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As filed with the Securities and Exchange Commission on January 14, 1994
Registration No. 33-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ELIZABETHTOWN WATER COMPANY
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-1683171
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
600 South Avenue
Westfield, New Jersey 07091-0788
(908) 654-1234
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
WALTER M. BRASWELL, Esq.
Vice President, Secretary and General Counsel
Elizabethtown Water Company
600 South Avenue
Westfield, New Jersey 07091-0788
(908) 654-1234
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
It is respectfully requested that the Commission
send copies of all notices, orders and communications to:
DAVID P. FALCK, Esq. BART J. COLLI, Esq.
Winthrop, Stimson, Putnam & Roberts McCarter & English
One Battery Park Plaza Four Gateway Center
New York, New York 10004-1490 100 Mulberry Street
Newark, New Jersey 07102-4096
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of the Registration
Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Securities Amount to Offering Aggregate Amount of
to be Registered be Price Offering Registration
Registered Per Unit Price (1) Fee
Cumulative Preferred
Stock,
$100 par value and
Cumulative Preferred
Stock--$25 Par,
$25 par value. (2) (2) $27,000,000 $9,311
(1) Assumed solely for the purpose of calculating the registration
fee.
(2) Pursuant to General Instruction II D, only the aggregate
proceeds to be raised from the issue and sale of the securities registered
herein is specified. In no event will the total of the aggregate par value
of the Cumulative Preferred Stock, $100 par value, and the Cumulative
Preferred Stock--$25 Par, $25 par value, herein registered exceed
$27,000,000.
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.
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<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 JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES
LAWS OF ANY SUCH JURISDICTION.
SUBJECT TO COMPLETION, DATED JANUARY 14, 1994
PROSPECTUS
$27,000,000
ELIZABETHTOWN WATER COMPANY
Cumulative Preferred Stock
Elizabethtown Water Company (the "Company") intends to offer from time
to time, in one or more transactions, up to $27,000,000 aggregate par value
of its Cumulative Preferred Stock, $100 par value and/or Cumulative Preferred
Stock--$25 Par, $25 par value (collectively, the "Preferred Stock") in one or
more series at prices and on terms to be determined at the time or times of
sale. The series designation, number of shares in each series, rate and time
of payment of dividends, initial public offering price, if any, redemption
and sinking fund provisions, if any, and other specific terms of each series
of the Preferred Stock in respect of which this Prospectus is being delivered
will be set forth in an accompanying prospectus supplement (the "Prospectus
Supplement").
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.
The Company intends to sell the Preferred Stock to or through
underwriters, dealers, agents or directly to a limited number of purchasers.
The names of, and the principal amounts to be purchased by or through,
underwriters, dealers or agents, if any, the compensation of such persons and
other terms in connection with the offering and sale of such Preferred Stock
will be set forth in the Prospectus Supplement. See "Plan of Distribution".
The date of this Prospectus is January __, 1994
<PAGE>
AVAILABLE INFORMATION
Elizabethtown Water Company ("Elizabethtown" or the "Company") is
subject to the informational requirements of the Securities Exchange Act of
1934 (the "Exchange Act") and, in accordance therewith, files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Such reports and other information concerning the Company can
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549; Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60604; and Seven World Trade Center, 13th Floor, New York,
New York 10048. Copies of such materials can also be obtained by mail from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
(File No. 0-628) pursuant to the Exchange Act are incorporated herein by
reference:
(1) Annual Report of the Company on Form 10-K for the year ended
December 31, 1992.
(2) Quarterly Reports of the Company on Form 10-Q for the quarters
ended March 31, 1993,
June 30, 1993 and September 30, 1993.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering of the Preferred
Stock shall be deemed to be incorporated herein by reference and shall be
deemed to be a part hereof from the date of filing of such documents. Such
documents and the documents enumerated above are hereinafter referred to as
"Incorporated Documents"; provided, however, that the documents enumerated
above or subsequently filed by the Company pursuant to Section 13, 14 or 15
of the Exchange Act in each year during which this offering is in effect
prior to the filing with the Commission of the Company's Annual Report on
Form 10-K covering such year shall not be Incorporated Documents or be
incorporated by reference in this Prospectus or be a part hereof from and
after such filing of such Annual Report on Form 10-K.
Any statement contained herein or in an Incorporated Document shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document or in an accompanying Prospectus Supplement modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company hereby undertakes to provide without charge to each
person to whom a copy of this Prospectus has been delivered, on the written
or oral request of any such person, a copy of any document referred to above
which has been incorporated in this Prospectus by reference other than
exhibits to such document (unless such exhibits are specifically incorporated
by reference into such document). Requests for such copies should be
directed to: Andrew M. Chapman, Senior Vice President, Chief Financial
Officer and Treasurer, Elizabethtown Water Company, 600 South Avenue,
Westfield, New Jersey 07091-0788; Telephone number: (908) 654-1234. The
information relating to the Company contained in this Prospectus does not
purport to be comprehensive and should be read together with the information
contained in the Incorporated Documents.
No person has been authorized to give any information or to make
any representation not contained, or incorporated by reference, in this
Prospectus or, with respect to any series of the Preferred Stock, the
Prospectus Supplement relating thereto, and, if given or made, such
information or representation must not be relied upon as having been
authorized by the Company or any underwriter. This Prospectus and any
Prospectus Supplement do not constitute an offer to sell or a solicitation of
an offer to buy any of the securities offered hereby in any jurisdiction to
any person to whom it is unlawful to make such offer in such jurisdiction.
Neither the delivery of this Prospectus and a Prospectus Supplement nor any
sale made thereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of the Company since the date of
that Prospectus Supplement.
<PAGE>
THE COMPANY
Elizabethtown Water Company (the "Company"), a New Jersey
corporation, is a regulated water utility, one of whose corporate
predecessors was first incorporated in 1854. The present corporation was
formed in 1961 as the result of a consolidation of Elizabethtown Water
Company Consolidated and Plainfield-Union Water Company. The Company owns
all of the common stock of The Mount Holly Water Company ("Mount Holly"),
which contributed approximately 3% of the Company's consolidated operating
revenues for 1992. The Company and its subsidiary, Mount Holly, are engaged
in the treatment and distribution of water for domestic, commercial,
industrial and fire protection purposes and for resale to municipal systems
and other investor-owned water companies. Throughout their central New
Jersey service areas, the Company and Mount Holly serve a population of
approximately 552,000 at retail and provide, on a wholesale basis, a portion
of the water requirements of eight municipal systems and three investor-owned
water utilities. At December 31, 1992, the Company was the fifth largest
investor-owned water utility in the United States, based on gallons of water
pumped annually.
The Company and Mount Holly are subject to regulation by the New
Jersey Board of Regulatory Commissioners with respect to rates and service,
the issuance and sale of securities, classification of accounts, mergers, and
other matters. The Company and Mount Holly periodically seek rate relief to
cover the cost of increased operating expenses, increases in financing
expenses due to additional investments in utility plant, and other costs of
doing business.
The Company is a wholly-owned subsidiary of E'town Corporation
("E'town"), a New Jersey corporation which acts primarily as a holding
company for the Company and a real estate subsidiary, E'town Properties, Inc.
The principal executive offices of the Company are located at 600 South
Avenue, Westfield, New Jersey 07091-0788. The telephone number is
(908) 654-1234.
USE OF PROCEEDS
As to be more fully set forth in the Prospectus Supplement, the net
proceeds from the sale of the Preferred Stock will be used by the Company for
general corporate purposes, including financing its ongoing construction
program, repayment of short-term bank debt and redemption of outstanding
preferred stock.
Reference is made to the Incorporated Documents with respect to the
Company's general capital requirements and general financing plans and
capabilities.
DESCRIPTION OF PREFERRED STOCK
General
The authorized capital stock of the Company consists of 10,000,000
shares of Common Stock without par value, 500,000 shares of Junior Preferred
Stock, $25 par value ("Junior Preferred Stock"), 200,000 shares of Cumulative
Preferred Stock, $100 par value ("Cumulative Preferred Stock"), and 500,000
shares of Cumulative Preferred Stock--$25 Par, $25 par value ("Cumulative
Preferred Stock--$25 Par"). As of December 31, 1993, no shares of Junior
Preferred Stock or Cumulative Preferred Stock--$25 Par were outstanding, and
120,000 shares of Cumulative Preferred Stock were outstanding in a single
series bearing dividends at the annual rate of $8.75 per share.
Cumulative Preferred Stock and Cumulative Preferred Stock--$25 Par
may be issued from time to time in series when authorized by the Company's
Board of Directors, up to the number of authorized but unissued shares of
Cumulative Preferred Stock and Cumulative Preferred Stock--$25 Par,
respectively, set forth in the Company's certificate of incorporation, as
amended from time to time (the "Certificate of Incorporation"). The series
designation, dividend rate (or method of determining dividend rate), redemption
prices and other terms of each series are determined by the Board of Directors
to the extent not fixed by the Certificate of Incorporation. The dividend rate,
dividend payment dates, redemption, sinking fund, if any, and the other terms
and provisions of each series of Preferred Stock will be set forth in the
Prospectus Supplement.
Shares of the Cumulative Preferred Stock and the Cumulative
Preferred Stock--$25 Par rank on a parity in respect of dividends or payment
in case of liquidation and, to the extent not fixed and determined by the
Certificate of Incorporation, have the same rights, preferences and powers.
The differences in liquidation value and voting rights are currently the only
differences in rights between the two classes and are summarized below under
"Liquidation Rights" and "Voting Rights", respectively. The Cumulative
Preferred Stock and the Cumulative Preferred Stock--$25 Par are hereinafter
collectively referred to as the "Senior Preferred Stock".
The general provisions of the Senior Preferred Stock, applicable to
all series of Cumulative Preferred Stock and Cumulative Preferred Stock--$25
Par, and the specific provisions applicable to each series, including the
Preferred Stock, are set forth in the Certificate of Incorporation. Copies
of the applicable provisions of the Certificate of Incorporation and the
forms of the proposed certificates of amendment to the Certificate of
Incorporation establishing series of the Preferred Stock, are filed with the
Registration Statement of which this Prospectus is a part as exhibits.
Certain provisions of the Company's Senior Preferred Stock are summarized
below, and the section references are to the provisions of Article VII of the
Certificate of Incorporation. The summary does not purport to be complete
and is qualified in its entirety by express reference to the aforementioned
exhibits to the Registration Statement for a complete statement of the Senior
Preferred Stock provisions.
Dividend Rights
The holders of Senior Preferred Stock of each series are entitled
to receive cumulative cash dividends, in preference to the holders of Common
Stock and the holders of Junior Preferred Stock, when and as declared by the
Board of Directors out of funds legally available therefor at the rate
provided for such series. Dividends may not be declared on any series of
Senior Preferred Stock in respect of any quarterly dividend period unless
there shall be likewise declared on all shares of all series of Senior
Preferred Stock at the time outstanding, like proportionate dividends,
ratably in proportion to the respective annual dividend rates fixed therefor
in respect of all quarterly dividend periods terminating on the same or an
earlier date. No dividend may be declared or paid on the Common Stock or
Junior Preferred Stock or other stock of the Company subordinate to the
Senior Preferred Stock in respect of dividends or assets (which together with
Common Stock and Junior Preferred Stock is defined as "junior stock"), other
than dividends payable solely in junior stock, unless all cumulative
dividends on the outstanding Senior Preferred Stock have been paid or
declared and a sum sufficient therefor set aside. Accruals of dividends
shall not bear interest. (Section 2.B(a))
Dividends on each series of Preferred Stock will be payable
quarterly or otherwise at the rate provided for such series. Unless
otherwise set forth in the Prospectus Supplement, dividends on each series of
Preferred Stock shall be payable on March 1, June 1, September 1 and December
1 in each year for such series.
Sinking Fund Provisions
If a sinking fund is provided for a particular series of Preferred
Stock, the Prospectus Supplement will describe the terms of the sinking fund
for that series. See "Redemption and Purchase" herein for limitations on the
Company's right to purchase Senior Preferred Stock if the Company is in arrears
in the payment of dividends on any outstanding shares of Senior Preferred
Stock.
Redemption and Purchase
The Company, at the option of the Board of Directors, may at any
time redeem any outstanding shares of Senior Preferred Stock for other than
sinking fund purposes, either as a whole or in part, upon not less than 30
nor more than 60 days' prior notice, at the applicable redemption price
provided for such series. In case of a redemption of only part of the
outstanding shares of any series of Senior Preferred Stock, the redemption
may be either pro rata or by lot as determined by the Board of Directors.
(Section 2.B(c)) Notwithstanding the foregoing, for any particular series of
Preferred Stock the Board of Directors may provide that no shares of such
series shall be redeemable prior to a fixed date, which date shall be set
forth in the applicable Prospectus Supplement. See the Prospectus Supplement
with respect to any particular series of Preferred Stock for more information
concerning the redemption provisions for that series.
The Company may purchase any outstanding shares of Senior Preferred
Stock at a price not exceeding the then current redemption price of such
shares plus accrued dividends to the date of such purchase, except that no
such purchase may be made if the Company is in arrears with respect to
payment of dividends on any shares of Senior Preferred Stock outstanding or
if any event of default exists under the Senior Preferred Stock provisions
(Section 2.B(e)).
Liquidation Rights
The Senior Preferred Stock is entitled to receive upon voluntary
liquidation, dissolution or winding up of the affairs of the Company the then
current redemption price for the particular series or, in respect of any
period when no redemption price is so fixed, the par value per share thereof,
and, upon involuntary liquidation, dissolution or winding up of the affairs
of the Company $100 per share in the case of the Cumulative Preferred Stock
and $25 per share in the case of the Cumulative Preferred Stock--$25 Par,
plus in each case all dividends accumulated and unpaid to the date of such
payment, before any payment is made on junior stock.
Voting Rights
Except as otherwise provided by law or as described below, holders
of Senior Preferred Stock have no voting rights (Sections 2.B(b)).
Whenever the holders of the Senior Preferred Stock have the right
to vote or consent to an action as provided by law or by the Senior Preferred
Stock provisions, both classes of Senior Preferred Stock (except as described
below) vote together as a single class, with each outstanding share of
Cumulative Preferred Stock entitled to one vote and each share of Cumulative
Preferred Stock--$25 Par entitled to 1/4 vote (Sections 2.B(b)).
Whenever dividends on all outstanding shares of all series of the
Cumulative Preferred Stock or Cumulative Preferred Stock--$25 Par shall be in
default in an amount equivalent to four (4) full quarter-yearly dividends,
and until all dividends in default on the Cumulative Preferred Stock or
Cumulative Preferred Stock--$25 Par shall have been paid, the holders of all
shares of the Senior Preferred Stock, voting separately as one class, shall
be entitled to elect the smallest number of directors necessary to constitute
a majority of the full Board of Directors, and the holders of the Common
Stock and Junior Preferred Stock, voting separately as a class, shall be
entitled to elect the remaining directors. Such special voting rights of the
Senior Preferred Stock shall cease upon the termination of the condition
giving rise thereto (Sections 2.B(b)(1) and (2)).
Pursuant to the Certificate of Incorporation as it is to be amended
at the time of the issuance and sale of the Preferred Stock, without the
consent of the holders of a majority of the total number of shares of the
Senior Preferred Stock then outstanding, the Company may not:
1. Issue, sell or otherwise dispose of any additional shares of
Senior Preferred Stock or of any other class of stock ranking prior to,
or on a parity with, the Senior Preferred Stock as to dividends or
assets, unless the gross income available for interest of the Company
determined, after provision for depreciation and all taxes and in
accordance with generally accepted accounting principles, for a period
of twelve (12) consecutive calendar months within the fifteen (15)
calendar months immediately preceding the issuance, sale or disposition
of such stock, shall have been at least one and one-half times the sum
of (x) the annual interest charges on all indebtedness of the Company
having a maturity at date of issuance of more than one year and (y) the
annual dividend requirements on all outstanding shares of the Senior
Preferred Stock and all other classes of stock ranking prior to, or on a
parity with, the Senior Preferred Stock as to dividends or assets,
including the shares proposed to be issued; provided that there shall be
excluded from the foregoing computation interest charges on all
indebtedness and dividends on all shares of stock which are to be
retired in connection with the issue of such additional shares; and
provided, further, that in any case where such additional shares are to
be issued in connection with the acquisition of new property, the net
earnings of the property to be so acquired may be included on a pro
forma basis in the foregoing computation, computed on the same basis as
the net earnings of the Company (Section 2.B(b)(7)(i)); or
2. Issue, sell or otherwise dispose of any shares of Senior
Preferred Stock or of any other class of stock ranking prior to, or on a
parity with, the Senior Preferred Stock as to dividends or assets,
unless the Junior Stock Equity of the Company (as defined below) shall
be not less than the aggregate amount payable on the involuntary
dissolution, liquidation or winding-up of the Company, in respect of all
shares of the Senior Preferred Stock and all shares of stock, if any,
ranking prior thereto, or on a parity therewith, as to dividends or
assets, which will be outstanding after the issue of the shares proposed
to be issued. As used herein, "Junior Stock Equity of the Company"
shall mean the aggregate of the par value of, or stated capital
represented by, all stock (including the Junior Preferred Stock and the
Common Stock) ranking junior to the Senior Preferred Stock as to
dividends and assets, all earned surplus, capital or paid-in surplus,
and any premiums on any such junior stock (Section 2.B(b)(7)(ii)).
Without the consent of the holders of at least two-thirds of the
total number of shares of the Senior Preferred Stock then outstanding, or at
least two-thirds of the outstanding shares of the class of Senior Preferred
Stock affected if only one such class is affected, the Company may not:
1. Create or authorize any new stock ranking prior to the Senior
Preferred Stock as to dividends or assets, or create or authorize any
security convertible into shares of any such stock (Section
2.B(b)(6)(i)); or
2. Amend, alter or repeal any of the rights, preferences or
powers of the Senior Preferred Stock so as to affect adversely such
rights, preferences or powers (Section 2.B(b)(6)(ii)).
Registrar and Transfer Agent
The Registrar and Transfer Agent for the Preferred Stock will be
_________________________.
Liability for Further Calls or Assessments
The Preferred Stock, when duly issued, will be fully paid and non-
assessable.
Preemptive or Other Subscription Rights
The Preferred Stock is not entitled to any preemptive or other
subscription rights.
Conversion Rights
Upon issuance of a series of Preferred Stock, the Board of
Directors may fix the rights of holders of shares convertible into stock of
another class. No conversion rights have been granted respecting any
outstanding Preferred Stock nor will the Preferred Stock have any such
conversion rights.
Book-entry Only System
Unless otherwise indicated in the applicable Prospectus Supplement,
each new series of Preferred Stock will be issued initially under a book-
entry only system and will be issued in the form of one or more fully
registered stock certificates that will be deposited with, or on behalf of,
The Depository Trust Company, New York, New York ("DTC"), or such other
depository as may be subsequently designated, and registered in the name of
Cede & Co., as nominee for DTC.
So long as DTC, or its nominee, is the owner of any Preferred
Stock, DTC or such nominee, as the case may be, will be considered the sole
registered holder of such Preferred Stock for all purposes under the
Certificate of Incorporation. Payments of redemption price and dividends on
such Preferred Stock will be made to DTC, or its nominee, as the case may be,
as the holder of such Preferred Stock. Except as set forth below, owners of
beneficial interests in such Preferred Stock will not be entitled to have any
of the individual Preferred Stock registered in their names, will not receive
or be entitled to receive physical delivery of any such Preferred Stock and
will not be considered the holders thereof under the Certificate of
Incorporation.
If DTC is at any time unwilling or unable to continue as depository
and a successor depository is not appointed, the Company will issue
certificates for Preferred Stock in exchange for the Preferred Stock held by
DTC. In addition, the Company may at any time and in its sole discretion
determine not to have all or any particular series of the Preferred Stock
held by DTC and, in such event, will issue Preferred Stock certificates in
exchange for such Preferred Stock held by DTC. In any such instance, an
owner of a beneficial interest in Preferred Stock will be entitled to
physical delivery of Preferred Stock certificates equal in par value to its
beneficial interest and to have such Preferred Stock registered in its name.
Upon the issuance of the Preferred Stock, DTC will credit, on its
book-entry registration and transfer system, the respective par values of
beneficial interests to the accounts of institutions that have accounts with
DTC ("Participants"). The accounts to be credited will initially be
designated by any Underwriter or the Company. Ownership of beneficial
interests in the Preferred Stock will be limited to Participants or persons
that may hold interests through Participants. Ownership of beneficial
interests in the Preferred Stock will be shown on, and the transfer of that
ownership will be effected only through, records maintained by DTC (with
respect to the Participants' interests) or by Participants or persons that
hold through Participants (with respect to persons other than Participants).
The laws of some states require that certain purchasers of securities take
physical delivery of such securities. Such limits and such laws may impair
the ability to transfer beneficial interests in the Preferred Stock.
Upon receipt of any payment of the redemption price or dividends in
respect of Preferred Stock, DTC's current practice is to credit immediately
Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the par value of such Preferred Stock as
shown on the records of DTC. Payments by Participants to owners of
beneficial interests in the Preferred Stock will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name,"
and will be the responsibility of such Participants, subject to any statutory
or regulatory requirements that may be in effect from time to time.
Conveyance of notices and other communications by DTC to Participants and by
Participants to other beneficial owners will be governed by arrangements
among them, subject to any statutory and regulatory requirements as may be in
effect from time to time.
Each purchaser of Preferred Stock must rely on (1) the procedures
of DTC, and, if such purchaser is not a Participant, the procedures of the
Participant through which such purchaser holds its beneficial interest, to
receive payments and notices, and (2) the records of DTC and, if such
purchaser is not a Participant, the records of the participant through which
such purchaser holds its beneficial interest, to evidence its beneficial
ownership of Preferred Stock.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934. DTC holds securities of its Participants
and facilitates the clearance and settlement of securities transactions among
its Participants in such securities through electronic book-entry changes in
accounts of the Participants, thereby eliminating the need for physical
movement of securities certificates. DTC's Participants include securities
brokers and dealers (including any Underwriter of Preferred Stock), banks,
trust companies, clearing corporations, and certain other organizations, some
of whom (and/or their representatives) own DTC. Access to DTC's book-entry
system is also available to others, such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly. The rules applicable to DTC and
its Participants are on file with the Securities and Exchange Commission.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources (including DTC) that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
NEITHER THE COMPANY, ANY UNDERWRITER NOR ANY AGENT FOR PAYMENT ON
OR REGISTRATION OF TRANSFER OR EXCHANGE OF PREFERRED STOCK WILL HAVE ANY
RESPONSIBILITY OR LIABILITY FOR ANY OF THE RECORDS RELATING TO OR PAYMENTS
MADE ON ACCOUNT OF BENEFICIAL INTERESTS IN ANY PREFERRED STOCK OR FOR
MAINTAINING, SUPERVISING OR REVIEWING ANY RECORDS RELATING TO SUCH BENEFICIAL
INTERESTS.
RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED DIVIDENDS
Twelve Months
Year Ended December 31, Ended
September 30,
------------------------------------- -------------
1988 1989 1990 1991 1992 1992 1993
---- ---- ---- ---- ---- ---- ----
2.11 1.75 1.79 2.16 2.25 2.15 2.54
Earnings to Fixed Charges and Preferred Dividends represents the
sum of Income Before Preferred Stock Dividends, Federal income taxes and
interest expenses (which is reduced by capitalized interest), divided by
Fixed Charges and Preferred Dividends. Fixed Charges and Preferred Dividends
consist of interest on long and short-term debt (which is not reduced by
capitalized interest), dividends on Preferred Stock on a pre-tax basis and
amortization of debt discount. The ratios for the nine months ended
September 30, 1992 and 1993 were 2.28 and 2.67, respectively.
PLAN OF DISTRIBUTION
The Company may sell the Preferred Stock in one or more sales in
any of three ways: (i) through one or more underwriters or dealers; (ii)
directly to a limited number of purchasers or to a single purchaser; or (iii)
through one or more agents. The Prospectus Supplement relating to the
Preferred Stock will set forth the terms of the offering of the Preferred
Stock, including the name or names of any underwriters, dealers or agents,
the purchase price of such Preferred Stock and the proceeds to the Company
from such sale, any items constituting underwriters' compensation, any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
If underwriters are used in the sale, the Preferred Stock will be
acquired by the underwriters as principals and may be resold from time to
time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
the sale. The underwriter or underwriters with respect to a particular
underwritten offering of Preferred Stock will be named in the Prospectus
Supplement relating to such offering. Unless otherwise set forth in the
Prospectus Supplement, the obligations of the underwriters to purchase the
Preferred Stock will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all such Preferred Stock if any is
purchased; provided that the agreement between the Company and the
underwriter or underwriters providing for the sale of the Preferred Stock may
provide that under certain circumstances involving a default of underwriters,
less than all of the Preferred Stock may be purchased.
Preferred Stock may be sold directly by the Company or through
agents designated by the Company from time to time. The Prospectus
Supplement will set forth the name of any agent involved in the offer or sale
of the Preferred Stock in respect of which the Prospectus Supplement is
delivered as well as any commissions payable by the Company to such agent.
Unless otherwise indicated in the Prospectus Supplement, any such agent will
be acting on a best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Preferred Stock from the Company at the
public offering price set forth in the Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject to those conditions set
forth in the Prospectus Supplement, and the Prospectus Supplement will set
forth the commission payable for solicitation of such contracts.
Each Prospectus Supplement relating to a particular offering of
Preferred Stock will contain a statement by the Company (i) as to whether or
not the Company is able to predict the existence of a secondary market for
such securities and, if such existence is predicted, as to the extent of such
secondary market, and (ii) if such securities are to be purchased by an
underwriter or underwriters, as to whether or not such underwriter or
underwriters intend to make a market in such securities.
Subject to certain conditions, the Company may agree to indemnify
any underwriters, dealers, agents or purchasers and their controlling persons
against certain civil liabilities, including certain liabilities under the
Securities Act of 1933.
LEGAL MATTERS
Certain legal matters concerning the offering of Preferred Stock
will be passed upon for the Company by Walter M. Braswell, Vice President,
Secretary and General Counsel of the Company and Winthrop, Stimson, Putnam &
Roberts, New York, New York, Special Counsel for the Company. Certain legal
matters will be passed upon for any underwriters, dealers or agents by
McCarter & English, Newark, New Jersey. At November 30, 1993, Mr. Braswell
beneficially owned, or had the right to acquire through options, 6,997 shares
of E'town's common stock.
EXPERTS
The consolidated financial statements and the related supplemental
schedules incorporated in this Prospectus by reference from the Company's
most recent Annual Report on Form 10-K have been audited by Deloitte &
Touche, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance
upon such report given upon the authority of that firm as experts in
accounting and auditing.
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution.*
Securities and Exchange Commission filing
fee . . . . . . . . . . . . . . . . . . . $ 9,311
Costs of printing and engraving . . . . . 10,000
Legal fees and expenses . . . . . . . . . 40,000
Accounting fees and expenses . . . . . . . 10,000
Blue sky fees and expenses . . . . . . . . 6,000
Rating agency fees . . . . . . . . . . . . 20,000
Miscellaneous expenses . . . . . . . . . . 689
-------
Total . . . . . . . . . . . . . . . . $ 96,000
========
_____________________________
* All expenses except for the filing fee
are estimated and relate to the initial sale
of Preferred Stock hereunder.
Item 15. Indemnification of Directors and Officers.
Article XI of the Company's Certificate of Incorporation provides
that the Company shall indemnify each director or officer of the Company and
any person who, at the request of the Company, has served as a director,
officer or trustee of another corporation in which the Company has a
financial interest (or the legal representative of any such director, officer
or trustee) against reasonable costs, expenses and counsel fees paid or
incurred (including any judgments, fines or reasonable settlements exclusive
of any amount paid to the Company in settlement) in connection with the
defense of any action, suit or proceeding in which such person is named as a
party by reason of having been such director, officer or trustee or by reason
of any action taken or not taken in such capacity unless such director,
officer or trustee is finally adjudged to have been derelict in the
performance of his duties as director, officer or trustee. If any such
action, suit or proceeding is settled or otherwise terminated as against such
director, officer or trustee without a final determination on the merits and
the Board of Directors of the Company shall determine that such director,
officer or trustee has not in any substantial way been derelict in the
performance of his duties as charged in such action, suit or proceeding, the
Company shall indemnify such director, officer or trustee as aforesaid.
Such rights of indemnification are not exclusive of any rights to
which a director or officer of the Company may have pursuant to statute or
otherwise.
Section 14A:3-5 of the New Jersey Business Corporation Act (the
"Act") gives a corporation the power, without a specific authorization in its
Certificate of Incorporation or by-laws, to indemnify a corporate agent
against expenses and liabilities incurred in connection with certain
proceedings, involving the corporate agent by reason of his being or having
been such a corporate agent, provided that with regard to a proceeding other
than one by or in the right of the corporation, the corporate agent must have
acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal proceeding, such corporate agent had no reasonable cause to believe
his conduct was unlawful. In such proceeding, termination of a proceeding by
judgment, order, settlement, conviction or upon plea of nolo contendere or
its equivalent does not of itself create a presumption that any such
corporate agent failed to meet the above applicable standards of conduct.
The indemnification provided by the Act does not exclude any rights to which
a corporate agent may be entitled under a Certificate of Incorporation, by-
law, agreement, vote of shareholders or otherwise. No indemnification, other
than that required when a corporate agent is successful on the merits or
otherwise in any of the above proceedings shall be allowed if such
indemnification would be inconsistent with a provision of the Certificate of
Incorporation, a by-law or a resolution of the board of directors or of the
shareholders, an agreement or other proper corporate action in effect at the
time of the accrual of the alleged cause of action which prohibits, limits or
otherwise conditions the exercise of indemnification powers by the
corporation or the rights of indemnification to which a corporate agent may
be entitled.
The Company also has insurance policies which, among other things,
provide officers and directors liability coverage, individually and in the
aggregate up to a limit of $20 million within a 12-month period.
Item 16. Exhibits.
Exhibit No. Description
- ----------- -----------
1(a) - Form of Purchase Agreement
1(b) - Form of Bid for the Purchase of Preferred Stock
1(c) - Form of Public Invitation for Bids
4(a) - Company's Certificate of Incorporation, as amended (filed as
Exhibit 4(a)(1) to Registration Statement No. 33-32143)*
4(b) - Form of Certificate of Amendment, Description and Terms of the
Cumulative Preferred Stock, $100 par value
4(c) - Form of Certificate of Amendment, Description and Terms of the
Cumulative Preferred Stock--$25 Par, $25 par value
5 - Opinion of the Company's General Counsel as to the legality of
the securities being offered
12 - Statement regarding computation of ratios
23(a) - Consent of the Company's General Counsel (contained in Exhibit
5 hereto)
23(b) - Consent of Deloitte & Touche
24 - Power of Attorney
______________________________
* Incorporated by reference.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 above, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 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:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) to
include any prospectus required by section 10(a)(3) of the Securities Act of
1933; (ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement; provided, however, that (i) and (ii) do not apply if
the registration statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
<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 Westfield and State of New Jersey,
on the 14th day of January, 1994.
ELIZABETHTOWN WATER COMPANY
By /s/ ANDREW M. CHAPMAN
------------------------
Andrew M. Chapman
Senior Vice President, Chief
Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
------------ -------- ------
/s/ ROBERT W. KEAN, JR.* Chairman, Chief Executive January 14, 1994
Robert W. Kean, Jr. Officer and Director
(Principal Executive
Officer)
/s/ THOMAS J. CAWLEY* President and Director January 14, 1994
Thomas J. Cawley
/s/ WALTER M. BRASWELL Vice President, Secretary January 14, 1994
Walter M. Braswell and General Counsel
/s/ GAIL P. BRADY Vice President-Controller January 14, 1994
Gail P. Brady (Principal Accounting
Officer)
/s/ ANDREW M. CHAPMAN Senior Vice President, January 14, 1994
Andrew M. Chapman Chief Financial Officer
and Treasurer
/s/ BRENDAN T. BYRNE*
Brendan T. Byrne Director January 14, 1994
/s/ ANNE EVANS GIBBONS* Director January 14, 1994
Anne Evans Gibbons
/s/ JOHN KEAN* Director January 14, 1994
John Kean
/s/ ROBERT W. KEAN, III* Director January 14, 1994
Robert W. Kean, III
/s/ ARTHUR P. MORGAN* Director January 14, 1994
Arthur P. Morgan
/s/ BARRY T. PARKER* Director January 14, 1994
Barry T. Parker
/s/ HENRY S. PATTERSON,II* Director January 14, 1994
Henry S. Patterson, II
/s/ HUGO M. PFALTZ, JR.* Director January 14, 1994
Hugo M. Pfaltz, Jr.
/s/ CHESTER A. RING, III* Director January 14, 1994
Chester A. Ring, III
* By /s/ ANDREW M. CHAPMAN
------------------------------
Andrew M. Chapman
Attorney-in-fact
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- ------------
1(a) Form of Purchase Agreement . . . . . .
1(b) Form of Bid for the Purchase of
Preferred Stock . . . . . . . . . . . .
1(c) Form of Public Invitation for Bids . .
4(a) Company's Certificate of Incorporation,
as amended (filed as Exhibit 4(a)(1) to
Registration Statement No. 33-32143)
4(b) Form of Certificate of Amendment,
Description and Terms of the Cumulative
Preferred Stock, $100 par value . . . .
4(c) Form of Certificate of Amendment,
Description and Terms of the Cumulative
Preferred Stock -- $25 Par, $25 par
value . . . . . . . . . . . . . . . .
5 Opinion of the Company's General Counsel
as to the legality of the securities
being offered . . . . . . . . . . . . .
12 Statement regarding computation of
ratios . . . . . . . . . . . . . . . .
23(a) Consent of the Company's General Counsel
(contained in Exhibit 5 hereto)
23(b) Consent of Deloitte & Touche . . . . .
24 Power of Attorney . . . . . . . . . . .
Exhibit 1(a)
EXHIBIT B
ELIZABETHTOWN WATER COMPANY
PURCHASE AGREEMENT
AGREEMENT made this ____ day of ________, 199_ between
ELIZABETHTOWN WATER COMPANY, a corporation organized and existing under the
laws of the State of New Jersey (the "Company"), and the several persons,
firms and corporations (the "Purchasers") named in Exhibit A attached to the
form of bid to which this agreement is annexed as Exhibit B (the "Bid").
W I T N E S S E T H :
WHEREAS, the Company proposes to issue and sell _______ shares of a
new series of its Cumulative Preferred Stock_____, $___ par value ("Preferred
Stock") to accrue dividends at the rate specified in Section 1 of the Bid;
and
WHEREAS, 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 (the "Act"), and the rules and
regulations thereunder (the "Rules and Regulations"), a registration
statement on Form S-3 (No. 33-______) relating to the issuance and sale of
the Preferred Stock and such registration statement, as amended and
supplemented to the date hereof, including the financial statements and
exhibits thereto, has become effective (the "Registration Statement") (the
prospectus forming a part of said Registration Statement as it heretofore
became effective, including the documents incorporated therein by reference,
being referred to herein as the "Bidding Prospectus"); and
WHEREAS, such Bidding Prospectus is to be supplemented by a
prospectus supplement which will include certain information relating to the
Purchasers and the terms of offering of the Preferred Stock and which will
(together with the Bidding Prospectus) be filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations (the Bidding Prospectus as so
supplemented, including the documents incorporated therein by reference,
being referred to herein as the "Prospectus");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed between the parties as follows:
SECTION 1. Purchase and Sale. On the basis of the representations
and warranties and on the terms and subject to the conditions herein set
forth, the Company agrees to sell to each of the Purchasers named in
Exhibit A attached to the Bid, severally and not jointly, and each such
Purchaser agrees, severally and not jointly, to purchase from the Company,
the respective number of shares of Preferred Stock set forth in said Exhibit
A opposite the name of such Purchaser at the price specified in Section 2 of
the Bid (the "Purchase Price"). For the services of the several Purchasers
in purchasing the Preferred Stock and, if the Purchasers make a public
offering of the Preferred Stock, for their services with respect to such
offering, the Company agrees to pay to the Representative, for the respective
accounts of the Purchasers, as compensation for such services, the amount per
share of Preferred Stock specified in Section 3 of the Bid (the "Purchasers'
Compensation").
SECTION 2. Payment and Delivery. Payment of the Purchase Price
shall be made to the Company or its order by certified or official bank check
payable in New York Clearinghouse Funds, at the office of Winthrop, Stimson,
Putnam & Roberts, One Battery Park Plaza, New York, N.Y., upon the delivery of
certificates representing the Preferred Stock at said office to the
Representative for the respective accounts of the several Purchasers,
registered in such names as the Representative shall request. Such payment and
delivery shall be made at 10:00 A.M., New York Time, on the fifth business day
following the date hereof, or at such time on such date as shall be agreed upon
by the Company and the Representative. The time at which delivery and payment
are to be made is herein called the "Time of Purchase". Concurrently with
payment of the Purchase Price and delivery of the Preferred Stock, payment of
the Purchaser's Compensation shall be made by the Company to the Representative
for the respective accounts of the Purchasers, against receipt therefor, by
certified or official bank check to the Representative or its order, payable in
New York Clearinghouse Funds.
The Company agrees to make the certificates representing the
Preferred Stock available for inspection, checking and packaging by the
Representative in New York, New York at least 24 hours prior to the Time of
Purchase.
The funds represented by any check or checks delivered by a
Purchaser or Purchasers, at the request of the Company, with the form of bid
by or on behalf of such Purchaser or Purchasers shall be held by the Company
as security for the faithful performance by the Purchaser or Purchasers of
its or their obligations hereunder until disposed of as hereinafter provided
in this Section 2. Upon registration of the Preferred Stock pursuant to the
provisions of this Section 2, such amount so deposited shall be applied to
the payment of the purchase price of the Preferred Stock, but only if
simultaneously therewith the balance of the purchase price shall be paid by
the Purchaser or Purchasers as provided herein. In the event that this
agreement shall be terminated in accordance with the provisions of Section 3
or 4 hereof, the deposit made by such Purchaser or Purchasers shall forthwith
be returned without interest. In the event that such Purchaser or Purchasers
shall fail or refuse, otherwise than for some reason sufficient to justify,
in accordance with the terms hereof, the cancellation or termination of their
obligation hereunder, to purchase and pay for the Preferred Stock as provided
in Section 1 hereof, the deposit, if any, made by such Purchaser or
Purchasers shall become the property of the Company, as liquidated damages,
free of any claim on the part of such Purchaser or Purchasers, without
prejudice, however, to any other rights of the Company hereunder; provided,
however, that in the event that, pursuant to the provisions of Section 9
hereof, other persons take up and pay for all the Preferred Stock agreed to
be purchased by all defaulting Purchasers, the Company shall forthwith return
the amount of the deposits of all of such defaulting Purchasers to the
Representative, less the amount of any expenses of the Company caused by the
failure or refusal of such Purchasers to purchase and pay for the Preferred
Stock.
SECTION 3. Termination by Representative. This agreement may be
terminated at any time at or prior to the Time of Purchase by the
Representative giving notice thereof to the Company if:
(a) At the Time of Purchase, the Representative shall not have
been furnished with the following opinions and letter:
(1) Opinion of Walter M. Braswell, Esq., Vice President,
General Counsel and Secretary of the Company, substantially in the
form attached hereto;
(2) Opinion of Winthrop, Stimson, Putnam & Roberts, of New
York, N.Y., of counsel for the Company, substantially in the form
attached hereto;
(3) Opinion of McCarter & English of Newark, N.J., counsel
for the Purchasers, substantially in the form attached hereto;
(4) Letter dated the Time of Purchase from Deloitte & Touche
to the effect that: [(i) they are independent certified public
accountants with respect to the Company and its subsidiary within
the meaning of the Act and the Rules and Regulations thereunder;
(ii) in their opinion, the consolidated financial statements
audited by them and incorporated by reference in the Registration
Statements and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act and
the Securities Exchange Act of 1934, as amended ("Exchange Act"),
as applicable, and the published rules and regulations of the
Commission thereunder; (iii) on the basis of procedures referred to
in such letter, including a review as described in SAS No. 71,
Interim Financial Information, of the latest available interim
unaudited consolidated financial statements of the Company, and
inquiries of certain officers of the Company who have
responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an audit
made in accordance with generally accepted auditing standards and
they would not necessarily reveal matters of significance with
respect to the comments made in such letter, and accordingly that
Deloitte & Touche make no representations as to the sufficiency of
such procedures for the several Purchasers' purposes), nothing has
caused them to believe that: (A) any material modifications should
be made to such interim unaudited consolidated financial statements
for them to be in conformity with generally accepted accounting
principles; (B) at a specified date not more than five days prior
to the date of such letter there was any change in the capital
stock (except for capital contributions from E'town Corporation) or
long-term debt of the Company, as compared with amounts shown in
the ____________, ____ consolidated balance sheet incorporated by
reference in the Registration Statement and the Prospectus, except
for changes or decreases which the Prospectus discloses have
occurred or may occur; (C) there was any decrease in consolidated
net assets at ___________, ____ as compared with amounts shown in
the ____________, ____ consolidated balance sheet incorporated by
reference in the Registration Statement and the Prospectus, except
for changes or decreases which the Prospectus and information
incorporated by reference therein discloses have occurred or may
occur; (D) for the ____ months ending __________, ____, there was
any decrease, as compared with the corresponding period of the
previous year, in consolidated revenues, or net income, except in
all cases for changes or decreases that the Prospectus and
information incorporated by reference therein discloses have
occurred or may occur or as may be set forth in such letter;
and (E) they have carried out certain procedures and made certain
findings, as specified in such letter, with respect to such other
items included or incorporated by reference in the Registration
Statement and the Prospectus as the Representative may have
reasonably requested].
(b) Since the respective dates as of which information is given in
the Prospectus, there shall have been a material adverse change (not
referred to in or contemplated by the Registration Statements or
Prospectus) in the business, properties or financial condition of the
Company or the representations and warranties of the Company contained
herein shall not be true and correct at the Time of Purchase; or at the
Time of Purchase, the Representative shall not have received a
certificate, dated the Time of Purchase, signed by an officer of the
Company to the effect that there has been no such change and that such
representations and warranties are then true and correct.
(c) An amendment to the Registration Statement or Prospectus filed
after the date hereof (including any documents incorporated therein by
reference) shall contain information substantially different (except as
contemplated in Section 11 hereof) from that contained in the
Registration Statement as amended prior to the effectiveness of this
agreement and which is unsatisfactory to counsel for the Purchasers.
(d) Prior to 8:00 P.M., New York Time, on the first full business
day after the date hereof, or such later time and day as the
Representative may from time to time consent to, appropriate order or
orders of the Board of Regulatory Commissioners of the State of New
Jersey, necessary to permit the issuance and sale of the Preferred Stock
as contemplated hereby, shall not be in effect; or, prior to the Time of
Purchase, a stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act by the
Commission or proceedings therefor initiated.
(e) The Company shall not have performed such of its obligations
under this agreement as are to be performed at or before the Time of
Purchase by the terms hereof.
(f) Prior to the Time of Purchase, with the consent of the
Purchasers (including the Representative) which have agreed to purchase
in the aggregate fifty percent or more of the shares of the Preferred
Stock to be purchased hereunder, if the marketability of the Preferred
Stock shall have been, in the reasonable judgment of the Purchasers,
materially adversely affected by reason of: (i) the general suspension
of trading on the New York Stock Exchange or the imposition of material
restrictions upon trading in securities generally by any governmental
authority or by the New York Stock Exchange, (ii) the establishment of a
general banking moratorium by Federal or New York State authorities; or
(iii) the declaration of a war directly involving the United States of
America, or the occurrence of any other national calamity, or the major
escalation of any conflict involving the armed forces of the United
States of America; the right of the Representative to terminate this
agreement because of the occurrence of any one or more of the events
specified in this Section 3(f) shall not be deemed to have been waived
or otherwise relinquished by reason of any failure on its part to give
the required notice of termination prior to the time such event shall
have ceased to exist, provided such notice of termination shall have
been given by not later than the Time of Purchase.
SECTION 4. Termination by Company. This agreement may be
terminated at any time at or prior to the Time of Purchase by the Company
giving notice thereof to the Representative if the Representative would have
the right, pursuant to the provisions of Section 3(d) hereof, to terminate by
giving notice, whether or not the Representative shall exercise such right.
SECTION 5. Certain Covenants of the Company. The Company
covenants as follows:
(a) As soon as the Company is advised thereof, to advise the
Representative by telephone or otherwise of any request made by the
Commission for amendments or supplements to the Registration Statement
or Prospectus or for additional information with respect thereto or of
the issue of a stop order suspending the effectiveness of the
Registration Statement or of the initiation of any proceedings for that
purpose and, if such a stop order should be issued by the Commission, to
make every reasonable effort to obtain the lifting or removal thereof as
soon as possible.
(b) To furnish to the Representative a copy, certified by an
officer of the Company or signed, of the Registration Statement referred
to in the second WHEREAS clause hereof as initially filed with the
Commission and of all amendments thereto (including exhibits other than
those incorporated by reference), and to furnish to the Representative
sufficient plain copies thereof (exclusive of exhibits) for distribution
of one to each of the other Purchasers.
(c) To deliver to each of the Purchasers, without charge, as soon
as practicable as many copies of the Prospectus (excluding the documents
incorporated therein by reference) as the Representative may reasonably
request.
(d) For such period after the effectiveness of this agreement as
any Purchaser may be required by law to deliver a prospectus, if any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to correct an untrue statement of a
material fact, or an omission to state a material fact necessary to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend the Prospectus to comply with any law, forthwith to
prepare and furnish (at the Company's expense for a period of nine
months after the date of the Prospectus and thereafter at the expense of
such Purchaser or Purchasers) to the Purchasers and to dealers (whose
names and addresses will be furnished to the Company by the
Representative), either amendments to the Prospectus or supplemental
information (which may be in the form of documents incorporated therein
by reference), so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
(e) It will make generally available to its security holders, as
soon as practicable, an earning statement covering a period of at least
twelve months beginning after the "effective date of the Registration
Statement" within the meaning of Rule 158 of the Rules and Regulations,
which earning statement shall be in such form, and be made generally
available to security holders in such a manner, so as to comply with the
requirements of Section 11(a) of the Act and Rule 158 promulgated under
the Act.
(f) To use its best efforts to qualify the Preferred Stock for
offer and sale under the securities or blue sky laws of such
jurisdictions as the Representative may designate, provided, however,
that the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process or to
comply with any other requirements deemed by the Company to be unduly
burdensome.
(g) To pay all expenses, fees and taxes (other than transfer
taxes) in connection with (1) the preparation and filing of the
Registration Statement and Prospectus, (2) the issue and delivery of the
Preferred Stock to the Purchasers, (3) the qualification of the
Preferred Stock for offer and sale under securities or blue sky laws
(including fees of counsel for the Purchasers) in the aggregate not
exceeding $6,000, and (4) expenses incurred in obtaining ratings for the
Preferred Stock.
(h) If this agreement shall be terminated in accordance with the
provisions of Section 3 (other than subdivision (f) thereof) or
Section 4 hereof, to reimburse the Purchasers for the reasonable fees
and disbursements of McCarter & English and reasonable documented out-
of-pocket expenses, not in excess of an aggregate of $5,000, reasonably
incurred by them in connection with the transactions contemplated by
this agreement.
SECTION 6. Warranties of and Indemnity by the Company.
(a) The Company warrants and represents to each of the Purchasers
that (i) when the Registration Statement became effective, such Registration
Statement complied, and, as of its issue date, the Prospectus complies as to
form in all material respects with the applicable provisions of the Act and
the documents incorporated therein by reference, as of their respective dates
of filing with the Commission, so complied with the Exchange Act and the
rules and regulations of the Commission; the Registration Statement, when it
became effective, did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus, as of its
issue date and as of the Time of Purchase, does not and will not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; except
that the Company makes no warranty or representation to any Purchaser with
respect to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by, or
through the Representative on behalf of, any Purchaser expressly for use in
the Registration Statement or the Prospectus and (ii) the consummation of the
transactions herein contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party, or of the Company's certificate
of incorporation or by-laws or, to the best of its knowledge, any order, rule
or regulation applicable to the Company of any court or of any Federal or
State regulatory body or administrative agency or other governmental body
having jurisdiction over the Company or over its properties.
(b) The Company agrees to indemnify and hold harmless each of the
Purchasers and each person, if any, who controls any such Purchaser within
the meaning of Section 15 of the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act or otherwise, and to reimburse the Purchasers
and such controlling person or persons, if any, for any reasonable legal or
other expenses incurred by them in connection with defending any actions, in
so far as such losses, claims, damages, liabilities or actions arise out of,
or are based upon, any alleged untrue statement of a material fact contained
in a preliminary prospectus (if used prior to the effective date of the
Registration Statement), or in the Bidding Prospectus, or in the Registration
Statement or the Prospectus, or in the Registration Statement or Prospectus
as amended or supplemented (if any amendments or supplements thereto shall
have been filed by the Company with the Commission), or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, (1) that if the Prospectus or the Prospectus as amended or
supplemented is used more than nine months after the effective date of the
Registration Statement,
it shall contain such amendments or supplements as the Company deems
necessary to comply with Section 10(a) of the Act; (2) that the indemnity
agreement contained in this paragraph shall not apply to any such losses,
claims, damages, liabilities or actions arising out of, or based upon, any
such untrue statement or alleged untrue statement, or any such omission, or
alleged omission, if such statement or omission was made in reliance upon
information furnished in writing to the Company by, or through the
Representative on behalf of, any Purchaser expressly for use therein; and (3)
that the indemnity agreement contained in this paragraph with respect to a
preliminary prospectus, the Bidding Prospectus or the Prospectus shall not
inure to the benefit of any Purchaser (or of any person controlling such
Purchaser) on account of any losses, claims, damages, liabilities or actions
arising from the sale of the Preferred Stock to any person if (i) in the case
of a preliminary prospectus or the Bidding Prospectus, a copy of the
Prospectus, as the same may then be amended or supplemented (excluding
documents incorporated by reference therein), shall not have been sent or
given to such person by or on behalf of such Purchaser with or prior to the
written confirmation of the sale involved, or (ii) if in the case of the
Prospectus, a copy of any amendment or supplement thereto furnished prior to
the Time of Purchase in accordance with Section 5(e) (excluding documents
incorporated by reference in the Prospectus) shall not have been sent or
given to such person by or on behalf of such Purchaser prior to the Time of
Purchase. Each Purchaser agrees within ten days after the receipt by it of
notice of the commencement of any action in respect of which indemnity from
the Company on account of its agreement contained in this Section may be
sought by it, or by any person controlling it, to notify the Company in
writing of the commencement thereof, but the omission of such Purchaser so to
notify the Company of any such action shall not release the Company from any
liability which it may have to such Purchaser or to such controlling person
otherwise than on account of the indemnity agreement contained in this
Section. In case any such action shall be brought against any Purchaser or
any such person controlling such Purchaser and such Purchaser shall notify
the Company of the commencement thereof, as above provided, the Company shall
be entitled to participate in (and, to the extent that it shall wish,
including the selection of counsel satisfactory to the indemnified party or
parties, to direct) the defense thereof at its own expense. In case the
Company elects to direct such defense and select such counsel, any Purchaser
or controlling person shall have the right to employ its own counsel, but, in
any such case, the fees and expenses of such counsel shall be at the expense
of such Purchaser or controlling person unless the employment of such counsel
has been authorized in writing by the Company in connection with defending
such action. The Company shall not be liable for any settlement of any such
action effected without its consent, but if settled with the consent of the
Company, or if there be a final judgment for the plaintiff in any such
action, the Company agrees to indemnify and hold harmless any Purchaser and
any such controlling person from and against any loss or liability by reason
of such settlement or judgment.
The Company's indemnity agreement contained in this Section, and
its covenants, warranties and representations contained in this agreement,
shall remain in full force and effect regardless of any investigation made by
or on behalf of any Purchaser or controlling person, and the Company's
indemnity agreement and covenants shall survive the delivery of any payment
for the Preferred Stock hereunder and any termination of this agreement
pursuant to any provision hereof or otherwise.
SECTION 7. Warranties of and Indemnity by Purchasers.
(a) Each Purchaser warrants and represents to the Company
(including for the purpose of this Section, each of its directors and such of
its officers as shall have signed the Registration Statement) and to each
other Purchaser that the information furnished in writing to the Company by,
or through the Representative on behalf of, such Purchaser expressly for use
in the Registration Statement or the Prospectus does not contain an untrue
statement of a material fact and does not omit to state a material fact in
connection with such information required to be stated therein or necessary
to make such information not misleading.
(b) Each Purchaser agrees to indemnify and hold harmless the
Company, each other Purchaser and each person, if any, who controls the
Company or any such other Purchaser within the meaning of Section 15 of the
Act, to the same extent as the indemnity agreement of the Company set forth
in Section 6(b) hereof, but only in respect of statements in or omissions
from information furnished in writing to the Company by, or through the
Representative on behalf of, such Purchaser expressly for use in the
Registration Statement or a prospectus of the Company. Each Purchaser hereby
furnishes to the Company in writing expressly for such use the statements
relating to offerings by the Purchasers and the statements as to over-
allotting and stabilizing by the Purchasers in the Prospectus.
The indemnity agreement on the part of each Purchaser contained in
this Section, and the warranties and representations of such Purchaser
contained in this agreement, shall remain in full force and effect regardless
of any investigation made by or on behalf of the Company, any Purchaser or
controlling person, and such Purchaser's indemnity agreement and covenants
shall survive the delivery of and payment for the Preferred Stock hereunder
and any termination of this agreement pursuant to any provision hereof or
otherwise.
SECTION 8. Contribution. If the indemnification provided for in
Section 6(b) or Section 7(b) hereof is unavailable or insufficient to hold
harmless an indemnified party under such Section 6(b) or Section 7(b) hereof,
then each 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 the losses, claims, damages or liabilities referred to in such
Section 6(b) or Section 7(b) hereof, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
the Purchasers on the other from the offering of the Preferred Stock 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 Purchasers on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Purchasers
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 Purchasers, 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
Purchasers on the other shall be determined by reference to, among other
things, 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 or the Purchasers and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission.
The Company and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this
Section 8 were to be determined by pro rata allocation or by any other method
of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable to an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the immediately preceding paragraph 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 or defending against any action or claim that is the
subject of this Section 8. Notwithstanding the provisions of this Section 8,
the Purchasers shall not be required to contribute any amount in excess of
the amount by which the total price at which the Preferred Stock underwritten
by the Purchasers and distributed to the public were offered to the public
exceeds the amount of any damages that the Purchasers have 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 provisions of this Section 8 shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company,
any Purchaser or controlling person, and such agreement shall survive the
delivery of and payment for the Preferred Stock hereunder and any termination
of this agreement pursuant to any provision hereof or otherwise.
SECTION 9. Substitution of Purchasers. If any Purchaser under
this agreement shall fail or refuse (this agreement not having been
terminated in accordance with the provisions of Section 3 or 4 hereof) to
purchase the number of shares of Preferred Stock which it has agreed to
purchase, the Company shall immediately notify the Representative by
telephone or otherwise, and the Representative may, within 24 hours of
receipt of such notice, procure some other responsible party or parties,
satisfactory to the Company (it being understood that any of the non-
defaulting Purchasers are satisfactory to the Company), to purchase or agree
to purchase such number of shares of Preferred Stock on the terms herein set
forth; and, if the Representative shall fail to procure a satisfactory party
or parties to purchase or agree to purchase such number of shares of
Preferred Stock on such terms within such period after the receipt of such
notice, then the Company shall be entitled to an additional period of 24
hours within which to procure another party or parties to purchase or agree
to purchase such number of shares of Preferred Stock on the terms herein set
forth. In any case, either the Representative or the Company shall have the
right to postpone the Time of Purchase for a period not to exceed five full
business days from the date determined as provided in Section 2 hereof, in
order that the necessary changes in the Registration Statement and Prospectus
and any other documents and arrangements may be effected. If the
Representative and the Company shall fail to procure another party or parties
as above provided, then this agreement may be terminated by the Company by
giving notice to the Representative. If the Company shall not so elect to
terminate this agreement, the Company shall have the right to require the
remaining Purchasers to purchase the respective number of shares of Preferred
Stock which they have agreed to purchase hereunder irrespective of the
default as aforesaid, and, in addition, the number of shares of Preferred
Stock which all defaulting Purchasers shall have so failed to purchase up to
ten per centum of the respective number of shares of Preferred Stock which
such remaining Purchasers have otherwise agreed to purchase hereunder, in
which event the Company shall, within 24 hours after such second 24-hour
period, give notice in writing thereof to such remaining Purchasers, and
thereupon the Time of Purchase shall be postponed for a period not to exceed
five full business days in order that the necessary changes in the
Registration Statement and Prospectus and any other documents and
arrangements may be effected.
Nothing herein contained shall relieve any defaulting Purchaser of
its liability to the Company for damages occasioned by its default hereunder.
SECTION 10. Effect of Termination. If this agreement shall be
terminated in accordance with the provisions of Section 3, 4 or 9 hereof, or
if the sale of the Preferred Stock to the Purchasers as herein contemplated
shall not be carried out because the Company is not able to comply with the
terms hereof, the Company shall not be under any obligation under this
agreement (except as provided in Sections 6 and 8 hereof) and shall not be
liable to any Purchaser or to any member of any selling group for the loss of
anticipated profits from the transactions contemplated by this agreement and
the Purchasers (other than a Purchaser who shall have failed or refused to
purchase Preferred Stock without some reason sufficient to justify its
termination of its obligations hereunder) shall be under no liability to the
Company nor be under any liability under this agreement to one another.
SECTION 11. Action by Purchasers. The Purchasers agree to furnish
forthwith to the Company, in writing, (i) such information as to the
Purchasers and the terms of offering by them as is required to complete the
Prospectus and to enable the Company to comply with its undertakings
contained in the Registration Statement and herein to file amendments to the
Registration Statement and supplements to the Prospectus and (ii) such
further information, if any, as may be required to be furnished by the
Company to the Board of Regulatory Commissioners of the State of New Jersey.
SECTION 12. Notices. All notices hereunder shall, unless
otherwise expressly permitted, be in writing and be delivered at, mailed to
or sent by telegram to, the following addresses: if to the Purchasers or the
Representative, to the Representative at the address set forth in the Bid,
and, if to the Company, to the Company at 600 South Avenue, Westfield, N.J.
07091-0788.
SECTION 13. Parties in Interest. The agreement herein set forth
has been and is made solely for the benefit of the Purchasers and the Company
(including, for the purposes of Section 7, the directors thereof and such of
the officers thereof as shall have signed the Registration Statements), and
the controlling persons, if any, referred to in Sections 6 and 7 hereof, and
their respective successors, assigns, executors and administrators, and,
subject to the provisions of Section 9 hereof, no other person shall acquire
or have any right under or by virtue of this agreement.
SECTION 14. Definitions of Certain Terms. If there be two or more
persons, firms or corporations named in Exhibit A attached to the Bid, the
term "Purchasers", as used herein, shall be deemed to mean the several
persons, firms or corporations so named (including the Representative herein
mentioned, if so named), and the term "Representative", as used herein, shall
be deemed to mean the representative or representatives designated by the
Purchasers and by whom or on whose behalf the Bid is signed. All obligations
of the Purchasers hereunder are several and not joint. If there shall be
only one person, firm or corporation named in said Exhibit A, the term
"Purchasers" and the term "Representative", as used herein, shall mean such
person, firm or corporation.
SECTION 15. Miscellaneous. The validity and interpretation of
this agreement shall be governed by the laws of the State of New Jersey.
<PAGE>
[Form of Opinion of Walter M. Braswell, Vice President,
General Counsel and Secretary of the Company]
_______ __, 199_
[Representative]
and the other Purchaser(s) named in the accepted
Form of Bid dated _______ __, 199_ submitted with respect to _______
shares of $_____ Cumulative Preferred Stock_____, $___ par value of
Elizabethtown Water Company
Ladies and Gentlemen:
In connection with your purchase from Elizabethtown Water Company
(the "Company") of _______ shares of the Company's $_____ Cumulative
Preferred Stock_____, $___ par value ("Preferred Stock"), pursuant to the
Form of Bid and the Purchase Agreement annexed thereto dated _______ __, 199_
(together, the "Form of Bid"), I have examined, as Vice President, General
Counsel and Secretary of the Company, among other things, the accepted Form
of Bid; the Registration Statement and the Prospectus relating to the
Preferred Stock; the other documents described in the closing memorandum
delivered at the closing; and such other documents and papers as I deemed
relevant to enable me to render this opinion. I have not examined the
Preferred Stock, except a specimen thereof, and am relying upon a certificate
of the Transfer Agent and Registrar as to the execution and countersignature
thereof. In such examination I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to me as originals, the conformity to original documents
of all documents submitted to me as certified or photostatic copies, and the
authenticity of the originals of such latter documents. Unless the context
otherwise requires, the terms used herein which are defined in the Form of
Bid are used herein as so defined.
I am admitted to the bar of the State of New Jersey, and do not
hold myself out as an expert on the laws of any other jurisdiction. As to
all matters relating to the laws of the State of New York or the United
States of America, I have, for purposes of this opinion relied upon the
opinion addressed to you of Winthrop, Stimson, Putnam & Roberts, special
counsel to the Company. I believe that such opinion is satisfactory and that
you are justified in relying thereon, and I, on my part, have relied thereon
to the extent that it relates to such matters.
Subject to the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized and validly
existing and in good standing under the laws of the State of New Jersey
and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it
in such business.
2. A certificate of amendment amending the Company's certificate
of incorporation and authorizing and establishing the terms of the
Preferred Stock has been duly filed in the office of the Secretary of
State of the State of New Jersey and is effective; the Preferred Stock
has been duly and validly authorized, and, when issued and delivered to
and paid for by the Purchasers pursuant to the Form of Bid, will be
validly issued, fully paid and non-assessable; and the certificates for
the Preferred Stock are in valid and sufficient form.
3. The Board of Regulatory Commissioners of the State of New
Jersey has issued an appropriate order with respect to the issuance of
the Preferred Stock, and such order is in full force and effect on the
date hereof; such order is sufficient for, and no other approval or
consent of or filing with any other governmental body (other than in
connection or compliance with the provisions of the securities or "blue
sky" laws of any jurisdiction, as to which I express no opinion) is
legally required in connection with, the execution and delivery by the
Company of the Form of Bid or the issuance of the Preferred Stock.
4. The Company has full power and authority to execute the Form of
Bid, and the Form of Bid has been duly authorized, executed and
delivered by the Company.
5. The execution and delivery of the Preferred Stock and the Form
of Bid, and the fulfillment of the terms thereof by the Company, will
not result in a breach of any of the terms or provisions of, or
constitute a default under any provision of the Company's certificate of
incorporation or by-laws or any indenture, mortgage, deed of trust or
other agreement or instrument, of which I have knowledge, to which the
Company is now a party or, to the best of my knowledge, any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its activities or properties.
6. The Preferred Stock and the provisions of the Company's
certificate of incorporation conform in all material respects as to
legal matters to the statements concerning them contained in the
Prospectus under "Description of Preferred Stock" and "Supplemental
Description of Preferred Stock".
I have no knowledge of any litigation, pending or threatened, which
challenges the validity of the Preferred Stock or the Form of Bid, or which
seeks to enjoin the performance of the Company's obligations thereunder or
which might have a material adverse effect on the business, properties or
financial condition of the Company except as disclosed in or contemplated by
the Prospectus.
While I have examined the Registration Statement and the
Prospectus, I necessarily assume the correctness and completeness of the
statements made and information included therein and take no responsibility
therefor, except insofar as such statements relate to me and as set forth in
paragraph 6 above. In connection with the preparation of the Registration
Statement and the Prospectus, I have had discussions with certain of the
Company's officers and representatives, with special counsel for the Company,
and with Deloitte & Touche, the independent public accountants who audited
certain of the financial statements included in the Registration Statement.
My examination of the Registration Statement and the Prospectus and our
discussions did not disclose to me any information that gives me reason to
believe that information with respect to the Company included in the
Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
or that such information included in the Prospectus, at its issue date and
the date hereof, 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. I do not express any belief as to the financial
statements or other financial or statistical data contained in the
Registration Statement or Prospectus.
This opinion is addressed to you and is rendered solely for your
benefit and may not be relied upon in any manner by any other person (other
than Winthrop, Stimson, Putnam & Roberts and McCarter & English to the extent
stated in their respective opinions to you of even date herewith) without my
prior written consent.
Very truly yours,
Walter M. Braswell
Vice President, Secretary and
General Counsel
<PAGE>
[Form of Opinion of Winthrop, Stimson, Putnam & Roberts]
________ __, 199_
[Representative]
and the other Purchaser(s) named in the accepted
Form of Bid dated ________ __, 199_ submitted
with respect to ________ shares of $____
Cumulative Preferred Stock_____, $___ par value
of Elizabethtown Water Company
Ladies and Gentlemen:
We have acted as special counsel to Elizabethtown Water Company
(the "Company") in connection with your purchase from the Company of _______
shares of the Company's $_____ Cumulative Preferred Stock_____, $___ par
value ("Preferred Stock"), pursuant to the Form of Bid and the Purchase
Agreement annexed thereto dated ________ __, 199_ (together, the "Form of
Bid"). In connection therewith, we have examined, among other things, the
accepted Form of Bid; the Registration Statement and the Prospectus relating
to the Preferred Stock; the other documents described in the closing
memorandum as delivered at the closing of the sale of the Preferred Stock;
and such other documents and papers as we deemed relevant to enable us to
render this opinion. We have not examined the Preferred Stock, except a
specimen thereof, and are relying upon a certificate of the Transfer Agent
and Registrar as to the execution and countersignature thereof. In such
examination we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies, and the authenticity of
the originals of such latter documents. Unless the context otherwise
requires, the terms used herein which are defined in the Form of Bid are used
herein as so defined.
We are members of the bar of the State of New York and for purposes
of this opinion do not hold ourselves out as experts on the laws of any
jurisdictions other than the State of New York and the United States of
America. In rendering this opinion we have relied with respect to all
matters relating to the laws of the State of New Jersey upon the opinion of
even date herewith of Walter M. Braswell, Vice President, General Counsel and
Secretary of the Company. We believe that such opinion is satisfactory and
that you are justified in relying thereon, and we, on our part, have relied
thereon.
Subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly
existing and in good standing under the laws of the State of New Jersey
and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it
in such business.
2. A certificate of amendment amending the Company's certificate
of incorporation and authorizing and establishing the terms of the
Preferred Stock has been duly filed in the office of the Secretary of
State of the State of New Jersey and is effective; the Preferred Stock
has been duly and validly authorized, and, when issued and delivered and
paid for by the Purchasers pursuant to the Form of Bid, will be validly
issued, fully paid and non-assessable; and the certificates for the
Preferred Stock are in valid and sufficient form.
3. The Board of Regulatory Commissioners of the State of New
Jersey has issued an appropriate order with respect to the issuance of
the Preferred Stock, and such order is in full force and effect on the
date hereof; such order is sufficient for, and no other approval or
consent of any other governmental body (other than in connection or
compliance with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is legally required
in connection with, the execution of the Form of Bid or the issuance of
the Preferred Stock.
4. The Company has full power and authority to execute the Form
of Bid, and the Form of Bid has been duly authorized, executed and
delivered by the Company.
5. The Preferred Stock and the provisions of the Company's
certificate of incorporation conform in all material respects as to
legal matters to the statements concerning them contained in the
Prospectus under "Description of Preferred Stock" and "Supplemental
Description of Preferred Stock".
6. The execution and delivery of the Preferred Stock and the Form
of Bid, and the fulfillment of the terms thereof, by the Company will
not result in a breach of any of the terms or provisions of, or
constitute a default under any provision of, the Company's certificate
of incorporation or by-laws or any indenture, mortgage, deed of trust or
other agreement or instrument governing indebtedness of the Company, of
which we have knowledge, to which the Company is now a party.
7. The Registration Statement, at the time it became effective,
and the Prospectus, at its issue date, (except in each case as to the
financial statements and other financial or statistical data contained
therein, upon which we do not pass) complied as to form in all material
respects with the applicable requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the documents or portions thereof
filed with the Commission pursuant to the Exchange Act and incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-3 as of
their respective dates of filing with the Commission, so complied with
the Exchange Act and, in each case, the applicable instructions, rules
and regulations of the Commission thereunder, or pursuant to said
instructions, rules and regulations, are deemed to comply therewith; the
Registration Statement is effective under the Securities Act, and, to
the best of our knowledge, no proceedings for a stop order with respect
thereto are pending or threatened under Section 8(d) of the Securities
Act.
In passing upon the form of the Registration Statement and the form
of the Prospectus, we necessarily assume the correctness and completeness of
the statements made by the Company and information included therein and take
no responsibility therefor, except insofar as such statements relate to us
and as set forth in paragraph 5 above. In connection with the preparation of
the Registration Statement and the Prospectus, we have had discussions with
certain of the Company's officers and representatives and with Deloitte &
Touche, the independent public accountants who audited certain of the
financial statements included in the Registration Statement. Our examination
of the Registration Statement and the Prospectus and our discussions did not
disclose to us any information that gives us reason to believe that the
Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
or that the Prospectus, at its issue date and the date hereof, 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. We do
not express any belief as to the financial statements or other financial or
statistical data contained in the Registration Statement or Prospectus.
This opinion is addressed to you and has been rendered solely for
your benefit and no other person (other than Mr. Braswell to the extent set
forth in his opinion mentioned above) is entitled to rely hereon without our
prior written consent.
Very truly yours,
<PAGE>
[Form of Opinion of McCarter & English]
________ __, 199_
[Representative]
and the other Purchaser(s) named in the
accepted Form of Bid dated ________ __, 199_
submitted with respect to _______ shares of $____
Cumulative Preferred Stock_____, $___ par value
of Elizabethtown Water Company
Ladies and Gentlemen:
We have acted as your counsel in connection with the purchase by
you of _______ shares of $____ Cumulative Preferred Stock_____, $___ par
value (the "Preferred Stock") of Elizabethtown Water Company (the "Company"),
pursuant to the accepted Form of Bid and Purchase Agreement annexed thereto
dated ________ __, 199_ (collectively, the "Form of Bid") between you and the
Company. In connection therewith, we have examined, among other things, the
accepted Form of Bid; the Registration Statement and the Prospectus relating
to the Preferred Stock; the other documents described in the closing
memorandum as delivered at the closing of the sale of the Preferred Stock;
and such other documents and papers as we deemed relevant to enable us to
render this opinion. We have not examined the Preferred Stock, except a
specimen thereof, and are relying upon a certificate of the Transfer Agent
and Registrar as to the execution and countersignature thereof.
In such examination we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents, and, as to matters of
fact, we have relied upon documents delivered to you at the closing and
originals or copies, certified or otherwise identified to our satisfaction,
of such corporate records, agreements, documents and other instruments, and
such certificates or corporate documents of public officials and of officers
and representatives of the Company. Unless the context otherwise requires,
the terms used herein which are defined in the Form of Bid are used herein as
so defined.
We are members of the bar of the State of New Jersey and for
purposes of this opinion do not hold ourselves out as experts on the laws of
any jurisdictions other than the State of New Jersey and the United States of
America.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the state of New
Jersey.
2. A certificate of amendment amending the Company's certificate
of incorporation and authorizing and establishing the terms of the
Preferred Stock has been duly filed in the office of the Secretary of
State of the State of New Jersey and is effective; the Preferred Stock
has been duly and validly authorized, and, when issued and delivered and
paid for by the Purchasers pursuant to the Form of Bid, will be validly
issued, fully paid and non-assessable; and the certificates for the
Preferred Stock are in valid and sufficient form.
3. The Board of Regulatory Commissioners of the State of New
Jersey has issued an appropriate order with respect to the issuance of
the Preferred Stock, and such order is in full force and effect on the
date hereof; such order is sufficient for, and no other approval or
consent of any other governmental body (other than in connection or
compliance with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is legally required
in connection with, the execution of the Form of Bid or the issuance of
the Preferred Stock.
4. The statements made in the Prospectus under the captions
"Description of Preferred Stock" and "Supplemental Description of
Preferred Stock" insofar as they purport to constitute summaries of the
terms of the Preferred Stock, constitute accurate summaries of the terms
of such Preferred Stock in all material respects.
5. The Form of Bid has been duly authorized, executed and
delivered by the Company.
6. The Registration Statement, at the time it became effective,
and the Prospectus, at its issue date (except in each case as to the
financial statements and other financial or statistical data contained
therein, upon which we do not pass), complied as to form in all material
respects with the applicable requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the documents or portions thereof
filed with the Commission pursuant to the Exchange Act and incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-3 as of
their respective dates of filing with the Commission, so complied with
the Exchange Act and, in each case, the applicable instructions, rules
and regulations of the Commission thereunder, or pursuant to said
instructions, rules and regulations, are deemed to comply therewith; the
Registration Statement is effective under the Securities Act, and, to
the best of our knowledge, no proceedings for a stop order with respect
thereto are pending or threatened under Section 8(d) of the Securities
Act.
All legal proceedings taken by the Company in connection with the
authorization and delivery of the Preferred Stock are in form satisfactory to
us, and the legal opinions, dated the date hereof, rendered to you by Walter
M. Braswell, Vice President, Secretary and General Counsel of the Company,
and Winthrop, Stimson, Putnam & Roberts, counsel for the Company, pursuant to
the Form of Bid, appear on their face to be appropriately responsive to the
requirements of the Purchase Agreement.
In so far as the opinions expressed herein relate to or are
dependent upon the validity of certain actions taken before or by the Board
of Regulatory Commissioners of the State of New Jersey, we have, with your
permission, relied solely upon the opinion, dated the date hereof, rendered
to you by Walter M. Braswell, Vice President, Secretary and General Counsel
of the Company.
In passing upon the form of Registration Statement and the form of
the Prospectus, we necessarily assume the correctness and completeness of the
statements made by the Company and information included therein and take no
responsibility therefor, except insofar as such statements relate to us and
as set forth in paragraph 4 above. In connection with the preparation of the
Registration Statement and the Prospectus, we have had discussions with
certain of the Company's officers and representatives, with special counsel
to the Company and with Deloitte & Touche, the independent public accountants
who audited certain of the financial statements incorporated by reference in
the Registration Statement. Our examination of the Registration Statement
and the Prospectus and our discussions did not cause us to believe that the
Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
or that the Prospectus, at its issue date and the date hereof, 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. We do
not express any belief as to the financial statements or other financial or
statistical data contained in the Registration Statement or the Prospectus.
This opinion is rendered to you in connection with the above
described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
McCARTER & ENGLISH
Exhibit 1(b)
DRAFT
1/13/94
ELIZABETHTOWN WATER COMPANY
_____________________________
FORM OF BID
_______ __, 199_
ELIZABETHTOWN WATER COMPANY
c/o WINTHROP, STIMSON, PUTNAM & ROBERTS
One Battery Park Plaza
34th Floor
New York, N.Y. 10004
Ladies and Gentlemen:
Referring to the Statement of Terms and Conditions Relating to Bids
(the "Terms and Conditions") for the purchase of _______ shares of a new
series of Cumulative Preferred Stock_____, $___ par value ("Preferred Stock")
of Elizabethtown Water Company (the "Company"), the several persons, firms
and corporations named in Exhibit A hereto (the "Bidders") submit herewith
the following bid for the purchase of the Preferred Stock:
SECTION 1. The dividend rate per annum of the Preferred Stock
shall be $___ per share (which shall be a multiple of $.05).
SECTION 2. The price to be paid to the Company for the Preferred
Stock, shall be the par value ($____) per share.
SECTION 3. The compensation to be paid by the Company to the
purchaser or purchasers shall be $____ per share.
SECTION 4. The "cost of money" resulting from the dividend rate,
price and purchasers' compensation set forth above is $_______ per share.
This cost of money is provided for informational purposes only; the Company's
calculation of "cost of money" shall prevail.
SECTION 5. If this bid shall be accepted by the Company, the
Bidders (acting through the undersigned) will, prior to the completion by the
Company of the form of acceptance set forth below, supply to the Company for
inclusion in Exhibit A hereto (if not already included therein) the
respective number of shares of Preferred Stock to be purchased severally by
each such Bidder, such numbers of shares to aggregate _______ shares.
SECTION 6. Each of the Bidders agrees, in consideration of the
agreements of the Company set forth in the Terms and Conditions, that: (a)
its offer included in this bid shall be irrevocable until 2:00 P.M., New York
Time, on the date fixed for the presentation hereof, unless sooner rejected
by the Company, and (b) if this bid shall be accepted, the Purchase Agreement
attached hereto as Exhibit B shall thereupon become effective without any
separate execution thereof and shall constitute the agreement between the
Company and the Bidders and, upon the performance by the Representative of
its obligations under Section 3 of the Terms and Conditions, all rights of
the Company and of the Bidders shall be determined solely in accordance with
the terms thereof, subject, however, to such modifications therein as may be
necessary and as are contemplated by the Terms and Conditions.
SECTION 7. This bid shall be deemed to have been rejected by the
Company unless it shall have been accepted by the Company by 2:00 P.M., New
York Time, on the date fixed for the presentation hereof.
SECTION 8. The undersigned acknowledges on behalf of each Bidder
that each Bidder has received a copy of the Terms and Conditions and of the
draft prospectus relating to the Preferred Stock.
SECTION 9. The undersigned represents and warrants that it has
been and is fully authorized by all of the Bidders to submit this bid upon
their behalf and to act for each of the Bidders in respect of the matters
referred to in this bid and in said Purchase Agreement.
Very truly yours,
__________________________________
By________________________________
On behalf of and as Representative(s) of the
persons, firms and corporations named in Exhibit A
hereto.
ACCEPTED:
ELIZABETHTOWN WATER COMPANY
By__________________________
<PAGE>
EXHIBIT A
Name of Bidder Number of Shares
--------------- ----------------
_______________
Total . . . . . . . . . . . . . . .
===============
<PAGE>
Exhibit 1(c)
DRAFT
1/13/94
ELIZABETHTOWN WATER COMPANY
_____________
PUBLIC INVITATION FOR BIDS
ELIZABETHTOWN WATER COMPANY hereby invites bids for the purchase
from it of ________ shares of its Cumulative Preferred Stock_____, $___ par
value. Such bids are to be presented to the Company at the office of
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, N.Y.
10004-1490, before 11:00 A.M., New York Time, on __________ __, 199__.
Copies of a prospectus relating to the Preferred Stock and of the Statement
of Terms and Conditions Relating to Bids are enclosed with this Invitation,
and additional copies may be obtained at the office of McCarter & English,
Four Gateway Center, 100 Mulberry Street, Newark, N.J. 07102-4096,
Attention: Bart J. Colli, Esq. or David F. Broderick, Esq. Bids will be
considered only if made in accordance with and subject to such terms and
conditions. The Company has tentatively scheduled an information meeting to
be conducted by conference telephone call on __________ __, 199__ at 3:00
P.M., New York Time, or, if the Company should so elect, at said office of
Winthrop, Stimson, Putnam & Roberts. Parties interested in participating in
such meeting should please contact the undersigned at (908) 654-1234.
ELIZABETHTOWN WATER COMPANY
By: ANDREW M. CHAPMAN
Senior Vice President,
Chief Financial Officer and
Treasurer
Dated: __________ __, 199__
<PAGE>
ELIZABETHTOWN WATER COMPANY
____________
STATEMENT OF TERMS AND CONDITIONS RELATING TO BIDS
ELIZABETHTOWN WATER COMPANY (the "Company") has invited bids,
subject to the terms and conditions hereof, for the purchase from it of
_________ shares of a new series of its Cumulative Preferred Stock _______,
$___ par value (the "Preferred Stock").
SECTION 1. Information Concerning the Company and the Debentures.
Prospective bidders may examine, at the offices of McCarter &
English, Four Gateway Center, 100 Mulberry Street, Newark, N.J. 07102-4096,
copies of the following:
(a) the Registration Statement with respect to the Preferred
Stock, in the form in which it became effective, and the documents
incorporated by reference in said Registration Statement pursuant to
Item 12 of Form S-3;
(b) the Petition to and, if available, the Order of, the Board of
Regulatory Commissioners of the State of New Jersey relating to the
issuance of the Preferred Stock;
(c) the form of bid ("Form of Bid") to be used by bidders in
offering to purchase the Preferred Stock, to which is annexed the form
of contract ("Purchase Agreement") for the purchase of the Preferred
Stock;
(d) the Company's Certificate of Incorporation and the form of
Certificate of Amendment to the Company's Certificate of Incorporation
establishing the rights and Preferences of the Preferred Stock;
(e) the Prospective Purchaser's Questionnaire to be completed in
triplicate and delivered to the Company by each bidder prior to the bid;
and
(f) memoranda by McCarter & English with respect to the necessity
for the qualification of the Preferred Stock for offer and sale under
the securities or blue sky laws of various jurisdictions.
Copies of certain of the documents described above are enclosed
herewith. Copies of all of said documents in reasonable quantities (except
the Certificate of Incorporation and exhibits to said Registration Statement)
will be supplied upon request, so long as available, to prospective bidders.
The Company reserves the right to amend the Registration Statement and
Prospectus (and to file additional documents to be incorporated therein by
reference) and to make changes in any other documents relating to the
issuance or sale of the Preferred Stock. On request, the Company will
furnish copies of any such amendments and changes to prospective bidders.
SECTION 2. Information Concerning the Bidders to be Furnished to the
Company.
Each prospective bidder shall be required to deliver three
completed Prospective Purchaser's Questionnaires for such bidder to Winthrop,
Stimson, Putnam & Roberts, One Battery Park Plaza, New York, N.Y. 10004-1490,
Attention: David P. Falck, Esq. or Lucas F. Torres, Esq. prior to 12:00 noon,
New York Time, on ________, __________ __, 199__.
In the case of a bid by a group of bidders, the several bidders in
the group shall act through a duly authorized representative or
representatives (the "Representative"), who may be included in such group and
who shall be designated as such in both the Prospective Purchaser's
Questionnaires and the Form of Bid filed by the members of the group. In
case the Representative so designated consists of two or more persons, the
Company shall be entitled to assume in all matters contemplated hereby and by
the Purchase Agreement that any one of such persons is fully authorized to
act on behalf of all such persons.
SECTION 3. Form and Contents of Bid.
Each bid must be for the purchase of all of the Preferred Stock and
may be made by a single bidder or by a group of bidders. In case the bid of
a group of bidders is accepted, the obligations of the members of the group
shall be several, and not joint. No bidder may submit or participate,
directly or through an affiliate, in more than one bid for the Preferred
Stock.
All bids must be submitted in duplicate, must be in writing on the
Form of Bid furnished by the Company and must be signed by the Representative
on behalf of the members of a group of bidders, or, in the case of a single
bidder, by such bidder, with appropriate changes in the text of the Form of
Bid.
Each bid for the Preferred Stock must specify the dividend rate per
annum per share of the Preferred Stock, which shall be a multiple of $.05,
the price per share to be paid to the Company for the Preferred Stock, which
shall be the par value per share thereof, and the compensation to be paid by
the Company to the purchaser or purchasers. The proceeds to be received by
the Company from the sale of the Preferred Stock, after deduction of the
purchasers' compensation, shall not be less than 98% of the aggregate price
to the Company for the Preferred Stock. (The Preferred Stock will accrue
dividends from the date of original issuance.)
Bids submitted on behalf of a group of bidders shall give the names
of the members in the group but may, at the time of submission, omit the
respective number of shares of Preferred Stock to be purchased by the members
of the group; but, in the case of such omission, the Representative, on
behalf of the successful bidders, shall, and by the submission of such bid
agrees to, insert promptly in Exhibit A to such bid, prior to its acceptance
in writing by the Company, and in any event prior to 2:00 P.M., New York time
on the date on which bids are opened, the respective number of shares of
Preferred Stock to be purchased severally by such bidders; all with the same
force and effect as if the same had been included in such bid at the time of
the submission thereof.
The Representative submitting a bid may, forthwith upon discovery,
correct any error which it has made in the bid in specifying the bidders or
the number of shares of Preferred Stock (if included in the bid) to be
purchased by any bidder or bidders; and if, after all such corrections, a bid
is accepted which provides for the purchase of less than all or more than all
of the Preferred Stock, the Representative submitting such bid shall be
deemed to have increased or decreased, as the case may be, to the extent of
the discrepancy, the number of shares of Preferred Stock to be purchased by
it. In case such Representative consists of two or more persons, such
increase or decrease shall be allocated between or among them as they shall
agree, provided that, if there shall be no such agreement, then such increase
or decrease shall be allocated between or among them in proportion to the
number of shares of Preferred Stock set forth opposite their respective names
in Exhibit A attached to the bid. If in the case of a decrease the
discrepancy is greater than the number of shares of Preferred Stock offered
to be purchased by the Representative, then to the extent that the
discrepancy is greater than such amount, the number of shares of Preferred
Stock offered to be purchased by each other bidder shall be proportionately
reduced.
Any correction or adjustment of the number of shares of Preferred
Stock or the name of any bidder made or provided for hereunder shall, for the
purpose of the Purchase Agreement, be or be deemed to have been reflected in
Exhibit A attached to the bid.
The Company may, in its sole discretion, require any bidder to
deliver with its bid a certified, cashier's or official bank check in an
amount equal to 1% of the aggregate par value of the Preferred Stock, payable
in New York Clearinghouse funds and drawn to the order of the Company. The
Company will, upon request, promptly notify any bidder as to whether such
bidder will be required to deliver a check with its bid. If the bid of such
bidder is accepted, the check delivered with respect thereto or the funds
represented thereby will be held by the Company as security for the
performance of the obligations of the bidder or of the respective members of
the group of bidders, as the case may be, and will be held and disposed of in
accordance with the Purchase Agreement. If such bid is not accepted, the
check delivered with such bid will be returned forthwith to the bidder or, in
the case of a group of bidders, to the Representative.
SECTION 4. Submission of Bids.
Each bid must be presented to the Company at the office of
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, N.Y.
10004-1490, before 11:00 A.M., New York Time, on __________ __, 199__ (or at
such later time as may be fixed by the Company as provided below), enclosed
in a sealed envelope. [At the option of the Company, the Company may accept
one or more of such bids received by it not later than the time set forth
above through signed facsimile transmissions, provided that hard copy of such
bids are thereafter promptly received by the Company at the aforesaid
offices.]
The Company reserves the right, in its discretion, from time to
time to postpone the time for presentation and opening of bids and will, by
telephone or otherwise, give notice of any such postponements to each
prospective bidder, or the Representative of each group of prospective
bidders, who has filed a Form of Bid.
SECTION 5. Opening, Acceptance or Rejection of Bids.
All bids will be opened by the Company at the aforesaid office of
Winthrop, Stimson, Putnam & Roberts immediately following the time fixed for
the presentation thereof as provided in Section 4 hereof. Each
Representative and each single bidder is entitled and invited to be present
and to examine each bid submitted. The Company reserves the right to return
all bids unopened either at or prior to the time specified for the opening of
bids and the right to reject all bids at or after the opening thereof.
Prior to 2:00 P.M., New York Time, on the day fixed for the
presentation of bids, the Company will (subject to the following provisions
of this Section) accept the bid which shall provide it with the lowest "cost
of money", the "cost of money" to be determined by the Company in the manner
hereinafter set forth, and any bid not so accepted by the Company by such
time shall be deemed to have been rejected. The "cost of money" with respect
to each bid for the purchase of the Preferred Stock will be determined as
being four times that factor or discount rate which when applied against each
quarterly dividend payment and mandatory sinking fund payment, if any, will
equate the sum of such discounted quarterly payments (including mandatory
sinking fund payments, if any, as made) to the amount to be received by the
Company from the sale of Preferred Stock that is, the par amount of such
Preferred Stock less the purchasers' compensation. The "cost of money" shall
be calculated from ________ __, 199__ as if the closing occurred on such
date. The calculation by the Company of the winning bid shall be final.
Each bid will be accepted or rejected in its entirety. In case two
or more bids provide the identical lowest "cost of money", the Company
(unless it shall reject all bids) will forthwith give the makers of such bids
an opportunity to improve their bids, the duration of such opportunity to be
determined by the Company. If no improved bids shall be made by such bidders
within the time specified by the Company, or if upon such rebidding two or
more of the bids provide the same lowest "cost of money", the Company may
accept any one of such bids at its discretion, and, the Company will (unless
it shall reject all bids) announce, prior to 2:00 P.M., New York Time, the
name of the successful bidder. If in the case of identical bids a bid is not
being improved, the bid submitted by the bidder or group of bidders making
such bid need not be physically resubmitted to be considered.
Notwithstanding any other provision of this Section, the Company reserves the
right to reject the bid of any bidder or group of bidders if, in the opinion
of counsel for the Company, the Company may not for any reason lawfully sell
the Preferred Stock to such bidder or any member of such group of bidders;
provided, however, that the Company shall not have the right to so reject a
bid of a group of bidders if, prior to 1:00 P.M., New York Time, on the day
on which the bids are opened, the member or members to whom the Company may
not, in the opinion of its counsel, lawfully sell the Preferred Stock shall
have withdrawn from the group and the remaining members, or substituted
members, if any shall be permitted by the Company, shall have agreed to
purchase the Preferred Stock which such withdrawing member or members had
offered to purchase. Any bid so rejected by the Company shall be disregarded
solely for the purpose of determining the bid providing the Company with the
lowest "cost of money" as described above.
SECTION 6. Determination of Redemption Prices.
The redemption prices of the Preferred Stock will be determined by
the Company, such determination by the Company to be final, as follows:
(a) The term "redemption period" shall mean the twelve-month
period beginning on __________ __ in each calendar year, beginning with
the calendar year ____, and ending the ___ day of _________ of the next
succeeding calendar year;
(b) The redemption price for the redemption period ending
_________, ____ shall be the par value of the Preferred Stock plus an
amount equal to the dividend rate per annum of the Preferred Stock (such
redemption price being hereinafter referred to as the "initial
redemption price"), and for each subsequent redemption period, the
redemption price (before any adjustment pursuant to subsection (c)
below) shall be decreased for each such redemption period by _______ of
the excess of the initial redemption price (before any adjustment
pursuant to subsection (c) below) over the par value, in each case,
together with accrued and unpaid dividends to the date fixed for
redemption; provided, however that, notwithstanding the foregoing
calculation of redemption prices, (i) the redemption price shall not be
less than the par value of the Preferred Stock, and (ii) no shares of
the Preferred Stock shall be redeemed at the option of the Company prior
to ___________, ____; and
(c) Any redemption price calculated as above which is not a
multiple of $[.01] shall be increased to the next higher such multiple.
SECTION 7. Purchase Agreement.
Upon the acceptance of a bid, the Purchase Agreement shall
forthwith become effective without any separate execution thereof and shall
constitute the agreement between the Company and the successful bidder or
bidders, subject, however, to such changes therein as may be appropriate if
the successful bidder or group of bidders shall not contemplate a public
offering or if the time for presentation and opening of bids shall be
postponed, and the Company shall, upon request, execute the form of
acceptance on a signed duplicate copy of such bid furnished by, and for
delivery to, the successful bidder or group of bidders. Thereafter all
rights of the Company and of the successful bidder or group of bidders under
the accepted bid shall be determined solely in accordance with the terms of
the Purchase Agreement.
SECTION 8. Opinion of Counsel for the Purchasers.
McCarter & English have been selected by the Company as counsel for
the bidder or bidders to give to the successful bidder or bidders opinions
with respect to the Preferred Stock.
Prospective bidders may confer with McCarter & English at their
offices, Four Gateway Center, 100 Mulberry Street, Newark, N.J. 07102-4096,
Attention: Bart J. Colli, Esq. or David F. Broderick, Esq., with respect to
any of the foregoing matters. The fee of such counsel is to be paid by the
successful bidder or bidders, except as otherwise provided in the Purchase
Agreement. Any prospective bidder and any Representative of any group of
prospective bidders may obtain advice from such counsel as to the amount of
their fee.
SECTION 9. Waiver of Irregularities.
The Company reserves the right to waive any failure on the part of
any bidder or group of bidders to comply with the terms or conditions hereof
and to permit the correction of typographical, clerical and other errors or
omissions in any bid.
ELIZABETHTOWN WATER COMPANY
By: ANDREW M. CHAPMAN
Senior Vice President,
Chief Financial Officer and
Treasurer
Dated: __________ __, 199__
Exhibit 4(b)
Cumulative Preferred Stock DRAFT
$100 par value 1/13/94
FORM OF CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
ELIZABETHTOWN WATER COMPANY
TO: The Secretary of State
State of New Jersey
Pursuant to the provisions of Section 14A:7-1(2) and Section 14A:7-
2, Corporations, General, of the New Jersey Statutes, the undersigned
corporation executes the following Certificate of Amendment to its
Certificate of Incorporation:
1. The name of the corporation is Elizabethtown Water Company
(hereinafter sometimes called the "Consolidated Corporation").
2. The following amendment to Article VII of the Certificate of
Incorporation was duly adopted by the Pricing Committee of the Board of
Directors of the Consolidated Corporation on the ___ day of _______, 1994
pursuant to authority vested in the Board of Directors by the Certificate of
Incorporation, exercised on behalf of the Board of Directors by the Pricing
Committee pursuant to resolutions of the Board of Directors so authorizing it
to act:
WHEREAS, it appears desirable to establish a new series of
Cumulative Preferred Stock, $100 par value, and to determine the rights
and preferences of the shares of such series in respect of any or all of
which there may be variations between different series in accordance
with the authority granted to and vested in the Board of Directors by
the Certificate of Incorporation of the Consolidated Corporation,
RESOLVED, that ________ of the authorized and unissued shares of
Cumulative Preferred Stock of the par value of $100 per share be and
they hereby are established as a series of Cumulative Preferred Stock
and, for the purpose of setting forth the designation, and the rights
and preferences of the shares of said series in those respects in which
the shares thereof may vary from the shares of other series of Preferred
Stock, as set forth in the Certificate of Incorporation, Article VII of
said Certificate of Incorporation as heretofore amended be and hereby is
amended, pursuant to authority therein granted to and vested in the
Board of Directors, as follows:
Without limitation of any authority conferred upon the Board of
Directors in the Certificate of Incorporation, there shall be a series
of Cumulative Preferred Stock, $100 par value, to consist of _______
shares and designated as "$______ Cumulative Preferred Stock"; and the
rights and preferences of the $_______ Cumulative Preferred Stock in
those respects in which the shares thereof may vary from the shares of
other series shall be as follows:
(a) Dividends. The rate of dividend on the $_______ Cumulative
Preferred Stock shall be $_______ per annum. Dividends shall be payable
on each outstanding share of such series on the first days of March,
June, September and December in each year for the quarterly dividend
periods immediately preceding such dividend payment dates, and dividends
shall be cumulative from the first day of the quarterly dividend period
in which such share is issued; provided, however, that with respect to
the dividends payable on ________ ___, 1994, the first day of the
dividend period with respect to which such dividend is paid on any share
of the $______ Cumulative Preferred Stock originally issued during the
quarterly dividend period preceding such dividend payment date shall be
the day of the actual issuance of such share;
(b) Redemption. Shares of the $______ Cumulative Preferred Stock
shall not be redeemable at the option of the Consolidated Corporation
prior __________ __, ____. On and after such date, the prices at which
shares of the $_______ Cumulative Preferred Stock may be so redeemed
shall be as follows:
If Redemption Is Made
During the 12 Month
Period Ending ______ __ Redemption
In the Year Price Per Share
----------------------- ---------------
$
plus accrued dividends in each case to the date of redemption.
Any shares of $_______ Cumulative Preferred Stock so redeemed may
be given the status of authorized but unissued shares of Preferred Stock
and may be reissued as shares of Preferred Stock, but none of such
shares shall be reissued as shares of $_______ Cumulative Preferred
Stock and no shares of Preferred Stock (in addition to the _______
shares thereof initially proposed to be issued) shall be issued as
shares of $________ Cumulative Preferred Stock;
(c) Involuntary Liquidation, Dissolution or Winding-up. The
amount payable in respect of the $_______ Cumulative Preferred Stock in
the event of involuntary liquidation, dissolution or winding-up of the
Consolidated Corporation shall be $100 per share, plus accrued
dividends;
(d) Voluntary Liquidation, Dissolution or Winding-up. The amount
payable in respect of the $_______ Cumulative Preferred Stock in event
of voluntary liquidation, dissolution or winding-up of the Consolidated
Corporation shall be the redemption price in effect at the date of such
liquidation as set forth in clause (b) hereof; provided that if such
voluntary liquidation, dissolution or winding-up of the Consolidated
Corporation occurs prior to _________ __, ____, the amount payable per
share shall be $________;
Neither the merger nor consolidation of the Consolidated Company
into or with any other Corporation, nor the merger or consolidation of
any other corporation into or with the Consolidated Company, nor any
sale, lease, or conveyance of all or any part of the property or
business of the Consolidated Company, shall be deemed to be a
liquidation, dissolution or winding-up of the Consolidated Corporation
for purposes of clauses (c) and (d) above.
(e) No Conversion Rights. The shares of $____ Cumulative
Preferred Stock shall not be, by their terms, convertible or
exchangeable; and
[(f) Sinking Fund. As a sinking fund for the $______ Cumulative
Preferred Stock, the Consolidated Corporation shall call for redemption
and redeem out of funds legally available therefor on [or before]
__________ __ in each year commencing with the year ____, and continuing
so long as any shares of the $______ Cumulative Preferred Stock are
outstanding, at a redemption price of $100 per share, plus accrued and
unpaid dividends thereof to the date fixed for redemption, ________
shares of the $________ Cumulative Preferred Stock or such lesser number
of shares as are then outstanding; [provided, however, that on any such
date fixed for redemption the Consolidated Corporation may, at its
option, call for redemption and redeem out of funds legally available
therefor at the redemption price specified above an additional amount of
shares of the $______ Cumulative Preferred Stock, but only upon the
condition that the maximum number of shares of the $______ Cumulative
Preferred Stock which the Consolidated Corporation shall be entitled to
optionally redeem over and above the _______ shares required to be
redeemed on any such date fixed for redemption shall not be in excess of
_______ on any such date and shall not in the aggregate exceed _______
shares. No such additional redemption pursuant to the preceding
sentence, and no optional redemptions made pursuant to the provisions of
clause (b) hereof, shall in any way reduce the number of shares of the
$_______ Cumulative Preferred Stock required to be redeemed on each date
fixed for sinking fund redemption subsequent to the date on which such
additional or optional redemption is made.] The Consolidated
Corporation may credit shares of the $_______ Cumulative Preferred Stock
purchased by or on behalf of the Consolidated Corporation against its
obligations to make such sinking fund redemptions. Whenever on any such
__________ __ funds legally available therefor are insufficient to
permit the Consolidated Corporation to redeem the full number of shares
of $______ Cumulative Preferred Stock required to be redeemed on such
date, the number of shares of $______ Cumulative Preferred Stock
required to be redeemed pursuant to this clause (f) on the next
succeeding _________ __ shall be increased by an amount equal to the
difference between the number of shares of $______ Cumulative Preferred
Stock so redeemed and the number of such shares that would have been
redeemed had there been sufficient funds legally available therefor.
Any redemption pursuant to the provisions hereof shall be made in the
manner, and upon notice given, pursuant to Article VII, subparagraph
2.B(c) of the Certificate of Incorporation of the Consolidated
Corporation, as amended; provided, however, that each such notice shall
state that redemption is being made to satisfy the sinking fund
requirements for the $_____ Cumulative Preferred Stock.
3. The Certificate of Incorporation of the Consolidated
Corporation is amended so that the designation and number of shares of the
series of Cumulative Preferred Stock, $100 par value, acted upon in the
resolution described in paragraph 2 hereof, and the relative rights,
preferences and limitations of such series, are as stated in such resolution.
Dated this _________ day of _________, 199_
ELIZABETHTOWN WATER COMPANY
By:_________________________
Name:
Title
Exhibit 4(c)
Cumulative Preferred Stock--$25 Par DRAFT
$25 par value 1/13/94
FORM OF CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
ELIZABETHTOWN WATER COMPANY
TO: The Secretary of State
State of New Jersey
Pursuant to the provisions of Section 14A:7-1(2) and Section 14A:7-
2, Corporations, General, of the New Jersey Statutes, the undersigned
corporation executes the following Certificate of Amendment to its
Certificate of Incorporation:
1. The name of the corporation is Elizabethtown Water Company
(hereinafter sometimes called the "Consolidated Corporation").
2. The following amendment to Article VII of the Certificate of
Incorporation was duly adopted by the Pricing Committee of the Board of
Directors of the Consolidated Corporation on the ___ day of _______, 1994
pursuant to authority vested in the Board of Directors by the Certificate of
Incorporation, exercised on behalf of the Board of Directors by the Pricing
Committee pursuant to resolutions of the Board of Directors so authorizing it
to act:
WHEREAS, it appears desirable to establish a new series of
Cumulative Preferred Stock--$25 Par, $25 par value, and to determine the
rights and preferences of the shares of such series in respect of any or
all of which there may be variations between different series in
accordance with the authority granted to and vested in the Board of
Directors by the Certificate of Incorporation of the Consolidated
Corporation,
RESOLVED, that _______ of the authorized and unissued shares of
Cumulative Preferred Stock--$25 Par of the par value of $25 per share be
and they hereby are established as a series of Cumulative Preferred
Stock--$25 Par and, for the purpose of setting forth the designation,
and the rights and preferences of the shares of said series in those
respects in which the shares thereof may vary from the shares of other
series of Preferred Stock, as set forth in the Certificate of
Incorporation, Article VII of said Certificate of Incorporation as
heretofore amended be and hereby is amended, pursuant to authority
therein granted to and vested in the Board of Directors, as follows:
Without limitation of any authority conferred upon the Board of
Directors in the Certificate of Incorporation, there shall be a series
of Cumulative Preferred Stock--$25 Par, $25 par value, to consist of
_______ shares and designated as "$______ Cumulative Preferred Stock--
$25 Par"; and the rights and preferences of the $_______ Cumulative
Preferred Stock--$25 Par in those respects in which the shares thereof
may vary from the shares of other series shall be as follows:
(a) Dividends. The rate of dividend on the $_______ Cumulative
Preferred Stock--$25 Par shall be $_______ per annum. Dividends shall
be payable on each outstanding share of such series on the first days of
March, June, September and December in each year for the quarterly
dividend periods immediately preceding such dividend payment dates, and
dividends shall be cumulative from the first day of the quarterly
dividend period in which such share is issued; provided, however, that
with respect to the dividends payable on ________ ___, 1994, the first
day of the dividend period with respect to which such dividend is paid
on any share of the $______ Cumulative Preferred Stock--$25 Par
originally issued during the quarterly dividend period preceding such
dividend payment date shall be the day of the actual issuance of such
share;
(b) Redemption. Shares of the $______ Cumulative Preferred Stock-
-$25 Par shall not be redeemable at the option of the Consolidated
Corporation prior __________ __, ____. On and after such date, the
prices at which shares of the $_______ Cumulative Preferred Stock--$25
Par may be so redeemed shall be as follows:
If Redemption Is Made
During the 12 Month
Period Ending ______ __ Redemption
In the Year Price Per Share
----------------------- ---------------
$
plus accrued dividends in each case to the date of redemption.
Any shares of $_______ Cumulative Preferred Stock--$25 Par so
redeemed may be given the status of authorized but unissued shares of
Preferred Stock and may be reissued as shares of Preferred Stock, but
none of such shares shall be reissued as shares of $_______ Cumulative
Preferred Stock--$25 Par and no shares of Preferred Stock (in addition
to the _______ shares thereof initially proposed to be issued) shall be
issued as shares of $________ Cumulative Preferred Stock--$25 Par;
(c) Involuntary Liquidation, Dissolution or Winding-up. The
amount payable in respect of the $_______ Cumulative Preferred Stock--
$25 Par in the event of involuntary liquidation, dissolution or winding-
up of the Consolidated Corporation shall be $25 per share, plus accrued
dividends;
(d) Voluntary Liquidation, Dissolution or Winding-up. The amount
payable in respect of the $_______ Cumulative Preferred Stock--$25 Par
in event of voluntary liquidation, dissolution or winding-up of the
Consolidated Corporation shall be the redemption price in effect at the
date of such liquidation as set forth in clause (b) hereof; provided
that if such voluntary liquidation, dissolution or winding-up of the
Consolidated Corporation occurs prior to _________ __, ____, the amount
payable per share shall be $________;
Neither the merger nor consolidation of the Consolidated Company
into or with any other Corporation, nor the merger or consolidation of
any other corporation into or with the Consolidated Company, nor any
sale, lease, or conveyance of all or any part of the property or
business of the Consolidated Company, shall be deemed to be a
liquidation, dissolution or winding-up of the Consolidated Corporation
for purposes of clauses (c) and (d) above.
(e) No Conversion Rights. The shares of $____ Cumulative
Preferred Stock--$25 Par shall not be, by their terms, convertible or
exchangeable; and
[(f) Sinking Fund. As a sinking fund for the $______ Cumulative
Preferred Stock--$25 Par, the Consolidated Corporation shall call for
redemption and redeem out of funds legally available therefor on [or
before] __________ __ in each year commencing with the year ____, and
continuing so long as any shares of the $______ Cumulative Preferred
Stock--$25 Par are outstanding, at a redemption price of $25 per share,
plus accrued and unpaid dividends thereof to the date fixed for
redemption, ________ shares of the $________ Cumulative Preferred Stock-
-$25 Par or such lesser number of shares as are then outstanding;
[provided, however, that on any such date fixed for redemption the
Consolidated Corporation may, at its option, call for redemption and
redeem out of funds legally available therefor at the redemption price
specified above an additional amount of shares of the $______ Cumulative
Preferred Stock--$25 Par, but only upon the condition that the maximum
number of shares of the $______ Cumulative Preferred Stock--$25 Par
which the Consolidated Corporation shall be entitled to optionally
redeem over and above the _______ shares required to be redeemed on any
such date fixed for redemption shall not be in excess of _______ on any
such date and shall not in the aggregate exceed _______ shares. No such
additional redemption pursuant to the preceding sentence, and no
optional redemptions made pursuant to the provisions of clause (b)
hereof, shall in any way reduce the number of shares of the $_______
Cumulative Preferred Stock--$25 Par required to be redeemed on each date
fixed for sinking fund redemption subsequent to the date on which such
additional or optional redemption is made.] The Consolidated
Corporation may credit shares of the $_______ Cumulative Preferred
Stock--$25 Par purchased by or on behalf of the Consolidated Corporation
against its obligations to make such sinking fund redemptions. Whenever
on any such __________ __ funds legally available therefor are
insufficient to permit the Consolidated Corporation to redeem the full
number of shares of $______ Cumulative Preferred Stock--$25 Par required
to be redeemed on such date, the number of shares of $______ Cumulative
Preferred Stock--$25 Par required to be redeemed pursuant to this clause
(f) on the next succeeding _________ __ shall be increased by an amount
equal to the difference between the number of shares of $______
Cumulative Preferred Stock--$25 Par so redeemed and the number of such
shares that would have been redeemed had there been sufficient funds
legally available therefor. Any redemption pursuant to the provisions
hereof shall be made in the manner, and upon notice given, pursuant to
Article VII, subparagraph 2.B(c) of the Certificate of Incorporation of
the Consolidated Corporation, as amended; provided, however, that each
such notice shall state that redemption is being made to satisfy the
sinking fund requirements for the $_____ Cumulative Preferred Stock--$25
Par.
3. The Certificate of Incorporation of the Consolidated
Corporation is amended so that the designation and number of shares of the
series of Cumulative Preferred Stock--$25 Par, $25 par value, acted upon in
the resolution described in paragraph 2 hereof, and the relative rights,
preferences and limitations of such series, are as stated in such resolution.
Dated this _________ day of _________, 199_
ELIZABETHTOWN WATER COMPANY
By:_________________________
Name:
Title
Exhibit 5
January 14, 1994
Elizabethtown Water Company
600 South Avenue
Westfield, New Jersey 07091-0788
Ladies and Gentlemen:
In connection with the proposed issuance by Elizabethtown Water
Company (the "Company") of up to $27,000,000 aggregate par value of one or
more new series of its Cumulative Preferred Stock, $100 par value and/or its
Cumulative Preferred Stock--$25 Par, $25 par value (collectively, the
"Preferred Stock"), I have examined, as Vice President, Secretary and General
Counsel of the Company, the Registration Statement on Form S-3, including the
related prospectus, being filed under the Securities Act of 1933 (the
"Securities Act") with respect to the proposed offering of the Preferred
Stock (the "Registration Statement") and such other documents as I have
deemed necessary or appropriate in order to express the opinion set forth
below.
I am of the opinion that when (i) the Board of Regulatory
Commissioners of the State of New Jersey (the "BRC") shall have issued
appropriate orders with respect to the issuance and sale of the Preferred
Stock, (ii) the applicable provisions of the Securities Act and the
securities or "blue sky" laws of various states shall have been complied
with, (iii) the Board of Directors of the Company shall have fixed the
designation and the distinctive terms of the Preferred Stock and shall have
authorized the issuance and sale of the Preferred Stock, (iv) a certificate
of amendment to the Certificate of Incorporation of the Company setting forth
the designation, description and terms of the Preferred Stock executed by the
proper officers of the Company shall have been filed in the office of the
Secretary of State of the State of New Jersey and (vi) the Preferred Stock
shall have been duly authorized, executed, authenticated and delivered in
accordance with such authorizations of the Board of Directors and the BRC and
against consideration therefor to be set forth in the supplement or
supplements to the prospectus constituting part of the Registration
Statement, the Preferred Stock will be legally issued, fully paid and
nonassessable and the holders thereof will be entitled to the rights and
privileges appertaining thereto as set forth in the Company's Certificate of
Incorporation, as amended.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name under the heading "Legal
Matters" in the related prospectus.
Very truly yours,
Walter M. Braswell
Vice President, Secretary and
General Counsel
<PAGE> Exhibit 12
Elizabethtown Water Company & Subsidiary
Computation of Ratio of Earnings to Fixed Charges
and Preferred Dividends
<TABLE>
<CAPTION>
1988 1989 1990 1991 1992
------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
EARNINGS:
Net income before preferred
stock dividends $8,624,054 $7,124,469 $7,978,778 $11,361,063 $12,149,343
Federal income taxes 4,406,326 3,343,747 3,990,799 5,630,265 6,021,464
Interest charges 8,363,550 9,207,026 10,582,686 11,016,414 10,623,801
----------- ----------- ----------- ----------- -----------
Earnings available to
cover fixed charges $21,393,930 $19,675,242 $22,552,263 $28,007,742 $28,794,608
=========== =========== =========== =========== ===========
FIXED CHARGES:
Interest on long-term debt 7,124,549 8,769,218 9,587,723 10,585,336 10,516,521
Preferred stock
dividend requirement (1) 1,795,550 1,543,097 1,575,158 1,570,446 1,570,446
Other interest 1,130,781 864,984 1,187,500 535,834 514,122
Amortization of discount
on debt-net 108,220 71,340 279,103 287,180 209,631
----------- ----------- ----------- ----------- -----------
Total fixed charges $10,159,100 $11,248,639 $12,629,484 $12,978,796 $12,810,720
=========== =========== =========== =========== ===========
Ratio of Earnings to Fixed
Charges and Preferred Dividends 2.11 1.75 1.79 2.16 2.25
=========== =========== =========== =========== ===========
(1) Preferred Stock Dividend
Requirement:
Preferred stock dividends $1,188,295 $1,050,232 $1,050,000 $1,050,000 $1,050,000
Effective tax rate 33.82% 31.94% 33.34% 33.14% 33.14%
----------- ----------- ----------- ----------- -----------
Preferred stock dividend
requirement $1,795,550 $1,543,097 $1,575,158 $1,570,446 $1,570,446
=========== =========== =========== =========== ===========
</TABLE>
Earnings to Fixed Charges and Preferred Dividends represents the sum of
Income Before Preferred Stock Dividends, Federal income taxes and interest
expenses (which is reduced by capitalized interest), divided by fixed
charges. Fixed Charges and Preferred Dividends consist of interest on long
and short-term debt (which is not reduced by capitalized interest),
dividends on Preferred Stock on a pre-tax basis and amortization of debt
discount.
<PAGE>
<TABLE>
<CAPTION>
Nine Months Ended Twelve Months Ended
September 30, September 30,
1992 1993 1992 1993
------ ------ ------ ------
<S> <C> <C> <C> <C>
EARNINGS:
Net income before preferred
stock dividends $9,106,852 $12,080,056 $11,204,741 $15,122,547
Federal income taxes 4,627,534 6,341,223 5,549,737 7,735,153
Interest charges 7,823,583 8,656,999 10,626,079 11,457,217
---------- ----------- ----------- -----------
Earnings available to
cover fixed charges 21,557,969 $27,078,278 $27,380,557 $34,314,917
========== =========== =========== ===========
FIXED CHARGES:
Interest on long-term debt 7,624,417 8,725,434 10,357,476 11,617,538
Preferred stock
dividend requirement (1) 1,187,604 1,200,823 1,569,976 1,587,062
Other interest 476,116 69,233 574,511 107,239
Amortization of discount
on debt-net 155,661 162,591 241,953 216,561
---------- ----------- ----------- -----------
Total fixed charges $9,443,798 $10,158,081 $12,743,916 $13,528,400
========== =========== =========== ===========
Ratio of Earnings to Fixed
Charges and Preferred Dividends 2.28 2.67 2.15 2.54
========== =========== =========== ===========
(1) Preferred Stock Dividend
Requirement:
Preferred stock dividends $787,500 $787,500 $1,050,000 $1,050,000
Effective tax rate 33.69% 34.42% 33.12% 33.84%
---------- ----------- ----------- -----------
Preferred stock dividend
requirement $1,187,604 $1,200,823 $1,569,976 $1,587,062
========== =========== =========== ===========
</TABLE>
Earnings to Fixed Charges and Preferred Dividends represents the sum of
Income Before Preferred Stock Dividends, Federal income taxes and interest
expenses (which is reduced by capitalized interest), divided by fixed
charges. Fixed Charges and Preferred Dividends consist of interest on long
and short-term debt (which is not reduced by capitalized interest),
dividends on Preferred Stock on a pre-tax basis and amortization of debt
discount.
Exhibit 23(b)
Delloitte & Touche
Two Hilton Court
P.O. Box 319
Parsippany, New Jersey 07054-0319
Telephone: (201) 631-7000
Facsimile: (201) 631-7459
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Elizabethtown Water Company on Form S-3 of our reports dated February 12,
1993, except for Note 8, as to which the date is February 25, 1993, appearing
in the Annual Report on Form 10-K of Elizabethtown Water Company for the year
ended December 31, 1992 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche
January 14, 1994
______________________________
Deloitte & Touche
Tohmatsu
International
______________________________
Exhibit 24
ELIZABETHTOWN WATER COMPANY
POWER OF ATTORNEY
Each of the directors of Elizabethtown Water Company whose
signatures appear below does hereby constitute and appoint ANDREW M. CHAPMAN,
GAIL P. BRADY and WALTER M. BRASWELL, Esq., and each of them severally, as
his or her true and lawful attorney-in-fact to execute in his or her name and
on his or her behalf, in any and all capacities, a Registration Statement on
Form S-3 to be filed pursuant to the Securities Act of 1933 in connection
with the Registration of up to $27,000,000 aggregate par value of Cumulative
Preferred Stock and/or Cumulative Preferred Stock--$25 Par, and any and all
pre- and post-effective amendments thereto and other documents relating
thereto, and to file the same and such other documents as may be necessary
with the Securities and Exchange Commission. Each of said attorney-in-fact
shall have power to act hereunder with or without the other.
IN WITNESS WHEREOF, each of the undersigned has duly executed this
instrument in the capacity and on the date indicated.
/s/ ROBERT W. KEAN, JR. January 13, 1994
Robert W. Kean, Jr.
Director
/s/ BRENDAN T. BYRNE January 13, 1994
Brendan T. Byrne
Director
/s/ THOMAS J. CAWLEY January 13, 1994
Thomas J. Cawley
Director
/s/ ANNE EVANS GIBBONS January 13, 1994
Anne Evans Gibbons
Director
/s/ JOHN KEAN January 13, 1994
John Kean
Director
/s/ ROBERT W. KEAN, III January 13, 1994
Robert W. Kean, III
Director
/s/ ARTHUR P. MORGAN January 13, 1994
Arthur P. Morgan
Director
/s/ BARRY T. PARKER January 13, 1994
Barry T. Parker
Director
/s/ HENRY S. PATTERSON, II January 13, 1994
Henry S. Patterson, II
Director
/s/ HUGO M. PFALTZ, JR. January 13, 1994
Hugo M. Pfaltz, Jr.
Director
/s/ CHESTER A. RING, 3rd January 13, 1994
Chester A. Ring, 3rd
Director
