-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, M6nPaqMnHiSs5aUqZ3yzCvHXKA2ZgheTwvjScwK9x18NNvdjwBWx0wekLSeaOh9e tUqf96l+NnJDmQEcyHPjNw== 0000896058-94-000042.txt : 19940425 0000896058-94-000042.hdr.sgml : 19940425 ACCESSION NUMBER: 0000896058-94-000042 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19940422 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ETOWN CORP CENTRAL INDEX KEY: 0000764403 STANDARD INDUSTRIAL CLASSIFICATION: 4941 IRS NUMBER: 222596330 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-53245 FILM NUMBER: 94523965 BUSINESS ADDRESS: STREET 1: 600 SOUTH AVE STREET 2: P O BOX 788 CITY: WESTFIELD STATE: NJ ZIP: 07090 BUSINESS PHONE: 9086541234 MAIL ADDRESS: STREET 1: P O BOX 788 STREET 2: C/O E'TOWN CORP CITY: WESTFIELD STATE: NJ ZIP: 07091 S-3 1 FORM S-3 REGISTRATION STATEMENT As Filed with the Securities and Exchange Commission on April 22, 1994 Registration No. 33-______ ============================================================================= SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form S-3 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 ------------------ E'TOWN CORPORATION (Exact name of registrant as specified in its charter) New Jersey 22-2596330 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 600 SOUTH AVENUE WESTFIELD, NEW JERSEY 07091-0788 908-654-1234 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ----------------- ANDREW M. CHAPMAN Chief Financial Officer and Treasurer E'town Corporation 600 South Avenue Westfield, New Jersey 07091-0788 908-654-1234 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------------------- Copies to: DAVID P. FALCK, ESQ. BART J. COLLI, ESQ. Winthrop, Stimson, Putnam & Roberts McCarter & English One Battery Park Plaza Four Gateway Center New York, New York 10004-1490 100 Mulberry Street Newark, New Jersey 07102-4096 Approximate date of commencement of proposed sale to the public: As soon as practicable after the Registration Statement becomes effective. -------------------------- If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. / / _______________________________ CALCULATION OF REGISTRATION FEE Proposed Proposed Title of each maximum maximum class of securities Amount to be offering aggregate Amount of to be registered registered price offering registration per unit price fee Common Stock, without par value . . 690,000 $28.875 $19,923,750 $6,870.25 [FN] Includes 90,000 shares issuable upon the exercise of the Underwriters' option to purchase shares solely to cover over-allotments, if any. Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act of 1933 based on the average of the reported high and low sales of the Common Stock reported on the New York Stock Exchange on April 19, 1994. This Registration Statement also pertains to Rights to purchase 1/100th of one share of Common Stock of the Registrant (the "Rights"). Until the occurrence of certain prescribed events the Rights are not exercisable, are evidenced by the certificates for E'town Corporation Common Stock and will be transferred only with such securities. ------------------------------- The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. ============================================================================= INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF ANY OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH JURISDICTION. SUBJECT TO COMPLETION, DATED APRIL 22, 1994 600,000 Shares E'TOWN CORPORATION Common Stock (Without Par Value) _______________ The common stock of the Company (the "Common Stock") is traded on the New York Stock Exchange ("NYSE") under the symbol "ETW". On April 21, 1994, the last sale price for the Company's Common Stock was $29.00 per share. __________________ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMIS- SION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. Underwriting Price to Discounts and Proceeds to Public Commissions Company Per Share . . . . . . Total . . . . . [FN] The Company has agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933. See "Underwriting". Before deducting expenses payable by the Company estimated to be $132,000. The Company has granted to the Underwriters a 30-day option to purchase up to 90,000 additional shares of Common Stock to cover over-allotments, if any. See "Underwriting". If such option is exercised in full, the total Price to Public, Underwriting Discounts and Commissions, and Proceeds to Company will be $ , $ and $ , respectively. _____________________ The shares of Common Stock are offered by the Underwriters named below, subject to receipt and acceptance by them and their right to reject any order in whole or in part. It is expected that delivery of the shares will be made at the offices of Kidder, Peabody & Co. Incorporated, New York, New York on or about , 1994. _____________________ Kidder, Peabody & Co. A.G. Edwards & Sons, Inc. Incorporated The date of this Prospectus is , 1994. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OF THE COMPANY AT LEVELS ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. ______________ AVAILABLE INFORMATION E'town Corporation ("E'town" or the "Company") is subject to the informational requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information concerning the Company can be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549; Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60604; and in the Public Reference Room, 14th Floor, Seven World Trade Center, New York, New York 10048. Copies of such materials can be obtained from the Public Reference Section of the Commission at its principal office at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition, material filed by the Company can be inspected at the offices of the NYSE, 20 Broad Street, New York, New York 10005. The Company has filed with the Commission a Registration Statement on Form S-3 with respect to the offering made hereby. This Prospectus does not contain all of the information set forth in the Registration Statement and the exhibits thereto. Copies of the Registration Statement and the exhibits thereto may be inspected without charge at offices of the Commission, and copies of all or any portion thereof may be obtained from the Commission upon payment of the prescribed fees. ______________ INCORPORATION OF CERTAIN INFORMATION BY REFERENCE The following documents filed by the Company with the Commission are incorporated by reference into this Prospectus and made a part hereof as of their respective dates: 1. The Company's Annual Report on Form 10-K for the year ended December 31, 1993 (excluding the Board of Directors' Compensation Committee Report on Executive Compensation and the Performance Graph contained on pages 8-10 of the definitive Proxy Statement of the Company dated March 30, 1994 incorporated in such Form 10-K by reference). 2. The description of the Company's common stock purchase rights contained in the Company's Registration Statement on Form 8-A, dated February 4, 1991. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to the termination of this offering shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. The documents described above are hereinafter referred to as "Incorporated Documents." Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The information relating to the Company contained in this Prospectus summarizes, is based upon, or refers to, information and financial statements contained in one or more of the Incorporated Documents; accordingly, such information contained herein is qualified in its entirety by reference to such Incorporated Documents and should be read in conjunction therewith. The Company undertakes to provide without charge to each person to whom a copy of this Prospectus has been delivered, on the written or oral request of any such person, a copy of any of the documents referred to above which have been incorporated in this Prospectus by reference other than exhibits to such document (unless such exhibits are specifically incorporated by reference into such document). Requests for such copies should be directed to: Andrew M. Chapman, Chief Financial Officer and Treasurer, E'town Corporation, 600 South Avenue, Westfield, New Jersey 07091-0788; Telephone: (908) 654-1234. -2- PROSPECTUS SUMMARY The following summary is qualified in its entirety by reference to the more detailed information and financial statements (including notes) which appear elsewhere in this Prospectus and in the documents incorporated herein by reference. Unless the context otherwise requires, the information contained in this Prospectus assumes that the Underwriters' over-allotment option is not exercised. The Company E'town is the parent company of Elizabethtown Water Company ("Elizabethtown"), a regulated public utility providing water service in central New Jersey and E'town Properties, Inc. ("Properties"), a non- regulated subsidiary which, together with E'town, owns undeveloped land in New Jersey. Elizabethtown serves a retail franchise area with a population of about 560,000 and also provides, on a wholesale basis, a portion of the water requirements of eight municipal systems and three investor-owned water companies. At December 31, 1992, Elizabethtown, together with its subsidiary, The Mount Holly Water Company ("Mount Holly"), was the sixth largest investor-owned water utility in the United States, based on gallons of water pumped annually. Real estate parcels owned by Properties and E'town, totalling about 740 acres, are either held for sale or are in the process of being zoned and permitted with a view to future sale. Elizabethtown expects to invest about $200 million in its core utility business during the 1994-1996 period. This amount includes $100 million for construction of the Canal Road Water Treatment Plant (the "Plant"). The Plant, which is scheduled to be completed in 1996, is necessary to replace groundwater supplies withdrawn from service and to meet customer demands which are expected to continue to grow. In August 1993, the New Jersey Board of Regulatory Commissioners (the "BRC") approved an agreement among the principal participants in Elizabethtown's rate cases (the "1993 Plant Stipulation"), affirming that the Plant is necessary and that Elizabethtown's estimates, at that time, of its cost and construction period, were reasonable. The 1993 Plant Stipulation also allows Elizabethtown, under certain circumstances, to levy a rate surcharge during the Plant's construction period. Elizabethtown expects to execute shortly a revolving credit agreement with six banks to provide $60 million in short-term financing which, together with internal funds, proceeds of future issuances of debt and preferred stock, and capital contributions from E'town, is expected to be sufficient to finance Elizabethtown's capital needs, including the Plant. Due primarily to Elizabethtown's ongoing capital program, including the Plant, Elizabethtown intends to file for rate relief later in 1994 and regularly thereafter. See "Recent Development" and "Construction Program and Regulatory Issues". The Offering Issuer . . . . . . . . . . . . . E'town Corporation Securities Offered . . . . . . . 600,000 shares of Common Stock, without par value Shares to be Outstanding after the Offering (as of April 21, 1994) . . . . . . . . . . . . 6,300,712 shares NYSE Symbol . . . . . . . . . . . ETW Latest 12-Month Closing Price Range (through April 21, 1994) . $28.75 per share to $35.75 per share Indicated Annual Dividend per share of Common Stock . . . $2.04. See "Common Stock Price Range and Dividends". Use of Proceeds . . . . . . . . . To make an equity contribution of approximately $16 million to Elizabethtown (which will fund future construction) and to fund working capital for the Company. See "Use of Proceeds". - ----------------------- [FN] Includes associated common stock purchase rights as described under "Description of Common Stock". Management expects to recommend to the Board of Directors at its meeting on May 19, 1994 the declaration of a cash dividend of $.51 per share payable on June 30, 1994 to holders of record on June 16, 1994. Purchasers of shares offered hereby who are holders of record on such date will be entitled to receive this dividend, if declared. -3- Summary Consolidated Financial Information (Dollars in thousands, except per share data) 12 Months Ended Year Ended December 31, March 31, ------------------------ ----------------- 1991 1992 1993 1993 1994 ---- ---- -------- ---- -------- Income Statement Data: Operating Revenues . . . . . . . $86,086 $89,167 $99,996 $90,500 $102,518 Operating Expenses . . . . . . . 64,138 67,115 67,970 74,661 77,027 Net Income . . . . . . . . . . . 10,231 10,344 9,485 13,830 14,287 Earnings per Share of Common Stock: Primary . . . . . . . . . . . 2.32 2.21 2.59 2.15 2.58 Fully Diluted . . . . . . . . 2.28 2.18 2.54 2.13 2.54 Dividends per Share of Common Stock . . . . . . . . . . . . . $2.00 $2.00 $2.01 $2.00 $2.02 Average Primary Number of Shares of Common Stock Outstanding (000) 4,080 4,628 5,338 4,800 5,532 Other Data: Other Data: Common Equity as a Percentage of Total Capitalization . . . . . 31.8% 37.2% 43.5% 37.3% 43.8% Book Value per Share of Common Stock . . . . . . . . . . . . . $20.21 $21.14 $21.14 $22.76 $22.77 Number of Metered Customers . . . 182,019 185,028 188,677 185,484 189,304 March 31, 1994 -------------------------------------- Actual As Adjusted Outstanding Ratio Outstanding Ratio Capitalization: ----------- ------- ----------- ----- Long-term Debt-net . . . . . . $154,385 52.1% $154,385 49.4% Cumulative Preferred Stock- Redeemable . . . . . . . . . . 12,000 4.1% 12,000 3.8% Common Shareholders' Equity . . 129,795 43.8% 146,323 46.8% ------- ---- ------- ---- Total Capitalization . . $296,180 100.0% $312,708 100.0% ======== ====== ======== ===== _____________________________ [FN] Net income for 1993 and the 12 months ended March 31, 1994 exceeded net income for the prior year and 12-month period because of higher levels of outdoor water use due to abnormally hot and dry summer weather, the gain from a sale of land and the combined effect of rate increases effective March, 1992 and 1993. The percentage increases in earnings per share for these periods were less than the percentage increases in net income because of the additional shares issued in 1993. Management estimates that above normal water usage contributed approximately $1.8 million to net income or $.34 to earnings per share. The land sale generated a gain of $1.1 million or $.21 per share. Accordingly, management does not regard these results of operations to be indicative of 1994 financial performance. As adjusted to reflect the sale of the Common Stock offered hereby for estimated net proceeds of $16,528,000, as described under "Use of Proceeds". -4- MAP [See narrative description of Map contained in Appendix A.] -5- THE COMPANY The Company, a New Jersey corporation, is a holding company whose principal subsidiary, Elizabethtown, is a regulated water utility, one of whose corporate predecessors was first incorporated in 1854. The Company was formed in 1985 to become the holding company for Elizabethtown pursuant to a reorganization approved by Elizabethtown's stockholders and the BRC. Mount Holly is a wholly-owned subsidiary of Elizabethtown. E'town and its non- regulated subsidiary, Properties, currently own approximately 740 acres of land in New Jersey which are either held for sale or are in the process of being zoned and permitted with a view to future sale. The Company has no plans to acquire additional real estate. Elizabethtown and Mount Holly are engaged in the treatment and distribution of water for domestic, commercial, industrial and fire protection purposes and for resale to municipal systems and other investor- owned water companies. Throughout their central New Jersey service area, Elizabethtown and Mount Holly serve a population of approximately 560,000 at retail and provide, on a wholesale basis, a portion of the water requirements of eight municipal entities and three investor-owned water utilities. All of the Company's consolidated revenues are currently contributed by the Company's water utility business. At December 31, 1992, Elizabethtown, together with Mount Holly, was the sixth largest investor-owned water utility in the United States, based on gallons of water pumped annually. Elizabethtown and Mount Holly are subject to regulation by the BRC with respect to rates and service, the issuance and sale of securities, classification of accounts, mergers, and other matters. Elizabethtown and Mount Holly periodically seek rate relief to cover the cost of increased operating expenses, increases in financing expenses due to additional investments in utility plant, and other costs of doing business. Because Elizabethtown expects its rate base to grow more quickly than pumpage over the next several years, Elizabethtown anticipates filing for a rate increase in 1994, and regularly thereafter, so that it may have the opportunity to realize satisfactory returns on equity. Adequate equity returns will be necessary for E'town and Elizabethtown to continue to attract external capital to finance improvements necessary to maintain safe and adequate service. Future earnings of Elizabethtown and, in turn, the Company will be primarily affected by weather and customer usage, the magnitude and timing of capital expenditures, the rate of growth of revenues and expenses, and the adequacy and timeliness of regulatory relief. The Company's executive offices are located at 600 South Avenue, Westfield, New Jersey 07091-0788. Its telephone number is (908) 654-1234. RECENT DEVELOPMENT Elizabethtown expects to execute shortly a revolving credit agreement with an agent bank and five additional participating banks to replace its existing uncommitted lines of credit. The agreement provides up to $60 million in revolving short-term financing which, together with internal funds, proceeds of future issuances of debt and preferred stock, and capital contributions from E'town, is expected to be sufficient to finance Elizabethtown's capital needs, including the Plant. The agreement will allow Elizabethtown to borrow, repay and reborrow up to $60 million for the first three years, after which time Elizabethtown may convert any outstanding balances to a five-year fully amortizing term loan. The agreement will further provide that, among other covenants, Elizabethtown must maintain a ratio of -6- common and preferred equity to total capitalization of not less than 35% and a pre-tax interest coverage ratio of at least 1.5 to 1. USE OF PROCEEDS The net proceeds to the Company from the sale of the Common Stock offered hereby, estimated to be $16,528,000, will be used to fund an equity contribution of approximately $16,000,000 to Elizabethtown. Elizabethtown will invest this equity contribution on a temporary basis until needed for future construction expenditures. The balance of the proceeds from the sale of the Common Stock offered hereby will be used to fund working capital requirements of the Company. CONSTRUCTION PROGRAM AND REGULATORY ISSUES Capital expenditures, primarily for water utility plant, were $32.7 million for 1993 and $94.2 million for the three-year period ended December 31, 1993. Capital expenditures for the three-year period ending December 31, 1996 are estimated to be $196.9 million (excluding an Allowance for Funds Used During Construction ("AFUDC")), of which $196.5 million is for water utility plant and $.4 million is for real estate-related expenditures. Elizabethtown's construction program includes additional mains and storage facilities necessary to serve customers who were added during the last several years. In addition, Elizabethtown anticipates upgrading its existing surface water treatment plant by rehabilitating certain components and adding facilities designed to maximize its capacity. These projects are designed to ensure the plant's compliance with proposed water quality and other environmental regulations. Elizabethtown's estimated capital expenditures through 1996 include $100 million, excluding AFUDC, for construction of the Plant. The Plant, which is scheduled to be completed in 1996 and which will have a rated production capacity of 40 million gallons per day, is necessary to meet existing and anticipated customer demands and to replace groundwater supplies withdrawn from service as a result of more restrictive water quality regulations and groundwater contamination. In August 1993, the BRC approved the 1993 Plant Stipulation signed by the principal participants in Elizabethtown's rate cases. The 1993 Plant Stipulation states that the Plant is necessary and that the Company's estimate regarding the Plant's cost, at that time of $87 million, and construction period are reasonable. The 1993 Plant Stipulation authorizes Elizabethtown to levy a rate surcharge during the Plant's construction period if its pre-tax interest coverage ratio for any 12-month historical period drops below 2.0 times. The surcharge would equal 20% of Elizabethtown's gross interest expense for the prior 12 months, adjusted for revenue taxes. The surcharge would go into effect at the same time as Elizabethtown's next base rate increase after the coverage ratio falls below 2.0 times, but in no event prior to January 1, 1995. Also, the surcharge would remain in effect for 12 months and could be extended by the BRC for up to six additional months. The 1993 Plant Stipulation also provides that the rate of return on common stockholder's equity used to calculate the rate for the equity component of the AFUDC for the Plant will be 1.5% less than the rate of return on common stockholder's equity established in Elizabethtown's most recent base rate case. The authorized rate of return on common stockholder's equity is currently 11.5%. -7- Elizabethtown has solicited bids from general contractors for the construction of the Plant. The estimated cost of the Plant, as of March 23, 1994, is approximately $100 million, excluding AFUDC. Elizabethtown has notified all parties to the 1993 Plant Stipulation that the estimated cost of the Plant has increased. Elizabethtown expects to execute a contract and commence construction in the spring of 1994. Rate increases of approximately 35% in excess of current rates will be required by Elizabethtown during the period 1994-1996, a major portion of which will be needed to recover the expected costs of the Plant. In light of the approval by the BRC of the 1993 Plant Stipulation, Elizabethtown expects the BRC to grant timely and adequate rate relief for the Plant, but cannot predict the ultimate outcome of any rate proceeding. FUTURE FINANCING REQUIREMENTS For the three-year period ending December 31, 1996, Elizabethtown, including Mount Holly, estimates that 15% of its capital expenditures will be financed with internally generated funds (after payment of common stock dividends). The balance is expected to be financed with a combination of proceeds from capital contributions from E'town (funded by the sale of its Common Stock), future issuances of long-term debentures, tax-exempt New Jersey Economic Development Authority ("NJEDA") bonds and preferred stock and, on an interim basis, short-term borrowings under the revolving credit agreement discussed above under "Recent Development". The NJEDA has granted preliminary approval for the financing of almost all of Elizabethtown's major projects over the next three years, including the Plant. Elizabethtown expects to pursue tax-exempt financing to the extent that final allocations are granted by the NJEDA. -8- COMMON STOCK PRICE RANGE AND DIVIDENDS Since March 1992, the Company's Common Stock has been listed on the NYSE under the symbol "ETW". Prior to that time, the Company's Common Stock was traded on the National Association of Securities Dealers Inc. Automated Quotation System ("NASDAQ"). The following table sets forth the high and low closing prices per share of the Company's Common Stock for the periods indicated, as reported by the NYSE and NASDAQ, as applicable for such periods. The table also shows dividends paid per share on the Company's Common Stock for the periods indicated. Closing Prices ----------------- Dividends High Low Paid ------- ------- ------------ 1992:First Quarter . . . . . $29.25 $27.75 $.50 Second Quarter . . . . . 27.63 25.63 .50 Third Quarter . . . . . 29.13 26.13 .50 Fourth Quarter . . . . . 29.00 26.88 .50 1993:First Quarter . . . . . 30.88 27.63 .50 Second Quarter . . . . . 31.13 29.50 .50 Third Quarter . . . . . 35.75 29.88 .50 Fourth Quarter . . . . . 34.75 30.25 .51 1994:First Quarter . . . . . 32.00 29.75 .51 Second Quarter (through April 21, 1994) . . 29.75 28.75 * ___________________________ * Management expects to recommend to the Board of Directors at its meeting on May 19, 1994 the declaration of a cash dividend of $.51 per share payable on June 30, 1994 to holders of record on June 16, 1994. Purchasers of shares offered hereby who are holders of record on such date will be entitled to receive this dividend, if declared. On April 21, 1994, the last sale price for the Company's Common Stock, as reported by the NYSE, was $29.00 per share. On December 31, 1993, there were 5,240 holders of record of the Company's Common Stock. Of the approximately 5.6 million shares outstanding as of that date, about 3.9 million shares were registered in the name of only one holder, Cede & Co., which is a nominee of The Depository Trust Company, a securities depositary for various banks and brokerage firms. The Company and its predecessors have paid cash dividends since 1880. The indicated annual dividend rate is currently $2.04 per share. The amount of future dividends will depend upon the Company's earnings, financial condition, capital requirements and other factors, including the timeliness and adequacy of rate relief granted to Elizabethtown. The Company has a Dividend Reinvestment and Stock Purchase Plan (the "DRP Plan") under which participating shareholders may have cash dividends on all or a portion of their shares of Common Stock automatically reinvested in additional shares of Common Stock at 95% of market value as outlined in the DRP Plan, and may invest up to an additional $2,000 per month on the same basis. No -9- commission or service charge is paid by participants in connection with their purchases under the DRP Plan. In 1993, the Company received $6,009,298 in proceeds from sales of Common Stock under the DRP Plan. The Company reserves the right to amend or modify the DRP Plan at any time. DESCRIPTION OF COMMON STOCK Certain provisions of the Company's Certificate of Incorporation and By-Laws and Elizabethtown's Restated Certificate of Incorporation and Elizabethtown's indentures are summarized or referred to below. The summaries are merely an outline, do not purport to be complete, do not relate to or give effect to the provisions of statutory or common law, and are qualified in their entirety by express reference to such Certificates of Incorporation, By-Laws and indentures. The Company is authorized by its Certificate of Incorporation to issue 15,000,000 shares of Common Stock, without par value, of which 5,700,712 shares were issued and outstanding as of March 31, 1994. As of March 31, 1994, the Company has agreed to keep reserved for issuance 310,850 shares of Common Stock to satisfy the privileges of the Company's subordinated debentures which are convertible into Common Stock at a conversion price of $40.00 per share, subject to adjustment. The holders of Common Stock of the Company are entitled to receive dividends as and when declared by the Board of Directors of the Company out of funds legally available for dividends. Payment of common stock dividends by Elizabethtown (which currently constitutes the predominant source of cash from earnings available to the Company) is restricted by certain provisions of the seven indentures under which debentures of Elizabethtown are outstanding. At March 31, 1994, $12,813,952 of Elizabethtown's retained earnings were restricted under the most restrictive of these indenture provisions. Therefore, $30,037,428 of E'town's consolidated retained earnings were unrestricted. In the event of liquidation, dissolution or winding up of the Company, the holders of Common Stock are entitled to share ratably in all assets remaining after payment of liabilities. The holders of record of Common Stock are entitled to one vote for each share of such stock held by them. The holders of Common Stock have no cumulative voting, preemptive or conversion rights and are not subject to further calls or assessments by the Company. There are no redemption or sinking fund provisions applicable to the Common Stock. The Common Stock currently outstanding is, and the Common Stock offered pursuant to this Prospectus will be, fully paid and non-assessable. At the Annual Meeting of Shareholders on May 6, 1991, holders of the Company's Common Stock adopted an amendment to the Company's Certificate of Incorporation which provided for, among other things, a classified Board of Directors. Such amendment may only be amended or repealed by the affirmative vote of the holders of at least 80% of the Company's Common Stock. Also in May 1991, the Board of Directors approved revisions to the Company's By-Laws which provided for, among other things, certain notice requirements for business to be properly brought by shareholders before an annual or special meeting of shareholders, certain procedures for the nomination of directors by shareholders, the fixing of record dates with respect to action to be taken by shareholder vote or by written consent, and the calling of special meetings of shareholders pursuant to a vote of the Board of Directors, action by the Chairman or a request of shareholders holding at least 40% of the capital stock of the Company. The outstanding Common Stock of the Company is traded on the NYSE. The Bank of New York is the Registrar and Transfer Agent for the Common Stock of the Company. On January 24, 1991, pursuant to a shareholders' rights plan adopted by the Company, the Board of Directors of the Company declared a dividend of one share purchase right (a "Right") for each -10- outstanding share of Common Stock (the "Shares") of the Company. The dividend was paid on February 4, 1991 (the "Record Date") to the shareholders of record on that date. Generally, each share of Common Stock issued after the Record Date, including the shares of Common Stock offered hereby, carries one Right. Each Right entitles the registered holder to purchase from the Company 1/100th of one Share at a price of $.80 per 1/100th of one Share, subject to adjustment. Until the occurrence of certain specified events, including the acquisition by certain third parties of a large amount of Common Stock or attempts to acquire the Company, the Rights are not exercisable, have no dilutive effect, are evidenced by the certificates for the shares of the Company's Common Stock and will be transferred only with such securities. A more complete description of the Rights is set forth in the Company's Registration Statement on Form 8-A, as amended, and the exhibits thereto, which description has been incorporated by reference herein. See "Incorporation of Certain Information by Reference." UNDERWRITING Subject to the terms and conditions of the Underwriting Agreement, a copy of which is filed as an exhibit to the Registration Statement of which this Prospectus is a part, the Company has agreed to sell to Kidder, Peabody & Co. Incorporated and A.G. Edwards & Sons, Inc. (the "Underwriters"), and the Underwriters have severally agreed to purchase from the Company, 300,000 shares and 300,000 shares of the Common Stock offered hereby, respectively. The Underwriting Agreement provides that the obligations of the Underwriters thereunder are subject to approval of certain legal matters by counsel and to various other conditions. The nature of the Underwriters' obligations is such that they are committed to take and pay for all the shares of Common Stock offered hereby if any are taken. The Company has been advised by the Underwriters that they propose to offer the shares of Common Stock offered hereby to the public at the offering price set forth on the cover page of this Prospectus and may offer such shares to certain dealers at such price less a concession not in excess of $______ per share, and that the Underwriters and such dealers may reallow a discount not in excess of $______ per share to other dealers. The public offering price and the concession and discount to dealers may be changed by the Underwriters after the initial date of the public offering. The Company has granted the Underwriters an option exercisable for 30 days after the date of this Prospectus to purchase up to an aggregate of 90,000 additional shares of Common Stock. The Underwriters may exercise such option only to cover over-allotments in connection with the sale of the shares of Common Stock offered hereby. The Company has agreed that it will not, without the prior written consent of the Underwriters, file with the Commission a registration statement under the Securities Act of 1933 (the "Securities Act") relating to any issuance of its Common Stock or any security convertible into or exchangeable for or any rights to purchase or acquire Common Stock for a period of 180 days after the date of this Prospectus, except for shares to be issued pursuant to the Company's DRP Plan or its existing employee benefit plans. The Company has agreed to indemnify the Underwriters and their controlling persons against certain civil liabilities, including certain civil liabilities under the Securities Act. -11- LEGAL MATTERS Certain legal matters concerning the offering will be passed upon for the Company by Walter M. Braswell, Esq., Secretary of the Company, and Winthrop, Stimson, Putnam & Roberts, New York, New York, Special Counsel for the Company. Certain legal matters will be passed upon for the Underwriters by McCarter & English, Newark, New Jersey. As of April 18, 1994, Mr. Braswell owned approximately 6,352 shares (including stock options) of the Company's Common Stock. EXPERTS The financial statements and the related financial statement schedules incorporated in this Prospectus by reference from the Company's Annual Report on Form 10-K for the year ended December 31, 1993 have been audited by Deloitte & Touche, independent auditors, as stated in their reports, which are incorporated herein by reference, and have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing. -12- ============================= No dealer, salesperson or any other person has been authorized to give information or to make any representations, other than those contained in this ================================= Prospectus, in connection with the offer contained in this Prospectus, and if given or made, such information or representations must not be relied upon as having been 600,000 Shares authorized by the Company or by any of the Underwriters. This E'TOWN Prospectus does not constitute an CORPORATION offer to sell, or a solicitation of an offer to buy, securities other than the securities offered hereby or an offer to sell, or a Common Stock solicitation of an offer to buy, (Without Par Value) any of the securities offered hereby in any jurisdiction to any person to whom it is unlawful to make such offer in such jurisdic- tion. Neither the delivery of this Prospectus nor any sale made ----------------------- hereunder shall, under any circumstances, create an implication that there has been P R O S P E C T U S no change in the affairs of the Company since the date hereof. ---------------------- -------------------- Kidder, Peabody & Co. Incorporated TABLE OF CONTENTS A.G. Edwards & Sons, Inc. Page ---- May , 1994 ================================= Available Information . . . 2 Incorporation of Certain Information by Reference 2 Prospectus Summary . . . . 3 Map . . . . . . . . . . . . 5 The Company . . . . . . . . 6 Recent Development . . . . 6 Use of Proceeds . . . . . . 7 Construction Program and Regulatory Issues . . 7 Future Financing Requirements 8 Common Stock Price Range and Dividends . . . . . . 9 Description of Common Stock 10 Underwriting . . . . . . . 11 Legal Matters . . . . . . . 12 Experts . . . . . . . . . . 12 _________________________________ PART II. INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution. * Securities and Exchange Commission filing fee $ 6,870 NASD filing fee . . . . . . . . . . . . . . 2,492 New York Stock Exchange listing fee . . . . 2,000 Costs of printing and engraving . . . . . . 25,000 Legal fees and expenses . . . . . . . . . . 45,000 Blue sky fees and expenses . . . . . . . . 7,000 Accounting fees and expenses . . . . . . . 40,000 Miscellaneous expenses . . . . . . . . . . 3,638 --------- Total . . . . . . . . . . . . . . . . $132,000 _____________________________ * All expenses except for the Securities and Exchange Commission and NASD filing fees are estimated. Item 15. Indemnification of Directors and Officers. Article 3, Section 6 of the Company's By-Laws provides that the Company shall indemnify each director or officer of the Company and any person who, at the request of the Company, has served as a director, officer or trustee of another corporation in which the Company has a financial interest against reasonable costs, expenses and counsel fees paid or incurred (including any judgments, fines or reasonable settlements exclusive of any amount paid to the Company in settlement) in connection with the defense of any action, suit or proceeding in which such person is named as a party by reason of having been such director, officer or trustee or by reason of any action taken or not taken in such capacity unless such director, officer or trustee is finally adjudged to have been derelict in the performance of his duties as director, officer or trustee. If any such action, suit or proceeding is settled or otherwise terminated as against such director, officer or trustee without a final determination on the merits and the Board of Directors of the Company shall determine that such director, officer or trustee has not in any substantial way been derelict in the performance of his duties as charged in such action, suit or proceeding, the Company shall indemnify such director, officer or trustee as aforesaid. Such rights of indemnification are not exclusive of any rights to which a director or officer of the Company may have pursuant to statute or otherwise. Section 14A:3-5 of the New Jersey Business Corporation Act (the "Act") gives a corporation the power, without a specific authorization in its certificate of incorporation or by-laws, to indemnify a corporate agent against expenses and liabilities incurred in connection with certain proceedings involving the corporate agent by reason of his being or having been such a corporate agent, provided that with regard to a proceeding other than one by or in the right of the corporation, the corporate agent must have acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal proceeding, such corporate agent had no reasonable cause to believe his conduct was unlawful. In any such proceeding, termination of a proceeding by judgment, order, settlement, conviction or upon plea of nolo contendere or its equivalent does not of itself create a presumption that any such corporate agent failed to meet the above applicable standards of conduct. The indemnification provided by the Act does not exclude any rights to which a corporate agent may be entitled under a certificate of incorporation, by-law, agreement, vote of shareholders or otherwise. No indemnification, other than that required when a corporate agent is successful on the merits or otherwise in any of the above proceedings shall be allowed if such indemnification would be inconsistent with a provision of the certificate of incorporation, a by-law or a resolution of the board of directors or of the shareholders, an agreement II-1 or other proper corporate action in effect at the time of the accrual of the alleged cause of action which prohibits, limits or otherwise conditions the exercise of indemnification powers by the corporation or the rights of indemnification to which a corporate agent may be entitled. The Company also has insurance policies which, among other things, provide officers and directors liability coverage, individually and in the aggregate up to a limit of $20 million for each loss within a 12-month period. Item 16. Exhibits. Exhibit No. Description - ----------- ----------- 1 - Form of Underwriting Agreement. 4(a) - Company's Certificate of Incorporation, as amended (filed as Exhibit 4(a) in Registration Statement No. 33-42509).* 4(b) - By-Laws of the Company, as amended (filed as Exhibit 3(b) in the Company's Form 10-K for the year ended December 31, 1992).* 4(c) - Rights Agreement dated as of February 4, 1991 between the Company and the Rights Agent named therein (filed as Exhibit 4(n) in Registration Statement No. 33-38566).* 4(d) - Form of Common Stock Certificate. 4(e) - Elizabethtown's Restated Certificate of Incorporation (filed as Exhibit 3(a) in the Company's Form 10-K for the year ended December 31, 1993).* 5 - Opinion of Walter M. Braswell, Esq., as to the securities being registered. 23(a) - Consent of Walter M. Braswell, Esq. (contained in Exhibit 5). 23(b) - Consent of Deloitte & Touche, Independent Auditors. 24 - Power of Attorney. _________________ * Incorporated by reference. Item 17. Undertakings. The undersigned registrant hereby undertakes: (1) For purposes of determining any liability under the Securities Act of 1933 ("Act"), each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (2) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as a part of this registration statement in reliance upon Rule 430A and II-2 contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. (3) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Westfield and State of New Jersey, on the 21st day of April, 1994. E'TOWN CORPORATION By /s/ WALTER M. BRASWELL ---------------------------- Walter M. Braswell Secretary Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated. Signature Title Date --------- ----- ---- /s/ ROBERT W. KEAN, JR. * Chairman, Chief Executive April 21, 1994 - ------------------------------ Officer and Director Robert W. Kean, Jr. (Principal Executive Officer) /s/ HENRY S. PATTERSON, II* President and Director April 21, 1994 - ------------------------------ Henry S. Patterson, II /s/ ANNE EVANS GIBBONS* Vice President and April 21, 1994 - ------------------------------ Director Anne Evans Gibbons /s/ WALTER M. BRASWELL Secretary April 21, 1994 - ------------------------------ Walter M. Braswell /s/ ANDREW M. CHAPMAN Chief Financial Officer April 21, 1994 - ------------------------------ and Treasurer (Principal Andrew M. Chapman Financial Officer) /s/ FRANK CRITELLI* - ------------------------------ Controller and Assistant April 21, 1994 Frank Critelli Secretary (Principal Accounting Officer) /s/ BRENDAN T. BYRNE* Director April 21, 1994 - ------------------------------ Brendan T. Byrne II-4 /s/ THOMAS J. CAWLEY* Director April 21, 1994 - ------------------------------ Thomas J. Cawley /s/ JOHN KEAN* Director April 21, 1994 - ------------------------------ John Kean /s/ ROBERT W. KEAN, III* Director April 21, 1994 - ------------------------------ Robert W. Kean, III /s/ ARTHUR P. MORGAN* Director April 21, 1994 - ------------------------------ Arthur P. Morgan /s/ BARRY T. PARKER* Director April 21, 1994 - ------------------------------ Barry T. Parker /s/ HUGO M. PFALTZ, JR.* Director April 21, 1994 - ------------------------------ Hugo M. Pfaltz, Jr. Director April 21, 1994 /s/ CHESTER A. RING, 3RD* - ------------------------------ Chester A. Ring, 3rd *By /s/ WALTER M. BRASWELL - ------------------------------ Walter M. Braswell Attorney-in-fact II-5 APPENDIX A 1. Narrative description of Map appearing on page 5 of the paper format version of the Prospectus, included herein pursuant to Item 304 of Regulation S-T: The relevant graphic material, in the form of a map, generally shows the state of New Jersey and, by use of symbols and different shading, the service areas of Elizabethtown Water Company ("Elizabethtown") and Mount Holly Water Company ("Mount Holly") and the location of land owned by E'town Corporation ("E'town") or E'town Properties Inc. ("Properties") within central New Jersey. Specifically, the map indicates the following: A. By using "criss-cross" shading, the franchised area of Elizabethtown (north of Trenton, New Jersey) is shown; B. By using horizontal shading, the franchised area of Mount Holly (south of Trenton, New Jersey) is shown; C. By using dark shading, the area of other systems served by Elizabethtown (north of Trenton, New Jersey) is shown; D. By using dark circular symbols, the location of land owned by E'town or Properties in central New Jersey is indicated; E. By using dark square symbols, the respective locations of Elizabethtown's Raritan-Millstone Treatment Plant and the proposed Canal Road Treatment Plant are indicated; and F. By using star symbols, the cities of Philadelphia, Trenton and New York are indicated. Exhibit Index Exhibit No. Description - ----------- ----------- 1 - Form of Underwriting Agreement. 4(a) - Company's Certificate of Incorporation, as amended (filed as Exhibit 4(a) in Registration Statement No. 33-42509).* 4(b) - By-Laws of the Company, as amended (filed as Exhibit 3(b) in the Company's Form 10-K for the year ended December 31, 1992).* 4(c) - Rights Agreement dated as of February 4, 1991 between the Company and the Rights Agent named therein (filed as Exhibit 4(n) in Registration Statement No. 33-38566).* 4(d) - Form of Common Stock Certificate. 4(e) - Elizabethtown's Restated Certificate of Incorporation (filed as Exhibit 3(a) in the Company's Form 10-K for the year ended December 31, 1993).* 5 - Opinion of Walter M. Braswell, Esq., as to the securities being registered. 23(a) - Consent of Walter M. Braswell, Esq. (contained in Exhibit 5). 23(b) - Consent of Deloitte & Touche, Independent Auditors. 24 - Power of Attorney. _________________ * Incorporated by reference. EX-1 2 EXHIBIT 1 Exhibit 1 600,000 Shares E'TOWN CORPORATION Common Stock (Without Par Value) UNDERWRITING AGREEMENT ---------------------- May __, 1994 KIDDER, PEABODY & CO. INCORPORATED 10 Hanover Square New York, NY 10005 A.G. EDWARDS & SONS, INC. One North Jefferson St. Louis, MO 63103 Gentlemen: E'town Corporation, a New Jersey corporation ("Company"), confirms its agreement with you, as underwriters (hereinafter, "you" or "Underwriters"), as follows: 1. Description of the Shares. The Company proposes to issue and sell 600,000 shares of its Common Stock, without par value ("Common Stock"), to the Underwriters. Such shares of Common Stock are hereinafter referred to as the "Shares". 2. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Underwriters that: (a) A registration statement (File No. 33-_____) with respect to the Shares, including a preliminary form of prospectus, has been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended ("Act"), and the rules and regulations ("Rules and Regulations") of the Securities and Exchange Commission ("Commission") thereunder and filed with the Commission and has become effective. No stop order suspending the effectiveness of the registration statement has been issued, and no proceeding for that purpose has been instituted or threatened by the Commission. A final form of prospectus has been or will be so prepared and will be filed pursuant to Rule 424(b) of the Rules and Regulations on or before the second business day after the date hereof (or such earlier time as may be required by the Rules and Regulations). The Company will not file a post-effective amendment after the time of execution of this Agreement and prior to the filing of such final form of prospectus without giving you an opportunity to review and comment thereon. Copies of such registration statement, any such amendments, each related preliminary prospectus ("Preliminary Prospectus") and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement (including one fully executed copy of the registration statement and of each amendment thereto for you and for counsel for the Underwriters) have been delivered to you. Such registration statement, as it may have heretofore been amended and including any information deemed by virtue of Rule 430A(a)(3) of the Rules and Regulations to be part of such registration statement at the time it was declared effective, is referred to herein as the "Registration Statement", and such final form of prospectus, in the form in which it is first filed or transmitted for filing pursuant to Rule 424(b) of the Rules and Regulations, is referred to herein as the "Prospectus". Any reference herein to the Registration Statement, the Prospectus, any amendment or supplement thereto or any Preliminary Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, and any reference to the terms "amend," "amendment" or "supplement" with respect to the Registration Statement or Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. (b) Each part of the Registration Statement, when such part became or becomes effective, each Preliminary Prospectus, on the date of filing thereof with the Commission, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at the Closing Date (as hereinafter defined), conformed or will conform in all material respects with the requirements of the Act and the Rules and Regulations or pursuant to such Rules and Regulations are deemed to have complied therewith; each part of the Registration Statement, when such part became or becomes effective, did not or will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and each Preliminary Prospectus, on the date of the filing thereof with the Commission, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at the Closing Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the foregoing shall not apply to statements in or omissions from any such document in reliance upon, and in conformity with, -2- written information furnished to the Company by you specifically for use therein. (c) The documents incorporated by reference in the Registration Statement, the Prospectus, any amendment or supplement thereto or any Preliminary Prospectus, when they became or become effective under the Act or were or are filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), as the case may be, conformed or will conform in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. (d) The consolidated financial statements of the Company set forth in the Registration Statement and the Prospectus fairly present the financial condition of the Company and its subsidiaries as of the dates indicated and the results of operations and changes in financial position for the periods therein specified in conformity with generally accepted accounting principles consistently applied throughout the periods involved (except as otherwise stated therein). (e) The Company and each of its subsidiaries has been duly incorporated and is an existing corporation in good standing under the laws of its jurisdiction of incorporation, has full power and authority (corporate and other) to conduct its business as described in the Registration Statement and Prospectus and is duly qualified to do business in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification except where the failure to be so qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company and its subsidiaries; and all of the outstanding shares of capital stock of each such subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and (except as otherwise stated in the Registration Statement) are owned beneficially by the Company subject to no security interest, other encumbrance or adverse claim. (f) The outstanding shares of Common Stock of the Company and the Shares to be issued and sold by the Company hereunder have been duly authorized and are, or when issued as contemplated hereby will be, validly issued, fully paid and non-assessable and conform in all material respects, or when so issued will conform in all material respects, to the description thereof in the Prospectus. The shareholders of the Company have no preemptive rights with respect to the Shares. -3- (g) Except as set forth or contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, or entered into any transactions, in each case not in the ordinary course of business, that are material to the Company and its subsidiaries taken as a whole, and there has not been any material change, on a consolidated basis, in the capital stock, short-term debt or long-term debt of the Company, or any material adverse change, or any event that will result in a material adverse change, in the business, properties or financial condition of the Company and its subsidiaries taken as a whole. (h) Except as set forth in the Prospectus, there is not pending or, to the knowledge of the Company, threatened any action, suit or proceeding to which the Company or any of its subsidiaries is a party, before or by any court or governmental agency or body, that is likely to result in any material adverse change in the business, properties or financial condition of the Company and its subsidiaries taken as a whole. (i) There are no contracts or documents of the Company or any of its subsidiaries that are required to be filed as exhibits to the Registration Statement or to any of the documents incorporated by reference therein by the Act or the Exchange Act or by the rules and regulations of the Commission thereunder that have not been so filed. (j) The performance of this Agreement and the consummation of the transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any agreement or instrument to which the Company is a party or by which it is bound or to which any of the property of the Company is subject, the Company's charter or by-laws, or to the best of the Company's knowledge any statute, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties; no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Shares to be sold by the Company, except such as may be required under the Act or state securities laws; and the Company has full power and authority to authorize, issue and sell the Shares to be sold by it as contemplated by this Agreement, free of any preemptive rights. -4- (k) The Company is not and, after giving effect to the sale of the Shares, will not be an "investment company" or a company "controlled" by an "investment company" as such terms are defined by the Investment Company Act of 1940, as amended. 3. Purchase, Sale and Delivery of Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the Underwriters, and the Underwriters agree to purchase from the Company, at a purchase price of $______ per Share, the Shares. Certificates for the Shares will be delivered by the Company to you at the office of Kidder, Peabody & Co. Incorporated against payment of the purchase price therefor by certified or official bank check or checks in New York Clearing House (next day) funds payable to the order of the Company at the offices of Winthrop, Stimson, Putnam & Roberts, at 10:00 A.M., New York time, on May __, 1994 (or if the New York or American Stock Exchanges or commercial banks in The City of New York are not open on such day, the next day on which such exchanges and banks are open), or at such other time not later than eight full business days thereafter as you and the Company determine, such time being herein referred to as the "Closing Date". The Shares, in definitive form and in such denominations and registered in such names as you may request upon at least two business days' prior notice to the Company, will be made available for checking and packaging at the office of Kidder, Peabody & Co. Incorporated, at least one business day prior to the Closing Date. If the Underwriters shall request that any of the certificates evidencing the Shares be registered in a name or names of a purchaser other than the Underwriters, the Company shall not be responsible for any transfer taxes resulting from such request. 4. Covenants. The Company covenants and agrees with the Underwriters that: (a) The Company will cause the Prospectus to be filed as required by Section 2(a) hereof (but only if you have not reasonably objected thereto by notice to the Company after having been furnished a copy a reasonable time prior to filing) and will notify you promptly of such filing; it will notify you promptly of the time when any subsequent amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; and it will file no amendment or supplement to the Registration Statement or Prospectus to which you shall reasonably object by notice to the Company -5- after having been furnished a copy a reasonable time prior to the filing. (b) The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threat of any proceeding for any such purpose; and it will use promptly its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. (c) Within the time during which a prospectus relating to the Shares is required to be delivered under the Act, the Company will comply as far as it is able with all requirements imposed upon it by the Act and by the Rules and Regulations, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the prospectus. If during such period any event occurs as a result of which the prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Act, the Company will promptly notify you and will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance. Until the expiration of nine months following the date hereof, the cost of preparing such amendment or supplement shall rest with the Company (unless such amendment or supplement is necessitated solely by activities of the Underwriters); thereafter, such expenses shall be borne by the Underwriters. (d) The Company will use its best efforts to qualify the Shares for sale under the securities laws of such jurisdictions as you reasonably designate and to continue such qualifications in effect so long as required for the distribution of the Shares, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or to comply with any other requirements that are not known to the Company on the date of this Agreement and are deemed by the Company to be unduly burdensome. -6- (e) The Company will furnish to you copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you may from time to time reasonably request; and upon the request of the Underwriters and as contemplated by the Prospectus, the Company will provide any person with any of the documents incorporated by reference therein. (f) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date of this Agreement that shall comply with the provisions of Section 11(a) of the Act and Rule 158 promulgated under the Act. (g) The Company will apply the net proceeds from the sale of the Shares to be sold by it hereunder for purposes set forth in the Prospectus. (h) The Company will not file with the Commission a registration statement under the Securities Act relating to the issuance of its Common Stock or securities convertible into or exchangeable for, or any rights to purchase or acquire, Common Stock prior to the expiration of 180 days from the date of this Agreement without your prior written consent, except for shares to be issued pursuant to the Company's dividend reinvestment plan and the other existing employee benefit plans set forth on Schedule B hereto. The Company covenants and agrees with you that, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated (i) the Company will pay the costs and charges of any transfer agent or registrar, other than transfer taxes, and the cost of preparing stock certificates; and (ii) the Company will pay all other expenses incident to the performance of the obligations of the Company hereunder and the expenses of printing all documents relating to the offering, and will reimburse you for any expenses not in excess of $10,000 (including fees and disbursements of your counsel) incurred by -7- you in connection with the matters referred to in Section 4(d) hereof and the preparation of memoranda relating thereto. If the sale of the Shares provided for herein is not consummated by reason of any failure, refusal or inability on the part of the Company to perform any agreement or because any other condition of your obligations hereunder required to be fulfilled by the Company is not fulfilled, the Company will reimburse you for all reasonable and documented out-of-pocket expenses (including fees and disbursements of your counsel) incurred by you in connection with your investigation, preparing to market and marketing the Shares or in contemplation of performing your obligations hereunder. The Company shall not in any event be liable to you (i) for loss of anticipated profits from the transactions covered by this Agreement or (ii) for any amounts in excess of 50% of out-of-pocket expenses referred to above, if this Agreement is terminated by you pursuant to Section 9(iii) hereof. 5. Conditions of Underwriters' Obligations. The obligations of the Underwriters to purchase and pay for the Shares as provided herein shall be subject to the accuracy, as of the date hereof and the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The prospectus shall have been filed as required by Section 2(a) hereof; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or the Underwriters, threatened by the Commission and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to your satisfaction. (b) Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any change, on a consolidated basis, in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries, or any material adverse change, or any event that will result in a material adverse change, in the business, property or financial condition of the Company and its subsidiaries taken as a whole, that, in your judgment, materially impairs the investment quality of the Shares. (c) You shall have received the opinion of Walter M. Braswell, Esq., counsel for the Company, dated the Closing Date; to the effect that: (i) The Company and each of its subsidiaries has been duly incorporated and is an existing corporation in good standing under the laws of its jurisdiction of incorporation, has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and is duly qualified to do business in each jurisdiction in which it owns or leases real property or in which the conduct -8- of its business requires such qualification except where the failure to be so qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company and its subsidiaries; and all of the outstanding shares of capital stock of each of the Company's subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and (except as otherwise stated in the Registration Statement) are owned beneficially by the Company subject to no security interest, other encumbrance or adverse claim; (ii) The Registration Statement and the Prospectus comply as to form (except as to the financial statements and other financial and statistical data contained or incorporated by reference therein, upon which such counsel does not pass) in all material respects with the applicable requirements of the Act and, with respect to the documents filed with the Commission pursuant to the Exchange Act and incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, the Exchange Act, and the applicable published instructions, rules and regulations of the Commission thereunder, or pursuant to said instructions, rules and regulations are deemed to comply therewith; the Registration Statement has become and is effective under the Act; and to the best of such counsel's knowledge, no proceedings for a stop order with respect thereto are pending or threatened under Section 8(d) of the Act. (iii) The Common Stock (including the Shares) conforms as to legal matters with statements concerning it made in the Prospectus; (iv) The Shares have been duly authorized and validly issued, are fully paid and non-assessable, and the shareholders of the Company have no preemptive rights with respect to the Shares being issued and sold by the Company hereunder; (v) This Agreement has been duly authorized, executed and delivered by the Company; the execution and performance of this Agreement and the consummation of the transactions herein contemplated, including the issuance of the Shares, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any material agreement or instrument known to such counsel to which the Company is a party or by which it is bound or to which any of the property of the Company is subject, the Company's -9- charter or by-laws, and no approval, authorization, consent or other order of any New Jersey public board or body or court (other than in connection or compliance with the provisions of the New Jersey securities or "blue sky" laws, upon which such counsel does not pass) is legally required for the issuance and sale by the Company of the Shares; (vi) Such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or the Prospectus (or required to be filed under the Exchange Act if upon such filing they would be incorporated by reference therein) or to be filed as exhibits to the Registration Statement that are not described and filed as required. (d) You shall have received the opinion of Winthrop, Stimson, Putnam & Roberts, special counsel for the Company, dated the Closing Date, to the effect that: (i) The Registration Statement has become and is effective under the Act; the Prospectus has been filed as required by Section 2(a) hereof; and to the best knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission; (ii) The Registration Statement and the Prospectus on the date of filing thereof with the Commission and at the Closing Date, complied as to form in all material respects with the requirements of the Act and the applicable Rules and Regulations thereunder; such counsel has no reason to believe that, when the Registration Statement became effective,it contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus on the date of filing thereof with the Commission or at the Closing Date, included an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the documents incorporated by reference in the Registration Statement or Prospectus or any amendment or supplement thereto, when they became effective under the Act or were filed with the Commission under the Exchange Act, as the case may be, -10- complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; it being understood that such counsel need express no opinion as to the financial statements or other financial data included in any of the documents mentioned in this clause; (iii) To the best of such counsel's knowledge, no approval, authorization, consent or other order of any public board or body or court (other than in connection with the provisions of the state securities or "blue sky" laws of any jurisdiction, upon which such counsel does not pass) is required for the authorization of the issuance and sale by the Company of the Shares; (iv) The Common Stock conforms as to legal matters with the statements concerning it made in the Prospectus; (v) The Shares have been duly authorized, validly issued and are fully paid and non-assessable; and In rendering their opinion, such counsel may rely upon the opinion of Walter M. Braswell, Esq. referred to above as to all matters governed by New Jersey law. (e) You shall have received from McCarter & English, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Shares, the Registration Statement, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters. (f) At the time of execution of this Agreement and at the Closing Date, you shall have received a letter from Deloitte & Touche, dated the date of delivery thereof, to the effect set forth in Exhibit I hereto. (g) You shall have received from the Company a certificate, signed by (i) the Chairman of the Board, the President or a Vice President and (ii) the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that, to the best of their knowledge based upon reasonable investigation: (i) The representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Closing Date, and the Company has -11- complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been instituted or is threatened by the Commission; and (iii) Since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Prospectus that has not been so set forth, and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that, upon such filing, would be deemed to be incorporated by reference in the Prospectus that has not been so filed. (h) The Company shall have furnished to you such further certificates and documents as you shall have reasonably requested. (i) Not fewer than all of the Shares shall have been tendered for delivery in accordance with the terms and provisions of this Agreement. All such opinions, certificates, letters, forms and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you. The Company will furnish you with such conformed copies of such opinions, certificates, letters, forms and other documents as you shall reasonably request. 6. Indemnification and Contribution. (a) The Company agrees to indemnify and hold each Underwriter harmless against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any reasonable legal or other expenses incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company shall not be liable in any -12- such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein; provided further that the indemnity contained in this clause (a) with respect to the Prospectus shall not inure to the benefit of the Underwriters (or any person controlling the Underwriters) on account of any losses, claims, damages, liabilities or actions arising from the sale of Shares to any person if pursuant to the second sentence of Section 4(c) hereof the Company amends the Registration Statement or prepares an amended or supplemented Prospectus and the Underwriter fails to make reasonable efforts to deliver a copy of such amended or supplemented Prospectus with or prior to the written confirmation of such sale or with or prior to the delivery of such Shares to any such person. (b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company against any and all losses, claims, damages or liabilities, joint or several, to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein; and will reimburse the Company for any reasonable legal or other expenses reasonably incurred by the Company in connection with investigating or defending against any such loss, claim, damage, liability or action as such expenses are incurred. (c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability that it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in, and, to the extent that it shall -13- wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof (unless expressly agreed to in writing by the indemnifying party) other than reasonable costs of investigation; the indemnifying party will not be liable for any settlement of any such action effected without its written consent, but if settled with the consent of the indemnifying party, or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless the indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party in lieu of indemnifying such indemnified party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or you and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. -14- The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were to be determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid to an indemnified party as a result of the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any action or claim that is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by such Underwriter and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) The obligations of the Company under this Section 6 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls each Underwriter within the meaning of the Act; and the obligations of each Underwriter under this Section 6 shall be in addition to any liability that such Underwriter may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company, to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Act. 7. Representations and Agreements to Survive Delivery. All representations, warranties and agreements of the Company herein or in certificates delivered pursuant hereto, and the agreements of you contained in Section 6 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of you or any controlling persons, or the Company, or any of its officers, directors or any controlling persons, and shall survive delivery of and payment for the Shares hereunder. 8. Substitution of Underwriters. (a) If either Underwriter shall fail to take up and pay for the number of Shares agreed by such Underwriter to be purchased hereunder, upon tender of such Shares in accordance with the terms hereof, and the number of Shares not purchased does not aggregate more than 10% of the total number of Shares that the Underwriters are -15- obligated to purchase hereunder at the Closing Date, the remaining Underwriter shall be obligated to take up and pay for the Shares that the withdrawing or defaulting Underwriter agreed but failed to purchase. (b) If any Underwriter shall fail to take up and pay for the number of Shares agreed by such Underwriter to be purchased hereunder, upon tender of such Shares in accordance with the terms hereof, and the number of Shares not purchased aggregates more than 10% of the total number of Shares that the Underwriters are obligated to purchase hereunder at the Closing Date, and arrangements satisfactory to you and the Company for the purchase of such Shares by other persons are not made within 36 hours thereafter, this Agreement shall terminate. In the event of any such termination the Company shall not be under any liability to any Underwriter with respect to Shares not purchased by reason of such termination (except to the extent provided in the penultimate paragraph of Section 4 hereof and in Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the number of Shares agreed by such Underwriter to be purchased hereunder) be under any liability to the Company with respect to such Shares (except to the extent provided in Section 6 hereof.) 9. Termination. You shall have the right by giving notice as hereinafter specified at any time at or prior to the Closing Date, to terminate this Agreement if (i) the Company shall have failed, refused or been unable, at or prior to the Closing Date, to perform any agreement on its part to be performed hereunder, (ii) any other condition of your obligations hereunder are not fulfilled, (iii) there shall have occurred any new outbreak of hostilities or escalation of existing hostilities or other national or international calamity or crisis, the effect of which on the financial markets in the United States is such as to make it, in your reasonable judgment, impracticable to market the Shares or to enforce contracts for the sale of the Shares on the terms and in the manner contemplated by the Prospectus, or (iv) after the execution of this Agreement there shall have occurred any of the following: (A) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the American Stock Exchange or the over-the-counter market, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required on the New York Stock Exchange or the American Stock Exchange or the over-the-counter market, by the New York Stock Exchange or the American Stock Exchange or the authorities administering the over-the-counter market or by order of the Commission or any other governmental authority having jurisdiction; (B) a general moratorium on commercial banking activities shall have been declared by either Federal or New York authorities; or (C) any rating of the Company's securities shall -16- have been lowered by any nationally recognized statistical rating organization. Any termination of this Agreement pursuant to this Section 9 shall be without liability on the part of the Company or you, except as otherwise provided in the last two paragraphs of Section 4 hereof and except as otherwise provided in Section 6 hereof. Any notice referred to above may be given at the addresses specified in Section 10 hereof in writing or by telegraph or telephone, and if by telegraph or telephone, shall be immediately confirmed in writing. 10. Notices. All notices or communications hereunder, except as herein otherwise specifically provided, shall be in writing and if sent to you shall be mailed by first class mail, delivered, telexed or telecopied and confirmed to you c/o Kidder, Peabody & Co. Incorporated, 10 Hanover Square, New York, New York 10005, telecopy (212) 797-8942, telephone (212) 510-3000, and c/o A.G. Edwards & Sons, Inc., One North Jefferson, St. Louis, MO 63103, telecopy (314) 289-6010, telephone (314) 289-3000, or if sent to the Company, shall be mailed, delivered, telexed or telecopied and confirmed to the Company at 600 South Avenue, Westfield, New Jersey 07091-0788, telecopy (908) 232-2719, telephone (908) 654-1234. Any party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. 11. Parties. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the controlling persons, officers and directors referred to in Section 6, and no other person will have any right or obligation hereunder. 12. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. 13. Over-allotment Option. (a) In addition to the shares of Common Stock being sold by the Company and described as the "Shares" in Section 1 hereof (which are referred to herein as the "Firm Shares"), you, at your option, shall have the right to purchase from the Company up to an aggregate of 90,000 additional shares ("Optional Shares"). The first two paragraphs of Section 3 hereof shall be deemed to apply only to the purchase, sale and delivery of the Firm Shares. References in those two paragraphs to the "Shares" shall be deemed to be references to the "Firm Shares"; except as otherwise provided in this Section 13, other references in this Agreement to the "Shares" shall be deemed to include the Firm Shares and the Optional Shares. (b) Upon written notice from you given to the Company not more than 30 days subsequent to the date of the initial -17- public offering of the Shares, you may purchase all or less than all of the Optional Shares at the purchase price per share to be paid for the Firm Shares. Such Optional Shares may be purchased by you only for the purpose of covering over-allotments made in connection with the sale of the Firm Shares. No Optional Shares shall be sold or delivered unless the Firm Shares previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional Shares or any portion thereof may be surrendered and terminated at any time upon notice by you to the Company. The "Closing Date", as defined in Section 3 hereof, shall be deemed to be the "First Closing Date", and the time for the delivery of and payment for the Optional Shares is herein referred to as the "Second Closing Date" (which may be the First Closing Date). The Second Closing Date shall be determined by you but shall be not later than 10 days after you give to the Company written notice of election to purchase Optional Shares. The preparation, registration, checking and delivery of, and payment for, the Optional Shares shall occur or be made in the same manner as provided in Section 3 hereof for the Firm Shares, except as you and the Company may otherwise agree. (c) The conditions to your obligations set forth in Section 5 shall be deemed to be conditions to your obligations to purchase and pay for the Shares to be purchased on each of the First Closing Date and the Second Closing Date, as the case may be; references in that Section and in Sections 2 and 9 hereof to the "Closing Date" shall be deemed to be references to the First Closing Date or the Second Closing Date, as the case may be, and references to the "Shares" in Section 5 hereof shall be deemed to be references to the Shares to be purchased at such Closing Date. A termination of this Agreement as to the Optional Shares after the First Closing Date will not terminate this Agreement as to the Firm Shares. 14. Action by Underwriters. The Underwriters agree to furnish forthwith to the Company in writing such information as to the Underwriters and the terms of offering as is reasonably required to amend the Registration Statement and to enable the Company to comply with its undertakings contained in the Registration Statement and herein and to file amendments to the Registration Statement and supplements to the Prospectus. -18- If the foregoing provisions correctly set forth the understanding among the Company and you, please so indicate in the space provided below for the purpose, whereupon this letter shall constitute a binding agreement between the Company and you, the Underwriters. Very truly yours, E'TOWN CORPORATION By: _________________________ Title: ACCEPTED as of the date first above written KIDDER, PEABODY & CO. INCORPORATED By: _________________________ Title: A.G. EDWARDS & SONS, INC. By: _________________________ Title: -19- SCHEDULE A Number of Shares to be Purchased Underwriter Kidder, Peabody & Co. Incorporated . . . . . . . . . . . . . . . . . 300,000 A.G. Edwards & Sons, Inc. . . . . . . . . . . . . . . . . . . . . . . 300,000 Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 600,000 -20- SCHEDULE B ALLOWED EMPLOYEE BENEFIT PLANS PURSUANT TO SECTION 4(h) 1) Elizabethtown Water Company Savings and Investment Plan 2) Incentive Stock Option Plan 3) E'town's 1987 Stock Option Plan 4) E'town's 1990 Performance Stock Program 5) Elizabethtown Water Company Employee Stock Ownership Plan -21- Exhibit I The letter of Deloitte & Touche referred to in Section 5(g) of the Underwriting Agreement will be to the effect that: (i) Deloitte & Touche are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Act and the Rules and Regulations; (ii) in their opinion, the consolidated financial statements audited by them and included and incorporated by reference in the Registration Statement and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act, as applicable, and the published rules and regulations of the Commission thereunder; (iii) on the basis of procedures referred to in such letter, including (1) a reading of the unaudited consolidated financial statements of the Company incorporated by reference in the registration statement and the Prospectus and included in the Company's Form 10-Q filed with the Commission under Section 13 of the 1934 Act (the "Form 10-Q"), (2) a reading of the latest available unaudited consolidated financial statements of the Company, (3) a reading of the latest available minutes of meetings of the Board of Directors of the Company and (4) inquiries of certain officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly, that Deloitte & Touche makes no representation as to the sufficiency of such procedures for the purposes of the Underwriters), nothing has caused them to believe that (A) any material modifications should be made to the unaudited financial statements included in the Form 10-Q for them to be in conformity with generally accepted accounting principles, (B) the unaudited consolidated financial statements included in the Form 10-Q do not comply as to form in all material respects with the applicable accounting requirements of the 1934 Act and the 1934 Act Regulations, (C) at the date of the latest available financial statements and at a specified date not more than five days prior to the date of such letter there was any change in the capital stock (except for issuance of common stock in connection with the Company's Dividend Reinvestment and Stock Purchase Plan) or long-term debt (except for redemptions pursuant to the death benefit provision of the Company's 6-3/4% Convertible Subordinated Debentures) of the Company, as compared with amounts shown in the March 31, 1994 consolidated balance sheet incorporated by reference in the Registration Statement and the Prospectus, except for changes or decreases which the prospectus discloses have occurred or may occur, (D) there was any decrease in consolidated net assets at April 30, 1994 as compared with amounts shown in the March 31, 1994 consolidated balance -22- sheet incorporated by reference in the Registration Statement and the prospectus, except for changes or decreases which the prospectus and information incorporated by reference therein discloses have occurred or may occur, (E) for the four months ending April 30, 1994, there was any decrease, as compared with the corresponding period of the previous year, in consolidated revenues, net income or per share amounts of net income, except in all cases for changes or decreases that the prospectus and information incorporated by reference therein discloses have occurred or may occur or as may be set forth in such letter; and (iv) they have carried out certain procedures and made certain findings, as specified in such letter, with respect to such other items included or incorporated by reference in the Registration Statement and the Prospectus as the Underwriters may have reasonably requested. In the event the Second Closing Date occurs and does not occur simultaneously with the First Closing Date, the dates set forth in Subsections (iii) (D) and (E) will be adjusted accordingly. -23- EX-4 3 EXHIBIT 4(D) Exhibit 4(d) COMMON STOCK Incorporated under the laws ______________ Shares of the State of New Jersey See reverse for certain definitions CUSIP __________ E'TOWN CORPORATION THIS CERTIFIES THAT ________________________ IS THE OWNER OF ____________________________________________________________ fully paid and non-assessable shares without par value of the Common Stock of E'TOWN CORPORATION (hereinafter called the Corporation) transferable on the books of the Corporation in person or by duly authorized attorney upon the surrender of this certificate properly endorsed. This certificate and the shares represented hereby are issued and shall be held subject to all the provisions of the Articles of Incorporation pursuant to which the Corporation was formed and all amendments thereto and to the By-Laws of the Corporation, copies of which are on file with the Corporation and the Transfer Agent and to all of which the holder of this certificate by the acceptance hereof assents and agrees. This certificate is not valid until countersigned and registered by the Transfer Agent and Registrar. Witness the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers. Dated: COUNTERSIGNED AND REGISTERED: T THE BANK OF NEW YORK, (NEW YORK) By: /s/ Walter M. Braswell TRANSFER AGENT AND REGISTRAR ------------------------------ Secretary By: ______________________ By: /s/ Robert W. Kean, Jr. AUTHORIZED SIGNATURE ------------------------------ Chairman of the Board EX-5 4 EXHIBIT 5 [E'TOWN CORPORATION LETTERHEAD] Exhibit 5 April 21, 1994 E'town Corporation 600 South Avenue Westfield, New Jersey 07090 Ladies and Gentlemen: I have acted as counsel to E'town Corporation (the "Company") in connection with the proposed issuance and sale of up to 690,000 shares of Common Stock, without par value (the "Common Stock"), of the Company pursuant to an underwritten offering. As Secretary of the Company, I have examined, among other things, the registration statement on Form S-3, and the prospectus included therein, being filed under the Securities Act of 1933 with respect to the Common Stock (the "Registration Statement"). I have also examined and am familiar with the originals and copies, certified or otherwise identified to my satisfaction, of pertinent documents, corporate records and other instruments relating to the issuance of the Common Stock and other actions and proceedings relating thereto. Based upon the foregoing, I am of the opinion that when (i) the Registration Statement shall have become effective, (ii) the Company's Board of Directors shall have taken appropriate action in connection with the issuance and sale of the Common Stock and (iii) the Common Stock shall have been issued and delivered against payment therefor as contemplated in the Registration Statement, the Common Stock will be validly issued, fully paid and non-assessable. I am admitted to the bar of the State of New Jersey and do not hold myself out as an expert on the laws of any other jurisdiction. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name under the heading "Legal Matters" in the prospectus included in the Registration Statement. Very truly yours, /s/ Walter M. Braswell Walter M. Braswell Secretary EX-23 5 EXHIBIT 23(B) [DELOITTE & TOUCHE LETTERHEAD] Exhibit 23(b) INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of E'town Corporation on Form S-3 of our report dated February 15, 1994, except for the subsequent events discussed in Notes 10 and 11, as to which the dates are February 23, 1994 and March 23, 1994, respectively, appearing in the Annual Report on Form 10-K of E'town Corporation for the year ended December 31, 1993 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. /s/ Deloitte & Touche Parsippany, New Jersey April 22, 1994 EX-24 6 EXHIBIT 24 Exhibit 24 E'TOWN CORPORATION POWER OF ATTORNEY ----------------- E'town Corporation and each of the directors and/or officers of E'town Corporation whose signatures appear below do hereby appoint WALTER M. BRASWELL and DAVID P. FALCK, and each of them severally, as its, his or her true and lawful attorneys-in-fact to execute on its, his or her behalf and in any and all capacities a Registration Statement on Form S-3 to be filed pursuant to the Securities Act of 1933 in connection with the registration of up to 690,000 shares of E'town Corporation Common Stock, without par value, and any and all pre- and post-effective amendments thereto and other documents relating thereto, and to file the same with the Securities and Exchange Commission. Each of said attorneys-in-fact shall have power to act hereunder with or without the other. IN WITNESS WHEREOF, the undersigned have duly executed this instrument as of the 21st day of April 1994. E'TOWN CORPORATION By: /s/ Robert W. Kean, Jr. -------------------------- Robert W. Kean, Jr., Chairman of the Board, Chief Executive Officer and Director /s/ Henry S. Patterson, II -------------------------- Henry S. Patterson, II, President and Director /s/ Anne Evans Gibbons -------------------------- Anne Evans Gibbons, Vice President and Director /s/ Walter M. Braswell -------------------------- Walter M. Braswell, Secretary /s/ Andrew M. Chapman -------------------------- Andrew M. Chapman, Chief Financial Officer and Treasurer /s/ Frank Critelli -------------------------- Frank Critelli, Controller and Assistant Secretary /s/ Brendan T. Byrne -------------------------- Brendan T. Byrne, Director /s/ Thomas J. Cawley -------------------------- Thomas J. Cawley, Director /s/ John Kean -------------------------- John Kean, Director /s/ Robert W. Kean, III -------------------------- Robert W. Kean, III, Director /s/ Arthur P. Morgan -------------------------- Arthur P. Morgan, Director /s/ Barry T. Parker -------------------------- Barry T. Parker, Director -2- /s/ Hugo M. Pfaltz, Jr. -------------------------- Hugo M. Pfaltz, Jr., Director /s/ Chester A. Ring, 3rd -------------------------- Chester A. Ring, 3rd, Director -3- -----END PRIVACY-ENHANCED MESSAGE-----