As filed with the Securities and Exchange Commission on January ___, 2002.
REGISTRATION NO. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NUI CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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New Jersey 22-3708029
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(State or Other Jurisdiction of Incorporation) (I.R.S. Employer Identification
Number)
550 Route 202-206
P.O. Box 760
Bedminster, New Jersey 07921-0760
(908) 781-0500
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(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
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John Kean, Jr.
550 Route 202-206
P.O. Box 760
Bedminster, New Jersey 07921-0760
(908) 781-0500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Michael W. Zelenty, Esq.
Pitney, Hardin, Kipp & Szuch LLP
200 Campus Drive
Florham Park, New Jersey
(973) 966-6300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to time
after the registration statement becomes effective.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 (the "Securities Act"), other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Amount of
Title of each class of maximum maximum
securities to be aggregate registration
registered offering price(1)(2)(3) fee
Debt Securities(4)
- -------------------- ----------------------- ------------
Preferred Stock, no par value per
share (5)
Common Stock, no par value per
share(6)
Total $150,000,000 $35,850
(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II(D) to Form S-3.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(o) under the Securities Act. In no event will the aggregate
initial offering price of all securities offered from time to time exceed
$150,000,000, or the equivalent thereof in foreign currencies. The aggregate
amount of common stock is further limited to that which is permissible under
Rule 415(a)(4). Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder.
(3) We will determine the proposed maximum initial offering price per unit from
time to time, in connection with, and at the time of the issuance by us of the
securities registered hereunder.
(4) Subject to Footnote (2), we are registering hereunder an indeterminate
principal amount of debt securities as we may issue from time to time. If any
such debt securities are issued at an original issue discount, then the offering
price shall be in such greater principal amount as shall result in an aggregate
initial offering price of up to $150,000,000.
(5) Subject to Footnote (2), we are registering hereunder an indeterminate
number of shares of preferred stock as we may issue from time to time.
(6) Subject to Footnote (2), we are registering hereunder an indeterminate
number of shares of common stock as we may (a) issue from time to time,
including common stock issuable upon conversion or exchange of debt securities;
and (b) sell by or for the account of selling shareholders.
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NUI hereby amends this registration statement on such date or dates as may be
necessary to delay its effective date until NUI shall file a further amendment
that specifically states that this registration statement shall thereafter
become effective in accordance with Section 8(a) of the Securities Act or until
this registration statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to Section 8(a), may
determine.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement that contains this
prospectus and that has been filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and it is
not soliciting offers to buy these securities in any state where the offer or
sale is not permitted.
Prospectus subject to completion, January 30, 2002
[Insert Logo]
$150,000,000
NUI CORPORATION
Debt Securities
Preferred Stock
Common Stock
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The following are types of securities that we may offer and sell from time to
time under this prospectus:
o debt securities consisting of notes, debentures, or other evidences
of indebtedness, in one or more series which may be senior debt
securities, senior subordinated debt securities or subordinated debt
securities;
o shares of our preferred stock, no par value per share; and
o shares of our common stock, no par value per share.
We will describe the specific terms of the particular securities being offered
and the manner in which we will sell them in supplements to this prospectus. You
should read this prospectus and any prospectus supplement carefully before you
invest.
Also, shares of common stock may be offered from time to time by our
shareholders. Any selling shareholders will be identified, and the number of
shares to be offered by them will be set forth in a supplement to this
prospectus.
Our common stock is listed on the New York Stock Exchange under the symbol
"NUI." On January 25, 2002, the last reported sale price of our common stock on
the New York Stock Exchange was $22.35 per share. Each prospectus supplement
will indicate if the securities offered thereby will be listed on any securities
exchange.
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You should carefully review "Risk Factors" beginning on page 6 for a discussion
of matters to consider when investing in our securities.
This prospectus may not be used to consummate sales of the securities unless
accompanied by a prospectus supplement.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved any of these securities, or determined if
this prospectus is accurate or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is _____, 2002
TABLE OF CONTENTS
Page
----
About this Prospectus................................................3
Prospectus Summary...................................................4
Risk Factors.........................................................6
Forward Looking Statements..........................................12
Incorporation of Certain Documents by Reference.....................12
Use of Proceeds ....................................................13
Ratio of Earnings to Fixed Charges and Earnings to
Fixed Charges and Preferred Stock Dividends.......................13
Description of Debt Securities......................................14
Description of Capital Stock........................................23
Selling Shareholders................................................25
Plan of Distribution................................................25
Legal Matters.......................................................27
Experts.............................................................27
Where you Can Find More Information.................................27
We have not authorized anyone to give any information or make any representation
about us that is different from, or in addition to, that contained or
incorporated by reference in this prospectus or in any prospectus supplement.
Therefore, if anyone does give you information of this sort, you should not rely
on it. This prospectus and the accompanying prospectus supplement are not an
offer to buy any securities other than the registered securities to which they
relate. This prospectus and the accompanying prospectus supplement are not an
offer to sell or the solicitation of any offer to buy securities in any
jurisdiction to any person to whom it is unlawful to make an offer or
solicitation in that jurisdiction. The information contained in this prospectus
and the accompanying prospectus supplement speaks only as of the dates on their
covers, unless the information specifically indicates that another date applies.
When we deliver this prospectus or a supplement or make a sale pursuant to this
prospectus, we are not implying that the information is current as of the date
of the delivery or sale.
About This Prospectus
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission (the "SEC") using the SEC's shelf
registration rules. Under the shelf registration rules, using this prospectus,
together with a prospectus supplement, we may sell from time to time, in one or
more offerings, up to $150,000,000 of any combination of the securities
described in this prospectus. Certain of our shareholders may use this
prospectus to offer and sell our common stock that they own as described in
"Selling Shareholders".
In this prospectus we use the terms "NUI," "we," "us," and "our" to refer to NUI
Corporation, a New Jersey corporation.
This prospectus provides you with a general description of the securities we may
sell and the common stock that the selling shareholders may sell. Each time we
sell securities under this prospectus, we will provide an accompanying
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. To the extent information in this
prospectus is inconsistent with information contained in a prospectus
supplement, you should rely on the information in the prospectus supplement. You
should read this prospectus and any prospectus supplement, together with
additional information described under "Where You Can Find More Information" and
any additional information you may need to make your investment decision.
Prospectus Summary
The Company
NUI is a multi-state holding company engaged in the sale and distribution of
natural gas, energy commodity trading and marketing, and telecommunications. Our
utility divisions serve more than 376,000 customers in six states along the
eastern seaboard of the United States and comprise Elizabethtown Gas (NJ), City
Gas Company of Florida, North Carolina Gas, Valley Cities Gas (PA), Elkton Gas
(MD) and Waverly Gas (NY). Our non-regulated businesses include NUI Energy
Brokers, an energy wholesaler; NUI Energy, Inc, an energy retailer; NUI Energy
Solutions, Inc., an energy project development and consulting company; NUI
Environmental Group, Inc., an environmental project development company; Utility
Business Services, Inc., a customer and geographic information systems and
services company; NUI Telecom, Inc., a full- service telecommunications company,
and TIC Enterprises, LLC, a sales outsourcing company. Our operations are
organized and managed under three primary segments: Distribution Services,
Wholesale Energy Marketing and Trading Services and Retail and Business
Services. We also have corporate operations that do not generate any revenues.
Distribution Services Segment. Our Distribution Services segment distributes
natural gas in six states through our regulated utility divisions. Such
distribution services are regulated as to price, safety and return by the
regulatory commissions of the states in which we operate. This segment serves
approximately 376,000 customers, of which 67% are in New Jersey and 33% are in
other states. Most of our utility customers are residential and commercial
customers who purchase gas primarily for space heating.
Wholesale Energy Marketing and Trading Segment (formerly Energy Sales &
Services). Our Wholesale Energy Marketing and Trading Services segment reflects
the operations of our NUI Energy, NUI Energy Brokers and NUI Energy Solutions
subsidiaries, as well as off-system sales by the utility divisions. Together,
this segment offers wholesale and retail energy sales, energy portfolio
management, risk management, utility asset management, project development and
energy consulting services.
Retail and Business Services Segment (formerly Customer Services). Our Retail
and Business Services segment is comprised of our subsidiaries Utility Business
Service, Inc., NUI Telecom, Inc. and TIC Enterprises, our sales outsourcing
subsidiary, and our appliance business operations. This segment provides
telecommunications services, including local, long distance, cellular, internet
and data communications services; appliance repair, maintenance, installation
and leasing; customer information system services including bill printing,
mailing, collection and payment processing; network analysis; facilities
database management; and operations mapping and field computing for other
utilities. This segment, through our TIC Enterprises subsidiary, also provides
sales recruiting, training and management for sales professionals and sales and
marketing services for various businesses in the telecommunications industry.
NUI Environmental. NUI Environmental is an environmental project development
company that we formed to develop a solution to the rapidly decreasing
accessibility of the New York/New Jersey harbor to international commercial
shipping traffic. NUI Environmental received a contract from the State of New
Jersey in November 2000 to complete a pilot study to demonstrate the
effectiveness of an innovative process for the treatment of dredged material
from New York Harbor.
Business Strategy
Our strategy is to leverage core competencies in energy, telecommunication and
business services to create a mix of businesses that benefit customers and
shareholders, while reducing risk. The cornerstone of this strategy is our
regulated utility distribution operations. The consistency of cash flows and the
industry expertise learned over the past century and a half from these regulated
operations has enabled us to expand over the past decade through the creation of
complementary non-regulated businesses.
Our energy strategy is designed around physical assets. We intend to establish
energy trading hubs near the utility distribution businesses we own along the
East Coast. In creating such hubs, we, through NUI Energy Brokers, can leverage
our knowledge of the local market and the energy commodity to opportunistically
reduce risk and expenses for our utilities, while improving our overall return.
Our recent acquisition of Virginia Gas Company and the announced expansion of
pipeline assets in Florida are the latest example of this strategy. Virginia Gas
provides us with significant natural gas storage capacity in a key energy
marketplace. In the future, these storage assets may be utilized for electricity
generation citing, pipeline expansion or in support of natural gas distribution
expansion. The Florida pipeline expansion provides similar opportunities in the
future, as electricity generation construction and utility service territory
growth are likely to occur.
Our telecommunication and business services strategy is also designed around
physical assets. In these businesses, we intend to leverage our knowledge of
commercial and utility customers to create opportunities for growth. We intend
to grow these businesses into "pure play" companies that will achieve sufficient
size and scale to succeed.
Our headquarters are located at 550 Route 202-206, Bedminster, New Jersey, and
our telephone number at that address is (908) 781-0500.
You can obtain additional information about us in the reports and other
documents incorporated by reference in this prospectus and any prospectus
supplement. See "Incorporation of Certain Documents by Reference" and "Where You
Can Find More Information."
Risk Factors
An investment in our securities involves significant risks. You should carefully
read and consider the risks described below and all of the other information we
have included, or incorporated by reference, in this prospectus and any
accompanying prospectus supplement before you decide to buy our securities.
Our Company has a limited history of operating in a competitive environment.
Historically, the installation and maintenance of natural gas distribution
systems and transmission of natural gas to end-use customers has represented the
majority of our assets and the majority of our income. In 1996, when we began to
separate, or "unbundle," our sales of natural gas from our sales of gas
transportation and storage services, the traditional regulated natural gas
operations represented nearly all of our business. Today, that percentage is
shrinking as our unregulated businesses have grown to represent 54% of our total
revenues and 20% of pre-tax operating income for the fiscal year ended September
30, 2001.
Unlike our regulated natural gas operations, our unregulated businesses are not
guaranteed any rate of return on capital investment through predetermined rates,
and revenues and results of operations are likely to depend, in large part, upon
prevailing market conditions. We have a limited history of operating many of our
unregulated businesses. Among other things, our 1997 investment in TIC
Enterprises (which in May 2001 we expanded into 100% ownership) was our first
entry into the business of recruiting, training and managing sales professionals
and serving as sales and marketing representatives for other businesses,
including several telecommunications firms. Our November 1999 acquisition of
International Telephone Group (which became NUI Telecom) represented a
significant expansion into the field of telecommunications. If some or all of
our unregulated businesses are unsuccessful, that would adversely effect our
results of operations. We will not be able to recover any losses incurred by
these businesses in our utility rates.
NUI Telecom may be unable to compete successfully with larger communications
companies and other communications service providers and agents.
The market for communications services is extremely competitive. We expect that
this competition will continue to intensify as new communications service
providers and agents enter the market. The local access, long distance, wireless
and Internet services we market compete for customer recognition with other
providers offering similar services. NUI Telecom competes directly with other
communications services agents and indirectly with national, regional and local
communications providers of local access, long distance, wireless and Internet
services. Many of these competitors have greater name recognition and financial,
marketing and other resources. As a result, NUI Telecom may be unable to
successfully compete against its competitors' pricing strategies, technology
advances, advertising campaigns and other initiatives. NUI Telecom will need to
distinguish itself by its communications services knowledge, its ability to
offer a range of services and its responsiveness to the customer. If NUI Telecom
is unsuccessful in this intensely competitive market, that would adversely
effect our results of operations.
Our sales outsourcing business is subject to intense competition and downturns
in the telecommunications industry.
Our sales outsourcing business, TIC Enterprises, sells products and services of
its clients to business customers primarily in the telecommunications and
delivery services markets. TIC's sales revenues are therefore dependent not only
on the overall level of demand in the markets for those products and services,
but also on the specific demand for the products of the companies that TIC
represents. Competition in TIC's markets is strong, and the telecommunications
industry in particular has suffered from weak demand, with little signs of
improvement. Also, other sales outsourcing companies, or sales agencies offering
competing services, may erode TIC's market for clients. If TIC is unsuccessful
in this intensely competitive market, that would adversely effect our results of
operations.
The natural gas industry is highly competitive.
Competition is intense in all of our markets. Some of our competitors have
greater financial resources and access to larger supplies of natural gas than
those available to us. These resources could allow those competitors to price
their services more aggressively than we do, which could cause us to lose
existing customers or to be unable to attract and acquire new customers.
The renewal or replacement of the existing long-term contracts with our natural
gas customers at rates sufficient to maintain current revenues and cash flows
depend upon a number of factors beyond our control, including:
o competition from other pipelines or gas storage facilities;
o the price of, and demand for, natural gas in markets served; and
o the viability of our expansion projects.
We also compete with distributors of other fuels and forms of energy, including
electricity, fuel oil and propane, in all portions of the territories in which
we have gas distribution mains. Gas distributors such as us can expect increased
competition from electricity as deregulation in that industry decreases prices
and increases supply sources.
The unbundled sale of gas to customers is subject to competition from
unregulated marketers and brokers, which generally do not bear the obligations
or costs related to operating a regulated utility. We also face the risk of loss
of transportation service for large industrial customers that may have the
ability to build connections to interstate gas pipelines and bypass our
distribution system.
Natural gas price stability and natural gas price volatility each present risks
to our business which could adversely effect our revenues and cash flow.
Our storage business benefits from large price swings and peaking resulting from
seasonal price sensitivity through increased withdrawal charges and demand for
non-storage hub services. If volatility and seasonality in the natural gas
industry decrease, because of increased storage capacity throughout the pipeline
grid, increased production capacity or otherwise, the demand for our storage
services and, therefore, the prices that we will be able to charge for those
services, may decline.
Our wholesale trading subsidiary, NUI Energy Brokers, offers its customers the
ability to manage some of the risks inherent in natural gas price fluctuations.
Thus, our trading business also benefits from price volatility for natural gas
and gas transportation capacity. By taking positions in contractual rights to
provide or receive gas at various locations at various points in time, our
traders can achieve higher margins if prices change greatly rather than
remaining stable. Long periods of stable prices could significantly reduce our
trading profits.
NUI Energy Brokers uses derivatives for multiple purposes, including: to hedge
price commitments and minimize the risk of fluctuating gas prices, to take
advantage of market information and opportunities in the marketplace, and to
fulfill its trading strategies and, therefore, ensure favorable prices and
margins. These derivative instruments include forwards, futures, options and
swaps. We use derivatives and hedging techniques in an effort to reduce and
manage the price risk inherent in volatile markets. However, those risks can not
be completely eliminated, and we could incur financial losses in the future as a
result of volatility in the market values of the underlying commodities or if
one of our counterparties fails to perform under a contract.
Personal injury, mechanical failure and damage to the storage and related
facilities could have an adverse effect on revenues and cash flow from our
storage assets.
Our storage operations are subject to all of the risks generally associated with
the storage of natural gas, a highly volatile product, including personal
injuries and damage to storage facilities, related equipment and surrounding
properties caused by hurricanes, weather and other acts of God, fires and
explosions, subsidence, as well as leakage of natural gas. Our storage
facilities incorporate certain primary and backup equipment which, in the event
of mechanical failure, might take some time to replace. Any prolonged disruption
to the operations of our storage facilities, whether due to mechanical failure,
labor difficulties, destruction of or damage to such facilities, severe weather
conditions, interruption of transportation or utilities service or other
reasons, could have a material adverse effect on our business, results of
operations and financial condition. Additionally, some of our storage contracts
obligate us to indemnify the customer for any damage or injury occurring during
the period in which the customer's natural gas is in our possession. In order to
minimize the effects of any such incident, we maintain insurance coverage which
includes property and business interruption insurance. We believe that this
insurance coverage is adequate; however, you cannot be sure that the proceeds of
any such insurance would be paid in a timely manner or be in an amount
sufficient to meet our needs if such an event were to occur.
Terrorist attacks aimed at our facilities could adversely affect our business.
On September 11, 2001, the United States was the target of terrorist attacks of
unprecedented scale. Since the September 11 attacks, the United States
government has issued warnings that energy assets, specifically our nation's
natural gas pipeline infrastructure, may be the future target of terrorist
organizations. These developments have subjected our operations to increased
risks. Any future terrorist attack on our facilities, those of our customers
and, in some cases, those of other pipelines, could have a material adverse
effect on our business.
Our storage business depends upon neighboring pipelines to transport natural
gas.
To obtain natural gas, our storage business depends on the pipelines to which it
has access. Many of these pipelines are owned by parties not affiliated with us.
Any interruption of service on those pipelines or adverse change in their terms
and conditions of service could have a material adverse effect on our ability
(and the ability of our customers) to transport natural gas to and from our
facilities and a corresponding material adverse effect on our storage revenues.
In addition, the rates charged by those interconnected pipelines for
transportation to and from our facilities affect the utilization and value of
our storage services. Significant changes in the rates charged by those
pipelines or the rates charged by other pipelines with which the interconnected
pipelines compete could also have a material adverse effect on our storage
revenues.
Our natural gas business could be adversely affected by governmental regulation.
The construction, operation, maintenance, safety, and rates of our pipelines and
gas storage facilities are typically regulated by state regulatory commissions
with jurisdictional authority and are also subject to federal regulation and
oversight with respect to safety issues. The significant regulatory factors that
have previously affected this aspect of our business or could affect it from
time to time include the following:
o regulatory authorities may not allow us to charge rates sufficient to
recover our costs; and
o regulatory authorities may prohibit, delay, or restrict our ability to
build pipelines and gas storage facilities needed to access the
marketplace.
Our tariffs associated with our utility operating divisions provide purchased
gas adjustment clauses through which rates charged to customers are adjusted for
changes in the cost of gas on a reasonably current basis. Increases in other
utility costs and expenses not otherwise offset by increases in revenues or
reductions in other expenses could have an adverse effect on earnings due to the
time lag associated with obtaining regulatory approval to recover such increased
costs and expenses, and the uncertainty of whether regulatory commissions will
allow full recovery of such increased costs and expenses.
Our results are affected by fluctuations in demand due to weather.
We experience quarter-to-quarter fluctuations in our financial results because
our natural gas sales and pipeline throughputs are affected by changes in demand
for natural gas, primarily because of the weather. In particular, demand on our
Elizabethtown Gas system in New Jersey fluctuates due to weather variations
because of the many seasonal heating customers that are served by that system.
As a result, the winter months have historically generated more income than
summer months on the Elizabethtown system. Our efforts to minimize such effects
may not have the desired impact on future quarter-to-quarter fluctuations
resulting from seasonal demand patterns.
We are subject to liabilities and costs under environmental laws.
Our operations are subject to federal, state and local laws and regulations,
including those relating to the protection of the environment, natural
resources, health and safety, waste management, and transportation of
hydrocarbons and chemicals. Sanctions for noncompliance may include
administrative, civil and criminal penalties, revocation of permits and
corrective action orders. Environmental laws have become more stringent over the
years. These laws sometimes apply retroactively. As a result of our historical
waste disposal practices, we may incur material environmental costs and
liabilities that may not be covered by insurance. In addition, a party can be
liable for environmental damage without regard to that party's negligence or
fault. Therefore, we could have liability for the conduct of others, or for acts
that were in compliance with all applicable laws at the time we performed them.
There also may be no assurance that we have discovered and identified all
acquisition liabilities, including liabilities arising from non-compliance with
governmental regulation and environmental laws by former owners, and for which
we, as the new owner, may be responsible.
Our natural gas operations are subject to many hazards and operating risks that
may not be covered fully by insurance.
Our operations are subject to many hazards. These hazards include:
o damage to pipelines, related equipment and surrounding properties caused
by hurricanes, floods, fires and other natural disasters;
o inadvertent damage from construction and farm equipment;
o leakage of natural gas and other hydrocarbons;
o fires and explosions; and
o other hazards, including those associated with our gas, that could also
result in personal injury and loss of life, pollution and suspension of
operations.
We have insurance to protect against many of these liabilities. This insurance
is capped at certain levels and does not provide coverage for all liabilities.
Our insurance may not be adequate to cover all losses or liabilities that we
might incur in our operations. Moreover, we may not be able to maintain
insurance at adequate levels or at reasonable rates. Particular types of
coverage may not be available in the future. Should catastrophic conditions
occur that interrupt delivery of gas for any reason, such occurrence could have
a material impact on the profitability of our operations.
Our exemption under the Public Utility Holding Company Act could negatively
impact our ability to acquire additional utility assets or securities and could
be challenged by the Securities and Exchange Commission.
We believe that we qualify for an exemption from the Public Utility Holding
Company Act of 1935, except from provisions that regulate the acquisition of
securities of public utility companies. We have claimed an intrastate exemption
based on the fact that we and our utility subsidiaries conduct our utility
operations predominantly in the State of New Jersey. Our ability to acquire
additional utility assets or securities outside New Jersey could be limited if
we want to maintain this exemption from regulation as a holding company under
the Holding Company Act. However, we have been divesting utility assets outside
of New Jersey and currently expect to continue our utility focus in New Jersey.
In addition, while our claim of exemption became effective upon filing of the
required exemption statement, the SEC may subsequently revoke our exemption if
it believes that we do not qualify for the exemption, or if it finds that our
exemption is "detrimental to public interest or the interest of investors or
consumers." You should be aware that the SEC has not affirmatively approved an
intrastate exemption for a holding company with a similar level of utility
activity outside its state of incorporation. We have not, however, sought, nor
do we plan to seek, any affirmative approval from the SEC with respect to our
exemption. Moreover, the SEC has not attempted to revoke similar intrastate
exemption claims by other holding companies with a similar amount of utility
operations in states other than their state of incorporation. There can be no
assurances, however, that the SEC will not exercise its revocation authority in
the future.
Our gas marketing operations involve market and price risks.
As part of our gas marketing activities, we purchase natural gas at a price
determined by prevailing market conditions. Simultaneously with our purchase of
natural gas, we generally resell natural gas at a higher price under a sales
contract that is comparable in terms to our purchase contract, including any
price escalation provisions. In most instances, small margins are characteristic
of natural gas marketing because there are numerous companies of greatly varying
size and financial capacity who compete with us in the marketing of natural gas.
The profitability of our natural gas marketing operations depends on the
following factors:
o our responsiveness to changing markets and our ability to negotiate
natural gas purchase and sales agreements in changing markets;
o reluctance by end-users to enter into long-term purchase contracts;
o consumers' willingness to use other fuels when natural gas prices get too
high;
o timing of imbalance or volume discrepancy corrections and their impact on
financial results; and
o the ability of our customers to make timely payment.
We rely on key personnel.
We believe that our ability to successfully implement our business strategy and
to operate profitably depends on the continued employment of our senior
management team led by Mr. John Kean, Jr. While we have stock-based compensation
programs designed to retain and motivate our key executives and to align their
interests with those of our shareholders, we may not be able to retain our
senior management team. If Mr. Kean or other members of the senior management
team become unable or unwilling to continue in their present positions, our
business and financial results could be materially adversely affected.
We may have difficulty securing additional financing, and our activities may be
restricted by debt covenants.
Our growth strategy is capital intensive and depends on our ability to
successfully acquire or construct additional pipeline systems. Our ability to
implement this strategy depends upon our ability to obtain financing for such
acquisitions and construction projects. To date, we have satisfied substantially
all of our working capital needs through cash flow from operations, the issuance
of long-term debt, the public sale of our common stock, and short-term
borrowings.
We have entered into a credit agreement dated as of December 19, 2001 with a
syndicate of banks which provides for a financing commitment up to $80 million
through December 18, 2002. There is no assurance that we will not need
additional funds to implement our growth strategy, or that any needed longer
term financing funds will be available, if at all, on acceptable terms. We will
need to refinance any balances due under the existing credit agreement on
December 18, 2002 if that facility is not renewed. If we are unable to refinance
or raise additional funds, it will have a material adverse effect on our
operations. If we raise funds by selling additional equity securities, the share
ownership of persons acquiring equity securities in such offering will be
diluted. The credit agreement also contains a number of significant covenants
limiting our ability to, among other things, borrow additional money, transfer
or sell assets, create liens and enter into a merger or consolidation. These
covenants also require us to meet certain financial tests. If we are unable to
meet our debt service obligations or to comply with these covenants, there would
be a default under the credit agreement. Such a default, if not waived, could
result in acceleration of the repayment of our debt and have a material adverse
effect on our operations.
As a holding company, our ability to pay dividends and meet our other
obligations depends on the ability of our subsidiaries to pay dividends to us.
We are a holding company with no business operations. Our only significant asset
is the outstanding capital stock of our operating subsidiaries. As a result, we
are totally dependent on dividends from those subsidiaries to pay dividends on
our common stock or on any preferred stock we may issue, and to meet our other
obligations. The ability of our subsidiaries to pay dividends to us could be
restricted as a result of their capital structure, decisions of their boards,
availability of funds, and any applicable legal restrictions.
There is no assurance we will continue to declare dividends in the future.
Our common shareholders may receive dividends out of legally available funds if,
and when, they are declared by our board of directors. Our current policy is to
declare dividends at an annual rate of $0.98 per share of common stock. The
amount of future cash dividends, if any, will depend upon future earnings,
results of operations, capital requirements, covenants contained in our various
financing agreements, our financial condition and certain other factors. We
cannot assure you that dividends will be paid in the future.
The price of our securities may become less stable as our business mix
increases.
The trading price and trading volume of our common stock has historically been
relatively stable. However, as we increase our focus on our unregulated
businesses, our securities could become subject to greater price and volume
fluctuations. This volatility, in addition to the volatility of the stock market
in general, may adversely affect the market price of our securities.
Anti-takeover provisions of our certificate of incorporation and bylaws and New
Jersey law could make an acquisition of our company more difficult.
Our certificate of incorporation and bylaws and New Jersey law include
provisions that could delay or make it more difficult for a third party to
acquire us. We have also enacted certain anti-takeover measures, including a
shareholder rights plan. In addition, our board of directors has the authority
to issue up to 5,000,000 shares of preferred stock and to determine the price,
rights, preferences, privileges and restrictions, including voting rights, of
those shares without any further vote of action by our shareholders. The rights
of the holders of our common stock are subject to, and may be adversely affected
by, the rights of the holders of any preferred stock that may be issued in the
future. As a result of these measures and others, potential acquirers of us may
find it more difficult or be discouraged from attempting to effect an
acquisition transaction with us, thereby possibly depriving holders of our
securities of certain opportunities to sell or otherwise dispose of such
securities at above-market prices pursuant to their transactions. There is no
assurance that such provisions will not have an adverse effect on the market
value of our securities.
There is no assurance that a public market will develop for certain of the
securities which may be offered and sold under this prospectus.
Any debt securities or preferred stock sold under this prospectus will be new
issues of our securities with no established trading market. Underwriters to
whom we sell any of those securities for public offering and sale may make a
market in such securities, but the underwriters will not be obligated to do so
and may discontinue any market-making at any time without notice. Consequently,
no assurance can be given as to the liquidity of any secondary market for any of
those securities.
Forward Looking Statements
The statements we make in this prospectus, in any prospectus supplement, or in
the documents we have incorporated by reference that are not statements of
historical fact, may be "forward looking statements" within the meaning of
Section 27A of the Securities Act of 1933 (the "Securities Act") and Section 21E
of the Securities Exchange Act of 1934 (the "Exchange Act"). Forward-looking
statements generally can be identified by the use of forward-looking terminology
such as "may," "will," "expect," "intend," "estimate," "anticipate" or
"believe," or similar terminology. The forward-looking statements may include
discussions about business strategy and expectations concerning market position,
future operations, margins, profitability, liquidity and capital resources, and
statements concerning the integration into our business of the operations we
have acquired. Although we believe that the expectations in such statements are
or will be reasonable, any such forward-looking statements are not assurances of
future performance and involve risks and uncertainties. We caution you not to
place undue reliance on these forward-looking statements, which speak only as of
the date of this prospectus or any prospectus supplement. Our operations are
subject to several uncertainties, risks and other influences, many of which are
outside our control. Actual results may vary materially from anticipated results
for a number of reasons, including those described under "Risk Factors" in this
prospectus or in any prospectus supplement.
Incorporation of Certain Documents by Reference
The SEC allows us to "incorporate by reference" information we file with the SEC
into this prospectus. This means that we can disclose important information to
you by referring you to another document filed separately by us with the SEC.
The information incorporated by reference is considered to be part of this
prospectus, except for any information that is superseded by information that is
included in subsequent incorporated documents of by information that is included
directly in this prospectus or any prospectus supplement.
This prospectus incorporates by reference the documents listed below that we
have previously filed with the SEC and that are not included in or delivered
with this document. They contain important information about us and our
financial condition.
(1) Our Annual Report on Form 10-K for the fiscal year ended
September 30, 2001, filed with the SEC on December 21, 2001;
(2) Our Current Report on Form 8-K filed with the SEC on January 30,
2002, reporting on our earnings for our fiscal quarter ended December
31, 2001 and a certain credit agreement; and
(3) The description of NUI Holding Company's common stock, without
par value (now our common stock), contained in NUI Holding Company's
registration statement on Form 8-A, filed with the SEC on May 28,
1982, and Amendment No. 1 thereto on Form 8-A/A, filed with the SEC
on September 16, 1993 (File No. 1-8353), and the description of the
rights which are attached to our common stock that is contained in
our registration statement on Form 8-A filed with the SEC on March 6,
2001.
We incorporate by reference additional documents that we may file with the SEC
between the date of this prospectus and the date of the termination of the
offering pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act. We
also incorporate by reference additional documents that we may file with the SEC
after the date of the initial registration statement and prior to the
effectiveness of the registration statement. These documents include periodic
reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K, as well as proxy statements.
You can obtain any of the documents incorporated by reference in this document
from us without charge, excluding any exhibits to those documents unless the
exhibit is specifically incorporated by reference as an exhibit to this
prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from us at the
following address:
Investor Relations
NUI Corporation
550 Route 202-106
P. O. Box 760
Bedminster, New Jersey 07921-0760
(908) 781-0500
Use of Proceeds
Except as may otherwise be described in an accompanying prospectus supplement
relating to an offering of the securities, we intend to use the net proceeds
from the sale of the securities offered under this prospectus and the prospectus
supplement for general corporate purposes, including working capital, investment
in subsidiaries and payment or partial payment of existing indebtedness. We will
determine any specific allocation of the net proceeds of an offering of the
securities to a specific purpose at the time of the offering and will describe
the allocation in the related prospectus supplement.
Ratio of Earnings to Fixed Charges and
Earnings to Fixed Charges and Preferred Stock Dividends
The ratio of our earnings to our fixed charges and earnings to fixed charges and
preferred stock dividends for each of the fiscal years indicated:
Year Ended September 30,
2001 2000 1999 1998 1997
---- ---- ---- ---- ----
Ratio of earnings to fixed charges 2.44 2.70 2.64 1.85 2.11
Ratio of earnings to fixed charges 2.44 2.70 2.64 1.85 2.11
and preferred stock dividends
For these ratios, earnings consist of income before income taxes and fixed
charges. Fixed charges consist of interest expense, including amounts
capitalized, that portion of rent expense which management deems to be
attributable to interest costs and amortization of debt expense.
Description of Debt Securities
The debt securities may be issued from time to time in one or more series under
an Indenture (as defined below) between NUI, as issuer, and the trustee
specified in the applicable prospectus supplement. The following summaries of
certain provisions of the debt securities do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the Indenture applicable to a particular series of debt
securities, including the definitions therein of certain terms. A copy of the
form of the Indenture is included as an exhibit to the Registration Statement of
which this prospectus is a part. The following summary is qualified in its
entirety by reference to such exhibit. See "Where You Can Find More
Information." Article and Section references used herein are references to the
Indenture. Capitalized terms not otherwise defined in this Description of Debt
Securities will have the meaning given in the Indenture. Whenever particular
Sections, Articles or defined terms in the Indenture are referred to, it is
intended that those Sections, Articles or defined terms shall be incorporated
herein by reference.
The debt securities will constitute either indebtedness designated as Senior
Indebtedness ("Senior Debt Securities"), indebtedness designated as Senior
Subordinated Indebtedness ("Senior Subordinated Debt Securities") or
indebtedness designated as Subordinated Indebtedness ("Subordinated Debt
Securities"). Senior Debt Securities, Senior Subordinated Debt Securities and
Subordinated Debt Securities will each be issued under a separate indenture
(individually an "Indenture" and collectively the "Indentures") to be entered
into prior to the issuance of the debt securities. The Indentures will be
substantially identical, except for provisions relating to subordination. See
"--Subordination of Senior Subordinated Debt Securities and Subordinated Debt
Securities," below. There will be a separate trustee under each Indenture.
Information regarding the trustee under an Indenture will be included in any
prospectus supplement relating to the debt the securities issued thereunder.
The following description sets forth certain general terms and provisions of the
debt the securities to which any prospectus supplement may relate. The
particular terms of the debt the securities and the extent to which such general
provisions may apply will be described in a prospectus supplement relating to
such debt the securities.
General
The debt securities offered pursuant to this prospectus will be limited to
$150,000,000 aggregate principal amount or (i) its equivalent (based on the
applicable exchange rate at the time of sale), if the debt the securities are
issued with principal amounts denominated in one or more foreign currencies,
composite currencies or currency units, or (ii) such greater amount, if the debt
the securities are issued at an original issue discount, as shall result in
aggregate proceeds of $150,000,000 to NUI. The Indentures provide that
additional debt the securities may be issued thereunder up to the aggregate
principal amount authorized from time to time by NUI's Board of Directors. So
long as a single trustee is acting for the benefit of the holders of all the
debt the securities offered hereby and any such additional debt the securities
issued under the Indentures, the debt the securities and any such additional
debt the securities are herein collectively referred to as the "Indenture
Securities." The Indentures also provide that there may be more than one trustee
under the Indentures, each with respect to one or more different series of
Indenture Securities. At any time when two or more trustees are acting, each
with respect to only certain series, the term "Indenture Securities" as used
herein means the one or more series with respect to which each respective
trustee is acting and the powers and the trust obligations of each such trustee
as described herein shall extend only to the one or more series of Indenture
Securities for which it is acting as trustee. If there is more than one trustee
acting for different series of Indenture Securities, then those Indenture
Securities (whether of one or more than one series) for which each trustee is
acting would be treated as if issued under a separate Indenture.
The applicable prospectus supplement will set forth a description of the
particular series of debt securities being offered thereby, including but not
limited to (Indentures, Section 3.1):
(1) the designation or title of such debt securities;
(2) any limit on the aggregate principal amount of such debt
securities;
(3) the percentage of their principal amount at which such debt
securities will be offered;
(4) the date or dates on which the principal of such debt securities
will be payable and on which such debt securities will mature;
(5) the rate or rates (which may be fixed or variable) at which such
debt securities shall bear interest, or the method of
determination of such rate or rates at which such debt securities
shall bear interest, if any;
(6) the date or dates from which interest will accrue or the method
of determination of such date or dates, and the date or dates on
which any such interest shall be payable;
(7) whether such debt securities will be secured;
(8) the currencies or currency units in which such debt securities
are issued or payable;
(9) the terms for redemption, extension or early repayment of such
debt securities, if any;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which such debt securities are
authorized to be issued;
(11) if applicable, the terms and conditions upon which conversion
will be effected, including the conversion price, the conversion
period and other conversion provisions;
(12) the provisions for a sinking fund, if any;
(13) whether such debt securities are issuable as a Global Security
or Securities (as defined below);
14) any index or formula to be used to determine the amount of
payments of principal, premium, if any, and interest on such
debt securities, and any commodities, currencies, currency units
or indices, or value, rate or price, relevant to such
determination;
(15) if the principal of, premium, if any, or interest on such debt
securities is to be payable, at the election of NUI or a holder
thereof, in one or more currencies or currency units other than
that or those in which such debt securities are stated to be
payable, the currencies or currency units in which payment of
the principal of, premium, if any, and interest on such debt
securities as to which election is made shall be payable, and
the periods within which and the terms and conditions upon which
such election is to be made;
(16) if other than the principal amount thereof, the portion of the
principal amount of such debt securities of the series which
will be payable upon acceleration of the maturity thereof;
(17) whether such debt securities are subordinate in right of payment
to any Senior Indebtedness of NUI and, if so, the terms and
conditions of such subordination and the aggregate principal
amount of such Senior Indebtedness outstanding as of a recent
date;
(18) whether the interest, if any, on such debt securities is to be
payable in securities of NUI and the terms and conditions
applicable to any such payment;
(19) any covenants to which NUI may be subject with respect to such
debt securities;
(20) the applicability of the provisions described under "Defeasance
and Covenant Defeasance" below;
(21) United States income tax consequences, if any;
(22) the provisions for the payment of additional amounts with
respect to any withholding taxes in certain cases;
(23) any term or provision relating to such debt securities which is
not inconsistent with the provisions of the Indenture;
(24) the trustee; and
(25) any other special terms pertaining to such debt securities.
Unless otherwise specified in the applicable prospectus supplement, the debt
securities will not be listed on any securities exchange. One or more series of
debt securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at the time of
issuance is below market rates. Any material federal income tax consequences and
other special considerations with respect to any series of debt securities will
be described in the prospectus supplement relating to any such series of debt
securities.
If the purchase price of any series of debt securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of, premium, if any, and interest on any series of debt securities are
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms and
other information with respect to such series of debt securities will be set
forth in the applicable prospectus supplement.
Debt securities may be issued from time to time with payment terms which are
calculated by reference to the value, rate or price of one or more commodities,
currencies, currency units or indices. holders of such debt securities may
receive a principal amount (including premium, if any) on any principal payment
date, or a payment of interest on any interest payment date, that is greater
than or less than the amount of principal (including premium, if any) or
interest otherwise payable on such dates, depending upon the value, rate or
price on the applicable dates of the applicable currency, currency unit,
commodity or index. Information as to the methods for determining the amount of
principal, premium, if any, or interest payable on any date, the currencies,
currency units, commodities or indices to which the amount payable on such date
is linked and any additional tax considerations will be set forth in the
applicable prospectus supplement.
Except as may be set forth in the applicable prospectus supplement, holders of
debt securities will not have the benefit of any specific covenants or
provisions in the applicable Indenture or such debt securities in the event that
NUI engages in or becomes the subject of a highly leveraged transaction, other
than the limitations on mergers, consolidations and transfers of substantially
all of NUI's properties and assets as an entirety to any person as described
below under "--Consolidation, Merger and Sale of Assets."
Except as otherwise provided in the applicable prospectus supplement, principal,
premium, if any, and interest, if any, will be payable at an office or agency to
be maintained by NUI in New York, New York, except that at the option of NUI
interest may be paid by check mailed to the person entitled thereto.
The debt securities will be issued only in fully registered form without coupons
and may be presented for the registration of transfer or exchange at the
corporate trust office of the trustee. Not all debt securities of any one series
need be issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional debt securities of such series.
Since NUI is a holding company, the rights of NUI, and the rights of its
creditors, including the holders of the debt securities, to participate in any
distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise are necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that NUI may be recognized as
a creditor of the subsidiary. Generally, the debt securities will be effectively
subordinated to all existing and future indebtedness of the operating
subsidiaries of NUI.
Unless otherwise specified in an applicable prospectus supplement, the
Indentures will not contain any provisions that limit the ability of NUI or any
subsidiary of NUI to incur indebtedness or that afford holders of the debt
securities protection in the event of a highly leveraged or similar transaction
involving NUI or any of its subsidiaries.
Senior Debt Securities
The Senior Debt Securities will rank pari passu with all other unsubordinated
debt of NUI and senior to the Senior Subordinated Debt Securities and
Subordinated Debt Securities.
Subordination of Senior Debt Securities and Subordinated Debt Securities
The payment of the principal of, premium, if any, and interest on the Senior
Subordinated Debt Securities and the Subordinated Debt Securities will, to the
extent set forth in the respective Indentures and Indenture Supplements
governing such Senior Subordinated Debt Securities and Subordinated Debt
Securities, be subordinated in right of payment to the prior payment in full of
all Senior Indebtedness. (Indentures, Section 15.1.) Upon any payment or
distribution of assets to creditors upon any liquidation, dissolution, winding
up, reorganization, assignment for the benefit of creditors, marshalling of
assets or any bankruptcy, insolvency or similar proceedings of NUI, the holders
of all Senior Indebtedness will be entitled to receive payment in full of all
amounts due or to become due thereon before the holders of the Senior
Subordinated Debt Securities or the Subordinated Debt Securities will be
entitled to receive any payment in respect of the principal of, premium, if any,
or interest on such Senior Subordinated Debt Securities or Subordinated Debt
Securities, as the case may be. In the event of the acceleration of the maturity
of any Senior Subordinated Debt Securities or Subordinated Debt Securities, the
holders of all Senior Indebtedness will be entitled to receive payment in full
of all amounts due or to become due thereon before the holders of the Senior
Subordinated Debt Securities or Subordinated Debt Securities, as the case may
be, will be entitled to receive any payment upon the principal of, premium, if
any, or interest on such Senior Subordinated Debt Securities or Subordinated
Debt Securities, as the case may be. No payments on account of principal,
premium, if any, or interest in respect of the Senior Subordinated Debt
Securities or Subordinated Debt Securities may be made if there shall have
occurred and be continuing in a default in the payment of principal of, or
premium, if any, or interest on any Senior Indebtedness beyond any applicable
grace period, or a default with respect to any Senior Indebtedness permitting
the holders thereof to accelerate the maturity thereof, or if any judicial
proceedings shall be pending with respect to any such default. For purposes of
the subordination provisions, the payment, issuance or delivery of cash,
property or securities (other than stock, and certain subordinated securities,
of NUI) upon conversion or exchange of a Senior Subordinated debt security or
Subordinated debt security will be deemed to constitute payment on account of
the principal of such Senior Subordinated debt security or Subordinated debt
security, as the case may be.
By reason of such provisions, in the event of insolvency, holders of Senior
Subordinated Debt Securities and Subordinated Debt Securities may recover less,
ratably, than holders of Senior Indebtedness with respect thereto.
The term "Senior Indebtedness," when used with respect to any series of Senior
Subordinated Debt Securities or Subordinated Debt Securities, is defined to
include all amounts due on and obligations in connection with any of the
following, whether outstanding at the date of execution of the Indentures or
thereafter incurred, assumed, guaranteed or otherwise created (including,
without limitation, interest accruing on or after a bankruptcy or other similar
event, whether or not an allowed claim therein):
(a) indebtedness, obligations and other liabilities (contingent or
otherwise) of NUI for money borrowed or evidenced by bonds, debentures,
notes or similar instruments;
(b) reimbursement obligations and other liabilities (contingent or
otherwise) of NUI with respect to letters of credit or bankers'
acceptances issued for the account of NUI and interest rate protection
agreements and currency exchange or purchase agreements;
(c) obligations and liabilities (contingent or otherwise) of NUI related
to capitalized lease obligations;
(d) indebtedness, obligations and other liabilities (contingent or
otherwise) of NUI related to agreements or arrangements designed to
protect NUI against fluctuations in commodity prices, including without
limitation, commodity futures contracts or similar hedging instruments;
(e) indebtedness of others of the kinds described in the preceding
clauses (a) through (d) that NUI has assumed, guaranteed or otherwise
assured the payment of, directly or indirectly;
(f) indebtedness of another person of the type described in the
preceding clauses (a) through (e) secured by any mortgage, pledge, lien
or other encumbrance on property owned or held by NUI; and
(g) deferrals, renewals, extensions and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or
liability described in the preceding clauses (a) through (f) whether or
not there is any notice to or consent of the holders of such series of
Senior Subordinated Debt Securities or Subordinated Debt Securities, as
the case may be; except that, with respect to the Senior Subordinated
Debt Securities, any particular indebtedness, obligation, liability,
guaranty, assumption, deferral, renewal, extension or refunding shall
not constitute "Senior Indebtedness" if it is expressly stated in the
governing terms, or in the assumption or guarantee, thereof that the
indebtedness involved is not senior in right of payment to the Senior
Subordinated Debt Securities or that such indebtedness is pari passu
with or junior to the Senior Subordinated Debt Securities and, with
respect to Subordinated Debt Securities, any particular indebtedness,
obligation, liability, guaranty, assumption, deferral, renewal,
extension or refunding shall not constitute "Senior Indebtedness" if it
is expressly stated in the governing terms, or in the assumption or
guarantee, thereof that the indebtedness involved is not senior in right
of payment to the Subordinated Debt Securities or that such indebtedness
is pari passu with or junior to the Subordinated Debt Securities.
In certain circumstances, such as the bankruptcy or insolvency of NUI,
bankruptcy or insolvency legislation may be applicable and the application of
such legislation may lead to different results with respect to, for example,
payments to be made to holders of debt securities, or priorities between holders
of the debt securities and holders of Senior Indebtedness, than those provided
for in the applicable Indenture.
If this prospectus is being delivered in connection with a series of Senior
Subordinated Debt Securities or Subordinated Debt Securities, the accompanying
prospectus supplement or the information incorporated herein by reference will
set forth the approximate amount of Senior Indebtedness outstanding as of the
end of NUI's most recent fiscal quarter.
Form, Exchange, Conversion, Transfer, and Payment
Unless otherwise indicated in the applicable prospectus supplement, the debt
securities will be issued only in fully registered form in denominations of U.S.
$1,000 or integral multiples thereof. (Indenture, Section 3.2) Unless otherwise
indicated in the applicable prospectus supplement, payment of principal,
premium, if any, and interest on the debt securities will be payable, and the
exchange, conversion and transfer of debt securities will be registerable, at
the office or agency of NUI maintained for such purposes. No service charge will
be made for any registration of a transfer or exchange of the debt securities,
but NUI may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection therewith.
All monies paid by NUI to a Paying Agent for the payment of principal of,
premium, if any, or interest on any debt security which remain unclaimed for two
years after such principal, premium or interest has become due and payable may
be repaid to NUI and thereafter the holder of such debt security may look only
to NUI for payment thereof.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, the
following events are specified in the Indentures as Events of Default with
respect to debt securities of any series (Indentures, Section 5.1):
(a) failure to pay principal (or premium, if any) on any debt security
of that series at its maturity, whether or not such failure is a result
of the subordination provisions of the Indenture with respect to such
series;
(b) failure to pay any interest on any debt security of that series when
due, continued for 30 days, whether or not such failure is a result of
the subordination provisions of the Indenture with respect to such
series;
(c) failure to make any mandatory sinking fund payment, when due,
continued for 30 days, in respect of any debt security of that series;
(d) failure to perform any other covenant of NUI in the applicable
Indenture or any other covenant to which NUI may be subject with respect
to debt securities of that series (other than a covenant solely for the
benefit of a series of debt securities other than that series),
continued for 90 days after written notice as provided in the applicable
Indenture;
(e) acceleration of any indebtedness for borrowed money in a principal
amount in excess of $15 million for which NUI or any Significant
Subsidiary is liable, including debt securities of another series, or a
default by NUI or any Significant Subsidiary in the payment at final
maturity of outstanding indebtedness for borrowed money in a principal
amount in excess of $15 million, and such acceleration or default at
maturity shall not be waived, rescinded or annulled within 30 days after
written notice to NUI thereof, unless such acceleration or default at
maturity shall be remedied or cured by NUI or such Significant
Subsidiary or rescinded, annulled or waived by the holders of such
indebtedness, in which case such acceleration or default at maturity
shall not constitute an Event of Default under this provision;
(f) certain events of bankruptcy, insolvency or reorganization; and
(g) any other Event of Default provided with respect to the debt
securities of that series.
If an Event of Default with respect to outstanding debt securities of any series
shall occur and be continuing, either the trustee or the holders of at least 25%
in principal amount of the outstanding debt securities of that series, by notice
as provided in the applicable Indenture, may declare the principal amount (or,
if the debt securities of that series are original issue discount securities,
such portion of the principal amount as may be specified in the terms of that
series) of all debt securities of that series to be due and payable immediately,
except that upon the occurrence of an Event of Default specified in (f) above,
the principal amount (or in the case of original issue discount securities, such
portion) of all debt securities will be immediately due and payable without
notice. (Indentures, Section 5.2.) However, at any time after a declaration of
acceleration with respect to debt securities of any series has been made, but
before judgment or decree based on such acceleration has been obtained, the
holders of a majority in principal amount of the outstanding debt securities of
that series may, under certain circumstances, rescind and annul such
acceleration. For information as to waiver of defaults, see "Modification and
Waiver" below.
The Indentures will provide that, subject to the duty of the respective trustees
thereunder during an Event of Default to act with the required standard of care,
each such trustee will be under no obligation to exercise any of its rights or
powers under the respective Indentures at the request or direction of any of the
holders, unless such holders shall have offered to such trustee reasonable
security or indemnity. Subject to certain provisions, including those requiring
security or indemnification of the applicable trustee, the holders of a majority
in principal amount of the outstanding debt securities of any series will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to such trustee, or to exercise any trust or power
conferred on such trustee, with respect to the debt securities of that series.
No holder of a debt security of any series will have any right to institute any
proceeding with respect to the applicable Indenture or for any remedy
thereunder, unless (Indentures, Section 5.7):
(1) such holder shall have previously given to the applicable trustee
written notice of a continuing Event of Default;
(2) the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the same series shall have made
written requests, and offered reasonable indemnity, to such trustee
to institute such proceeding as trustee; and
(3) the trustee shall not have received from the holders of a
majority in aggregate principal amount of the outstanding debt
securities of the same series a direction inconsistent with such
request and shall have failed to institute such proceeding within 60
days.
However, such limitations do not apply to a suit instituted by a holder of a
debt security for enforcement of payment of the principal of, or premium, if
any, and interest, if any, on such debt security on or after the respective due
dates expressed in such debt security or the right to convert that holder's debt
security in accordance with the Indentures (if applicable). (Indentures, Section
5.8.)
NUI will be required to furnish to the Trustees annually a statement as to the
performance by NUI of its obligations under the respective Indentures and as to
any default in such performance.
Modification and Waiver
Without the consent of any holder of outstanding debt securities, NUI and the
trustees may amend or supplement the Indentures or the debt securities to cure
any ambiguity, defect or inconsistency, or to make any change that does not
adversely affect the rights of any holder of debt securities. (Indentures,
Section 9.1.) Other modifications and amendments of the respective Indentures
may be made by NUI and the applicable trustee with the consent of the holders of
not less than a majority in aggregate principal amount of the outstanding debt
securities of each series affected thereby; provided, however, that no such
modification or amendment may, without the consent of the holder of each
outstanding debt security affected thereby (Indentures, Section 9.2):
(a) change the stated maturity of the principal of, or any installment
of principal of, or premium, if any, or interest on any debt security;
(b) reduce the principal amount of, the rate of interest on, or the
premium, if any, payable upon the redemption of, any debt security;
(c) reduce the amount of principal of an original issue discount
security payable upon acceleration of the maturity thereof;
(d) change the place or currency of payment of principal of, premium,
if any, or interest on any debt security;
(e) impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security on or after the stated
maturity or redemption date thereof;
(f) if applicable, modify the conversion provisions in a manner adverse
to the holders thereof;
(g) modify the subordination provisions applicable to Senior
Subordinated Debt Securities or Subordinated Debt Securities in a manner
adverse to the holders thereof;
(h) reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of the holders of which is
required for modification or amendment of the applicable Indenture or
for waiver of compliance with certain provisions of the applicable
Indenture or for waiver of certain defaults; or
(i) modify any of the provisions of certain sections as specified in the
Indenture including the provisions summarized in this paragraph, except
to increase any such percentage or to designate additional provisions of
the applicable Indenture, which, with respect to such series, cannot be
modified or waived without the consent of the holder of each outstanding
debt security affected thereby.
The holders of at least a majority in principal amount of the outstanding debt
securities of any series may, on behalf of the holders of all debt securities of
that series, waive, insofar as that series is concerned, compliance by NUI with
certain covenants of the applicable Indenture. The holders of not less than a
majority in principal amount of the outstanding debt securities of any series
may, on behalf of the holders of all debt securities of that series, waive any
past default under the applicable Indenture with respect to that series, except
a default in the payment of the principal of, premium, if any, or interest on,
any debt security of that series or in respect of a provision which under the
applicable Indenture cannot be modified or amended without the consent of the
holder of each outstanding debt security of that series affected. (Indentures,
Section 9.8 and 5.13.)
Consolidation, Merger, and Sale of Assets
NUI, without the consent of any holders of any series of outstanding debt
securities, may consolidate with or merge into, or transfer or lease its assets
substantially as an entirety (treating NUI and each of its subsidiaries as a
single consolidated entity) to, any corporation, and any other corporation may
consolidate with or merge into, or transfer or lease its assets substantially as
an entirety to, NUI, provided that
(a) the corporation (if other than NUI) formed by such consolidation or
into which NUI is merged or which acquires or leases the assets of NUI
substantially as an entirety is organized and existing under the laws of
the United States of America, a state thereof or the District of
Columbia, and assumes NUI's obligations under each series of outstanding
debt securities and the Indentures applicable thereto;
(b) the Trustee is satisfied that the transaction will not result in the
successor being required to make any deduction or withholding on account
of certain taxes from any payments in respect of the Securities;
(c) after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing; and
(d) the trustee shall have received an officer's certificate and an
opinion of counsel with respect to compliance with the foregoing
requirements. (Indentures, Section 8.1.)
Defeasance and Covenant Defeasance
The Indentures allow NUI to elect either (Indentures, Section 13.1):
(1) to defease and be discharged from all of its obligations with respect to any
series of debt securities including, in the case of Senior Subordinated Debt
Securities and Subordinated Debt Securities, the provisions described under "--
Subordination of Senior Subordinated Debt Securities and Subordinated Debt
Securities" and except for the obligations to exchange or register the transfer
of such debt securities, to replace temporary, mutilated, destroyed, lost or
stolen debt securities, to maintain an office or agency in respect of such debt
securities, and to hold monies for payments in trust ("defeasance"); or
(2) to be released from its obligations with respect to any series of debt
securities concerning the restrictions described under "--Consolidation, Merger
and Sale of Assets" and any other covenants applicable to such debt securities
including, in the case of Senior Subordinated Debt Securities and Subordinated
Debt Securities, the provisions described under "--Subordination of Senior
Subordinated Debt Securities and Subordinated Debt Securities," which are
subject to covenant defeasance ("covenant defeasance"), and the occurrence of an
event described and notice thereof in clauses (c) and (d) under "--Events of
Default" shall no longer be an Event of Default, in each case, upon the
irrevocable deposit with the trustee, in trust for such purpose, of money and
Government Obligations that, through the payment of principal and interest in
accordance with their terms, will provide money in an amount sufficient to pay
the principal of, premium, if any, and interest, if any, on such debt securities
on the scheduled due dates therefor.
Such a trust may only be established if, among other things (Indentures,
Section 13.4),
(a) NUI has delivered to the trustee (i) in the case of defeasance, an
opinion of counsel stating that (A) NUI has received from, or there has
been published by, the Internal Revenue Service a ruling, or (B)since
the date of the applicable Indenture, there has been a change in the
applicable United States federal income tax law, in the case of either
(A) or (B) to the effect that the holders of such Securities will not
recognize gain or loss for United States federal income tax purposes as
a result of the deposit, defeasance and discharge to be effected with
respect to such Securities and will be subject to United States federal
income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, defeasance and discharge were not
to occur or (ii) in the case of covenant defeasance, an opinion of
counsel to the effect that the holders of such debt securities will not
recognize gain or loss for United States federal income tax purposes as
a result of such deposit and covenant defeasance and will be subject to
United States federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such deposit and
covenant defeasance had not occurred, and
(b) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under the
applicable Indenture shall have occurred and be continuing on the date
of such deposit, and
NUI may exercise its defeasance option with respect to such debt securities
notwithstanding its prior exercise of its covenant defeasance option. If NUI
exercises its defeasance option, payment of such debt securities may not be
accelerated because of an Event of Default. If NUI exercises its covenant
defeasance option, payment of such debt securities may not be accelerated by
reference to the covenants noted under clause (2) above. If NUI omits to comply
with its remaining obligations with respect to such debt securities under the
applicable Indenture after exercising its covenant defeasance option, and if
such debt securities are declared due and payable because of the occurrence of
any Event of Default, then the amount of money and U.S. government obligations
on deposit with the trustee may, in certain circumstances, be insufficient to
pay amounts due on such debt securities at the time of the acceleration
resulting from the Event of Default; however, NUI will remain liable for making
such payments. (Indentures, Article 13.)
Governing Law
The Indentures and the debt securities will be governed by, and construed in
accordance with, the laws of the State of New York. (Indentures, Section 1.12.)
Regarding the Trustees
The Indentures contain certain limitations on the right of each trustee, should
it become a creditor of NUI, to obtain payment of claims in certain cases, or to
realize for its own account on certain property received in respect of any such
claim as security or otherwise. Each Trustee will be permitted to engage in
certain other transactions with NUI; however, if the Trustee acquires any
conflicting interest and there is a default under the debt securities issued
under the applicable Indenture, the Trustee must eliminate such conflict or
resign.
(Indentures, Section 6.8.)
Book Entry System
The debt securities of a Series may be issued in the form of one or more global
certificates representing the debt securities (the "Global Securities") that
will be deposited with a depository (the "Depository") or with a nominee for the
Depository identified in the applicable prospectus supplement and will be
registered in the name of the Depository or a nominee thereof. (Indentures,
Section 3.1.) In such a case one or more Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding debt securities of the series to be represented
by such Global Security or Securities. Unless and until it is exchanged in whole
or in part for debt securities in definitive certificated form, a Global
Security may be transferred, in whole but not in part, only to another nominee
of the Depository for such series, or to a successor Depository for such series
selected or approved by NUI, or to a nominee of such successor Depository.
(Indentures, Sections 2.6, 2.7 and 3.5.)
The specific depository arrangement with respect to any series of debt
securities to be represented by a Global Security will be described in the
applicable prospectus supplement. NUI expects that the following provisions will
apply to depository arrangements.
Upon the issuance of any Global Security, and the deposit of such Global
Security with or on behalf of the Depository for such Global Security, the
Depository will credit, on its book-entry registration and transfer system, the
respective principal amounts of the debt securities represented by such Global
Security to the accounts of institutions ("participants") that have accounts
with the Depository or its nominee. The accounts to be credited will be
designated by the underwriters or agents engaging in the distribution of such
debt securities or by NUI, if such debt securities are offered and sold directly
by NUI. Ownership of beneficial interests in a Global Security will be limited
to participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in such Global Security will
be shown on, and the transfer of such beneficial interests will be effected only
through, records maintained by the Depository for such Global Security or by its
nominee. Ownership of beneficial interests in such Global Security by persons
that hold through participants will be shown on, and the transfer of such
beneficial interests within such participants will be effected only through,
records maintained by such participants. The laws of some jurisdictions may
require that certain purchasers of securities take physical delivery of such
securities in certificated form. The foregoing limitations and such laws may
impair the ability to own, pledge or transfer beneficial interests in such
Global Securities.
So long as the Depository for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the debt
securities represented by such Global Security for all purposes under the
applicable Indenture. Unless otherwise specified in the applicable prospectus
supplement and except as specified below, owners of beneficial interests in such
Global Security will not be entitled to have debt securities of the series
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of debt securities of such series in
certificated form and will not be considered the holders thereof for any
purposes under the Indenture. Accordingly, each person owning a beneficial
interest in such Global Security must rely on the procedures of the Depository
and, if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a holder
under the Indenture.
NUI understands that, under existing industry practices, if NUI requests any
action of holders or an owner of a beneficial interest in such Global Security
desires to give any notice or take any action a holder is entitled to give or
take under the Indenture, the Depository would authorize the participants to
give such notice or take such action. In that case, participants would authorize
beneficial owners owning through such participants to give such notice or take
such action or would otherwise act upon the instructions of beneficial owners
owning through them.
Unless otherwise specified in the applicable prospectus supplement, payments
with respect to principal, premium, if any, and interest, if any, on debt
securities represented by a Global Security registered in the name of a
Depository or its nominee will be made to such Depository or its nominee, as the
case may be, as the registered owner of such Global Security.
NUI expects that the Depository for any debt securities represented by a Global
Security, upon receipt of any payment of principal, premium or interest in
respect of such Global Security, will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Global Security as shown on the records of such
Depository. NUI also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in "street names,"
and will be the responsibility of such participants. None of NUI, the trustee or
any agent of NUI or the trustee shall have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
If the Depository for any debt securities represented by a Global Security is at
any time unwilling or unable to continue as Depository or ceases to be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, and a successor Depository is not appointed by NUI, NUI will issue such
debt securities in definitive certificated form in exchange for such Global
Security. In addition, NUI may at any time and in its sole discretion determine
not to have any of the debt securities of a series represented by one or more
Global Securities and, in such event, will issue debt securities of such series
in definitive certificated form in exchange for all of the Global Security or
Securities representing such debt securities. (Indentures, Section 2.7.)
Description of Capital Stock
As of September 30, 2001, our authorized capital stock was 30,000,000 shares of
common stock, no par value per share, and 5,000,000 shares of preferred stock,
no par value per share. As of that date, we had 13,755,038 shares of common
stock outstanding, including 174,301 shares held in treasury, and no shares of
preferred stock outstanding. We have summarized below the key terms and
provisions of the Company's capital stock. The descriptions are not complete.
You should read the actual provisions of our Certificate of Incorporation, as
amended (our "Certificate of Incorporation"), and our bylaws that relate to your
individual investment strategy. We have previously filed our Certificate of
Incorporation and bylaws with the SEC.
Our transfer agent and registrar is American Stock Transfer & Trust Company, New
York, New York.
Preferred Stock
The following description of the terms of the preferred stock sets forth certain
general terms and provisions of the preferred stock we may offer. If we offer
preferred stock, we will describe the specific designations and rights in the
prospectus supplement and we will file a description with the SEC.
Our Certificate of Incorporation authorizes us to issue up to 5,000,000 shares
of preferred stock, none of which are currently outstanding. Our board of
directors can, without approval of shareholders, issue one or more series of
preferred stock. The board of directors can also determine the number of shares
of each series and the rights, preferences and limitations of each series
including the dividend rights, voting rights, conversion rights, redemption
rights and any liquidation preferences of any wholly unissued series of
preferred stock, the number of shares constituting each series and the terms and
conditions of issue. In some cases, the issuance of preferred stock could delay
a change in control of the Company and make it harder to remove present
management. Under certain circumstances, preferred stock could also restrict
dividend payments to holders of our common stock.
The preferred stock will, when issued, be fully paid and non-assessable.
Shares of Series A Junior Participating Preferred Stock have been reserved for
possible future issuance in connection with the Company's Shareholder Rights
Plan, described below.
Common Stock
Listing. Our outstanding shares of common stock are listed on the New York Stock
Exchange under the symbol "NUI." Any additional common stock we issue will also
be listed on the New York Stock Exchange.
Dividends. Common shareholders may receive dividends if the board of directors
declares them out of legally available funds. We may pay dividends in cash,
stock or another form. In certain cases, common shareholders may not receive
dividends until we have satisfied our obligations to any preferred shareholders.
Dividend Restrictions. Our long-term debt agreements include, among other
things, restrictions as to the payment of cash dividends. Under the most
restrictive of these provisions, we were permitted to pay approximately $76.8
million of cash dividends as of September 30, 2001.
Fully Paid. All outstanding shares of common stock are fully paid and
non-assessable. Any additional common stock we issue will also be fully paid and
non-assessable.
Voting Rights. Each share of common stock is entitled to one vote in the
election of directors and other matters. A majority of the issued and
outstanding voting stock constitutes a quorum at any meeting of shareholders,
and the vote by the holders of a majority of the outstanding voting stock is
required to effect certain fundamental corporate changes such as liquidation or
merger. A vote by the holders of seventy five percent of the issued and
outstanding voting shares is required to effect certain amendments to our
Certificate of Incorporation. Common shareholders are not entitled to preemptive
or cumulative voting rights.
Other Rights. We will notify common shareholders of any shareholders' meetings
according to applicable law. If we liquidate, dissolve or wind-up our business,
either voluntarily or not, common shareholders will share equally in the assets
remaining after we pay our creditors and preferred shareholders.
Shareholder Rights Plan
In November 1995, the Company's Board of Directors adopted a Shareholder Rights
Plan (the "1995 Plan") under which shareholders of our common stock were issued
as a dividend one right to buy one one-hundredth of a share of Series A Junior
Participating Preferred Stock at a purchase price of $50 (the "Right") for each
share of common stock held. The Rights initially attached to the shares of our
common stock and could have been exercised or transferred only if a person or
group (an "Acquirer"), with certain exceptions, acquired, or commenced a tender
offer to acquire beneficial ownership of 15 percent or more of our common stock.
Each Right, except those held by the Acquirer, may have been used by the
non-acquiring shareholders to purchase, at the Right's exercise price, shares of
our common stock having a market value equivalent to twice the Right's exercise
price, thus substantially reducing the Acquirer's ownership percentage.
Under the 1995 Plan, the Company could have redeemed the Rights at $0.001 per
Right at any time prior to the occurrence of any such event. All Rights under
the 1995 Plan were to have expired on November 27, 2005. The Shareholder Rights
Plan was amended so that it was not triggered by the restructuring of the
Company as a holding company. On March 1, 2001, upon restructuring as a holding
company, we adopted a new Shareholder Rights Plan similar to the 1995 Plan (the
2001 Plan) except that all rights now expire on March 2, 2011.
Selling Shareholders
An unspecified number of shares of our common stock may be offered and sold
under this prospectus by selling shareholders; provided, however, that no
selling shareholder will be authorized to use this prospectus for an offer of
such common stock without first obtaining our consent. We may consent to the use
of this prospectus by selling shareholders for a limited period of time and
subject to limitations and conditions, which may be varied by agreement between
us and the selling shareholders. Information identifying any such shareholders
and disclosing such information concerning the shareholders and the amount of
common stock to be sold as may then be required by the Securities Act and the
rules of the SEC will be set forth in a supplement to this prospectus.
Plan of Distribution
We and the selling shareholders may offer the securities to or through
underwriters, through agents or directly to other purchasers.
The distribution of the securities may be effected from time to time in one or
more transactions at a fixed price or prices (which may be changed from time to
time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. Each prospectus
supplement will describe the method of distribution of the securities offered
therein.
We and the selling shareholders may sell the securities directly, through agents
designated from time to time, through underwriting syndicates led by one or more
managing underwriters or through one or more underwriters acting alone. Each
prospectus supplement will set forth the terms of the securities to which such
prospectus supplement relates, including the name or names of any underwriters
or agents with whom we or the selling shareholders have entered into
arrangements with respect to the sale of such securities, the public offering or
purchase price of such securities and the net proceeds to us or the selling
shareholders from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any discounts and commissions allowed
or paid to dealers, if any, any commissions allowed or paid to agents, and the
securities exchange or exchanges, if any, on which such securities will be
listed. Dealer trading may take place in certain of the securities, including
securities not listed on any securities exchange.
The securities may be purchased to be reoffered to the public through
underwriting syndicates led by one or more managing underwriters, or through one
or more underwriters acting alone. The underwriter or underwriters with respect
to each underwritten offering of securities will be named in the prospectus
supplement relating to such offering and, if an underwriting syndicate is used,
the managing underwriter or underwriters will be set forth on the cover page of
such prospectus supplement. Unless otherwise set forth in the applicable
prospectus supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions precedent and each of the
underwriters with respect to a sale of securities will be obligated to purchase
all of its securities if any are purchased. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
The securities may be offered and sold by us and the selling shareholders
through agents designated by us or the selling shareholders, as the case may be,
from time to time. Any agent involved in the offer and sale of any securities
will be named, and any commissions payable by us or the selling shareholders, as
the case may be, to such agent will be set forth, in the prospectus supplement
relating to such offering. Unless otherwise indicated in such prospectus
supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
Offers to purchase securities may be solicited directly by us or the selling
shareholders and sales thereof may be made by us or the selling shareholders, as
the case may be, directly to institutional investors or others who may be deemed
to be underwriters within the meaning of the Securities Act with respect to any
resale thereof. The terms of any such sales will be described in the prospectus
supplement relating thereto.
We and the selling shareholders may also issue contracts under which the
counterparty may be required to purchase securities. Such contracts would be
issued for securities in amounts, at prices and on terms to be set forth in a
prospectus supplement.
The anticipated place and time of delivery of securities will be set forth in
the applicable prospectus supplement.
If so indicated in the applicable prospectus supplement, we or the selling
shareholders will authorize underwriters or agents to solicit offers by certain
institutions to purchase securities from us or the selling shareholders, as the
case may be, pursuant to delayed delivery contracts providing for payment and
delivery at a future date. Institutions with which such contracts may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but in
all cases such institutions must be approved by us or the selling shareholders,
as the case may be. Unless otherwise set forth in the applicable prospectus
supplement, the obligations of any purchaser under any such contract will not be
subject to any conditions except that:
o The purchase of the securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject; and
o If the securities are also being sold to underwriters acting as principals
for their own account, the underwriters shall have purchased such
securities not sold for delayed delivery.
The underwriters and such other persons will not have any responsibility in
respect of the validity or performance of such contracts.
Any underwriter or agent participating in the distribution of the securities may
be deemed to be an underwriter, as that term is defined in the Securities Act,
of the securities so offered and sold and any discounts or commissions received
by them from us or the selling shareholders, as the case may be, and any profit
realized by them on the sale or resale of the securities may be deemed to be
underwriting discounts and commissions under the Securities Act.
Underwriters and agents may be entitled, under agreements entered into with us
or the selling shareholders, to indemnification by us or the selling
shareholders, as the case may be, against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments which such underwriters or agents may be required to make in respect
thereof. Certain of such underwriters and agents, including their associates,
may be customers of, engage in transactions with and perform services for, us
and our subsidiaries or the selling shareholders in the ordinary course of
business.
The securities may or may not be listed on a national securities exchange or a
foreign securities exchange, other than the common stock, which is traded on the
New York Stock Exchange. Any common stock sold pursuant to a prospectus
supplement will be traded on the New York Stock Exchange, subject to official
notice of issuance. Any underwriters to whom securities are sold by us for
public offering and sale may make a market in those securities, but the
underwriters will not be obligated to do so and may discontinue any market
making activities at any time without notice. No assurances can be given that
there will be an active trading market for the securities.
Legal Matters
The validity of the securities offered will be passed upon for us by Pitney,
Hardin, Kipp & Szuch LLP, Morristown, New Jersey and will be passed upon for any
agents, dealers or underwriters by counsel named in the applicable prospectus
supplement.
Experts
The consolidated financial statements incorporated in this Prospectus by
reference to our Annual Report on Form 10-K for the year ended September 30,
2001, have been so incorporated in reliance on the report by Arthur Andersen
LLP, certified public accountants, given on the authority of said firm as
experts in auditing and accounting.
Where You Can Find More Information
We file annual, quarterly and special reports, proxy statements and other
information with the SEC under the Securities Exchange Act of 1934. You may read
and copy this information at, or obtain copies (at prescribed rates) by mail
from, the Public Reference Room of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Room by calling the SEC at (800) SEC-0330.
The SEC also maintains an internet world wide web site that contains reports,
proxy statements and other information about issuers, like NUI, that file
reports electronically with the SEC. The address of that site is
http://www.sec.gov.
You can also inspect reports, proxy statements and other information about us at
the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth all expenses payable by NUI Corporation in
connection with the sale of the securities being registered, all of which
expenses, except for the SEC registration fee, are estimates:
SEC Registration fee..........................$35,850
NYSE fee...................................... *
Trustee's fees................................ *
Printing expenses............................. *
Legal fees and expenses....................... *
Accounting fees and expenses.................. *
Miscellaneous................................. *
Total......................................... *
* To be filed by amendment.
Item 15. Indemnification of Directors and Officers
Pursuant to the New Jersey Business Corporation Act, Section 14A:3-5, a New
Jersey corporation may indemnify its directors, officers, employees or agents in
their capacities as such, or when serving as such for any other enterprise at
the request of the corporation (each such person a "Corporate Agent"), against
expenses and liabilities in connection with any proceedings. Good faith and a
reasonable belief that the conduct was in or not opposed to the best interests
of the corporation and, with respect to a criminal proceeding, no reasonable
cause to believe that the conduct was unlawful, must be found by a majority vote
of a quorum of disinterest directors, by independent legal counsel in a written
opinion or by the shareholders. In proceedings by or in the right of the
corporation, a Corporate Agent, when the above standards of conduct are found as
set forth in the previous sentence, may be indemnified for expenses. However, if
a court judges a Corporate Agent liable to the corporation, no indemnification
shall be provided except as such court deems proper. A Corporate Agent must be
indemnified against expenses by the corporation to the extent such Corporate
Agent has been successful on the merits or otherwise in a proceeding arising out
of such Corporate Agent's duties. A corporation may pay the expense incurred by
a Corporate Agent in advance of final disposition of the proceeding if such
payments are authorized by the board of directors of the corporation upon the
receipt of an undertaking by or on behalf of such Corporate Agent to repay such
amount if it shall be ultimately determined that such Corporate Agent is not
entitled to indemnification under Section 14A:3-5 of the New Jersey Business
Corporation Act.
Our Certificate of Incorporation limits the liability of directors to the
fullest extent permitted by New Jersey law. We have insurance policies covering
certain of its liabilities and expenses which might arise in connection with its
lawful indemnification of its directors and officers for certain of their
liabilities and expenses. In addition, we carry liability insurance on behalf of
our directors and officers against expenses incurred in proceedings and for
liabilities asserted against them by reason of their being or having been a
director or officer.
Item 16. Exhibits
See Exhibit Index.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the
form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by us pursuant to section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of our annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned registrant hereby further undertakes that:
(1) For purposes of determining any liability under
the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule 424
(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
(2) For purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(d) The undersigned registrant hereby further undertakes to
file an application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the SEC under Section
305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the Town of Bedminster, State of New Jersey, on the 30th day of
January, 2002.
NUI CORPORATION
By: /s/ John Kean, Jr.
-------------------------------------
John Kean, Jr.
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints John Kean, Jr. as his true and lawful attorney-in-fact
and agent, with full power of substitution for him and in his name, place and
stead in any and all capacities, to sign any and all amendments to this
Registration Statement (including post-effective amendments), and to file the
same with all exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming what said attorney-in-fact and agent or his substitutes may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
--------- ----- ----
President, Chief Executive Officer and
/s/ John Kean, Jr. Director (Principal executive officer) January 30, 2002
____________________________
JOHN KEAN, JR.
/s/ John Kean Chairman and Director January 30, 2002
____________________________
JOHN KEAN
Senior Vice President, Chief Operating
/s/ A. Mark Abromovic Officer and Chief Financial Officer January 30, 2002
____________________________
A. MARK ABRAMOVIC (Principal financial and accounting officer)
____________________________ Director January ___, 2002
DR. VERA KING FARRIS
____________________________ Director January ___, 2002
JAMES J. FORESE
/s/ J. Russell Hawkins Director January 30, 2002
____________________________
J. RUSSELL HAWKINS
/s/ Bernard S. Lee Director January 30, 2002
____________________________
BERNARD S. LEE
____________________________ Director January ___, 2002
R. V. WHISNAND
INDEX TO EXHIBITS
Exhibit Description
1.1* Form of Underwriting Agreement (Equity).
1.2* Form of Underwriting Agreement (Debt).
4.1 Form of Indenture.
4.2(1) Rights Agreement between NUI Corporation and American Stock Transfer
& Trust Company dated as of March 2, 2001.
5.1 Opinion of Pitney, Hardin, Kipp & Szuch LLP.
12.1 Statement regarding computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Anderson LLP.
23.2 Consent of Pitney, Hardin, Kipp & Szuch LLP (included in Exhibit 5.1).
24.** Power of Attorney (contained on the signature page of this Registration
Statement).
* To be filed by amendment.
** Included elsewhere in this Registration Statement.
(1) Incorporated by reference to Exhibit 10.1 to NUI's Form 8-A dated March 2,
2001 and filed with the SEC on March 6, 2001.