As Filed with the Securities and Exchange Commission on April 22, 1994
Registration No. 33-______
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
------------------
E'TOWN CORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 22-2596330
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
600 SOUTH AVENUE
WESTFIELD, NEW JERSEY 07091-0788
908-654-1234
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------
ANDREW M. CHAPMAN
Chief Financial Officer and Treasurer
E'town Corporation
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)
--------------------------
Copies 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 Registration Statement becomes effective.
--------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. / /
_______________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of each maximum maximum
class of securities Amount to be offering aggregate Amount of
to be registered registered price offering registration
<F1> per unit price <F2> fee
<F2>
Common Stock, without
par value <F3> . . 690,000 $28.875 $19,923,750 $6,870.25
[FN]
<F1> Includes 90,000 shares issuable upon the exercise of the Underwriters'
option to purchase shares solely to cover over-allotments, if any.
<F2> Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933 based on the
average of the reported high and low sales of the Common Stock reported
on the New York Stock Exchange on April 19, 1994.
<F3> This Registration Statement also pertains to Rights to purchase 1/100th
of one share of Common Stock of the Registrant (the "Rights"). Until
the occurrence of certain prescribed events the Rights are not
exercisable, are evidenced by the certificates for E'town Corporation
Common Stock and will be transferred only with such securities.
-------------------------------
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 ANY 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 APRIL 22, 1994
600,000 Shares
E'TOWN CORPORATION
Common Stock
(Without Par Value)
_______________
The common stock of the Company (the "Common Stock") is traded on the
New York Stock Exchange ("NYSE") under the symbol "ETW". On April 21, 1994,
the last sale price for the Company's Common Stock was $29.00 per share.
__________________
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 COMMIS-
SION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Underwriting
Price to Discounts and Proceeds to
Public Commissions <F1> Company <F2>
Per Share . . . . . .
Total <F3> . . . . .
[FN]
<F1> The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
See "Underwriting".
<F2> Before deducting expenses payable by the Company estimated to be
$132,000.
<F3> The Company has granted to the Underwriters a 30-day option to purchase
up to 90,000 additional shares of Common Stock to cover over-allotments,
if any. See "Underwriting". If such option is exercised in full, the
total Price to Public, Underwriting Discounts and Commissions, and
Proceeds to Company will be $ , $ and $ ,
respectively.
_____________________
The shares of Common Stock are offered by the Underwriters named below,
subject to receipt and acceptance by them and their right to reject any order
in whole or in part. It is expected that delivery of the shares will be made
at the offices of Kidder, Peabody & Co. Incorporated, New York, New York on
or about , 1994.
_____________________
Kidder, Peabody & Co. A.G. Edwards & Sons, Inc.
Incorporated
The date of this Prospectus is , 1994.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
COMMON STOCK OF THE COMPANY AT LEVELS ABOVE THAT WHICH MIGHT OTHERWISE
PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW
YORK STOCK EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
______________
AVAILABLE INFORMATION
E'town Corporation ("E'town" 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, proxy statements
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements 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 in the Public
Reference Room, 14th Floor, Seven World Trade Center, New York, New York
10048. Copies of such materials can be obtained from the Public Reference
Section of the Commission at its principal office at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, material filed by
the Company can be inspected at the offices of the NYSE, 20 Broad Street, New
York, New York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 with respect to the offering made hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement and
the exhibits thereto. Copies of the Registration Statement and the exhibits
thereto may be inspected without charge at offices of the Commission, and
copies of all or any portion thereof may be obtained from the Commission upon
payment of the prescribed fees.
______________
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference into this Prospectus and made a part hereof as of
their respective dates:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1993 (excluding the Board of Directors' Compensation
Committee Report on Executive Compensation and the Performance
Graph contained on pages 8-10 of the definitive Proxy Statement of
the Company dated March 30, 1994 incorporated in such Form 10-K by
reference).
2. The description of the Company's common stock purchase rights
contained in the Company's Registration Statement on Form 8-A,
dated February 4, 1991.
All documents filed by the Company 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 this offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing
of such documents. The documents described above are hereinafter referred to
as "Incorporated Documents." Any statement contained 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 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 information relating to the Company contained in this Prospectus
summarizes, is based upon, or refers to, information and financial statements
contained in one or more of the Incorporated Documents; accordingly, such
information contained herein is qualified in its entirety by reference to
such Incorporated Documents and should be read in conjunction therewith.
The Company 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 of the documents referred to above which
have 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, Chief Financial Officer and Treasurer, E'town
Corporation, 600 South Avenue, Westfield, New Jersey 07091-0788; Telephone:
(908) 654-1234.
-2-
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to the
more detailed information and financial statements (including notes) which
appear elsewhere in this Prospectus and in the documents incorporated herein
by reference. Unless the context otherwise requires, the information
contained in this Prospectus assumes that the Underwriters' over-allotment
option is not exercised.
The Company
E'town is the parent company of Elizabethtown Water Company
("Elizabethtown"), a regulated public utility providing water service in
central New Jersey and E'town Properties, Inc. ("Properties"), a non-
regulated subsidiary which, together with E'town, owns undeveloped land in
New Jersey. Elizabethtown serves a retail franchise area with a population
of about 560,000 and also provides, on a wholesale basis, a portion of the
water requirements of eight municipal systems and three investor-owned water
companies. At December 31, 1992, Elizabethtown, together with its
subsidiary, The Mount Holly Water Company ("Mount Holly"), was the sixth
largest investor-owned water utility in the United States, based on gallons
of water pumped annually. Real estate parcels owned by Properties and
E'town, totalling about 740 acres, are either held for sale or are in the
process of being zoned and permitted with a view to future sale.
Elizabethtown expects to invest about $200 million in its core utility
business during the 1994-1996 period. This amount includes $100 million for
construction of the Canal Road Water Treatment Plant (the "Plant"). The
Plant, which is scheduled to be completed in 1996, is necessary to replace
groundwater supplies withdrawn from service and to meet customer demands
which are expected to continue to grow. In August 1993, the New Jersey Board
of Regulatory Commissioners (the "BRC") approved an agreement among the
principal participants in Elizabethtown's rate cases (the "1993 Plant
Stipulation"), affirming that the Plant is necessary and that Elizabethtown's
estimates, at that time, of its cost and construction period, were
reasonable. The 1993 Plant Stipulation also allows Elizabethtown, under
certain circumstances, to levy a rate surcharge during the Plant's
construction period. Elizabethtown expects to execute shortly a revolving
credit agreement with six banks to provide $60 million in short-term
financing which, together with internal funds, proceeds of future issuances
of debt and preferred stock, and capital contributions from E'town, is
expected to be sufficient to finance Elizabethtown's capital needs, including
the Plant. Due primarily to Elizabethtown's ongoing capital program,
including the Plant, Elizabethtown intends to file for rate relief later in
1994 and regularly thereafter. See "Recent Development" and "Construction
Program and Regulatory Issues".
The Offering
Issuer . . . . . . . . . . . . . E'town Corporation
Securities Offered . . . . . . . 600,000 shares of Common Stock, without
par value<F1>
Shares to be Outstanding after
the Offering (as of April 21,
1994) . . . . . . . . . . . . 6,300,712 shares <F1>
NYSE Symbol . . . . . . . . . . . ETW
Latest 12-Month Closing Price
Range (through April 21, 1994) . $28.75 per share to $35.75 per share
Indicated Annual Dividend per
share of Common Stock <F2> . . . $2.04. See "Common Stock Price Range
and Dividends".
Use of Proceeds . . . . . . . . . To make an equity contribution of
approximately $16 million to
Elizabethtown (which will fund future
construction) and to fund working
capital for the Company. See "Use of
Proceeds".
- -----------------------
[FN]
<F1> Includes associated common stock purchase rights as described under
"Description of Common Stock".
<F2> Management expects to recommend to the Board of Directors at its meeting
on May 19, 1994 the declaration of a cash dividend of $.51 per share
payable on June 30, 1994 to holders of record on June 16, 1994.
Purchasers of shares offered hereby who are holders of record on such
date will be entitled to receive this dividend, if declared.
-3-
<PAGE>
Summary Consolidated Financial Information
(Dollars in thousands, except per share data)
12 Months Ended
Year Ended December 31, March 31,
------------------------ -----------------
1991 1992 1993<F1> 1993 1994<F1>
---- ---- -------- ---- --------
Income Statement Data:
Operating Revenues . . . . . . . $86,086 $89,167 $99,996 $90,500 $102,518
Operating Expenses . . . . . . . 64,138 67,115 67,970 74,661 77,027
Net Income . . . . . . . . . . . 10,231 10,344 9,485 13,830 14,287
Earnings per Share of Common
Stock:
Primary . . . . . . . . . . . 2.32 2.21 2.59 2.15 2.58
Fully Diluted . . . . . . . . 2.28 2.18 2.54 2.13 2.54
Dividends per Share of Common
Stock . . . . . . . . . . . . . $2.00 $2.00 $2.01 $2.00 $2.02
Average Primary Number of Shares
of Common Stock Outstanding (000) 4,080 4,628 5,338 4,800 5,532
Other Data: Other Data:
Common Equity as a Percentage of
Total Capitalization . . . . . 31.8% 37.2% 43.5% 37.3% 43.8%
Book Value per Share of Common
Stock . . . . . . . . . . . . . $20.21 $21.14 $21.14 $22.76 $22.77
Number of Metered Customers . . . 182,019 185,028 188,677 185,484 189,304
March 31, 1994
--------------------------------------
Actual As Adjusted <F2>
Outstanding Ratio Outstanding Ratio
Capitalization: ----------- ------- ----------- -----
Long-term Debt-net . . . . . . $154,385 52.1% $154,385 49.4%
Cumulative Preferred Stock-
Redeemable . . . . . . . . . . 12,000 4.1% 12,000 3.8%
Common Shareholders' Equity . . 129,795 43.8% 146,323 46.8%
------- ---- ------- ----
Total Capitalization . . $296,180 100.0% $312,708 100.0%
======== ====== ======== =====
_____________________________
[FN]
<F1> Net income for 1993 and the 12 months ended March 31, 1994 exceeded
net income for the prior year and 12-month period because of higher
levels of outdoor water use due to abnormally hot and dry summer
weather, the gain from a sale of land and the combined effect of
rate increases effective March, 1992 and 1993. The percentage
increases in earnings per share for these periods were less than
the percentage increases in net income because of the additional
shares issued in 1993. Management estimates that above normal
water usage contributed approximately $1.8 million to net income or
$.34 to earnings per share. The land sale generated a gain of $1.1
million or $.21 per share. Accordingly, management does not regard
these results of operations to be indicative of 1994 financial
performance.
<F2> As adjusted to reflect the sale of the Common Stock offered hereby
for estimated net proceeds of $16,528,000, as described under "Use
of Proceeds".
-4-
<PAGE> MAP
[See narrative description of Map contained in Appendix A.]
-5-
<PAGE>
THE COMPANY
The Company, a New Jersey corporation, is a holding company whose
principal subsidiary, Elizabethtown, is a regulated water utility, one of
whose corporate predecessors was first incorporated in 1854. The Company was
formed in 1985 to become the holding company for Elizabethtown pursuant to a
reorganization approved by Elizabethtown's stockholders and the BRC. Mount
Holly is a wholly-owned subsidiary of Elizabethtown. E'town and its non-
regulated subsidiary, Properties, currently own approximately 740 acres of
land in New Jersey which are either held for sale or are in the process of
being zoned and permitted with a view to future sale. The Company has no
plans to acquire additional real estate.
Elizabethtown and 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 area,
Elizabethtown and Mount Holly serve a population of approximately 560,000 at
retail and provide, on a wholesale basis, a portion of the water requirements
of eight municipal entities and three investor-owned water utilities. All of
the Company's consolidated revenues are currently contributed by the
Company's water utility business. At December 31, 1992, Elizabethtown,
together with Mount Holly, was the sixth largest investor-owned water utility
in the United States, based on gallons of water pumped annually.
Elizabethtown and Mount Holly are subject to regulation by the BRC with
respect to rates and service, the issuance and sale of securities,
classification of accounts, mergers, and other matters. Elizabethtown 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.
Because Elizabethtown expects its rate base to grow more quickly than
pumpage over the next several years, Elizabethtown anticipates filing for a
rate increase in 1994, and regularly thereafter, so that it may have the
opportunity to realize satisfactory returns on equity. Adequate equity
returns will be necessary for E'town and Elizabethtown to continue to attract
external capital to finance improvements necessary to maintain safe and
adequate service. Future earnings of Elizabethtown and, in turn, the Company
will be primarily affected by weather and customer usage, the magnitude and
timing of capital expenditures, the rate of growth of revenues and expenses,
and the adequacy and timeliness of regulatory relief.
The Company's executive offices are located at 600 South Avenue,
Westfield, New Jersey 07091-0788. Its telephone number is (908) 654-1234.
RECENT DEVELOPMENT
Elizabethtown expects to execute shortly a revolving credit agreement
with an agent bank and five additional participating banks to replace its
existing uncommitted lines of credit. The agreement provides up to $60
million in revolving short-term financing which, together with internal
funds, proceeds of future issuances of debt and preferred stock, and capital
contributions from E'town, is expected to be sufficient to finance
Elizabethtown's capital needs, including the Plant. The agreement will allow
Elizabethtown to borrow, repay and reborrow up to $60 million for the first
three years, after which time Elizabethtown may convert any outstanding
balances to a five-year fully amortizing term loan. The agreement will
further provide that, among other covenants, Elizabethtown must maintain a
ratio of
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<PAGE>
common and preferred equity to total capitalization of not less than 35% and
a pre-tax interest coverage ratio of at least 1.5 to 1.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Common Stock
offered hereby, estimated to be $16,528,000, will be used to fund an equity
contribution of approximately $16,000,000 to Elizabethtown. Elizabethtown
will invest this equity contribution on a temporary basis until needed for
future construction expenditures. The balance of the proceeds from the sale
of the Common Stock offered hereby will be used to fund working capital
requirements of the Company.
CONSTRUCTION PROGRAM AND REGULATORY ISSUES
Capital expenditures, primarily for water utility plant, were $32.7
million for 1993 and $94.2 million for the three-year period ended December
31, 1993. Capital expenditures for the three-year period ending December 31,
1996 are estimated to be $196.9 million (excluding an Allowance for Funds
Used During Construction ("AFUDC")), of which $196.5 million is for water
utility plant and $.4 million is for real estate-related expenditures.
Elizabethtown's construction program includes additional mains and
storage facilities necessary to serve customers who were added during the
last several years. In addition, Elizabethtown anticipates upgrading its
existing surface water treatment plant by rehabilitating certain components
and adding facilities designed to maximize its capacity. These projects are
designed to ensure the plant's compliance with proposed water quality and
other environmental regulations.
Elizabethtown's estimated capital expenditures through 1996 include $100
million, excluding AFUDC, for construction of the Plant. The Plant, which is
scheduled to be completed in 1996 and which will have a rated production
capacity of 40 million gallons per day, is necessary to meet existing and
anticipated customer demands and to replace groundwater supplies withdrawn
from service as a result of more restrictive water quality regulations and
groundwater contamination.
In August 1993, the BRC approved the 1993 Plant Stipulation signed by
the principal participants in Elizabethtown's rate cases. The 1993 Plant
Stipulation states that the Plant is necessary and that the Company's
estimate regarding the Plant's cost, at that time of $87 million, and
construction period are reasonable. The 1993 Plant Stipulation authorizes
Elizabethtown to levy a rate surcharge during the Plant's construction period
if its pre-tax interest coverage ratio for any 12-month historical period
drops below 2.0 times. The surcharge would equal 20% of Elizabethtown's
gross interest expense for the prior 12 months, adjusted for revenue taxes.
The surcharge would go into effect at the same time as Elizabethtown's next
base rate increase after the coverage ratio falls below 2.0 times, but in no
event prior to January 1, 1995. Also, the surcharge would remain in effect
for 12 months and could be extended by the BRC for up to six additional
months. The 1993 Plant Stipulation also provides that the rate of return on
common stockholder's equity used to calculate the rate for the equity
component of the AFUDC for the Plant will be 1.5% less than the rate of
return on common stockholder's equity established in Elizabethtown's most
recent base rate case. The authorized rate of return on common stockholder's
equity is currently 11.5%.
-7-
Elizabethtown has solicited bids from general contractors for the
construction of the Plant. The estimated cost of the Plant, as of March 23,
1994, is approximately $100 million, excluding AFUDC. Elizabethtown has
notified all parties to the 1993 Plant Stipulation that the estimated cost of
the Plant has increased. Elizabethtown expects to execute a contract and
commence construction in the spring of 1994.
Rate increases of approximately 35% in excess of current rates will be
required by Elizabethtown during the period 1994-1996, a major portion of
which will be needed to recover the expected costs of the Plant. In light of
the approval by the BRC of the 1993 Plant Stipulation, Elizabethtown expects
the BRC to grant timely and adequate rate relief for the Plant, but cannot
predict the ultimate outcome of any rate proceeding.
FUTURE FINANCING REQUIREMENTS
For the three-year period ending December 31, 1996, Elizabethtown,
including Mount Holly, estimates that 15% of its capital expenditures will be
financed with internally generated funds (after payment of common stock
dividends). The balance is expected to be financed with a combination of
proceeds from capital contributions from E'town (funded by the sale of its
Common Stock), future issuances of long-term debentures, tax-exempt New
Jersey Economic Development Authority ("NJEDA") bonds and preferred stock
and, on an interim basis, short-term borrowings under the revolving credit
agreement discussed above under "Recent Development". The NJEDA has granted
preliminary approval for the financing of almost all of Elizabethtown's major
projects over the next three years, including the Plant. Elizabethtown
expects to pursue tax-exempt financing to the extent that final allocations
are granted by the NJEDA.
-8-
<PAGE>
COMMON STOCK PRICE RANGE AND DIVIDENDS
Since March 1992, the Company's Common Stock has been listed on the NYSE
under the symbol "ETW". Prior to that time, the Company's Common Stock was
traded on the National Association of Securities Dealers Inc. Automated
Quotation System ("NASDAQ"). The following table sets forth the high and low
closing prices per share of the Company's Common Stock for the periods
indicated, as reported by the NYSE and NASDAQ, as applicable for such
periods. The table also shows dividends paid per share on the Company's
Common Stock for the periods indicated.
Closing Prices
-----------------
Dividends
High Low Paid
------- ------- ------------
1992:First Quarter . . . . . $29.25 $27.75 $.50
Second Quarter . . . . . 27.63 25.63 .50
Third Quarter . . . . . 29.13 26.13 .50
Fourth Quarter . . . . . 29.00 26.88 .50
1993:First Quarter . . . . . 30.88 27.63 .50
Second Quarter . . . . . 31.13 29.50 .50
Third Quarter . . . . . 35.75 29.88 .50
Fourth Quarter . . . . . 34.75 30.25 .51
1994:First Quarter . . . . . 32.00 29.75 .51
Second Quarter (through
April 21, 1994) . . 29.75 28.75 *
___________________________
* Management expects to recommend to the Board of Directors at its meeting
on May 19, 1994 the declaration of a cash dividend of $.51 per share payable
on June 30, 1994 to holders of record on June 16, 1994. Purchasers of shares
offered hereby who are holders of record on such date will be entitled to
receive this dividend, if declared.
On April 21, 1994, the last sale price for the Company's Common
Stock, as reported by the NYSE, was $29.00 per share. On December 31, 1993,
there were 5,240 holders of record of the Company's Common Stock. Of the
approximately 5.6 million shares outstanding as of that date, about 3.9
million shares were registered in the name of only one holder, Cede & Co.,
which is a nominee of The Depository Trust Company, a securities depositary
for various banks and brokerage firms.
The Company and its predecessors have paid cash dividends since
1880. The indicated annual dividend rate is currently $2.04 per share. The
amount of future dividends will depend upon the Company's earnings, financial
condition, capital requirements and other factors, including the timeliness
and adequacy of rate relief granted to Elizabethtown.
The Company has a Dividend Reinvestment and Stock Purchase Plan
(the "DRP Plan") under which participating shareholders may have cash
dividends on all or a portion of their shares of Common Stock automatically
reinvested in additional shares of Common Stock at 95% of market value as
outlined in the DRP Plan, and may invest up to an additional $2,000 per month
on the same basis. No
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<PAGE>
commission or service charge is paid by participants in connection with their
purchases under the DRP Plan. In 1993, the Company received $6,009,298 in
proceeds from sales of Common Stock under the DRP Plan. The Company reserves
the right to amend or modify the DRP Plan at any time.
DESCRIPTION OF COMMON STOCK
Certain provisions of the Company's Certificate of Incorporation
and By-Laws and Elizabethtown's Restated Certificate of Incorporation and
Elizabethtown's indentures are summarized or referred to below. The
summaries are merely an outline, do not purport to be complete, do not relate
to or give effect to the provisions of statutory or common law, and are
qualified in their entirety by express reference to such Certificates of
Incorporation, By-Laws and indentures.
The Company is authorized by its Certificate of Incorporation to
issue 15,000,000 shares of Common Stock, without par value, of which
5,700,712 shares were issued and outstanding as of March 31, 1994. As of
March 31, 1994, the Company has agreed to keep reserved for issuance 310,850
shares of Common Stock to satisfy the privileges of the Company's
subordinated debentures which are convertible into Common Stock at a
conversion price of $40.00 per share, subject to adjustment.
The holders of Common Stock of the Company are entitled to receive
dividends as and when declared by the Board of Directors of the Company out
of funds legally available for dividends. Payment of common stock dividends
by Elizabethtown (which currently constitutes the predominant source of cash
from earnings available to the Company) is restricted by certain provisions
of the seven indentures under which debentures of Elizabethtown are
outstanding. At March 31, 1994, $12,813,952 of Elizabethtown's retained
earnings were restricted under the most restrictive of these indenture
provisions. Therefore, $30,037,428 of E'town's consolidated retained
earnings were unrestricted. In the event of liquidation, dissolution or
winding up of the Company, the holders of Common Stock are entitled to share
ratably in all assets remaining after payment of liabilities. The holders of
record of Common Stock are entitled to one vote for each share of such stock
held by them. The holders of Common Stock have no cumulative voting,
preemptive or conversion rights and are not subject to further calls or
assessments by the Company. There are no redemption or sinking fund
provisions applicable to the Common Stock. The Common Stock currently
outstanding is, and the Common Stock offered pursuant to this Prospectus will
be, fully paid and non-assessable.
At the Annual Meeting of Shareholders on May 6, 1991, holders of
the Company's Common Stock adopted an amendment to the Company's Certificate
of Incorporation which provided for, among other things, a classified Board
of Directors. Such amendment may only be amended or repealed by the
affirmative vote of the holders of at least 80% of the Company's Common
Stock. Also in May 1991, the Board of Directors approved revisions to the
Company's By-Laws which provided for, among other things, certain notice
requirements for business to be properly brought by shareholders before an
annual or special meeting of shareholders, certain procedures for the
nomination of directors by shareholders, the fixing of record dates with
respect to action to be taken by shareholder vote or by written consent, and
the calling of special meetings of shareholders pursuant to a vote of the
Board of Directors, action by the Chairman or a request of shareholders
holding at least 40% of the capital stock of the Company.
The outstanding Common Stock of the Company is traded on the NYSE.
The Bank of New York is the Registrar and Transfer Agent for the Common Stock
of the Company.
On January 24, 1991, pursuant to a shareholders' rights plan
adopted by the Company, the Board of Directors of the Company declared a
dividend of one share purchase right (a "Right") for each
-10-
<PAGE>
outstanding share of Common Stock (the "Shares") of the Company. The
dividend was paid on February 4, 1991 (the "Record Date") to the shareholders
of record on that date. Generally, each share of Common Stock issued after
the Record Date, including the shares of Common Stock offered hereby, carries
one Right. Each Right entitles the registered holder to purchase from the
Company 1/100th of one Share at a price of $.80 per 1/100th of one Share,
subject to adjustment. Until the occurrence of certain specified events,
including the acquisition by certain third parties of a large amount of
Common Stock or attempts to acquire the Company, the Rights are not
exercisable, have no dilutive effect, are evidenced by the certificates for
the shares of the Company's Common Stock and will be transferred only with
such securities. A more complete description of the Rights is set forth in
the Company's Registration Statement on Form 8-A, as amended, and the
exhibits thereto, which description has been incorporated by reference
herein. See "Incorporation of Certain Information by Reference."
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement,
a copy of which is filed as an exhibit to the Registration Statement of which
this Prospectus is a part, the Company has agreed to sell to Kidder, Peabody
& Co. Incorporated and A.G. Edwards & Sons, Inc. (the "Underwriters"), and
the Underwriters have severally agreed to purchase from the Company, 300,000
shares and 300,000 shares of the Common Stock offered hereby, respectively.
The Underwriting Agreement provides that the obligations of the
Underwriters thereunder are subject to approval of certain legal matters by
counsel and to various other conditions. The nature of the Underwriters'
obligations is such that they are committed to take and pay for all the
shares of Common Stock offered hereby if any are taken.
The Company has been advised by the Underwriters that they propose
to offer the shares of Common Stock offered hereby to the public at the
offering price set forth on the cover page of this Prospectus and may offer
such shares to certain dealers at such price less a concession not in excess
of $______ per share, and that the Underwriters and such dealers may reallow
a discount not in excess of $______ per share to other dealers. The public
offering price and the concession and discount to dealers may be changed by
the Underwriters after the initial date of the public offering.
The Company has granted the Underwriters an option exercisable for
30 days after the date of this Prospectus to purchase up to an aggregate of
90,000 additional shares of Common Stock. The Underwriters may exercise such
option only to cover over-allotments in connection with the sale of the
shares of Common Stock offered hereby.
The Company has agreed that it will not, without the prior written
consent of the Underwriters, file with the Commission a registration
statement under the Securities Act of 1933 (the "Securities Act") relating to
any issuance of its Common Stock or any security convertible into or
exchangeable for or any rights to purchase or acquire Common Stock for a
period of 180 days after the date of this Prospectus, except for shares to be
issued pursuant to the Company's DRP Plan or its existing employee benefit
plans.
The Company has agreed to indemnify the Underwriters and their
controlling persons against certain civil liabilities, including certain
civil liabilities under the Securities Act.
-11-
<PAGE>
LEGAL MATTERS
Certain legal matters concerning the offering will be passed upon
for the Company by Walter M. Braswell, Esq., Secretary 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 the Underwriters
by McCarter & English, Newark, New Jersey. As of April 18, 1994, Mr.
Braswell owned approximately 6,352 shares (including stock options) of the
Company's Common Stock.
EXPERTS
The financial statements and the related financial statement
schedules incorporated in this Prospectus by reference from the Company's
Annual Report on Form 10-K for the year ended December 31, 1993 have been
audited by Deloitte & Touche, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
-12-
<PAGE>
=============================
No dealer, salesperson or any
other person has been authorized
to give information or to make
any representations, other than
those contained in this =================================
Prospectus, in connection with
the offer contained in this
Prospectus, and if given or made,
such information or
representations must not be
relied upon as having been 600,000 Shares
authorized by the Company or by
any of the Underwriters. This E'TOWN
Prospectus does not constitute an CORPORATION
offer to sell, or a solicitation
of an offer to buy, securities
other than the securities offered
hereby or an offer to sell, or a Common Stock
solicitation of an offer to buy, (Without Par Value)
any of the securities offered
hereby in any jurisdiction to any
person to whom it is unlawful to
make such offer in such jurisdic-
tion. Neither the delivery of
this Prospectus nor any sale made -----------------------
hereunder shall, under any
circumstances, create an
implication that there has been P R O S P E C T U S
no change in the affairs of the
Company since the date hereof.
----------------------
--------------------
Kidder, Peabody & Co.
Incorporated
TABLE OF CONTENTS
A.G. Edwards & Sons, Inc.
Page
----
May , 1994
=================================
Available Information . . . 2
Incorporation of Certain
Information by Reference 2
Prospectus Summary . . . . 3
Map . . . . . . . . . . . . 5
The Company . . . . . . . . 6
Recent Development . . . . 6
Use of Proceeds . . . . . . 7
Construction Program
and Regulatory Issues . . 7
Future Financing Requirements 8
Common Stock Price Range
and Dividends . . . . . . 9
Description of Common Stock 10
Underwriting . . . . . . . 11
Legal Matters . . . . . . . 12
Experts . . . . . . . . . . 12 _________________________________
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
*
Securities and Exchange Commission filing fee $ 6,870
NASD filing fee . . . . . . . . . . . . . . 2,492
New York Stock Exchange listing fee . . . . 2,000
Costs of printing and engraving . . . . . . 25,000
Legal fees and expenses . . . . . . . . . . 45,000
Blue sky fees and expenses . . . . . . . . 7,000
Accounting fees and expenses . . . . . . . 40,000
Miscellaneous expenses . . . . . . . . . . 3,638
---------
Total . . . . . . . . . . . . . . . . $132,000
_____________________________
* All expenses except for the Securities and
Exchange Commission and NASD filing fees are
estimated.
Item 15. Indemnification of Directors and Officers.
Article 3, Section 6 of the Company's By-Laws 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 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 any 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
II-1
<PAGE>
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 for each loss within a 12-month
period.
Item 16. Exhibits.
Exhibit No. Description
- ----------- -----------
1 - Form of Underwriting Agreement.
4(a) - Company's Certificate of Incorporation, as amended (filed
as Exhibit 4(a) in Registration Statement No. 33-42509).*
4(b) - By-Laws of the Company, as amended (filed as Exhibit 3(b)
in the Company's Form 10-K for the year ended December
31, 1992).*
4(c) - Rights Agreement dated as of February 4, 1991 between the
Company and the Rights Agent named therein (filed as
Exhibit 4(n) in Registration Statement No. 33-38566).*
4(d) - Form of Common Stock Certificate.
4(e) - Elizabethtown's Restated Certificate of Incorporation
(filed as Exhibit 3(a) in the Company's
Form 10-K for the year ended December 31, 1993).*
5 - Opinion of Walter M. Braswell, Esq., as to the securities
being registered.
23(a) - Consent of Walter M. Braswell, Esq. (contained in Exhibit
5).
23(b) - Consent of Deloitte & Touche, Independent Auditors.
24 - Power of Attorney.
_________________
* Incorporated by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) For purposes of determining any liability under the
Securities Act of 1933 ("Act"), each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 ("Exchange Act") (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
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.
(2) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as a part of this registration statement in reliance upon Rule 430A and
II-2
<PAGE>
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared effective.
(3) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-3
<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 21st day of April, 1994.
E'TOWN CORPORATION
By /s/ WALTER M. BRASWELL
----------------------------
Walter M. Braswell
Secretary
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 April 21, 1994
- ------------------------------ Officer and Director
Robert W. Kean, Jr. (Principal Executive
Officer)
/s/ HENRY S. PATTERSON, II* President and Director April 21, 1994
- ------------------------------
Henry S. Patterson, II
/s/ ANNE EVANS GIBBONS* Vice President and April 21, 1994
- ------------------------------ Director
Anne Evans Gibbons
/s/ WALTER M. BRASWELL Secretary April 21, 1994
- ------------------------------
Walter M. Braswell
/s/ ANDREW M. CHAPMAN Chief Financial Officer April 21, 1994
- ------------------------------ and Treasurer (Principal
Andrew M. Chapman Financial Officer)
/s/ FRANK CRITELLI*
- ------------------------------ Controller and Assistant April 21, 1994
Frank Critelli Secretary (Principal
Accounting Officer)
/s/ BRENDAN T. BYRNE* Director April 21, 1994
- ------------------------------
Brendan T. Byrne
II-4
<PAGE>
/s/ THOMAS J. CAWLEY* Director April 21, 1994
- ------------------------------
Thomas J. Cawley
/s/ JOHN KEAN* Director April 21, 1994
- ------------------------------
John Kean
/s/ ROBERT W. KEAN, III* Director April 21, 1994
- ------------------------------
Robert W. Kean, III
/s/ ARTHUR P. MORGAN* Director April 21, 1994
- ------------------------------
Arthur P. Morgan
/s/ BARRY T. PARKER* Director April 21, 1994
- ------------------------------
Barry T. Parker
/s/ HUGO M. PFALTZ, JR.* Director April 21, 1994
- ------------------------------
Hugo M. Pfaltz, Jr.
Director April 21, 1994
/s/ CHESTER A. RING, 3RD*
- ------------------------------
Chester A. Ring, 3rd
*By /s/ WALTER M. BRASWELL
- ------------------------------
Walter M. Braswell
Attorney-in-fact
II-5
<PAGE>
APPENDIX A
1. Narrative description of Map appearing on page 5 of the paper
format version of the Prospectus, included herein pursuant to
Item 304 of Regulation S-T:
The relevant graphic material, in the form of a map,
generally shows the state of New Jersey and, by use of symbols and different
shading, the service areas of Elizabethtown Water Company ("Elizabethtown")
and Mount Holly Water Company ("Mount Holly") and the location of land owned
by E'town Corporation ("E'town") or E'town Properties Inc. ("Properties")
within central New Jersey. Specifically, the map indicates the following:
A. By using "criss-cross" shading, the franchised area of
Elizabethtown (north of Trenton, New Jersey) is shown;
B. By using horizontal shading, the franchised area of Mount
Holly (south of Trenton, New Jersey) is shown;
C. By using dark shading, the area of other systems served
by Elizabethtown (north of Trenton, New Jersey) is shown;
D. By using dark circular symbols, the location of land
owned by E'town or Properties in central New Jersey is
indicated;
E. By using dark square symbols, the respective locations of
Elizabethtown's Raritan-Millstone Treatment Plant and the
proposed Canal Road Treatment Plant are indicated; and
F. By using star symbols, the cities of Philadelphia,
Trenton and New York are indicated.
<PAGE>
Exhibit Index
Exhibit No. Description
- ----------- -----------
1 - Form of Underwriting Agreement.
4(a) - Company's Certificate of Incorporation, as amended (filed
as Exhibit 4(a) in Registration Statement No. 33-42509).*
4(b) - By-Laws of the Company, as amended (filed as Exhibit 3(b)
in the Company's Form 10-K for the year ended December
31, 1992).*
4(c) - Rights Agreement dated as of February 4, 1991 between the
Company and the Rights Agent named therein (filed as
Exhibit 4(n) in Registration Statement No. 33-38566).*
4(d) - Form of Common Stock Certificate.
4(e) - Elizabethtown's Restated Certificate of Incorporation
(filed as Exhibit 3(a) in the Company's Form 10-K for the
year ended December 31, 1993).*
5 - Opinion of Walter M. Braswell, Esq., as to the securities
being registered.
23(a) - Consent of Walter M. Braswell, Esq. (contained in Exhibit
5).
23(b) - Consent of Deloitte & Touche, Independent Auditors.
24 - Power of Attorney.
_________________
* Incorporated by reference.
<PAGE>
Exhibit 1
600,000 Shares
E'TOWN CORPORATION
Common Stock
(Without Par Value)
UNDERWRITING AGREEMENT
----------------------
May __, 1994
KIDDER, PEABODY & CO. INCORPORATED
10 Hanover Square
New York, NY 10005
A.G. EDWARDS & SONS, INC.
One North Jefferson
St. Louis, MO 63103
Gentlemen:
E'town Corporation, a New Jersey corporation ("Company"), confirms
its agreement with you, as underwriters (hereinafter, "you" or
"Underwriters"), as follows:
1. Description of the Shares. The Company proposes to issue and
sell 600,000 shares of its Common Stock, without par value ("Common Stock"),
to the Underwriters. Such shares of Common Stock are hereinafter referred to
as the "Shares".
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
(a) A registration statement (File No. 33-_____) with respect to
the Shares, including a preliminary form of prospectus, has been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended ("Act"), and the rules and
regulations ("Rules and Regulations") of the Securities and Exchange
Commission ("Commission") thereunder and filed with the Commission and
has become effective. No stop order suspending the effectiveness of the
registration statement has been issued, and no proceeding for that
purpose has been instituted or threatened by the Commission. A final
form of prospectus has been or will be so prepared and will be filed
pursuant to Rule 424(b) of the Rules and Regulations on or before the
second business day after the date hereof (or such earlier time as may
be required by the Rules and Regulations). The Company will not file a
post-effective amendment after the time of execution of this Agreement
and prior to the filing of such final form of prospectus without giving
you an
<PAGE>
opportunity to review and comment thereon. Copies of such registration
statement, any such amendments, each related preliminary prospectus
("Preliminary Prospectus") and all documents incorporated by reference
therein that were filed with the Commission on or prior to the date of
this Agreement (including one fully executed copy of the registration
statement and of each amendment thereto for you and for counsel for the
Underwriters) have been delivered to you. Such registration statement,
as it may have heretofore been amended and including any information
deemed by virtue of Rule 430A(a)(3) of the Rules and Regulations to be
part of such registration statement at the time it was declared
effective, is referred to herein as the "Registration Statement", and
such final form of prospectus, in the form in which it is first filed or
transmitted for filing pursuant to Rule 424(b) of the Rules and
Regulations, is referred to herein as the "Prospectus". Any reference
herein to the Registration Statement, the Prospectus, any amendment or
supplement thereto or any Preliminary Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein,
and any reference to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or Prospectus shall be deemed to
refer to and include the filing after the execution hereof of any
document with the Commission deemed to be incorporated by reference
therein.
(b) Each part of the Registration Statement, when such part became
or becomes effective, each Preliminary Prospectus, on the date of filing
thereof with the Commission, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission
and at the Closing Date (as hereinafter defined), conformed or will
conform in all material respects with the requirements of the Act and
the Rules and Regulations or pursuant to such Rules and Regulations are
deemed to have complied therewith; each part of the Registration
Statement, when such part became or becomes effective, did not or 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 not misleading; and each Preliminary Prospectus, on
the date of the filing thereof with the Commission, and the Prospectus
and any amendment or supplement thereto, on the date of filing thereof
with the Commission and at the Closing Date, did not or will not include
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that
the foregoing shall not apply to statements in or omissions from any
such document in reliance upon, and in conformity with,
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<PAGE>
written information furnished to the Company by you specifically for use
therein.
(c) The documents incorporated by reference in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
Preliminary Prospectus, when they became or become effective under the
Act or were or are filed with the Commission under the Securities
Exchange Act of 1934, as amended ("Exchange Act"), as the case may be,
conformed or will conform in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
(d) The consolidated financial statements of the Company set forth
in the Registration Statement and the Prospectus fairly present the
financial condition of the Company and its subsidiaries as of the dates
indicated and the results of operations and changes in financial
position for the periods therein specified in conformity with generally
accepted accounting principles consistently applied throughout the
periods involved (except as otherwise stated therein).
(e) The Company and each of its subsidiaries has been duly
incorporated and is an existing corporation in good standing under the
laws of its jurisdiction of incorporation, has full power and authority
(corporate and other) to conduct its business as described in the
Registration Statement and Prospectus and is duly qualified to do
business in each jurisdiction in which it owns or leases real property
or in which the conduct of its business requires such qualification
except where the failure to be so qualified, considering all such cases
in the aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the Company
and its subsidiaries; and all of the outstanding shares of capital stock
of each such subsidiary have been duly authorized and validly issued,
are fully paid and non-assessable and (except as otherwise stated in the
Registration Statement) are owned beneficially by the Company subject to
no security interest, other encumbrance or adverse claim.
(f) The outstanding shares of Common Stock of the Company and the
Shares to be issued and sold by the Company hereunder have been duly
authorized and are, or when issued as contemplated hereby will be,
validly issued, fully paid and non-assessable and conform in all
material respects, or when so issued will conform in all material
respects, to the description thereof in the Prospectus. The
shareholders of the Company have no preemptive rights with respect to
the Shares.
-3-
<PAGE>
(g) Except as set forth or contemplated in the Prospectus,
subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries has incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, in each case not
in the ordinary course of business, that are material to the Company and
its subsidiaries taken as a whole, and there has not been any material
change, on a consolidated basis, in the capital stock, short-term debt
or long-term debt of the Company, or any material adverse change, or any
event that will result in a material adverse change, in the business,
properties or financial condition of the Company and its subsidiaries
taken as a whole.
(h) Except as set forth in the Prospectus, there is not pending
or, to the knowledge of the Company, threatened any action, suit or
proceeding to which the Company or any of its subsidiaries is a party,
before or by any court or governmental agency or body, that is likely to
result in any material adverse change in the business, properties or
financial condition of the Company and its subsidiaries taken as a
whole.
(i) There are no contracts or documents of the Company or any of
its subsidiaries that are required to be filed as exhibits to the
Registration Statement or to any of the documents incorporated by
reference therein by the Act or the Exchange Act or by the rules and
regulations of the Commission thereunder that have not been so filed.
(j) The performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any agreement or instrument to which the Company is a party or by
which it is bound or to which any of the property of the Company is
subject, the Company's charter or by-laws, or to the best of the
Company's knowledge any statute, order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or
any of its properties; no consent, approval, authorization or order of,
or filing with, any court or governmental agency or body is required for
the consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Shares to be sold by the
Company, except such as may be required under the Act or state
securities laws; and the Company has full power and authority to
authorize, issue and sell the Shares to be sold by it as contemplated by
this Agreement, free of any preemptive rights.
-4-
<PAGE>
(k) The Company is not and, after giving effect to the sale of the
Shares, will not be an "investment company" or a company "controlled" by
an "investment company" as such terms are defined by the Investment
Company Act of 1940, as amended.
3. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree to purchase from the Company, at a
purchase price of $______ per Share, the Shares.
Certificates for the Shares will be delivered by the Company to you
at the office of Kidder, Peabody & Co. Incorporated against payment of the
purchase price therefor by certified or official bank check or checks in New
York Clearing House (next day) funds payable to the order of the Company at
the offices of Winthrop, Stimson, Putnam & Roberts, at 10:00 A.M., New York
time, on May __, 1994 (or if the New York or American Stock Exchanges or
commercial banks in The City of New York are not open on such day, the next
day on which such exchanges and banks are open), or at such other time not
later than eight full business days thereafter as you and the Company
determine, such time being herein referred to as the "Closing Date". The
Shares, in definitive form and in such denominations and registered in such
names as you may request upon at least two business days' prior notice to the
Company, will be made available for checking and packaging at the office of
Kidder, Peabody & Co. Incorporated, at least one business day prior to the
Closing Date. If the Underwriters shall request that any of the certificates
evidencing the Shares be registered in a name or names of a purchaser other
than the Underwriters, the Company shall not be responsible for any transfer
taxes resulting from such request.
4. Covenants. The Company covenants and agrees with the
Underwriters that:
(a) The Company will cause the Prospectus to be filed as required
by Section 2(a) hereof (but only if you have not reasonably objected
thereto by notice to the Company after having been furnished a copy a
reasonable time prior to filing) and will notify you promptly of such
filing; it will notify you promptly of the time when any subsequent
amendment to the Registration Statement has become effective or any
supplement to the Prospectus has been filed and of any request by the
Commission for any amendment or supplement to the Registration Statement
or Prospectus or for additional information; and it will file no
amendment or supplement to the Registration Statement or Prospectus to
which you shall reasonably object by notice to the Company
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<PAGE>
after having been furnished a copy a reasonable time prior to the
filing.
(b) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the initiation or threat of
any proceeding for any such purpose; and it will use promptly its best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(c) Within the time during which a prospectus relating to the
Shares is required to be delivered under the Act, the Company will
comply as far as it is able with all requirements imposed upon it by the
Act and by the Rules and Regulations, as from time to time in force, so
far as necessary to permit the continuance of sales of or dealings in
the Shares as contemplated by the provisions hereof and the prospectus.
If during such period any event occurs as a result of which the
prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to
amend or supplement the Registration Statement or Prospectus to comply
with the Act, the Company will promptly notify you and will amend or
supplement the Registration Statement or Prospectus (at the expense of
the Company) so as to correct such statement or omission or effect such
compliance. Until the expiration of nine months following the date
hereof, the cost of preparing such amendment or supplement shall rest
with the Company (unless such amendment or supplement is necessitated
solely by activities of the Underwriters); thereafter, such expenses
shall be borne by the Underwriters.
(d) The Company will use its best efforts to qualify the Shares
for sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in effect so
long as required for the distribution of the Shares, except that the
Company shall not be required in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of
process in any jurisdiction or to comply with any other requirements
that are not known to the Company on the date of this Agreement and are
deemed by the Company to be unduly burdensome.
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<PAGE>
(e) The Company will furnish to you copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as you may from time to time reasonably
request; and upon the request of the Underwriters and as contemplated by
the Prospectus, the Company will provide any person with any of the
documents incorporated by reference therein.
(f) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 15
months after the end of the Company's current fiscal quarter, an
earnings statement (which need not be audited) covering a 12-month
period beginning after the date of this Agreement that shall comply with
the provisions of Section 11(a) of the Act and Rule 158 promulgated
under the Act.
(g) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder for purposes set forth in the
Prospectus.
(h) The Company will not file with the Commission a registration
statement under the Securities Act relating to the issuance of its
Common Stock or securities convertible into or exchangeable for, or any
rights to purchase or acquire, Common Stock prior to the expiration of
180 days from the date of this Agreement without your prior written
consent, except for shares to be issued pursuant to the Company's
dividend reinvestment plan and the other existing employee benefit plans
set forth on Schedule B hereto.
The Company covenants and agrees with you that, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated (i) the Company will pay the costs and charges of any transfer
agent or registrar, other than transfer taxes, and the cost of preparing
stock certificates; and (ii) the Company will pay all other expenses incident
to the performance of the obligations of the Company hereunder and the
expenses of printing all documents relating to the offering, and will
reimburse you for any expenses not in excess of $10,000 (including fees and
disbursements of your counsel) incurred by
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you in connection with the matters referred to in Section 4(d) hereof and the
preparation of memoranda relating thereto.
If the sale of the Shares provided for herein is not consummated by
reason of any failure, refusal or inability on the part of the Company to
perform any agreement or because any other condition of your obligations
hereunder required to be fulfilled by the Company is not fulfilled, the
Company will reimburse you for all reasonable and documented out-of-pocket
expenses (including fees and disbursements of your counsel) incurred by you
in connection with your investigation, preparing to market and marketing the
Shares or in contemplation of performing your obligations hereunder. The
Company shall not in any event be liable to you (i) for loss of anticipated
profits from the transactions covered by this Agreement or (ii) for any
amounts in excess of 50% of out-of-pocket expenses referred to above, if this
Agreement is terminated by you pursuant to Section 9(iii) hereof.
5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Shares as provided herein shall
be subject to the accuracy, as of the date hereof and the Closing Date (as if
made at the Closing Date), of the representations and warranties of the
Company herein, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The prospectus shall have been filed as required by Section
2(a) hereof; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Company
or the Underwriters, threatened by the Commission and any request of the
Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to your satisfaction.
(b) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any change, on a
consolidated basis, in the capital stock, short-term debt or long-term
debt of the Company and its subsidiaries, or any material adverse
change, or any event that will result in a material adverse change, in
the business, property or financial condition of the Company and its
subsidiaries taken as a whole, that, in your judgment, materially
impairs the investment quality of the Shares.
(c) You shall have received the opinion of Walter M. Braswell,
Esq., counsel for the Company, dated the Closing Date; to the effect
that:
(i) The Company and each of its subsidiaries has been duly
incorporated and is an existing corporation in good standing under
the laws of its jurisdiction of incorporation, has full corporate
power and authority to conduct its business as described in the
Registration Statement and Prospectus and is duly qualified to do
business in each jurisdiction in which it owns or leases real
property or in which the conduct
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<PAGE>
of its business requires such qualification except where the
failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business,
properties, financial position or results of operations of the
Company and its subsidiaries; and all of the outstanding shares of
capital stock of each of the Company's subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable
and (except as otherwise stated in the Registration Statement) are
owned beneficially by the Company subject to no security interest,
other encumbrance or adverse claim;
(ii) The Registration Statement and the Prospectus comply as
to form (except as to the financial statements and other financial
and statistical data contained or incorporated by reference
therein, upon which such counsel does not pass) in all material
respects with the applicable requirements of the Act and, with
respect to the documents filed with the Commission pursuant to the
Exchange Act and incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3, the Exchange Act, and the
applicable published instructions, rules and regulations of the
Commission thereunder, or pursuant to said instructions, rules and
regulations are deemed to comply therewith; the Registration
Statement has become and is effective under the Act; and to the
best of such counsel's knowledge, no proceedings for a stop order
with respect thereto are pending or threatened under Section 8(d)
of the Act.
(iii) The Common Stock (including the Shares) conforms as to
legal matters with statements concerning it made in the Prospectus;
(iv) The Shares have been duly authorized and validly issued,
are fully paid and non-assessable, and the shareholders of the
Company have no preemptive rights with respect to the Shares being
issued and sold by the Company hereunder;
(v) This Agreement has been duly authorized, executed and
delivered by the Company; the execution and performance of this
Agreement and the consummation of the transactions herein
contemplated, including the issuance of the Shares, will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any material agreement or instrument
known to such counsel to which the Company is a party or by which
it is bound or to which any of the property of the Company is
subject, the Company's
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<PAGE>
charter or by-laws, and no approval, authorization, consent or
other order of any New Jersey public board or body or court (other
than in connection or compliance with the provisions of the New
Jersey securities or "blue sky" laws, upon which such counsel does
not pass) is legally required for the issuance and sale by the
Company of the Shares;
(vi) Such counsel does not know of any statutes or legal or
governmental proceedings required to be described in the Prospectus
that are not described as required, or of any contracts or
documents of a character required to be described in the
Registration Statement or the Prospectus (or required to be filed
under the Exchange Act if upon such filing they would be
incorporated by reference therein) or to be filed as exhibits to
the Registration Statement that are not described and filed as
required.
(d) You shall have received the opinion of Winthrop, Stimson,
Putnam & Roberts, special counsel for the Company, dated the Closing
Date, to the effect that:
(i) The Registration Statement has become and is effective
under the Act; the Prospectus has been filed as required by Section
2(a) hereof; and to the best knowledge of such counsel no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(ii) The Registration Statement and the Prospectus on the date
of filing thereof with the Commission and at the Closing Date,
complied as to form in all material respects with the requirements
of the Act and the applicable Rules and Regulations thereunder;
such counsel has no reason to believe that, when the Registration
Statement became effective,it 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 on the date of filing thereof
with the Commission or at the Closing Date, included an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the
documents incorporated by reference in the Registration Statement
or Prospectus or any amendment or supplement thereto, when they
became effective under the Act or were filed with the Commission
under the Exchange Act, as the case may be,
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<PAGE>
complied as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; it being understood that
such counsel need express no opinion as to the financial statements
or other financial data included in any of the documents mentioned
in this clause;
(iii) To the best of such counsel's knowledge, no approval,
authorization, consent or other order of any public board or body
or court (other than in connection with the provisions of the state
securities or "blue sky" laws of any jurisdiction, upon which such
counsel does not pass) is required for the authorization of the
issuance and sale by the Company of the Shares;
(iv) The Common Stock conforms as to legal matters with the
statements concerning it made in the Prospectus;
(v) The Shares have been duly authorized, validly issued and
are fully paid and non-assessable; and
In rendering their opinion, such counsel may rely upon the opinion
of Walter M. Braswell, Esq. referred to above as to all matters governed by
New Jersey law.
(e) You shall have received from McCarter & English, counsel for
the Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the Shares,
the Registration Statement, the Prospectus and other related matters as
you reasonably may request, and such counsel shall have received such
papers and information as they request to enable them to pass upon such
matters.
(f) At the time of execution of this Agreement and at the Closing
Date, you shall have received a letter from Deloitte & Touche, dated the
date of delivery thereof, to the effect set forth in Exhibit I hereto.
(g) You shall have received from the Company a certificate, signed
by (i) the Chairman of the Board, the President or a Vice President and
(ii) the principal financial or accounting officer of the Company, dated
the Closing Date, to the effect that, to the best of their knowledge
based upon reasonable investigation:
(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made at and as of the Closing
Date, and the Company has
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<PAGE>
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is threatened by the Commission; and
(iii) Since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement or Prospectus
that has not been so set forth, and there has been no document
required to be filed under the Exchange Act and the rules and
regulations of the Commission thereunder that, upon such filing,
would be deemed to be incorporated by reference in the Prospectus
that has not been so filed.
(h) The Company shall have furnished to you such further
certificates and documents as you shall have reasonably requested.
(i) Not fewer than all of the Shares shall have been tendered for
delivery in accordance with the terms and provisions of this Agreement.
All such opinions, certificates, letters, forms and other documents will be
in compliance with the provisions hereof only if they are satisfactory in
form and substance to you. The Company will furnish you with such conformed
copies of such opinions, certificates, letters, forms and other documents as
you shall reasonably request.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold each Underwriter harmless against any and all losses,
claims, damages or liabilities, joint or several, to which such Underwriter
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for
any reasonable legal or other expenses incurred by it in connection with
investigating or defending against such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
shall not be liable in any
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<PAGE>
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
specifically for use therein; provided further that the indemnity contained
in this clause (a) with respect to the Prospectus shall not inure to the
benefit of the Underwriters (or any person controlling the Underwriters) on
account of any losses, claims, damages, liabilities or actions arising from
the sale of Shares to any person if pursuant to the second sentence of
Section 4(c) hereof the Company amends the Registration Statement or prepares
an amended or supplemented Prospectus and the Underwriter fails to make
reasonable efforts to deliver a copy of such amended or supplemented
Prospectus with or prior to the written confirmation of such sale or with or
prior to the delivery of such Shares to any such person.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company against any and all losses, claims,
damages or liabilities, joint or several, to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any Preliminary Prospectus, the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made therein
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter specifically for use therein; and will reimburse
the Company for any reasonable legal or other expenses reasonably incurred by
the Company in connection with investigating or defending against any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability that it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party, and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent that it shall
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<PAGE>
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof (unless
expressly agreed to in writing by the indemnifying party) other than
reasonable costs of investigation; the indemnifying party will not be liable
for any settlement of any such action effected without its written consent,
but if settled with the consent of the indemnifying party, or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, 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 subsection (a) or (b) above, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offering
of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault of the
Company on the one hand and the Underwriters on the other 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 you and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission.
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<PAGE>
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) 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 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 subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by such Underwriter and
distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 6 shall be
in addition to any liability that the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls each Underwriter within the meaning of the Act; and the obligations
of each Underwriter under this Section 6 shall be in addition to any
liability that such Underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company, to each officer
of the Company who has signed the Registration Statement and to each person,
if any, who controls the Company within the meaning of the Act.
7. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of you contained
in Section 6 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of you or any
controlling persons, or the Company, or any of its officers, directors or any
controlling persons, and shall survive delivery of and payment for the Shares
hereunder.
8. Substitution of Underwriters. (a) If either Underwriter shall
fail to take up and pay for the number of Shares agreed by such Underwriter
to be purchased hereunder, upon tender of such Shares in accordance with the
terms hereof, and the number of Shares not purchased does not aggregate more
than 10% of the total number of Shares that the Underwriters are
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obligated to purchase hereunder at the Closing Date, the remaining
Underwriter shall be obligated to take up and pay for the Shares that the
withdrawing or defaulting Underwriter agreed but failed to purchase.
(b) If any Underwriter shall fail to take up and pay for the number of
Shares agreed by such Underwriter to be purchased hereunder, upon tender of
such Shares in accordance with the terms hereof, and the number of Shares not
purchased aggregates more than 10% of the total number of Shares that the
Underwriters are obligated to purchase hereunder at the Closing Date, and
arrangements satisfactory to you and the Company for the purchase of such
Shares by other persons are not made within 36 hours thereafter, this
Agreement shall terminate. In the event of any such termination the Company
shall not be under any liability to any Underwriter with respect to Shares
not purchased by reason of such termination (except to the extent provided in
the penultimate paragraph of Section 4 hereof and in Section 6 hereof) nor
shall any Underwriter (other than an Underwriter who shall have failed,
otherwise than for some reason permitted under this Agreement, to purchase
the number of Shares agreed by such Underwriter to be purchased hereunder) be
under any liability to the Company with respect to such Shares (except to the
extent provided in Section 6 hereof.)
9. Termination. You shall have the right by giving notice as
hereinafter specified at any time at or prior to the Closing Date, to
terminate this Agreement if (i) the Company shall have failed, refused or
been unable, at or prior to the Closing Date, to perform any agreement on its
part to be performed hereunder, (ii) any other condition of your obligations
hereunder are not fulfilled, (iii) there shall have occurred any new outbreak
of hostilities or escalation of existing hostilities or other national or
international calamity or crisis, the effect of which on the financial
markets in the United States is such as to make it, in your reasonable
judgment, impracticable to market the Shares or to enforce contracts for the
sale of the Shares on the terms and in the manner contemplated by the
Prospectus, or (iv) after the execution of this Agreement there shall have
occurred any of the following: (A) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or the over-the-counter market, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required on the New York Stock Exchange or the
American Stock Exchange or the over-the-counter market, by the New York Stock
Exchange or the American Stock Exchange or the authorities administering the
over-the-counter market or by order of the Commission or any other
governmental authority having jurisdiction; (B) a general moratorium on
commercial banking activities shall have been declared by either Federal or
New York authorities; or (C) any rating of the Company's securities shall
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have been lowered by any nationally recognized statistical rating
organization. Any termination of this Agreement pursuant to this Section 9
shall be without liability on the part of the Company or you, except as
otherwise provided in the last two paragraphs of Section 4 hereof and except
as otherwise provided in Section 6 hereof.
Any notice referred to above may be given at the addresses
specified in Section 10 hereof in writing or by telegraph or telephone, and
if by telegraph or telephone, shall be immediately confirmed in writing.
10. Notices. All notices or communications hereunder, except as
herein otherwise specifically provided, shall be in writing and if sent to
you shall be mailed by first class mail, delivered, telexed or telecopied and
confirmed to you c/o Kidder, Peabody & Co. Incorporated, 10 Hanover Square,
New York, New York 10005, telecopy (212) 797-8942, telephone (212) 510-3000,
and c/o A.G. Edwards & Sons, Inc., One North Jefferson, St. Louis, MO 63103,
telecopy (314) 289-6010, telephone (314) 289-3000, or if sent to the Company,
shall be mailed, delivered, telexed or telecopied and confirmed to the
Company at 600 South Avenue, Westfield, New Jersey 07091-0788, telecopy (908)
232-2719, telephone (908) 654-1234. Any party to this Agreement may change
such address for notices by sending to the parties to this Agreement written
notice of a new address for such purpose.
11. Parties. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons, officers and directors referred to in Section 6, and no
other person will have any right or obligation hereunder.
12. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13. Over-allotment Option. (a) In addition to the shares of
Common Stock being sold by the Company and described as the "Shares" in
Section 1 hereof (which are referred to herein as the "Firm Shares"), you, at
your option, shall have the right to purchase from the Company up to an
aggregate of 90,000 additional shares ("Optional Shares"). The first two
paragraphs of Section 3 hereof shall be deemed to apply only to the purchase,
sale and delivery of the Firm Shares. References in those two paragraphs to
the "Shares" shall be deemed to be references to the "Firm Shares"; except as
otherwise provided in this Section 13, other references in this Agreement to
the "Shares" shall be deemed to include the Firm Shares and the Optional
Shares.
(b) Upon written notice from you given to the Company not more
than 30 days subsequent to the date of the initial
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public offering of the Shares, you may purchase all or less than all of the
Optional Shares at the purchase price per share to be paid for the Firm
Shares. Such Optional Shares may be purchased by you only for the purpose of
covering over-allotments made in connection with the sale of the Firm Shares.
No Optional Shares shall be sold or delivered unless the Firm Shares
previously have been, or simultaneously are, sold and delivered. The right
to purchase the Optional Shares or any portion thereof may be surrendered and
terminated at any time upon notice by you to the Company. The "Closing
Date", as defined in Section 3 hereof, shall be deemed to be the "First
Closing Date", and the time for the delivery of and payment for the Optional
Shares is herein referred to as the "Second Closing Date" (which may be the
First Closing Date). The Second Closing Date shall be determined by you but
shall be not later than 10 days after you give to the Company written notice
of election to purchase Optional Shares. The preparation, registration,
checking and delivery of, and payment for, the Optional Shares shall occur or
be made in the same manner as provided in Section 3 hereof for the Firm
Shares, except as you and the Company may otherwise agree.
(c) The conditions to your obligations set forth in Section 5
shall be deemed to be conditions to your obligations to purchase and pay for
the Shares to be purchased on each of the First Closing Date and the Second
Closing Date, as the case may be; references in that Section and in Sections
2 and 9 hereof to the "Closing Date" shall be deemed to be references to the
First Closing Date or the Second Closing Date, as the case may be, and
references to the "Shares" in Section 5 hereof shall be deemed to be
references to the Shares to be purchased at such Closing Date. A termination
of this Agreement as to the Optional Shares after the First Closing Date will
not terminate this Agreement as to the Firm Shares.
14. Action by Underwriters. The Underwriters agree to furnish
forthwith to the Company in writing such information as to the Underwriters
and the terms of offering as is reasonably required to amend the Registration
Statement and to enable the Company to comply with its undertakings contained
in the Registration Statement and herein and to file amendments to the
Registration Statement and supplements to the Prospectus.
-18-
<PAGE>
If the foregoing provisions correctly set forth the understanding
among the Company and you, please so indicate in the space provided below for
the purpose, whereupon this letter shall constitute a binding agreement
between the Company and you, the Underwriters.
Very truly yours,
E'TOWN CORPORATION
By: _________________________
Title:
ACCEPTED as of the date first
above written
KIDDER, PEABODY & CO. INCORPORATED
By: _________________________
Title:
A.G. EDWARDS & SONS, INC.
By: _________________________
Title:
-19-
<PAGE>
SCHEDULE A
Number of
Shares
to be
Purchased
Underwriter
Kidder, Peabody & Co. Incorporated . . . . . . . . . . . . . . . . . 300,000
A.G. Edwards & Sons, Inc. . . . . . . . . . . . . . . . . . . . . . . 300,000
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 600,000
-20-
<PAGE>
SCHEDULE B
ALLOWED EMPLOYEE BENEFIT PLANS
PURSUANT TO SECTION 4(h)
1) Elizabethtown Water Company Savings and Investment Plan
2) Incentive Stock Option Plan
3) E'town's 1987 Stock Option Plan
4) E'town's 1990 Performance Stock Program
5) Elizabethtown Water Company Employee Stock Ownership Plan
-21-
<PAGE>
Exhibit I
The letter of Deloitte & Touche referred to in Section 5(g) of the
Underwriting Agreement will be to the effect that:
(i) Deloitte & Touche are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of the
Act and the Rules and Regulations; (ii) in their opinion, the consolidated
financial statements audited by them and included and incorporated by
reference in the Registration Statement and the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Act and the 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 (1) a reading of the unaudited
consolidated financial statements of the Company incorporated by reference in
the registration statement and the Prospectus and included in the Company's
Form 10-Q filed with the Commission under Section 13 of the 1934 Act (the
"Form 10-Q"), (2) a reading of the latest available unaudited consolidated
financial statements of the Company, (3) a reading of the latest available
minutes of meetings of the Board of Directors of the Company and (4)
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 would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
accordingly, that Deloitte & Touche makes no representation as to the
sufficiency of such procedures for the purposes of the Underwriters), nothing
has caused them to believe that (A) any material modifications should be made
to the unaudited financial statements included in the Form 10-Q for them to
be in conformity with generally accepted accounting principles, (B) the
unaudited consolidated financial statements included in the Form 10-Q do not
comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations, (C) at the date of
the latest available financial statements and 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 issuance of common stock in connection with the
Company's Dividend Reinvestment and Stock Purchase Plan) or long-term debt
(except for redemptions pursuant to the death benefit provision of the
Company's 6-3/4% Convertible Subordinated Debentures) of the Company, as
compared with amounts shown in the March 31, 1994 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, (D) there was any decrease in consolidated net assets at April
30, 1994 as compared with amounts shown in the March 31, 1994 consolidated
balance
-22-
<PAGE>
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, (E) for the four months ending April 30, 1994, there was any
decrease, as compared with the corresponding period of the previous year, in
consolidated revenues, net income or per share amounts of 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 (iv) 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 Underwriters may have
reasonably requested. In the event the Second Closing Date occurs and does
not occur simultaneously with the First Closing Date, the dates set forth in
Subsections (iii) (D) and (E) will be adjusted accordingly.
-23-
<PAGE>
Exhibit 4(d)
COMMON STOCK
Incorporated under the laws ______________ Shares
of the State of New Jersey
See reverse for
certain definitions
CUSIP __________
E'TOWN CORPORATION
THIS CERTIFIES THAT ________________________ IS THE OWNER OF
____________________________________________________________
fully paid and non-assessable shares without par value of the Common Stock of
E'TOWN CORPORATION (hereinafter called the Corporation) transferable on the
books of the Corporation in person or by duly authorized attorney upon the
surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and
shall be held subject to all the provisions of the Articles of Incorporation
pursuant to which the Corporation was formed and all amendments thereto and
to the By-Laws of the Corporation, copies of which are on file with the
Corporation and the Transfer Agent and to all of which the holder of this
certificate by the acceptance hereof assents and agrees.
This certificate is not valid until countersigned and registered by
the Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
COUNTERSIGNED AND REGISTERED:
T
THE BANK OF NEW YORK, (NEW YORK) By: /s/ Walter M. Braswell
TRANSFER AGENT AND REGISTRAR ------------------------------
Secretary
By: ______________________ By: /s/ Robert W. Kean, Jr.
AUTHORIZED SIGNATURE ------------------------------
Chairman of the Board
<PAGE>
[E'TOWN CORPORATION LETTERHEAD]
Exhibit 5
April 21, 1994
E'town Corporation
600 South Avenue
Westfield, New Jersey 07090
Ladies and Gentlemen:
I have acted as counsel to E'town Corporation (the "Company") in
connection with the proposed issuance and sale of up to 690,000 shares of
Common Stock, without par value (the "Common Stock"), of the Company pursuant
to an underwritten offering. As Secretary of the Company, I have examined,
among other things, the registration statement on Form S-3, and the
prospectus included therein, being filed under the Securities Act of 1933
with respect to the Common Stock (the "Registration Statement"). I have also
examined and am familiar with the originals and copies, certified or
otherwise identified to my satisfaction, of pertinent documents, corporate
records and other instruments relating to the issuance of the Common Stock
and other actions and proceedings relating thereto.
Based upon the foregoing, I am of the opinion that when (i) the
Registration Statement shall have become effective, (ii) the Company's Board
of Directors shall have taken appropriate action in connection with the
issuance and sale of the Common Stock and (iii) the Common Stock shall have
been issued and delivered against payment therefor as contemplated in the
Registration Statement, the Common Stock will be validly issued, fully paid
and non-assessable.
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. 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
prospectus included in the Registration Statement.
Very truly yours,
/s/ Walter M. Braswell
Walter M. Braswell
Secretary
<PAGE>
[DELOITTE & TOUCHE LETTERHEAD]
Exhibit 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of E'town Corporation on Form S-3 of our report dated February 15, 1994,
except for the subsequent events discussed in Notes 10 and 11, as to which
the dates are February 23, 1994 and March 23, 1994, respectively, appearing
in the Annual Report on Form 10-K of E'town Corporation for the year ended
December 31, 1993 and to the reference to us under the heading "Experts" in
the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche
Parsippany, New Jersey
April 22, 1994
<PAGE>
Exhibit 24
E'TOWN CORPORATION
POWER OF ATTORNEY
-----------------
E'town Corporation and each of the directors and/or officers of
E'town Corporation whose signatures appear below do hereby appoint WALTER M.
BRASWELL and DAVID P. FALCK, and each of them severally, as its, his or her
true and lawful attorneys-in-fact to execute on its, his or her behalf and 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 690,000 shares of E'town Corporation Common Stock, without par value,
and any and all pre- and post-effective amendments thereto and other
documents relating thereto, and to file the same with the Securities and
Exchange Commission. Each of said attorneys-in-fact shall have power to act
hereunder with or without the other.
IN WITNESS WHEREOF, the undersigned have duly executed this
instrument as of the 21st day of April 1994.
E'TOWN CORPORATION
By: /s/ Robert W. Kean, Jr.
--------------------------
Robert W. Kean, Jr.,
Chairman of the Board,
Chief Executive Officer
and Director
/s/ Henry S. Patterson, II
--------------------------
Henry S. Patterson, II,
President and Director
/s/ Anne Evans Gibbons
--------------------------
Anne Evans Gibbons,
Vice President and
Director
/s/ Walter M. Braswell
--------------------------
Walter M. Braswell,
Secretary
<PAGE>
/s/ Andrew M. Chapman
--------------------------
Andrew M. Chapman,
Chief Financial Officer
and Treasurer
/s/ Frank Critelli
--------------------------
Frank Critelli,
Controller and Assistant
Secretary
/s/ Brendan T. Byrne
--------------------------
Brendan T. Byrne,
Director
/s/ Thomas J. Cawley
--------------------------
Thomas J. Cawley,
Director
/s/ John Kean
--------------------------
John Kean,
Director
/s/ Robert W. Kean, III
--------------------------
Robert W. Kean, III,
Director
/s/ Arthur P. Morgan
--------------------------
Arthur P. Morgan,
Director
/s/ Barry T. Parker
--------------------------
Barry T. Parker,
Director
-2-
<PAGE>
/s/ Hugo M. Pfaltz, Jr.
--------------------------
Hugo M. Pfaltz, Jr.,
Director
/s/ Chester A. Ring, 3rd
--------------------------
Chester A. Ring, 3rd,
Director
-3-
