EXHIBIT 1
NUI CORPORATION
(a New Jersey corporation)
1,800,000 Shares of Common Stock
(No Par Value)
PURCHASE AGREEMENT
Dated: ____________, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
DEAN WITTER REYNOLDS INC.
EDWARD D. JONES & CO.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
NUI Corporation, a New Jersey corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of
the other Underwriters named in Schedule A hereto (collectively,
the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for
whom Merrill Lynch, Dean Witter Reynolds Inc. and Edward D. Jones
& Co. are acting as representatives (in such capacity, the
"Representatives"), with respect to (i) the sale by the Company,
and the purchase by the Underwriters, acting severally and not
jointly, of 1,800,000 shares of Common Stock, no par value, of
the Company ("Common Stock") and the preferred share purchase
rights attached thereto (the "Rights")(collectively, the "Initial
Securities"), in the respective amounts set forth on Schedule A
hereto, and (ii) the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 200,000
additional shares of Common Stock and Rights to cover over-
allotments, if any (the "Option Securities"). The Initial
Securities and the Option Securities, if any, are hereinafter
called, collectively, the "Securities".
The Company understands that the Underwriters propose to
make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been
executed and delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-
3 (No. 333-02255) covering the registration of the Securities
under the Securities Act of 1933, as amended (the "1933 Act"),
including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the
rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has
elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, prepare and file a term sheet (a "Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to
be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of
Rule 434 is referred to as "Rule 434 Information." Each
prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the
Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery
of this Agreement, is herein called a "preliminary prospectus."
Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is
herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the
documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, in the form first furnished to
the Underwriters for use in connection with the offering of the
Securities is herein called the "Prospectus." If Rule 434 is
relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated ___________, 1996 together with the Term Sheet
and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. For purposes
of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the Prospectus or any Term Sheet or
any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included"
or "stated" in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended
(the "1934 Act") which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
1. Representations and Warranties.
(a) Representations and Warranties by the Company. The
Company represents and warrants to each Underwriter as of the
date hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the
1933 Act. Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the
1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part
of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any
Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time
(and, if any Option Securities are purchased, at the Date of
Delivery), the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus
nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was filed
with the Commission and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact
necessary in order to make the statements therein,
light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply
with the requirements of Rule 434. The representations and
warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any
Underwriter through Merrill Lynch expressly for use in the
Registration Statement or Prospectus.
Each preliminary prospectus and the 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 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and, if applicable,
each preliminary prospectus and the Prospectus delivered to
the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in
the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations
of the Commission thereunder (the "1934 Act Regulations"),
and, when read together with the other information in the
Prospectus, at the date of the Prospectus and at the Closing
Time (and, if any Option Securities are purchased, at the
Date of Delivery), will not contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(iii) Independent Accountants. The accountants who
certified the financial statements and supporting schedules
included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) Financial Statements. The financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus, together with the related
schedules and notes thereto, present fairly the financial
position of the Company and its consolidated subsidiaries as
at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on
a consistent basis throughout the periods involved except as
disclosed therein. The supporting schedules, if any,
included or incorporated by reference in the Registration
Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected
financial data and the summary financial information
included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in
the Registration Statement.
(v) No Material Adverse Change in Business. Since
the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material
adverse change in the business, properties, financial
condition or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business or those
contemplated by the Registration Statement and Prospectus,
which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except
for regular quarterly dividends on the Common Stock in
amounts per share that are consistent with past practice,
there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its
capital stock.
(vi) Good Standing of the Company. The Company has
been duly organized and is validly existing as a corporation
in good standing under the laws of the State of New Jersey
and has full corporate power and authority to own, lease and
operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform
its obligations under this Agreement; the Company is duly
qualified as a foreign corporation to transact business and
is in good standing in the States of Florida, Maryland, New
York and North Carolina and the Commonwealth of Pennsylvania
and the conduct of its business and the ownership or leasing
of property by the Company 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 result in a Material Adverse Effect.
(vii) No Significant Subsidiaries. There are no
subsidiaries of the Company which would be considered a
"significant subsidiary" under Rule 405 of Regulation C
under the 1933 Act.
(viii) Capitalization. The authorized, issued and
outstanding Common Stock of the Company is as set forth in
the Prospectus in the column entitled "Common Stock
outstanding on _______, 1996" under the caption "The
Offering" in the Prospectus Summary (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or director or employee benefit
plans referred to or incorporated by reference in the
Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). The
shares of issued and outstanding Common Stock have been duly
authorized and validly issued and are fully paid and non-
assessable; none of the outstanding shares of Common Stock
was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has
been duly authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities.
The Common Stock to be purchased by the Underwriters from
the Company have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth
herein, will be validly issued and fully paid and non-
assessable and the Rights will have been duly and validly
issued; the Common Stock conforms to all statements relating
thereto contained or incorporated by reference in the
Prospectus; and the issuance of the Securities is not
subject to preemptive or other similar rights of any
securityholder of the Company.
(xi) Absence of Defaults and Conflicts. The Company
is not in violation of its charter or by-laws or in default
in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound, or
to which any of the property or assets of the Company is
subject (collectively, "Agreements and Instruments") except
for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance
of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its
obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company pursuant to the Agreements and Instruments (except
for such conflicts, breaches or defaults or liens, charges
or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any
applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government
instrumentality, or court, domestic or foreign, having
jurisdiction over the Company or any of its assets,
properties or operations where such violation could have a
Material Adverse Effect.
(xii) Absence of Proceedings. There is no action,
suit, proceeding or inquiry before or brought by any court
or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened,
against or affecting the Company, which is required to be
disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect
the consummation of this Agreement or the performance by the
Company of its obligations hereunder.
(xiii) Absence of Further Requirements. [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 Utilities Commission of the State
of North Carolina and the Public Utility Commission of the
Commonwealth of Pennsylvania have each issued appropriate
orders with respect to the execution, delivery and
performance by the Company of this Agreement and the
issuance of the Common Stock comprising a portion of the
Securities,] and no other filing with, or authorization,
approval, consent, license, order, registration,
qualification or decree of, any court or governmental
authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations or blue sky laws of the various
jurisdictions in which the Securities are being offered by
the Underwriters and except such as may be required in
connection with the exercise of the Rights.
(xiv) Possession of Licenses and Permits. The
Company possesses such permits, licenses, approvals,
consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by it; the
Company is in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses
are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and the Company
has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xv) Holding Company Act. Neither the Company nor
any of its subsidiaries is a "holding company" or a
subsidiary or affiliate of a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935.
(xvi) Environmental Laws. Except as described in the
Registration Statement and except such violations as would
not, singly or in the aggregate, result in a Material
Adverse Effect, (A) the Company is not in violation of any
federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law
and any judicial or administrative interpretation thereof
including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of
human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations, relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company has all permits,
authorizations and approvals required under any applicable
Environmental Laws and is in compliance with their
requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company and
(D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or
affecting the Company relating to any Hazardous Materials or
the violation of any Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any
officer of the Company or any subsidiary delivered to the
Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the
representations and warranties herein contained and subject to
the terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from
the Company, at the price per share set forth in Schedule B, the
number of Initial Securities set forth in Schedule A opposite the
name of such Underwriter, plus any additional number of Initial
Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to
the terms and conditions herein set forth, the Company hereby
grants an option to the Underwriters, severally and not jointly,
to purchase up to an additional 200,000 shares of Common Stock at
the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on
the Option Securities. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering over-
allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the
Representatives to the Company setting forth the number of Option
Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of
delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each
of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities
then being purchased which the number of Initial Securities set
forth in Schedule A opposite the name of such Underwriter bears
to the total number of Initial Securities, subject in each case
to such adjustments as the Representatives in their discretion
shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and
delivery of certificates for, the Initial Securities shall be
made at the office of Reid & Priest LLP, West 57th Street, New
York, NY 10019, or at such other place as shall be agreed upon by
the Representatives and the Company, at 10:00 A.M. (Eastern Time)
on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern Time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the
purchase price for, and delivery of certificates for, such Option
Securities shall be made at the above-mentioned office, or at
such other place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as specified in the
notice from the Representatives to the Company.
Payment shall be made to the Company by [wire transfer] in
immediately available funds to an account designated by the
Company against delivery to the Representatives for the
respective accounts of the Underwriters of certificates for the
Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account,
to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial Securities and the Option
Securities, if any, which it has agreed to purchase. Merrill
Lynch, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of
the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose
check has not been received by the Closing Time or the relevant
Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the
Initial Securities and the Option Securities, if any, shall be in
such denominations and registered in such names as the
Representatives may request in writing at least one full business
day before the Closing Time or the relevant Date of Delivery, as
the case may be. The certificates for the Initial Securities and
the Option Securities, if any, will be made available for
examination and packaging by the Representatives in The City of
New York not later than 10:00 A.M. (Eastern Time) on the business
day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and
Commission Requests. The Company, subject to Section 3(b),
will comply with the requirements of Rule 430A and will
notify the Representatives immediately, and confirm the
notice in writing, (i) when any post-effective amendment to
the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from
the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional
information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation
or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that
it was not, it will promptly file such prospectus. The
Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the
Representatives notice of its intention to file or prepare
any amendment to the Registration Statement (including any
filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective
or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with
copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which counsel
for the Underwriters shall reasonably object in writing.
(c) Delivery of Registration Statements. The Company
has furnished or will deliver to each of the Representatives
[and counsel for the Underwriters], without charge, one
signed copy of the Registration Statement as originally
filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the
Underwriters. If applicable, the copies of the Registration
Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has
delivered to each Underwriter, without charge, as many
copies of each preliminary prospectus as such Underwriter
reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, such number
of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request. If applicable, the
Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(e) Continued Compliance with Securities Laws. The
Company will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist
as a result of which it is necessary to amend the
Registration Statement or amend or supplement the Prospectus
in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be
necessary at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company
will furnish to the Underwriters such number of copies of
such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company will
endeavor, in cooperation with the Underwriters, to qualify
the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as
the Representatives may reasonably designate; provided,
however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject or to
meet the requirements deemed by the Company to be unduly
burdensome. In each jurisdiction in which the Securities
have been so qualified, the Company will file such
statements and reports as may be required by the laws of
such jurisdiction, unless such statements or reports are
deemed by the Company to be unduly burdensome, to continue
such qualification in effect until the earlier of (i) six
months from the effective date of the Registration Statement
or any Rule 462(b) Registration Statement or (ii) the
completion of the distribution of all of the Securities.
(g) Rule 158. The Company will timely file such
reports pursuant to the 1934 Act as are necessary in order
to make generally available to its security holders as soon
as practicable an earning statement for the purposes of, and
to provide the benefits contemplated by, the last paragraph
of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net
proceeds received by it from the sale of the Securities in
the manner specified in the Prospectus under "Use of
Proceeds."
(i) Listing. The Company will use its best efforts to
effect the listing of the Securities on the New York Stock
Exchange.
(j) Restriction on Sale of Securities. During a
period of 90 days from the date of the Prospectus, the
Company will not, without the prior written consent of
Merrill Lynch, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer
or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common
Stock or file any registration statement under the 1933 Act
with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to
be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, (C)
any shares of Common Stock issued or options to purchase
Common Stock or stock appreciation rights granted pursuant
to existing employee benefit plans of the Company, (D) any
shares of Common Stock or stock appreciation rights issued
pursuant to any non-employee director stock plan or dividend
reinvestment plan or (E) any shares of Common Stock issued
by the Company upon the exercise of the Rights.
4. Payment of Expenses (a) Expenses. Except as otherwise
provided in the Agreement, the Company will pay all expenses
incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of
the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other
transfer taxes or duties payable upon the sale of the Securities
to the Underwriters, (iii) the fees and disbursements of the
Company's counsel, accountants and other advisors, (iv) the
qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection
with the preparation of the Blue Sky Survey and any supplement
thereto and the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement
thereto (not to exceed in the aggregate $7,500), (v) the printing
and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheets and of the Prospectus and any
amendments or supplements thereto, (vi) the fees and expenses of
any transfer agent or registrar for the Securities and (x) the
fees and expenses incurred in connection with the listing of the
Securities on the New York Stock Exchange.
(a) Termination of Agreement. If this Agreement is
terminated by the Representatives in accordance with the
provisions of Section 5 or Section 9(a)(i) hereof, the Company
shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
5. Conditions of Underwriters' Obligations. The obligations
of the several Underwriters hereunder are subject to the accuracy
of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company
or any subsidiary delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the
part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule
424(b) (or a post-effective amendment providing such information
shall have been filed and declared effective in accordance with
the requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 424(b).
(b) Opinions of Counsel for Company. At Closing Time the
Representatives shall have received:
(i) the favorable opinion, dated as of Closing Time,
of Reid & Priest LLP, counsel for the Company, together with
signed or reproduced copies of such letter for each of the
other Underwriters substantially in the form set forth in
Exhibit A-1 hereto.
(ii) the favorable opinion, dated as of Closing Time,
of James R. Van Horn, Esq., counsel for the Company,
together with signed or reproduced copies of such letter for
each of the other Underwriters substantially in the form set
forth in Exhibit A-2 hereto.
(iii) the favorable opinion, dated as of Closing Time,
of each of [McWhirter, Reeves, McGlothlin, Davidson &
Bakas], [Piper & Marbury], [Cullen & Dykman], [Amos &
Jeffries, LLP] and [Malatesta, Hawke, McKeon], local counsel
to the Company, together with signed or reproduced copies of
such letter for each of the other Underwriters and
substantially in the form set forth in Exhibits A-3, A-4,
A-5, A-6 and A-7 hereto, respectively.
(c) Opinion of Counsel for Underwriters. At Closing Time
the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Winthrop, Stimson, Putnam & Roberts,
counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters
substantially in the form set forth in Exhibit B hereto.
(d) Officers' Certificate. At Closing Time there shall not
have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus, any Material
Adverse Effect, and the Representatives shall have received a
certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there
has been no Material Adverse Effect, (ii) the representations and
warranties in Section l (a) hereof are true and correct with the
same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has
been issued and, to the best knowledge of the Company, no
proceedings for that purpose have been instituted or are pending
or are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the
execution of this Agreement, the Representatives shall have
received from Arthur Andersen LLP a letter dated such date,
together with signed or reproduced copies of such letter for each
of the other Underwriters substantially in the form set forth in
Exhibit C hereto.
(f) Bring-down Comfort Letter. At Closing Time the
Representatives shall have received from Arthur Andersen LLP a
letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days
prior to Closing Time.
(g) Approval of Listing. At Closing Time the Securities
shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
(h) Conditions to Purchase of Option Securities. In the
event that the Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished
by the Company or any of its subsidiaries hereunder shall be true
and correct as of each Date of Delivery and, at the relevant Date
of Delivery, the Representatives shall have received:
(i) Officers' Certificate. A certificate, dated
such Date of Delivery, of the President or a Vice President
of the Company and of the chief financial or chief
accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to
Section 5(d) hereof is true and correct as of such Date of
Delivery.
(ii) Opinions of Counsel for Company. The favorable
opinion of Reid & Priest, counsel for the Company, James R.
Van Horn, Esq., counsel for the Company, and [McWhirter,
Reeves, McGlothlin, Davidson & Bakas], [Piper & Marbury],
[Cullen & Dykman], [Amos & Jeffries, LLP] and [Malatesta,
Hawke, McKeon], local counsel to the Company, dated such
Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The
favorable opinion of Winthrop, Stimson, Putnam & Roberts,
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(c) hereof
(iv) Bring-down Comfort Letter. A letter from
Arthur Andersen LLP, in form and substance satisfactory to
the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the Representatives pursuant to Section 5(e)
hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(i) Additional Documents. At Closing Time and at each Date
of Delivery counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(j) Termination of Agreement. If any condition specified
in this Section 5 shall not have been fulfilled when and as
required to be fulfilled, this Agreement, or, in the case of any
condition to the purchase of Option Securities on a Date of
Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities,
may be terminated by the Representatives by notice to the Company
at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without
liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6 and 7 shall survive any
such termination and remain in full force and effect.
6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or
any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission
or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the
fees and disbursements of counsel chosen by Merrill Lynch),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto), including the
430A Information and the Rule 434 Information, if applicable, or
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); provided further, however, that this
indemnity shall not inure to the benefit of any Underwriter, or
any person who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, on
account of any loss, liability, claim, damage or expense arising
from the sale of the Securities to any person if a copy of the
Prospectus, as the same may then be supplemented or amended, was
not sent or given by or on behalf of such Underwriter to such
person with or prior to the written confirmation of the sale
involved and the alleged omission or alleged untrue statement was
corrected in the Prospectus as so supplemented or amended at the
time of such confirmation.
(b) Indemnification of Company, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through
Merrill Lynch expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder,
but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the
defense of any such action. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may,
subject to the proviso in the immediately succeeding sentence,
assume the defense of such action with counsel chosen by it
reasonably satisfactory to such indemnified parties in such
action. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees
and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action; provided, however,
that if such indemnified parties reasonably object to such
assumption on the ground that there may be legal defenses
available to them that are different from or in addition to those
available to such indemnifying party, then the indemnifying party
may not assume the defense of such action and the fees and
expenses of separate counsel for the indemnified parties shall be
paid by the indemnifying parties. In no event shall the
indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) for all
indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii)
does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If
at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such
Settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request
prior to the date of such settlement. Notwithstanding the
immediately preceding sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its
consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent
it considers such request to be reasonable and (ii) provides
written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such
settlement.
7. Contribution. If the indemnification and hold harmless
provided for in Section 6 hereof is for any reason or to any
extent unavailable to an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to
therein (subject to the limitations contained therein), then each
indemnifying party shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred
by such indemnified party, as incurred, (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand
from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one
hand and the Underwriters on the other hand in connection with
the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company and
the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet
bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above
in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights
to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the
Company. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the
number of Initial Securities set forth opposite their respective
names in Schedule A hereto and not joint.
8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or
on behalf of any Underwriter or controlling person, or by or on
behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
9. Termination of Agreement.
(a) Termination; General. The Representatives may
terminate this Agreement, by notice to the Company, at any time
at or prior to Closing Time (i) if there has been, since the time
of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus, any Material
Adverse Effect, or (ii) if there has occurred any material
adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development involving a prospective
change in national or international political, financial or
economic conditions, in each case the effect of which is such as
to make it, in the judgment of the Representatives, impracticable
to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the
Company has been suspended or limited by the Commission or the
New York Stock Exchange, or if trading generally on the New York
Stock Exchange has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by said exchange or by order of the
Commission or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New
York authorities.
(b) Liabilities. If this Agreement is terminated pursuant
to this Section, such termination shall be without liability of
any party to any other party except as provided in Section 4
hereof, and provided further that Sections 1, 6 and 7 shall
survive such termination and remain in full force and effect.
10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are
obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters with the
approval of the Company, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the number of Securities to be purchased on
such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10%
of the number of Securities to be purchased on such date,
this Agreement or, with respect to any Date of Delivery
which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Company to sell the
Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of
Delivery which is after the Closing Time, which does not result
in a termination of the obligation of the Underwriters to
purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company
shall have the right to postpone the Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding
seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes
any person substituted for an Underwriter under this Section 10.
11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given
if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
to the Representatives at North Tower, World Financial Center,
New York, New York 10281-1201, attention of General Counsel;
notices to the Company shall be directed to it at 550 Route 202-
206, Box 760, Bedminster, New Jersey 07921-0760, attention of
__________________.
12. Parties. This Agreement shall inure to the benefit of and
be binding upon each of the Underwriters and the Company and
their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and
7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company
and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
14. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the
Underwriters and the Company in accordance with its terms.
Very truly yours,
NUI CORPORATION
By_________________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DEAN WITTER REYNOLDS INC.
EDWARD D. JONES & CO.
For themselves and as Representatives of the
other Underwriters named in Schedule A hereto.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By_____________________________________________
Authorized Signatory
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................
Dean Witter Reynolds Inc..............................
Edward D. Jones & Co. ...............................
_________
Total ............................................1,800,000
=========
SCHEDULE B
NUI CORPORATION
1,800,000 Shares of Common Stock
(No Par Value)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be
$_____.
2. The purchase price per share for the Securities to be
paid by the several Underwriters shall be $_____, being an amount
equal to the initial public offering price set forth above less
$_____ per share; provided that the purchase price per share for
any Option Securities purchased upon the exercise of the over-
allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial Securities but not
payable on the Option Securities.
EXHIBIT A-1
[Letterhead of Reid & Priest]
[Closing Date]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
DEAN WITTER REYNOLDS INC.
EDWARD D. JONES & CO.
as Representatives of the
several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as special counsel to NUI Corporation, a
New Jersey corporation (the "Company"), in connection with the
preparation, execution and delivery of the Purchase Agreement,
dated __________ __, 1996, between the Company and you, as
Representatives of the several Underwriters (the "Agreement"),
relating to the offering of 1,800,000 shares of the Company's
Common Stock, no par value (such shares being hereinafter
referred to as the "Common Stock"), and the preferred share
purchase rights appurtenant thereto (the "Rights," the Common
Stock and the Rights being collectively referred to herein as the
"Securities") and the preparation and filing of a Registration
Statement on Form S-3 (File No. 333-02255) (the "Registration
Statement") relating to such offering. All capitalized terms
used herein without definition shall have the respective meanings
set forth in the Agreement.
This opinion is rendered to you at the request of the
Company in accordance with Section 5(b)(i) of the Agreement.
We have examined the Registration Statement and the
Prospectus, which pursuant to Form S-3 under the Securities Act
of 1933, as amended (the "Act"), incorporates or is deemed to
incorporate by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended September 30, 1995 (the "Annual
Report"), the Quarterly Reports on Form 10-Q for the quarterly
periods ended December 31, 1995 and March 31, 1996, the Current
Reports on Form 8-K of the Company dated October 24, 1995,
December 1, 1995 and ___________ and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). In addition, we have
examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the
certificates representing the Common Stock, of which we have
examined a specimen), and upon originals or copies, certified or
otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such
other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
Based upon the foregoing and subject to the
qualifications and limitations stated therein, we are of the
opinion that:
(i) The Agreement has been duly authorized, executed
and delivered by the Company.
(ii) The Common Stock has been duly and validly
authorized and issued and is fully paid and non-assessable and
free of statutory preemptive rights.
(iii) The Rights have been duly and validly
[authorized and] issued.
(iv) The Securities conform, as to legal matters, with
the statements concerning them made under the heading
"Description of Capital Stock" in the Prospectus.
(v) All approvals, authorizations, consents or orders
of or filings with any commission, board, body, authority or
agency required in connection with the issuance and sale of the
Securities as contemplated by the Agreement have been obtained in
all jurisdictions, except that we express no opinion as to any
necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Securities are being
offered by the Underwriters and except such as may be required in
connection with the issuance of securities upon the exercise of
the Rights.] [May need to adjust after reviewing local counsel
opinions.]
(vi) The Registration Statement has become effective
under the Act and, to the best of our actual knowledge, no stop
order has been issued or proceedings with respect thereto are
pending or threatened under the Act.
(vii) Neither the Company nor any of its
subsidiaries is a "holding company" or a subsidiary of a "holding
company" within the meaning of the Public Utility Holding Company
Act of 1935.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included in
the Registration Statement, the Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to
the extent set forth in paragraph 4 above. In the course of the
preparation by the Company of the Registration Statement and the
Prospectus (excluding the Exchange Act Documents), we
participated in conferences with certain of its officers and
employees, with other counsel for the Company, with your
representatives and with representatives of Arthur Andersen LLP,
the independent accountants who examined certain of the financial
statements included in the Exchange Act Documents. We did not
prepare the Exchange Act Documents. Based on our examination of
the Registration Statement, the Prospectus and the Exchange Act
Documents, our investigations made in connection with the
preparation of the Registration Statement and the Prospectus
(excluding the Exchange Act Documents) and our participation in
the conferences referred to above, (i) we are of the opinion that
the Registration Statement, as of the time such Registration
Statement became effective, and the Prospectus, as of the date it
was filed pursuant to Rule 424(b) under the Act, complied as to
form in all material respects with the requirements of the Act
and the applicable rules and regulations of the Commission
thereunder and that the Exchange Act Documents complied as to
form when filed in all material respects with the requirements of
the Exchange Act and the applicable rules and regulations
thereunder except that in each case we express no opinion with
respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the
Registration Statement, the Prospectus or the Exchange Act
Documents, and (ii) we have no reason to believe that the
Registration Statement, as of the time such Registration
Statement became effective (including (i) the Exchange Documents
filed under the Exchange Act at such date and (ii) the
information deemed to be a part thereof pursuant to Rule 430A(b)
under the Act), contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that as of the date it was filed under Rule 424(b)(1) under the
Act and on the date hereof, the Prospectus contained or contains
an 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, except that in each case we express no
opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Prospectus or the
Exchange Act Documents.
We are members of the Bar of the State of New York and
do not hold ourselves out as experts on the laws of the States of
Florida, Maryland, New Jersey, North Carolina or the Commonwealth
of Pennsylvania. Accordingly, in rendering this opinion, we have
relied as to all matters governed by the laws of the States of
Florida, Maryland, New Jersey, North Carolina and the
Commonwealth of Pennsylvania, upon the opinions of even date
herewith addressed to you of James R. Van Horn, Esq., General
Counsel and Secretary of the Company, and ______________________.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon
by you for any other purpose, or relied upon or furnished to any
other person, firm or corporation (other than the several
Underwriters), without our prior written consent.
Very truly yours,
REID & PRIEST LLP
EXHIBIT A-2
[Letterhead of James R. Van Horn, Esq., General Counsel
and Secretary of the Company]
[Closing Date]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
DEAN WITTER REYNOLDS INC.
EDWARD D. JONES & CO.
as Representatives of the
several Underwriters
c/o Merrill Lynch Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
I am General Counsel and Secretary of NUI Corporation,
a New Jersey corporation (the "Company"), and am delivering this
opinion in connection with the Purchase Agreement, dated _______
__, 1996, between the Company and you, as Representatives of the
several Underwriters (the "Agreement"), relating to the offering
of 1,800,000 shares of the Company's Common Stock, no par value
(such shares being hereinafter referred to as the "Common
Stock"), and the preferred share purchase rights appurtenant
thereto (the "Rights", the Common Stock and the Rights being
collectively referred to herein as the "Securities") pursuant to
a Registration Statement on Form S-3 (File No. 333-02255) (the
"Registration Statement"). All capitalized terms used herein
without definition shall have the respective meanings set forth
in the Agreement.
This opinion is rendered to you at the request of the
Company in accordance with Section 5(b)(ii) of the Agreement.
I have examined the Registration Statement and the
Prospectus, which pursuant to Form S-3 under the Securities Act
of 1933, as amended (the "Act"), incorporates or is deemed to
incorporate by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended September 30, 1995 (the "Annual
Report"), the Quarterly Reports on Form 10-Q for the quarterly
periods ended December 31, 1995 and March 31, 1996, the Current
Reports on Form 8-K of the Company dated October 24, 1995,
December 11 1995 and _____________ and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). In addition, I have
examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the
certificates representing the Common Stock, of which I have
examined a specimen), and upon originals or copies, certified or
otherwise identified to my satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such
other and further investigations, as I have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, the
conformity to original documents of all documents submitted to me
as certified or photostatic copies, and the authenticity of such
latter documents.
Based upon the foregoing and subject to the
qualifications and limitations stated therein, I am of the
opinion that:
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.
2. The Company has corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its
obligations under the Purchase Agreement.
3. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in the
States of Florida, Maryland, New York and North Carolina and the
Commonwealth of Pennsylvania and in each such state or
jurisdiction to conduct the business in which it is engaged in
such state or jurisdiction and to own, lease and operate the
properties used by it in such business; the conduct of its
business and, the ownership or leasing of property by the Company
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 result in a Material Adverse
Effect.
4. The Agreement has been duly authorized, executed
and delivered by the Company.
5. The Securities conform, as to legal matters, with
the statements concerning them made under the heading
"Description of Capital Stock" in the Prospectus.
6. The Common Stock has been duly and validly
authorized and issued and is fully paid and non-assessable and
free of statutory and contractual preemptive rights.
7. The Rights have been duly and validly authorized
and issued.
8. [All approvals, authorizations, consents or orders
of or filings with any commission, board, body, authority or
agency required in connection with the issuance and sale of the
Securities as contemplated by the Agreement have been obtained in
all jurisdictions, except that I express no opinion as to any
necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Securities are being
offered by the Underwriters and except such as may be required in
connection with the issuance of securities upon the exercise of
the Rights.] [May need to adjust after reviewing local counsel
opinions.]
9. The execution, delivery and performance of the
Agreement by the Company and the consummation by the Company of
the transactions contemplated thereby do not and will not (i)
conflict with or result in a violation of any provisions of the
Amended and Restated Certificate of Incorporation, as amended, or
by-laws of the Company, (ii) conflict with or constitute a breach
of, or default under or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of
the Company pursuant to any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to me, to which the Company is a
party or by which it may be bound, or to which any of the
property or assets of the Company is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances
that would not have a Material Adverse Effect), or (iii) result
in any violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to me, of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
properties, assets or operations.
10. To the best of my knowledge, there is not pending
or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company is a party, or to which the
property of the Company is subject, before or brought by any
court or governmental agency or body, domestic or foreign, which
might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the Agreement or the
performance by the Company of its obligations thereunder.
I have not independently verified the accuracy,
completeness or fairness of the statements made or included in
the Registration Statement, the Prospectus or the Exchange Act
Documents and take no responsibility thereof or, except as and to
the extent set forth in paragraph 5 above. In the course of the
preparation by the Company of the Registration Statement and the
Prospectus (excluding the Exchange Act Documents), I participated
in conferences with certain of its officers and employees, with
other counsel for the Company, with your representatives and with
representatives of Arthur Andersen LLP, the independent
accountants who examined certain of the financial statements
included in the Exchange Act Documents. Based on my examination
of the Registration Statement, the Prospectus and the Exchange
Act Documents, my investigations made in connection with the
preparation of the Registration Statement and the Prospectus and
the Exchange Act Documents and my participation in the
conferences referred to above, I have no reason to believe that
the Registration Statement, as of the time such Registration
Statement became effective (including (i) the Exchange Act
Documents filed under the Exchange Act at such date and (ii) the
information deemed to be a part thereof pursuant to Rule 430A(b)
under the Act), contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that as of the date it was filed under Rule 424(b)(1) under the
Act and on the date hereof, the Prospectus contained or contains
an 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, except that in each case I express no
opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by
reference in Registration Statement, the Prospectus or the
Exchange Documents.
I am a member of the Bar of the State of New Jersey and
do not hold myself out as an expert on the laws of the States of
Florida, Maryland, New York, North Carolina or the Commonwealth
of Pennsylvania. Accordingly, in rendering this opinion, I have
relied, as to all matters governed by the laws of the States of
Florida, Maryland, New York, North Carolina and the Commonwealth
of Pennsylvania, upon the opinions of even date herewith
addressed to you of ___________________.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon
by you for any other purpose, or relied on or furnished to any
other person, firm or corporation (other than the several
Underwriters), other than Reid & Priest LLP, special counsel to
the Company and Winthrop, Stimson, Putnam & Roberts, counsel to
the Underwriters, to the extent set forth in their opinions of
even date herewith addressed to you, without my prior written
consent.
Very truly yours,
James R. Van Horn, Esq.
General Counsel and
Secretary
EXHIBIT A-3
[Letterhead of McWhirter, Reeves, McGlothlin, Davidson & Bakas
or other Florida Counsel reasonably acceptable to the
Representatives]
[Closing Date]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
DEAN WITTER REYNOLDS INC.
EDWARD D. JONES & CO.
as Representatives of the
several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as special Florida counsel to NUI
Corporation, a New Jersey corporation (the "Company"), in
connection with the preparation, execution and delivery of the
Purchase Agreement, dated __________ __, 1996, between the
Company and you, as Representatives of the several Underwriters
(the "Agreement"), relating to the offering of 1,800,000 shares
of the Company's Common Stock, no par value (such shares being
hereinafter referred to as the "Common Stock"), and the preferred
share purchase rights appurtenant thereto (the "Rights," the
Common Stock and the Rights being collectively referred to herein
as the "Securities") and the preparation and filing of a
Registration Statement on Form S-3 (File No. 333-02255) (the
"Registration Statement") relating to such offering. All
capitalized terms used herein without definition shall have the
respective meanings set forth in the Agreement.
We have examined the Registration Statement and the
Prospectus, which pursuant to Form S-3 under the Securities Act
of 1933, as amended (the "Act"), incorporates or is deemed to
incorporate by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended September 30, 1995 (the "Annual
Report"), the Quarterly Reports on Form 10-Q for the quarterly
periods ended December 31, 1995 and March 31, 1996, the Current
Reports on Form 8-K of the Company dated October 24, 1995,
December 1, 1995 and ___________ and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). In addition, we have
examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the
certificates representing the Common Stock, of which we have
examined a specimen), and upon originals or copies, certified or
otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such
other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
Based upon the foregoing and subject to the
qualifications and limitations stated therein, we are of the
opinion that:
1. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in the
State of Florida and has full power and authority under the laws
of the State of Florida to transact the business in which it is
engaged in the State of Florida and to own, lease 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
Common Stock and no other filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of any governmental authority or agency is necessary or
required under the laws of the State of Florida for the
performance by the Company of its obligations under the
Agreement, in connection with the offering, issuance or sale of
the Securities under the Agreement or the consummation of the
transactions contemplated thereby; provided, however, we express
no opinion with respect to (i) the necessity for any
qualification or other action under the Blue Sky or securities
laws of any jurisdiction of the United States of America or (ii)
the necessity for any other filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of any governmental authority or agency in connection with
the issuance of securities upon the exercise of the Rights.
Very truly yours,
MCWHIRTER, REEVES, MCGLOTHLIN,
DAVIDSON & BAKAS
EXHIBIT A-4
[Letterhead of Piper & Marbury or other Maryland Counsel
reasonably acceptable to the Representatives]
[Closing Date]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
DEAN WITTER REYNOLDS INC.
EDWARD D. JONES & CO.
as Representatives of the
several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as special Maryland counsel to NUI
Corporation, a New Jersey corporation (the "Company"), in
connection with the preparation, execution and delivery of the
Purchase Agreement, dated __________ __, 1996, between the
Company and you, as Representatives of the several Underwriters
(the "Agreement"), relating to the offering of 1,800,000 shares
of the Company's Common Stock, no par value (such shares being
hereinafter referred to as the "Common Stock"), and the preferred
share purchase rights appurtenant thereto (the "Rights," the
Common Stock and the Rights being collectively referred to herein
as the "Securities") and the preparation and filing of a
Registration Statement on Form S-3 (File No. 333-02255) (the
"Registration Statement") relating to such offering. All
capitalized terms used herein without definition shall have the
respective meanings set forth in the Agreement.
We have examined the Registration Statement and the
Prospectus, which pursuant to Form S-3 under the Securities Act
of 1933, as amended (the "Act"), incorporates or is deemed to
incorporate by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended September 30, 1995 (the "Annual
Report"), the Quarterly Reports on Form 10-Q for the quarterly
periods ended December 31, 1995 and March 31, 1996, the Current
Reports on Form 8-K of the Company dated October 24, 1995,
December 1, 1995 and ___________ and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). In addition, we have
examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the
certificates representing the Common Stock, of which we have
examined a specimen), and upon originals or copies, certified or
otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such
other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
Based upon the foregoing and subject to the
qualifications and limitations stated therein, we are of the
opinion that:
1. The Company is duly qualified as a foreign
corporation to transact business and is in good standing 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, lease 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 filing of the Registration Statement, the
execution and delivery of the Agreement or the issuance and sale
of the Securities, or the consummation of the transactions
contemplated thereby; provided, however, that we express no
opinion with respect to (i) the necessity for any qualification
or other action under the Blue Sky or securities laws of any
jurisdiction of the United States of America or (ii) the
necessity for any other filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of
any governmental authority or agency in connection with the
issuance of securities upon the exercise of the Rights.
Very truly yours,
PIPER & MARBURY
EXHIBIT A-5
[Letterhead of Cullen & Dykman or other New York Counsel
reasonably acceptable to the Representatives]
[Closing Date]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
DEAN WITTER REYNOLDS INC.
EDWARD D. JONES & CO.
as Representatives of the
several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as special New York counsel to NUI
Corporation, a New Jersey corporation (the "Company"), in
connection with the preparation, execution and delivery of the
Purchase Agreement, dated __________ __, 1996, between the
Company and you, as Representatives of the several Underwriters
(the "Agreement"), relating to the offering of 1,800,000 shares
of the Company's Common Stock, no par value (such shares being
hereinafter referred to as the "Common Stock"), and the preferred
share purchase rights appurtenant thereto (the "Rights," the
Common Stock and the Rights being collectively referred to herein
as the "Securities") and the preparation and filing of a
Registration Statement on Form S-3 (File No. 333-02255) (the
"Registration Statement") relating to such offering. All
capitalized terms used herein without definition shall have the
respective meanings set forth in the Agreement.
We have examined the Registration Statement and the
Prospectus, which pursuant to Form S-3 under the Securities Act
of 1933, as amended (the "Act"), incorporates or is deemed to
incorporate by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended September 30, 1995 (the "Annual
Report"), the Quarterly Reports on Form 10-Q for the quarterly
periods ended December 31, 1995 and March 31, 1996, the Current
Reports on Form 8-K of the Company dated October 24, 1995,
December 1, 1995 and ___________ and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). In addition, we have
examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the
certificates representing the Common Stock, of which we have
examined a specimen), and upon originals or copies, certified or
otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such
other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
Based upon the foregoing and subject to the
qualifications and limitations stated therein, we are of the
opinion that:
1. The Company is duly qualified as a foreign
corporation to transact business and is in good standing 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, lease 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 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 (i) the
necessity for any qualification or other action under the Blue
Sky or securities laws of any jurisdiction of the United States
of America or (ii) the necessity for any other filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of any governmental authority or agency
in connection with the issuance of securities upon the exercise
of the Rights.
Very truly yours,
CULLEN & DYKMAN
EXHIBIT A-6
[Letterhead of Amos & Jeffries, LLP or other
North Carolina Counsel reasonably acceptable to the
Representatives]
[Closing Date]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
DEAN WITTER REYNOLDS INC.
EDWARD D. JONES & CO.
as Representatives of the
several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as special North Carolina counsel to NUI
Corporation, a New Jersey corporation (the "Company"), in
connection with the preparation, execution and delivery of the
Purchase Agreement, dated __________ __, 1996, between the
Company and you, as Representatives of the several Underwriters
(the "Agreement"), relating to the offering of 1,800,000 shares
of the Company's Common Stock, no par value (such shares being
hereinafter referred to as the "Common Stock"), and the preferred
share purchase rights appurtenant thereto (the "Rights," the
Common Stock and the Rights being collectively referred to herein
as the "Securities") and the preparation and filing of a
Registration Statement on Form S-3 (File No. 333-02255) (the
"Registration Statement") relating to such offering. All
capitalized terms used herein without definition shall have the
respective meanings set forth in the Agreement.
We have examined the Registration Statement and the
Prospectus, which pursuant to Form S-3 under the Securities Act
of 1933, as amended (the "Act"), incorporates or is deemed to
incorporate by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended September 30, 1995 (the "Annual
Report"), the Quarterly Reports on Form 10-Q for the quarterly
periods ended December 31, 1995 and March 31, 1996, the Current
Reports on Form 8-K of the Company dated October 24, 1995,
December 1, 1995 and ___________ and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). In addition, we have
examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the
certificates representing the Common Stock, of which we have
examined a specimen), and upon originals or copies, certified or
otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such
other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
Based upon the foregoing and subject to the
qualifications and limitations stated therein, we are of the
opinion that:
1. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in the
State of North Carolina and has full 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,
lease 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 (i) the necessity for any qualification or other
action under the Blue Sky or securities laws of any jurisdiction
of the United States of America or (ii) the necessity for any
other filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of any governmental
authority or agency in connection with the issuance of securities
upon the exercise of the Rights.
Very truly yours,
AMOS & JEFFRIES, LLP
EXHIBIT A-7
[Letterhead of Malatesta, Hawke, McKeon or other Pennsylvania
Counsel reasonably acceptable to the Representatives]
[Closing Date]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
DEAN WITTER REYNOLDS INC.
EDWARD D. JONES & CO.
as Representatives of the
several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as special Pennsylvania counsel to NUI
Corporation, a New Jersey corporation (the "Company"), in
connection with the preparation, execution and delivery of the
Purchase Agreement, dated __________ __, 1996, between the
Company and you, as Representatives of the several Underwriters
(the "Agreement"), relating to the offering of 1,800,000 shares
of the Company's Common Stock, no par value (such shares being
hereinafter referred to as the "Common Stock"), and the preferred
share purchase rights appurtenant thereto (the "Rights," the
Common Stock and the Rights being collectively referred to herein
as the "Securities") and the preparation and filing of a
Registration Statement on Form S-3 (File No. 333-02255) (the
"Registration Statement") relating to such offering. All
capitalized terms used herein without definition shall have the
respective meanings set forth in the Agreement.
We have examined the Registration Statement and the
Prospectus, which pursuant to Form S-3 under the Securities Act
of 1933, as amended (the "Act"), incorporates or is deemed to
incorporate by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended September 30, 1995 (the "Annual
Report"), the Quarterly Reports on Form 10-Q for the quarterly
periods ended December 31, 1995 and March 31, 1996, the Current
Reports on Form 8-K of the Company dated October 24, 1995,
December 1, 1995 and ___________ and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). In addition, we have
examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the
certificates representing the Common Stock, of which we have
examined a specimen), and upon originals or copies, certified or
otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such
other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
Based upon the foregoing and subject to the
qualifications and limitations stated therein, we are of the
opinion that:
1. The Company is duly qualified as a foreign
corporation to transact business and is in good standing 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, lease 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 Common
Stock, 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 (i) the necessity for any qualification or other
action under the Blue Sky or securities laws of any jurisdiction
of the United States of America or (ii) the necessity for any
other filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of any governmental
authority or agency in connection with the issuance of securities
upon the exercise of the Rights.
Very truly yours,
MALATESTA, HAWKE, MCKEON
EXHIBIT B
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
[Closing Date]
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
DEAN WITTER REYNOLDS INC.
EDWARD D. JONES & CO.
as Representatives of the
several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as counsel to you, as Representatives of
the several Underwriters under the Purchase Agreement, dated
__________ __, 1996, between NUI Corporation, a New Jersey
corporation (the "Company") and you (the "Agreement"), relating
to the offering of 1,800,000 shares of the Company's Common
Stock, no par value (such shares being hereinafter referred to as
the "Common Stock"), and the preferred share purchase rights
appurtenant thereto (the "Rights," the Common Stock and the
Rights being collectively referred to herein as the "Securities")
and the preparation and filing of a Registration Statement on
Form S-3 (File No. 333-02255) (the "Registration Statement")
relating to such offering. All capitalized terms used herein
without definition shall have the respective meanings set forth
in the Agreement.
We have examined the Registration Statement and the
Prospectus, which pursuant to Form S-3 under the Securities Act
of 1933, as amended (the "Act"), incorporates or is deemed to
incorporate by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended September 30, 1995 (the "Annual
Report"), the Quarterly Reports on Form 10-Q for the quarterly
periods ended December 31, 1995 and March 31, 1996, the Current
Reports on Form 8-K of the Company dated October 24, 1995,
December 1, 1995 and ___________ and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). In addition, we have
examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the
certificates representing the Common Stock, of which we have
examined a specimen), and upon originals or copies, certified or
otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such
other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
Based upon the foregoing and subject to the
qualifications and limitations stated therein, we are of the
opinion that:
1. The Agreement has been duly authorized, executed
and delivered by the Company.
2. The Common Stock has been duly and validly
authorized and issued and is fully paid and non-assessable.
3. The Securities conform, as to legal matters, with
the statements concerning them made under the heading
"Description of Capital Stock" in the Prospectus.
4. The Registration Statement, as of the time such
Registration Statement became effective, and the Prospectus, as
of the date it was filed pursuant to Rule 424(b) under the Act,
complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations
of the Commission thereunder except that we express no opinion
with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the
Registration Statement or the Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included in
the Registration Statement, the Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to
the extent set forth in paragraph 3 above. In the course of the
preparation by the Company of the Registration Statement and the
Prospectus (excluding the Exchange Act Documents), we
participated in conferences with certain of its officers and
employees, with other counsel for the Company, with your
representatives and with representatives of Arthur Andersen LLP,
the independent accountants who examined certain of the financial
statements included in the Exchange Act Documents. We did not
prepare the Exchange Act Documents. Based on our examination of
the Registration Statement, the Prospectus and the Exchange Act
Documents, our investigations made in connection with the
preparation of the Registration Statement and the Prospectus
(excluding the Exchange Act Documents) and our participation in
the conferences referred to above, we have no reason to believe
that the Registration Statement, as of the time such Registration
Statement became effective (including (i) the Exchange Documents
filed under the Exchange Act at such date and (ii) the
information deemed to be a part thereof pursuant to Rule 430A(b)
under the Act), contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that as of the date it was filed under Rule 424(b)(1) under the
Act and on the date hereof, the Prospectus contained or contains
an 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, except that in each case we express no
opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Prospectus or the
Exchange Act Documents.
We are members of the Bar of the State of New York and
do not hold ourselves out as experts on the laws of the States of
Florida, Maryland, New Jersey, North Carolina or the Commonwealth
of Pennsylvania. Accordingly, in rendering this opinion, we have
relied as to all matters governed by the laws of the States of
Florida, Maryland, New Jersey, North Carolina and the
Commonwealth of Pennsylvania, upon the opinions of even date
herewith addressed to you of James R. Van Horn, Esq., General
Counsel and Secretary of the Company, and ______________________.
We have reviewed such opinions and believe that such opinions
are satisfactory and that you and we are justified in relying
thereon.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon
by you for any other purpose, or relied upon or furnished to any
other person, firm or corporation (other than the several
Underwriters), without our prior written consent.
Very truly yours,
WINTHROP, STIMSON PUTNAM & ROBERTS
EXHIBIT C
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(g)]
[TO COME]