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As filed with the Securities and Exchange Commission on December 23, 1998
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)
GAIL P. BRADY
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.
WINTHROP, STIMSON, PUTNAM & ROBERTS
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK 10004-1490
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. [X]
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. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE(1) REGISTRATION FEE
============================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, without
par value (2)................ 500,000 shares $42.219 $21,109,500 $5,868
============================================================================================================================
</TABLE>
(1) 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 December 16, 1998.
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(2) The 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.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
prospectus filed as a part of this registration statement will be used as a
combined prospectus in connection with the securities registered under this
registration statement and the securities previously registered under
registration statement No. 333-16713. At the date of filing hereof, 20,496
shares of Common Stock remain registered and unissued under registration
statement No. 333-16713.
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PROSPECTUS
E'TOWN CORPORATION
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
Common Stock
(Without Par Value)
The Dividend Reinvestment and Stock Purchase Plan (the "Plan") provides a simple
and convenient method for shareholders of E'town Corporation (the "Company" or
"E'town") to purchase shares of Common Stock of the Company without payment of
any brokerage commission or service charge.
The investment options offered under the Plan are either one or both of the
following:
DIVIDEND REINVESTMENT - Reinvest dividends on all shares held or on
less than all shares held and continue to receive cash dividends on
other shares owned.
CASH PAYMENTS - Invest by making optional cash payments at any time in
an amount up to a total of $2,000 per calendar month (minimum $100 per
payment).
The price per share purchased under the Plan will be an amount equal to 95% of
the average of the high and low sale prices for the Company's Common Stock, as
reported in the New York Stock Exchange Composite Transactions, for each of the
five consecutive trading days ending with the Investment Date. The Company
reserves the right to give notice at any time that, effective with a specified
Investment Date following such notice, the price per share purchased under the
Plan with reinvested dividends, optional cash payments or both will be an amount
equal to 100% of the average of such reported high and low prices.
This Prospectus relates to 520,496 authorized and unissued shares of Common
Stock of the Company for use under the Plan.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS IS
ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THIS PROSPECTUS SHOULD BE RETAINED FOR FUTURE REFERENCE.
THE DATE OF THIS PROSPECTUS IS DECEMBER 22, 1998
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WHERE YOU CAN FIND MORE INFORMATION
E'town Corporation is required by the Securities Exchange Act of 1934
(the "Exchange Act") to file annual, quarterly and special reports and other
information with the Securities and Exchange Commission (the "SEC"). These
reports and other information can be inspected and copied at the SEC's public
reference room at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and
at the SEC's Regional Offices at Seven World Trade Center, Suite 1300, New York,
New York 10048, and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of this material can also be obtained by
visiting the SEC's website at http://www.sec.gov and by written request
addressed to the SEC, Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549.
We have filed with the SEC a registration statement on Form S-3 under
the Securities Act of 1933 (the "Securities Act") with respect to the Securities
offered by this prospectus. This prospectus does not contain all of the
information included or incorporated by reference in the registration statement.
For further information you should refer to the registration statement.
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is
considered to be a part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. The
information included in this document is not complete, and should be read
together with the information incorporated by reference. We incorporate by
reference the documents listed below and our future filings with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until we sell all of the
Securities:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1997 (the "1997 10-K").
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998.
3. 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.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
E'town Corporation
600 South Avenue
Westfield, New Jersey 07090-0788
Attention: Treasurer
Phone: 908-654-1234
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to provide you
with different information. We are not making an offer of these Securities in
any state where the offer is not permitted. You should not assume
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that the information in this prospectus is accurate as of any date other than
the date on the front of those documents.
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THE COMPANY
E'town was incorporated under the laws of the State of New Jersey in
1985 to serve as a holding company for Elizabethtown Water Company
("Elizabethtown") and its wholly owned subsidiary, The Mount Holly Water Company
("Mount Holly").
Elizabethtown and Mount Holly are regulated water utilities serving
customers in central New Jersey. Elizabethtown and Mount Holly are engaged in
the distribution of water for domestic, commercial, industrial and fire
protection purposes and for resale by other water companies and public bodies.
Elizabethtown and Mount Holly are public utilities and are regulated by the New
Jersey Board of Public Utilities. Elizabethtown presently constitutes most of
E'town's assets and contributes most of its earnings.
E'town also owns Edison Water Company ("Edison"), which operates the
water system of the Township of Edison, New Jersey under a long-term contract,
Liberty Water Company ("Liberty"), which operates the water system of the City
of Elizabeth, New Jersey under a long-term contract and Applied Wastewater
Management, Inc. ("AWWM") which operates water and wastewater systems. Both
Edison and Liberty are unregulated. AWWM is regulated. In addition, E'town owns
E'town Properties, Inc. ("Properties") and Applied Water Management, Inc.
("AWM") which are unregulated subsidiaries. Properties owns various parcels of
real estate in New Jersey. E'town and Properties are in the process of selling
those parcels, and plan to invest the sale proceeds into water utility and
wastewater investments. AWM develops, owns and operates private water and
wastewater facilities for corporate and municipal clients.
E'town's executive offices are located at 600 South Avenue, Westfield,
New Jersey 07091-0788. Its telephone number is (908) 654-1234.
THE PLAN
The Plan is presented below, in a question-and-answer format.
PURPOSE
1. What is the purpose of the Plan?
The purpose of the Plan is to promote long-term stock ownership in the
Company by providing Stockholders of record of the Common Stock of the Company
with a convenient method of investing cash dividends and cash payments in shares
of the Company's Common Stock without payment of any brokerage commission or
service charge. Since such shares will be purchased from the Company, the
Company will receive additional funds for its general corporate purposes,
including investments in its subsidiaries.
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ADVANTAGES
2. What are the advantages of the Plan?
Stockholders who elect to participate in the Plan ("Participants") may
(a) have cash dividends on some or all of the shares of Common Stock registered
in their names automatically reinvested in new issue shares of Common Stock each
quarter, and/or (b) make cash payments up to $2,000 per calendar month (minimum
$100 per payment) to purchase additional shares of Common Stock. Dividends on
shares purchased under the Plan with cash payments or reinvested dividends will
automatically be reinvested in additional stock.
Participants can purchase stock with reinvested dividends or optional
cash payments at 95% of the average of the high and low sale prices for the
Company's Common Stock, as reported in the New York Stock Exchange Composite
Transactions, for each of the five consecutive trading days ending with the
Investment Date, subject to the Company's right to give notice of its
determination to change such price per share to 100% of the prevailing market
price for the Company's Common Stock. (See Question 13). No commission or
service charge is paid by Participants in connection with purchases under the
Plan. Full investment of funds is possible because the Plan permits fractions of
shares, as well as full shares, to be credited to Participants' accounts
("Accounts"). In addition, dividends with respect to such fractions, as well as
with respect to full shares, will be credited to Participants' Accounts and
reinvested in new shares of Common Stock under the Plan. Since certificates are
not issued for shares under the Plan, Participants avoid the cumbersome
safekeeping of certificates for shares credited to their Accounts under the
Plan. Regular statements of accounts will provide simplified record keeping for
Participants.
PARTICIPATION
3. Who is eligible to participate?
All holders of record of at least 20 shares of Common Stock
("Stockholders") are eligible to participate in the Plan. In order to be
eligible to participate in the Plan, beneficial owners of shares of the
Company's Common Stock whose shares are registered in names other than their own
must become registered Stockholders by having their shares transferred into
their names. In addition, to remain eligible to participate in the Plan, a
Participant must continue to be the record holder of at least 20 shares of
Common Stock. If at any time a Participant holds less than 20 shares of Common
Stock as holder of record, then the Company will stop reinvesting dividends and
will not accept any optional cash payments on such Participant's shares under
the Plan unless and until such time as such Participant once again becomes
eligible to participate and elects to do so by completing and returning the
required Enrollment Form. (See Question 4).
In addition, the Company may give notice that, effective with a future
date to be specified and on such terms and conditions as may be specified in
such notice, up to two members at least 18 years of age of a household served by
Elizabethtown or Mount Holly may become Participants in the Plan. Such eligible
individuals are referred to as "Customers" for the remainder of this document.
(For the sake of convenience, the Plan is drafted as if Customers are eligible
to participate currently.)
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The Company reserves the right, in its sole judgment and discretion, to
exclude any Participant from participation in the Plan upon giving notice of
such exclusion by registered or certified mail sent to such Participant's
address as reflected on the records maintained by the Agent (as defined below).
Without limiting the foregoing reservation of rights, the Company's policy to
limit the number of Participants who (i) have the same or similar addresses (as
shown on the Enrollment Form), or (ii) appear to be owned or controlled by a
single individual, entity or group, to no more than four. In addition, if it
appears to the Company that any present or prospective Participant is using or
contemplating the use of the Plan in a manner or with an effect that, in the
sole judgment and discretion of the Company, is not in the best interests of the
Company or its other shareholders, then the Company may decline to issue all or
any portion of the shares of Common Stock for which any optional cash payment by
or on behalf of such Participant is tendered. Such optional cash payment (or
portion thereof) will be returned by the Company as promptly as practicable,
without interest.
The Company may at any time require proof of identity or residence of,
or affiliation among, potential participants in the Plan.
4. How does an eligible person participate?
Stockholders and Customers may join the Plan by filling out the
Enrollment Form and returning it to The Bank of New York, as agent under the
Plan ("Agent"). An Enrollment Form may be obtained at any time upon request.
(See Question 9).
Some Stockholders may have shares registered in more than one name (for
example, some shares registered in the name of "John Smith" and others
registered in the name of "John and Mary Smith"). In such situations, but
subject to the Company's reservations of rights as set forth under Question 3,
the Stockholder will receive an Enrollment Form for each registration. If this
occurs, the Stockholder has the choice of signing and returning any of the
Enrollment Forms, but dividends will be reinvested only for those shares for
which Enrollment Forms are signed and returned.
5. When may an eligible person join the Plan?
An eligible person may join in the Plan at any time by sending a signed
Enrollment Form to the Agent.
For dividends to be reinvested in additional shares of Common Stock,
the Agent must receive the Enrollment Form on or prior to the record date for a
cash dividend payment. If the Enrollment Form is received by the Agent after
such record date, reinvestment of dividends will not begin until the dividend
payment date following the next record date. The record date will generally
precede the dividend payment date by 15 days. Dividend payment dates are
expected to be the last business day of March, June, and September, and a day
during the third week of December. (See Question 12).
For cash payments to be reinvested in additional shares of Common
Stock, the Agent must receive the Enrollment Form and, after the Participant has
enrolled in the Plan, any cash payments, at least five business days before the
Investment Date. For any month when a dividend is paid, the Investment Date and
dividend payment date are the same. For other months, the Investment Date is the
last business day of the month. (See Questions 12 and 14). No interest is paid
on cash payments received by the Agent prior to the next applicable Investment
Date.
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Customers will be eligible to join the Plan only if the Company gives
the notice described under Question 3.
6. What does the Enrollment Form provide?
First, the Participant provides necessary identifying information such
as name, address and Taxpayer Identification Number or social security number,
and also signs the form. If the Participant is a Customer, he must also provide
his customer account number.
Second, the Participant elects his/her investment option by checking
one or both of the following options:
(a) By checking the box marked "Dividend Reinvestment",
the Participant elects to have the Agent reinvest
dividends paid on some or all of the Participant's
shares of Common Stock in additional shares of Common
Stock. The Participant should fill in the
accompanying blank to specify the number of shares
for which dividends will be reinvested. (If the blank
is not filled in, dividends on all shares owned will
be reinvested.)
(b) By checking the box marked "Cash Payment" and
enclosing a check or money order payable to The Bank
of New York, the Participant elects to purchase
shares of Common Stock.
Shares purchased using either the "Dividend Reinvestment" or "Cash
Payment" option will be deposited into the Participant's Plan Account and
dividends on such shares will be automatically reinvested.
7. May a Participant change investment options after becoming a Participant?
Yes. A Participant may change his or her investment option by signing a
new Enrollment Form and returning it to the Agent. The change in participation
will become effective in the same manner as an initial enrollment in the Plan as
provided under Question 5. If a Participant elects to participate through the
reinvestment of dividends but later decides to reduce the number of shares on
which dividends are being reinvested or to participate through the cash payment
feature only, the Enrollment Form indicating such change of options must be
received by the Agent on or prior to the record date for a dividend payment in
order to stop the unwanted reinvestment of dividends payable on the following
dividend payment date.
IT SHOULD BE REMEMBERED THAT EVEN IF THE PARTICIPANT IS ENROLLED ONLY IN THE
OPTIONAL CASH PAYMENT FEATURE, THE AGENT WILL REINVEST ALL DIVIDENDS OF SHARES
CREDITED TO THE PARTICIPANT'S PLAN ACCOUNT.
8. May a Participant transfer shares from an existing Participant Account (an
"Existing Account") to another Account?
Yes. Subject to the Company's reservation of rights as set forth under
Question 3, a Participant may effect "book-to-book" transfers, which involve
transferring shares from an Existing Account in the Plan to another Existing
Account or to a new Participant Account (a "New Account") by following these
steps:
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- Call The Bank of New York's toll-free telephone number,
1-800-524-4458, and request a Stock/Bond Power Form and, if a
New Account is to be opened, a Plan Prospectus and an
Enrollment Form.
- If a New Account is to be opened, have the new Participant(s)
complete the Enrollment Form with the following information:
- complete name(s) in which the New Account is to be
registered
- address (including zip code)
- taxpayer identification number
- Complete the Stock/Bond Power Form indicating the number of
shares (full and/or fractional) which should be transferred to
the other Existing Account or to the New Account. All
Participants transferring shares from an Existing Account must
sign the request and their signatures must be guaranteed by a
bank, broker or financial institution that is a member of the
Signature Guarantee Medallion Program.
- Send the completed Stock/Bond Power Form, and, if applicable,
the completed Enrollment Form to The Bank of New York at:
The Bank of New York
Dividend Reinvestment Department
P.O. Box 1958
Newark, NJ 07101-9774
9. Where should correspondence regarding the Plan be directed to?
All requests for termination of participation, sales, optional cash
payments or change of address should be directed to:
The Bank of New York
Dividend Reinvestment Department
P.O. Box 1958
Newark, NJ 07101-9774
All correspondence regarding the Plan should be addressed to the Agent
at the following address:
The Bank of New York
Shareholder Services Department
P.O. Box 11258
New York, NY 10277-0758
Telephone: (800) 524-4458
Please utilize the tear-off stub portion of your statement when requesting
termination of participation, sales, optional cash payments or change of
address. The Telephone Response Center of the Agent is available Monday through
Friday, 8 A.M. to 6 P.M. Eastern Time. When calling, please identify yourself
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as a holder of E'town Corporation Common Stock and please provide your name as
it appears on your stock certificate or Plan statement, as well as your tax
identification number.
COSTS
10. Are there any expenses to Participants in connection with purchases under
the Plan?
No. There are no brokerage fees in connection with purchases of shares
under the Plan because shares are purchased from the Company. All costs of
administration of the Plan are to be paid by the Company. Certain charges as
described under Questions 22 and 23 will be incurred by the Participant in the
event his or her shares are sold upon request to the Agent.
PURCHASE
11. How many shares of Common Stock will be purchased for Participants?
The number of shares to be purchased depends on the amount of the
Participant's dividends being reinvested, the amount of optional cash payments
and the applicable purchase price per share of Common Stock. Each Participant's
Account will be credited with the number of shares, including fractions computed
to four decimal places, equal to the total amount to be invested divided by the
applicable purchase price per share.
12. When will the shares of Common Stock be purchased under the Plan?
Shares of Common Stock will be purchased under the Plan as of the
following dates (each an "Investment Date"). Dividends will be invested as of
the dividend payment date (dividend payment dates are expected to be the last
day of March, June, September and a day during the third week of December).
Optional cash payments will be invested as of each Common Stock dividend payment
date and as of the last business day of each month in which there is not a
Common Stock dividend payment date.
13. What will be the price of shares of Common Stock purchased under the Plan?
The price per share for Common Stock purchased under the Plan will be
an amount equal to 95% of the average of the high and low sale prices for the
Company's Common Stock, as reported in the New York Stock Exchange Composite
Transactions, for each of the five consecutive trading days ending with the
Investment Date. The Company reserves the right to give notice at any time that,
effective with a specified Investment Date following such notice, the price per
share purchased under the Plan with reinvested dividends, optional cash payments
or both will be an amount equal to 100% of the average of such reported high and
low Common Stock prices.
OPTIONAL CASH PAYMENTS
14. How does the optional cash payment option work?
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Each Participant in the Plan may invest in additional shares of Common
Stock by making optional cash payments at any time. There is no obligation to
make any cash payment. The amount of each cash payment must be at least $100,
and the total cash payments invested may not exceed $2,000 per calendar month.
Cash payments will be invested once each month. (See Question 12).
Optional cash payments by Customers may not be submitted with payments
of their utility bills.
When enrolling in the Plan, cash payments may be made by enclosing a
check or money order (payable in United States dollars to The Bank of New York)
with the Enrollment Form sent to the Agent. Thereafter, cash payments may be
made by sending a check or money order to the Agent along with the stub attached
to the quarterly statement of account which will be sent to each Participant by
the Agent. Second or third party checks endorsed by you will not be accepted and
the Agent will return any such check. Also, foreign checks not drawn on a United
States bank and not payable in United States dollars will not be accepted and
will be returned to the Participant.
Cash payments must be received by the Agent not later than the fifth
business day before the optional cash payment Investment Date for each month.
(See Question 12). Cash payments not received in time are held in anticipation
of the next Investment Date. No interest will be paid by the Company or the
Agent on funds pending their investment in Common Stock.
A Participant may, without withdrawing from the Plan, receive the
return of any optional cash payment upon written request received by the Agent
not later than the fifth business day prior to the Investment Date.
REPORTS TO PARTICIPANTS
15. What kind of reports will be sent to Participants in the Plan?
Each participant in the Plan will receive a quarterly statement for
dividend reinvestments and/or a monthly for cash payments. Each statement will
show the number of shares of Common Stock distributed to the Participant and
deposited in the Participant's Plan Account during the quarter, the date of each
distribution and the fair market value of the shares on the date distributed.
These statements are a Participant's continuing record of the cost of his
purchases and should be retained for income tax purposes. In addition, each
Participant will receive a copy of each Prospectus prepared for the Plan and
copies of the same communications sent to all holders of Common Stock, including
Quarterly Reports to Stockholders, the Annual Report, the Notice of Annual
Meeting of Stockholders and Proxy Statement, and IRS information for reporting
dividends paid.
DIVIDENDS
16. How will dividends be paid on shares held in Plan Accounts?
Dividends on whole shares, and any fraction of a share, held for the
Participant's Account under the Plan will be automatically reinvested in
additional shares of the Company's Common Stock and credited to the
Participant's Plan Account. If a Participant wishes to be paid cash dividends by
check on any shares held for the Participant's Plan Account, the Participant
must request that those shares be
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withdrawn from the Plan and that certificates for those shares be issued to him
or her. (See Question 17).
CERTIFICATES FOR SHARES
17. Will certificates be issued for shares of Common Stock purchased under the
Plan?
Normally, certificates for shares of Common Stock purchased under the
Plan will not be issued to Participants. The number of shares credited to an
Account under the Plan will be shown on each statement of account mailed to the
Participant. This convenience protects against loss, theft or destruction of
certificates.
Certificates for any number of whole shares credited to an Account
under the Plan will be issued upon the written request of such Participant, and
the issuance of such certificates will not terminate the Participant's
continuation of the Plan with respect to the remaining shares so long as such
Participant continues to be the holder of record of at least 20 shares of Common
Stock. Any such request should be mailed to the Agent. (See Question 9).
Dividends on any full shares and fraction of a share remaining in the
Participant's Plan Account will continue to be automatically reinvested in
additional shares of Common Stock and credited to the Participant's Account.
Shares credited to the Account of a Participant's Plan Account may not
be pledged as collateral. A Participant who wishes to pledge such shares must
request that certificates for such shares be removed from the Plan and issued in
his or her name.
An institution that is required by law to maintain physical possession
of certificates should request the issuance of certificates for Common Stock
purchased under the Plan after each dividend reinvestment has been completed.
This request should be mailed to the Agent. (See Question 9).
CERTIFICATES FOR FRACTIONAL SHARES WILL NOT BE ISSUED UNDER ANY CIRCUMSTANCES.
18. Does the Company or the Agent (i) provide safekeeping of certificates held
by Stockholders or (ii) accept shares registered in a Participant's name for
deposit to the Plan Account of such Participant?
No. Neither the Company nor the Agent provide safekeeping of
Stockholders' certificates, nor will either of them accept certificates for
shares registered in a Participant's name for cancellation and deposit in such
Participant's Plan Account.
19. In whose name will certificates be registered when issued?
Accounts for Stockholders participating in the Plan are maintained in
the names in which such Stockholders' certificates were registered at the time
they entered the Plan.
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Consequently, certificates for whole shares issued upon the request of such
Stockholder Participants withdrawing shares from the Plan will be treated in a
routine manner and similarly registered.
WITHDRAWAL
20. When may a Participant withdraw from the Plan?
A Participant may stop all investment on an Investment Date if notice
of withdrawal from the Plan is received by the Agent not later than five
business days prior to the dividend payment date, in the case of reinvestment of
dividends. Any dividend or cash payment investment which has been stopped by
withdrawal from the Plan will be remitted by the Agent to the former
Participant.
21. How does a Participant withdraw from the Plan?
In order to withdraw from the Plan, a Participant must notify The Bank
of New York, as Agent, that the Participant wishes to withdraw from the E'town
Corporation Dividend Reinvestment and Stock Purchase Plan and give his or her
Account number. (See Question 9). The tear-off stub attached to the bottom of
your quarterly statement of account should be used for this purpose. This may be
done by checking the appropriate box on the back of the stub, signing and
returning the stub to the Agent.
22. How are shares distributed when a Participant withdraws from the Plan or the
Plan is terminated?
When a Participant withdraws from the Plan or on termination of the
Plan by the Company, certificates for whole shares credited to his or her
Account under the Plan and a cash payment representing any fraction of a share
will be mailed directly to the Participant. Any such cash payment will be based
on a current market price of the Company's Common Stock.
Upon his or her withdrawal from the Plan, the Participant may also
request that all of the shares, both whole and fractional, credited to his or
her Account, be sold. If he or she requests such sale, the sale will be made for
the Account of the Participant by the Agent at a market price within ten trading
days after receipt of the request. The Participant will receive the proceeds of
the sale less any applicable brokerage commission and transfer tax.
23. Can the Participant direct the Agent to sell a portion of his shares held in
his Plan Account?
Yes. The Participant will receive the proceeds of the sale less any
applicable brokerage commission and transfer tax. The Agent may use BNY ESI &
Co., Inc., a wholly owned subsidiary of The Bank of New York, for trading
activity under the Plan on behalf of the Participants. BNY ESI & Co., Inc.
receives a commission in connection with the transactions it processes.
24. If a Customer moves outside Elizabethtown's service territory or otherwise
ceases to be a Customer, may this person continue to participate in the Plan?
Yes, so long as this person continuously maintains at least 20 shares
registered in his or her name.
-12-
<PAGE> 15
25. What are the federal income tax consequences of participation in the
Plan?
Generally, any cash dividend which is reinvested under the Plan will be
taxable as if it had been received by the Participant, even though the
Participant does not actually receive it in cash but, instead, uses it to
purchase shares under the Plan. In this manner, Participants are treated the
same as Stockholders who are not Participants in the Plan.
In addition, the difference, if any, between the price of shares
acquired through the reinvestment of dividends and the fair market value of
those shares (for federal income tax purposes) on the date of purchase will be
treated as additional dividend income to the Participant. This means that both
the amount of the dividend which is reinvested and the amount of the discount
from fair market value at which the shares are acquired will be taxable to the
participant at ordinary income rates in the year the shares are purchased.
A Participant's tax basis for shares acquired under the Plan with
reinvested dividends will be equal to the amount paid for the shares (i.e., the
amount of the reinvested dividend) plus the amount of the discount from fair
market value included in the Participant's taxable income. The tax basis for
shares acquired under the Plan with cash payments will be the amount of the cash
payments.
A Participant will not realize any taxable income when he or she
receives certificates for whole shares credited to his or her Account under the
Plan either upon his or her request for certificates for certain of those shares
or upon withdrawal from or termination of the Plan. However, a Participant who
receives, upon withdrawal or termination of the Plan, a cash adjustment for a
fractional share credited to his or her Account may recognize a gain or loss.
Gain or loss may also be recognized by the Participant when whole shares are
sold either by the Agent upon the Participant's request when he or she withdraws
from the Plan or by the Participant himself or herself after withdrawal from the
Plan. (See Question 22). The amount of such gain or loss will be the difference
between the amount which the Participant receives for his or her shares or
fractional share, and his or her tax basis therefor.
In the case of a Participant who is subject to "backup withholding,"
i.e., a Participant who has failed to provide the Agent with a valid taxpayer
identification number, the Agent will withhold the amounts required to be
withheld before the purchase of shares of Common Stock. The quarterly statements
confirming purchases made for such Participants will indicate the net dividend
payment reinvested.
The information set forth in this answer to Question 25 is a summary
only and does not purport to be complete. Each Participant is advised to consult
with his or her own tax advisor regarding specific questions. The statement of
account sent to Participants should be retained for this purpose. In addition,
there may be tax considerations under foreign, state and local law applicable to
Participants.
26. What provision is made for foreign Stockholders subject to income tax
withholding?
In the case of foreign Stockholders (non-resident aliens, foreign
corporations and certain other foreign persons) who elect to have their
dividends reinvested and whose dividends are subject to United States income tax
withholding, the Company will withhold the amounts required to be withheld
before the purchase of shares of Common Stock. The quarterly statements
confirming purchases made for such foreign Participants will indicate the net
dividend payment reinvested.
-13-
<PAGE> 16
27. What happens when a Stockholder sells or transfers all or a portion of
the shares registered in his name?
If a Participant disposes of all of the shares of Common Stock
registered in the Participant's name, other than shares credited to his Plan
Account, then, so long as the Participant continues to be eligible to
participate in the Plan as described under Question 3 (including continuing to
be a holder of record of at least 20 shares of Common Stock), the Agent will
continue to reinvest the dividends on the shares credited to the Participant's
Plan Account until the Participant notifies the Agent that he or she wishes to
withdraw from the Plan. Prior to such withdrawal, cash payments may continue to
be made by the Participant as long as there are shares credited to his or her
Plan Account.
If a Participant who has only a portion of his or her dividends
reinvested pursuant to the Plan disposes of shares of stock to the extent that
he or she has registered in his or her name fewer shares than the number
indicated on the Enrollment Form as the shares for which dividends are to be
reinvested, the Agent will deem all remaining shares registered in the
Participant's name as credited to his or her Plan Account and will reinvest
dividends on all such shares. A Participant may change his or her investment
options, however, in the manner specified under Question 7.
28. What happens if the Company has a rights offering, issues a stock
dividend or declares a stock split?
A Participant's entitlement in a rights offering will be based upon
total holdings: those shares of Common Stock registered in the Participant's
name, if any, on the books of the Company and those credited to his or her
Account under the Plan. Rights with respect to all shares will be mailed
directly to the Participant. However, rights will be issued to the Participant
for the number of whole shares only and rights based on a fraction of a share
held in a Participant's Account will be sold and the net proceeds will be
applied as a cash payment to purchase new issue shares of Common Stock under the
Plan on the next Investment Date.
Stock dividends distributed on shares held by, and registered in the
name of, a Participant on the books of the Company, as well as shares
distributed on account of any split of such shares, will be mailed directly to
the Participant. Additional shares resulting from stock dividends or stock
splits on shares credited to a Participant's Account in the Plan will be
credited to the Participant's Account. Transactions may be curtailed or
suspended until the completion of any stock dividend, stock split or rights
offering.
29. How will a Participant's shares be voted at meetings of Stockholders?
Whole shares credited to the Account of a Participant under the Plan
will be added to the shares registered in the Participant's name, and the proxy
on the combined total will be furnished to the Participant.
Fractional shares cannot be voted.
If no instructions are indicated on a properly signed and returned
proxy card, all of the whole shares will be voted in accordance with the
recommendations of the Company's management. If the proxy card is not returned
or is returned unsigned, none of the Participant's shares will be voted unless
the Participant, or the Participant's duly appointed representative, votes in
person at the meeting.
-14-
<PAGE> 17
30. May the Plan be changed or discontinued?
The Company reserves the right at any time to terminate the Plan or to
amend, modify, or suspend the Plan, including, without limitation, to change the
price applicable to shares purchased by Participants under the Plan. (See
Questions 3 and 13). All Participants will receive notice of any such amendment,
modification, suspension or termination, which notice may be before or after the
fact. Any uninvested funds held by the Agent at the time of any suspension or
termination of the Plan will be remitted by the Agent to the Participants. The
Agent reserves the right to resign at any time upon reasonable notice to the
Company in writing and the Company may elect and appoint a new Agent, including
itself or its nominee, at any time.
31. What is the responsibility of the Company and the Agent under the Plan?
The Company and the Agent will not be liable for any act done in good
faith or for any good faith omission to act, including, without limitation, any
claim of liability arising out of failure to purchase shares or to terminate a
Participant's Account upon such Participant's death prior to receipt of notice
in writing of such death or with respect to any fluctuation in market value
before or after purchase or sale of Common Stock.
PARTICIPANTS SHOULD RECOGNIZE THAT NEITHER THE COMPANY NOR THE AGENT
CAN ASSURE THEM OF A PROFIT OR PROTECT THEM AGAINST A LOSS ON THE SHARES OF
COMMON STOCK PURCHASED UNDER THE PLAN.
USE OF PROCEEDS
The Company has no basis for estimating the number of shares of Common
Stock that will ultimately be purchased under the Plan or the prices at which
such shares will be sold. The net proceeds realized by the Company from shares
of Common Stock sold under the Plan will be added to the general funds of the
Company and used for general corporate purposes, including investments in its
subsidiaries.
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 8,407,507 shares
were issued and outstanding as of September 30, 1998. As of September 30, 1998,
the Company has agreed to keep reserved for issuance 263,725 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.
-15-
<PAGE> 18
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
indentures under which debentures of Elizabethtown are outstanding. At September
30, 1998, $7.58 million of Elizabethtown's retained earnings were restricted
under the most restrictive of these indenture provisions. Certain provisions in
a debt instrument of the Company could also have the indirect effect of
restricting dividend payments in the future.
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 New York
Stock Exchange. The Bank of New York is the Registrar and Transfer Agent for the
Common Stock of the Company. The Bank of New York may use its wholly owned
subsidiary, BNY Brokerage Inc., for trading activity relative to the Plan on
behalf of the Plan Participants. BNY Brokerage, Inc. will receive a commission
in connection with any such transactions it processes.
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 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."
-16-
<PAGE> 19
LEGAL MATTERS
The legality of the Common Stock offered hereby has been passed upon
for the Company by Walter M. Braswell, Esq., Secretary of the Company. As of
September 30, 1998, Mr. Braswell owned approximately 5,184 shares 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 have been audited by Deloitte & Touche LLP, 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.
INDEMNIFICATION
New Jersey law permits, and the Company's By-Laws provide, that the
Company shall, under certain circumstances, indemnify its directors and officers
against liabilities, including liabilities arising under the Securities Act of
1933 (the "Securities Act"). Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors or officers pursuant to
the Company's By-Laws, the Company has been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
-17-
<PAGE> 20
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................................ $5,868
New York Stock Exchange listing fee.......................................... 2,000
Costs of printing and engraving.............................................. 3,000
Legal fees and expenses...................................................... 8,500
Accounting fees and expenses................................................. 3,000
Miscellaneous expenses....................................................... 2,000
------
Total............................................................... $24,368
</TABLE>
-----------------------------
* All expenses except for the Securities and Exchange Commission
filing fee 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
<PAGE> 21
proceeding by judgment, order, settlement, conviction or upon plea of nolo
contendere or its equivalent does not of itself create a presumption that any
such corporate agent failed to meet the above applicable standards of conduct.
The indemnification provided by the Act does not exclude any rights to which a
corporate agent may be entitled under a certificate of incorporation, by-law,
agreement, vote of shareholders or otherwise. No indemnification, other than
that required when a corporate agent is successful on the merits or otherwise in
any of the above proceedings shall be allowed if such indemnification would be
inconsistent with a provision of the certificate of incorporation, a by-law or a
resolution of the board of directors or of the shareholders, an agreement or
other proper corporate action in effect at the time of the accrual of the
alleged cause of action which prohibits, limits or otherwise conditions the
exercise of indemnification powers by the corporation or the rights of
indemnification to which a corporate agent may be entitled.
The Company also has insurance policies which, among other things,
provide officers and directors liability coverage, individually and in the
aggregate up to a limit of $20 million for each loss within a 12-month period.
<PAGE> 22
ITEM 16. EXHIBITS.
Exhibit No. Description
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
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 (filed as Exhibit 4(d)
to Registration Statement No. 33-61386).*
4(e) - E'town Corporation Dividend Reinvestment and Stock
Purchase Plan (set forth in full in the Prospectus, to
which reference is hereby made)
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 LLP, Independent Auditors.
24 - Power of Attorney.
99 - Form of Enrollment Form (filed as "Authorization Form,"
Exhibit 99 to Registration Statement No. 33-67992).*
- -----------------
* Incorporated by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act; and
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent post-effective
amendment thereof) which, individually or in
<PAGE> 23
the aggregate, represent a fundamental change in the information set forth in
this registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the SEC by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act") that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 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.
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and this Registration Statement has
been 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 December, 1998.
E'TOWN CORPORATION
By:/s/ Gail P. Brady
Title: Treasurer (Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
*/s/Andrew M. Chapman President and Director December 21, 1998
- ------------------------- (Principal Executive Officer)
Andrew M. Chapman
/s/Gail P. Brady Treasurer December 21, 1998
- ------------------------- (Principal Financial Officer)
Gail P. Brady
*/s/Thomas J. Cawley Director December 21, 1998
- -------------------------
Thomas J. Cawley
*/s/Anthony S. Cicatiello Director December 21, 1998
- -------------------------
Anthony S. Cicatiello
*/s/Edward A. Clerico Director December 21, 1998
- -------------------------
Edward A. Clerico
*/s/Dennis Doll Controller (Principal Accounting December 21, 1998
- --------------- Officer)
Dennis Doll
*/s/Anne Evans Estabrook Director, Chairman of the Board December 21, 1998
- -------------------------
Anne Evans Estabrook
*/s/James W. Hughes Director December 21, 1998
- -------------------------
James W. Hughes
<PAGE> 25
*/s/John Kean Director December 21, 1998
- -------------------------
John Kean
*/s/Robert W. Kean, III Director December 21, 1998
- -----------------------
Robert W. Kean, III
*/s/Barry T. Parker Director December 21, 1998
- -------------------------
Barry T. Parker
*/s/Hugh M. Pfaltz Director December 21, 1998
- -------------------------
Hugh M. Pfaltz
*/s/Chester A. Ring Director December 21, 1998
- -------------------------
Chester A. Ring
*/s/Joan Verplanck Director December 21, 1998
- -------------------------
Joan Verplanck
*By /s/ Gail P. Brady, as attorney-in-fact
--------------------------------------
Gail P. Brady
<PAGE> 26
EXHIBIT INDEX
Exhibit No. Description
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.
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 (filed as Exhibit 4(d)
to Registration Statement No. 33-61386).*
4(e) - E'town Corporation Dividend Reinvestment and Stock
Purchase Plan (set forth in full in the Prospectus, to
which reference is hereby made).
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 LLP, Independent Auditors.
24 - Power of Attorney.
99 - Form of Enrollment Form (filed as "Authorization Form,"
Exhibit 99 to Registration Statement No. 33-67992).*
- -----------------
* Incorporated by reference.
<PAGE> 1
Exhibit 4(b)
E'TOWN CORPORATION
600 South Avenue
Westfield, New Jersey 07090
BY-LAWS
AS ADOPTED -- March 5, 1985;
REVISED -- June 18, 1987;
REVISED -- May 16, 1991;
REVISED -- September 17, 1992;
REVISED -- February 16, 1995;
REVISED -- February 20, 1997 (Effective May 15, 1997); and
REVISED -- July 16, 1998
<PAGE> 2
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. A meeting of the stockholders of the company
shall be held annually in the State of New Jersey at a location selected by the
Chairman and approved by the Board of Directors between the hours of eleven and
twelve o'clock in the forenoon, on the first Monday of May in each year, if not
a legal holiday, and if a legal holiday, then on the next succeeding Monday not
a legal holiday or at such other time and place during regular business hours as
may be fixed by the Board of Directors, for the purpose of electing directors
and for the transaction of such other business as may be properly brought before
the meeting.
Written notice of the Annual Meeting, stating the day, hour and place
thereof, and the business to be transacted thereat, shall be mailed at least 10
days prior to the meeting to each stockholder of record at his address as the
same appears on the stock books of the company. A failure to mail such notice,
or any irregularity in such notice, shall not affect the validity of any annual
meeting, or of any proceedings at any such meeting.
Section 2. Notice of Stockholder Business.
(1) At an annual meeting of the stockholders, only such business shall
be conducted as shall have been brought before the meeting (a) pursuant to the
company's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the company who is a stockholder of
record at the time of giving of the notice provided for in this By-law, who
shall be entitled to vote at such meeting and who complies with the notice
procedures set forth in this By-law.
(2) For business to be properly brought before an annual meeting by a
stockholder pursuant to clause (c) of paragraph 1 of this By-law, the
stockholder must have given timely notice thereof in writing to the Secretary of
the company. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal office of the company not less than 60 days nor
more than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the meeting is
changed by more than 30 days from such anniversary date, notice by the
stockholder to be timely must be received no later than the close of business on
the 10th day following the earlier of the day on which notice of the date of the
meeting was mailed or public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the meeting (a) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting,
(b) the name and address, as they appear on the company's books, of the
stockholder proposing such business, and the name and address of the beneficial
owner, if any, on whose behalf the proposal is made, (c) the class and number of
shares of the company which are owned beneficially and of record by such
stockholder of record and by the beneficial owner, if any, on whose behalf the
proposal is made, together with documentary support for any claim of beneficial
ownership, and (d) any material interest of such stockholder of record and the
beneficial owner, if any, on whose behalf the proposal is made in such business.
(3) Notwithstanding anything in these By-laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this By-law. The Chairman of
<PAGE> 3
the meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance with
the procedures prescribed by these By-laws, and if he should so determine, he
shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted. Notwithstanding the foregoing
provisions of this By-law, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder with respect to the matters set forth in this By-law.
Section 3. Special Meetings. Special meetings of the stockholders of
the company may be held in the State of New Jersey at a location selected by the
Chairman and approved by the Board of Directors, or at such other place as may
be fixed by the Board of Directors, whenever called in writing by the Chairman,
by a vote of the Board of Directors, or upon written request addressed to the
Secretary by stockholders holding at least forty per cent (40%) of the capital
stock. Such request shall state the purpose or purposes of the proposed meeting.
Written notice of each special meeting, stating the day, hour and place
thereof, and the business to be transacted thereat, shall be mailed at least 10
days prior to the meeting to each stockholder of record at his address as the
same appears on the stock books of the company. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
Section 4. Quorum. At any meeting of the stockholders the holders of
the majority of the capital stock issued and outstanding, present in person or
represented by proxy, shall constitute a quorum for all purposes.
If the holders of the amount of stock necessary to constitute a quorum
shall fail to attend in person or by proxy at the time and place fixed by these
By-laws for an annual meeting, or fixed by notice as above provided for a
special meeting, a majority in interest of the stockholders present in person or
by proxy may adjourn, from time to time, until holders of the amount of stock
requisite to constitute a quorum shall attend.
Section 5. Voting. At each meeting of the stockholders every
stockholder shall be entitled to vote in person, or by proxy appointed by
instrument in writing, subscribed by said stockholder or by his duly authorized
attorney, and delivered to the inspectors at the meeting; and each stockholder
shall have one vote for each share of capital stock having voting powers
standing registered in his name, but no share of capital stock shall be voted on
at any meeting which has been transferred on the books of the company subsequent
to the record date fixed by the Board of Directors.
All voting for election of Directors shall be by ballot.
At each meeting of the stockholders a full, true and complete list in
alphabetical order of all stockholders entitled to vote at such meeting, and
indicating the number of shares held by each, certified by the Secretary or by
the Treasurer, shall be furnished for the inspection of any stockholder for
reasonable periods during the meeting. Only the persons in whose names shares of
capital stock stand on the books of the company, as evidenced by the list of the
stockholders so furnished, shall be entitled to vote in person or by proxy on
the shares so standing in their names.
<PAGE> 4
Section 6. Inspectors. At each meeting of the stockholders the polls
shall be opened and closed, the proxies and ballots shall be received and taken
in charge, and all questions touching the qualifications of voters and the
validity of proxies and the acceptance or rejection of a voter, shall be decided
upon by one or more inspectors. The inspectors shall be appointed by the
Chairman of the meeting and the inspectors shall be sworn to faithfully perform
their duties, and shall, in writing, certify the returns showing the result of
the election or ballot. The inspectors may or may not be stockholders, but any
inspector may not be a candidate for the office of Director. In case of failure
to appoint inspectors, the stockholders at any meeting may elect an inspector or
inspectors to act at the meeting. The Board of Directors may also appoint one or
more inspectors to discharge the duties set forth above in respect of the
qualification and tabulation of written consents of stockholders without a
meeting.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Management of Company. The property, business, and affairs
of the company shall be managed and controlled by its Board of Directors.
The Directors shall act only as a board and the individual Directors
shall have no power as such.
Section 2. Number, Term of Office and Qualifications of Board. The
Board of Directors shall consist of twelve (12) persons, subject to change from
time to time by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption). Directors need not be
stockholders. No person who has reached age 72 shall stand for election or
re-election as a Director.
The term of office of the various Directors shall be as provided in
Article Fourth of the Corporation's Certificate of Incorporation.
Section 3. Nominations of Directors.
(1) Only persons who are nominated in accordance with the procedures
set forth in these By-laws shall be eligible to serve as Directors. Nominations
of persons for election to the Board of Directors of the company may be made at
a meeting of stockholders (a) by or at the direction of the Board of Directors
or (b) by any stockholder of the company who is a stockholder of record at the
time of giving of notice provided for in this By-law, who shall be entitled to
vote for the election of Directors at the meeting and who complies with the
notice procedures set forth in this By- law.
(2) Nominations by stockholders shall be made pursuant to timely notice
in writing to the Secretary. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal office of the company (a)
in the case of an annual meeting, not less than 60 days nor more than 90 days
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is changed by
more than 30 days from such anniversary date, notice by the stockholder to be
timely must be so received not later than the close of business on
<PAGE> 5
the 10th day following the earlier of the day on which notice of the date of the
meeting was mailed or public disclosure was made, and (b) in the case of a
special meeting at which Directors are to be elected, not later than the close
of business on the 10th day following the earlier of the day on which notice of
the date of the meeting was mailed or public disclosure was made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a Director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of Directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a Director if elected); (b) as to the stockholder
giving the notice (i) the name and address, as they appear on the company's
books, of such stockholder and (ii) the class and number of shares of the
company which are beneficially owned by such stockholder and also which are
owned of record by such stockholder; and (c) as to the beneficial owner, if any,
on whose behalf the nomination is made, (i) the name and address of such person,
(ii) the class and number of shares of the company which are beneficially owned
by such person, and (iii) documentary support for such claim of beneficial
ownership. At the request of the Board of Directors, any person nominated by the
Board of Directors for election as a Director shall furnish to the Secretary
that information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee.
(3) Except as provided in Section 4 of this Article II, no person shall
be eligible to serve as a Director of the company unless nominated in accordance
with the procedures set forth in this By-law. The Chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by these By-laws, and if
he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded. Notwithstanding the foregoing provisions of
this By-law, a stockholder shall also comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this By-law.
Section 4. Vacancies. Whenever any vacancy shall occur in the Board,
including a vacancy caused by an increase in the number of Directors, it may be
filled by a majority of the remaining Directors, even though less than a quorum.
Section 5. Place of Meeting. The Directors may hold their meetings, and
keep the books of the company at the office of the company in Westfield, New
Jersey, or at such other place or places as the Board from time to time may
lawfully determine.
Section 6. Regular Meetings. Regular meetings of the Board of Directors
shall be held monthly on the third Thursday of each month, if not a legal
holiday, and if a legal holiday, then on the next succeeding Thursday not a
legal holiday (or at such other time as may be fixed by the Board of Directors).
No notice shall be required for any such regular meetings of the Board.
Section 7. Special Meetings. Special meetings of the Board of Directors
shall be held whenever called by the Chairman, President, or by not less than
one-third of the Directors for the time being in office.
<PAGE> 6
The Secretary shall give notice of each special meeting by mailing the
same at least two days before the meeting or by telegraphing the same at least
one day before the meeting to each Director, but such notice may be waived by
any Director. At any time at which every Director shall be present, even though
without notice, any business may be transacted.
Section 8. Quorum. A majority of the Board of Directors for the time
being in office shall constitute a quorum for the transaction of business, but
if at any meeting of the Board there be less than a quorum present a majority of
those present may adjourn the meeting from time to time until a quorum shall be
present.
Section 9. Committees. The Board of Directors may delegate, from time
to time, to suitable committees any duties that are required to be executed
during the intervals between the meetings of the Board, and such committee shall
report to the Board of Directors when and as required.
Section 10. Designation of Depositories. The Board of Directors shall
designate the trust company, or trust companies, bank or banks in which shall be
deposited the money or securities of the company.
Section 11. Contracts with Directors, etc. Inasmuch as the Directors of
this company are or may be persons of large and diversified business interest,
and are likely to be connected with other corporations with which from time to
time this company must have business dealings, no material contract or other
transaction between this company and any other corporation shall be affected by
the fact that Directors of this company are interested in, or are Directors or
Officers of, such other corporation.
The Board of Directors in its discretion may submit any contract or act
for approval or ratification at any annual meeting of the stockholders, or at
any meeting of the stockholders called for the purpose of considering any such
act or contract; and any contract or act that shall be approved or be ratified
by the vote of the holders of a majority of the capital stock of the company
which is represented in person or by proxy at such meeting (provided that a
lawful quorum of stockholders be there represented in person or by proxy) shall
be valid and as binding upon the company and upon all the stockholders as though
it had been approved or ratified by every stockholder of the company.
Section 12. Compensation of Directors. For attendance at any meeting of
the Board of Directors or participation in such meeting as provided in Section
13 hereof, every Director may receive reasonable Director's fees to be fixed by
the Board for attendance at each meeting. The Board may provide for the payments
to committee members of reasonable fees for attendance at a meeting of a
committee.
Section 13. Compensation of Officers and Employees. The compensation of
all Officers shall be fixed by the Board of Directors and of all employees not
mentioned in these By-laws by the Officer or Officers so authorized by the Board
of Directors.
Section 14. Telephone Meetings. Any regular or special meeting of the
Board or any committee may be held entirely or partially by telephone conference
call or similar communication equipment provided that all members of the Board
or any committee are able to hear each other at one time.
<PAGE> 7
ARTICLE III
OFFICERS
Section 1. Enumeration of, Election, Removal of. The Officers of the
company shall be a Chairman, President, Secretary, Treasurer, and such other
Officers as shall from time to time be provided for by the Board of Directors.
The Chairman and President shall be Directors of the company and any one person
may hold any two or more of the offices enumerated above, as the Board of
Directors may provide. The Officers of the company shall be appointed at the
first meeting of the Board of Directors after the annual election of Director's,
which may be on the day of the annual election, and they shall hold office for
one year, and until their respective successors shall have been duly appointed
and qualified, provided, however, that all Officers, agents and employees of the
company shall be subject to removal at any time by the affirmative vote of a
majority of the whole Board of Directors. In its discretion, the Board of
Directors, by a vote of the majority thereof, may leave unfilled for such period
as it may fix by resolution any office.
Section 2. Powers and Duties of Chairman. The Chairman shall preside at
all meetings of the stockholders and the Board of Directors. He shall have
general charge and supervision of the business of the company. He may sign and
execute all authorized bonds, debentures, contracts, notes or obligations in the
name of the company, and with the Treasurer, and Assistant Treasurer, or
Secretary, or Assistant Secretary, may sign all certificates of the share in the
capital stock of the company. He shall from time to time make such reports of
the affairs of the company as the Board of Directors may require and shall
annually present a report of the preceding year's business to the Board of
Directors, which report may be read at the annual meeting of the stockholders.
He shall do and perform such other duties as may be from time to time assigned
to him by the Board of Directors.
Section 3. Powers and Duties of President. The President shall possess
the powers and may perform the duties of the Chairman in his absence or
disability. He shall have charge of the general management of the company under
the supervision of the Chairman. He may sign and execute all authorized bonds,
debentures, contracts, and with the Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary, may sign all certificates of the shares of the capital
stock of the company. He shall do and perform such other duties as may be from
time to time assigned to him by the Board of Directors.
Section 4. Powers and Duties of Secretary. The Secretary shall keep the
minutes of all meetings of the stockholders and all meetings of the Board of
Directors. He shall attend to the giving and service of all notices of the
company; he may sign with the Chairman, President, Executive Vice President or
Vice President in the name of the company all contracts authorized by the Board
of Directors and when required by the Board of Directors, or permitted by these
By-laws he shall affix the seal of the company thereto; he shall have charge of
all books and papers as the Board of Directors may direct, all of which shall,
at all reasonable times, be open to the examination of any Director, upon
application at the office of the company during business hours; he may sign with
the Chairman, President, Executive Vice President or a Vice President, all
certificates of shares of capital stock; he shall in general perform all of the
duties incident to the office of the Secretary, subject to the control of the
Board of Directors and shall do and perform such other duties as may from time
to time be assigned to him by the Board of Directors.
<PAGE> 8
Section 5. Powers and Duties of Treasurer. The Treasurer shall have
custody of all funds and securities of the company; when necessary or proper, he
shall endorse on behalf of the company for collection, checks, notes and other
obligations, and shall deposit the same to the credit of the company in such
bank, or banks, or depository as the Board of Directors may designate; he shall
execute jointly with such other Officer as may be designated by By-law or by
resolution of the Board of Directors, all bills of exchange and promissory notes
of the company; he may sign with the Chairman, President, Executive Vice
President, or a Vice President, all certificates of shares in capital stock;
whenever required by the Board of Directors, he shall render a statement of his
cash account; he shall regularly in books of the company to be kept by him for
the purpose, keep a full and accurate amount of all moneys received and paid by
him on account of the company; he shall, at all reasonable times, exhibit his
books and accounts to any Director of the company upon application at the office
of the company during business hours; he shall perform all acts incident to the
position of Treasurer, subject to the control of the Board of Directors; and he
shall have such other powers and he shall perform such other duties as may be
assigned to him by the Board of Directors, from time to time. He shall give bond
for the faithful performance of his duties as Treasurer as the Board of
Directors may direct.
Section 6. Indemnification of Directors and Officers. 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 Officer, Director or trustee is finally adjudged to have
been derelict in the performance of his duties as Director, Officer or trustee.
If any 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.
ARTICLE IV
CAPITAL STOCK
Section 1. Certificate of Shares. Each holder of capital stock of the
company shall be entitled to a stock certificate signed by the Chairman,
President, or a Vice President and either the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, certifying the number of
shares owned by him in the company. However, when the certificate is signed by
the transfer agent, or an assistant transfer agent, or by a transfer clerk on
behalf of the company and a registrar, the signature of the Chairman, President,
Vice President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary
may be facsimiles.
<PAGE> 9
All certificates shall be consecutively numbered. The name of the
person owning the shares represented thereby, with the number of such shares and
the date of issue, shall be entered in the company's books.
No certificate shall be valid unless it is signed as provided above in
this Section 1 of Article IV of the By-laws.
All certificates surrendered to the company shall be canceled, and no
new certificate shall be issued until the former certificate shall have been
surrendered and canceled, or such proof that the certificate has been lost,
damaged or destroyed as the Board of Directors may require and in such event a
new certificate may be issued, but the Board of Directors may require such
security as they deem appropriate.
Section 2. Transfer of Shares. Shares in the capital stock of the
company shall be transferred on the books of the company by the holder thereof
in person, or by his attorney, upon surrender and cancellation of certificates
for a like number of shares.
Section 3. Rules and Regulations as to Issue, Transfer and Registration
of Shares of Stock. The Board of Directors shall have power and authority to
make all such rules and regulations as they deem expedient concerning the issue,
transfer and registration of certificates for shares of the capital stock of the
company. The Board of Directors may appoint a transfer agent and registrar of
transfers, and require all stock certificates to bear the signature of such
transfer agent and of such registrar of transfers.
Section 4. Closing of Transfer Books. The stock transfer books may be
closed for the meetings of the stockholders, and for the payment of dividends,
during such periods as from time to time may be fixed by the Board of Directors,
and during such periods no stock shall be transferable.
Section 5. Fixing Date for Determination of Stockholders' Rights. (1)
The Board of Directors is authorized from time to time to fix in advance a date
as a record date for the determination of the stockholders entitled to notice of
and to vote at any meeting of stockholders, or with regard to any other
corporate action or event, as provided in the New Jersey Business Corporation
Act, and in such case only stockholders of record on the date so fixed shall be
entitled to such notice of and to vote at any such meeting, or to participate in
or otherwise be included with respect to any other corporate action or event,
and notwithstanding any transfer of any stock on the books of the company after
any such record date fixed as aforesaid. Any record date for determining
stockholders entitled to give a written consent to any action without a meeting
shall be fixed as provided in paragraph (2) of this By-law.
(2) The Board of Directors may fix a record date for determining the
stockholders entitled to consent to corporate action in writing without a
meeting and may also fix a date for tabulation of consents. Such record date
shall not be more than 60 days before the date fixed for tabulation of the
consents or, if no date has been fixed for tabulation, more than 60 days before
the last day on which consents received may be counted as provided by the New
Jersey Business Corporation Act. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent shall, by
written notice to the Secretary, request the Board of Directors to fix a record
date and a date for tabulation of consents. If no record date has been fixed by
<PAGE> 10
resolution of the Board of Directors within 10 days of the date on which such a
request is received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by applicable law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the company by delivery to its principal place of
business to the attention of the Secretary. Delivery shall be by hand or by
certified or registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board of Directors
is required by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the date on which the Board of Directors adopts the
resolution taking such prior action. If no date for the tabulation of consents
has been fixed by the Board of Directors within 10 days of the date on which the
request described above is received, such tabulation shall be the 55th day after
the record date fixed by the Board of Directors (or otherwise established)
pursuant to this By-law; provided, however, that if such day falls on a
Saturday, Sunday or legal holiday, the tabulation date shall be the next
following day which is not a Saturday, Sunday or legal holiday.
(3) In the event of the delivery to the company of a written consent or
consents purporting to authorize or take corporate action and/or related
revocations (each such written consent and related revocation is referred to in
this paragraph as a "Consent"), the Secretary shall provide for the safekeeping
of such Consent and shall conduct such reasonable investigation as such Officer
deems necessary or appropriate for the purpose of ascertaining the validity of
such Consent and all matters incident thereto, including, without limitation,
whether the holders of shares having the requisite voting power to authorize or
take the action specified in the Consent have given consent and whether the
corporate action purported to be authorized or taken may legally be taken by the
stockholders of the company; provided, however, that if the Board of Directors
designates one or more inspectors in connection with such matters as provided in
Article I, Section 6 of these By-laws, such inspectors shall discharge the
functions of the Secretary under this paragraph. Notwithstanding any tabulation
of consents or investigation as described above, the Consent shall not become
effective as stockholder action until (i) all requirements for notice to
non-consenting stockholders prescribed by the New Jersey Business Corporation
Action are met, and (ii) the final termination of any proceedings which may have
been commenced in any court of competent jurisdiction for an adjudication of any
legal issue incident to determining the validity of the Consent has occurred,
unless such court shall have determined that such proceedings are not being
pursued expeditiously and in good faith. In conducting the investigation
required by this paragraph, the Secretary or the inspectors (as the case may be)
may, at the expense of the company, retain special legal counsel and any other
necessary or appropriate professional advisors, and such other personnel as they
may deem necessary or appropriate, to assist them.
ARTICLE V
DIVIDENDS
Section 1. Dividends. Dividends may be declared by the Board of
Directors from time to time as may be permitted by the laws of the State of New
Jersey, and shall be payable at such times as the Board may determine.
<PAGE> 11
ARTICLE VI
CHECKS, NOTES, CONTRACTS, ETC.
Section 1. Checks and Notes. Payment shall be made by checks or check
voucher, all of which shall be signed by the Chairman, or President and the
Treasurer or Assistant Treasurer, or by any two Officers of the company as the
Board of Directors may from time to time direct, except that the Board of
Directors may provide by resolution for special subsidiary checking accounts and
their manner of operation for payroll, dividend and other purposes. Bills
receivable, drafts and other evidence of indebtedness to the company, shall be
endorsed for the purpose of discount or collection by the Treasurer or Assistant
Treasurer, or such other Officer or Officers of the company as the Board of
Directors may from time to time by resolution designate. No bills or notes or
other evidence of indebtedness shall be executed by or on behalf of the company
unless the Board of Directors shall authorize the same. Such authority may be
general or confined to specific instances.
Section 2. Contracts and Instruments. The Board of Directors may
authorize any Officer or Officers, agent or agents, to enter into any contract
or execute and deliver any conveyance or instrument in the name of and on behalf
of the company, and such authority may be general or confined to specific
instances.
When the execution of any contract, conveyance or other instrument has
been authorized without specification of the executing Officers, the Chairman,
President, Secretary or Treasurer may execute the same in the name and behalf of
the company and may affix the corporate seal and attest thereto, unless
otherwise directed or required by the Board of Directors, or required by law.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1. Fiscal Year. The fiscal year of the company shall begin on
the first day of January in each and every year, and all accounts shall be
brought up to the close of the year.
Section 2. Principal Office. The principal office of this company shall
be at 600 South Avenue, Westfield, New Jersey, but the Board of Directors may at
any regular or special meeting change the place of such office, upon the
adoption of a resolution providing therefor by the votes of at least two-thirds
of its members.
This company may have other offices at such places as the Board of
Directors shall designate and the business of this company may require.
Section 3. Officers' Voting Stock. The Chairman, President, or a Vice
President, shall have full power and authority on behalf of this company to
attend and act, and to vote in person or by proxy at any meeting of stockholders
of any corporation in which this corporation may own and hold stock, and at any
such meeting shall possess and may exercise any and all rights and powers
incident to the
<PAGE> 12
ownership of such stock and which, as the owner thereof, the company might have
possessed and exercised if present. The Board of Directors, by resolution, from
time to time, may confer like powers upon any person or persons.
ARTICLE VIII
CORPORATE SEAL
Section 1. The corporate seal of this company shall be as shown by the
following impression:
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 1. These by-laws may be amended, altered or repealed by the
Board of Directors.
<PAGE> 1
Exhibit 5
E'TOWN CORPORATION
600 South Avenue
Westfield, New Jersey 07090
December 21, 1998
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 from time to time of up to 500,000
additional shares of Common Stock, without par value (the "Additional Common
Stock"), of the Company pursuant to the Company's Dividend Reinvestment and
Stock Purchase Plan (the "Plan"). 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 Additional 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 Additional 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 and (ii) the Additional
Common Stock shall have been issued and delivered against payment therefor as
contemplated in the Plan, the Additional Common Stock will be legally 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. In giving this consent, I do not admit that I am
within the category of persons whose consent is required under Section 7 of the
Securities Act or the rule and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Walter M. Braswell
----------------------
<PAGE> 1
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 reports dated February 18, 1998, except
for Note 11, as to which the date is March 6, 1998, appearing in and
incorporated by reference in the Annual Report on Form 10-K of E'town
Corporation for the year ended December 31, 1997 and to the reference to us
under the heading "experts" in this Registration Statement.
Deloitte & Touche LLP
Parsippany, NJ 07054-0319
December 17, 1998
<PAGE> 1
Exhibit 24
E'town Corporation and each of the directors and/or officers of E'town
Corporation whose signatures appear below do hereby appoint Gail P. Brady 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 500,000 shares of E'town Corporation common stock without par value for
E'town Corporation's Dividend Reinvestment And Stock Purchase Plan, 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. Said
attorney-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 29th day of October 1998.
/s/ Andrew M. Chapman
/s/ Thomas J. Cawley
/s/ Anthony S. Cicatiello
/s/ Edward A. Clerico
/s/ Anne Evans Estabrook
/s/ James W. Hughes
/s/ John Kean
/s/ Robert W. Kean, III
/s/ Barry T. Parker
/s/ Hugh M. Pfaltz
/s/ Chester A. Ring
/s/ Joan Verplanck
