Proof of November 14, 1994 EXHIBIT NO. 1-1
[Form of Debt Security
Underwriting Agreement]
UNDERWRITING AGREEMENT
[Date]
To the Representatives
named in Schedule I
hereto of the several
Underwriters named in
Schedule II hereto
Dear Sirs:
NUI CORPORATION, a New Jersey corporation (the "Company"), proposes
to issue and sell to the persons named in Schedule II attached hereto (the
"Underwriters"), for whom the firms named in Schedule I attached hereto
are acting as representatives (the "Representatives"), an aggregate amount
of securities as set forth and described on Schedule I attached hereto
(the "Securities") of the Company. The Securities are described in the
Prospectus which is referred to below. If the firm or firms listed in
Schedule II attached hereto include only the firm or firms listed in
Schedule I attached hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such
firm or firms.
The Company has filed in accordance with the provisions of the
Securities Act of 1933 (the "Act") with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3 (with a
registration number and effective date as set forth on Schedule A attached
hereto), which registration statement includes a prospectus, for the
registration under the Act of the Securities. Such registration statement
and prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement. Such registration statement,
including the exhibits thereto, as amended as of the date of the sale of
any Securities, is hereinafter referred to as the "Registration
Statement." The Indenture (the "Indenture"), dated as of ____________
___, 1994, between the Company and First Fidelity Bank, National
Association, as trustee (the "Trustee"), has been qualified under the
Trust Indenture Act of 1939 (the "Trust Indenture Act"), and the Company
has duly authorized the issuance of the Securities. The Registration
Statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and complies in
all other material respects with said Rule. The Company proposes to file
with the SEC from time to time, pursuant to Rule 424 under the Act,
supplements to the prospectus relating to the Securities included in the
Registration Statement, which will describe certain terms of the
Securities and prior to any such filing will advise you of all further
information (financial and other) with respect to the Company to be set
forth therein. The term "Prospectus" means the prospectus in the form in
which it appears in the Registration Statement as it may have been amended
or supplemented from time to time prior to the date of this Agreement,
other than any amendment or supplement relating solely to securities other
than the Securities, together with the prospectus supplement or
supplements specifically relating to any Securities sold pursuant to this
Agreement (the "Prospectus Supplement"), in the form in which from time to
time it has most recently been filed with, or transmitted for filing to,
the SEC pursuant to Rule 424 under the Act. Any reference herein to the
Registration Statement and Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item
11 of Form S-3 which documents were filed under the Securities Exchange
Act of 1934 (the "Exchange Act").
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
the other terms and conditions herein set forth, the Company agrees to
sell to each of the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the
Securities set forth opposite the name of such Underwriter in Schedule II
attached hereto at the purchase price set forth on Schedule I attached
hereto plus accrued interest thereon, if any, from the date of original
issuance of the Securities to the Closing Date (as defined below). You
shall release the Securities for public sale promptly after the execution
and delivery of this Agreement. You may from time to time increase or
decrease the public offering price after the initial public offering of
the Securities to such extent as you may determine.
2. Payment and Delivery. Payment of the purchase price for the
Securities shall be made to the Company by certified, cashier's or
official bank check, payable in New York clearing house funds, against
credit with respect to the Securities for the respective accounts of the
Underwriters of the one or more global Securities to be deposited with The
Depository Trust Company ("DTC"). Such payment, deposit and credit shall
be made at such time and location as set forth in Schedule I attached
hereto, on the fifth Business Day (as defined in the Indenture) following
the day on which this Agreement shall become effective (unless another
date, time or place shall be agreed to by you and the Company or unless
postponed in accordance with the provisions of Section 10 hereof). The
time at which such payment, deposit and credit are actually made is
hereinafter called the "Closing" and the date of the Closing is
hereinafter called the "Closing Date." The Securities shall be issued in
book-entry form through the facilities of DTC. The Representatives agree
to furnish to DTC the names and denominations of the Securities for each
Underwriter not less than 72 hours prior to the Closing. If such
information is not received by that time, the Securities will be credited
to the account of one of the Representatives as a single credit and any
subsequent registration of transfer to effect a reallocation of the
Securities shall be the responsibility of the Underwriters.
3. Representations of the Company. The Company makes the
following representations to each of the Underwriters, all of which
representations shall survive the issuance and delivery of the Securities:
(a) The Company is a corporation duly organized and validly existing
and in good standing under the laws of the State of New Jersey and duly
qualified to do business in the States of Florida, Maryland, New York and
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North Carolina and the Commonwealth of Pennsylvania; the Company has full
power and authority to transact the business in which it is engaged, to
own and operate the properties used by it in such business, to execute and
deliver this Agreement and the Indenture and to perform its obligations
hereunder and thereunder; the conduct of the Company's business does not
make the qualification or licensing of the Company as a foreign
corporation necessary in any other state or jurisdiction where failure to
so qualify would materially adversely affect the transactions contemplated
by this Agreement, the Registration Statement or the Prospectus or have a
material adverse effect on the financial condition of the Company and its
subsidiaries taken as a whole; and the Company has the franchises
requisite to its business except for such franchises which the failure to
have would not have a material adverse effect on the financial condition
of the Company and its subsidiaries taken as a whole.
(b) The Company has duly authorized the execution, delivery and
performance of this Agreement, the Securities and the Indenture, and this
Agreement has been duly executed and delivered by the Company; as of the
time of the Closing, the Securities and the Indenture will have been duly
executed and delivered by the Company; the Indenture, when so executed and
delivered by the Company and duly authorized, executed and delivered by
the Trustee, will constitute, and the Securities, when so executed and
delivered by the Company and duly authenticated by the Trustee, will
constitute, the legal, valid and binding obligations of the Company
enforceable in accordance with their respective terms, except as the same
may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, or other laws relating to or affecting the
enforcement of creditors' rights generally and except to the extent that
the enforceability thereof may be limited by the application of general
principles of equity; the Securities, when duly authorized and delivered
by the Company and duly authenticated by the Trustee, will be entitled to
the benefit of the Indenture; all approvals or other actions by, or
filings with, any governmental authority required in connection with the
execution, delivery or performance by the Company of this Agreement, the
Indenture and the Securities have heretofore been obtained or taken other
than (i) in connection with any Prospectus Supplement to be filed or
transmitted for filing under the Act on or after the date hereof, (ii) the
required approvals, if any, by the Florida Public Service Commission, the
Public Service Commission of the State of Maryland, the Board of Public
Utilities of the State of New Jersey, the Public Service Commission of the
State of New York (the "NYPSC"), the Utilities Commission of the State of
North Carolina and the Public Utility Commission of the Commonwealth of
Pennsylvania (collectively, the "Utility Commissions"), and (iii) the
necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Securities are being offered by the
Underwriters; the Company has filed the required applications, if any, for
such required approvals by the Utility Commissions (other than any filing
for approval which may be required from the NYPSC after the execution of
this Agreement with respect to (i) the terms of this Agreement, (ii) the
terms of the Securities and the sale thereof, (iii) the terms of the
initial public offering of the Securities and (iv) any other similar or
related matters) and, as to each such application, the Company has no
reason to believe that the approval of such application will not be
received by the Company; neither the making of nor the performance by the
Company under this Agreement or the Indenture will conflict with or
violate any statutory or constitutional provision or the Company's
Articles of Incorporation or By-Laws or any indenture, mortgage, deed of
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trust, agreement or other instrument to which the Company or any of its
subsidiaries is a party or by which any of them or any of their properties
may be bound or any regulation, court order or consent decree to which the
Company or any of its subsidiaries is subject other than those conflicts
or violations which would not have a material adverse affect on the
general affairs or the financial position or the net assets of the Company
and its subsidiaries taken as a whole; the Company has duly authorized the
taking of any and all other actions necessary to carry out and give effect
to the transactions contemplated to be performed on its part by the
Registration Statement, the Prospectus, this Agreement and the Indenture;
the Company is not in material default under any obligation for borrowed
money; and no default will exist under the provisions of the Indenture
when executed and delivered.
(c) (i) Each part of the Registration Statement, when such part became
effective, 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 not misleading, (ii) the Registration
Statement, when it became effective, complied, and the Prospectus as of
the date hereof complies, and the Prospectus, when it will first be used
to confirm sales of the Securities and at the Closing Date, will comply in
all material respects with the Act and the Trust Indenture Act and the
applicable rules and regulations of the SEC thereunder, (iii) each
preliminary prospectus filed as part of the registration statement as
originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Act, complied when so filed in all material respects
with the Act and the rules and regulations of the SEC thereunder and (iv)
the Prospectus as of the date hereof does not contain and the Prospectus,
when it will first be used to confirm sales of the Securities and at the
Closing Date, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations set forth in this paragraph (c) do not
apply (A) to any statements or omissions in the Registration Statement or
the Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by, or on behalf of, any Underwriter
expressly for use in the Registration Statement or the Prospectus or (B)
to any statements in or omissions from that part of the Registration
Statement that shall constitute the Statement of Eligibility and
Qualification under the Trust Indenture Act of the Trustee (the "Statement
of Eligibility").
(d) The documents incorporated by reference in the Prospectus, when
they were filed with the SEC, complied as to form in all material respects
with the applicable requirements of the Act and the Exchange Act and the
rules and regulations of the SEC thereunder; and any further documents so
filed and incorporated by reference, when they are filed with the SEC will
comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the rules and regulations
of the SEC thereunder.
(e) There has been no material adverse change in the business,
properties or financial condition of the Company and its subsidiaries
taken as a whole from that shown in the Registration Statement or the
Prospectus.
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(f) Except as disclosed in the Registration Statement or the
Prospectus, there is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board
or body, pending or, to the knowledge of the Company, threatened against
the Company (or, to the knowledge of the Company, any meritorious basis
therefor) wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus, the validity or
enforceability of the Indenture or this Agreement, the corporate existence
or powers of the Company, the financial condition of the Company and its
subsidiaries taken as a whole, or the operation by the Company or its
subsidiaries of its properties.
4. The Underwriters' Representations. Each Underwriter makes the
following representations to the Company, all of which representations
shall survive the issuance and delivery of the Securities:
(a) The written information furnished to the Company by, or on behalf
of, each Underwriter for use in the Prospectus is correct as to such
Underwriter. Each Underwriter, in addition to other written information
furnished to the Company for use in the Prospectus, herewith furnishes to
the Company, through the Representatives, for use in the Prospectus, the
written information with regard to the public offering, if any, of the
Securities by such Underwriter and warrants and represents that such
written information is correct as to such Underwriter.
(b) Each Underwriter may lawfully purchase from the Company the
Securities that it has agreed to purchase pursuant to this Agreement.
5. Covenants of the Company. The Company hereby covenants and
agrees that it shall:
(a) As soon as reasonably practicable after the Company is advised
thereof, advise the Representatives and confirm the advice in writing of
any request made by the SEC for amendments to the Registration Statement
or the Prospectus or for additional information with respect thereto or of
the entry of a stop order suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceedings for that
purpose and, if such a stop order should be entered by the SEC, to make
every reasonable effort to obtain the lifting or removal thereof.
(b) Deliver to the Underwriters, without charge, as soon as reasonably
practicable and from time to time thereafter during such period of time
(not exceeding nine months) after the effective date of this Agreement as
the Underwriters are required by law to deliver a prospectus, as many
copies of the Prospectus (as supplemented or amended if the Company shall
have made any supplements or amendments thereto, other than supplements or
amendments relating solely to securities other than the Securities) as the
Representatives may reasonably request; and in case any Underwriter is
required to deliver a prospectus after the expiration of nine months after
the effective date of this Agreement, to furnish to the Representatives as
soon as reasonably practicable, upon request by the Representatives, a
reasonable quantity of a supplemental prospectus or of a Prospectus
Supplement complying with Section 10(a)(3) of the Act.
(c) Furnish to the Representatives a copy, certified by the Secretary
or an Assistant Secretary of the Company, of the Registration Statement as
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initially filed with the SEC and of all amendments thereto, other than
amendments relating solely to securities other than the Securities, and,
upon request, to furnish to the Representatives sufficient plain copies
thereof (exclusive of exhibits thereto) or of a composite of the
Registration Statement giving effect to all amendments thereto (exclusive
of exhibits thereto and of the Statement of Eligibility), other than
amendments relating solely to securities other than the Securities, for
distribution of one copy thereof to each of the other Underwriters.
(d) As soon as reasonably practicable, to make generally available to
its security holders and the Representatives an earning statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the rules and
regulations of the SEC promulgated under the Act.
(e) Use its reasonable best efforts to qualify the Securities for offer
and sale under the securities or "blue sky" laws of such jurisdictions as
the Representatives may designate within six months after the date hereof
and itself to pay, or to reimburse the Underwriters and their counsel for,
reasonable filing fees and actual out-of-pocket expenses in connection
therewith in an amount not exceeding $5,000 in the aggregate (including
filing fees and expenses paid and incurred prior to the date hereof),
provided, however, that the Company shall not be required to qualify as a
foreign corporation or to file a consent to service of process or to file
annual reports or to comply with any other requirements deemed by the
Company to be unduly burdensome.
(f) For such period of time (not exceeding nine months) after the
effective date of this Agreement as the Underwriters are required by law
to deliver a prospectus, if any event shall have occurred as a result of
which it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, forthwith prepare
and furnish, at its own expense, to the Underwriters and to dealers (whose
names and addresses are furnished to the Company by the Representatives)
to whom Securities may have been sold by the Underwriters and, upon
request, to any other dealers making such request at such dealers'
expense, copies of such amendments to the Prospectus or supplemental
information; in such case, the Company promptly will notify the
Representatives that the Underwriters shall suspend solicitation of offers
to purchase Securities and, if so notified by the Company, the
Underwriters covenant and agree that the Underwriters shall promptly
suspend such solicitation and cease using the Prospectus as then amended
or supplemented; upon the filing of an amendment or supplement to the
Registration Statement or Prospectus with the SEC or effectiveness of an
amendment to the Registration Statement, the Underwriters may resume the
solicitation of offers to purchase Securities hereunder.
(g) Pay the costs of preparing and reproducing or printing and
distributing this Agreement, the Indenture, such Securities, the
Registration Statement, the Prospectus (including the cost, if any, of
amending or supplementing and distributing the Registration Statement and
the Prospectus pursuant hereto) and the Blue Sky Memorandum; the fees of
rating agencies, if any; the fees and disbursements of accountants for the
Company; the fees and disbursements of the Trustee and counsel for the
Trustee, if any; and the costs (including counsel fees not to exceed
$5,000) of qualifying such Securities for sale under the Blue Sky or other
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securities laws of certain jurisdictions of the United States of America
and of preparing the Blue Sky Memorandum as set forth in Section 5(e)
hereof; provided, however, if the Underwriters shall not take up and pay
for the Securities due to the failure of the Company to comply with any of
the conditions specified in Section 7 hereof, or if this Agreement shall
be terminated in accordance with the provisions of Section 9 hereof, the
Company agrees to pay the reasonable fees and actual out-of-pocket
expenses of Winthrop, Stimson, Putnam & Roberts, as counsel to the
Underwriters.
(h) Between the date of this Agreement and the Closing Date, the
Company will not, without the Representatives' prior consent, offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Securities (other than (i) the
Securities that are to be sold pursuant to this Agreement, (ii) debt
securities previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of the Company's business),
except as may otherwise be provided in this Agreement.
6. Reimbursement of Underwriters' Expenses. If the Securities
are not delivered for any reason other than the termination of this
Agreement pursuant to Section 9 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, the
Company shall reimburse the Underwriters for all of their actual out-of-
pocket expenses.
7. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the fulfillment
of the following conditions at or before the Closing:
(a) The Company's representations contained herein shall be true in all
material respects on the date hereof and such representations shall be
true in all material respects on and as of the Closing Date.
(b) At the Closing, each of you shall receive an opinion of Kaye,
Scholer, Fierman, Hays & Handler, Special Counsel to the Company,
addressed to each of you, as the Representatives, dated the Closing Date
and in form and substance reasonably satisfactory to each of you,
substantially stating in effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of New
Jersey; the Company has full corporate power and authority to transact the
business in which it is engaged, to own and operate the properties used by
it in such business, to undertake the transactions contemplated by the
Registration Statement, to execute and deliver this Agreement, the
Indenture and the Securities and to perform its obligations hereunder and
thereunder.
(ii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iii) The Securities and the Indenture have been duly
authorized, executed and delivered by the Company; the Indenture has been
duly qualified under the Trust Indenture Act; the Securities, assuming due
authentication thereof by the Trustee, and the Indenture, assuming due
authorization, execution and delivery thereof by the Trustee, are the
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legal, valid and binding obligations of the Company; and the Securities,
assuming due authentication thereof by the Trustee, are entitled to the
benefit of the Indenture.
(iv) The making of and the performance by the Company under this
Agreement, the Indenture and the Securities and the carrying out by the
Company of the terms hereof and thereof do not violate or conflict with
any statutory or constitutional provision applicable to the Company or any
provision of the Company's Articles of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, agreement or other instrument filed as
an exhibit to the Registration Statement.
(v) The statements contained in the Registration Statement and the
Prospectus under the captions "Description of Debt Securities" and
["Supplemental Description of the Notes," except under the subheading
"Book Entry Notes,"] insofar as they relate to provisions of the
Securities and the Indenture, are accurate in all material respects.
(vi) The Registration Statement, when it became effective, and the
Prospectus, when it was filed with, or transmitted for filing to, the SEC
pursuant to Rule 424, each appeared on its face to be responsive in all
material respects to the applicable requirements of the Act and the Trust
Indenture Act and the rules and regulations promulgated thereunder by the
SEC (except as to the financial statements and schedules and other
financial, engineering and statistical data contained in the Registration
Statement, the Prospectus or documents incorporated in the Prospectus as
to which such counsel need express no opinion).
(vii) The Registration Statement has become effective under the
Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Act and no proceedings for that purpose have been instituted or
threatened under Sections 8(d) or 8(e) of the Act by the SEC.
In rendering their opinion, such counsel may rely, as to matters of
New Jersey law, on the opinion of Mary Patricia Keefe, Esq., Group Vice
President and General Counsel of Elizabethtown Gas Company, a Division of
the Company ("EGC"), referred to in Section 7(c) hereof, dated the Closing
Date and addressed to each of you, as the Representatives, and, as to
factual matters, on certificates of public officials and officers of the
Company, provided that copies of such opinion and certificates shall be
furnished to each of you, as the Representatives, and, provided further,
that, in the case of any such reliance, such counsel shall state that they
believe that they and the Underwriters are justified in relying on such
opinion and certificates for such matters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of Winthrop, Stimson, Putnam & Roberts,
representatives of the independent public accountants of the Company,
representatives of the Representatives, and Mary Patricia Keefe, Esq.,
Group Vice President and General Counsel of EGC, at which the contents of
the Registration Statement and the Prospectus were discussed and, although
in rendering the opinion expressed in subparagraph (vi) above and the
other opinions expressed in such opinion letter, such counsel is not
passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
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Statement or the Prospectus (except as and to the extent stated in
subparagraph (v) above), on the basis of the foregoing, nothing has come
to the attention of such counsel that leads them to believe that the
Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and, at the time the Prospectus was filed with the SEC pursuant
to Rule 424 and at the date of such opinion, the Prospectus contained or
contains any untrue statement of a material fact or omitted or omits 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 (it being understood that such counsel need express no opinion
with respect to the financial statements and schedules and other
financial, engineering and statistical data included or incorporated by
reference in the Registration Statement or the Prospectus and that part of
the Registration Statement that constitutes the Statement of Eligibility).
(c) At the Closing, each of you shall receive an opinion of Mary
Patricia Keefe, Esq., Group Vice President and General Counsel of EGC,
addressed to each of you, as the Representatives, dated the Closing Date
and in form and substance reasonably satisfactory to each of you,
substantially stating in effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of New
Jersey and is duly qualified to do business in the States of Florida,
Maryland, New York and North Carolina and the Commonwealth of
Pennsylvania; the Company has full power and authority to transact the
business in which it is engaged, to own and operate the properties used by
it in such business, to undertake the transactions contemplated by the
Registration Statement, to execute and deliver this Agreement, the
Securities and the Indenture and to perform its obligations hereunder and
thereunder; the conduct of the Company's business does not make the
qualification or licensing of the Company as a foreign corporation
necessary in any other state or jurisdiction where failure so to qualify
would adversely affect the transactions contemplated by this Agreement or
the Registration Statement or have a material adverse effect on the
financial condition of the Company; and the Company has the franchises
requisite to its business except for such franchises which would not have
a material adverse effect on the financial condition of the Company and
its subsidiaries taken as a whole.
(ii) The Securities and the Indenture have been duly authorized,
executed and delivered by the Company; the Securities, assuming due
authentication thereof by the Trustee, and the Indenture, assuming due
authorization, execution and delivery thereof by the Trustee, are the
legal, valid and binding obligations of the Company; and the Securities,
assuming due authentication thereof by the Trustee, are entitled to the
benefit of the Indenture.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The making of and the performance by the Company under the
Indenture, the Securities and this Agreement and the carrying out by the
Company of the terms thereof and hereof do not violate or conflict with
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any statutory or constitutional provision applicable to the Company or any
provision of the Company's Articles of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, agreement or other instrument to which
the Company or any of its subsidiaries is a party or by which any of them
or any of their properties may be bound or any regulation, court order or
consent decree to which the Company or any of its subsidiaries is subject
other than those conflicts or violations which would not have a material
adverse effect on the general affairs or the financial position or the net
assets of the Company and its subsidiaries taken as a whole.
(v) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board
or body, pending or, to her knowledge, threatened against the Company (or,
to her knowledge, any meritorious basis therefor) wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
transactions contemplated by this Agreement and the Registration
Statement, the validity or enforceability of this Agreement, the
Securities or the Indenture, the corporate existence or powers of the
Company, the business, properties or financial condition of the Company
and its subsidiaries taken as a whole or the operation by the Company or
its subsidiaries of its properties.
(vi) The Board of Public Utilities of the State of New Jersey has
issued appropriate orders with respect to the execution, delivery and
performance by the Company of this Agreement, the Indenture and the
Securities, and no other regulatory approval or consent is required to be
obtained, nor is any filing with any governmental entity required to be
made under the laws of the State of New Jersey or under federal law by the
Company in connection with the execution, delivery and performance of this
Agreement, the Indenture or the Securities or the consummation of the
transactions contemplated hereby or thereby; provided, however, that such
counsel shall not be required to express an opinion with respect to the
necessity for any (a) action under the laws of the States of Florida,
Maryland, New York or North Carolina or the Commonwealth of Pennsylvania,
as to which matters the Underwriters are relying upon the opinions, each
dated the Closing Date and addressed to each of you, as the
Representatives, of McWhirter, Reeves, McGlothlin, Davidson & Bakas; Piper
& Marbury; Cullen & Dykman; Brooks, Pierce, McLendon, Humphrey & Leonard;
and Malatesta, Hawke & McKeon, respectively (or in the case of any of the
foregoing counsel, other counsel reasonably acceptable to the
Representatives), and (b) qualification or other action under the Blue Sky
or securities laws of any jurisdiction.
(vii) The documents incorporated by reference in the
Registration Statement, when they were filed with the SEC, complied as to
form in all material respects with the applicable requirements of the Act
and the Exchange Act and the rules and regulations of the SEC thereunder.
(viii) The Registration Statement has become effective under the
Act and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under the
Act and no proceedings for that purpose have been instituted or threatened
under Sections 8(d) or 8(e) of the Act by the SEC.
In rendering her opinion, such counsel may rely, as to matters of
Florida, Maryland, New York, North Carolina and Pennsylvania law, on the
opinions of McWhirter, Reeves, McGlothlin, Davidson & Bakas; Piper &
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Marbury; Cullen & Dykman; Brooks, Pierce, McLendon, Humphrey & Leonard;
and Malatesta, Hawke & McKeon, respectively (or in the case of any of the
foregoing counsel, other counsel reasonably acceptable to the
Representatives), each such opinion dated the Closing Date and addressed
to each of you, as the Representatives, and as to factual matters on
certificates of public officials and officers of the Company, provided
that copies of such opinions and certificates shall be furnished to each
of you, as the Representatives, and, provided further, that, in the case
of any such reliance, she shall state that she believes that she and the
Underwriters are justified in relying on such opinions and certificates
for such matters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the
Company, representatives of the Representatives, representatives of Kaye,
Scholer, Fierman, Hays & Handler, special counsel for the Company, and
representatives of Winthrop, Stimson, Putnam & Roberts at which the
contents of the Registration Statement and the Prospectus were discussed
and, although such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, on
the basis of the foregoing nothing has come to the attention of such
counsel that causes her to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment
became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and, at the time
the Prospectus was filed with the SEC pursuant to Rule 424 and at the date
of such opinion, the Prospectus contained or contains any untrue statement
of a material fact or omitted or omits 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 (it being understood that such
counsel need express no opinion with respect to the financial statements
and schedules and other financial, engineering and statistical data
included or incorporated by reference in the Registration Statement or the
Prospectus and that part of the Registration Statement that constitutes
the Statement of Eligibility).
(d) At the Closing, each of you shall receive an opinion of Winthrop,
Stimson, Putnam & Roberts addressed to each of you, as the
Representatives, dated the Closing Date and in form and substance
reasonably satisfactory to each of you, substantially stating in effect
that:
(i) The Registration Statement has become effective under the Act,
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Act
and no proceedings for that purpose have been instituted or threatened
under Sections 8(d) or 8(e) of the Act by the SEC.
(ii) The descriptions and summaries of the Securities, this
Agreement and the Indenture contained in the Registration Statement and
the Prospectus under the captions "Description of Debt Securities," "Plan
of Distribution" and ["Supplemental Description of the Notes," except
under the subheading "Book Entry Notes,"] are accurate and fairly present
the information purported to be shown with respect thereto.
11
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Securities and the Indenture have been duly authorized,
executed and delivered by the Company; the Indenture has been qualified
under the Trust Indenture Act; the Securities, assuming due authentication
thereof by the Trustee, and the Indenture, assuming due authorization,
execution and delivery thereof by the Trustee, are the legal, valid and
binding obligations of the Company enforceable in accordance with their
respective terms, except as limited by (a) bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws affecting
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law); and the Securities, assuming due authentication thereof
by the Trustee, are entitled to the benefit of the Indenture.
(v) The Registration Statement, at the time it became effective,
and the Prospectus, at the time it was filed with, or transmitted for
filing to, the SEC (except in each case as to the financial statements and
schedules and other financial, engineering and statistical data contained
therein, as to which such counsel need express no opinion), complied as to
form in all material respects with the requirements of the Act and the
applicable rules and regulations of the SEC thereunder.
In passing upon the forms of the Registration Statement and the
Prospectus, such counsel may necessarily assume the correctness and
completeness of the statements made and information included therein by
the Company and take no responsibility therefor, except as set forth in
subparagraph (ii) above and except insofar as such statements and
information relate to such counsel. In addition, such counsel shall state
that, in the course of the preparation of the Registration Statement and
the Prospectus, such counsel has had conferences with certain of the
officers and employees of the Company, with the Representatives, with
Kaye, Scholer, Fierman, Hays & Handler, special counsel for the Company,
with the independent public accountants for the Company and with Mary
Patricia Keefe, Esq., Group Vice President and General Counsel of EGC and
reviewed the documents listed in the Registration Statement as being
incorporated therein by reference and, on the basis of the foregoing,
nothing has come to the attention of such counsel that leads them to
believe that the Registration Statement or any amendment thereto at the
time such Registration Statement or amendment became effective contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and, at the time the Prospectus was filed with the SEC
pursuant to Rule 424 and at the date of such opinion, the Prospectus
contained or contains any untrue statement of a material fact or omitted
or omits 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 (it being understood that such counsel need
express no opinion with respect to the financial statements and schedules
and other financial, engineering and statistical data included or
incorporated by reference in the Registration Statement or the Prospectus
and that part of the Registration Statement that constitutes the Statement
of Eligibility).
In rendering their opinion, such counsel may rely, as to matters of
New Jersey law, on the opinion of Mary Patricia Keefe, Esq., Group Vice
12
President and General Counsel of EGC, referred to in Section 6(c) hereof,
dated the Closing Date and addressed to each of you, as the
Representatives, and, as to factual matters, on certificates of public
officials and officers of the Company, provided that copies of such
opinion and certificates shall be furnished to each of you, as the
Representatives, and, provided further, that, in the case of any such
reliance, such counsel shall state that they believe that they and the
Underwriters are justified in relying on such opinion and certificates for
such matters.
(e) At the Closing, each of you shall receive an opinion of each of
McWhirter, Reeves, McGlothlin, Davidson & Bakas; Piper & Marbury; Cullen &
Dykman; Brooks, Pierce, McLendon, Humphrey & Leonard; and Malatesta, Hawke
& McKeon, respectively (or in the case of any of the foregoing counsel,
other counsel reasonably acceptable to the Representatives), addressed to
each of you, as the Representatives, each dated the Closing Date and in
form and substance reasonably satisfactory to the Representatives,
substantially to the effect set forth in Exhibits A-1 through A-5 attached
hereto.
(f) At the Closing, each of you shall receive a letter or letters of
the Company's independent public accountants, addressed to each of you, as
the Representatives, dated the Closing Date and in form and substance
reasonably satisfactory to each of you, substantially stating in effect
that:
(i) With respect to the Company they are independent public
accountants within the meaning of the Act.
(ii) In their opinion, the audited consolidated financial
statements included in the Company's 10-K Report for the most recent
fiscal year-end (the "10-K Report") and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the published
rules and regulations of the SEC thereunder with respect to annual reports
on Form 10-K.
(iii) They consent to the incorporation by reference in the
Registration Statement of their report, dated __________ __, ____,
appearing in the 10-K Report and to the reference to them under the
caption "Experts" in the Registration Statement.
(iv) On the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of: (A)
reading of the minutes of the Board of Directors of the Company and its
subsidiaries subsequent to the most recent fiscal year-end, as set forth
in the minute books to a specified date not more than five business days
prior to the Closing, (B) reading the unaudited condensed consolidated
financial statements of the Company and its subsidiaries incorporated by
reference in the Registration Statement and (C) making inquiries of
officials of the Company and its subsidiaries who have responsibility for
financial and accounting matters, nothing has come to their attention that
caused them to believe that (a) the unaudited condensed consolidated
financial statements incorporated by reference in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the published
rules and regulations of the SEC thereunder with respect to reports on
13
Form 10-Q or are not presented fairly in conformity with generally
accepted accounting principles applied on a basis substantially consistent
with that of the most recent audited consolidated financial statements
incorporated by reference in the Registration Statement, (b) at a
specified date not more than five business days prior to the date of this
letter there was any change in capital stock, short-term debt or long-term
debt or any decrease in the net assets of the Company and its subsidiaries
consolidated as compared with the corresponding amounts shown in the most
recent unaudited consolidated balance sheet incorporated by reference in
the Registration Statement, except in all instances for changes or
decreases which the Registration Statement discloses have occurred or may
occur, and except for such other changes or decreases as the Underwriters
shall, in their sole discretion, accept, or (c) for the period from
__________ __, ____ through a specified date not more than five business
days prior to the date of this letter there were any decreases in total
consolidated operating revenues or net income, as compared with the
corresponding period in the preceding year, except in all instances for
changes or decreases which the Registration Statement discloses have
occurred or may occur, and except for such other changes or decreases as
the Underwriters shall, in their sole discretion, accept.
(v) They have performed specified procedures set forth in detail
in such letter in connection with certain data set forth or incorporated
by reference in the Registration Statement, as reasonably requested by the
Representatives, and which are expressed in dollars or percentages derived
from dollar amounts, and have found such data to be in agreement with the
general accounting records of the Company.
(g) No stop order with respect to the effectiveness of the Registration
Statement shall have been issued under the Act and no proceedings for that
purpose shall have been instituted or threatened under Sections 8(d) or
8(e) of the Act by the SEC.
(h) Between the time of the execution of this Agreement and the Closing
Date, no materially adverse change in the general affairs or in the
financial position or net assets of the Company and its subsidiaries,
taken as a whole, from that shown in the Registration Statement or the
Prospectus has occurred, other than changes disclosed by or contemplated
in the Registration Statement or the Prospectus.
(i) The Company shall, at the Closing, deliver to each of you, as the
Representatives, a certificate of its Chairman of the Board, its
President, any of its Vice Presidents or its Treasurer to the effect that
the conditions set forth in paragraphs (a), (g), (h) and (k) of this
Section 7 have been met, that they are true in all material respects as of
such date and attaching true and complete copies of each order required
from the Utility Commissions in connection with the issuance of the
Securities.
(j) The Company shall have furnished to the Representatives and their
counsel such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement and the
Prospectus as of the Closing Date as the Underwriters or their counsel may
reasonably request.
14
(k) The Company shall have performed, in all material respects, such of
its obligations under this Agreement that are to be performed at or before
the Closing Date.
(l) The Securities shall have been duly authorized, executed and
authenticated in accordance with the provisions of the Indenture and any
applicable orders of the Utility Commissions.
(m) At the time of the Closing, the Indenture shall be in full force
and effect, shall have become and shall be qualified under the Trust
Indenture Act and shall not have been amended, modified, or supplemented
subsequent to the date hereof except as may have been disclosed in the
Prospectus or agreed to in writing by the Representatives.
(n) The Registration Statement shall have become effective on or before
the date of this Agreement and shall be effective on the Closing Date.
The Prospectus shall have been filed with the SEC pursuant to Rule 424
under the Act on or before the date required for such filing pursuant to
such Rule.
[Provision applicable only if debt service insurance option elected by
the Company.]
[(o) In the event that a debt service insurance policy is obtained, an
effective debt service insurance policy.]
8. Conditions of the Company's Obligations. The obligation of
the Company to sell and deliver the Securities is subject to the
fulfillment of the following conditions at the time of the Closing:
(a) No stop order with respect to the effectiveness of the Registration
Statement shall have been issued under the Act and no proceedings for that
purpose shall have been instituted or threatened under Sections 8(d) or
8(e) of the Act by the SEC.
(b) Concurrently with or prior to the delivery of the Securities to
you, the Company shall receive the full purchase price to be paid for such
Securities.
(c) There shall be in full force and effect authorizations of each of
the Utility Commissions that are required with respect to the
participation of the Company in the transactions contemplated herein and
in the Registration Statement or the Prospectus, and none of such
authorizations shall contain a provision unacceptable to the Company, it
being agreed that all such authorizations existing on the date of this
Agreement do not contain any such unacceptable provisions other than any
provision that the Company has informed the Representatives, on or prior
to the date hereof, is unacceptable to the Company.
(d) The Underwriters' representations hereunder shall be true in all
material respects on the date hereof, and such representations shall be
true in all material respects on and as of the Closing Date.
In case any of the conditions specified in this Section 8 shall not
have been fulfilled, this Agreement and the Company's obligation to
participate in the transactions contemplated herein may be terminated by
the Company upon mailing or delivering written notice thereof to the
15
Representatives. Any such termination shall be without liability of any
party to any other party except to the extent provided in Section 11
hereof.
9. Events Permitting Termination. The Representatives may
terminate the Underwriters' obligations to purchase the Securities at any
time before the Closing if any of the following occurs:
(a) trading in securities listed on the New York Stock Exchange, the
American Stock Exchange or the National Association of Securities Dealers
Automated Quotation system ("NASDAQ") shall have been generally suspended,
or trading in Company securities on any exchange or NASDAQ on which such
securities are traded shall have been suspended, or minimum prices shall
have been generally established on the New York Stock Exchange, the
American Stock Exchange or NASDAQ, or a general banking moratorium shall
have been declared either by the United States of America or New York
State authorities, or the United States of America shall have declared war
in accordance with its constitutional processes or there shall have
occurred any material outbreak or escalation of hostilities or other
national or international calamity or crisis of such magnitude in its
effect on the financial markets of the United States of America as, in the
reasonable judgment of the Representatives, to make it impracticable to
market the Securities;
(b) any event or condition which, in the reasonable judgment of the
Representatives, renders untrue or incorrect, in any material respect as
of the time to which the same purports to relate, the information,
including, without limitation, the financial statements, contained or
incorporated by reference in the Registration Statement or the Prospectus,
or which requires that information not reflected in such Registration
Statement or the Prospectus should be reflected therein in order to make
the statements and information contained therein not misleading in any
material respect as of such time; or
(c) a downgrading or withdrawal of any rating of the Securities by a
nationally recognized statistical rating organization which, in the
reasonable judgment of the Representatives, may substantially impair the
marketability or reduce the market price of the Securities.
If the Representatives elect to terminate this Agreement as
provided in this Section 9, the Company shall be notified promptly in
writing by letter or telegram.
If the sale to the Underwriters of the Securities, as contemplated
by this Agreement, is not consummated by the Underwriters for any reason
permitted under this Agreement or if such sale is not consummated because
the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability
under this Agreement (except to the extent provided in Sections 6 and 11
hereof), and the Underwriters shall be under no obligation or liability to
the Company under this Agreement (except to the extent provided in Section
11 hereof) or to one another hereunder.
10. Default by One or More Underwriters. If one or more of the
Underwriters defaults, the remaining Underwriters, if any, are obligated
to take up and pay for at the Closing additional Securities not exceeding
10% of their respective participations. Should the total aggregate
16
participation of the defaulting Underwriter or Underwriters exceed 9.09%
of the total principal amount of the Securities to be purchased as set
forth on Schedule I attached hereto, (a) the Representatives shall use
their best efforts to arrange for a substitute Underwriter or Underwriters
within 24 hours of notice from the Company of such default, to purchase
all, but not less than all, of the total participation of the defaulting
Underwriter or Underwriters upon the terms set forth in this Agreement,
and (b) if the Representatives shall fail to arrange for such a substitute
Underwriter or Underwriters within such 24-hour period, the Company shall
be entitled to an additional 24-hour period within which to arrange for a
substitute Underwriter or Underwriters, to purchase all, but not less than
all, of the total participation of the defaulting Underwriter or
Underwriters upon the terms set forth in this Agreement. In either event,
the Representatives or the Company shall have the right to postpone the
Closing for a period not to exceed five full business days from the date
determined as provided in Section 2 hereof, in order that the necessary
changes in the Registration Statement and the Prospectus and any other
documents and arrangements may be effected. If the Representatives and
the Company shall fail to procure a substitute Underwriter or
Underwriters, as above provided, to purchase or agree to purchase all, but
not less than all, of the total participation of the defaulting
Underwriter or Underwriters, then this Agreement shall terminate. In the
event of any such termination, the Company shall not be liable to any non-
defaulting Underwriter, nor shall any non-defaulting Underwriter be liable
to the Company; provided, however, that each defaulting Underwriter shall
not be released from its liability to the Company for damages occasioned
by such default under this Agreement.
The term Underwriter as used in this Agreement shall refer to and
include any underwriter substituted under this Section 10 with like effect
as if such substituted underwriter had originally been named in Schedule
II attached hereto.
11. Indemnity by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter and any person who controls any Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act from and
against any loss, expense, liability or claim (including, without
limitation, the reasonable cost of investigation) which, jointly or
severally, such Underwriter or such controlling person may incur under the
Act, the Exchange Act or otherwise insofar as such loss, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or any amendment or supplement thereto, or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements made therein, in the light of the circumstances under which
they were made, not misleading, except insofar as any such loss, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing to the Company by, or on behalf of,
any Underwriter expressly for use with reference to such Underwriter in
the Registration Statement or the Prospectus or any amendment or
supplement thereto, or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such
information necessary to make such information not misleading, provided,
17
however, that the indemnity agreement contained in this Section 11(a) with
respect to the Registration Statement or the Prospectus shall not inure to
the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such
loss, expense, liability or claim purchased the Securities which are the
subject thereof if the Prospectus or any amended Prospectus corrected any
such alleged untrue statement or omission and if such Underwriter failed
to send or give a copy of the Prospectus or any amended Prospectus, as the
case may be, to such person at or prior to the written confirmation of the
sale of such Securities to such person.
If any action is brought against an Underwriter or a controlling
person of an Underwriter in respect of which indemnity may be sought
against the Company pursuant to the foregoing paragraph, such Underwriter
or such controlling person, as the case may be, shall promptly notify the
Company in writing of the institution of such action and the Company shall
assume the defense of such action, including, without limitation, the
employment of counsel (which counsel shall be reasonably satisfactory to
such person or entity, as the case may be) and payment of reasonable
expenses related thereto. Such Underwriter and such controlling person
shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person, as the case may be, unless the
employment of such counsel shall have been authorized in writing by the
Company in connection with the defense of such action or the Company shall
not have employed counsel to have charge of the defense of such action or
such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to the Company (in which case the Company
shall not have the right to direct the defense of such action on behalf of
the indemnified party or parties), in any of which events such reasonable
fees and expenses shall be borne by the Company (it being understood,
however, that the Company shall not be liable for the expenses of more
than one separate counsel in any one action or series of related actions
in the same jurisdiction representing the indemnified parties who are
parties to such action). Anything in this paragraph to the contrary
notwithstanding, the Company shall not be liable for any settlement of any
claim or action effected without its written consent, which consent shall
not be unreasonably withheld.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, each of its directors and officers and any person
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any loss, expense,
liability or claim (including, without limitation, the reasonable cost of
investigation) which, jointly or severally, the Company or any such
director, officer or controlling person may incur under the Act, the
Exchange Act or otherwise insofar as such loss, expense, liability or
claim arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in and in conformity with
information furnished in writing to the Company by, or on behalf of, such
Underwriter expressly for use with reference to such Underwriter in the
Registration Statement or the Prospectus or any amendment or supplement
thereto, or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such written
information necessary to make such written information, in the light of
18
the circumstances under which such written information is used, not
misleading.
If any action is brought against the Company or any director,
officer or controlling person of the Company in respect of which indemnity
may be sought against any Underwriter pursuant to the foregoing paragraph,
the Company or any such director, officer or controlling person shall
promptly notify such Underwriter in writing of the institution of such
action and such Underwriter shall assume the defense of such action,
including, without limitation, the employment of counsel (which counsel
shall be reasonably satisfactory to such person or entity, as the case may
be) and payment of reasonable expenses related thereto. The Company and
such director, officer and controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Company or such
person, as the case may be, unless the employment of such counsel shall
have been authorized in writing by such Underwriter in connection with the
defense of such action or such Underwriter shall not have employed counsel
to have charge of the defense of such action or such indemnified party or
parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to such Underwriter (in which case such Underwriter shall not
have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such reasonable fees
and expenses shall be borne by such Underwriter (it being understood,
however, that such Underwriter shall not be liable for the expenses of
more than one separate counsel in any one action or series of related
actions in the same jurisdiction representing the indemnified parties who
are parties to such action). Anything in this paragraph to the contrary
notwithstanding, no Underwriter shall be liable for any settlement of any
claim or action effected without the written consent of such Underwriter,
which consent shall not be unreasonably withheld.
(c) If the indemnification provided in this Section 11 is unavailable
to an indemnified party under paragraphs (a) and (b) of this Section 11 in
respect of any losses, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, expenses, liabilities
or claims (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other hand from the offering of the Securities 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 of the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault of the
Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or
19
alleged omission relates to information supplied by the Company or by the
Underwriters, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, expenses, liabilities and claims referred to above shall be deemed
to include any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any claim or action.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 11 were determined
by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph
(c) of this Section 11. Notwithstanding the provisions of this Section
11, no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities purchased by
it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue statement or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 11 are several in
proportion to their respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section
11 and the covenants and representations of the Company and the
Underwriters contained in this Agreement shall remain in full force and
effect regardless of any investigation made by, or on behalf of, any
Underwriter, or any person who controls any Underwriter within the meaning
of Section 15 of the Act, or by, or on behalf of, the Company, each of its
directors, officers or any person who controls the Company within the
meaning of Section 15 of the Act, and shall survive any termination of
this Agreement or the issuance and delivery of the Securities. The
Company and each Underwriter agree promptly to notify the others of the
commencement of any litigation or proceeding against it or any person who
controls it within the meaning of Section 15 of the Act and, in the case
of the Company, against any of its officers and directors, in connection
with the issuance and sale of the Securities, or in connection with the
Registration Statement, the Prospectus or any amendment or supplement
thereto.
[12. Debt Service Insurance. Provisions to be inserted, if
applicable.]
13. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and,
if to the Underwriters, shall be sufficient in all respects if delivered
or sent to the Representatives at the address set forth in Schedule I
attached hereto and, if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company
at 550 Route 202-206, P.O. Box 760, Bedminster, New Jersey 07921-0760,
Attention: Corporate Secretary.
14. Parties at Interest. The agreement herein set forth has been
and is made solely for the benefit of the Underwriters, the Company and
the controlling persons, directors and officers referred to in Section 11
20
hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association, corporation or
other entity (including, without limitation, a purchaser, as such
purchaser, from one or more of the Underwriters) shall acquire or have any
right under or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement
among the parties.
16. Construction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without
giving effect to any conflict of law provisions thereof. The section
headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
17. Time is of Essence. Time shall be of the essence with
respect to this Agreement.
If the foregoing correctly sets forth the understanding among the
Company, and the Underwriters, please so indicate in the space provided
below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Company, and the Underwriters,
severally.
Very truly yours,
NUI CORPORATION
By:
Name:
Title:
Accepted and agreed to as of the date first
above written, on behalf of itself and the
other several Underwriters named in
Schedule II attached hereto.
By:
By:
Name:
Title:
21
Schedule I
Registration Number:
Representatives Names:
Address for Notice:
Description of Securities to be Offered:
Amount of Securities to be Offered:
Purchase Price of Securities to be Offered
Closing Date, Time and Location:
[Provisions regarding debt service insurance, if any.]
22
Schedule II
Underwriters Principal Amount of Securities
23
EXHIBIT A-1
[Letterhead of McWhirter, Reeves, McGlothlin, Davidson & Bakas or other
Florida Counsel reasonably acceptable to the Purchasers]
[the Closing Date]
The Representatives
Listed in Schedule I to the
Underwriting Agreement, dated
________ __, ____ (the "Agreement"),
of the several Underwriters named in
Schedule II to the Agreement
Mary Patricia Keefe, Esq.
Vice President and General Counsel
Elizabethtown Gas Company
One Elizabethtown Plaza
Union, New Jersey 07083
Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
Re: $______ ,____________
of NUI Corporation
We have acted as local counsel to NUI Corporation, a
New Jersey corporation (the "Company"), in connection with the
sale on the date hereof of $________ aggregate principal amount
of the Company's _________________ , to the Underwriters named in
Schedule II to the Agreement.
In such capacity, we have examined originals or copies,
identified to our satisfaction, of the Agreement, the Securities
(as defined in the Agreement), the Indenture (as defined in the
Agreement) and such other documents and instruments as we have
deemed necessary or appropriate. We have also examined such
certificates, documents and records of officers of the Company
and public officials as we have deemed necessary in connection
with the opinions hereinafter set forth.
Based upon the foregoing, we are of the opinion that:
1. The Company is duly qualified to do business in
the State of Florida and has full power and authority under the
laws of the State of Florida to transact the business in which it
is engaged in the State of Florida and to own and operate the
properties used by it in such business.
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2. The Florida Public Service Commission has issued
appropriate orders with respect to authorizing the execution,
delivery and performance by the Company of the Agreement, the
Indenture and the Securities and no other approval or consent is
required to be obtained, nor is any filing with any governmental
authority required to be made, by the Company under the laws of
the State of Florida in connection with the execution, delivery
and performance of the Agreement, the Indenture or the Securities
or the consummation of the transactions contemplated thereby;
provided, however, that we express no opinion with respect to the
necessity for any qualification or other action under the Blue
Sky or securities laws of any jurisdiction of the United States
of America.
The reference to filings required by governmental
authorities or approvals and consents does not encompass
informational, post-closing "consummation reports" routinely
submitted to the Florida Public Service Commission after it has
provided the requisite authority for the transaction.
We express no opinion regarding any law other than the
laws of the State of Florida.
Very truly yours,
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EXHIBIT A-2
[Letterhead of Piper & Marbury or other Maryland Counsel
reasonably acceptable to the Purchasers]
[the Closing Date]
(Points to be covered)
1. The Company is duly qualified to do business in
the State of Maryland and has full power and authority under the
laws of the State of Maryland to transact the business in which
it is engaged in the State of Maryland and to own and operate the
properties used by it in such business.
2. No approval or consent is required to be obtained,
nor is any filing with any governmental authority required to be
made, by the Company under the laws of the State of Maryland in
connection with the execution, delivery and performance of the
Agreement, the Indenture or the Securities or the consummation of
the transactions contemplated thereby; provided, however, that we
express no opinion with respect to the necessity for any
qualification or other action under the Blue Sky or securities
laws of any jurisdiction.
A-2-1
EXHIBIT A-3
[Letterhead of Cullen & Dykman or other New York Counsel
reasonably acceptable to the Purchasers]
[the Closing Date]
(Points to be covered)
1. The Company is duly qualified to do business in
the State of New York and has full power and authority under the
laws of the State of New York to transact the business in which
it is engaged in the State of New York and to own and operate the
properties used by it in such business.
2. The Public Service Commission of the State of New
York has issued appropriate orders with respect to the execution,
delivery and performance by the Company of the Agreement, the
Indenture and the Securities, and no other approval or consent is
required to be obtained, nor is any filing with any governmental
authority required to be made, by the Company under the laws of
the State of New York in connection with the execution, delivery
and performance of the Agreement, the Indenture or the Securities
or the consummation of the transactions contemplated thereby;
provided, however, that we express no opinion with respect to the
necessity for any qualification or other action under the Blue
Sky or securities laws of any jurisdiction.
A-3-1
EXHIBIT A-4
[Letterhead of Brooks, Pierre, McLendon, Humphrey & Leonard or
other
North Carolina Counsel reasonably acceptable to the Purchaser]
[the Closing Date]
(Points to be covered)
1. The Company is duly qualified to do business in
the State of North Carolina and has full corporate and regulatory
power and authority under the laws of the State of North Carolina
to transact the business in which it is engaged in the State of
North Carolina and to own and operate the properties used by it
in such business.
2. No approval or consent is required to be obtained,
nor is any filing with any governmental authority required to be
made, by the Company under the laws of the State of North
Carolina in connection with the execution, delivery and
performance of the Agreement, the Indenture or the Securities or
the consummation of the transactions contemplated thereby;
provided, however, that we express no opinion with respect to the
necessity for any qualification or other action under the Blue
Sky or securities laws of any jurisdiction.
A-4-1
EXHIBIT A-5
[Letterhead of Malatesta, Hawke, McKeon or other Pennsylvania
Counsel reasonably acceptable to the Purchasers]
[the Closing Date]
(Points to be covered)
1. The Company is duly qualified to do business in
the Commonwealth of Pennsylvania and has full power and authority
under the laws of the Commonwealth of Pennsylvania to transact
the business in which it is engaged in the Commonwealth of
Pennsylvania and to own and operate the properties used by it in
such business.
2. The Public Utility Commission of the Commonwealth
of Pennsylvania has issued the appropriate Secretarial Letter
with respect to the execution, delivery and performance by the
Company of the Agreement, the Indenture and the Securities, and
no other approval or consent is required to be obtained, nor is
any filing with any governmental authority required to be made,
by the Company under the laws of the Commonwealth of Pennsylvania
in connection with the execution, delivery and performance of the
Agreement, the Indenture or the Securities or the consummation of
the transactions contemplated thereby; provided, however, that we
express no opinion with respect to the necessity for any
qualification or other action under the Blue Sky or securities
laws of any jurisdiction.
A-5-1