating to Connecticut Energy Corporation's
sale of up to 1,000,000 shares of Common Stock and any and all amendments to
such Registration Statement, and generally to do all such things in our name
and on our behalf in our capacities as officers or directors to enable
Connecticut Energy Corporation to comply with the provisions of the Securities
Act of 1933, as amended, all requirements of the Securities and Exchange
Commission, and all requirements of any other applicable law or regulation,
hereby ratifying and confirming our signatures as they may be signed by our
said attorneys, or any of them, to such Registration Statement and any and all
amendments thereto, including post-effective amendments.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ J.R. Crespo Chairman of the Board, January 25, 1994
- ------------------------------------ President and Chief
J.R. Crespo Executive Officer and
Director (Principal
Executive Officer)
/s/ Carol A. Forest Vice President, Finance, January 25, 1994
- ------------------------------------ Chief Financial Officer and
Carol A. Forest Treasurer (Principal
Financial Officer)
/s/ Vincent L. Ammann, Jr. Vice President and Chief January 25, 1994
- ------------------------------------ Accounting Officer
Vincent L. Ammann, Jr. (Principal Accounting
Officer)
/s/ Henry Chauncey, Jr. Director January 25, 1994
- ------------------------------------
Henry Chauncey, Jr.
/s/ James P. Comer, M.D. Director January 25, 1994
- ------------------------------------
James P. Comer, M.D.
/s/ Richard F. Freeman Director January 25, 1994
- ------------------------------------
Richard F. Freeman
/s/ Paul H. Johnson Director January 25, 1994
- ------------------------------------
Paul H. Johnson
/s/ Richard M. Hoyt Director January 25, 1994
- ------------------------------------
Richard M. Hoyt
/s/ Newman M. Marsilius, III Director January 25, 1994
- ------------------------------------
Newman M. Marsilius, III
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Samuel M. Sugden Director January 25, 1994
- ------------------------------------
Samuel M. Sugden
/s/ Christopher D. Turner Director January 25, 1994
- ------------------------------------
Christopher D. Turner
/s/ Helen B. Wasserman Director January 25, 1994
- ------------------------------------
Helen B. Wasserman
</TABLE>
2
