UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the registrant [X]
Filed by a party other than the registrant [ ]
Check the appropriate box:
[ ] Preliminary proxy statement.
[ ] Confidential, for use of the Commission only (as permitted by
Rule 14a-6(e)(2)). [ ] Definitive proxy statement.
[X] Definitive additional materials.
[ ] Soliciting material pursuant to Section 240.14a-11(c) or Section 240.14a-12.
NUI Corporation
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of filing fee (check the appropriate box):
[ ] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the
amount on which the filing fee is calculated and state how it
was determined):
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4) Proposed maximum aggregate value of transaction:
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5) Total fee paid:
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[X] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11 (a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
1) Amount Previously Paid:
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2) Form, Schedule or Registration Statement No:
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3) Filing Party:
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4) Date Filed:
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Set forth below is a description of certain very recent developments.
Litigation Description
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On or about September 2, 2004, a shareholder class action complaint (the
"Complaint") was filed in a civil action captioned Green Meadows Partners, LLP
on behalf of itself and all others similarly situated v. Robert P. Kenney,
Bernard S. Lee, Craig G. Mathews, Dr. Vera King Farris, James J. Forese, J.
Russell Hawkins, R. Van Whisnand, John Kean, NUI Corporation and AGL Resources,
Inc., pending in the Superior Court of the State of New Jersey, County of
Somerset, Law Division. The Company first became aware of the Complaint when it
was formally served on September 9, 2004. The Complaint, brought on behalf of a
putative class of the stockholders of the Company, names as defendants all of
the directors of the Company (the "Individual Defendants"), the Company and AGL
Resources, Inc. ("AGL"). The Complaint alleges that purported financial
incentives in the form of change of control payments[1] and indemnification
rights created a conflict of interest on the part of certain of the Individual
Defendants in evaluating a possible sale of the Company. The Complaint further
alleges that the Individual Defendants, aided and abetted by AGL, breached
fiduciary duties owed to Plaintiff and the putative class by (i) deciding to
merge the Company with AGL without purportedly making the requisite effort to
obtain the best share price, (ii) agreeing to an allegedly unfair and inadequate
cash sale price of $13.70 per share, (iii) entering into a merger agreement with
AGL that provided for a $7.5 million break-up fee, and (iv) failing to disclose
allegedly material information in the preliminary proxy statement filed on
August 13, 2004, including, among other things, (a) the precise amount of
consideration received by each director in connection with the sale of the
Company, (b) purported strategic alternatives considered by the Company and its
financial advisors, (c) additional alleged details of the sale process, and (d)
prior relationships, if any, between the Company, AGL and/or its financial
advisors. The Complaint demands judgment (i) determining that the action is
properly maintainable as a class action, (ii) declaring that the Individual
Defendants breached fiduciary duties owed to Plaintiff and the putative class,
aided and abetted by AGL, (iii) enjoining the sale of the Company, or if
consummated, rescinding the sale, (iv) eliminating the $7.5 million break-up fee
agreed to with AGL, (v) awarding Plaintiff and the putative class compensatory
and/or rescissory damages, (vi) awarding interest, attorney's fees, expert fees
and other costs, and (vii) granting such other relief as the Court may find just
and proper. The Company believes that the lawsuit is without merit and intends
to defend itself vigorously. Nevertheless, it is not possible at this time to
determine a likely outcome.
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1 This allegation appears to be referring to a retirement plan for directors,
last amended as of January 24, 1995, that provides for a lump sum payment
of the retirement benefits that would be paid to such directors on
retirement, discounted for present value in the event of a change of
control.