Exhibit 1.1.
Execution Copy
1,500,000 Shares
NUI Corporation
Common Stock
UNDERWRITING AGREEMENT
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March 14, 2002
CIBC World Markets Corp.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
c/o CIBC World Markets Corp.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
NUI Corporation, a New Jersey corporation (the "Company"), proposes,
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subject to the terms and conditions contained herein, to sell to you (the
"Underwriters") an aggregate of 1,500,000 shares (the "Firm Shares") of the
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Company's Common Stock, no par value (the "Common Stock"). The respective
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amounts of the Firm Shares to be purchased by each of the several Underwriters
are set forth opposite their names on Schedule I hereto. In addition, the
Company proposes to grant to the Underwriters an option to purchase up to an
additional 225,000 shares (the "Option Shares") of Common Stock from it for the
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purpose of covering over-allotments in connection with the sale of the Firm
Shares. The Firm Shares and the Option Shares are together called the "Shares."
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The Shares will be issued with the rights (the "Rights") attached pursuant to
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the Shareholder Rights Plan of the Company (the "Shareholder Rights Plan") as
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described under "Description of Capital Stock" in the Prospectus (as such term
is hereinafter defined).
1. Sale and Purchase of the Shares.
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On the basis of the representations, warranties and agreements contained
in, and subject to the terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a price of $21.43 per share (the "Initial Price"), the number of
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Firm Shares set forth opposite the name of such Underwriter under the column
"Number of Firm Shares To Be Purchased" on Schedule I to this Agreement, subject
to adjustment in accordance with Section 10 hereof.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares at the
Initial Price. The number of Option Shares to be purchased by each Underwriter
shall be the same percentage (adjusted by the Underwriters to eliminate
fractions) of the total number of Option Shares to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Shares. Such option
may be exercised only to cover over-allotments in the sales of the Firm Shares
by the Underwriters and may be exercised in whole or in part at any time on or
before 12:00 noon, New York City time, on the business day before the Firm
Shares Closing Date (as defined below), and from time to time thereafter within
30 days after the date of this Agreement, in each case upon written, facsimile
or telegraphic notice, or verbal or telephonic notice confirmed by written,
facsimile or telegraphic notice, by CIBC World Markets Corp. to the Company no
later than 12:00 noon, New York City time, on the business day before the Firm
Shares Closing Date or at least two business days before the Option Shares
Closing Date (as defined below), as the case may be, setting forth the number of
Option Shares to be purchased and the time and date (if other than the Firm
Shares Closing Date) of such purchase.
2. Delivery and Payment. Payment of the purchase price for, and delivery
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of certificate for, the Firm Shares shall be made at the offices of Xxxxxx &
Xxxxxx L.L.P., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
a.m., New York City time, on the fourth business day following the date of this
Agreement or at such time on such other date, not later than ten (10) business
days after the date of this Agreement, as shall be agreed upon by the Company
and the Underwriters (such time and date of delivery and payment are called the
"Firm Shares Closing Date"). ------------------------
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, payment of the purchase price, and delivery of
the certificates, for such Option Shares shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Underwriters and
the Company, on each date of delivery as specified in the notice from CIBC World
Markets Corp. to the Company (such time and date of delivery and payment are
called the "Option Shares Closing Date"). The Firm Shares Closing Date and the
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Option Shares Closing Date are called, individually, a "Closing Date" and,
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together, the "Closing Dates."
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Payment shall be made to the Company by wire transfer of immediately
available funds or by certified or official bank check or checks payable in New
York Clearing House (same day) funds drawn to the order of the Company for the
shares issued and sold by the Company, against delivery of the respective
certificates to the Underwriters for the respective accounts of the Underwriters
of certificates for the Shares to be purchased by them.
Certificates evidencing the Shares shall be registered in such names and
shall be in such denominations as the Underwriters shall request at least two
full business days before the Firm Shares Closing Date or, in the case of Option
Shares, on the day of notice of exercise of the option as described in Section
l(b), and shall be delivered by or on behalf of the Company to the Underwriters
through the facilities of The Depository Trust Company ("DTC") for the accounts
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of such Underwriters. The Company will cause the certificates evidencing the
Shares to be made available for checking and packaging, at such place as is
designated by CIBC World Markets
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Corp., on the full business day before the Firm Shares Closing Date (or the
Option Shares Closing Date in the case of the Option Shares).
3. Registration Statement, Prospectus and Prospectus Supplement; Public
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Offering. The Company has prepared and filed in conformity with the requirements
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of the Securities Act of 1933, as amended (the "Securities Act"), and the
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published rules and regulations thereunder (the "Rules") adopted by the
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Securities and Exchange Commission (the "Commission") a registration statement
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on Form S-3 (No. 333-81868), including a related prospectus (the "Base
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Prospectus") relating to the Shares and preferred stock, no par value per share,
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of the Company and certain debt securities of the Company to be sold from time
to time by the Company in accordance with Rule 415 of the Securities Act, and
such amendments thereof as may have been required to the date of this Agreement,
including Amendment No. 1 to such Registration Statement. Copies of such
Registration Statement (including all amendments thereof and all documents
deemed incorporated by reference therein) and of the related Base Prospectus
have heretofore been delivered by the Company to you. The term "Registration
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Statement" as used in this Agreement means the registration statement, including
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all financial statements, exhibits and documents filed therewith or incorporated
by reference therein, as from time to time amended or supplemented pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), Rule 415
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and Rule 434 of the Rules, or otherwise, any registration statement filed under
Rule 462 of the Rules as such registration statement may be amended from time to
time and all information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules. The term "Preliminary
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Prospectus" means any preliminary prospectus relating to the Shares (including
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any preliminary prospectus supplement) included at any time as a part of the
"Registration Statement" or filed with the Commission with the consent of the
Underwriters pursuant to Rule 424(a) of the Rules. The term "Prospectus" means
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the Base Prospectus and the prospectus supplement constituting a part of the
Registration Statement, any Preliminary Prospectus and any amendments or further
supplements to such prospectus, including, without limitation, the final
prospectus supplement filed pursuant to Rule 424(b) with the Commission in
connection with the proposed sale of the Firm Shares contemplated by this
Agreement (the "Prospectus Supplement"), through the date of such Prospectus
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Supplement. Unless otherwise stated herein, any reference herein to the
Registration Statement and the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, which were filed under the Exchange Act on or
before the date hereof or are so filed hereafter. Any reference herein to the
terms "amend," "amendment," or "supplement" with respect to the Registration
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Statement or the Prospectus shall be deemed to refer to and include any such
document filed or to be filed under the Exchange Act after the date of the
Registration Statement or Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus. The
Company hereby confirms that the Underwriters and dealers have been authorized
to distribute or cause to be distributed each Prospectus and are authorized to
distribute the Prospectus (as from time to time amended or supplemented if the
Company furnishes amendments or supplements thereto to the Underwriters).
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4. Representations and Warranties of the Company. The Company hereby
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represents and warrants to each Underwriter as follows:
(a) The Company meets the requirements for the use of Form S-3. On the
date the Registration Statement was declared effective by the Commission (the
"Effective Date"), and at all times subsequent to and including the Closing Date
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and when any post-effective or any amendment or supplement to the Prospectus is
filed with the Commission, the Registration Statement and the Prospectus (as
amended or as supplemented if the Company shall have filed with the Commission
any amendment or supplement thereto), including the financial statements
included or incorporated by reference in the Prospectus or the Registration
Statement, did or, when so filed, will comply in all material respects with all
applicable provisions of the Securities Act, the Rules, the Exchange Act and the
rules and regulations of the Commission thereunder (the "Exchange Act Rules")
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and did or, when filed, will contain all statements required to be stated
therein in accordance with the Securities Act, the Rules, the Exchange Act and
the Exchange Act Rules. On the Effective Date and when any post-effective
amendment to the Registration Statement becomes effective, no part of the
Registration Statement or any such amendment did or will contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. At the Effective Date, the date the Prospectus or any amendment or
supplement to the Prospectus is or was filed with the Commission and at the
Closing Date, the Prospectus did not or will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If applicable, each 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. Notwithstanding the
foregoing, none of the representations and warranties in this paragraph 4(a)
shall apply to statements in, or omissions from, the Registration Statement or
the Prospectus made in reliance upon, and in conformity with, information herein
or otherwise furnished in writing by CIBC World Markets Corp. on behalf of the
several Underwriters for use in the Registration Statement or the Prospectus.
With respect to the preceding sentence, the Company acknowledges that the only
information furnished in writing by CIBC World Markets Corp. on behalf of the
several Underwriters for use in the Registration Statement or the Prospectus are
the statements regarding (i) the amounts of the selling concession and
reallowance, (ii) the paragraphs regarding stabilization and the provision of
other services to the Company by the Underwriters and affiliates of the
Underwriters, and (iii) the number of Firm Shares that each Underwriter commits
to purchase on the Closing Date, all as set forth under the caption
"Underwriting" in the Prospectus.
(b) The Registration Statement is effective under the Securities Act and
no stop order preventing or suspending the effectiveness of the Registration
Statement or suspending or preventing the use of the Prospectus has been issued
and no proceedings for that purpose have been instituted or are threatened under
the Securities Act. Any required filing of the Prospectus pursuant to Rule
424(b) of the Rules has been or will be made in the manner and within the time
period required by such Rule 424(b).
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(c) The documents incorporated by reference in the Registration
Statement and the Prospectus, at the time they became effective or were filed
with the Commission as the case may be, complied in all material respects with
the requirements of the Securities Act or the Exchange Act, the Rules and the
Exchange Act Rules, as applicable, and, when read together and with the other
information in the Registration Statement and the Prospectus, do not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading and any
further documents so filed and incorporated by reference in the Registration
Statement and the Prospectus, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as applicable,
and the Rules or Exchange Act Rules of the Commission thereunder 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.
(d) The financial statements of the Company (including all notes and
schedules thereto) included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position, the results
of operations, the statements of cash flows and the statements of shareholders'
equity and the other information purported to be shown therein of the Company at
the respective dates and for the respective periods to which they apply; and
such financial statements and related schedules and notes have been prepared in
conformity with generally accepted accounting principles, consistently applied
throughout the periods involved, and all adjustments necessary for a fair
presentation of the results for such periods have been made. The summary and
selected financial data included in the Prospectus present fairly the
information shown therein as at the respective dates and for the respective
periods specified and the summary and selected financial data have been
presented on a basis consistent with the consolidated financial statements so
set forth in the Prospectus and other financial information.
(e) Xxxxxx Xxxxxxxx LLP, whose reports are filed with the Commission as
a part of, or incorporated by reference in, the Registration Statement, are and,
during the periods covered by their reports, were independent public accountants
as required by the Securities Act and the Rules.
(f) The Company and each of its Subsidiaries (as hereinafter defined) is
a corporation, or with respect to any Subsidiary organized as a limited
liability company, a limited liability company, duly organized, validly existing
and in good standing under the laws of the state or jurisdiction of its
incorporation, or in the case of a limited liability company, its formation, as
set forth in Schedule II hereto. The Company and each such subsidiary or other
entity controlled directly or indirectly by the Company (individually,
"Subsidiary" and, collectively, "Subsidiaries") is duly qualified to do business
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and is in good standing as a foreign corporation or limited liability company,
as the case may be, in each jurisdiction in which the nature of the business
conducted by it or location of the assets or properties owned, leased or
licensed by it requires such qualification, except for such jurisdictions where
the failure to so qualify would not have a material adverse effect on the assets
or properties, business, results of operations or financial condition of the
Company (a "Material Adverse Effect"). The Company
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and each of its Subsidiaries has all requisite corporate or limited liability
company power and authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or entity (collectively,
the "Permits"), to own, lease and license its assets and properties and conduct
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its business, all of which are valid and in full force and effect, as described
in the Registration Statement and the Prospectus, except where the lack of such
Permits, individually or in the aggregate, would not have a Material Adverse
Effect. The Company and each of its Subsidiaries has fulfilled and performed in
all material respects all of its material obligations with respect to such
Permits and no event has occurred that allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other material
impairment of the rights of the Company and its Subsidiaries thereunder. Except
as may be required under the Securities Act and state and foreign Blue Sky laws,
no other Permits, including any consent of the Commission under PUHCA (as
hereinafter defined), are required to enter into, deliver and perform this
Agreement and to issue and sell the Shares.
(g) The Company and each of its Subsidiaries owns or possesses adequate
and enforceable rights to use all trademarks, trademark applications, trade
names, service marks, copyrights, copyright applications, licenses, know-how and
other similar rights and proprietary knowledge (collectively, "Intangibles")
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described in the Prospectus as being owned by it necessary for the conduct of
its business. Neither the Company nor any of its Subsidiaries has received any
notice of, or is aware of, any infringement of or conflict with asserted rights
of others with respect to any Intangibles.
(h) The Company and each of its Subsidiaries has good and marketable
title in fee simple to all items of real property and good and marketable title
to all personal property described in the Prospectuses as being owned by it. Any
real property and buildings described in the Prospectus as being held under
lease by the Company or any of its Subsidiaries is held by it under valid,
existing and enforceable leases, free and clear of all liens, encumbrances,
claims, security interests and defects, except such as are described in the
Registration Statement and the Prospectus or would not have a Material Adverse
Effect.
(i) There are no litigation or governmental proceedings to which the
Company or any of its Subsidiaries is subject or that is pending or, to the
knowledge of the Company, threatened, against the Company or any of its
Subsidiaries that, individually or in the aggregate, might have a Material
Adverse Effect, affect the consummation of this Agreement or that is required to
be disclosed in the Registration Statement and the Prospectus that is not so
disclosed.
(j) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as described therein,
(a) there has not been any material adverse change with regard to the assets or
properties, business, results of operations, financial condition or prospects of
the Company; (b) neither the Company nor any of its Subsidiaries has sustained
any loss or interference with its assets, businesses or properties (whether
owned or leased) from fire, explosion, earthquake, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree that would have a
Material Adverse Effect; and (c) since
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December 31, 2001, the date of the latest balance sheet included or incorporated
by reference in the Registration Statement and the Prospectus, except as
reflected therein, neither the Company nor any of its Subsidiaries has (i)
issued any securities or incurred any liability or obligation, direct or
contingent, for borrowed money, except such liabilities or obligations incurred
in the ordinary course of business, (ii) entered into any transaction not in the
ordinary course of business or (iii) declared or paid any dividend or made any
distribution on any shares of its capital stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares
of its capital stock, other than a regular dividend declared and payable on
March 15, 2002 to holders of the Common Stock.
(k) There is no document, contract or other agreement of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that is not described or
filed as required by the Securities Act or Rules. Each description of a
contract, document or other agreement in the Registration Statement and the
Prospectus accurately reflects in all respects the terms of the underlying
document, contract or agreement. Each agreement described in the Registration
Statement and Prospectus or listed in the Exhibits to the Registration Statement
or incorporated by reference is in full force and effect and is valid and
enforceable by and against the Company or any Subsidiary, as the case may be, in
accordance with its terms. Neither the Company nor any Subsidiary, if such
Subsidiary is a party nor, to the Company's knowledge, any other party is in
default in the observance or performance of any term or obligation to be
performed by it under any such agreement, and no event has occurred that with
notice or lapse of time or both would constitute such a default, in any such
case which default or event, individually or in the aggregate, would have a
Material Adverse Effect. No default exists, and no event has occurred that with
notice or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition by the Company or
any Subsidiary, if such Subsidiary is a party thereto, of any other agreement or
instrument to which the Company or such Subsidiary is a party or by which the
Company, any Subsidiary or their respective properties or business may be bound
or affected which default or event, individually or in the aggregate, would have
a Material Adverse Effect.
(l) Neither the Company nor any of its Subsidiaries is in violation of
any term or provision of its certificate of incorporation or by-laws (or, in the
case of a limited liability company, its limited liability company agreement or
regulations and certificate of formation, or other such equivalent
organizational documents) (the "Organizational Documents") or of any franchise,
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license, Permit, judgment, decree, order, statute, rule or regulation, where the
consequences of such violation, individually or in the aggregate, would have a
Material Adverse Effect.
(m) Neither the execution, delivery and performance of this Agreement by
the Company nor the consummation of any of the transactions contemplated hereby
(including, without limitation, the issuance and sale by the Company of the
Shares, will give rise to a right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with notice or lapse of
time or both would constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any lien, charge or
encumbrance upon any properties or
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assets of the Company or any of its Subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which either the Company or
any of its Subsidiaries or any of its properties or businesses is bound, or any
franchise, license, permit, judgment, decree, order, statute, rule or regulation
applicable to the Company or any of its Subsidiaries or violate any provision of
the Organizational Documents of the Company or any of its Subsidiaries, except
for such consents or waivers which have already been obtained and are in full
force and effect.
(n) The Company has authorized and outstanding capital stock as set
forth under the caption "Capitalization" in the Registration Statement and the
Prospectus. The certificates evidencing the Shares are in due and proper legal
form and have been duly authorized for issuance by the Company. All of the
issued and outstanding shares of Common Stock have been duly and validly issued
and are fully paid and nonassessable. There are no statutory preemptive or other
similar rights to subscribe for or to purchase or acquire any shares of Common
Stock of the Company or any limited liability company interests ("LLC
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Interests") in any of its Subsidiaries or any such rights pursuant to their
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respective Organizational Documents or any agreement or instrument to or by
which the Company or any of its Subsidiaries is a party or is bound. The Shares,
when issued and sold pursuant to this Agreement, will be duly and validly
issued, fully paid and nonassessable and none of them will be issued in
violation of any preemptive or other similar right. The Shares are being issued
pursuant to the terms of the Shareholder Rights Plan. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and there is no commitment,
plan or arrangement to issue, any share of capital stock of the Company or any
LLC Interest in its Subsidiaries or any security convertible into, or
exercisable or exchangeable for, such stock or LLC Interest, as the case may be.
The Common Stock and the Shares conform in all material respects to all
statements in relation thereto contained in the Registration Statement and the
Prospectus. All outstanding shares of capital stock of, or LLC Interest in (in
the case of a Subsidiary organized as a limited liability company), each
Subsidiary have been duly authorized and validly issued, and are fully paid and
nonassessable and are owned directly by the Company or by another wholly owned
Subsidiary of the Company free and clear of any security interests, liens,
encumbrances, equities or claims, other than those described in the Prospectus.
(o) Except as disclosed in the Prospectus, no holder of any security of
the Company has the right to have any security owned by such holder included in
the Registration Statement or to demand registration of any security owned by
such holder during the period ending 90 days after the date of this Agreement.
Each director and executive officer of the Company has delivered to the
Underwriters his enforceable written lock-up agreement in the form attached to
this Agreement ("Lock-Up Agreement").
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(p) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares by the Company. This Agreement
has been duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
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moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
(q) Neither the Company nor any of its Subsidiaries is involved in any
labor dispute nor, to the knowledge of the Company, is any such dispute
threatened, which dispute would have a Material Adverse Effect. The Company is
not aware of any existing or imminent labor disturbance by the employees of any
of its principal suppliers or contractors that would have a Material Adverse
Effect. The Company is not aware of any threatened or pending litigation between
the Company or its Subsidiaries, on the one hand, and any of its executive
officers, on the other hand, that, if adversely determined, could have a
Material Adverse Effect, and the Company has no reason to believe that such
officers will not remain in the employment of the Company.
(r) No transaction has occurred between or among the Company and any of
its officers or directors or any affiliate or affiliates of any such officer or
director that is required to be described in and is not described in the
Registration Statement and the Prospectus.
(s) The Company has not taken, nor will it take, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in, or that has constituted or that might reasonably be expected to constitute,
the stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of any of the Shares.
(t) The Company and its Subsidiaries have filed all Federal, state,
local and foreign tax returns that are required to be filed through the date
hereof, which returns are true and correct in all material respects, or have
received extensions thereof, and have paid all taxes shown on such returns and
all assessments received by them to the extent that the same are material and
have become due. There are no tax audits or investigations pending, that if
adversely determined would have a Material Adverse Effect; nor are there any
material proposed additional tax assessments against the Company or any of its
Subsidiaries.
(u) The Shares and attached Rights have been duly authorized for listing
on the New York Stock Exchange (the "NYSE"), subject to notice of official
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issuance. All documents have been filed pursuant to the Exchange Act and the
Exchange Act Rules to register the Common Stock and the attached Rights pursuant
to Section 12 of the Exchange Act.
(v) The Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the Exchange
Act or the listing of the Common Stock on the NYSE, nor has the Company received
any notification that the Commission or the NYSE is contemplating terminating
such registration or listing.
(w) The books, records and accounts of the Company and its Subsidiaries
accurately and fairly reflect, in reasonable detail, the transactions in, and
dispositions of, the assets of, and the results of operations of, the Company
and its Subsidiaries. The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit
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preparation of financial statements in accordance with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(x) The Company and its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are customary in the businesses in which they are engaged or propose
to engage after giving effect to the transactions described in the Prospectus;
all policies of insurance and fidelity or surety bonds insuring the Company or
any of its Subsidiaries or the Company's or any of its Subsidiaries' respective
businesses, assets, employees, officers and directors are in full force and
effect; the Company and each of its Subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; and neither the
Company nor any Subsidiary of the Company has reason to believe that it will not
be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Material Adverse
Effect. Neither the Company nor any Subsidiary has been denied any insurance
coverage that it has sought or for which it has applied.
(y) Each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated required to be obtained or performed by the Company (except such
additional steps as may be required by the National Association of Securities
Dealers, Inc. (the "NASD") or may be necessary to qualify the Shares for public
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offering by the Underwriters under the state securities or Blue Sky laws) has
been obtained or made and is in full force and effect.
(z) There are no affiliations with the NASD among the Company's
officers, directors or, to the best of the knowledge of the Company, any five
percent or greater stockholder of the Company, except as may be set forth in the
Registration Statement or otherwise disclosed in writing to the Underwriters.
(aa) Except as disclosed in the Prospectus or the Registration
Statement, (i) each of the Company and its Subsidiaries is in compliance in all
material respects with all rules, laws and regulations relating to the use,
treatment, storage and disposal of toxic substances and protection of health or
the environment ("Environmental Laws") that are applicable to its business; (ii)
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neither the Company nor any of its Subsidiaries has received any notice from any
governmental authority or third party of an asserted claim under Environmental
Laws except for such notices as are associated with disclosures made in the
Prospectus or the Registration Statement and except for any such notices that
are not likely to result in a material liability to the Company or its
Subsidiaries; (iii) each of the Company and its Subsidiaries has received all
permits, licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and is in compliance in all material
respects with all terms and conditions of any such permit, license or approval;
(iv) no property that is or, to the knowledge of the
-10-
Company, has been owned or leased by the Company or any of its Subsidiaries has
been designated as a Superfund site pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section
9601, et. seq.) ("CERCLA") or otherwise designated as a contaminated site under
------
applicable state or local law except such designations not likely to result in a
material liability to the Company or its Subsidiaries; and (v) to the knowledge
of the Company, neither the Company nor any of its Subsidiaries has been
designated as a "potentially responsible party" under CERCLA except such
designations not likely to result in a material liability to the Company or its
Subsidiaries.
(bb) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries, in the course of which the
Company identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws, or any permit,
license or approval, and any related constraints on operating activities).
(cc) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of proceeds therefrom as described in the
Prospectus, will not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act").
----------------------
(dd) Neither the Company or any of its Subsidiaries, nor any other
person associated with or acting on behalf of the Company or any of its
Subsidiaries including, without limitation, any director, officer, agent or
employee of the Company or any of its Subsidiaries has, directly or indirectly,
while acting on behalf of the Company or any of its Subsidiaries (i) used any
corporate funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity; (ii) made any unlawful payment
to foreign or domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds; (iii) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv) made
any other unlawful payment.
(ee) The Company is exempt from registration and all other regulations
and requirements of the Public Utility Holding Company Act of 1935, as amended
("PUHCA"), and the rules and regulations promulgated thereunder, other than from
-----
Section 9(a)(2) thereof, pursuant to Section 3(a)(1) of PUHCA under Rule 2
promulgated thereunder.
5. Conditions of the Underwriters' Obligations. The obligations of the
-------------------------------------------
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) Notification that all filings related to the Registration Statement,
the Prospectus, and the offering of the Shares required by Rule 424 of the Rules
shall have been made.
(b) No order preventing or suspending the use of any Prospectus shall
have been or shall be in effect and no order suspending the effectiveness of the
Registration Statement
-11-
shall be in effect and no proceedings for such purpose shall be pending before
or threatened by the Commission, and any requests for additional information on
the part of the Commission (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the satisfaction of
the Commission and the Underwriters. If the Company has elected to rely upon
Rule 430A, Rule 430A information previously omitted from the effective
Registration Statement pursuant to Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed time period
and the Company shall have provided evidence satisfactory to the Underwriters of
such timely filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance with the
requirements of Rule 430A. If the Company has elected to rely upon Rule 434, a
term sheet shall have been transmitted to the Commission for filing pursuant to
Rule 424(b) within the prescribed time period.
(c) The representations and warranties of the Company contained in this
Agreement and in the certificates delivered pursuant to Section 5(d) shall be
true and correct when made and on and as of each Closing Date as if made on such
date. The Company shall have performed all covenants and agreements and
satisfied all the conditions contained in this Agreement required to be
performed or satisfied by them at or before such Closing Date.
(d) The Underwriters shall have received on each Closing Date a
certificate, addressed to the Underwriters and dated such Closing Date, of the
President and Chief Executive Officer and the Senior Vice President, Chief
Operating Officer and Chief Financial Officer of the Company to the effect that
(i) the signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that the representations and
warranties of the Company in this Agreement are true and correct on and as of
such Closing Date with the same effect as if made on such Closing Date and the
Company has performed all covenants and agreements and satisfied all conditions
contained in this Agreement required to be performed or satisfied by it at or
prior to such Closing Date, and (ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and to the best of their
knowledge, no proceedings for that purpose have been instituted or are pending
under the Securities Act.
(e) The Underwriters shall have received, at the time this Agreement is
executed and on each Closing Date a signed letter from Xxxxxx Xxxxxxxx LLP
addressed to the Underwriters and dated, respectively, the date of this
Agreement and each such Closing Date, in form and substance reasonably
satisfactory to the Underwriters containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) The Underwriters shall have received on each Closing Date from Pitney,
Xxxxxx, Xxxx & Xxxxx LLP, outside counsel for the Company, an opinion, addressed
to the Underwriters and dated such Closing Date, and stating in effect that:
(i) The Company is validly existing as a corporation in the State of
New Jersey.
-12-
(ii) The Company has all requisite corporate power and authority
to enter into, deliver and perform its obligations under this
Agreement and to issue and sell the Shares other than those required
under the state and foreign Blue Sky laws.
(iii) The Company has authorized capital stock as set forth in
the Registration Statement and the Prospectus under the caption
"Capitalization" as of the dates stated therein; the certificates
evidencing the Shares are in due and proper legal form and have been
duly authorized for issuance by the Company. The Shares when issued
and sold pursuant to this Agreement will be duly and validly issued,
outstanding, fully paid and nonassessable, and such counsel is not
aware that any of them will have been issued in violation of any
preemptive or other similar right. Except as disclosed in the
Registration Statement and the Prospectus, such counsel does not know
of any preemptive or other rights to subscribe for or to purchase or
any restriction upon the voting or transfer of any securities of the
Company pursuant to the Company's Certificate of Incorporation or
by-laws or other governing documents or any agreements or other
instruments to which the Company is a party or by which it is bound.
Except as disclosed in the Registration Statement and the Prospectus,
such counsel does not know of any outstanding option, warrant or other
right calling for the issuance of, or any commitment, plan or
arrangement to issue, any share of stock of the Company or any
security convertible into, exercisable for, or exchangeable for stock
of the Company.
(iv) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares.
This Agreement has been duly and validly authorized, executed and
delivered by the Company and this Agreement constitutes the legal,
valid and binding obligation of the Company enforceable against the
Company in accordance with its respective terms except as such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
(v) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the
issuance and sale by the Company of the Shares) will violate any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation, domestic or foreign, by which the Company is bound and of
which such counsel is aware, or violate any provision of the Company's
Certificate of Incorporation or by-laws.
(vi) The Registration Statement and the Prospectus and each
amendment or supplement thereto (except for the financial statements
and schedules and other financial and statistical data included
therein, as to which
-13-
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and
the Rules and the documents incorporated by reference in the
Registration Statement, all Prospectuses and any further
amendment or supplement to any such incorporated document made by
the Company (except for the financial statements and schedules
and other financial and statistical data included therein, as to
which such counsel need express no opinion) when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as
applicable, and the Rules and the Exchange Act Rules.
(vii) The statements in the Base Prospectus included under
the caption "Description of Capital Stock" and in the
Registration Statement under "Item 15. Indemnification of
Directors and Officers," insofar as such statements constitute a
summary of documents referred to therein or matters of law, are
accurate in all material respects and accurately present the
information called for with respect to such documents and
matters.
(viii) The Registration Statement is effective under the
Securities Act, and to such counsel's knowledge no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or are threatened, pending or contemplated. Any
required filing of the Prospectus and any supplement thereto
pursuant to Rule 424(b) under the Securities Act has been made in
the manner and within the time period required by such Rule
424(b).
(ix) The Shares with attached Rights are approved for
listing on the NYSE.
(x) The capital stock of the Company and the Rights
conform in all material respects to the description thereof
contained in the Base Prospectus under the caption "Description
of Capital Stock."
(xi) The Company is not an "investment company" or an
entity controlled by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
To the extent deemed advisable by such counsel, they may rely as
to matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Underwriters as to matters which are governed by laws other than the laws of the
State of New Jersey, and the Federal laws of the United States; provided that
such counsel shall state that in their opinion the Underwriters and they are
justified in relying on such other opinions. Copies of such certificates and
other opinions shall be furnished to the Underwriters and counsel for the
Underwriters. Such counsel shall also state that the opinions expressed with
respect to the laws of the State of New Jersey may be relied
-14-
upon by Xxxxxx & Xxxxxx L.L.P., counsel to the Underwriters, for the purpose of
rendering their opinion required by this Agreement.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Underwriters and representatives of the
independent certified public accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except as
specified in the foregoing opinion), on the basis of the foregoing, no facts
have come to the attention of such counsel which lead such counsel to believe
that (i) the Registration Statement (including any Rule 462(b) Registration
Statement) or any post-effective amendment thereto (except with respect to the
financial statements and notes and schedules thereto and other financial data,
as to which such counsel need express no belief), at the time the Registration
Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto became effective, contained any 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 the Prospectus or any amendment or supplement thereto (except with respect
to the financial statements, notes and schedules thereto and other financial
data, as to which such counsel need make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Date, included or includes an untrue statement of a
material fact or omitted 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 or (ii) any document incorporated by reference in the
Prospectus or any further amendment or supplement to any such incorporated
document made by the Company, when they became effective or were filed with the
Commission, as the case may be, contained, in the case of a registration
statement which became effective under the Securities Act, any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or,
in the case of other documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(g) The Underwriters shall have received on each Closing Date from
Xxxxx X. Xxx Xxxx, general counsel for the Company, an opinion, addressed to the
Underwriters and dated such Closing Date, and stating in effect that:
(i) Each of the Company and its Subsidiaries has been duly
organized and is validly existing as a corporation or, with respect to
any Subsidiary organized as a limited liability company, a limited
liability company, in each case in good standing under the laws of the
jurisdiction of its incorporation set forth in Schedule II. Each of
the Company and its Subsidiaries is duly qualified to transact
business and is in good standing as a foreign corporation or, with
respect to any Subsidiary organized as a limited liability company, a
limited liability company, in each jurisdiction in which the character
or location of its assets or
-15-
properties (owned, leased or licensed) or the nature of its
businesses makes such qualification necessary, except for such
jurisdictions where the failure to so qualify, individually or
in the aggregate, would not have a Material Adverse Effect.
(ii) Each of the Company and its Subsidiaries has all
requisite corporate or limited liability company, as the case
may be, power and authority to own, lease and license its
assets and properties and conduct its business as now being
conducted and as described in the Registration Statement and
the Prospectus and with respect to the Company to enter into,
deliver and perform its obligations under this Agreement and
to issue and sell the Shares other than those required under
the state and foreign Blue Sky laws.
(iii) The Company has issued and outstanding capital
stock as set forth in the Registration Statement and the
Prospectus under the caption "Capitalization" as of the dates
stated therein. All of the outstanding shares of Common Stock
of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable and none of them
was issued in violation of any preemptive or other similar
right. To such counsel's knowledge, except as disclosed in the
Registration Statement and the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase or
any restriction upon the voting or transfer of any securities
of the Company pursuant to the Company's Certificate of
Incorporation or by-laws or other governing documents or any
agreements or other instruments to which the Company is a
party or by which it is bound. To such counsel's knowledge,
except as disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or other
right calling for the issuance of, and no commitment, plan or
arrangement to issue, any share of stock of the Company or any
security convertible into, exercisable for, or exchangeable
for stock of the Company. The issued and outstanding shares of
capital stock of, or LLC interests in (in the case of a
Subsidiary organized as a limited liability company), each of
the Company's Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are owned
by the Company or directly or indirectly by another wholly
owned Subsidiary of the Company, free and clear of any
perfected security interest or, to the knowledge of such
counsel, any other security interests, liens, encumbrances,
equities or claims, other than those described in the
Registration Statement and the Prospectus.
(iv) Neither the execution, delivery and performance
of this Agreement by the Company nor the consummation of any
of the transactions contemplated hereby (including, without
limitation, the issuance and sale by the Company of the
Shares) or any other agreement or instrument entered into or
to be entered into by the Company in connection with the
transactions contemplated by the Registration Statement and
the Prospectus will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict
with or result in the breach of any term or provision of, or
constitute a default (or any event which
-16-
with notice or lapse of time, or both, would constitute a
default) under, or require consent or waiver under, or result
in the execution or imposition of any lien, charge, claim,
security interest or encumbrance upon any properties or assets
of the Company or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed trust, note or other
agreement or instrument of which such counsel is aware and to
which the Company or any of its Subsidiaries is a party or by
which either the Company or any of its Subsidiaries or any of
their respective assets or properties or businesses is bound,
or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation, domestic or foreign, of which
such counsel is aware or violate any provision of the
Organizational Documents of the Company or any of its
Subsidiaries.
(v) To the best of such counsel's knowledge, no
default exists, and no event has occurred which with notice or
lapse of time, or both, would constitute a default, in the due
performance and observance of any term, covenant or condition
by the Company or any of its Subsidiaries of any indenture,
mortgage, deed of trust, note or any other agreement or
instrument to which the Company or any of its subsidiaries is
a party or by which it or any of its assets or properties or
businesses may be bound or affected, where the consequences of
such default, individually or in the aggregate, is required to
be disclosed in the Registration Statement and the Prospectus
or which would have a Material Adverse Effect.
(vi) To the best of such counsel's knowledge, the
Company and its Subsidiaries are not in violation of any term
or provision of their respective Organizational Documents or
any franchise, license, permit, judgment, decree, order,
statute, rule or regulation, domestic or foreign, where the
consequences of such violation, individually or in the
aggregate, would have a Material Adverse Effect.
(vii) No consent, approval, authorization, license,
registration, qualification or order of any court or
governmental agency or regulatory body, including any consent
of the Commission under PUHCA, is required, for the due
authorization, execution, delivery or performance of this
Agreement by the Company or the consummation of the
transactions contemplated hereby, except such as have been
obtained under the Securities Act and such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the several
Underwriters.
(viii) To the best of such counsel's knowledge, there is
no litigation or governmental or other proceeding or
investigation, before any court or before or by any public
body or board pending or threatened against, or involving the
assets, properties or businesses of, the Company or any of its
Subsidiaries which is required to be disclosed in the
Registration Statement and the Prospectus or which would have
a Material Adverse Effect.
-17-
(ix) The statements in the (a) Prospectus Supplement
under "Business and Properties - Regulation and Pricing," and
"- Competition," and "Management's Discussion and Analysis of
Financial Condition and Results of Operations - Regulatory
Matters," (b) Company's Quarterly Report on Form 10-Q for the
quarter ender December 31, 2001, under "Management's
Discussion and Analysis of Financial Condition and Results of
Operations - Regulatory Matters," (c) Company's Annual Report
on Form 10-K for the year ended September 30, 2001, under
"Item 1. Business - Products and Services," "- Regulation,"
"Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations - Regulatory Matters," and
(d) Company's 2002 Proxy Statement under "Proposal Number One
- Compensation of Directors," "- Transactions with
Management, "and" - Change in Control Agreements," insofar as
such statements constitute a summary of documents referred to
therein or matters of law, are accurate in all material
respects and accurately present the information called for
with respect to such documents and matters. Accurate copies of
all material contracts and other documents required to be
filed as exhibits to, or described in, the Registration
Statement have been so filed with the Commission or are fairly
described in the Registration Statement, as the case may be.
(x) The Company is exempt from registration and all
other regulations and requirements of PUHCA, and the rules and
regulations promulgated thereunder, other than from Section
9(a)(2) thereof, pursuant to Section 3(a)(1) of PUHCA.
In addition, such counsel shall state that such counsel has
participated in conferences with other officers and other representatives of the
Company, representatives of the Underwriters and representatives of the
independent certified public accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except as
specified in the foregoing opinion), on the basis of the foregoing, no facts
have come to the attention of such counsel which lead such counsel to believe
that (i) the Registration Statement (including any Rule 462(b) Registration
Statement) or any post-effective amendment thereto (except with respect to the
financial statements and notes and schedules thereto and other financial data,
as to which such counsel need express no belief), at the time the Registration
Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto became effective, contained any 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 the Prospectus or any amendment or supplement thereto (except with respect
to the financial statements, notes and schedules thereto and other financial
data, as to which such counsel need make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing, included or includes an untrue statement of a
material fact or omitted 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 or (ii) any document
-18-
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Company, when they
became effective or were filed with the Commission, as the case may be,
contained, in the case of a registration statement which became effective under
the Securities Act, any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or, in the case of other documents which were
filed under the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(h) All proceedings taken in connection with the sale of the
Firm Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters, and their counsel and
the Underwriters shall have received from Xxxxxx & Xxxxxx L.L.P. a favorable
opinion, addressed to the Underwriters and dated such Closing Date, with respect
to the Shares, the Registration Statement and the Prospectus, and such other
related matters, as the Underwriters may reasonably request, and the Company
shall have furnished to Xxxxxx & Xxxxxx L.L.P. such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(i) The Underwriters shall have received copies of the
Lock-up Agreements executed by each entity or person described in Section 4(o).
(j) The Company shall have furnished or caused to be
furnished to the Underwriters such further certificates or documents as the
Underwriters shall have reasonably requested.
6. Covenants of the Company.
------------------------
(a) The Company covenants and agrees as follows:
(i) The Company will use its best efforts to cause
any amendments to the Registration Statement, if not effective
at the time of execution of this Agreement, to become
effective as promptly as possible. The Company shall prepare
the Prospectus in a form approved by the Underwriters and file
such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the
second business day following the execution and delivery of
this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Securities Act.
(ii) The Company shall promptly advise the
Underwriters in writing (i) when any amendment to the
Registration Statement shall have become effective, (ii) of
any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional
information, (iii) of the prevention or suspension of the use
of any Prospectus or of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding
for that purpose and
-19-
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company shall not file
any amendment of the Registration Statement or supplement to
the Prospectus or any document incorporated by reference in
the Registration Statement unless the Company has furnished
each Underwriter a copy for its review prior to filing and
shall not file any such proposed amendment or supplement to
which the Underwriters reasonably object. The Company shall
use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(iii) If, at any time when a prospectus relating to
the Shares is required to be delivered under the Securities
Act and the Rules, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the
light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement
the Prospectus to comply with the Securities Act or the Rules,
the Company promptly shall prepare and file with the
Commission, subject to the second sentence of paragraph (ii)
of this Section 6(a), an amendment or supplement which shall
correct such statement or omission or an amendment which shall
effect such compliance.
(iv) The Company shall make generally available to its
security holders and to the Underwriters as soon as
practicable, but not later than 45 days after the end of the
12-month period beginning at the end of the fiscal quarter of
the Company during which the Effective Date occurs (or 90 days
if such 12-month period coincides with the Company's fiscal
year), an earning statement (which need not be audited) of the
Company, covering such 12-month period, which shall satisfy
the provisions of Section 11(a) of the Securities Act or Rule
158 of the Rules.
(v) The Company shall furnish to the Underwriters and
counsel for the Underwriters, without charge, signed copies of
the Registration Statement (including all exhibits thereto and
amendments thereof) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Securities
Act or the Rules, as many copies of any Prospectus and any
amendments thereof and supplements thereto as the Underwriters
may reasonably request. If applicable, the copies of the
Registration Statement and Prospectus and each amendment and
supplement 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.
(vi) The Company shall cooperate with the Underwriters
and their counsel in endeavoring to qualify the Shares for
offer and sale in connection with the offering under the laws
of such jurisdictions as the Underwriters may
-20-
designate and shall maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however, that
the Company shall not be required in connection therewith, as a
condition thereof, to qualify as a foreign corporation or to execute a
general consent to service of process in any jurisdiction or subject
itself to taxation as doing business in any jurisdiction.
(vii) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act and the Rules or the
Exchange Act, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 if the Exchange Act within
the time periods required by the Exchange Act and the regulations
promulgated thereunder.
(viii) Without the prior written consent of CIBC World Markets
Corp., and except as contemplated in the Prospectus and the
Registration Statement, for a period of 90 days after the date of this
Agreement, the Company and each of its individual directors and
executive officers shall not issue, sell or register with the
Commission (other than on Form S-8 or on any successor form), or
otherwise dispose of, directly or indirectly, any equity securities of
the Company (or any securities convertible into, exercisable for or
exchangeable for equity securities of the Company), except for the
issuance of the Shares pursuant to the Registration Statement and the
issuance of shares pursuant to the Company's existing stock option
plan as described in the Registration Statement and the Prospectus. In
the event that during this period, (i) any shares are issued pursuant
to the Company's existing stock option plan or any other employee
benefit plan that are exercisable during such 90 day period or (ii)
any registration is effected on Form S-8 or on any successor form
relating to shares that are exercisable during such 90 period, the
Company shall obtain the written agreement of such grantee or
purchaser or holder of such registered securities that, for a period
of 90 days after the date of this Agreement, such person will not,
without the prior written consent of CIBC World Markets Corp., offer
for sale, sell, distribute, grant any option for the sale of, or
otherwise dispose of, directly or indirectly, or exercise any
registration rights with respect to, any shares of Common Stock (or
any securities convertible into, exercisable for, or exchangeable for
any shares of Common Stock) owned by such person.
(ix) On or before completion of this offering, the Company
shall make all filings required under applicable securities laws and
by the NYSE (including any required registration under the Exchange
Act).
(x) Prior to the Closing Date, the Company will issue no
press release or other communications directly or indirectly and hold
no press conference with respect to the Company, the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of any of them, or the offering of the Shares without the
prior written consent of the Underwriters unless in the judgment of
the Company and its counsel, and after notification to the
Underwriters, such press release or communication is required by law.
- 21 -
(xi) The Company will apply the net proceeds from the offering
of the Shares in the manner set forth under "Use of Proceeds" in the
Prospectus.
(b) The Company agrees to pay, or reimburse if paid by the
Underwriters, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company under this Agreement including those relating to: (i) the preparation,
printing, filing and distribution of the Registration Statement including all
exhibits thereto, the Prospectus, all amendments and supplements to the
Registration Statement and the Prospectus and any document incorporated by
reference therein, and the printing, filing and distribution of this Agreement;
(ii) the preparation and delivery of certificates for the Shares to the
Underwriters; (iii) the registration or qualification of the Shares for offer
and sale under the securities or Blue Sky laws of the various jurisdictions
referred to in Section 6(a)(vi), including the reasonable fees and disbursements
of counsel for the Underwriters in connection with such registration and
qualification and the preparation, printing, distribution and shipment of
preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including
costs of shipping and mailing) to the Underwriters of copies of each Prospectus
and all amendments or supplements to the Prospectus, and of the several
documents required by this Section to be so furnished, as may be reasonably
requested for use in connection with the offering and sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of
the NASD in connection with its review of the terms of the public offering and
reasonable fees and disbursements of counsel for the Underwriters in connection
with such review; (vi) inclusion of the Shares for listing on the NYSE; and
(vii) all transfer taxes, if any, with respect to the sale and delivery of the
Shares by the Company to the Underwriters. Subject to the provisions of Section
9, the Underwriters agree to pay, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated, all costs and expenses
incident to the performance of the obligations of the Underwriters under this
Agreement not payable by the Company pursuant to the preceding sentence,
including, without limitation, the fees and disbursements of counsel for the
Underwriters.
7. Indemnification.
---------------
(a) 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 Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages and liabilities, joint or several
(including any reasonable investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other Federal or state law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto, or
in any Blue Sky application or other information or other documents executed by
the Company filed in any state or other jurisdiction to qualify any or all of
the Shares under the securities laws thereof (any such application, document or
information being hereinafter referred to as a "Blue Sky Application") or arise
--------------------
out of or are based upon any omission or alleged omission to state therein a
material fact
- 22 -
required to be stated therein or necessary to make the statements therein not
misleading, (ii) in whole or in part upon any breach of the representations and
warranties set forth in Section 4 hereof, or (iii) in whole or in part upon any
failure of the Company to perform any of its obligations hereunder or under law;
provided, however, that such indemnity shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) on account of any
losses, claims, damages or liabilities arising from the sale of the Shares to
any person by such Underwriter if such untrue statement or omission or alleged
untrue statement or omission was made in such Registration Statement or
Prospectus, or such amendment or supplement thereto, or in any Blue Sky
Application in reliance upon and in conformity with information furnished in
writing to the Company by CIBC World Markets Corp. on behalf of any Underwriter
specifically for use therein. This indemnity agreement will be in addition to
any liability that the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each director of the Company, and each officer of the Company who
signs the Registration Statement, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which was made in any
Registration Statement or Prospectus, or any amendment thereof or supplement
thereto, in reliance upon and in conformity with information furnished in
writing to the Company by CIBC World Markets Corp. on behalf of any Underwriter
specifically for use therein; provided, however, that the obligation of each
Underwriter to indemnify the Company (including any controlling person, director
or officer thereof) shall be limited to the net proceeds received by the Company
from such Underwriter. For purposes of this paragraph, the only information
contained in the Prospectus furnished by an Underwriter are the third and fourth
to last paragraphs under the caption "Underwriting" in the Prospectus
Supplement.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section, notify each
such indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served. No indemnification provided for in
Section 7(a) or 7(b) shall be available to any party who shall fail to give
notice as provided in this Section 7(c) if the party to whom notice was not
given was unaware of the proceeding to which such notice would have related and
was prejudiced by the failure to give such notice but the omission so to notify
such indemnifying party of any such action, suit or proceeding shall not relieve
it from any liability that it may have to any indemnified party for contribution
or otherwise than under this Section. In case any such action, suit or
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate in, and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and the approval by the indemnified
party of such counsel, the indemnifying party shall not be liable
- 23 -
to such indemnified party for any legal or other expenses, except as provided
below and except for the reasonable costs of investigation subsequently incurred
by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any such action,
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such indemnified party
has been authorized in writing by the indemnifying parties, (ii) the indemnified
party shall have been advised by counsel that there may be one or more legal
defenses available to it which are different from or in addition to those
available to the indemnifying party (in which case the indemnified party may
assume the defense thereof with counsel reasonably satisfactory to such
indemnifying parties and the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified party) or (iii)
the indemnifying parties shall not have employed counsel to assume the defense
of such action within a reasonable time after notice of the commencement
thereof, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying parties. An indemnifying party shall not be liable
for any settlement of any action, suit, proceeding or claim effected without its
written consent, which consent shall not be unreasonably withheld or delayed.
8. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnification provided for in
Section 7(a) or 7(b) is due in accordance with its terms but for any reason is
held to be unavailable to or insufficient to hold harmless an indemnified party
under Section 7(a) or 7(b), then each indemnifying party shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received by any person entitled hereunder
to contribution from any person who may be liable for contribution) to which the
indemnified party may be subject 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 from the offering of the Shares or, if such allocation
is not permitted by applicable law or indemnification is not available as a
result of the indemnifying party not having received notice as provided in
Section 7 hereof, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of underwriting discounts but before deducting expenses) received by the
Company, as set forth in the table on the cover page of the Prospectus, bear to
(y) the underwriting discounts received by the Underwriters, as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company or
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact related to
information supplied by the Company or 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 8
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. Notwithstanding
- 24 -
the provisions of this Section 8, (i) in no case shall any Underwriter (except
as may be provided in the Agreement Among Underwriters) be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder and (ii) the Company shall be liable and
responsible for any amount in excess of such underwriting discount; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person, if any, who controls the Company within
the meaning of the Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) in the
immediately preceding sentence of this Section 8. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section,
notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be sought
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
Section. No party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written consent. The Underwriter's
obligations to contribute pursuant to this Section 8 are several in proportion
to their respective underwriting commitments and not joint.
9. Termination. This Agreement may be terminated with respect to the
-----------
Shares to be purchased on a Closing Date by the Underwriters by notifying the
Company at any time
(a) in the absolute discretion of the Underwriters at or
before any Closing Date: (i) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in the
opinion of the Underwriters will in the future materially disrupt, the
securities markets; (ii) if there has occurred any new outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Underwriters, inadvisable to proceed with the offering; (iii) if there shall
be such a material adverse change in general financial, political or economic
conditions or the effect of international conditions on the financial markets in
the United States is such as to make it, in the judgment of the Underwriters,
inadvisable or impracticable to market the Shares; (iv) if trading in the Shares
has been suspended by the Commission or trading generally on the New York Stock
Exchange, Inc., on the American Stock Exchange, Inc. or the Nasdaq National
Market has been suspended or limited, or minimum or maximum ranges for prices
for securities shall have been fixed, or maximum ranges for prices for
securities have been required, by said exchanges or by order of the Commission,
the National Association of Securities Dealers, Inc., or any other governmental
or regulatory authority; or (v) if a banking moratorium has been declared by any
state or Federal authority; or (vi) if, in the judgment of the Underwriters,
there has occurred a Material Adverse Effect, or
- 25 -
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required by
this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, the Company shall not be under any liability to any Underwriter, and
no Underwriter shall be under any liability to the Company, except that (y) if
this Agreement is terminated by the Underwriters because of any failure, refusal
or inability on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) incurred by them in connection with the proposed
purchase and sale of the Shares or in contemplation of performing their
obligations hereunder and (z) no Underwriter who shall have failed or refused to
purchase the Shares agreed to be purchased by it under this Agreement, without
some reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the Company
or to the other Underwriters for damages occasioned by its failure or refusal.
10. Substitution of Underwriters. If one or more of the Underwriters
----------------------------
shall fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 9) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the nondefaulting Underwriters may find one or more substitute
underwriters to purchase such Shares or make such other arrangements as the
nondefaulting Underwriters may deem advisable or one or more of the
nondefaulting Underwriters may agree to purchase such Shares in such proportions
as may be agreed between or among them, in each case upon the terms set forth in
this Agreement. If no such arrangements have been made by the close of business
on the business day following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then each of
the nondefaulting Underwriters shall be obligated to purchase such Shares on the
terms herein set forth in proportion to their respective obligations hereunder;
provided, that in no event shall the maximum number of Shares that any
Underwriter has agreed to purchase pursuant to Section 1 be increased pursuant
to this Section 10 by more than one-ninth of such number of Shares without the
written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, then the Company
shall be entitled to one additional business day within which it may, but is not
obligated to, find one or more substitute underwriters reasonably satisfactory
to the nondefaulting Underwriters to purchase such Shares upon the terms set
forth in this Agreement.
In any such case, either the nondefaulting Underwriters or the
Company shall have the right to postpone the applicable Closing Date for a
period of not more than five business days in order that necessary changes and
arrangements (including any necessary amendments or supplements to the
Registration Statement or Prospectus) may be effected by the nondefaulting
Underwriters and the Company. If the number of Shares to be purchased on such
Closing Date
- 26 -
by such defaulting Underwriter or Underwriters shall exceed 10% of the Shares
that all the Underwriters are obligated to purchase on such Closing Date, and
none of the nondefaulting Underwriters or the Company shall make arrangements
pursuant to this Section within the period stated for the purchase of the Shares
that the defaulting Underwriters agreed to purchase, this Agreement shall
terminate with respect to the Shares to be purchased on such Closing Date
without liability on the part of any nondefaulting Underwriter to the Company
and without liability on the part of the Company, except in both cases as
provided in Sections 6(b), 7, 8 and 9. The provisions of this Section shall not
in any way affect the liability of any defaulting Underwriter to the Company or
the nondefaulting Underwriters arising out of such default. A substitute
underwriter hereunder shall become an Underwriter for all purposes of this
Agreement.
11. Miscellaneous. The respective agreements, representations,
-------------
warranties, indemnities and other statements of the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Sections 7 and 8 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 6(b), 7, 8
and 9 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the Underwriters
and the Company and their respective successors and assigns, and, to the extent
expressed herein, for the benefit of persons controlling any of the
Underwriters, or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in writing and mailed
or delivered or by telephone or telegraph if subsequently confirmed in writing,
(a) if to the Underwriters, c/o CIBC World Markets Corp., 000 Xxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Equity Capital Markets, with a
copy to Xxxxx X. Xxxxxx, Xxxxxx & Xxxxxx L.L.P., 0000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, and (b) if to the Company, to its agent for service as
such agent's address appears on the cover page of the Registration Statement,
with a copy to Xxx Xxxxx, Pitney, Xxxxxx, Xxxx & Xxxxx LLP, 000 Xxxxxx Xxxxx,
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, applicable to agreements made and to be fully
performed therein.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
[END OF PAGE]
- 27 -
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
NUI CORPORATION
By: /s/ A. Xxxx Xxxxxxxxx
---------------------------
Name: A. Xxxx Xxxxxxxxx
Title: Sr. Vice President,
Chief Operating Officer
and Chief Financial Officer
Confirmed:
CIBC WORLD MARKETS CORP.
X.X. XXXXXXX & SONS, INC.
XXXXXX X. XXXXX & CO. INCORPORATED
By: CIBC WORLD MARKETS CORP.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
- 28 -
SCHEDULE I
Number of Firm
Shares To
Name Be Purchased
---- ------------
CIBC World Markets Corp....................................... 825,000
X.X. Xxxxxxx & Sons, Inc...................................... 450,000
Xxxxxx X. Xxxxx & Co. Incorporated............................ 225,000
---------
Total ............................ 1,500,000
SCHEDULE II
SCHEDULE OF JURISDICTIONS
Jurisdiction of Incorporation
Subsidiary or Organization
---------- -----------------------------
NUI Utilities, Inc. New Jersey
NUI Capital Corp. Florida
Virginia Gas Company Delaware
NUI Saltville Storage, Inc. Delaware
NUI Energy, Inc. Delaware
NUI Energy Brokers, Inc. Delaware
Utility Business Services, Inc. New Jersey
NUI Environmental Group, Inc. New Jersey
NUI Energy Solutions Inc. New Jersey
NUI Sales Management, Inc. Delaware
NUI Services, Inc. New Jersey
NUI International, Inc. Delaware
NUI Telecom, Inc. New Jersey
Virginia Gas Exploration Company Virginia
Virginia Gas Pipeline Company Virginia
Virginia Gas Marketing Company Virginia
Virginia Gas Storage Company Virginia
Virginia Gas Distribution Company Virginia
TIC Enterprises, LLC Delaware
NUI/Caritrade International, L.L.C. Delaware
Saltville Gas Storage Company, LLC Virginia
LOCKUP AGREEMENT
----------------
March 14, 2002
CIBC World Markets Corp.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
c/o CIBC World Markets Corp.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Public Offering of Common Stock of NUI Corporation
--------------------------------------------------
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among NUI Corporation, a
New Jersey corporation (the "Company"), and CIBC World Markets Corp., X.X.
Xxxxxxx & Sons, Inc. and Xxxxxx X. Xxxxx & Co. Incorporated (the "Underwriters")
relating to an underwritten public offering (the "Offering") of common stock, no
par value per share (the "Common Stock"), of the Company.
In order to induce the Company, you and the other Underwriters to enter
into the Underwriting Agreement and to proceed with the Offering, the
undersigned agrees, for the benefit of the Company, you and the other
Underwriters, that should the Offering be effected, the undersigned will not,
for a period of 90 days following the date of the Underwriting Agreement,
without the prior written consent of CIBC World Markets Corp., directly or
indirectly, make any offer, sale, pledge, assignment, transfer, encumbrance,
contract to sell, grant of an option to purchase or other disposition of any
Common Stock beneficially owned (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) by the undersigned on the date
hereof or hereafter acquired.
The undersigned confirms that he or she understands that the
Underwriters and the Company will rely upon the representations set forth in
this agreement in proceeding with the Offering. This agreement shall be binding
on the undersigned and his or her respective successors, heirs, personal
representatives and assigns. The undersigned agrees and consents to the entry of
stop transfer instructions with the Company's transfer agent against the
transfer of
Common Stock or securities convertible into or exchangeable or exercisable for
Common Stock held by the undersigned except in compliance with this agreement.
Very truly yours,
______________________________________
Signature
______________________________________
Printed Name and Title (if applicable)
______________________________________
Social Security or Taxpayer ID No.
______________________________________
Number of shares of Common Stock owned
______________________________________
Number and name of securities that are
convertible into, or exercisable or
exchangeable for, Common Stock
- 2 -
