Exhibit 1
NUI CORPORATION
(a New Jersey corporation)
____ Shares of Common Stock
(No Par Value)
PURCHASE AGREEMENT
Dated: September __, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
NUI Corporation, a New Jersey corporation (the "Company"),
confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Xxxxxx Xxxxxxx
& Co. Incorporated and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters," which term shall
also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx & Co.
Incorporated are acting as representatives (in such capacity, the
"Representatives"), with respect to (i) the sale by the Company, and
the purchase by the Underwriters, acting severally and not jointly, of
___________ shares of Common Stock, no par value, of the Company (the
"Common Stock") and the preferred share purchase rights attached
thereto (the "Rights")(collectively, the "Initial Securities"), in the
respective amounts set forth on Schedule A hereto, and (ii) the grant
by the Company to the Underwriters, acting severally and not jointly,
of the option described in Section 2(b) hereof to purchase all or any
part of _______ additional shares of Common Stock and the Rights
attached thereto to cover over-allotments, if any (the "Option
Securities"). The Initial Securities and the Option Securities, if
any, are hereinafter called, collectively, the "Securities".
The Company understands that the Underwriters propose to make a
public offering of the Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No.
333-33791) covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectus or prospectuses. Promptly after
execution and delivery of this Agreement, the Company will either (i)
prepare and file a prospectus in accordance with the provisions of
Rule 430A ("Rule 430A") of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations") and paragraph (b) of
Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the
Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, prepare and file a term sheet (a "Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the
case may be, that was omitted from such registration statement at the
time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to
paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule
434 Information." Each prospectus used before such registration
statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act,
at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations relating to
additional shares of Common Stock and the Rights relating thereto is
herein referred to as the "Rule 462(b) Registration Statement," and
after such filing the term "Registration Statement" shall include the
Rule 462(b) Registration Statement. The final prospectus, including
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities
is herein called the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated September
3, 1997 together with the Term Sheet and all references in this
Agreement to the date of the Prospectus shall mean the date of the
Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or
any Term Sheet or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or
"stated" in the Registration Statement, any preliminary prospectus or
the Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration
Statement, any preliminary prospectus or the Prospectus, as the case
may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, any preliminary prospectus
or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended
(the "1934 Act") which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus,
as the case may be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, and
agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets
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the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company,
are contemplated by the Commission, and any request on the part
of the Commission for additional information has been complied
with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement
and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither the Prospectus nor
any amendments or supplements thereto, at the time the Prospectus
or any such amendment or supplement was filed with the Commission
and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an
untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Company will
comply with the requirements of Rule 434. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Xxxxxxx Xxxxx
expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with
the 1933 Act Regulations and, if applicable, each preliminary
prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
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deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the
other information in the Prospectus, at the date of the
Prospectus and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(iii) Independent Accountants. The accountants who certified
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the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
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or incorporated by reference in the Registration Statement and
the Prospectus, together with the related schedules and notes
thereto, present fairly the financial position of the Company and
its consolidated subsidiaries as at the dates indicated and the
statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved
except as disclosed therein. The supporting schedules, if any,
included or incorporated by reference in the Registration
Statement present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and
the summary financial information included in the Prospectus
present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
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respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in
the business, properties, financial condition or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business
or those contemplated by the Registration Statement and
Prospectus, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) except for
regular quarterly dividends on the Common Stock in amounts per
share that are consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
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organized and is validly existing as a corporation in good
standing under the laws of the State of New Jersey and has full
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under
this Agreement; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in the
States of Florida, Maryland, New York and North Carolina and the
Commonwealth of Pennsylvania and the conduct of its business and
the ownership or leasing of property by the Company does not make
the qualification or
licensing of the Company as a foreign corporation necessary in
any other state or jurisdiction where failure so to qualify would
result in a Material Adverse Effect.
(vii) No Significant Subsidiaries. There are no subsidiaries
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of the Company which would be considered a "significant
subsidiary" under Rule 405 of Regulation C under the 1933 Act.
(viii) Capitalization. The authorized, issued and outstanding
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Common Stock of the Company is as set forth in the Prospectus in
the row entitled "Common Stock Outstanding on July 31, 1997"
under the caption "Prospectus Summary - The Offering" in the
Prospectus (except for subsequent issuances, if any, pursuant to
this Agreement, pursuant to reservations, agreements or director
or employee benefit plans referred to or incorporated by
reference in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus).
The shares of issued and outstanding Common Stock have been duly
authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of Common Stock
was issued in violation of the preemptive or other similar rights
of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
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authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. The Securities
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to be purchased by the Underwriters from the Company have been
duly authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration set forth herein, the Common Stock comprising a
portion of the Securities will be validly issued and fully paid
and non-assessable and the Rights will have been duly and validly
issued; the Securities conform to all statements relating thereto
contained or incorporated by reference in the Prospectus; and the
issuance of the Securities is not subject to preemptive or other
similar rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. The Company is not in
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violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company is a party or by
which it may be bound, or to which any of the property or assets
of the Company is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration
Statement (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds")
and compliance by the Company with its obligations hereunder have
been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company pursuant to the Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges
or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any
applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality, or
court, domestic or foreign, having jurisdiction over the Company
or any of its assets, properties or operations where such
violation could have a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit,
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proceeding or inquiry before or brought by any court or
governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or
affecting the Company, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or
which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to
materially and adversely affect the consummation of this
Agreement or the performance by the Company of its obligations
hereunder.
(xiii) Absence of Further Requirements. The Florida Public
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Service Commission, the Board of Public Utilities of the State of
New Jersey and the Public Utility Commission of the Commonwealth
of Pennsylvania have each issued appropriate orders or other
authorizations with respect to the execution, delivery and
performance by the Company of this Agreement and the issuance of
the Common Stock comprising a portion of the Securities, and no
other filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by
this Agreement, except such as have been already obtained or as
may be required under the 1933 Act or the 1933 Act Regulations or
blue sky laws of the various jurisdictions in which the
Securities are being offered by the Underwriters and except such
as may be required in connection with the exercise of the Rights.
(xiv) Possession of Licenses and Permits. The Company
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possesses such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated
by it; the Company is in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material
Adverse Effect; and the Company has not received any notice of
proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xv) Holding Company Act. Neither the Company nor any of its
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subsidiaries is a "holding company" or a subsidiary or affiliate
of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935.
(xvi) Environmental Laws. Except as described in the
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Registration Statement and except such violations as would not,
singly or in the aggregate, result in a Material Adverse Effect,
(A) the Company is not in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law and any judicial or administrative
interpretation thereof including any judicial or administrative
order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation,
laws and regulations, relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company has all permits,
authorizations and approvals required under any applicable
Environmental Laws and is in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or
proceedings relating to any Environmental Law against the Company
and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company relating to any Hazardous Materials or the violation of
any Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any subsidiary delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price per share
set forth in Schedule B, the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional
number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company hereby grants an
option to the Underwriters, severally and not jointly, to purchase up
to an additional ______ shares of Common Stock and related Rights at
the price per share set forth in Schedule B, less an amount per share
equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial
Securities upon notice by the Representatives to the Company setting
forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such
time and date of delivery (a "Date of Delivery") shall be determined
by the Representatives, but shall not be later than seven full
business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each of
the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being
purchased which the number of Initial Securities set forth in Schedule
A opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales
or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the office
of Xxxx & Priest LLP, Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, or at such
other place as shall be agreed upon by the Representatives and the
Company, at 10:00 A.M. (Eastern Time) on the third (fourth, if the
pricing of the Initial Securities occurs after 4:30 P.M. (Eastern
Time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall
be agreed upon by the Representatives and the Company (such time and
date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned office, or at such other place as
shall be agreed upon by the Representatives and the Company, on each
Date of Delivery as specified in the notice from the Representatives
to the Company.
Payment shall be made to the Company by wire transfer in
immediately available funds to an account designated by the Company
against delivery to the Representatives for the respective accounts of
the Underwriters of certificates for the Securities to be purchased by
them. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for,
and make payment of the purchase price for, the Initial Securities and
the Option Securities, if any, which it has agreed to purchase.
Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if
any, to be purchased by any Underwriter whose payment has not been
received by the Closing Time or the relevant Date of Delivery, as the
case may be, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such
denominations and registered in such names as the Representatives may
request in writing at least one full business day before the Closing
Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial Securities and the Option Securities, if
any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M.
(Eastern Time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424(b) and will take such steps
as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use
any such document to which counsel for the Underwriters shall
reasonably object in writing.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to each of the Representatives without
charge, one signed copy of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) (with
copies to counsel for the Underwriters) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters. If applicable, the copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(c) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request. If applicable, the Prospectus
and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and
in the Prospectus. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it
is necessary to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not
include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission
or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions as the Representatives may reasonably
designate; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject or to meet the requirements deemed by the Company
to be unduly burdensome. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction, unless
such statements or reports are deemed by the Company to be unduly
burdensome, to continue such qualification in effect until the earlier
of (i) six months from the effective date of the Registration
Statement or any Rule 462(b) Registration Statement or (ii) the
completion of the distribution of all of the Securities.
(g) Rule 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available
to its security holders as soon as practicable an earning statement
for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectus, the Company will not, without the
prior written consent of Xxxxxxx Xxxxx, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of any
share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or
(ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any
such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder, (B) any shares of Common Stock issued
by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof, (C) any
shares of Common Stock issued or options to purchase Common Stock or
stock appreciation rights granted pursuant to existing employee
benefit plans of the Company, (D) any shares of Common Stock or stock
appreciation rights issued pursuant to any non-employee director stock
plan or dividend reinvestment plan or (E) any shares of Common Stock
issued by the Company upon the exercise of the Rights.
SECTION 4. Payment of Expenses.
-------------------
(a) Except as otherwise provided in the Agreement, the Company
will pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements
and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, including any stock or other transfer
taxes or duties payable upon the sale of the Securities to the
Underwriters, (iii) the fees and disbursements of the Company's
counsel, accountants and other advisors, (iv) the reasonable fees and
disbursements of counsel for the Underwriters in connection with the
preparation of the Blue Sky Survey and any supplement thereto and the
preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto (not to exceed in the
aggregate $5,000), (v) the printing and delivery to the Underwriters
of copies of each preliminary prospectus, any Term Sheets and the
Prospectus and any amendments or supplements thereto, (vi) the fees
and expenses of any transfer agent or registrar for the Securities and
(x) the fees and expenses incurred in connection with the listing of
the Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by
the Representatives in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
---------------------------------------
obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company
contained in Section 1 hereof or in certificates of any officer of the
Company or any subsidiary delivered pursuant to the provisions hereof,
to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has
become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing
such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A) or, if the Company has
elected to rely upon Rule 434, a Term Sheet shall have been filed with
the Commission in accordance with Rule 424(b).
(b) Opinions of Counsel for Company. At Closing Time the
Representatives shall have received:
(i) the favorable opinion, dated as of Closing Time, of Xxxx
& Priest LLP, counsel for the Company, together with signed or
reproduced copies of such letter for each of the other
Underwriters substantially in the form set forth in Exhibit A-1
hereto.
(ii) the favorable opinion, dated as of Closing Time, of
Xxxxx X. Xxx Xxxx, Esq., General Counsel and Secretary for the
Company, together with signed or reproduced copies of such letter
for each of the other Underwriters substantially in the form set
forth in Exhibit A-2 hereto.
(iii) the favorable opinion, dated as of Closing Time, of
each of XxXxxxxxx, Reeves, McGlothlin, Davidson & Bakas, Piper &
Xxxxxxx, Xxxxxx & Xxxxxx, Xxxx & Xxxxxxxx, LLP and Xxxxxxxxx,
Hawke, McKeon, local counsel to the Company, together with signed
or reproduced copies of such letter for each of the other
Underwriters and substantially in the form set forth in Exhibits
X-0, X-0, X-0, X-0 and A-7 hereto, respectively.
(c) Opinion of Counsel for Underwriters. At Closing Time the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters substantially in the form set forth
in Exhibit B hereto.
(d) Officers' Certificate. At Closing Time there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any Material Adverse Effect,
and the Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no Material
Adverse Effect, (ii) the representations and warranties in Section l
(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement
has been issued and, to the best knowledge of the Company, no
proceedings for that purpose have been instituted or are pending or
are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from Xxxxxx
Xxxxxxxx LLP a letter dated such date, together with signed or
reproduced copies of such letter for each of the other Underwriters
substantially in the form set forth in Exhibit C hereto.
(f) Bring-down Comfort Letter. At Closing Time the
Representatives shall have received from Xxxxxx Xxxxxxxx LLP a letter,
dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the specified date referred to shall be a
date not more than three business days prior to Closing Time.
(g) Approval of Listing. At Closing Time the Securities shall
have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
(h) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives
shall have received:
(i) Officers'Certificate. A certificate, dated such Date of
--------------------
Delivery, of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof is true and correct as of such
Date of Delivery.
(ii) Opinions of Counsel for Company. The favorable opinion
-------------------------------
of Xxxx & Priest, counsel for the Company, Xxxxx X. Xxx Xxxx,
Esq., General Counsel and Secretary for the Company, and
XxXxxxxxx, Reeves, McGlothlin, Davidson & Bakas, Piper & Xxxxxxx,
Xxxxxx & Xxxxxx, Xxxx & Xxxxxxxx, LLP and Xxxxxxxxx, Hawke,
McKeon, local counsel to the Company, dated such Date of
Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable
-----------------------------------
opinion of Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(c) hereof
(iv) Bring-down Comfort Letter. A letter from Xxxxxx
-------------------------
Xxxxxxxx LLP, in form and substance satisfactory to the
Representatives and dated such Date of Delivery, substantially in
the same form and substance as the letter furnished to the
Representatives pursuant to
Section 5(e) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(i) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(j) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase
the relevant Option Securities, may be terminated by the
Representatives by notice to the Company at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6 and 7
shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company;
and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by Xxxxxxx Xxxxx),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to
-------- -------
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement (or any
amendment thereto), including the 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); provided further,
however, that this indemnity shall not inure to the benefit of any
Underwriter, or any person who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
on account of any loss, liability, claim, damage or expense arising
from the sale of the Securities to any person if a copy of the
Prospectus, as the same may then be supplemented or amended, was not
sent or given by or on behalf of such Underwriter to such person with
or prior to the written confirmation of the sale involved and the
alleged omission or alleged untrue statement was corrected in the
Prospectus as so supplemented or amended at the time of such
confirmation.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus
(or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own
expense in the defense of any such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party,
jointly with any other indemnifying parties receiving such notice,
may, subject to the proviso in the immediately succeeding sentence,
assume the defense of such action with counsel chosen by it reasonably
satisfactory to such indemnified parties in such action. If an
indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and expenses of
counsel for the indemnified
parties incurred thereafter in connection with such action; provided,
however, that if such indemnified parties reasonably object to such
assumption on the ground that there may be legal defenses available to
them that are different from or in addition to those available to such
indemnifying party, then the indemnifying party may not assume the
defense of such action and the fees and expenses of separate counsel
for the indemnified parties shall be paid by the indemnifying parties.
In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel)
for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6
or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel,
such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such Settlement is entered into
more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall
not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement. Notwithstanding the
immediately preceding sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying
party shall not be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance
with such request to the extent it considers such request to be
reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior
to the date of such settlement.
SECTION 7. Contribution. If the indemnification and hold harmless
-----------
provided for in Section 6 hereof is for any reason or to any extent
unavailable to an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein (subject
to the limitations contained therein), then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on the
one hand and of the Underwriters on the other hand in connection with
the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before
deducting expenses) received by the Company and the total underwriting
discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to
the number of Initial Securities set forth opposite their respective
names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in
--------
this Agreement or in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company,
and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information
is given in the Prospectus, any Material Adverse Effect, or (ii) if
there has occurred any material adverse change in the financial
markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or
international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or limited by the
Commission or the New York Stock Exchange, or if trading generally on
the New York Stock Exchange has been suspended or limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by said exchange or by order of the
Commission or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof, and provided
further that Sections 1, 6 and 7 shall survive such termination and
remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or
------------------------------------------
more of the Underwriters shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting Underwriters,
or any other underwriters with the approval of the Company, to
purchase all, but not less than all, of the Defaulted Securities in
such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to
purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery
which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the
Company to sell the relevant Option Securities, as the case may be,
either the Representatives or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under
this Section 10.
SECTION 11. Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
the Representatives at North Tower, World Financial Center, New York,
New York 10281-1201, attention of General Counsel; notices to the
Company shall be directed to it at 000 Xxxxx 000-000, Xxx 000,
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, attention of Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of
-------
and be binding upon each of the Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm
or corporation, other than the Underwriters and the Company and their
respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the
Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
----------------------
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
------------------
herein are for convenience only and shall not affect the construction
hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters and the Company in accordance
with its terms.
Very truly yours,
NUI CORPORATION
By_________________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
For themselves and as Representatives of the other Underwriters
named in Schedule A hereto.
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By_____________________________________________
Authorized Signatory
SCHEDULE A
NUMBER OF
INITIAL
NAME OF UNDERWRITER SECURITIES
------------------- ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated.................
TOTAL............................ ==========
Schedule A-1
SCHEDULE B
NUI CORPORATION
______ Shares of Common Stock
(No Par Value)
1. The initial public offering price per share for the
Securities, determined as provided in Section 2, shall be $ .
2. The purchase price per share for the Securities to be paid by
the several Underwriters shall be $ , being an amount equal to the
initial public offering price set forth above less $ per share;
provided that the purchase price per share for any Option Securities
purchased upon the exercise of the over-allotment option described in
Section 2(b) shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities.
Schedule B-1
EXHIBIT A-1
[Letterhead of Xxxx & Priest]
[Closing Date]
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special counsel to NUI Corporation, a New Jersey
corporation (the "Company"), in connection with the preparation,
execution and delivery of the Purchase Agreement, dated September __,
1997, between the Company and you, as Representatives of the several
Underwriters (the "Agreement"), relating to the offering of
___________ shares of the Company's Common Stock, no par value (such
shares being hereinafter referred to as the "Common Stock"), and the
preferred share purchase rights appurtenant thereto (the "Rights," the
Common Stock and the Rights being collectively referred to herein as
the "Securities") and the preparation and filing of a Registration
Statement on Form S-3 (File No. 333-33791) (the "Registration
Statement") relating to such offering. All capitalized terms used
herein without definition shall have the respective meanings set forth
in the Agreement.
This opinion is rendered to you at the request of the Company in
accordance with Section 5(b)(i) of the Agreement.
We have examined the Registration Statement and the Prospectus,
which pursuant to Form S-3 under the Securities Act of 1933, as
amended (the "Act"), incorporates or is deemed to incorporate by
reference the Annual Report on Form 10-K of the Company for the fiscal
year ended September 30, 1996 (the "Annual Report"), the Quarterly
Reports on Form 10-Q for the quarterly periods ended December 31,
1996, March 31, 1997 and June 30, 1997, the Current Report on Form 8-K
of the Company dated February 26, 1997 and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act Documents"),
each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). In addition, we have examined, and have relied
as to matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Common Stock, of
which we have examined a specimen), and upon originals or copies,
certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and
such certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such other
and further investigations, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of such latter documents.
Based upon the foregoing and subject to the qualifications and
limitations stated therein, we are of the opinion that:
(i) The Agreement has been duly authorized, executed and
delivered by the Company.
(ii) The Common Stock has been duly and validly authorized
and issued and is fully paid and non-assessable and free of statutory
preemptive rights.
(iii) The Rights have been duly and validly issued.
(iv) The Securities conform, as to legal matters, with the
statements concerning them made under the heading "Description of
Capital Stock" in the Prospectus.
[(v) All approvals, authorizations, consents or orders of or
filings with any commission, board, body, authority or agency required
in connection with the issuance and sale of the Securities as
contemplated by the Agreement have been obtained in all jurisdictions,
except that we express no opinion as to any necessary qualification
under the securities or blue sky laws of the various jurisdictions in
which the Securities are being offered by the Underwriters and except
such as may be required in connection with the issuance of securities
upon the exercise of the Rights.] [May need to adjust after reviewing
local counsel opinions.]
(vi) The Registration Statement has become effective under
the Act and, to the best of our actual knowledge, no stop order has
been issued or proceedings with respect thereto are pending or
threatened under the Act.
(vii) Neither the Company nor any of its subsidiaries is a
"holding company" or a subsidiary of a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration
Statement, the Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in
paragraph 4 above. In the course of the preparation by the Company of
the Registration Statement and the Prospectus (excluding the Exchange
Act Documents), we participated in conferences with certain of its
officers and employees, with other counsel for the Company, with your
representatives and with representatives of Xxxxxx Xxxxxxxx LLP, the
independent accountants who examined certain of the financial
statements included in the Exchange Act Documents. We did not prepare
the Exchange Act Documents. Based on our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents,
our investigations made in connection with the preparation of the
Registration Statement and the Prospectus (excluding the Exchange Act
Documents) and our participation in the conferences referred to above,
(i) we are of the opinion that the Registration Statement, as of the
time such Registration Statement became effective, and the Prospectus,
as of the date it was filed pursuant to Rule 424(b) under the Act,
complied as to form in all material respects with the requirements of
the Act and the applicable rules and regulations of the Commission
thereunder and that the Exchange Act Documents complied as to form
when filed in all material respects with the requirements of the
Exchange Act and the applicable rules and regulations thereunder
except that in each case we express no opinion with respect to the
financial statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents, and (ii) we have no reason
to believe that the Registration Statement, as of the time such
Registration Statement became effective (including (i) the Exchange
Documents filed under the Exchange Act at such date and (ii) the
information deemed to be a part thereof pursuant to Rule 430A(b) under
the Act), contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that as of the date it
was filed under Rule 424(b)(1) under the Act and on the date hereof,
the Prospectus contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in each case
we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents.
We are members of the Bar of the State of New York and do not
hold ourselves out as experts on the laws of the States of Florida,
Maryland, New Jersey, North Carolina or the Commonwealth of
Pennsylvania. Accordingly, in rendering this opinion, we have relied
as to all matters governed by the laws of the States of Florida,
Maryland, New Jersey, North Carolina and the Commonwealth of
Pennsylvania, and as to all matters governed by the laws of the State
of New York relating to the regulation of public utilities, upon the
opinions of even date herewith addressed to you of Xxxxx X. Xxx Xxxx,
Esq., General Counsel and Secretary of the Company, and
----------------.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by
you for any other purpose, or relied upon or furnished to any other
person, firm or corporation (other than the several Underwriters),
without our prior written consent.
Very truly yours,
XXXX & PRIEST LLP
EXHIBIT A-2
[Letterhead of Xxxxx X. Xxx Xxxx, Esq., General Counsel
and Secretary of the Company]
[Closing Date]
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
I am General Counsel and Secretary of NUI Corporation, a New
Jersey corporation (the "Company"), and am delivering this opinion in
connection with the Purchase Agreement, dated September __, 1997,
between the Company and you, as Representatives of the several
Underwriters (the "Agreement"), relating to the offering of
___________ shares of the Company's Common Stock, no par value (such
shares being hereinafter referred to as the "Common Stock"), and the
preferred share purchase rights appurtenant thereto (the "Rights", the
Common Stock and the Rights being collectively referred to herein as
the "Securities") pursuant to a Registration Statement on Form S-3
(File No. 333-33791) (the "Registration Statement"). All capitalized
terms used herein without definition shall have the respective
meanings set forth in the Agreement.
This opinion is rendered to you at the request of the Company in
accordance with Section 5(b)(ii) of the Agreement.
I have examined the Registration Statement and the Prospectus,
which pursuant to Form S-3 under the Securities Act of 1933, as
amended (the "Act"), incorporates or is deemed to incorporate by
reference the Annual Report on Form 10-K of the Company for the fiscal
year ended September 30, 1996 (the "Annual Report"), the Quarterly
Reports on Form 10-Q for the quarterly periods ended December 31,
1996, March 31, 1997 and June 30, 1997, the Current Report on Form 8-K
of the Company dated February 26, 1997 and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act Documents"),
each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). In addition, I have examined, and have relied as
to matters of fact upon, the documents delivered to you at the closing
(except the certificates representing the Common Stock, of which I
have examined a specimen), and upon originals or copies, certified or
otherwise identified to my satisfaction, of such corporate records,
agreements, documents and other instruments and such certificates or
comparable documents of public officials and of officers and
representatives of the Company, and have made such other and further
investigations, as I have deemed relevant and necessary as a basis for
the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to me as originals, the conformity to original
documents of all documents submitted to me as certified or photostatic
copies, and the authenticity of such latter documents.
Based upon the foregoing and subject to the qualifications and
limitations stated therein, I am of the opinion that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New Jersey.
2. The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the Purchase Agreement.
3. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the States of Florida,
Maryland, New York and North Carolina and the Commonwealth of
Pennsylvania and in each such state or jurisdiction to conduct the
business in which it is engaged in such state or jurisdiction and to
own, lease and operate the properties used by it in such business; the
conduct of its business and, the ownership or leasing of property by
the Company does not make the qualification or licensing of the
Company as a foreign corporation necessary in any other state or
jurisdiction where failure so to qualify would result in a Material
Adverse Effect.
4. The Agreement has been duly authorized, executed and
delivered by the Company.
5. The Securities conform, as to legal matters, with the
statements concerning them made under the heading "Description of
Capital Stock" in the Prospectus.
6. The Common Stock has been duly and validly authorized and
issued and is fully paid and non-assessable and free of statutory and
contractual preemptive rights.
7. The Rights have been duly and validly authorized and
issued.
8. [All approvals, authorizations, consents or orders of or
filings with any commission, board, body, authority or agency required
in connection with the issuance and sale of the Securities as
contemplated by the Agreement have been obtained in all jurisdictions,
except that I express no opinion as to any necessary qualification
under the securities or blue sky laws of the various jurisdictions in
which the Securities are being offered by the Underwriters and except
such as may be required in connection with the issuance of securities
upon the exercise of the Rights.] [May need to adjust after reviewing
local counsel opinions.]
9. The execution, delivery and performance of the Agreement
by the Company and the consummation by the Company of the transactions
contemplated thereby do not and will not (i) conflict with or result
in a violation of any provisions of the Amended and Restated
Certificate of Incorporation, as amended, or by-laws of the Company,
(ii) conflict with or constitute a breach of, or default under or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to
me, to which the Company is a party or by which it may be bound, or to
which any of the property or assets of the Company is subject (except
for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), or (iii)
result in any violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to me, of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its properties, assets
or operations.
10. To the best of my knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to
which the Company is a party, or to which the property of the Company
is subject, before or brought by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the consummation of the
Agreement or the performance by the Company of its obligations
thereunder.
I have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration
Statement, the Prospectus or the Exchange Act Documents and take no
responsibility thereof or, except as and to the extent set forth in
paragraph 5 above. In the course of the preparation by the Company of
the Registration Statement and the Prospectus (excluding the Exchange
Act Documents), I participated in conferences with certain of its
officers and employees, with other counsel for the Company, with your
representatives and with representatives of Xxxxxx Xxxxxxxx LLP, the
independent accountants who examined certain of the financial
statements included in the Exchange Act Documents. Based on my
examination of the Registration Statement, the Prospectus and the
Exchange Act Documents, my investigations made in connection with the
preparation of the Registration Statement and the Prospectus and the
Exchange Act Documents and my participation in the conferences
referred to above, I have no reason to believe that the Registration
Statement, as of the time such Registration Statement became effective
(including (i) the Exchange Act Documents filed under the Exchange Act
at such date and (ii) the information deemed to be a part thereof
pursuant to Rule 430A(b) under the Act), contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that as of the date it was filed under Rule 424(b)(1)
under the Act and on the date hereof, the Prospectus contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that in each case I express no opinion or
belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in
Registration Statement, the Prospectus or the Exchange Documents.
I am a member of the Bar of the State of New Jersey and do not
hold myself out as an expert on the laws of the States of Florida,
Maryland, New York, North Carolina or the Commonwealth of
Pennsylvania. Accordingly, in rendering this opinion, I have relied,
as to all matters governed by the laws of the States of Florida,
Maryland, New York, North Carolina and the Commonwealth of
Pennsylvania, upon the opinions of even date herewith addressed to you
of _____________________.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by
you for any other purpose, or relied on or furnished to any other
person, firm or corporation (other than the several Underwriters),
other than Xxxx & Priest LLP, special counsel to the Company and
Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel to the Underwriters, to
the extent set forth in their opinions of even date herewith addressed
to you, without my prior written consent.
Very truly yours,
Xxxxx X. Xxx Xxxx, Esq.
General Counsel and
Secretary
EXHIBIT A-3
[Letterhead of XxXxxxxxx, Reeves, McGlothlin, Davidson & Xxxxx
or other Florida Counsel reasonably acceptable to the Representatives]
[Closing Date]
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special Florida counsel to NUI Corporation, a
New Jersey corporation (the "Company"), in connection with the
preparation, execution and delivery of the Purchase Agreement, dated
September __, 1997, between the Company and you, as Representatives of
the several Underwriters (the "Agreement"), relating to the offering
of___________ shares of the Company's Common Stock, no par value
(such shares being hereinafter referred to as the "Common Stock"), and
the preferred share purchase rights appurtenant thereto (the "Rights,"
the Common Stock and the Rights being collectively referred to herein
as the "Securities") and the preparation and filing of a Registration
Statement on Form S-3 (File No. 333-33791) (the "Registration
Statement") relating to such offering. All capitalized terms used
herein without definition shall have the respective meanings set forth
in the Agreement.
We have examined the Registration Statement and the Prospectus,
which pursuant to Form S-3 under the Securities Act of 1933, as
amended (the "Act"), incorporates or is deemed to incorporate by
reference the Annual Report on Form 10-K of the Company for the fiscal
year ended September 30, 1996 (the "Annual Report"), the Quarterly
Reports on Form 10-Q for the quarterly periods ended December 31,
1996, March 31, 1997 and June 30,1997, the Current Report on Form 8-K
of the Company dated February 26, 1997 and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act Documents"),
each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). In addition, we have examined, and have relied
as to matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Common Stock, of
which we have examined a specimen), and upon originals or copies,
certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and
such certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such other
and further investigations, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of such latter documents.
Based upon the foregoing and subject to the qualifications and
limitations stated therein, we are of the opinion that:
1. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of Florida and
has full power and authority under the laws of the State of Florida to
transact the business in which it is engaged in the State of Florida
and to own, lease and operate the properties used by it in such
business.
2. The Florida Public Service Commission has issued
appropriate orders with respect to authorizing the execution, delivery
and performance by the Company of the Agreement and the Common Stock
and no other filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of any
governmental authority or agency is necessary or required under the
laws of the State of Florida for the performance by the Company of its
obligations under the Agreement, in connection with the offering,
issuance or sale of the Securities under the Agreement or the
consummation of the transactions contemplated thereby; provided,
however, we express no opinion with respect to (i) the necessity for
any qualification or other action under the Blue Sky or securities
laws of any jurisdiction of the United States of America or (ii) the
necessity for any other filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of any
governmental authority or agency in connection with the issuance of
securities upon the exercise of the Rights.
Very truly yours,
XXXXXXXXX, REEVES, MCGLOTHLIN,
DAVIDSON & XXXXX
EXHIBIT A-4
[Letterhead of Piper & Marbury or other Maryland Counsel
reasonably acceptable to the Representatives]
[Closing Date]
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special Maryland counsel to NUI Corporation, a
New Jersey corporation (the "Company"), in connection with the
preparation, execution and delivery of the Purchase Agreement, dated
September __, 1997, between the Company and you, as Representatives of
the several Underwriters (the "Agreement"), relating to the offering
of ___________ shares of the Company's Common Stock, no par value
(such shares being hereinafter referred to as the "Common Stock"), and
the preferred share purchase rights appurtenant thereto (the "Rights,"
the Common Stock and the Rights being collectively referred to herein
as the "Securities") and the preparation and filing of a Registration
Statement on Form S-3 (File No. 333-33791) (the "Registration
Statement") relating to such offering. All capitalized terms used
herein without definition shall have the respective meanings set forth
in the Agreement.
We have examined the Registration Statement and the
Prospectus, which pursuant to Form S-3 under the Securities Act of
1933, as amended (the "Act"), incorporates or is deemed to incorporate
by reference the Annual Report on Form 10-K of the Company for the
fiscal year ended September 30, 1996 (the "Annual Report"), the
Quarterly Reports on Form 10-Q for the quarterly periods ended
December 31, 1996, March 31, 1997 and June 30, 1997, the Current
Report on Form 8-K of the Company dated February 26, 1997 and the
Registration Statement on Form 8-A dated December 1, 1995 (the
"Exchange Act Documents"), each as filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). In addition, we have
examined, and have relied as to matters of fact upon, the documents
delivered to you at the closing (except the certificates representing
the Common Stock, of which we have examined a specimen), and upon
originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, agreements, documents and
other instruments and such certificates or comparable documents of
public officials and of officers and representatives of the Company,
and have made such other and further investigations, as we have deemed
relevant and necessary as a basis for the opinions hereinafter set
forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of such latter documents.
Based upon the foregoing and subject to the qualifications and
limitations stated therein, we are of the opinion that:
1. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of Maryland and
has full power and authority under the laws of the State of Maryland
to transact the business in which it is engaged in the State of
Maryland and to own, lease and operate the properties used by it in
such business.
2. No approval or consent is required to be obtained, nor is
any filing with any governmental authority required to be made, by the
Company under the laws of the State of Maryland in connection with the
filing of the Registration Statement, the execution and delivery of
the Agreement or the issuance and sale of the Securities, or the
consummation of the transactions contemplated thereby; provided,
however, that we express no opinion with respect to (i) the necessity
for any qualification or other action under the Blue Sky or securities
laws of any jurisdiction of the United States of America or (ii) the
necessity for any other filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of any
governmental authority or agency in connection with the issuance of
securities upon the exercise of the Rights.
Very truly yours,
PIPER & MARBURY
EXHIBIT A-5
[Letterhead of Cullen & Xxxxxx or other New York Counsel
reasonably acceptable to the Representatives]
[Closing Date]
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special New York counsel to NUI Corporation, a
New Jersey corporation (the "Company"), in connection with the
preparation, execution and delivery of the Purchase Agreement, dated
September __, 1997, between the Company and you, as Representatives of
the several Underwriters (the "Agreement"), relating to the offering
of ___________ shares of the Company's Common Stock, no par value
(such shares being hereinafter referred to as the "Common Stock"), and
the preferred share purchase rights appurtenant thereto (the "Rights,"
the Common Stock and the Rights being collectively referred to herein
as the "Securities") and the preparation and filing of a Registration
Statement on Form S-3 (File No. 333-33791) (the "Registration
Statement") relating to such offering. All capitalized terms used
herein without definition shall have the respective meanings set forth
in the Agreement.
We have examined the Registration Statement and the Prospectus,
which pursuant to Form S-3 under the Securities Act of 1933, as
amended (the "Act"), incorporates or is deemed to incorporate by
reference the Annual Report on Form 10-K of the Company for the fiscal
year ended September 30, 1996 (the "Annual Report"), the Quarterly
Reports on Form 10-Q for the quarterly periods ended December 31,
1996, March 31, 1997 and June 30, 1997, the Current Report on Form 8-K
of the Company dated February 26, 1997 and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act Documents"),
each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). In addition, we have examined, and have relied
as to matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Common Stock, of
which we have examined a specimen), and upon originals or copies,
certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and
such certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such other
and further investigations, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of such latter documents.
Based upon the foregoing and subject to the qualifications and
limitations stated therein, we are of the opinion that:
1. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of New York and
has full power and authority under the laws of the State of New York
to transact the business in which it is engaged in the State of New
York and to own, lease and operate the properties used by it in such
business.
2. No approval or consent is required to be obtained, nor is
any filing with any governmental authority required to be made, by the
Company under the laws of the State of New York in connection with the
execution, delivery and performance of the Agreement or the
consummation of the transactions contemplated thereby or the issuance
and sale of the Securities; provided, however, that we express no
opinion with respect to (i) the necessity for any qualification or
other action under the Blue Sky or securities laws of any jurisdiction
of the United States of America or (ii) the necessity for any other
filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of any governmental authority or
agency in connection with the issuance of securities upon the exercise
of the Rights.
Very truly yours,
CULLEN & XXXXXX
EXHIBIT A-6
[Letterhead of Xxxx & Xxxxxxxx, LLP or other
North Carolina Counsel reasonably acceptable to the Representatives]
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
[Closing Date]
Ladies and Gentlemen:
We have acted as special North Carolina counsel to NUI
Corporation, a New Jersey corporation (the "Company"), in connection
with the preparation, execution and delivery of the Purchase
Agreement, dated September__, 1997, between the Company and you, as
Representatives of the several Underwriters (the "Agreement"),
relating to the offering of _______ shares of the Company's Common
Stock, no par value (such shares being hereinafter referred to as the
"Common Stock"), and the preferred share purchase rights appurtenant
thereto (the "Rights," the Common Stock and the Rights being
collectively referred to herein as the "Securities") and the
preparation and filing of a Registration Statement on Form S-3 (File
No. 333-33791) (the "Registration Statement") relating to such
offering. All capitalized terms used herein without definition shall
have the respective meanings set forth in the Agreement.
We have examined the Registration Statement and the Prospectus,
which pursuant to Form S-3 under the Securities Act of 1933, as
amended (the "Act"), incorporates or is deemed to incorporate by
reference the Annual Report on Form 10-K of the Company for the fiscal
year ended September 30, 1996 (the "Annual Report"), the Quarterly
Reports on Form 10-Q for the quarterly periods ended December 31,
1996, March 31, 1997 and June 30, 1997, the Current Report on Form 8-K
of the Company dated February 26, 1997 and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act Documents"),
each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). In addition, we have examined, and have relied
as to matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Common Stock, of
which we have examined a specimen), and upon originals or copies,
certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and
such certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such other
and further investigations, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of such latter documents.
Based upon the foregoing and subject to the qualifications and
limitations stated therein, we are of the opinion that:
1. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of North
Carolina and has full power and authority under the laws of the State
of North Carolina to transact the business in which it is engaged in
the State of North Carolina and to own, lease and operate the
properties used by it in such business.
2. No approval or consent is required to be obtained, nor is
any filing with any governmental authority required to be made, by the
Company under the laws of the State of North Carolina in connection
with the execution, delivery and performance of the Agreement or the
consummation of the transactions contemplated thereby or the issuance
and sale of the Securities; provided, however, that we express no
opinion with respect to (i) the necessity for any qualification or
other action under the Blue Sky or securities laws of any jurisdiction
of the United States of America or (ii) the necessity for any other
filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of any governmental authority or
agency in connection with the issuance of securities upon the exercise
of the Rights.
Very truly yours,
XXXX & XXXXXXXX, LLP
EXHIBIT A-7
[Letterhead of Malatesta, Hawke, XxXxxx or other Pennsylvania
Counsel reasonably acceptable to the Representatives]
[Closing Date]
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special Pennsylvania counsel to NUI Corporation,
a New Jersey corporation (the "Company"), in connection with the
preparation, execution and delivery of the Purchase Agreement, dated
September __, 1997, between the Company and you, as Representatives of
the several Underwriters (the "Agreement"), relating to the offering
of ___________ shares of the Company's Common Stock, no par value
(such shares being hereinafter referred to as the "Common Stock"), and
the preferred share purchase rights appurtenant thereto (the "Rights,"
the Common Stock and the Rights being collectively referred to herein
as the "Securities") and the preparation and filing of a Registration
Statement on Form S-3 (File No. 333-33791) (the "Registration
Statement") relating to such offering. All capitalized terms used
herein without definition shall have the respective meanings set forth
in the Agreement.
We have examined the Registration Statement and the Prospectus,
which pursuant to Form S-3 under the Securities Act of 1933, as
amended (the "Act"), incorporates or is deemed to incorporate by
reference the Annual Report on Form 10-K of the Company for the fiscal
year ended September 30, 1996 (the "Annual Report"), the Quarterly
Reports on Form 10-Q for the quarterly periods ended December 31,
1996, March 31, 1997 and June 30, 1997, the Current Report on Form 8-K
of the Company dated February 26, 1997 and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act Documents"),
each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). In addition, we have examined, and have relied
as to matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Common Stock, of
which we have examined a specimen), and upon originals or copies,
certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and
such certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such other
and further investigations, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of such latter documents.
Based upon the foregoing and subject to the qualifications and
limitations stated therein, we are of the opinion that:
1. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the Commonwealth of
Pennsylvania and has full power and authority under the laws of the
Commonwealth of Pennsylvania to transact the business in which it is
engaged in the Commonwealth of Pennsylvania and to own, lease and
operate the properties used by it in such business.
2. The Public Utility Commission of the Commonwealth of
Pennsylvania has issued the appropriate Secretarial Letter with
respect to the execution, delivery and performance by the Company of
the Agreement and the issuance and sale of the Common Stock, and no
other approval or consent is required to be obtained, nor is any
filing with any governmental authority required to be made, by the
Company under the laws of the Commonwealth of Pennsylvania in
connection with the execution, delivery and performance of the
Agreement or the consummation of the transactions contemplated thereby
or the issuance and sale of the Securities; provided, however, that we
express no opinion with respect to (i) the necessity for any
qualification or other action under the Blue Sky or securities laws of
any jurisdiction of the United States of America or (ii) the necessity
for any other filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of any
governmental authority or agency in connection with the issuance of
securities upon the exercise of the Rights.
Very truly yours,
MALATESTA, HAWKE, XXXXXX
EXHIBIT B
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
[Closing Date]
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as counsel to you, as Representatives of the
several Underwriters under the Purchase Agreement, dated September __,
1997, between NUI Corporation, a New Jersey corporation (the
"Company") and you (the "Agreement"), relating to the offering of _______
shares of the Company's Common Stock, no par value (such shares being
hereinafter referred to as the "Common Stock"), and the preferred
share purchase rights appurtenant thereto (the "Rights," the Common
Stock and the Rights being collectively referred to herein as the
"Securities") and the preparation and filing of a Registration
Statement on Form S-3 (File No. 333-33791) (the "Registration
Statement") relating to such offering. All capitalized terms used
herein without definition shall have the respective meanings set forth
in the Agreement.
We have examined the Registration Statement and the Prospectus,
which pursuant to Form S-3 under the Securities Act of 1933, as
amended (the "Act"), incorporates or is deemed to incorporate by
reference the Annual Report on Form 10-K of the Company for the fiscal
year ended September 30, 1996 (the "Annual Report"), the Quarterly
Reports on Form 10-Q for the quarterly periods ended December 31,
1996, March 31, 1997 and June 30, 1997, the Current Report on Form 8-K
of the Company dated February 26, 1997 and the Registration Statement
on Form 8-A dated December 1, 1995 (the "Exchange Act Documents"),
each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). In addition, we have examined, and have relied
as to matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Common Stock, of
which we have examined a specimen), and upon originals or copies,
certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments and
such certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such other
and further investigations, as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of such latter documents.
Based upon the foregoing and subject to the qualifications and
limitations stated therein, we are of the opinion that:
1. The Agreement has been duly authorized, executed and
delivered by the Company.
2. The Common Stock has been duly and validly authorized and
issued and is fully paid and non-assessable.
3. The Securities conform, as to legal matters, with the
statements concerning them made under the heading "Description of
Capital Stock" in the Prospectus.
4. The Registration Statement, as of the time such
Registration Statement became effective, and the Prospectus, as of the
date it was filed pursuant to Rule 424(b) under the Act, complied as
to form in all material respects with the requirements of the Act and
the applicable rules and regulations of the Commission thereunder
except that we express no opinion with respect to the financial
statements or other financial data contained or incorporated by
reference in the Registration Statement or the Prospectus.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration
Statement, the Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in
paragraph 3 above. In the course of the preparation by the Company of
the Registration Statement and the Prospectus (excluding the Exchange
Act Documents), we participated in conferences with certain of its
officers and employees, with other counsel for the Company, with your
representatives and with representatives of Xxxxxx Xxxxxxxx LLP, the
independent accountants who examined certain of the financial
statements included in the Exchange Act Documents. We did not prepare
the Exchange Act Documents. Based on our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents,
our investigations made in connection with the preparation of the
Registration Statement and the Prospectus (excluding the Exchange Act
Documents) and our participation in the conferences referred to above,
we have no reason to believe that the Registration Statement, as of
the time such Registration Statement became effective (including (i)
the Exchange Documents filed under the Exchange Act at such date and
(ii) the information deemed to be a part thereof pursuant to Rule
430A(b) under the Act), contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that as
of the date it was filed under Rule 424(b)(1) under the Act and on the
date hereof, the Prospectus contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
in each case we express no opinion or belief with respect to the
financial statements or other financial data contained or incorporated
by reference in the Registration Statement, the Prospectus or the
Exchange Act Documents.
We are members of the Bar of the State of New York and do not
hold ourselves out as experts on the laws of the States of Florida,
Maryland, New Jersey, North Carolina or the Commonwealth of
Pennsylvania. Accordingly, in rendering this opinion, we have relied
as to all matters governed by the laws of the States of Florida,
Maryland, New Jersey, North Carolina and the Commonwealth of
Pennsylvania, upon the opinions of even date herewith addressed to you
of Xxxxx X. Xxx Xxxx, Esq., General Counsel and Secretary of the
Company, and ______________________. We have reviewed such opinions
and believe that such opinions are satisfactory and that you and we
are justified in relying thereon.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by
you for any other purpose, or relied upon or furnished to any other
person, firm or corporation (other than the several Underwriters),
without our prior written consent.
Very truly yours,
WINTHROP, XXXXXXX XXXXXX & XXXXXXX
EXHIBIT C
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(g)]
September __, 1997
XXXXXXX XXXXX & CO.
Xxxxxx Xxxxxxx & Co. Incorporated
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Board of Directors
NUI Corporation
X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Dear Sirs:
We have audited the consolidated balance sheets of NUI Corporation
(the company) and subsidiaries as of September 30, 1996 and 1995, and
the consolidated statements of income, cash flows and shareholders'
equity for each of the three years in the period ended September 30,
1996, and the related financial statement schedule, all included in
the company's annual report on Form 10-K for the year ended September
30, 1996, and incorporated by reference in the registration statement
(no. 333- 33791) on Form S-3 filed by the company under the Securities
Act of 1933 (the Act); our reports with respect thereto are also
incorporated by reference in that registration statement.
In connection with the registration statement:
1. We are independent certified public accountants with respect to
the company within the meaning of the Act and the applicable
published rules and regulations thereunder.
2. In our opinion, the consolidated financial statements and
financial statement schedule audited by us and incorporated by
reference in the registration statement comply as to form in all
material respects with the applicable accounting requirements of
the Act and the Securities Exchange Act of 1934 and the related
published rules and regulations.
3. We have not audited any financial statements of the company as of
any date or for any period subsequent to September 30, 1996;
although we have conducted an audit for the year ended September
30, 1996, the purpose (and therefore the scope) of the audit was
to enable us to express our opinion on the consolidated financial
statements as of September 30, 1996, and for the year then ended,
but not the consolidated financial statements for any interim
period within that year. Therefore, we are unable to and do not
express any opinion on the unaudited consolidated balance sheet
as of December 31, 1996, March 31, 1997 and June 30, 1997, the
unaudited consolidated statements of income for the three and
twelve-month periods ended December 31, 1996 and 1995 and the
three, six, and twelve-month periods ended June 30, 1997 and 1996
and the unaudited consolidated statement of cash flows for the
three and twelve-month periods ended December 31, 1996 and 1995
and the six and twelve-month periods ended June 30, 1997 and
1996, included in the company's quarterly reports on Form 10-Q
for the quarters ended December 31, 1996, March 31, 1997 and June
30, 1997 and incorporated by reference in the registration
statement, or on the financial position, results of operations,
or cash flows as of any date or for any period subsequent to
September 30, 1996.
4. For purposes of this letter, we have read the 1996 and 1997
minutes of the meetings of the board of directors of the company
as set forth in the minute books at _____ __, 1997, officials of the
company having advised us that the minutes of all such meetings
through that date were set forth therein; we have carried out
other procedures to _____ __, 1997, as follows (our work did not
extend to the period from _____ __, 1997, to _____ __, 1997,
inclusive): with respect to the three and twelve-month periods
ended December 31, 1996 and 1995 and the three, six and twelve-
month periods ended June 30, 1997 and 1996, we have --
(i) Performed the procedures specified by the American
Institute of Certified Public Accountants for a review
of interim financial information as described in the
SAS No. 71, Interim Financial Information, on the
unaudited condensed consolidated financial statements
for these periods, described in 3, included in the
Company's quarterly reports on Form 10-Q for the
quarters ended December 31, 1996, March 31, 1997 and
June 30, 1997, incorporated by reference in the
registration statement.
(ii) Inquired of certain officials of the company who have
responsibility for financial and accounting matters
whether the unaudited condensed consolidated financial
statements referred to in (i): (1) are in conformity
with generally accepted accounting principles applied
on a basis substantially consistent with that of the
audited consolidated financial statements incorporated
by reference in the registration statement, and (2)
comply as to form in all material respects with the
applicable accounting requirements of the Securities
Exchange Act of 1934 as it applies to Form 10-Q and the
related published rules and regulations.
The foregoing procedures do not constitute an audit conducted in
accordance with generally accepted auditing standards. Also, they
would not necessarily reveal matters of significance with respect
to the comments in the following paragraph. Accordingly, we make
no representations regarding the sufficiency of the foregoing
procedures for your purposes. Had we performed additional
procedures or had we conducted an audit, other matters might have
come to our attention that would have been reported to you.
5. Nothing came to our attention as a result of the foregoing
procedures, however, that caused us to believe that -
(i) Any material modifications should be made to the
unaudited condensed consolidated financial statements
described in 3, incorporated by reference in the
registration statement, for them to be in conformity
with generally accepted accounting principles.
(ii) The unaudited condensed consolidated financial
statements described in 3 do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Exchange Act of 1934 as
it applies to Form 10-Q and the related published rules
and regulations.
6. Company officials have advised us that no financial statements as
of any date or for any period subsequent to June 30, 1997, are
available; accordingly, the procedures carried out by us with
respect to changes in financial statement items after June 30,
1997, have, of necessity, been even more limited than those with
respect to the periods referred to in 4. We have inquired of
certain officials of the company who have responsibility for
financial and accounting matters whether (a) at _______ ___,
1997, there was any change in the capital stock (other than any
change attributable to the dividend reinvestment plan or stock
option and other employee and officer benefit plans), increase in
long-term debt or any decrease in stockholders' equity (other
than any decrease attributable to the declaration of a dividend)
of the company as compared with amounts shown on the June 30,
1997, unaudited consolidated balance sheet incorporated by
reference in the registration statement, or (b) for the period
from July 1, 1997, to ________ ___, 1997, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated operating revenues or in the
total per-share amounts of net income. On the basis of these
inquiries and our reading of the minutes as described in 4,
nothing came to our attention that caused us to believe that
there was any such change, increase, or decrease, except in all
instances for changes, increases or decreases that the
registration statement discloses have occurred or may occur.
7. For purposes of this letter, we have also read the items
identified by you on the attached copy of the registration
statement (including items incorporated by reference) and the
prospectus, and have performed additional procedures, which were
applied as indicated in Schedule A attached hereto, with respect
to the items so identified and described.
8. Our audit of the consolidated financial statements for the
periods referred to in the introductory paragraph of this letter
comprised audit tests and procedures deemed necessary for the
purpose of expressing an opinion on such financial statements
taken as a whole. For none of the periods referred to therein, or
any other period, did we perform audit tests for the purpose of
expressing an opinion on individual balances of accounts or
summaries of selected transactions such as those enumerated
above, and, accordingly, we express no opinion thereon.
9. It should be understood that we make no representations regarding
questions of legal interpretation or regarding the sufficiency
for your purposes of the procedures enumerated in the preceding
paragraph; also, such procedures would not necessarily reveal any
material misstatement of the amounts or percentages listed above.
Further, we have addressed ourselves solely to the foregoing data
as set forth in the registration statement and make no
representations regarding the adequacy of disclosure or regarding
whether any material facts have been omitted.
10. This letter is solely for the information of the addressees and
to assist the underwriters in conducting and documenting their
investigation of the affairs of the company in connection with
the offering of the securities covered by the registration
statement, and it is not to be used, circulated, quoted, or
otherwise referred to within or without the underwriting group
for any purpose, including but not limited to the registration,
purchase, or sale of securities, nor is to be filed with or
referred to in whole or in part in the registration statement or
any other document, except that reference may be made to it in
the underwriting agreement or in any list of closing documents
pertaining to the offering of the securities covered by the
registration statement.
Very truly yours,
XXXXXX XXXXXXXX LLP
