450,000 SHARES OF COMMON STOCK
OF
MIDDLESEX WATER COMPANY
UNDERWRITING AGREEMENT
November ___, 1998
Xxxxxx X. Xxxxx & Co., X.X.
Xxxxxx Xxxxxxxxxx Xxxxx Inc.
c/o Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Middlesex Water Company, a New Jersey corporation (the "Company"), confirms
its agreement with Xxxxxx X. Xxxxx & Co., L.P. and Xxxxxx Xxxxxxxxxx Xxxxx Inc.
(hereinafter collectively referred to as the "Underwriters") as follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and sell to
the Underwriters 450,000 shares of the common stock, without par value (the
"Common Stock") of the Company (such 450,000 shares are hereinafter
sometimes referred to as the "Firm Shares"). In addition, solely for the
purpose of covering over-allotments, the Company proposes to grant the
Underwriters the option to purchase up to an additional 67,000 shares of
Common Stock (the "Option Shares"). The Firm Shares and the Option Shares
are hereinafter sometimes referred to collectively as the "Shares." The
Shares are more fully described in the Registration Statement and
Prospectus hereinafter defined.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents, warrants and agrees that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act") and has prepared
and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration
Statement No. 333-___________) relating to the Shares and the offering
thereof in accordance with the Act and has filed such amendments
thereto as may have been required to the date hereof. The registration
statement has been prepared in conformity with the requirements of the
Act and the rules and regulations thereunder (the "Rules and
Regulations"). Copies of that registration statement as amended to
date have been delivered by
the Company to each of you as the Underwriters. As used in this
Agreement, "Preliminary Prospectus" means each prospectus included in
that registration statement, or amendments of such registration
statement or prospectus, before that registration statement, as so
amended, became effective under the Act and any prospectus filed by
the Company with the consent of the Underwriter pursuant to Rule
424(a) of the Rules and Regulations and the documents incorporated by
reference in such preliminary prospectus. "Registration Statement"
means that registration statement including the prospectus, exhibits
and financial statements, and all documents incorporated by reference
therein, including any information deemed by virtue of Rule 430A(a)(3)
of the Rules and Regulations to be part of such Registration
Statement, as of the time such registration statement or
post-effective amendment became effective under the Act; and
"Prospectus" means the prospectus filed with the Commission by the
Company with the consent of the Underwriters pursuant to Rule 424(b)
of the Rules and Regulations, unless no such Rule 424(b) Prospectus is
filed, in which case it shall mean the Prospectus filed as part of the
last Registration Statement filed on or before the effective date
thereof. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus.
(b) Each Preliminary Prospectus, at the time of the filing
thereof, did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which made, not misleading; provided that no
representation or warranty is made as to information contained in or
omitted from any Preliminary Prospectus in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of the Underwriters specifically for inclusion therein. The
Registration Statement has been declared effective by the Commission.
(c) The Registration Statement and the Prospectus in all material
respects: (i) complied as of the date the Registration became
effective, (ii) comply as of the date hereof and (iii) will comply as
of the Closing Date, as hereinafter defined, with the requirements of
the Act, the Rules and Regulations, the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the rules and regulations of
the Commission under the Exchange Act (the "Exchange Act Rules and
Regulations"); the Registration Statement and any amendment thereof,
at the time it became effective, did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and the Prospectus, at the time the Registration Statement
became effective did not, as of the date hereof does not and as of the
Closing Date will not, contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations
and warranties in this Paragraph 2.(c) shall not apply to statements
in or omissions
from the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the Company in
writing by the Underwriters expressly for use in the Registration
Statement or the Prospectus.
(d) The documents incorporated by reference into the Prospectus
pursuant to Item 12 of Form S-3 under the Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Exchange Act and the Exchange Act Rules and
Regulations and did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein,
or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(e) Deloitte & Touche, the accountants whose report appears in
the Prospectus, are independent public accountants as required by the
Act and the Rules and Regulations.
(f) The consolidated financial statements of the Company and its
subsidiaries filed as part of the Registration Statement or included
in any Preliminary Prospectus or the Prospectus present fairly, and
the financial statements included in any amendment or supplement to
the Prospectus will present fairly, the financial condition and
results of operations of the Company and its subsidiaries, at the
dates and for the periods indicated, and have been, and in the case of
financial statements included in any amendment or supplement to the
Prospectus will be, prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved. No other financial statements are required to be set
forth in the Registration Statement or the Prospectus under the Act or
the Rules and Regulations thereunder.
(g) Except as described in or contemplated by the Registration
Statement and 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 (as
defined in Paragraph 12) has incurred any material liability or
obligation, direct or contingent, or entered into any material
transaction, whether or not in the ordinary course of business, and
there has not been any material change on a consolidated basis in the
Company's capital stock, or any material increase in the long-term
debt of the Company or any of its subsidiaries, or any issuance of
options, warrants, convertible securities or other rights to purchase
capital stock of such entity, or any material adverse change in, or
any adverse development which materially affects, the business,
properties, financial condition, results of operations, or prospects
of the Company and its subsidiaries taken as a whole.
(h) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing and in good standing under the laws
of its jurisdiction of incorporation, and the Company and each of its
subsidiaries are duly qualified to do business and in good standing as
foreign corporations in each jurisdiction in which their respective
ownership of property or the conduct of their respective businesses
requires such qualification and wherein the failure to be so qualified
would have a material adverse effect on the business of the Company
and each of its subsidiaries, and have all power and authority
necessary to own or hold their properties and to conduct the business
in which they are engaged. All outstanding shares of capital stock of
the subsidiaries of the Company are owned directly or indirectly by
the Company and are validly authorized, issued and outstanding, fully
paid and non-assessable with no personal liability attaching to the
ownership thereof, and all of such shares are owned free and clear of
any lien, pledge or encumbrance or any claim of any third party.
(i) The authorized and outstanding capitalization of the Company
as of September 30, 1998 was as set forth in the Registration
Statement and the Prospectus, and there have been no changes in the
authorized or outstanding capitalization of the Company since
September 30, 1998 except as contemplated by the Registration
Statement and the Prospectus. When the Shares have been issued,
delivered and paid for in the manner herein described, the Shares will
be fully paid, duly issued and non-assessable; the Shares conform to
all statements relating thereto in the Registration Statement, and
holders of the Shares will not be entitled to preemptive rights.
(j) The filing of the Registration Statement and the execution
and delivery by the Company of this Agreement, and the consummation of
the transactions contemplated hereby and thereby, have been duly
authorized by the board of directors of the Company, and all necessary
corporate action to authorize and approve the same has been taken.
This Agreement has been duly executed and delivered by the Company and
is a valid and legally binding obligation of the Company.
(k) The Company and its subsidiaries have good and marketable
title to, or valid and enforceable leasehold interests in, all items
of real and personal property which are material to the business of
the Company and its subsidiaries taken as a whole, free and clear of
all liens, encumbrances and claims (other than the liens disclosed in
the Prospectus) which might materially interfere with the conduct of
the business of the Company and its subsidiaries taken as a whole.
(l) Except to the extent disclosed in the Prospectus, neither the
Company, nor any of its subsidiaries, is in violation of its corporate
charter or bylaws or in default under any obligation, agreement,
covenant or condition contained in any mortgage or other material
contract, lease, note, indenture or
instrument to which it is a party or by which it may be bound, the
effect of which violation or default would be material to the Company
and its subsidiaries taken as a whole, or is in violation in any
material respect of any law, ordinance, governmental rule, regulation
or court decree to which it or its property may be subject the effect
of which violation would be material to the Company and its
subsidiaries taken as a whole, or has failed to obtain any material
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
to the conduct of its business; and the execution, delivery and
performance of this Agreement by the Company, the sale of the Shares
and the consummation of the transactions contemplated by this
Agreement will not conflict with, result in the creation or imposition
of any lien, charge or encumbrance upon any of the properties or
assets of the Company pursuant to the terms of, or constitute a breach
of or default under, any agreement, indenture or instrument to which
the Company is a party, or by which the Company is bound, or result in
a violation of the corporate charter or bylaws of the Company or any
law or ordinance to which the Company or its properties may be subject
or of any order, rule or regulation of any court or governmental
agency having jurisdiction over the Company or its properties, except
for conflicts, breaches, violations or defaults which would be
immaterial to the business and operations of the Company and its
subsidiaries taken as a whole and which would not affect the validity
or enforceability of this Agreement or otherwise adversely affect the
rights, duties or obligations of the Underwriters or the holders of
the Shares.
(m) No approval or consent of any governmental body, other than
(i) as may be required under the Act or in connection or compliance
with the provisions of the securities or "blue sky" laws of any
jurisdiction, and (ii) approval by the New Jersey Board of Public
Utilities and the Delaware Public Service Commission, is legally
required for the carrying out by the Company of the provisions of this
Agreement.
(n) Except as described in the Registration Statement and the
Prospectus, there is no litigation or governmental proceeding pending
or, to the knowledge of the Company threatened against the Company or
any of its subsidiaries which, if adversely resolved, could reasonably
be expected to result in any material adverse change in the business,
properties, financial condition, results of operations or prospects of
the Company and its subsidiaries taken as a whole or which is required
to be disclosed in the Registration Statement or the Prospectus.
(o) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by
the Rules and Regulations which have not been filed as exhibits to the
Registration Statement.
(p) The Company and each of its subsidiaries have sufficient
authority
under statutory provisions or by grant of franchises or permits by
municipalities or counties to conduct in all material respects their
respective businesses as presently conducted and as described in the
Registration Statement and Prospectus.
(q) Except as set forth in the Registration Statement and the
Prospectus, the Company and its subsidiaries are in compliance with
all applicable existing federal, state and local laws and regulations
relating to protection of human health or the environment or imposing
liability or standards of conduct concerning any Hazardous Material
("Environmental Laws"), except for such instances of noncompliance
which, either singly or in the aggregate, would not have a material
adverse effect on the condition (financial or otherwise), results of
operations or properties of the Company and its subsidiaries, taken as
a whole. The term "Hazardous Material" means (i) any "hazardous
substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (ii) any
"hazardous waste" as defined by the Resource Conservation and Recovery
Act, as amended, (iii) any petroleum or petroleum product, (iv) any
polychlorinated biphenyl and (v) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material, waste or substance
regulated under or within the meaning of any other law relating to
protection of human health or the environment or imposing liability or
standards of conduct concerning any such chemical, material, waste or
substance.
(r) No material labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company,
is imminent; and the Company knows of no existing or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors which might reasonably be expected to
result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries taken as a whole.
(s) Each of the Company and its subsidiaries owns, possesses or
has the right to use all material licenses, trademarks, patents,
patent rights, inventions, copyrights, service marks and trade names
presently employed by it in connection with the businesses now
operated by it, and neither the Company nor any of its subsidiaries
has received any notice of infringement of or conflict with asserted
rights of others with respect to any of the foregoing.
(t) The Company and its subsidiaries maintain insurance covering
their properties, operations, personnel and businesses which insures
against such losses and risks as are adequate in accordance with its
reasonable business judgment to protect the Company and its
subsidiaries and their businesses. Neither the Company nor any of its
subsidiaries has received notice from any insurer or agent of such
insurer that substantial capital improvements
or other expenditures will have to be made in order to continue such
insurance. All such insurance is outstanding and duly in force on the
date hereof and will be outstanding and duly in force on the Closing
Date.
(u) Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended.
(v) The Company and each of its subsidiaries have all necessary
consents, authorizations, approvals, orders, certificates and permits
of and from, and have made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use their respective properties and assets and
to conduct their respective businesses in the manner described in the
Prospectus, except to the extent that the failure to obtain or file
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
Any certificate signed by any officer of the Company and delivered to you
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to the Underwriters as to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company the number of Firm Shares set forth opposite such Underwriter's name
on Schedule 1 hereto. The purchase price for the Firm Shares will be an amount
equal to the initial public offering price for the Shares as set forth in the
Prospectus (the "Share Public Offering Price"), less ______% of the Share Public
Offering Price.
Delivery of the Firm Shares, in definitive form, and payment therefor,
shall be made at 10:00 A.M., St. Louis time, on the fourth business day after
the Registration Statement shall have been declared effective by the Commission,
or on such later date and time as may be agreed upon in writing between the
Underwriters and the Company, such day and time of delivery and payment being
herein called the "Closing Date." On the Closing Date, the Firm Shares shall be
delivered by the Company to the Underwriters at The Depository Trust Company in
New York, New York, for the accounts of the several Underwriters against payment
of the purchase price therefor in funds immediately available to the order of
the Company. The Company agrees to make available to the Underwriters for
inspection and packaging in New York, New York, at least one full business day
prior to the Closing Date, certificates for the Shares so to be delivered in
good delivery form and in such denominations and registered in such names as the
Underwriters shall have requested, all such requests to have been
made in writing at least one full business day prior to the Closing Date.
In addition, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the Company
hereby grants to the Underwriters the option to purchase all or a portion of the
Option Shares as may be necessary to cover over-allotments, at the Share Public
Offering Price, less _____% of the Share Public Offering Price. Such Option
Shares shall be purchased for the account of each Underwriter in the same
proportion as the number of Firm Shares set forth opposite such Underwriter's
name bears to the total number of Firm Shares (subject to adjustment by Xxxxxx
X. Xxxxx & Co., L.P. to avoid fractions). This option may be exercised only to
cover over-allotments in the sale of Firm Shares by the Underwriters. This
option may be exercised at any time (but not more than once) on or before the
thirtieth day following the effective date of the Registration Statement by
written notice by you to the Company. Such notice shall set forth the number of
Option Shares as to which the option is being exercised, and the date and time,
as reasonably determined by the Underwriters, when the Option Shares are to be
delivered (such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however, that the Additional Closing Date
shall not be earlier than the Closing Date nor earlier than the third business
day after the date on which the option shall have been exercised nor later than
the eighth business day after the day on which the option shall have been
exercised, unless otherwise agreed by the parties.
Payment for the Option Shares shall be made in immediately available funds,
payable to the order of the Company, at the offices of the Company, or such
other place as shall be agreed upon between us, against delivery of the Option
Shares to the Underwriters through the facilities of The Depository Trust
Company for the account of the Underwriters.
Certificates for the Option Shares shall be in such denominations and
registered in such names as requested in writing by the Underwriters at least
two business days prior to the Additional Closing Date.
4. COVENANTS. The Company covenants and agrees with the Underwriters:
(a) To furnish promptly to the Underwriters and counsel for the
Underwriters one signed copy of the Registration Statement as originally
filed, and of each amendment thereto filed with the Commission, including
all consents and exhibits filed therewith.
(b) To deliver promptly to the Underwriters such number of conformed
copies of the Registration Statement as originally filed and each amendment
thereto (excluding exhibits other than this Agreement) and of each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus as the Underwriters may reasonably request.
(c) To file promptly with the Commission the Prospectus pursuant to
Rule 424(b) of the Rules and Regulations and to file with the Commission
any amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the reasonable judgment of the
Company or the Underwriters, be required by the Act or requested by the
Commission and approved by the Underwriters.
(d) Prior to filing with the Commission any amendment to the
Registration Statement or amendment or supplement to the Prospectus, or to
filing any Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Underwriters and counsel for the Underwriters
and obtain the consent of the Underwriters to the filing (which consent
will not be unreasonably withheld).
(e) To use its best efforts to cause any required post-effective
amendment to the Registration Statement to become effective and to advise
the Underwriters promptly (i) when any post-effective amendment to the
Registration Statement becomes effective, (ii) of any request or proposed
request by the Commission for an amendment to the Registration Statement,
an amendment or a supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threat of any stop order proceeding, (iv) of receipt by the
Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation
or threat of any proceeding for that purpose, and (v) of the happening of
any event which makes untrue any statement of a material fact made in the
Registration Statement or the Prospectus, or which requires the making of a
change in the Registration Statement or the Prospectus in order to make any
material statement therein not misleading.
(f) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, 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
under which they were made, not misleading, or if it shall be necessary to
amend or supplement the Registration Statement or the Prospectus to comply
with the Act or the Exchange Act or the rules and regulations of the
Commission under such Acts, the Company promptly will prepare and file with
the Commission, subject to Paragraph 4.(d), an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance.
(g) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every reasonable
effort to obtain the lifting of that order at the earliest possible time.
(h) As soon as practicable after the effective date of the
Registration Statement, to make generally available to its security holders
and to deliver to the Underwriters an earnings statement, conforming with
the requirements of Section 11(a) of the Act, covering a period of at least
twelve months beginning after the effective date of the Registration
Statement, provided that the Company may comply with this Paragraph 4.(h)
by complying with the safe harbor provisions of Rule 158 of the Rules and
Regulations.
(i) For a period of three years from the effective date of the
Registration Statement, to furnish to the Underwriters copies of all
reports to shareholders and all reports, filings and financial statements
furnished by the Company to any securities exchange pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder.
(j) To endeavor to qualify the Shares for offer and sale under the
securities laws of such jurisdictions as the Underwriters may reasonably
request, provided that no such qualification shall be required if as a
result thereof the Company would be required to qualify as a foreign
corporation, subject itself to general taxation or would be made subject to
service of general process, in each case in any jurisdiction in which it is
not so qualified or subject; and to maintain such qualifications in effect
so long as required for the distribution of the Shares and to arrange for
the determination of the legality of the Shares for purchase by
institutional investors.
(k) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company will pay (i) the
costs incident to the sale and delivery of the Shares and any taxes payable
in that connection; (ii) the costs incident to the preparation, printing
and filing under the Act of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any amendments, supplements and exhibits
thereto; (iii) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective
amendments thereof (including exhibits), any Preliminary Prospectus, the
Prospectus, and any amendment or supplement to the Prospectus; (iv) the
costs, if any, of printing and distributing this Agreement; (v) the costs
of filings incident to securing any required review by the National
Association of Securities Dealers, Inc.; (vi) the fees and expenses of
qualifying the Shares under the securities laws of the several
jurisdictions as provided in this Paragraph 4 and of preparing and printing
a Blue Sky Memorandum (including related fees and expenses of counsel to
the Underwriters); (vii) the cost of printing the certificates for the
Shares; (viii) the fees and expenses of the Company's accountants and
counsel; and (ix) all other
costs and expenses incident to the performance of the obligations of the
Company under this Agreement; provided, however, that except as provided in
sub-parts (v) and (vi) of this Paragraph 4.(k) and in Paragraph 9, the
Underwriters shall pay their own costs and expenses, including the fees and
expenses of its counsel, any transfer taxes on the Shares which it may sell
and the expenses of advertising any offering of the Shares made by the
Underwriters.
(l) Until the termination of the offering of the Shares, to file
timely all documents, and any amendments to previously filed documents,
required to be filed by it pursuant to the Exchange Act.
(m) To apply the net proceeds of the Shares as set forth in the
Prospectus.
(n) For a period of 60 days after the effective date of the
Registration Statement the Company will not, without the prior written
consent of the Underwriters, directly or indirectly sell, contract to sell
or otherwise dispose of any shares of the Company's Common Stock or rights
to acquire such shares, except for the Shares sold hereunder and except
pursuant to (i) stock option plans or in connection with other incentive
compensation arrangements, or (ii) the exercise of warrants, and the
Company will obtain a similar agreement from each of its directors and
executive officers listed in the Prospectus.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to the accuracy, when made and on the Closing
Date, of the representations and warranties of the Company contained herein, to
the performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed to the extent
required; at or before the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued, and
prior to that time no stop order proceeding nor any order directed at any
document incorporated by reference in the Prospectus shall have been
initiated or, to the knowledge of the Company, threatened by the
Commission, and no challenge shall have been made to any document
incorporated by reference in the Prospectus; any request of the Commission
for inclusion of additional information in the Registration Statement or
the Prospectus or otherwise shall have been complied with; and the Company
shall not have filed with the Commission the Prospectus or any amendment or
supplement to the Registration Statement or the Prospectus without the
consent of the Underwriters.
(b) The Underwriters shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or
the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the reasonable opinion of the Underwriters or
Armstrong, Teasdale, Schlafly, & Xxxxx, counsel for the Underwriters, is
material or omits to state a fact that, in the reasonable opinion of the
Underwriters or such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Shares, the form of
the Registration Statement and the Prospectus, other than financial
statements and other financial data, and all other legal matters relating
to this Agreement and the transactions contemplated hereby shall be
satisfactory in all reasonable respects to Armstrong, Teasdale, Schlafly, &
Xxxxx, counsel for the Underwriters; and the Company shall have furnished
to such counsel all documents and information that such counsel may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxx, XxXxxxxxxx & Xxxxxx, P.A., as counsel to the Company,
shall have furnished to the Underwriters their opinion, addressed to the
Underwriters and dated the Closing Date, to the effect that:
(i) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing and in good standing under the
laws of its jurisdiction of incorporation, is duly qualified to do
business and in good standing as a foreign corporation in each
jurisdiction in which its ownership of property or conduct of business
requires such qualification and wherein the failure to be so qualified
would have a material adverse effect on the business of the Company or
such subsidiary, and has all corporate power and authority necessary
to own or hold its properties and conduct the business in which it is
engaged as described in the Prospectus.
(ii) All of the outstanding shares of Common Stock of the Company
(including the Shares) have been duly authorized and validly issued,
are fully paid and non-assessable and conform to the description
thereof in the Prospectus; and the shareholders of the Company have no
preemptive rights with respect to the Shares being issued and sold by
the Company hereunder under the terms of the Company's charter and
bylaws or New Jersey law and, to the knowledge of such counsel after
reasonable inquiry, under the terms of or pursuant to any other
agreement, law or regulation.
(iii) All corporate action required to have been taken by the
Company for the due and proper authorization, issuance, sale and
delivery of the Shares, has been validly and sufficiently taken, and
the
Shares have been duly authorized, validly issued and are non-
assessable.
(iv) To the knowledge of such counsel based upon communications
with representatives of the Commission, (A) the Registration Statement
is effective under the Act, and (B) the Prospectus was timely filed
with the Commission as required. To the knowledge of such counsel,
(C) no stop order suspending the effectiveness of the Registration
Statement has been issued, and (D) no proceeding for that purpose is
pending or threatened by the Commission.
(v) To the knowledge of such counsel, (A) no order directed to
any document incorporated by reference in the Prospectus has been
issued by the Commission or any court, government or regulatory body
and (B) no pending or threatened challenge has been made to the
accuracy or adequacy of any such document.
(vi) The Registration Statement and the Prospectus and each
amendment or supplement, if any, thereto comply as to form in all
material respects with the requirements of the Act and the Rules and
Regulations thereunder and the rules and regulations of the Commission
under such act (except that no opinion need be expressed as to the
financial statements or financial data contained therein).
(vii) The statements made in the Prospectus, insofar as they
purport to summarize the provisions of statutes, legal and
governmental proceedings, contracts or other documents specifically
referred to therein are accurate and fairly present the information
called for with respect thereto by Form S-3 under the Act (except that
no opinion need be expressed as to financial statements or financial
or statistical data continued therein).
(viii) To such counsel's knowledge, except as disclosed in the
Prospectus, there is no litigation or any governmental proceeding
pending or threatened against the Company or any of its subsidiaries
which could have a material adverse effect on the Company and its
subsidiaries taken as a whole or which is required to be disclosed in
the Registration Statement or the Prospectus.
(ix) To such counsel's knowledge, there are no contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations
which have not been filed as exhibits to the Registration Statement as
permitted by the Rules and Regulations.
(x) To such counsel's knowledge, neither the Company nor any of
its subsidiaries is in violation of its corporate charter or bylaws,
or in default under any agreement, indenture or instrument, the effect
of which violation or default would be material to the Company and its
subsidiaries taken as a whole, or is in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property may be subject or, except as
disclosed in the Prospectus, has failed to obtain any material
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
to the conduct of its business.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company. The Agreement and the transactions
contemplated by this Agreement will not conflict with any agreement of
the Company or its subsidiaries known to counsel, will not create a
lien or encumbrance upon any property of the Company or its
subsidiaries, will not violate the articles of incorporation or bylaws
of the Company or its subsidiaries and will not violate any law or
governmental ordinance, order or regulation, except to the extent that
such conflict, lien, encumbrance or violation would have no material
adverse effect on the Company and its subsidiaries taken as a whole.
(xii) No approval or consent of any governmental body, other than
(i) as may be required in connection or compliance with the provisions
of the securities or "blue sky" laws of any jurisdiction, and (ii)
approval by the New Jersey Board of Public Utilities and the Delaware
Public Service Commission, is legally required for the issue and sale
of the Shares by the Company or for the carrying out by the Company of
the provisions of this Agreement.
Such counsel also shall confirm that during the preparation of the
Registration Statement and Prospectus, such counsel has participated in
conferences with your representatives and counsel for the Underwriters, and with
officers and representatives of the Company, at which conferences the contents
of the Registration Statement and Prospectus were discussed, reviewed and
revised. On the basis of the information which was developed in the course
thereof, considered in light of such counsel's understanding of applicable law
and the experience gained by such counsel thereunder, such counsel shall confirm
that nothing came to such counsel's attention that would lead such counsel to
believe that either the Registration Statement or Prospectus or any amendment or
supplement thereto (other than the financial statements and notes thereto, or
any related schedules therein, as to which such counsel need express no opinion)
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(e) On the Closing Date, there shall have been furnished to you a
certificate, dated such date, from the Company, signed on behalf of the
Company by the President and Chief Executive Officer and the Treasurer and
Chief Financial Officer, stating that to the knowledge of the officers
signing such certificate:
(i) The representations, warranties and agreements of the Company
in Paragraph 2 are true and correct as of such date; the Company has
complied with all its agreements contained herein; and the conditions
set forth in Paragraph 5.(a) have been fulfilled;
(ii) Neither the Registration Statement, as of its effective
date, nor the Prospectus, as of its date, included any 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, and since the effective date of the
Registration Statement, no event has occurred which should have been
set forth in a supplement to or amendment of the Prospectus which has
not been set forth in such a supplement or amendment; and
(iii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted or are pending or threatened, under the
Act.
(f) On the date of this Agreement and on the Closing Date, Deloitte &
Touche shall have furnished to you letters dated such dates substantially
in the form of a draft of such letter previously delivered to you.
(g) 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 specified in the letter referred to in Paragraph 5.(f)
which makes it impractical or inadvisable in the reasonable judgment of the
Underwriters to proceed with the public offering or delivery of the Shares
as contemplated by the Prospectus.
(h) The Underwriters shall have received from Armstrong, Teasdale,
Schlafly & Xxxxx, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Shares, the Registration Statement, the Prospectus, and other related
matters as the Underwriters may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriters and Armstrong, Teasdale, Schlafly & Xxxxx, counsel for the
Underwriters.
If any of the conditions specified in this Paragraph 5 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions or
certificates mentioned above or elsewhere in this Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Underwriters and their counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriters.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless the Underwriters and each
person, if any, who controls the Underwriters within the meaning of the Act from
and against any loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which the Underwriters or any such controlling
person may become subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, or the
Registration Statement or Prospectus as amended or supplemented, or arises out
of, or is 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 shall reimburse the Underwriters and each such
controlling person for any legal and other expenses reasonably incurred by the
Underwriters or such controlling person for any legal and other expenses
reasonably incurred by the Underwriters or such controlling person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus or in the Registration Statement or the Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by the Underwriters specifically for
inclusion therein; and provided further that as to any Preliminary Prospectus
this indemnity agreement shall not inure to the benefit of the Underwriters or
any person controlling the Underwriters on account of any loss, claim, damage,
liability or action arising from the sale of Shares to any person by the
Underwriters if the Underwriters failed to send or give a copy of any
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in such Preliminary Prospectus was corrected in such Prospectus, unless
such
failure resulted from non-compliance by the Company with Paragraph 4.(b) hereof.
The foregoing indemnity is in addition to any liability which the Company may
otherwise have to the Underwriters or any controlling person of the
Underwriters.
(b) The Underwriters agree to indemnify and hold harmless the Company, its
directors and officers who signed the Registration Statement and any person who
controls the Company within the meaning of the Act from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer or controlling person may
become subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the Registration
Statement or Prospectus as amended or supplemented, or arises out of, or is
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, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriters specifically for inclusion therein, and shall reimburse the Company
and its directors, officers and controlling persons for any legal and other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action. The foregoing indemnity
agreement is in addition to any liability which the Underwriters may otherwise
have to the Company.
(c) Promptly after receipt by an indemnified party under this Paragraph 6
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Paragraph 6, notify the indemnifying party in writing of the
claim or the commencement of that action, provided that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Paragraph 6. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party; provided, however, if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to the indemnified party of
its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Paragraph 6 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense other than reasonable costs of investigation, unless
(i) the indemnified party shall have employed such counsel in connection with
the assumption of legal defenses in accordance with the proviso to the next
preceding sentence, (ii) the indemnified party shall have reasonably concluded
that there may be a conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense of such action (in which case
the indemnifying party shall not have the right to direct the defense of such
action on behalf of the indemnified party), (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iv) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party.
(d) If the indemnification provided for in this Paragraph 6 shall for any
reason be unavailable to an indemnified party under Paragraph 6.(a) or 6.(b) in
respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be 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 with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, 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 hand with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Shares
(before deducting expenses) received by the Company bears to the total
underwriting discounts and commissions received by the Underwriters with respect
to such offering, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Paragraph 6.(d) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Paragraph 6.(d) shall be deemed to include, for purposes of this Paragraph
6.(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Paragraph 6.(d), the Underwriters shall not be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by them and distributed to the public was offered to the public
exceeds the amount of any damages which the Underwriters have otherwise paid or
become liable to pay by reason of any 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 Underwriters confirm that the statements with respect to the public
offering of the Shares set forth on the cover page of, and under the caption
"Underwriting" in, the Prospectus are correct and were furnished in writing to
the Company by the Underwriters for inclusion in the Registration Statement and
the Prospectus.
(f) The agreements contained in this Paragraph 6 and the representations,
warranties and agreements of the Company contained in Paragraphs 2 and 4 shall
survive the delivery of the Shares and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
7. TERMINATION BY THE UNDERWRITERS. The obligations of the Underwriters
hereunder may be terminated by the Underwriters, in its absolute discretion, by
notice given to and received by the Company prior to delivery of and payment for
the Shares, if prior to that time (a)(i) the Company shall have failed, refused
or been unable to perform any agreement on its part to be performed hereunder,
(ii) any other condition to the Underwriters' obligations hereunder is not
fulfilled, (iii) the Company sustains a loss, whether or not insured, by reason
of fire, flood, accident or other calamity, which, in the reasonable opinion of
the Underwriters, substantially affects the value of the properties of the
Company or which materially interferes with the operation of the business of the
Company, (iv) trading generally shall have been suspended or materially limited
on or by the New York Stock Exchange or American Stock Exchange or the National
Association of Securities Dealers or trading in any securities of the Company
shall have been suspended by any securities exchange or in the over the counter
market, (v) a banking moratorium is declared by the United States, or by New
York, Missouri, New Jersey or Delaware state authorities, (vi) an outbreak of
major hostilities or other national or international calamity occurs, (vii) any
action is taken by any government in respect of its monetary affairs which, in
the reasonable opinion of the Underwriters, has a material adverse effect on the
United States securities markets, or (viii) there is a pending or threatened
material legal or governmental proceeding against the Company, other than
proceedings described in the Registration Statement or amendments or supplements
thereto delivered to the Underwriters prior to the execution of this Agreement,
which in the reasonable opinion of the Underwriters has a material adverse
effect upon the Company, and (b) with respect to the events specified in clauses
(a)(i) through (a)(iii) hereof, such event singly or together with other such
events makes it, in your reasonable judgment, impractical to market the Shares
on the terms and in the manner contemplated in the Prospectus.
8. TERMINATION BY THE COMPANY. The obligation of the Company to deliver the
Shares upon payment therefor shall be subject to the following conditions:
On the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for that purpose
shall then be pending before, or threatened by, the Commission.
In case any of the conditions specified above in this Paragraph 8 shall not
have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Underwriters. Any such
termination shall be without liability of any party to any other party except to
the extent provided in Paragraph 4.(k) and Paragraph 9 hereof.
9. EXPENSES FOLLOWING TERMINATION. If the sale of Shares provided for
herein is not consummated because of any refusal, inability or failure on the
part of the Company to comply with any of the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable
to perform all its obligations under this Agreement, the Company shall not be
liable to the Underwriters for damages arising out of the transactions covered
by this Agreement, provided however that (i) the Company shall remain liable to
the extent provided in Paragraphs 4.(k), 6.(a) and 6.(d) hereof and (ii) except
where termination occurs pursuant to Section 8 hereof, the Company shall pay the
out-of-pocket expenses incurred by the Underwriters in contemplation of the
performance by it of its obligations hereunder, including the fees and
disbursements of its counsel and travel, postage, telegraph and telephone
expenses.
10. NOTICES. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made by the Underwriters. Any
notice to the Underwriters shall be sufficient if given in writing or by
telecopy addressed to Xxxxxx X. Xxxxx & Co., L.P., 00000 Xxxxxxxxxx Xxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx; any notice to the Company
shall be sufficient if given in writing or by telecopy addressed to the Company
at: 0000 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 (Attention: A. Xxxxx X'Xxxxxx).
11. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (a) the representations, warranties, indemnities and
agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control the Underwriters within the meaning of
Section 15 of the Act, and (b) the indemnities and agreements of the
Underwriters contained in Paragraph 6 of this Agreement shall be deemed to be
for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement and any person controlling the Company.
Nothing in this Agreement is intended or shall be construed to give any person
other than the persons referred to in this paragraph any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
12. DEFINED TERMS. For purposes of this Agreement, (a) "business day" means
any day on which the New York Stock Exchange is open for trading, and (b)
"subsidiary" shall have the meaning set forth in Rule 405 of the Rules and
Regulations.
13. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns and the
officers and directors and controlling persons referred to in Paragraph 6
hereof, and no other person will have any right or obligation hereunder. The
term "successors and assigns" as used in this Agreement shall not include any
purchaser, as such purchaser, of any of the Shares from the Underwriters.
14. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
all of which, when taken together, shall constitute one and the same agreement
among the parties to such counterparts.
15. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri.
If the foregoing correctly sets forth the agreement between the Company and
the Underwriters, please indicate your acceptance in the space provided for that
purpose.
Very truly yours,
MIDDLESEX WATER COMPANY
By:______________________________________
Name:_________________________________
Title:________________________________
Accepted:
XXXXXX X. XXXXX & CO., L.P.
By:
______________________________
Xxxxx X. Xxxxxxxx
Principal
XXXXXX XXXXXXXXXX XXXXX INC.
By:______________________________
Name:____________________________
Title:___________________________
