Registration No. 33-[ ]
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
Registration Statement
UNDER
THE SECURITIES ACT OF 1933
NUI CORPORATION
(Exact name of Registrant as specified in its charter)
New Jersey
(State or other jurisdiction of Incorporation of Organization)
22-1869941
(I.R.S. employer identification no.)
Joseph P. Coughlin, Secretary
550 Route 202-206, Box 760,
Bedminster, New Jersey 07921-0760
(908) 781-0500
(Address, including zip code, and telephone number including area code,
of Registrant's principal executive office and agent for services)
The Commission is requested to send copies of all orders, communications and
notices to:
Gary Apfel, Esq. Michael F. Cusick, Esq.
Kaye, Scholer, Fierman, Hays & Handler Winthrop, Stimson, Putnam & Roberts
1999 Avenue of the Stars, Suite 1600 One Battery Park Plaza
Los Angeles, California 90067 New York, New York 10004-1490
Approximate date of commencement of proposed sale of the securities to the
public: From time to time after the effective date of this Registration
Statement as determined by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following. ____
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. __X__
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Registered Maximum Maximum Registration
Offering Aggregate Fee
Price Per Offering
Unit Price (1)
NUI Corporation Debt
Securities
NUI Corporation
Common Stock, No Par
Value
Total (2) (2) $100,000,000 $34,483(2)
(1) Such amount represents the principal amount of any Debt Securities issued
at its principal amount and the expected initial public offering price of
any Common Stock.
(2) The aggregate amount of each of the Debt Securities and the Common Stock
to be registered and the aggregate offering price per unit have been
omitted pursuant to Securities Act Release No. 6964. The registration
fee has been calculated in accordance with Rule 457(o) under the
Securities Act of 1933.
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.
NUI CORPORATION
CROSS REFERENCE SHEET
Between Items in Part I of Form S-3 the Prospectus
Item Number and Caption Location in Prospectus
1. Forepart of the Registration Outside Front Cover;
Statement and Outside Front Forepart of
Cover Page of Prospectus Registration Statement
2. Inside Front and Outside Back Available Information;
Cover Page of Prospectus Incorporation by Reference; Table of
Contents
3. Summary Information, Risk Outside Front Cover; The Factors and
Ratio of Earnings Company; Summary Financial
to Fixed Charges Information; Consolidated Ratio of
Earnings to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering *
Price
6. Dilution *
7. Selling Security-Holders *
8. Plan of Distribution Plan of Distribution
9. Description of Securities Description of the Debt
to be Registered Securities; Description of Capital
Stock; Incorporation of Certain
Documents by Reference; Certain Tax
Consideration
10. Interest of Named Expert *
and Counsel
11. Material Changes The Company
12. Incorporation of Certain Incorporation of Certain Information
by Reference Documents by Reference
13. Disclosure of Commission *
Position on Indemnification
For Securities Act
Liabilities
---------------------
* Not Applicable
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 STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 15, 1994
NUI CORPORATION
$100,000,000
Debt Securities
Common Stock (No Par Value)
NUI Corporation, a New Jersey corporation (the "Company"), may from
time to time offer, in one or more series, its debt securities (the "Debt
Securities") and its Common Stock, no par value (the "Common Stock" and,
collectively with the Debt Securities, the "Securities"). The Debt Securities
will be unsecured. The Securities offered pursuant to this Prospectus will be
limited to an aggregate public offering price of $100,000,000.
The Securities will be offered to the public on terms determined by the
Company in light of market conditions at the time of sale. The Debt
Securities may be issued in one or more series, at par or at a premium or with
original issue discount. The Debt Securities may be issued with the same or
various maturities and may include medium-term notes. For each offering of
Securities for which this Prospectus is being delivered (the "Offered
Securities") there will be an accompanying prospectus supplement (each a
"Prospectus Supplement") or a pricing prospectus supplement (each a "Pricing
Supplement") or both that sets forth the terms of offering of such Offered
Securities and (i) with respect to the Debt Securities, the specific
designation, aggregate principal amount, authorized denominations, interest
rate (or method of calculating such interest), time of payment of interest,
maturity, the initial public offering price, any redemption terms, sinking
fund provisions, if any, and any other specific terms, and any listing on a
securities exchange of such Offered Securities; or (ii) with respect to Common
Stock, the number of shares, the initial public offering price and any other
specific terms of such Offered Securities.
The Debt Securities may be issued only in registered form, including in
the form of one or more global securities ("Global Securities"), unless
otherwise set forth in a Prospectus Supplement.
The Company's outstanding shares of Common Stock are traded on the New
York Stock Exchange (the "NYSE") under the symbol "NUI." Application will be
made to list any shares of Common Stock offered hereby on the NYSE.
___________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY SUPPLEMENT HERETO. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
___________________
The Securities may be sold directly, through agents, underwriters or
dealers as designated from time to time, at competitive bidding, or through a
combination of such methods. If agents, underwriters, purchasers or dealers
are involved in the sale of the Offered Securities, the names of such agents,
underwriters, purchasers or dealers and any applicable commissions or
discounts will be set forth in or may be calculated from the Prospectus
Supplement or Pricing Supplement with respect to such Offered Securities. The
net proceeds to the Company from such sale also will be set forth in the
Prospectus Supplement or Pricing Supplement.
___________________
The date of this Prospectus is _____________, 1994
AVAILABLE INFORMATION
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 "SEC"). Such reports, proxy
statements and other information can be inspected and copied at the Public
Reference Room of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, and at the SEC's regional offices at Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite
1300, New York, New York 10048. Copies of such material also can be obtained
from the Public Reference Section of the SEC at 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549 at prescribed rates. The outstanding shares of
Common Stock are listed on the NYSE. Reports, proxy statements and other
information concerning the Company also may be inspected and copied at the
offices of the NYSE at Room 401, 20 Broad Street, New York, New York 10005.
The Company has filed a Registration Statement on Form S-3 (herein,
together with all exhibits and amendments thereto, called the "Registration
Statement") with the SEC under the Securities Act of 1933 (the "Securities
Act") with respect to the Securities. This Prospectus does not contain all
the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the SEC.
For further information, reference is made to the Registration Statement.
Statements contained herein concerning any document filed as an exhibit to the
Registration Statement are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the SEC
are hereby incorporated by reference in this Prospectus.
1. The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1993;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1993, March 31, 1994 and June 30, 1994;
3. The Company's Current Report on Form 8-K dated April 20, 1994;
4. The Company's Current Report on Form 8-K dated July 29, 1994;
5. The Company's Current Report on Form 8-K dated November 1, 1994; and
6. The Company's Registration Statement on Form 8-A, filed on May 28,
1982, and Amendment No. 1 thereto on Form 8-A/A, filed on
September 16, 1993.
All documents filed by the Company with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
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Prospectus and prior to the termination of the offering of the Securities
offered hereby shall be deemed to be incorporated by reference in this
Prospectus; provided however, that all documents (other than any amendments to
the Company's Registration Statement on Form 8-A) so filed in each fiscal year
during which the offering made by this Prospectus is in effect, shall not be
incorporated by reference or be a part hereof from and after the date of
filing of the Company's Annual Report on Form 10-K for such fiscal year.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be modified or superseded, for purposes
of this Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents which have
been or may be incorporated by reference in this Prospectus, other than
exhibits to such documents. Requests for such copies should be directed to:
NUI Corporation, 550 Route 202-206, Box 760, Bedminster, New Jersey 07921-
0760, Attention: Corporate Secretary; telephone number: (908) 781-0500.
THE COMPANY
General
The Company is engaged primarily in the sale and transportation of
natural gas. The Company serves customers in six states through its
divisions, Elizabethtown Gas Company (New Jersey), City Gas Company of Florida
(Florida), North Carolina Gas Service (North Carolina), Elkton Gas Service
(Maryland), Valley Cities Gas Service (Pennsylvania) and Waverly Gas Service
(New York). The Company is subject to regulation as an operating utility by
the public utility commissions of the states in which it operates.
The principal executive offices of the Company are located at 550 Route
202-206, Box 760, Bedminster, New Jersey 07921-0760; telephone: (908) 781-
0500.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Twelve
Year Ended September 30 Months Ended
1989 1990 1991 1992 1993 June 30, 1994
Consolidated Ratio of
Earnings to Fixed
Charges(1) 1.70 1.76 1.17 1.90 2.15 1.88
______________________________________
(1) Represents Earnings (defined as income before the cumulative effect
of an accounting change plus income taxes plus Fixed Charges
(defined as interest expense before any reduction for amounts
capitalized plus one-third of rentals charged to operating expense))
divided by Fixed Charges.
USE OF PROCEEDS
Unless otherwise indicated in the Prospectus Supplement, the Company
intends to use the net proceeds to be received from the sale of the Securities
offered hereby to discharge or refund outstanding debt obligations of the
Company, to finance the Company's capital expenditures, to reduce short-term
debt and for general corporate purposes. Funds not required immediately for
such purposes may be invested in marketable securities and short-term
investments.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured obligations of the Company issued
under an indenture, dated as of ____________, 1994 (the "Indenture"), between
the Company and First Fidelity Bank, National Association, as trustee (the
"Trustee"), the proposed form of which has been filed as an exhibit to the
Registration Statement. The following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all of the provisions of the Indenture,
including the definitions contained therein. Whenever particular sections or
defined terms of the Indenture are referred to herein or in a Prospectus
Supplement with respect to Debt Securities, such sections or defined terms are
incorporated by reference as a part of the statements made. Section
references are references to sections of the Indenture. Capitalized terms not
otherwise defined herein or in any Prospectus Supplement with respect to Debt
Securities have the respective meanings given to them in the Indenture.
General
The Debt Securities will rank equally with all other unsecured and
unsubordinated debt of the Company. The Debt Securities will rank junior to
the Company's First Mortgage Bonds, of which $9,773,000 were outstanding on
September 30, 1994. The Indenture does not limit the amount of debt which may
be issued by the Company under the Indenture or otherwise. The Debt
Securities may be issued from time to time in one or more series with the same
or various maturities, at par or a premium or with original issue discount.
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Each Prospectus Supplement with respect to Debt Securities and any
related Pricing Supplement will describe certain terms of the Debt Securities
offered by such Prospectus Supplement and Pricing Supplement (the "Offered
Debt Securities"), including: (1) the title of the Offered Debt Securities;
(2) any limit on the aggregate principal amount of the Offered Debt
Securities; (3) the price or prices at which the Offered Debt Securities will
be offered (expressed as a percentage of the principal amount thereof); (4)
the date or dates on which the Offered Debt Securities may be issued and on
which the Offered Debt Securities will mature; (5) the rate or rates per annum
(which may be fixed or floating) at which the Offered Debt Securities will
bear interest, if any, or the method by which such rate or rates shall be
determined, and the date or dates from which such interest, if any, shall
accrue; (6) the date or dates on which such interest, if any, on the Offered
Debt Securities will be payable (the "Interest Payment Dates") and the Regular
Record Dates for any such Interest Payment Dates; (7) any index or other
method used to determine the amounts of payments of principal of and premium,
if any, and interest, if any, on the Offered Debt Securities; (8) any optional
or mandatory redemption or repayment terms; (9) the denominations in which the
Offered Debt Securities shall be issuable if other than denominations of
$1,000 or any integral multiple thereof; (10) whether the Offered Debt
Securities are to be issued in the form of Global Securities and, if so, the
identity of the Depository with respect to such Global Securities; (11) in the
case of Offered Debt Securities issued with original issue discount, the
principal amount thereof payable upon acceleration of the maturity thereof;
and (12) any other specific terms associated with the Offered Debt Securities.
(Section 301.)
Unless otherwise set forth in any Prospectus Supplement with respect to
Debt Securities, the principal of and premium, if any, and interest, if any,
on the Debt Securities is payable to registered holders of Debt Securities at
the designated corporate trust office of the Trustee in Philadelphia,
Pennsylvania, or at any paying agency maintained at the time by the Company
for such purpose. At the option of the Company, payment of interest to
registered holders of Debt Securities may be made by check mailed to the
address of the person entitled thereto as it appears on the register for Debt
Securities. (Section 301 and 1002.)
Unless otherwise provided in any Prospectus Supplement with respect to
Debt Securities, the Debt Securities shall be issued in fully registered form.
(Section 302.) Debt Securities may be presented for registration of transfer
or exchange at such office of the Trustee or at such other location or
locations as may be established pursuant to the Indenture. No service charge
will be made for any registration of transfer or exchange of Debt Securities,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith. The Company will
not be required (a) to issue, register the transfer of or exchange Debt
Securities during the period of fifteen (15) days prior to giving any notice
of redemption or (b) to register the transfer of or exchange any Debt
Securities selected for redemption in whole or in part, except the unredeemed
portion of any Debt Securities being redeemed in part. (Section 305.)
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The Debt Securities will not be subject to any sinking fund and are not
redeemable by the Company prior to maturity unless otherwise provided in any
applicable Prospectus Supplement or any related Pricing Supplement. In
accordance with the terms of the Indenture, Debt Securities will be redeemable
only upon notice, by mail, not less than 30 or more than 60 days prior to the
date fixed for redemption unless a shorter period is specified in the Debt
Securities of a particular series and, if less than all of the Debt Securities
of any series are to be redeemed, the particular Debt Securities will be
selected by such method as the Trustee deems fair and appropriate. (Sections
1101, 1102, 1103 and 1201.)
Covenants
Maintenance of Properties. The Company will cause (or, with respect to
property owned in common with others, make reasonable effort to cause) all its
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and will cause (or with
respect to property owned in common with others, make reasonable effort to
cause) to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as, in the judgment of the Company, may be
necessary so that the business carried on in connection therewith may be
properly conducted; provided, however, that the foregoing will not prevent the
Company from discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance is, in the
judgment of the Board of Directors of the Company (the "Board"), desirable in
the conduct of its business and is not disadvantageous in any material respect
to the Holders of the Debt Securities. (Section 1005.)
Corporate Existence. Subject to the provisions described below in the
paragraph entitled "Merger or Consolidation," the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and material franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders
of the Debt Securities. (Section 1004.)
Negative Pledge. The Indenture prohibits the Company from creating or
permitting any liens (other than Excepted Encumbrances, as defined below) upon
its property to secure indebtedness for borrowed money without either making
effective provision whereby the Debt Securities shall be directly secured
equally and ratably with such indebtedness or depositing with the Trustee, as
collateral for the Debt Securities, bonds or other evidences of indebtedness
of the Company secured by such lien; provided, however, that this restriction
will not apply in certain circumstances, including, among other things, (a)
the pledging by the Company of property or assets in connection with the
incurrence of indebtedness (under circumstances not otherwise excepted from
the operation of the negative pledge covenant) in aggregate principal amount
not exceeding 3% of the Company's net tangible utility assets at any time
outstanding and (b)(i) the pledging of property or assets for the purpose of
securing a stay or discharge or for any other purpose in the course of a legal
proceeding in which the Company is a party and (ii) liens or pledges arising
in the ordinary course of the Company's business (which do not secure
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indebtedness for borrowed money or in the aggregate materially detract from
the value of the Company's property or assets or materially impair the use
thereof in the operation of the Company's business); provided, however, that
the fair market value of any property or assets pledged under items (b)(i) and
(ii) hereof may not exceed $25,000,000 in the aggregate. (Section 1007.)
"Excepted Encumbrances" include, among other things, the following:
(a) liens existing on the date of the Indenture; (b) liens for taxes or
charges or worker's compensation awards or similar obligations not delinquent
or, if delinquent, taxes or charges the validity of which is being contested
by the Company in good faith; (c) liens securing indebtedness neither assumed
nor guaranteed by the Company nor on which it customarily pays interest
existing in or relating to real estate or rights in real estate acquired by
the Company for distribution system or right-of-way purposes or in connection
with its usual operations; (d) undetermined liens and charges incidental to
current construction; (e) rights reserved to or vested in any public authority
to control or regulate any property or asset of the Company in a manner that
does not materially impair the use thereof for the purposes for which it is
held by the Company; (f) certain title defects, rights-of-way, easements and
similar restrictions; (g) purchase money liens on property or assets acquired
after the date of the Indenture or mortgages or liens existing on such
property at the time of acquisition by the Company; (h) leases made in the
ordinary course of business; and (i) liens of any judgments in an aggregate
amount not in excess of $250,000. (Section 1007.)
Certain property of the Company is not subject to the prohibition
against encumbrances, including, among other things, (a) cash, bonds, stocks,
obligations and other securities (including securities issued by subsidiaries
of the Company); (b) choses in action, accounts receivable, unbilled revenues,
judgments and other evidences of indebtedness and contracts, leases and
operating agreements; (c) stock in trade, merchandise, equipment, apparatus,
materials or supplies and other personal property manufactured or acquired for
the purpose of sale and/or resale in the usual course of business or
consumable in the operation of any of the properties or businesses of the
Company or held for purposes of repair or replacement; (d) timber, gas, fuel
oil, electric energy, minerals (including developed and undeveloped natural
gas reserves and natural gas in underground storage or otherwise), liquefied
natural gas, propane gas, synthetic fuel, mineral rights and royalties; (e)
materials or products generated, manufactured, stored, produced or purchased
by the Company for sale, distribution or use in the ordinary course of its
business; and (f) office furniture and equipment, tools, rolling stock, buses,
motor coaches, trucks and automobiles and other vehicles and aircraft.
(Section 1007.)
Merger or Consolidation. The Company, without the consent of the
Holders of the Outstanding Debt Securities, may dissolve or otherwise dispose
of all or substantially all of its assets and may consolidate with or merge
into another corporation or permit one or more corporations to consolidate or
merge into it, if the surviving, resulting or transferee corporation (a) is
the Company or (b) if other than the Company, (i) is organized under the laws
of the United States of America, any state thereof or the District of
Columbia, (ii) assumes in writing the Company's obligations under the Debt
Securities and under the Indenture and (iii) after giving effect to the
transaction, no Event of Default will have occurred and be continuing, and the
7
Company or successor corporation will have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel as provided in the Indenture.
(Section 801.)
Statement of Compliance. The Company is required, among other things,
to furnish to the Trustee annually a statement that the Company is in
compliance with its conditions and covenants under the Indenture and as to any
default in such compliance. The Company is also required to notify the
Trustee of any Event of Default, or any event which, with notice or the lapse
of time or both, would become an Event of Default, within 10 days after
certain of its officers obtain actual knowledge thereof. (Section 1006.)
Events of Default
The following are Events of Default under the Indenture with respect to
Debt Securities of any series: (a) failure to pay any interest on any Debt
Security of that series within 30 days after the same becomes due and payable;
(b) failure to pay the principal of or premium, if any, on any Debt Security
of that series when the same becomes due and payable; (c) failure to perform
in any material respect or breach of any covenant or warranty of the Company
in the Indenture (other than any covenant or warranty the breach of which is
the subject of a separate Event of Default or any covenant or warranty
included in the Indenture solely for the benefit of one or more series of Debt
Securities other than that series) for a period of 90 days after written
notice by the Trustee to the Company or by the Holders of at least 25% in
aggregate principal amount of the Outstanding Debt Securities of such series
to the Company and the Trustee as provided in the Indenture or in the case of
any such failure or breach which can be cured but which cannot, with
reasonable diligence, be cured within such 90-day period, failure of the
Company to proceed with reasonable diligence after receipt of such notice; (d)
certain events of bankruptcy, insolvency, conservatorship, receivership,
reorganization or similar events; (e) a default under any evidence of
indebtedness of the Company (including Debt Securities of any other series) or
instrument under which there may be issued or by which there may be secured
any indebtedness of the Company, in each case in excess of $10,000,000
aggregate principal amount, which default constitutes a failure to pay any
portion of the principal of such indebtedness when due and payable after the
expiration of any applicable grace period or results in the acceleration of
the maturity of such indebtedness, if (x) written notice of such default has
been given to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Outstanding
Debt Securities of such series and (y) within a period of 10 days after such
notice is given such indebtedness has not been discharged or such acceleration
has not been rescinded or annulled; and (f) any other Event of Default
provided with respect to the Debt Securities of such series. (Section 501.)
Except as described in (e) above, no Event of Default with respect to
the Debt Securities of a particular series necessarily constitutes an Event of
Default with respect to the Debt Securities of any other series issued under
the Indenture.
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Remedies
If any Event of Default with respect to the Outstanding Debt Securities
of any series occurs and is continuing, either the Trustee or the Holders of
at least 33% in aggregate principal amount of the Outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt Securities of
that series are issued with original issue discount, such portion of the
principal as may be specified in the terms of the Debt Securities of that
series) of all the Outstanding Debt Securities of that series to be due and
payable immediately. (Section 502.)
At any time after the declaration of acceleration with respect to the
Debt Securities of any series has been made but before a judgment or decree
based on acceleration has been obtained, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of that series
may rescind and annul such declaration of acceleration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(i) all overdue interest on all Debt Securities of such series; (ii) the
principal of and premium, if any, on any Debt Securities of such series which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed in such Debt Securities;
(iii) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Debt
Securities; and (iv) all amounts due to the Trustee under the Indenture; and
(b) all other Events of Default with respect to the Debt Securities of such
series, other than the nonpayment of the principal of the Debt Securities of
such series which has become due solely by such declaration of acceleration,
have been cured or waived as provided in the Indenture. (Section 502.)
If an Event of Default occurs and is continuing with respect to more
than one series of Debt Securities, the Trustee or the Holders of no less than
the requisite percentage in aggregate principal amount of the Outstanding Debt
Securities of all such series, considered as one class, may make such
declaration of acceleration or waiver, or rescind and annul such acceleration,
as applicable, and not the Holders of the Debt Securities of any individual
series. (Section 502.)
The Indenture provides that, subject to the duty of the Trustee during
the continuance of an Event of Default to act with the required standard of
care, the Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
with respect to such request or direction. (Section 601.) Subject to such
provisions for the indemnification of the Trustee and subject to certain other
limitations, the Holders of a majority or more in aggregate principal amount
of the Outstanding Debt Securities of any series will have the right to direct
the time, method and place of conducting any proceedings for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Debt Securities of that series; provided,
however, that if an Event of Default occurs and is continuing with respect to
more than one series of Debt Securities, the Holders of a majority or more in
aggregate principal amount of the Outstanding Debt Securities of all such
series, considered as one class, will have the right to make such direction,
9
and not the Holders of the Debt Securities of any one of such series; and
provided, further, however, that (a) such direction will not be in conflict
with any rule of law, with the Indenture or with the Debt Securities of any
such series, (b) the Trustee may take any other action it deems proper which
is not inconsistent with such direction and (c) such direction is not unduly
prejudicial to the rights of the other Holders of Debt Securities of such
series not joining such action. (Section 512.)
The right of a Holder of any Debt Security of such series to institute
a proceeding with respect to the Indenture is subject to certain conditions
precedent, but each Holder has an absolute and unconditional right to receive
payment of principal of, premium, if any, and interest, if any, on such Debt
Security when due and to institute suit for the enforcement of any such
payment. (Section 508.) The Trust Indenture Act of 1939 (the "Trust Indenture
Act"), provides that the Trustee, within 90 days after the occurrence of any
default under the Indenture with respect to the Debt Securities of a series,
is required to give to the Holders of the Debt Securities of such series
notice of any default known to it unless cured or waived; provided, however,
that except in the case of a default in the payment of principal of or
premium, if any, or interest, if any, on any Debt Securities of such series,
the Trustee may withhold such notice if the Trustee determines that it is in
the interest of such Holders to do so.
Modification, Waiver and Amendment
Certain modifications and amendments of the Indenture may be made by
the Company and the Trustee without the consent of the Holders, including
those which: (a) evidence the assumption by any successor to the Company of
the Company's obligations under the Indenture or with respect to the Debt
Securities; (b) add to the covenants of or surrender any right or power of the
Company under the Indenture; (c) add any Events of Default, in addition to
those specified in the Indenture, with respect to all or any series of Debt
Securities; (d) change or eliminate any provision of the Indenture; provided,
however, that any such change or elimination will become effective only when
there is no Debt Security of any series created prior to such action which is
entitled to the benefit of such provision; (e) provide security for the Debt
Securities; (f) establish the form or terms of Debt Securities of any series;
(g) evidence the appointment of a successor Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the provisions
of the Indenture to facilitate administration of the trusts thereunder by more
than one Trustee; or (h) cure any ambiguity or inconsistency or make any other
provisions with respect to matters and questions arising under the Indenture,
provided such provisions shall not adversely affect the interests of the
Holders of Debt Securities of any series in any material respect. (Section
901.)
Without limiting the generality of the foregoing, if the Trust
Indenture Act is amended after the date of the Indenture to require changes to
the Indenture or the incorporation therein of additional provisions or permit
changes to, or require the elimination of, provisions which, at the date of
the Indenture or at any time thereafter, are required by the Trust Indenture
Act to be contained in the Indenture, the Company and the Trustee may, without
the consent of any Holders, enter into one or more supplemental indentures to
effect or reflect any such change, incorporation or elimination.
10
Other modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
all series affected by such modification or amendment (all such series
considered as one class); provided, however, that no such modification or
amendment may, without the consent of the Holders of each Outstanding Debt
Security affected thereby, (a) change the stated maturity date of the
principal of, or premium, if any, or installment of interest, if any, on, any
Debt Security; (b) reduce the principal amount of, or premium, if any, or
interest, if any, on, or change the method of calculating the rate of interest
on, any Debt Security; (c) reduce the amount of the principal payable upon
declaration of acceleration of the Maturity Date of any Offered Debt
Securities issued with original issue discount; (d) change the place of
payment or the currency of payment of the principal of, or premium, if any, or
interest, if any, on, any Debt Security; (e) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt
Security; (f) reduce the percentage in aggregate principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture, waiver of compliance
with certain provisions of the Indenture or waiver of certain defaults; or (g)
amend certain other provisions of the Indenture relating to amendments and
defaults. (Section 902.)
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of all series with respect to which a
certain covenant or restriction has been specified (all such series considered
as one class), may, on behalf of all Holders of Debt Securities, waive
compliance by the Company with certain covenants of the Indenture. (Section
1008.) The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may, on behalf of all Holders of
Debt Securities of that series waive any past default and its consequences
under the Indenture with respect to Debt Securities of that series, except a
default (i) in the payment of principal of, premium, if any, or interest, if
any, on any Debt Security or (ii) in respect of a covenant or provision that
cannot be modified or amended without the consent of the Holder of each
Outstanding Debt Security affected thereby. If a past default shall have
occurred with respect to more than one series of Debt Securities, the Trustee
or the Holders of not less than a majority in aggregate principal amount of
the Outstanding Debt Securities of all such series, considered as one class,
may waive such past default and its consequences, except as set forth in
clauses (i) and (ii) of the immediately preceding sentence, and not the
Holders of the Debt Securities of any one of such series. (Section 513.)
A supplemental indenture which changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under the Indenture of the Holders of Debt Securities of any other
series. (Section 902.)
Satisfaction and Discharge
11
The Company may terminate certain of its obligations under the
Indenture with respect to Debt Securities of any series, on the terms and
subject to the conditions contained in the Indenture, by irrevocably
depositing in trust with the Trustee cash and/or Eligible Obligations (as
defined below) (or a combination thereof) sufficient to pay the principal of,
premium, if any, and interest, if any, due and to become due on the Debt
Securities of such series in accordance with the terms of the Indenture and
such Debt Securities. (Section 401.)
The Indenture, with respect to all series of Debt Securities (except
for certain specified surviving obligations), will be discharged and canceled
upon the satisfaction of certain conditions, including: (a) the payment in
full of the principal of, and premium, if any, and interest, if any, on, all
of the Debt Securities or the deposit with the Trustee of an amount in cash or
Eligible Obligations (or a combination thereof) sufficient for such payment or
redemption in accordance with the Indenture; (b) the payment by the Company of
all other sums required under the Indenture; and (c) the delivery of a
certificate by the Company to the Trustee stating that all conditions relating
to the satisfaction and discharge of the Indenture have been complied with.
(Sections 102, 401 and 605.)
"Eligible Obligations" means: (a) with respect to Debt Securities
denominated in United States Dollars, Government Obligations (which include
direct obligations of, or obligations unconditionally guaranteed by, the
United States of America entitled to the benefit of the full faith and credit
thereof and certificates, depositary receipts or other instruments which
evidence a direct ownership interest in such obligations or in any specific
interest or principal payments due in respect thereof); and (b) with respect
to Debt Securities denominated in a currency other than United States Dollars
or in a composite currency, such other obligations or instruments as shall be
specified with respect to such Debt Securities, as contemplated by the
Indenture.
For United States federal income tax purposes, any deposit contemplated
by the first two paragraphs of this section may be treated as a taxable
exchange of the related Debt Securities for an issue of obligations of the
trust or a direct interest in the cash and securities held in the trust. In
that case, Holders of such Debt Securities would recognize gain or loss as if
the trust obligations or the cash or securities deposited, as the case may be,
had actually been received by them in exchange for their Debt Securities.
Such Holders thereafter would be required to include in income a share of the
income, gain or loss of the trust. The amount so required to be included in
income could be different from the amount that would be includable in the
absence of such deposit. Prospective investors are urged to consult their own
tax advisors as to the specific consequences to them of such deposit.
Governing Law
The Debt Securities and the Indenture will be governed by and construed
in accordance with the laws of the State of New York.
Regarding the Trustee
12
The Trustee has, from time to time, extended, and may continue to
extend, credit to the Company in the ordinary course of business. The Company
currently has a line of credit available from the Trustee. In addition, the
Trustee is currently acting as trustee under that certain Trust Indenture,
dated as of July 15, 1994, between the New Jersey Economic Development
Authority (the "NJEDA") and the Trustee pursuant to which the NJEDA issued its
Gas Facilities Refunding Revenue Bonds, the proceeds of which were loaned to
the Company pursuant to that certain Loan Agreement, dated as of July 15,
1994, between the NJEDA and the Company. Further, the Trustee is currently
acting as trustee under that certain Trust Indenture, dated as of July 15,
1994, between Brevard County, Florida (the "County"), and the Trustee pursuant
to which the County issued its Industrial Development Revenue Bonds, the
proceeds of which were loaned to the Company pursuant to that certain Loan
Agreement, dated as of July 15, 1994, between the County and the Company.
DESCRIPTION OF CAPITAL STOCK
Authorized Capital Stock
The Company is authorized to issue up to 30,000,000 shares of Common
Stock and 5,000,000 shares of preferred stock (the "Preferred Stock").
Common Stock
Each share of Common Stock is entitled to one vote on matters to be
voted upon by the shareholders and is not entitled to cumulative voting rights
in the election of directors. Under the Certificate of Incorporation of the
Company (the "Certificate of Incorporation"), the affirmative vote of the
holders of at least 75% of all of the then-outstanding shares of voting stock,
voting as a single class, are required to alter, amend or repeal the
provisions of the Certificate of Incorporation (or any provision of the By-
Laws of the Company (the "By-Laws") which is to the same effect) relating to
rights, preferences and limitations of each class of common and preferred
stock; the number, classification, election or removal of directors; action
taken by the Company's shareholders; the calling of special meetings of
shareholders; limited liability and indemnification rights of directors and
officers of the Company and amendment of the Certificate of Incorporation. In
the case of liquidation, dissolution or winding up of the Company's affairs,
whether voluntary or involuntary, all assets remaining after payment of
creditors and holders of all classes and series of Preferred Stock (if any are
outstanding) are required to be divided among the holders of the Common Stock
in proportion to their holdings. The holders of shares of Common Stock do not
have preemptive, redemption or conversion rights. Dividends on the Common
Stock may, by action of the Board, be declared and paid from time to time out
of retained earnings. The outstanding shares of Common Stock are, and the
shares of Common Stock which may be sold by the Company pursuant to this
Prospectus and any related Prospectus Supplement and Pricing Supplement will
be, if and when issued and delivered, validly issued, fully paid and
nonassessable.
13
Transfer Agent and Register
Mellon Securities Trust Company is the Transfer Agent and Registrar for
the Common Stock.
Preferred Stock
The Board is authorized to provide for the issuance of shares of
Preferred Stock, in one or more series, and to fix for each series such voting
powers, designations, preferences and relative, participating, optional and
other special rights, and such qualifications, limitations or restrictions, as
are stated in the resolution adopted by the Board providing for the issue of
such series and as permitted by New Jersey law.
Certain Anti-Takeover Effects
The Certificate of Incorporation and By-Laws provide that the Board
shall be divided into three classes with directors in each class serving three
year terms. Approximately one-third of the Board will be elected each year.
The classification of the Board pursuant to the By-Laws may delay shareholders
from removing a majority of the Board for two years, unless removal for cause
can be established and the required 75% vote for removal can be obtained, as
provided in the Certificate of Incorporation. Because the existence of a
classified board may operate to delay a potential purchaser's ability to
obtain control of the Board in a relatively short period of time, a classified
Board may have the effect of discouraging attempts to acquire significant
minority positions with the intent of obtaining control of the Company by
electing a slate of directors. Also, because neither the New Jersey Business
Corporation Act nor the Certificate of Incorporation of the Company requires
cumulative voting, a purchaser of a block of Common Stock constituting less
than a majority of the outstanding shares will have no assurance of
proportional representation on the Board.
The Certificate of Incorporation also provides that directors may be
removed only for cause and only by the affirmative vote of holders of at least
75% of the then-outstanding shares of voting stock, voting as a single class,
and that shareholder action can be taken only at an annual or special meeting
of shareholders, and prohibits shareholder action in lieu of a meeting unless
such action is by unanimous written consent. The Certificate of Incorporation
and the By-Laws provide that, subject to the rights of any holders of any
series of Preferred Stock, special meetings of shareholders can only be called
pursuant to a resolution adopted by a majority of the authorized directors of
the Company.
As described above, the Board is authorized to provide for the issuance
of shares of Preferred Stock, in one or more series, and to fix by resolution
of the Board, and to the extent permitted by New Jersey law, the terms and
conditions of each such series. The authorized shares of Preferred Stock, as
well as shares of Common Stock, are available for issuance without further
action by the shareholders, unless such action is required by applicable law
or the rules of the NYSE. Although the Board has no present intention of
doing so, it could issue a series of Preferred Stock that could, depending on
the terms of such series, impede the completion of a merger, tender offer or
other takeover attempt by including class voting rights that would enable the
14
holders thereof to block such a transaction. The Board will make any
determination to issue such shares based on its judgment as to the best
interests of the Company and its then existing shareholders.
These provisions could impede the completion of a merger, tender offer,
acquisition or other transaction that some or a majority of the shareholders
might believe to be in their best interests or in which the shareholders might
receive a premium for their stock over the then market price of such stock.
CERTAIN TAX CONSIDERATIONS
The applicable Prospectus Supplement will contain a brief summary of
the relevant United States federal income taxation laws applicable to the
Securities being offered thereby.
PLAN OF DISTRIBUTION
The Company may sell the Securities on a continuous basis (a) through
underwriters; (b) through dealers; (c) directly to one or more institutional
purchasers; or (d) through agents. Each Prospectus Supplement and any related
Pricing Supplement will set forth the terms of the offering of the Securities
offered thereby, including the name or names of any underwriters or agents,
the purchase price of such Securities and the proceeds to the Company from
such sale, any underwriting or agent discounts and other items constituting
underwriters' or agents' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time. Only firms
named in the Prospectus Supplement and any related Pricing Supplement are
deemed to be underwriters or agents in connection with the Securities offered
thereby. If an agent is used, such agent will use its reasonable best efforts
to solicit offers to purchase the Securities for the period of its
appointment. The Company will have the sole right to accept offers to
purchase Securities and may reject proposed purchases in whole or in part.
The agent will have the right, in its discretion reasonably exercised and
without notice to the Company, to reject any proposed purchase of Securities
through the agent in whole or in part.
The Securities may be acquired by the underwriters or the agents for
their own account and may be resold from time to time in one or more
transactions, including competitive bids or negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The Securities may be offered to the public either through underwriting
syndicates represented by one more managing underwriters or directly by one or
more of such firms.
The Debt Securities will not have an established trading market when
issued. The underwriter or agent may make a market in the Debt Securities but
will not be obligated to do so and may discontinue any market-making at any
time without notice. There can be no assurance that there will be a secondary
market for any of the Debt Securities or liquidity in the secondary market, if
one develops, or that any or all of the Debt Securities will be sold.
15
The Common Stock is currently traded on the NYSE under the symbol
"NUI."
Any agent, whether acting as agent or principal, may be deemed to be an
"underwriter" within the meaning of the Securities Act. The Company will
agree to indemnify the underwriters and the agents against certain
liabilities, including liabilities under the Securities Act, or to contribute
to payments that the underwriters and the agents may be required to make in
respect thereof. Underwriters, dealers and agents may engage in transactions
with or perform services for the Company in the ordinary course of business.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for
the Company by Mary Patricia Keefe, Esq., Union, New Jersey, Group Vice
President and General Counsel of Elizabethtown Gas Company, a Division of the
Company, and Kaye, Scholer, Fierman, Hays & Handler, New York, New York,
special counsel to the Company. The validity of such Securities will be
passed upon for any underwriters or agents by Winthrop, Stimson, Putnam &
Roberts, New York, New York. Kaye, Scholer, Fierman, Hays & Handler and
Winthrop, Stimson, Putnam & Roberts may rely on the opinion of Mary Patricia
Keefe, Esq. as to legal matters arising under New Jersey law.
EXPERTS
The Company's audited Consolidated Financial Statements, and audited
Summary Consolidated Financial Data incorporated by reference in this
Prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports thereon and are incorporated herein
by reference in reliance upon the authority of said firm as experts in giving
said reports.
16
No dealer, salesperson or any other person has been authorized to give
any information or to make any representations, other than those contained in
this Prospectus (including any accompanying Prospectus Supplement and Pricing
Supplement), in connection with the offer contained herein, and, if given or
made, such other information or representations must not be relied upon as
having been authorized by the Company. This Prospectus (including any
accompanying Prospectus Supplement and Pricing Supplement) does not constitute
an offer of any securities other than those to which it relates or an offer to
sell, or a solicitation of an offer to buy, those to which it relates by
anyone in any jurisdiction in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation. The delivery of this Prospectus (including
any accompanying Prospectus Supplement and Pricing Supplement) at any time
does not imply that the information herein is correct as of any time subse-
quent to its date or that there has been no change in the affairs of the
Company since the date as of which information was given herein.
__________
NUI CORPORATION
Debt Securities
Common Stock (No Par Value)
__________
TABLE OF CONTENTS
Page
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents by Reference . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Ratio of Earnings to Fixed Charges . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Description of Debt Securities . . . . . . . . . . . . . . . . . . . . . . 4
Description of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . 11
Certain Tax Consideration . . . . . . . . . . . . . . . . . . . . . . . . 13
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Expenses of the registrant in connection with the issuance and
distribution of the securities being registered, other than underwriting
discounts and commissions, are estimated to amount to the following:
Filing Fee -- Securities and Exchange Commission . $ 34,483
Listing Fee -- New York Stock Exchange . . . . . . 25,650 (1)
Legal fees (including blue sky expense) . . . . . . 285,000 (2)
Auditors' fees . . . . . . . . . . . . . . . . . . 50,000 (2)
Trustee's charges (including trustee's counsel fees) 25,550 (2)(3)
Transfer Agent and Registrar Fees . . . . . . . . . 1,000 (1)(2)
Printing and Engraving . . . . . . . . . . . . . . 40,000 (2)
Rating Agency Fees . . . . . . . . . . . . . . . . 75,000 (2)(3)
Miscellaneous . . . . . . . . . . . . . . . . . . . 20,000 (2)
Total assuming $100,000,000 of Common Stock
and $0 of Debt Securities (all items except
the first are estimated) . . . . . . . . . . . 456,500 (1)
Total assuming $100,000,000 of Debt Securities
and $0 of Common Stock (all items except the first
are estimated) . . . . . . . . . . . . . . . . 530,400 (3)
(1) Estimated, assuming $100,000,000 of Common Stock and $0 of Debt
Securities issued pursuant to this registration statement.
(2) Estimated, assuming six separate transactions, and subject to future
contingencies.
(3) Estimated, assuming $100,000,000 of Debt Securities and $0 of Common
Stock issued pursuant to this registration statement.
Item 15. Indemnification of Directors and Officers.
Pursuant to New Jersey Business Corporation Act, Section 14A:3-5, a
New Jersey corporation may indemnify its directors, officers, employees or
agents in their capacities as such, or when serving as such for any other
enterprise at the request of the corporation (each such person a "Corporate
Agent"), against expenses and liabilities in connection with any proceedings.
Good faith and a reasonable belief that the conduct was in or not opposed to
the best interests of the corporation and, with respect to a criminal
proceeding, no reasonable cause to believe that the conduct was unlawful, must
be found by a majority vote of a quorum of disinterested directors, by
independent legal counsel in a written opinion or by the shareholders. In
proceedings by or in the right of the corporation, a Corporate Agent, when the
above standards of conduct are found as set forth in the previous sentence,
may be indemnified for expenses. However, if a court judges a Corporate Agent
liable to the corporation, no indemnification shall be provided except as such
court deems proper. A Corporate Agent must be indemnified against expenses by
the corporation to the extent such Corporate Agent has been successful on the
II-1
merits or otherwise in a proceeding arising out of such Corporate Agent's
duties. A corporation may pay the expenses incurred by a Corporate Agent in
advance of final disposition of the proceeding if such payments are authorized
by the board of directors of the corporation upon the receipt of an
undertaking by or on behalf of such Corporate Agent to repay such amount if it
shall be ultimately determined that such Corporate Agent is not entitled to
indemnification under Section 14A:3-5 of the New Jersey Business Corporation
Act.
The Registrant has insurance policies covering certain of its
liabilities and expenses which might arise in connection with its lawful
indemnification of its directors and officers for certain of their liabilities
and expenses. In addition, the Registrant carries liability insurance on
behalf of its directors and officers against expenses incurred in proceedings
and for liabilities asserted against them by reason of their being or having
been a director or officer.
Item 16. Exhibits.
Exhibit
No. Description of Exhibit Reference
1-1 Form of Underwriting Agreement Filed herewith
relating Debt Securities
1-2 Form of Underwriting Agreement Filed herewith
relating to Common Stock
1-3 Form of Invitation for Bid, Filed herewith
Form of Bid and Form of Terms of
Purchase relating to Debt Securities
1-4 Form of Invitation for Bid, Filed herewith
Form of Bid and Form of Terms of
Purchase relating to Common Stock
1-5 Form of Distribution Agreement Filed herewith
relating to Debt Securities
3-1 Amended and Restated Certificate Incorporated by
of Incorporation reference to Exhibit
3(i) of the
Registrant's Form 10-K
Report for the
fiscal year ended
September 30, 1991
II-2
3-2 Amended and Restated By-Laws Incorporated by
reference to Exhibit
3(ii) of the
Registrant's Form 10-K
Report for the
fiscal year ended
September 30, 1991
4-1 Specimen certificate of Common Incorporated by
Stock, no par value reference to Exhibit
4(i) to Form S-2
Registration Statement
No. 33-46162
4-2 Form of Indenture Filed herewith
5 Opinion of Mary Patricia Filed herewith
Keefe, Esq.
12 Statement Re Computation of Ratio Filed herewith
of Earnings to Fixed Charges
23-1 Consent of Arthur Andersen LLP Filed herewith
23-2 Consent of Mary Patricia Keefe, Filed herewith
Esq. (contained in opinion filed
as Exhibit 5)
25 Statement of Eligibility of Trustee Filed herewith
26-1 Form of Invitation for Bids Included as part of
relating to Debt Securities Exhibit 1-3 hereof
26-2 Form of Invitation for Bids Included as part of
relating to Common Stock Exhibit 1-4 hereof
Exhibits listed above which have been filed previously with the
Securities and Exchange Commission pursuant to the Securities Act of 1933 or
the Securities Exchange Act of 1934 and which were designated as noted above
and have not been amended, are hereby incorporated by reference and made a
part hereof with the same effect as if filed herewith.
The Registrant is a party to various agreements with respect to long-
term indebtedness not being registered pursuant to which the total amount of
indebtedness authorized under each agreement, respectively, does not exceed
10% of the total assets of the Registrant and its subsidiaries on a
consolidated basis. The Registrant hereby agrees to furnish to the Securities
and Exchange Commission copies of such agreements upon request.
II-3
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement 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.
The undersigned Registrant hereby undertakes (1) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that times meets the requirements of Section 10(a) of the Act, and relating
to the securities offered at competitive bidding, as contained in the
registration statement, together with any supplements thereto, and (2) to file
an amendment to the registration statement reflecting the results of bidding,
the terms of the reoffering and related matters to the extent required by the
applicable form, not later than the first use, authorized by the issuer after
II-4
the opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by
the issuer and no reoffering of such securities by the purchasers is proposed
to be made.
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 Item 15 of this Registration Statement, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Township of
Bedminster, State of New Jersey, on the 15th day of November 1994.
NUI Corporation
(Registrant)
By: JOHN KEAN
John Kean, Chairman of the Board
II-6
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Capacity Date
JOHN KEAN Chairman of the November 15, 1994
John Kean Board (Principal
executive officer)
DAVID VINCENT Executive Vice November 15, 1994
David Vincent President (Chief
financial officer)
BERNARD F. LENIHAN Vice President November 15, 1994
Bernard F. Lenihan (Chief accounting
officer)
JOHN W. ATHERTON, JR. Director November 15, 1994
John W. Atherton, Jr.
CALVIN R. CARVER Director November 15, 1994
Calvin R. Carver
VERA FARRIS Director November 15, 1994
Dr. Vera King Farris
JAMES J. FORESE Director November 15, 1994
James J. Forese
ROBERT W. KEAN, JR. Director November 15, 1994
Robert W. Kean, Jr.
JACK LANGER Director November 15, 1994
Jack Langer
B. S. LEE Director November 15, 1994
Bernard S. Lee
R. V. WHISNAND Director November 15, 1994
R. V. Whisnand
JOHN WINTHROP Director November 15, 1994
John Winthrop
II-7
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit P/CE
1-1 Form of Underwriting Agreement CE
relating to Debt Securities
1-2 Form of Underwriting Agreement CE
relating to Common Stock
1-3 Form of Invitation for Bid, CE
Form of Bid and Form of Terms of
Purchase relating to Debt Securities
1-4 Form of Invitation for Bid, CE
Form of Bid and Form of Terms of
Purchase relating to Common Stock
1-5 Form of Distribution Agreement CE
relating to Debt Securities
4-2 Form of Indenture CE
5 Opinion of Mary Patricia CE
Keefe, Esq.
12 Statement Re Computation of Ratio CE
of Earnings to Fixed Charges
23-1 Consent of Arthur Andersen LLP CE
23-2 Consent of Mary Patricia Keefe, CE
Esq. (contained in opinion filed
as Exhibit 5)
24 Statement of Eligibility of Trustee CE