Proof of November 14, 1994 EXHIBIT NO. 1-4
NUI CORPORATION
INVITATION FOR BIDS FOR THE PURCHASE OF
COMMON STOCK OF NUI CORPORATION
NUI Corporation (the "Company") hereby invites bids, subject to
the terms and conditions hereof, for the purchase from it of ______ shares
of Common Stock, no par value ("Common Stock"), of the Company (the
"Securities"). A brief description of the Securities is contained in the
Registration Statement and the Prospectus referred to hereinafter.
1. Information Concerning the Company
and the Securities
Prospective bidders may examine, at the offices of counsel for
the Purchasers (as defined below), Winthrop, Stimson, Putnam & Roberts,
One Battery Park Plaza, New York, New York 10004, copies of the following
documents:
(a) The registration statement (No. 33-____) of the Company and
any amendments thereto (including the documents incorporated therein by
reference, at the time of such examination and exhibits) under the
Securities Act of 1933 with respect to the Securities (the "Registration
Statement"), the related prospectus (including applicable supplements
thereto) (the "Prospectus") and any orders of the Securities and Exchange
Commission (the "SEC") related thereto;
(b) The form of bid to be used by bidders in offering to
purchase the Securities (the "Bid"), which includes the terms of the
purchase of the Securities (the "Terms of Purchase");
(c) Forms of opinions to be furnished to the successful bidder
or bidders by Mary Patricia Keefe, Esq., Group Vice President and General
Counsel of Elizabethtown Gas Company, a Division of the Company, by Kaye,
Scholer, Fierman, Hays & Handler, special counsel to the Company, by
Winthrop, Stimson, Putnam & Roberts, who have been selected by the Company
to act as counsel for the purchasers of the Securities (the "Purchasers"),
and by local counsel, selected by the Company, in Florida, Maryland, New
York, North Carolina and Pennsylvania;
(d) The preliminary memorandum of Winthrop, Stimson, Putnam &
Roberts, with respect to the qualification of the Securities for sale
under the state securities and blue sky laws of various jurisdictions of
the United States of America (the "Blue Sky Memorandum"); and
(e) To the extent required and available, the orders of 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
Utilities Commission of the State of North Carolina and the Public Utility
Commission of the Commonwealth of Pennsylvania with respect to the
participation of the Company in the contemplated transactions.
Copies of said documents will be supplied in reasonable
quantities on request to prospective bidders. The Company reserves the
right to amend or supplement the Registration Statement and the Prospectus
and to make changes in the forms of the other documents relating to the
issuance of the Securities. Any reference to said documents herein shall
include any amendments or changes so made. The Company will give
telephone notice (confirmed promptly in writing) of any such amendment or
change made prior to the opening of bids, which amendment or change is
considered by counsel for the Purchasers to be material, to each
prospective single bidder and to the Representative (hereinafter defined)
of each group of prospective bidders from whom counsel to the Purchasers,
Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New
York 10004, Attention: Michael F. Cusick, Esq. (Tel. (212) 858-1238),
shall have received a written request to be informed of such amendments or
changes. Copies of any such amendments and descriptions of any such
changes will be made available for examination at said offices of counsel
to the Purchasers.
2. Representative of Group of Bidders
In the case of a bid by a group of bidders, the several bidders
in the group shall act through a duly authorized representative or
representatives (the "Representative"), who may be included in such group.
The Company shall be entitled to assume in all matters contemplated hereby
that any Representative, and in case such Representative consists of two
or more persons, then any of such persons, is fully authorized to
represent and act for each member of the group of bidders, including,
without limitation, the right to rely on any statement made by such
Representative or any person on behalf of the Representative as to the
amount of the participation of the members of such group or as to changes
made in any agreement among members of such group and the right to rely on
the authority of the Representative or the person on behalf of the
Representative to execute and submit the bid presented to the Company in
the form in which it was signed.
3. Form and Content of Bids
Each bid must be for the purchase of all of the Securities and
may be made by a single bidder or by a group of bidders. In the case of a
bid by a group of bidders, the members of the group shall act through the
Representative. If the bid of a group is accepted, the obligations of the
members of a group shall be several, and not joint, to purchase the
respective number of shares of the Securities to be indicated on
Schedule A to the Bid. No bidder may submit or participate directly or
indirectly in more than one bid.
All bids must be submitted on the Form of Bid furnished by the
Company and must be signed by the bidder, or in the case of a bid by a
group of bidders, by the Representative on behalf of the group. Each bid
shall specify the purchase price per share to be paid to the Company for
the Securities to be purchased, which price shall be in multiples of .125.
2
4. Presentation of Bids
Each bid must be delivered to the Company enclosed and sealed in
an envelope addressed as follows: "NUI Corporation, c/o Kaye, Scholer,
Fierman, Hays & Handler, 19th floor, 425 Park Avenue, New York, New York
10022, Attention: Gary Apfel, Esq." Such bid must be so delivered at or
prior to 11:00 A.M., New York City time, on ____________ ___, _____. Each
such envelope, when delivered, must indicate the name, address and
telephone number of the bidder, or, in the case of a group of bidders, of
the Representative.
The Company reserves the right in its discretion from time to
time to postpone the time for presentation and opening of bids and will
give prompt notice of any such postponement to any prospective bidder or
to the Representative of any group of prospective bidders from whom a
request in writing that such notice be given has been received by
Winthrop, Stimson, Putnam & Roberts.
5. Delivery of Check with Bid
Each bidder shall deliver with its bid a certified, cashier's
or official bank check or checks in an aggregate amount equal to 1% of the
aggregate purchase price specified in such bid to be paid to the Company
for the Securities then being offered, payable in New York Clearing House
funds and drawn to the order of the Company. If the bid of such bidder is
accepted, the check or checks delivered with respect thereto are hereby
authorized to be deposited in a bank account in the Company's name
forthwith, will be held by the Company as security for the performance of
the obligations of the bidder or of the respective members of the group of
bidders, as the case may be, and such deposit will be held and disposed of
in accordance with the Terms of Purchase. If such bid is not accepted,
the check or checks delivered with such bid will be returned forthwith to
the bidder or, in the case of a group of bidders, to the Representative.
6. Opening, Acceptance or Rejection of Bids
All bids will be opened on behalf of the Company in the offices
of Kaye, Scholer, Fierman, Hays & Handler, 19th floor, 425 Park Avenue,
New York, N.Y. 10022 at the time designated as provided in Section 4
hereof. Each Representative of a group of bidders and each individual
bidder are invited to be present at the opening of the bids. Prior to
5:00 P.M., New York City time, on such date, an authorized representative
of the Company will accept (subject to the provisions of the next
following paragraph) the bid which shall provide the highest purchase
price to be paid to the Company for the Securities then being offered.
Unless sooner rejected, each bid will remain irrevocable until such time.
Any bid not so accepted by the Company by such time shall be deemed to
have been rejected. Each bid will be accepted or rejected in its
entirety.
In case two or more bids provide for the identical highest
purchase price to be paid to the Company for the Securities then being
offered, the Company (unless the Company shall reject all bids) will
forthwith give the makers of such bids an opportunity to improve their
bids. If no improved bids shall be made by such bidders within the time
specified by the Company or if upon such rebidding, two or more of the
rebids provide the Company with the identical highest purchase price, the
Company may (i) accept any one of such identical bids or (ii) accept all
3
of such bids in their entirety or (iii) accept all of such bids on a pro
rata basis so long as the aggregate number of shares of Securities sold by
the Company pursuant to such accepted bids is equal to 100% or more of the
aggregate number of shares of Securities that are the subject of any one
of such bids, in each case, at the Company's discretion.
Notwithstanding any other provisions of this Section 6, the
Company reserves the right with respect to any transaction hereunder (a)
to reject all bids or (b) to reject the bid of any bidder or of any group
of bidders (i) if the Company reasonably believes that it may not lawfully
sell the Securities then being offered to such bidder or to any member of
such group of bidders or (ii) if the Company is not satisfied with the
financial responsibility of such bidder or of any member of such group,
and, in any of such events in the case of a group of bidders, if within
two hours after the time the Company has notified the Representative of
the existence of any of the items set forth in item (b) of this paragraph
with respect to any member or members of such group of bidders, the member
or members of such group causing such disqualification, illegality or
dissatisfaction have not withdrawn from the group and the remaining
members, including substituted members if any are permitted by the
Company, have not agreed to purchase such Securities which such
withdrawing member or members had proposed to purchase. The bid of any
bidder or group of bidders rejected by the Company by reason of clause (b)
of this paragraph shall be disregarded for the purpose of determining the
bid specifying the highest purchase price to be paid to the Company for
such Securities.
Notwithstanding any other provisions of this Invitation for
Bids, the Company reserves the right in its discretion to designate, not
less than 24 hours prior to the time, or extended time, specified for the
submission of bids, a number of shares of Common Stock less than that
previously designated. Any bid not conforming to the notice of sale or
not submitted on the Form of Bid without alteration, except for the
required insertions, may be rejected. The Company specifically reserves
the right to waive any irregularity in any or all bids.
7. Effectiveness of Agreement
Forthwith upon the acceptance in writing of a bid: (a) the
Terms of Purchase shall become effective without any separate execution
thereof and such Terms of Purchase and the bid shall constitute the
agreement (the "Agreement") between the Company and the successful bidder
or bidders, subject, however, to such changes in the Terms of Purchase as
may be appropriate if the successful bidder or bidders shall not
contemplate a public offering or if the time for presentation or opening
of bids shall be postponed; and (b) the Company shall, upon being
requested, execute the form of acceptance on a duplicative copy or a
reasonable number of duplicative copies of such proposal furnished by, and
for delivery to, the successful bidder or bidders. Thereafter, all rights
of the Company and of the successful bidder or bidders under an accepted
bid shall be determined solely in accordance with the terms of the
Agreement.
8. Legal Matters
Winthrop, Stimson, Putnam & Roberts has been selected to act as
counsel for the Purchasers to deliver to the successful bidder or bidders
an opinion as to the validity of the Securities. The form of such opinion
4
is attached to the Terms of Purchase as Exhibit C. The validity of the
Securities will be passed on by Mary Patricia Keefe, Esq., Group Vice
President and General Counsel of Elizabethtown Gas Company, a Division of
the Company, and by Kaye, Scholer, Fierman, Hays & Handler, special
counsel to the Company. Certain matters under Florida, Maryland, New
York, North Carolina and Pennsylvania law will be passed on by local
counsel. The forms of such opinions are attached to the Terms of Purchase
as Exhibits A-1 through A-7 thereto.
The fees and disbursements of counsel for the Purchasers are to
be paid by the successful bidder or group of bidders. Any prospective
bidder and the Representative of any group of prospective bidders may
obtain advice from counsel for the Purchasers as to the amount of their
fees and the estimated amount of their disbursements.
9. Delivery
Delivery of the Securities will be made against payment of the
purchase price therefor in New York Clearing House funds on the fifth
business day after the acceptance of the bid for the Securities bring
offered. Such delivery will be made in New York, New York, as more fully
specified in, and subject to the terms and conditions of, the Agreement.
10. Reservation of Right to Waive Compliance Herewith
The Company reserves the right to (a) waive any failure on the
part of any bidder or group of bidders to comply with the terms or
conditions hereof if such waiver will not unfairly prejudice any other
bidder or group of bidders and (b) permit any bidder or group of bidders
to correct any typographical, clerical or similar error.
NUI CORPORATION
By: _________________________
Name:
Title:
Dated:
5
NUI CORPORATION
FORM OF BID
________ SHARES
COMMON STOCK
Purchase Price Per Share: $_______ (in multiples of .125)
_________ ___, _____
NUI CORPORATION
c/o Kaye, Scholer, Fierman, Hays & Handler
425 Park Avenue
New York, New York 10022
Ladies and Gentlemen:
Referring to the Invitation for Bids (the "Invitation for Bids"),
dated _______ __, ____, inviting bids for the purchase of _______ shares
of Common Stock, no par value (the "Securities"), of NUI Corporation (the
"Company"), the person, firm or corporation (or the persons, firms and/or
corporations) named in the attached Schedule A (the "Bidders") submit the
following Bid for the purchase of the Securities:
1. The purchase price per share to be paid to the Company for the
Securities shall be as set forth above; and the Bidders, severally, hereby
offer to purchase the Securities from the Company at such price, upon the
terms and conditions set forth in the Terms of Purchase annexed hereto
(the "Terms of Purchase").
2. If this Bid is accepted by the Company, the Terms of Purchase
shall become effective without any separate execution thereof; the
accepted Bid and the Terms of Purchase, together, shall constitute the
agreement between the Company and the Bidders (the "Agreement"); and all
rights of the Company and the Bidders shall be determined solely in
accordance with the terms of the Agreement, subject, however, to such
modifications therein as may be necessary and as are contemplated by the
Invitation for Bids.
3. The Bidders agree that their offer included in this Bid shall be
irrevocable until 5:00 P.M., New York City time, on the date fixed for the
presentation hereof, unless such Bid is sooner returned or rejected by the
Company. It shall be the obligation of the successful bidder to furnish
to the Company the denominations of and names in which the certificates
representing the Securities shall be issued not less than 72 hours prior
to the delivery of the Securities and to furnish to the Company,
contemporaneously with the acceptance of the Bid, such details of the
offering, including the price to the public, as are needed to complete the
Registration Statement and the Prospectus.
4. This Bid shall be deemed rejected by the Company if it shall not
have been accepted by the Company by 5:00 P.M., New York City time, on the
date fixed for the presentation hereof.
5. This Bid shall be governed by the laws of the State of New York
without giving effect to any conflict of law provisions thereof.
6. The Invitation for Bids is not intended as a disclosure
document. Bidders are required to obtain and carefully review the
Registration Statement and the Prospectus (each as defined in the Terms of
Purchase) relating to the offering of the Securities before submitting a
Bid.
7. Each of the Bidders acknowledges receipt of a copy of the
Registration Statement and the Prospectus relating to the Securities
referred to in the Invitation for Bids.
8. Each of the Bidders acknowledges that the Company's
determination of the highest purchase price to be paid to the Company for
the proposed purchase of the Securities shall be final.
9. There are enclosed herewith certified, cashier's or official
bank check or checks in an aggregate amount equal to 1% of the aggregate
purchase price specified in this Bid to be paid to the Company for the
Securities now being offered, payable in New York Clearing House funds and
drawn to the order of the Company, to be held and disposed of by the
Company in accordance with the Invitation for Bids and the Terms of
Purchase.
2
10. The undersigned hereby represents that it or they have been
authorized by the Bidders to sign this Bid on their behalf and to act for
them in the manner provided herein, in the Invitation for Bids and in the
Terms of Purchase.
Very truly yours,
Representative
By: ________________________
Name:
Title:
Address:
By: ________________________
Name:
Title:
Accepted: Address:
NUI Corporation
By: ________________________
Name:
Title:
This Form of Bid must be signed and submitted with the attached Schedule A
completed.
3
SCHEDULE A
Purchasers
Number of Shares
NUI CORPORATION
TERMS OF PURCHASE FOR COMMON STOCK
(to be attached to Form of Bid)
1. Purchasers and Representative. If there shall be two or
more persons, firms or corporations named in Schedule A to the attached
Form of Bid (the "Bid"), the term "Purchasers," as used herein, shall be
deemed to mean the persons, firms or corporations so named (including the
Representative hereinafter mentioned), and the term "Representative," as
used herein, shall be deemed to mean the representative or representatives
by whom or on whose behalf the Bid has been signed. All obligations of
the Purchasers hereunder are several. If there shall be only one person,
firm or corporation named in said Schedule A, the term "Purchasers" and
the term "Representative," as used herein, shall mean such person, firm or
corporation.
2. Background.
(a) NUI Corporation, a New Jersey corporation (the
"Company"), proposes to issue and sell its Common Stock, no par value
("Common Stock"), in the aggregate number of shares and at the purchase
price specified in the attached Bid (the "Securities").
(b) The Purchasers have designated the person or persons
signing the Bid to execute the Bid on behalf of the respective Purchasers
and to act for the respective Purchasers in the manner provided in this
Terms of Purchase (collectively, with the Bid, the "Agreement").
(c) The Company has prepared and 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
and prospectus relating to the Securities and such registration statement
has become effective.
(d) Such registration statement, as it may have been
amended, including the financial statements, the documents incorporated or
deemed incorporated therein by reference, and exhibits, being herein
called the "Registration Statement" and the prospectus as included or
referred to in the Registration Statement (the "Basic Prospectus"), as it
may be last amended or supplemented prior to the effectiveness of the
Agreement, but excluding any amendment or supplement relating solely to
securities other than the Securities (any such amendment or supplement
being referred to as a "Prospectus Supplement"), and as supplemented to
include certain information relating to the Purchasers, the number of
shares to be offered, and the purchase price and terms of offering of the
Securities (any such supplement being referred to as a "Pricing
Supplement"), as filed with, or transmitted for filing to, the SEC
pursuant to Rule 424 of the rules and regulations of the SEC promulgated
under the Act, including all documents then incorporated or deemed to have
been incorporated therein by reference, in the form in which from time to
time it has most recently been filed with, or transmitted for filing to,
the SEC being herein called the "Prospectus."
3. Purchase, Sale and the Closing. On the terms and subject
to the conditions, and in reliance on the representations, warranties and
covenants herein, each Purchaser shall severally buy from the Company, and
the Company shall sell to such Purchaser, the number of shares of the
Securities set forth opposite the name of such Purchaser in Schedule A to
the Bid. The purchase price per share for the Securities shall be the
purchase price set forth in the Bid and shall be payable by certified,
cashier's or official bank check in New York Clearing House funds drawn
to the order of the Company. The closing of the purchase and sale of the
Securities (the "Closing") will be held at the offices of Kaye, Scholer,
Fierman, Hays & Handler, New York, New York at 10:00 A.M. New York City
time on the fifth business day following the day on which the Agreement
shall become effective, or such other place or other date or other time as
may be agreed on by the Company and the Representative. The date of the
Closing is hereinafter referred to as the "Closing Date."
The Representative agrees to furnish to the Company the names
and the denominations of the certificates representing the Securities for
each Purchaser not less than 72 hours prior to the Closing. For the
purpose of expediting the checking of the certificates representing the
Securities, the Company agrees to make such certificates available to the
Representative for such purpose at least one full business day preceding
the Closing.
4. Public Offering. Contemporaneously with the acceptance of
the Bid, the Representative shall advise the Company of such details of
the offering, including the price to the public, as are needed to complete
the Registration Statement or the Prospectus.
5. Security Check. The funds represented by any check or
checks delivered with the Bid by or on behalf of a Purchaser or group of
Purchasers shall be held by the Company as security for the faithful
performance by the Purchasers of their obligations hereunder until
disposed of as hereinafter provided in this Section 5. Upon the
acceptance of the Bid of a Purchaser or group of Purchasers, the Company
is hereby authorized to deposit such check or checks in a bank account in
the Company's name forthwith. As part of the Closing, such funds so
deposited shall be applied to the payment of the purchase price of the
Securities, but only if simultaneously therewith the balance of the
purchase price shall be paid by the Purchasers as provided in Section 3
hereof. In the event that the Agreement shall be terminated in accordance
with the provisions of Section 12 hereof, the deposit made with respect to
a check or checks from a Purchaser who is not in default hereunder shall
forthwith be returned to such Purchaser without interest. In the event
that a Purchaser fails or refuses, otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligation hereunder to purchase and
pay for the Securities as provided in Section 3 hereof, the deposit made
with respect to a check or checks from such Purchaser shall become the
property of the Company, as minimum liquidated damages, free of any claim
on the part of such Purchaser, without prejudice, however, to any other
rights of the Company hereunder.
6. Company's Representations. The Company makes the following
representations to each of the Purchasers, all of which representations
shall survive the issuance and delivery of the Securities:
2
(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 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 the Agreement, to issue and sell the Securities as
herein contemplated and to perform its obligations 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 the 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 the Agreement and the issuance and sale of the Securities,
and the Agreement has been duly executed and delivered by the Company; as
of the time of the Closing, the Securities, when issued and delivered to
the Representative as contemplated thereby, will be duly authorized and
validly issued, fully paid and non-assessable, and free and clear of any
pledge, lien, charge, encumbrance, security interest, preemptive right or
other claim; 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 the Agreement and the issuance and sale
of the Securities as contemplated thereby have heretofore been obtained or
taken other than (i) in connection with any Prospectus Supplement and any
Pricing 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
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 Purchasers; the Company has filed the
required applications, if any, for such required approvals by the Public
Utility Commissions (other than any filing for approval which may be
required from the NYPSC after the execution of the Agreement with respect
to (i) the terms of the 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 the Agreement 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 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
3
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 and the Agreement; and
the Company is not in material default under any obligation for borrowed
money.
(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 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 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 Purchaser expressly for use in the
Registration Statement or the Prospectus.
(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 Securities
Exchange Act of 1934 (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.
(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 the Agreement,
the Registration Statement and the Prospectus, the validity or
enforceability of the 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
(g) The Company has an authorized capitalization as set forth
in the Registration Statement and the Prospectus; all of the issued and
outstanding shares of the Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable; the capital stock of
the Company, including the Securities, conforms to the description thereof
contained in the Registration Statement and the Prospectus, and the
certificates representing the Securities are in due and proper form and
the holders of the Securities will not be subject to personal liability by
reason of being such holders.
7. Purchasers' Representations. Each Purchaser 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 Purchaser for use in the Prospectus is correct as to such
Purchaser. Each Purchaser, in addition to other written information
furnished to the Company for use in the Prospectus, herewith furnishes to
the Company, through the Representative, for use in the Prospectus, the
written information with regard to the public offering, if any, of the
Securities by such Purchaser and warrants and represents that such written
information is correct as to such Purchaser.
(b) Each Purchaser may lawfully purchase from the Company the
Securities that it has agreed to purchase pursuant to the Agreement.
8. 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 Representative 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 Purchasers, 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 the
Agreement as the Purchasers 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 Representative may reasonably request; and in case any
Purchaser is required to deliver a prospectus after the expiration of nine
months after the effective date of the Agreement, to furnish to the
Representative as soon as reasonably practicable, upon request by the
Representative, at the expense of such Purchaser, a reasonable quantity of
a supplemental prospectus or of supplements to the Prospectus complying
with Section 10(a)(3) of the Act.
(c) Furnish to the Representative a copy, certified by the
Secretary or an Assistant Secretary of the Company, of the Registration
Statement as initially filed with the SEC and of all amendments thereto,
other than amendments relating solely to securities other than the
5
Securities, and, upon request, to furnish to the Representative 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), other than amendments relating solely to
securities other than the Securities, for distribution of one copy thereof
to each of the other Purchasers.
(d) As soon as reasonably practicable, to make generally
available to its security holders and the Representative 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 Representative may designate within six months after
the date hereof and itself to pay, or to reimburse the Purchasers 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 the Agreement as the Purchasers 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 Purchasers and to dealers (whose
names and addresses are furnished to the Company by the Representative) to
whom Securities may have been sold by the Purchasers and, upon request, to
any other dealers making such request at such dealers' expense, copies of
such amendments to the Prospectus or supplemental information.
(g) Pay the costs of preparing and reproducing or printing and
distributing the Agreement, the certificates representing the 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 and
disbursements of accountants for the Company; and the costs (including
counsel fees not to exceed $5,000) of qualifying the Securities for sale
under the Blue Sky or other securities laws of certain jurisdictions of
the United States of America, of preparing the Blue Sky Memorandum as set
forth in Section 8(e) hereof and the filing for review of the public
offering of the Securities by the National Association of Securities
Dealers, Inc.; provided, however, if the Purchasers 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 9 hereof, or if the Agreement
shall be terminated in accordance with the provisions of Section 12
hereof, the Company agrees to pay the reasonable fees and actual out-of-
pocket expenses of Winthrop, Stimson, Putnam & Roberts, as counsel to the
Purchasers. If the Securities are not delivered for any reason other than
the termination of the Agreement pursuant to Section 12 hereof or the
default by one or more of the Purchasers in its or their respective
6
obligations hereunder, the Company shall reimburse the Purchasers for all
of their actual out-of-pocket expenses.
(h) For a period of one hundred and twenty days from the date
hereof, not to sell, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exercisable for or exchangeable into Common Stock or
permit the registration under the Act of any shares of Common Stock,
except for (i) the registration of the Securities and the sales thereof to
the Purchasers pursuant to the Agreement, (ii) the issuance of shares of
Common Stock upon conversion of currently outstanding convertible
securities or upon the exercise of stock options and other rights granted
under employee benefit plans outstanding on the date hereof, (iii) sales
to existing shareholders or to residents in the states in which the
Company operates under plans outstanding on the date hereof and (iv) sales
or grants to employees of the Company or any of its subsidiaries under
plans outstanding on the date hereof, without the prior written consent of
the Representative, which consent shall not be unreasonably withheld.
9. Conditions of Purchasers' Obligation. The obligation of
the Purchasers to purchase the Securities is subject to 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) The Company shall have performed, in all material respects,
such of its obligations under the Agreement that are to be performed at or
before the Closing.
(c) The Securities to be sold by the Company at the Closing
shall have been duly listed, subject to notice of issuance, on the New
York Stock Exchange.
(d) At or prior to the Closing, the Representative shall have
received:
(i) opinions of counsel for the Company, dated the
Closing Date, addressed to the Representative and in form and
substance reasonably satisfactory to the Representative,
substantially to the effect set forth in Exhibits A-1 through A-
7 attached hereto;
(ii) a letter, dated the Closing Date and addressed to
the Representative, from the independent public accountants of
the Company substantially to the effect set forth in Exhibit B
attached hereto;
(iii) an opinion of counsel to the Purchasers,
dated the Closing Date, addressed to the Representative and in
form and substance reasonably satisfactory to the
Representative, substantially to the effect set forth in Exhibit
C attached hereto;
(iv) a copy of the Registration Statement and the
Prospectus and the documents incorporated therein by reference,
if requested, which shall include the consolidated financial
7
statements of the Company and a report thereon executed by the
Company's independent public accountants;
(v) a certificate, dated the Closing Date, of the
Chairman of the Board, the President, any Vice President or the
Treasurer of the Company, reasonably satisfactory to the
Representative, certifying that
(1) as of the Closing Date, the Company's representations
under the Agreement are true in all material respects and that
the Company has performed in all material respects such of its
obligations under the Agreement that are to be performed at or
before the Closing;
(2) between the time of the execution of the Agreement and
the Closing Date, there has been 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, other
than changes disclosed by or contemplated in the Registration
Statement or the Prospectus or changes arising in the ordinary
course of the Company's business;
(3) as of the Closing Date, 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; and
(4) attaching true and complete copies of each order
required from the Utility Commissions in connection with the
issuance of the Securities; and
(vi) 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
Representative or the Representative's counsel may reasonably
request.
(e) The Registration Statement shall have become effective on
or before the date of the 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.
(f) 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.
(g) Between the time of the execution of the 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.
8
10. Conditions of the Company's Obligation. 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 less the amount of any good faith deposit held by
the Company with respect to any non-defaulting Purchasers.
(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 the
Agreement do not contain any such unacceptable provisions other than any
provision that the Company has informed the Representative, on or prior to
the date hereof, is unacceptable to the Company.
(d) The Purchasers' 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 10 shall
not have been fulfilled, the 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
Representative. Any such termination shall be without liability of any
party to any other party except to the extent provided in Section 11
hereof.
11. Indemnity by the Company and the Purchasers. (a) The
Company agrees to indemnify, defend and hold harmless each Purchaser and
any person who controls any Purchaser 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 Purchaser 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 Purchaser expressly for
use with reference to such Purchaser 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
9
misleading, provided, 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 Purchaser (or to the
benefit of any person controlling such Purchaser) 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 Purchaser 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 a Purchaser or a controlling
person of a Purchaser in respect of which indemnity may be sought against
the Company pursuant to the foregoing paragraph, such Purchaser 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 Purchaser 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 Purchaser 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 Purchaser 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
Purchaser expressly for use with reference to such Purchaser 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
the circumstances under which such written information is used, not
misleading.
10
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 Purchaser pursuant to the foregoing paragraph,
the Company or any such director, officer or controlling person shall
promptly notify such Purchaser in writing of the institution of such
action and such Purchaser 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 Purchaser in connection with the
defense of such action or such Purchaser 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 Purchaser (in which case such Purchaser 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 Purchaser (it being understood,
however, that such Purchaser 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 Purchaser shall be liable for any settlement of any
claim or action effected without the written consent of such Purchaser,
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
Purchasers 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 Purchasers 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 Purchasers 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 Purchasers. The relative fault of the Company
on the one hand and of the Purchasers 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 alleged omission
relates to information supplied by the Company or by the Purchasers, 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,
11
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 Purchasers 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 Purchasers 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 Purchaser 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 Purchaser 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 Purchasers'
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 Purchasers contained in the Agreement shall remain in full force and
effect regardless of any investigation made by, or on behalf of, any
Purchaser, or any person who controls any Purchaser 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 the
Agreement or the issuance and delivery of the Securities. The Company and
each Purchaser 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. Events Permitting Termination. The Representative may
terminate the Purchasers' 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 Representative, to make it impracticable to
market the Securities; or
12
(b) any event or condition which, in the reasonable judgment of
the Representative, 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.
If the Representative elects to terminate the Agreement as
provided in this Section 12, the Company shall be notified promptly in
writing by letter or telegram.
If the sale to the Purchasers of the Securities, as contemplated
by the Agreement, is not consummated by the Purchasers for any reason
permitted under the Agreement or if such sale is not consummated because
the Company shall be unable to comply with any of the terms of the
Agreement, the Company shall not be under any obligation or liability
under the Agreement (except to the extent provided in Section 8(g) and
Section 11 hereof), and the Purchasers shall be under no obligation or
liability to the Company under the Agreement (except to the extent
provided in Section 11 hereof) or to one another hereunder.
13. Default by One or More Purchasers. If one or more of the
Purchasers defaults, the remaining Purchasers, 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
participation of the defaulting Purchaser or Purchasers exceed 9.09% of
the number of shares of the Securities to be purchased as set forth on
Schedule A attached to the Bid, (a) the Representative shall use its best
efforts to arrange for a substitute Purchaser or Purchasers 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 Purchaser or
Purchasers upon the terms set forth in the Agreement, and (b) if the
Representative shall fail to arrange for such a substitute Purchaser or
Purchasers within such 24-hour period, the Company shall be entitled to an
additional 24-hour period within which to arrange for a substitute
Purchaser or Purchasers, to purchase all, but not less than all, of the
total participation of the defaulting Purchaser or Purchasers upon the
terms set forth in the Agreement. In either event, the Representative 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 3 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 Representative and the Company shall fail to procure
a substitute Purchaser or Purchasers, as above provided, to purchase or
agree to purchase all, but not less than all, of the total participation
of the defaulting Purchaser or Purchasers, then the Agreement shall
terminate. In the event of any such termination, the Company shall not be
liable to any non-defaulting Purchaser, nor shall any non-defaulting
Purchaser be liable to the Company; provided, however, that each
defaulting Purchaser shall not be released from its liability to the
Company for damages occasioned by such default under the Agreement.
The term Purchaser as used in the Agreement shall refer to and
include any purchaser substituted under this Section 13 with like effect
13
as if such substituted purchaser had originally been named in Schedule A
attached to the Bid.
14. Parties at Interest. The agreement herein set forth has
been and is made solely for the benefit of the Purchasers, the Company and
the controlling persons, directors and officers referred to in Section 11
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 Purchasers) shall acquire or have any
right under or by virtue of the Agreement.
15. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by
telegram and, if to the Purchasers , shall be sufficient in all respects
if delivered or sent to the Representative at the address set forth in the
Bid 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.
16. Construction. The 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 the Agreement have been inserted as a matter of convenience of
reference and are not a part of the Agreement.
17. Time is of Essence. Time shall be of the essence with
respect to the Agreement.
14
EXHIBIT A-1
[Letterhead of Mary Patricia Keefe, Esq.
Group Vice President and General Counsel
Elizabethtown Gas Company]
[the Closing Date]
(Points to be covered)
1. 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 the Agreement, to issue and
sell the Securities as herein contemplated and to perform its obligations
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 the 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.
2. The Securities, when issued and delivered to and paid for
by the Purchasers in accordance with the terms of the Agreement, will be
duly and validly authorized and issued and will be fully paid and non-
assessable, and will be free of statutory and contractual preemptive
rights.
3. The Agreement has been duly authorized, executed and
delivered by the Company.
4. The making of and the performance by the Company under the
Agreement and the carrying out by the Company of the terms 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 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.
5. 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 my knowledge, threatened against the Company (or,
to my knowledge, any meritorious basis therefor) wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
transactions contemplated by the Agreement and the Registration Statement,
the validity of the Securities or the Agreement or the enforceability of
A-1-1
the Agreement, 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.
6. 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 the Agreement and the issuance and sale of
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 the
Agreement, the issuance and sale of the Securities or the consummation of
the transactions contemplated thereby; provided, however, that I express
no opinion with respect to the necessity for any (i) 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 Purchasers are
relying upon the opinions, each dated the date hereof and addressed to
you, as the Representative, 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 you, as the Representative), and (ii) qualification or other action
under the Blue Sky or securities laws of any jurisdiction.
7. 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.
8. The Registration Statement has become effective under the
Act and, to the best of my 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.
9. The Company has an authorized capitalization as set forth
in the Registration Statement and the Prospectus; the outstanding shares
of capital stock, including the Common Stock, of the Company have been
duly and validly authorized and issued, and are fully paid and non-
assessable, and free of statutory and contractual preemptive rights; the
certificates representing the Securities are in due and proper form; and
the holders of the Securities will not be subject to personal liability by
reason of being such holders.
Insofar as my opinion involves matters of Florida, Maryland, New
York, North Carolina and Pennsylvania law, I have relied, with your
approval, upon the opinions 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 Purchasers), each such opinion dated the date hereof and addressed
to you, as the Representative, and, as to factual matters, on certificates
of public officials and officers of the Company. I believe that the
Purchasers and I are justified in relying on such opinions and
certificates to the extent they relate to such matters.
A-1-2
In addition, I have participated in conferences with officers
and other representatives of the Company, representatives of the
independent public accountants of the Company, representatives of the
Representative, 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 I am not passing upon and do
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 my attention to make me
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 hereof, 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 I am expressing 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).
This opinion shall be governed by, and interpreted in accordance
with, the Legal Opinion Accord of the ABA Section of Business Law (1991).
A-1-3
EXHIBIT A-2
[Letterhead of McWhirter, Reeves, McGlothlin, Davidson & Bakas or other
Florida Counsel reasonably acceptable to the Purchasers]
[the Closing Date]
The Purchasers
Listed in Schedule A to the accepted
Bid, dated , , and
the attached Terms of Purchase (the
"Terms of Purchase") (collectively,
the "Agreement") relating to the
Securities referred to below
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 Purchasers named in
Schedule A 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
A-2-1
is engaged in the State of Florida and to own and operate the
properties used by it in such business.
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 and the
issuance and sale of 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 or the
consummation of the transactions contemplated thereby or the
issuance and sale of the Securities; 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,
A-2-2
EXHIBIT A-3
[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 or the consummation of the transactions contemplated
thereby or the issuance and sale of the Securities; 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 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 and the
issuance and sale of 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 or the
consummation of the transactions contemplated thereby or the
issuance and sale of the Securities; 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 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 or the consummation of the
transactions contemplated thereby or the issuance and sale of the
Securities; 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
EXHIBIT A-6
[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 and the issuance and sale of 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 or the consummation of
the transactions contemplated thereby or the issuance and sale of
the Securities; 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-6-1
EXHIBIT A-7
[Letterhead of Kaye, Scholer, Fierman,
Hays & Handler]
[the Closing Date]
(Points to be covered)
1. 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 the Agreement, to issue, sell
and deliver the Securities as herein contemplated and to perform
its obligations thereunder.
2. The Agreement has been duly authorized, executed
and delivered by the Company.
3. The Securities, when issued and delivered to and
paid for by the Purchasers in accordance with the terms of the
Agreement, will be duly and validly authorized and issued and
will be fully paid and non-assessable, and will be free of
statutory preemptive rights.
4. The making of and the performance by the Company
under the Agreement and the carrying out by the Company of the
terms 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.
5. The Company has an authorized capitalization as
set forth in the Registration Statement and the Prospectus and
the Common Stock conforms in all material respects to the
description thereof contained in the Registration Statement and
the Prospectus under the caption "Description of Capital Stock."
6. 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 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 we express no opinion).
7. The Registration Statement has become effective
under the Act, and, to the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the Act and no proceedings for that purpose
A-7-1
have been instituted or threatened under Sections 8(d) or 8(e) of
the Act by the SEC.
Insofar as our opinion involves matters of New Jersey
law, we have relied, with your approval, upon the opinion of Mary
Patricia Keefe, Esq., Group Vice President and General Counsel of
Elizabethtown Gas Company, a Division of the Company ("EGC"),
dated the date hereof and addressed to you, as the
Representative, and, as to factual matters, on certificates of
public officials and officers of the Company. We believe that
the Purchasers and we are justified in relying on such opinion
and certificates to the extent they relate to such matters.
In addition, we have 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 Representative, 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 paragraph 6 above and the other opinions expressed
in this opinion letter, we are not passing upon and do not assume
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus (except as and to the extent stated in paragraph 5
above), on the basis of the foregoing, nothing has come to our
attention that leads us 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 hereof, 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 we 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).
This opinion shall be governed by, and interpreted in
accordance with, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
Very truly yours,
A-7-2
EXHIBIT B
Matters to be set forth in letter from
Independent Public Accountants for the Company
The letter will state 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 Securities Exchange Act of 1934,
(the "Exchange Act") and the published rules and regulations of
the Securities and Exchange Commission (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 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 Purchasers 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
B-1
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 Purchasers shall, in their
sole discretion, accept, and (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 Purchasers
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.
B-1
EXHIBIT C
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[date of the Closing]
The Purchasers
Listed in Schedule A to the
accepted Bid dated ,
, and the attached Terms of
Purchase (the "Terms of Purchase")
(collectively, the "Agreement")
relating to the Securities referred
to below
Re: $ _______, ______________
of NUI Corporation
Gentlemen:
We have acted as counsel to the Purchasers in connection
with the issuance and sale of the above-captioned securities (the
"Securities") pursuant to the Agreement by and among NUI
Corporation (the "Company") and the purchasers named in Schedule
A thereto (the "Purchasers"). All terms used herein, unless
otherwise defined herein, have the meanings assigned to them in
the Agreement.
In connection therewith we have examined originals or
copies, certified or otherwise identified to our satisfaction, of
the documents delivered at the Closing as listed in the Closing
Memorandum of even date herewith. We have also reviewed and are
relying upon, and in our opinion, you are justified in relying
upon, the opinions delivered to you today pursuant to the
provisions of the Agreement by Mary Patricia Keefe, Esq., Vice
President and General Counsel of Elizabethtown Gas Company, a
Division of the Company, and local counsel. We have also
reviewed, and in our opinion, you are justified in relying upon,
the opinion delivered to you today pursuant to the provisions of
the Agreement by Kaye, Scholer, Fierman, Hays & Handler, Special
Counsel for the Company.
Based upon the foregoing, we are of the opinion that:
(1) The Registration Statement has become effective under
the Act, and, to the best of our 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.
(2) The descriptions and summaries of the Common Stock
contained in the Registration Statement and the Prospectus under
the caption "Description of Capital Stock" are accurate and
fairly present the information purported to be shown with respect
thereto.
C-1
(3) The Agreement has been duly authorized, executed and
delivered by the Company.
(4) The Securities, when issued and delivered to and paid
for by the Purchasers in accordance with the terms of the
Agreement, will be duly and validly authorized and issued and
will be fully paid and non-assessable, and will be free of
statutory preemptive rights.
(5) 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 pursuant to Rule 424 (except
in each case as to the financial statements and schedules and
other financial, engineering and statistical data contained
therein, as to which we 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, we 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 paragraph 2 above and except insofar as
such statements and information relate to us. In the course of
the preparation of the Registration Statement and the Prospectus,
we have had conferences with certain of the officers and
employees of the Company, with Kaye, Scholer, Fierman, Hays &
Handler, special counsel for the Company, with the independent
public accountants for the Company, with the Representative and
with Mary Patricia Keefe, Esq., Group Vice President and General
Counsel of EGC, and we reviewed the documents listed in the
Registration Statement as being incorporated therein by
reference. Our examination of the Registration Statement, our
discussions in the above-mentioned conferences and our review did
not disclose to us any information, and nothing has come to our
attention, which would lead us 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 hereof, 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 we 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).
Insofar as our opinion involves matters of New Jersey law,
we have relied, with your approval, upon the opinion of Mary
Patricia Keefe, Esq., Group Vice President and General Counsel of
EGC, dated the date hereof and addressed to you, as the
Representative, and, as to factual matters, on certificates of
public officials and officers of the Company. We believe that
C-2
the Purchasers and we are justified in relying on such opinion
and certificates to the extent they relate to such matters.
This opinion is given to you solely for your use in
connection with the Agreement and the transactions contemplated
thereunder and may not be relied upon by any other person or for
any other purpose.
Very truly yours,
C-3