Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------------
NUI CORPORATION
(Exact name of registrant as specified in its charter)
NEW JERSEY(State or other
jurisdiction of incorporation 22-1869941
or organization) (I.R.S. employer identification
number)
550 Route 202-206
P.O. Box 760
Bedminster, New Jersey 07921-0760
(908) 781-0500
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
JAMES R. VAN HORN, ESQ.
Chief Administrative Officer, General Counsel
and Corporate Secretary
NUI CORPORATION
550 Route 202-206
P.O. Box 760
Bedminster, New Jersey 07921-0760
(908) 781-0500
(Name, address, including zip code, and telephone number,
including
area code, of agent for service)
Copies to:
JOHN F. KUNTZ, ESQ.
BOURNE, NOLL & KENYON, P.A.
382 Springfield Avenue
P.O. Box 690
Summit, New Jersey 07901
(908) 277-2200
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes
effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462 (c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH AMOUNT TO BE OFFERING AGGREGATE REGISTRATION
CLASS OF REGISTERED PRICE PER OFFERING FEE
SECURITIES TO BE SHARE (1) PRICE (1)
REGISTERED
Common Stock, no 113,200 $25.71875 $2,911,362.50 $7,686.00
par value (and shares
associated stock
purchase
rights)(2)
(1) Estimated solely for the purpose of determining the
registration fee. In accordance with Rule 457(c) under the
Securities Act of 1933, the above calculation is based on
the average of the high and low sale prices reported in the
consolidated reporting system of the New York Stock Exchange
on December 13, 1999.
(2) Prior to the occurrence of certain events, the stock
purchase rights will not be evidenced separately from the
Common Stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE
UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
SUBJECT TO COMPLETION, DATED DECEMBER ____, 1999]
113,200 SHARES
NUI CORPORATION
COMMON STOCK
The selling stockholders are offering 113,200 shares of our
common stock. We will not receive any of the proceeds from sales
of shares by the selling stockholders.
Our common stock is listed on the New York Stock Exchange and is
traded under the symbol "NUI". December 13, 1999, the last
reported sale price of our common stock on the New York Stock
Exchange was $25.9375 per share.
The selling stockholders may sell these shares from time to time
on the New York Stock Exchange or otherwise. They may sell the
shares at prevailing market prices or at prices negotiated with
buyers. The selling stockholders will be responsible for any
commissions or discounts due to brokers or dealers. The amount
of those commissions or discounts will be negotiated before the
sales. We will pay all of the other offering expenses, which we
estimate will total $10,636.00.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved our securities
or determined that this prospectus is truthful or complete. It
is illegal for anyone to tell you otherwise.
December , 1999
The information in this prospectus is not complete. It might
change. The selling stockholders may not sell the common stock
until the registration statement we filed with the SEC becomes
effective. This prospectus is not an offer to sell our common
stock, and the selling stockholders are not soliciting offers to
buy our common stock, in any state where the offer or sale is not
permitted.
You should rely only on the information contained in this
prospectus. Neither we nor the selling stockholders have
authorized anyone to provide you with information different from
that contained in this prospectus. The selling stockholders are
offering to sell, and seeking offers to buy, shares of common
stock only in jurisdictions where offers and sales are permitted.
In this prospectus, references to "we," "us" and "our" refer to
NUI Corporation and its subsidiaries.
TABLE OF CONTENTS
PAGE
Prospectus Summary 3
Use of Proceeds 4
Selling Stockholders 4
Plan of Distribution 5
Legal Matters 6
Experts 6
Where You Can Find More Information 6
PROSPECTUS SUMMARY
Because this is only a summary, it does not contain all of the
information that may be important to you. You should read the
entire prospectus, including the information incorporated by
reference, before deciding to invest in shares offered by this
prospectus.
NUI CORPORATION
OUR BUSINESS We are a multi-state energy, sales
services and distribution company. Our
natural gas utility distribution
operations currently serve approximately
366,000 customers in New Jersey,
Florida, North Carolina, Maryland,
Pennsylvania and New York.
We also provide retail gas and related
services, wholesale energy brokerage and
related services, energy project
development and consulting,
environmental project development
services, customer account management
and field operations systems and
services, and full service
telecommunication services through our
subsidiary companies.
Sales and marketing outsourcing services
are also made available through our
investment in T.I.C. Enterprises, L.L.C.
OUR ADDRESS: Our principal executive offices are
located at 550 Route 202-206, P.O. Box
760, Bedminster, New Jersey
07921-0760. Our telephone number is
(908) 781-0500. Our website is located
at www.nui.com. Information contained
in our website is not a part of this
prospectus.
THE OFFERING
COMMON STOCK OFFERED: All of the 113,200 shares of our common
stock offered by this prospectus are
being sold by the selling stockholders.
The selling stockholders are former
stockholders of International Telephone
Group, Inc. who received these shares in
connection with our acquisition of
International Telephone Group, Inc. on
November 12, 1999.
USE OF PROCEEDS: We will not receive any of the proceeds
from sales of shares by the selling
stockholders.
USE OF PROCEEDS
All of the shares of common stock offered by this prospectus are
being offered by the selling stockholders. For information about
the selling stockholders, see "Selling Stockholders." We will not
receive any proceeds from sales of these shares.
SELLING STOCKHOLDERS
One of the selling stockholders, Richard M. Boudria, is the
founder, President and a former stockholder of International
Telephone Group, Inc. Mr. Boudria is offering all of the shares
he acquired as the result of our acquisition of International
Telegraph on November 12, 1999. These shares are being
registered in accordance with the provisions of a registration
rights declaration entered into by us in connection with the
acquisition of International Telegraph. Mr. Boudria continues to
serve as President and Chief Executive Officer of International
Telegraph.
The other selling stockholders are the other former stockholders
of International Telegraph to whom a total of 66,995 shares of
the offered shares were delivered in connection with our
acquisition International Telegraph and are being registered in
accordance with the provisions of a registration rights
declaration entered into by us in connection with that
acquisition. The following table sets forth certain information
with respect to the beneficial ownership of our common stock by
the selling stockholders as of December 13, 1999 and as adjusted
to reflect the sale of all of the shares of common stock offered
by this prospectus. We expect to withdraw registration of any
unsold shares on or shortly after November 12, 2000, when we
expect the shares will become eligible for public sale under an
exemption from registration provided by Rule 144 under the
Securities Act of 1933.
SHARES TO BE
SHARES NUMBER BENEFICIALLY OWNED
BENEFICIALLY OF AFTER OFFERING IF
OWNED SHARES ALL
PRIOR TO OFFERING BEING SHARES SOLD
(1) OFFERED (1)
NAME NUMBER PERCENT NUMBER PERCENT
Richard M. 46,205 * 46,205 - *
Boudria
Thomas F. Kane 24,071 * 24,071 - *
George F. 13,116 * 13,116 - *
Burns, Jr.
Laura W. 7,154 * 7,154 - *
Danforth Trust
Christopher J. 2,980 * 2,980 - *
Lange
Harold R. 19,674 * 19,674 - *
Hiser, Jr.
* Percentage of shares beneficially owned is less than 1.0%.
(1) Beneficial ownership is determined in accordance with
the rules of the SEC and generally includes voting or
investment power with respect to securities. Except as
indicated, each of the selling stockholders possesses sole
voting and investment power with respect to all of the
shares of common stock owned by them, subject to community
property laws where applicable. Percentage of beneficial
ownership is based on 12,812,121 shares of common stock
outstanding as of November 30, 1999.
PLAN OF DISTRIBUTION
The shares offered by this prospectus may be sold from time to
time by selling stockholders, who consist of the persons named
under "Selling Stockholders" above and those persons, pledgees,
donees, transferees or other successors in interest. The selling
stockholders may sell the shares on the New York Stock Exchange
or otherwise, at market prices or at negotiated prices. They may
sell shares by anyone of, or by a combination of, the following
ways:
- a block trade in which a broker or dealer engaged to sell
the shares will attempt to sell the shares as agent, but may
position and resell a portion of the block as principal to
facilitate the transaction;
- purchases by a broker or dealer as principal and resale by
the broker or dealer for its account pursuant to this
prospectus; and
- ordinary brokerage transactions and transactions in which a
broker solicits purchasers.
In effecting sales, brokers or dealers engaged by the selling
stockholders may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions or
discounts from selling stockholders in amounts to be negotiated
prior to the sale. The selling stockholders and any broker-
dealers that participate in the distribution may be deemed to be
"underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933, and any proceeds or commissions received
by them, and any profits on the resale of shares sold by broker-
dealers, may be deemed to be underwriting discounts and
commissions.
If any selling stockholder notifies us that a material
arrangement has been entered into with a broker-dealer for the
sale of shares through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker
or dealer, we will file, a prospectus supplement, if required
pursuant to Rule 424(c) under the Securities Act of 1933, setting
forth:
- the name of each of the participating broker-dealers,
- the number of shares involved,
- the price at which the shares were sold,
- the commissions paid or discounts or concessions allowed to
the broker-dealers, where applicable,
- a statement to the effect that the broker-dealers did not
conduct any investigation to verify the information set out
or incorporated by reference in this prospectus, and
- any other facts material to the transaction.
LEGAL MATTERS
Bourne, Noll & Kenyon, P.A., Summit, New Jersey, has advised us
with respect to the validity of the shares of common stock
offered by this prospectus.
EXPERTS
Our consolidated balance sheets as of September 30, 1997 and 1998
and our related consolidated statements of operations,
stockholders' equity and cash flows for the years ended September
30, 1996, 1997 and 1998 incorporated by reference in this
prospectus from our Annual Report on Form 10-K for the fiscal
year ended September 30, 1998 have been audited by Arthur
Andersen LLP, independent public accountants, to the extent and
for the periods indicated in their reports included in that Form
10-K and are incorporated by reference in this prospectus in
reliance upon the authority of Arthur Andersen LLP as experts in
giving those reports.
WHERE YOU CAN FIND MORE INFORMATION
We file annual reports, quarterly reports, current reports, proxy
statements and other information with the SEC. You may read and
copy our SEC filings at the SEC's public reference room at 450
Fifth Street, N.W., Washington D.C. 20549. You may call the SEC
at 1-800-SEC-0330 for further information about the public
reference room. Our SEC filings also are available on the SEC's
website at http://www.sec.gov.
The SEC allows us to "incorporate by reference" information from
certain of our other SEC filings. This means that we can disclose
information to you by referring you to those other filings, and
the information incorporated by reference is considered to be
part of this prospectus. In addition, certain information that we
file with the SEC after the date of this prospectus will
automatically update, and in some cases supersede, the
information contained or otherwise incorporated by reference in
this prospectus. We are incorporating by reference the
information contained in the following SEC filings:
- our Annual Report on Form 10-K for the fiscal year ended
September 30, 1998 (as filed on December 28, 1998);
- our Quarterly Reports on Form 10-Q for the fiscal quarter
ended December 31, 1998 (as filed on February 12, 1999); for
the fiscal quarter ended March 31, 1999 (as filed on May 14,
1999); and for the fiscal quarter ended June 30, 1999 (as
filed on August 13, 1999);
- our definitive Proxy Statement (as filed on December 24,
1998) used in connection with our Annual Meeting of
Stockholders held on January 26, 1999;
- the description of our common stock and associated stock
purchase rights is contained in our Registration Statement
on Form 8-A (as filed on December 1, 1995); and
- any filings we make with the SEC under Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the
date of this prospectus (information in these filings will
be incorporated as of the filing date).
You may request copies of these filings, at no cost, by
writing, telephoning or e-mailing our Manager of Investor
Relations as follows:
NUI Corporation
550 Route 202-206
P.O. Box 760
Bedminster, New Jersey 07921-0760
Attention: Linda S. Lennox, Director of Corporate
Communications and Investor Relations
Telephone: (908) 719-4222
E-mail: [email protected]
This prospectus is part of a Registration Statement on Form S-3
we filed with the SEC under the Securities Act of 1933. This
prospectus does not contain all of the information contained in
the Registration Statement.
Some of the information in this prospectus contains forward-
looking statements that involve substantial risks and
uncertainties. You can identify these statements by forward-
looking words such as "may," "will," "expect," "anticipate,"
"believe," "estimate," "continue" and similar words. You should
read statements that contain these words carefully because they
(1) discuss our future expectations, (2) contain projections of
our future operating results or financial condition or (3) state
other "forward-looking" information. We believe it is important
to communicate certain of our expectations to our investors.
There may be events in the future, however, that we are not
accurately able to predict or over which we have no control.
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses to be paid by
the Registrant in connection with the issuance and distribution
of the shares of common stock being registered. All amounts shown
are estimates except for the Securities and Exchange Commission
registration fee. The Registrant will pay all expenses in
connection with the distribution of the shares of common stock
being sold by the selling stockholders (including fees and
expenses of counsel for the Registrant), except for any
commissions or discounts due to any broker or dealer in
connection with sales of shares offered by this prospectus.
Securities and Exchange Commission registration fee $ 7,686.00
Accounting fees and expenses -0-
Legal fees and expenses 2,500.00
Printing, EDGAR formatting and mailing expenses 500.00
Miscellaneous -0-
--------
Total $10,686.00
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized under New Jersey law, the Registrant's certificate
of incorporation provides that a director or officer shall not be
personally liable to the corporation or its shareholders for
monetary damages for a breach of fiduciary duty owed to the
corporation, except to the extent that such exemption from, or
limitation of, liability is not permitted under the New Jersey
Business Corporation Act, as amended.
Under its certificate of incorporation, the Registrant is
required, to the fullest extent permitted by the New Jersey
Business Corporation Act or any other law, to indemnify and hold
harmless its directors, officers, employees and agents. The New
Jersey Business Corporation Act provides that a corporation may
indemnify its directors, officers, employees or agents against
judgments, fines penalties, amounts paid in settlement and
expenses, including attorney's fees, resulting from various types
of legal actions or proceedings if the party being indemnified
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, and
in any criminal proceeding, such party being indemnified had no
reasonable cause to believe his conduct was unlawful.
Determinations concerning whether the applicable standard of
conduct has been met can be made by (a) a disinterested majority
of the board of directors, (b) independent legal counsel in a
written opinion, or (c) an affirmative vote of a majority of
shares held by the shareholders. In proceedings by or in the
right of the corporation, a party seeking to be indemnified, when
the above standards of conduct are found as set forth in the
previous sentence, may be indemnified for expenses. However, if
the court judges a party seeking to be indemnified liable to the
corporation, no indemnification shall be provided except as the
court deems proper. A party seeking to be indemnified must be
indemnified against expenses by the corporation to the extent
such party has been successful on the merits or otherwise in a
proceeding arising out of such party's duties. A corporation may
pay the expenses incurred by a party seeking to be indemnified in
advance of final disposition of the proceeding if such payments
are authorized by the board of directors of the corporation upon
the receipt of an undertaking by or on behalf of such party to
repay such amount if it shall be ultimately determined that such
party is not entitled to indemnification under the New Jersey
Business Corporation Act.
The Registrant has insurance policies covering certain of its
liabilities and expenses which might arise in connection with its
lawful indemnification of its directors and officers for certain
of their liabilities and expenses. In addition, the Registrant
carries liability insurance on behalf of its directors and
officers against expenses incurred in any proceeding and any
liabilities asserted against them by reason of their being or
having been a director or officer.
ITEM 16. EXHIBITS
EXHIBIT NO.
5.1* Opinion of Bourne, Noll & Kenyon, P.A.
23.1 Consent of Arthur Andersen LLP
23.2*Consent of Bourne, Noll & Kenyon, P.A. (included in
Exhibit 5.1)
24.1 Powers of Attorney
99.1 Declaration of Registration Rights made as of
August 16, 1999 by NUI Corporation for the benefit of former
stockholders of International Telephone Group, Inc.
*To be filed by amendment.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i)To include any prospectus required to Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the Registration
Statement is on Form S-3, Form S-8, or Form F-3, and
the information required to be included in a post-
effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration, by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference to
the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against
public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the
Township of Bedminster, State of New Jersey, as of December 15,
1999.
NUI CORPORATION
By /s/ John Kean, Jr.
John Kean, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities indicated as of December 15, 1999.
/s/ John Kean, Jr.
John Kean, Jr.
President and Chief Executive Officer
/s/ A. Mark Abramovic
A. Mark Abramovic
Senior Vice President, Chief Operating Officer
and Chief Financial Officer (Principal Financial
and Accounting Officer)
* *
John Kean, Chairman and Director Dr. Vera King Farris, Director
* *
James J. Forese, Director J. Russell Hawkins, Director
* *
Dr. Bernard S. Lee, Director R. Van Whisnand, Director
*
John Winthrop, Director
By: /s/ John Kean, Jr.
John Kean, Jr., Attorney-in-Fact
EXHIBIT INDEX
TABLE CAPTION
EXHIBIT NO. DESCRIPTION PAGE NO.
*5.1 Opinion of Bourne, Noll & Kenyon, P.A.
regarding the legality of the securities
being issued *
23.1 Consent of Arthur Andersen, LLP EX-1
*23.2 Consent of Bourne, Noll & Kenyon, P.A. -
included as Exhibit S of this Registration
Statement *
24.1 Power of Attorney EX-2
99.1 Declaration of Registration Rights by NUI
Corporation for the benefit of the former
stockholders of Interest on Telephone Group,
Inc. EX-3
*To be filed by Amendment
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on
Form S-3 of our reports included in the Annual Report on Form
10-K of NUI Corporation for the fiscal year ended September 30,
1998 and to all references to our firm in this Registration
Statement.
/s/ ARTHUR ANDERSEN LLP
New York, New York
December 15, 1999
EXHIBIT 24.1
POWER OF ATTORNEY
We, the undersigned officers and directors of NUI Corporation,
hereby severally constitute and appoint John Kean, Jr. and James
R. Van Horn, and each of them severally, our true and lawful
attorneys with full power to them, and each of them singly, to
sign for us and in our names in the capacities indicated below,
the Registration Statement on Form S-3 filed herewith and any
and all pre-effective and post-effective amendments to said
Registration Statement, and any subsequent Registration
Statement for the same offering which may be filed under Rule
462(b) under the Securities Act of 1933 and generally to do all
such things in our names and on our behalf in our capacities as
officers and directors to enable NUI Corporation to comply with
the provisions of the Securities Act of 1933 and all
requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by
our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto or to any
subsequent Registration Statement for the same offering which
may be filed under said Rule 462(b).
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following
persons in the capacities indicated as of December 15, 1999.
SIGNATURE TITLE
/s/ John Kean Chairman and Director
JOHN KEAN
/s/ Vera King Farris Director
DR. VERA KING FARRIS
/s/ James J. Forese Director
JAMES J. FORESE
/s/ J. Russell Hawkins Director
J. RUSSELL HAWKINS
/s/ Bernard S. Lee Director
DR. BERNARD S. LEE
/s/ R. Van Whisnand Director
R. VAN WHISNAND
/s/ John Winthrop Director
JOHN WINTHROP
EXHIBIT 99.1
NUI CORPORATION
DECLARATION OF REGISTRATION RIGHTS
DECLARATION made as of August 16, 1999 by NUI Corporation,
a New Jersey corporation ("NUI"), for the benefit of
stockholders of International Telephone Group, Inc., a New
Jersey corporation ("ITG"), acquiring shares of common
stock of NUI pursuant to the Agreement and Plan of Merger
dated as of August 16, 1999 (the "Merger Agreement") by and
among NUI, NUI Acquisition Corp., ITG and the Stockholders
of ITG.
1. Certain Defined Terms.
Capitalized terms used herein shall have the respective
meanings ascribed to them in the Merger Agreement, unless
the content requires otherwise. In addition, as used in
this Declaration, the following additional terms have the
following meanings:
"Exchange Act" means the Securities Exchange Act of 1934,
as amended
"Form S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under
the Securities Act subsequently adopted by the SEC that
similarly permits inclusion or incorporation of
substantial information by reference to other documents
filed by NUI with the SEC.
"Holders" means (a) the record holders of the Company
Common Stock to whom Registrable Shares are being issued
pursuant to the Merger Agreement, and (b) any of such
record holders' respective family members, and trusts
wholly or principally for the benefit of family members,
to whom such holders transfer record ownership of any of
the Registrable Shares.
"Indemnified Party" has the meaning set forth in Section 6.3
"Indemnifying Party" has the meaning set forth in Section 6.3
"Registrable Shares" means, with respect to a Holder, (a)
the shares of NUI Common Stock issued or issuable to such
Holder as a stockholder of the Company constituting the
Per Share Price and the Additional Per Share Price
pursuant to the Merger Agreement, (b) any other
securities issued by NUI in exchange for any Registrable
Shares and (c) any shares of NUI Common Stock issued as a
dividend or distribution on account of Registrable Shares
or resulting from a subdivision of outstanding
Registrable Shares into a greater number of securities
(by reclassification, stock split or otherwise), provided
that a security that was at one time a Registrable Share
shall cease to be a Registrable Share when (a) it has
been effectively registered under the Securities Act and
has been disposed of pursuant to a registration statement
or (b) it has been transferred and is no longer held of
record by a Holder.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Shelf Registration" has the meaning set forth in Section
2.1.
2. Registrations
2.1 Shelf Registration As soon as practicable after the
Closing Date of the Merger, but no later than thirty
(30) days after such Closing date, NUI shall use its
reasonable best efforts to (a) prepare and file a
registration statement (the Shelf Registration:) for
an offering to be made on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act
(or any similar rule that may be adopted by the SEC),
and permitting sales in ordinary course brokerage or
dealer transactions not involving an underwritten
public offering and covering registration of the
resale of all of the Registrable Shares, (b) cause
such registration statement to become effective as
soon as practicable after filing and (c) subject to
Section 3.2, keep such registration statement
continuously effective through the later of November
12, 2000 or the first anniversary of the date of
delivery of shares of NUI Common Stock under Section
1.06 of the merger Agreement, if any (the
"Effectiveness Period". In no event shall NUI have
any obligation to keep such registration statement in
effect beyond the Effectiveness period, unless
otherwise extended pursuant to the terms hereof. If a
Holder shall propose to sell any Registrable Shares
pursuant to a registration statement filed pursuant to
this Section 2.1, it shall notify NUI of its intent to
do so at least three full business days prior to such
sale. NUI shall not be required to effect more than
one registration under this Section 2.1.
3. Obligations of NUI.
3.1 General Obligations. In connection with registrations
pursuant to Section 2, and subject to the limitations of
that Section, NUI shall:
(a) prepare and file with the SEC the registration
statement in accordance with Section 2 with
respect to Registrable Shares and use its
reasonable best efforts to cause such
registration statement to become effective as
promptly as practicable after filing in the
manner provided in Section 2 and, in the case of
registrations under Section 2.1, to keep such
registration statement continually effective as
provided therein;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and
the prospectus used in connection therewith as
may be necessary, and comply with the provisions
of the Securities Act with respect to the sale or
other disposition of all Registrable Shares
registered in such registration statement;
(c) furnish to each Holder, without charge, such
number of copies of any prospectus (including any
preliminary prospectus and any amended or
supplemented prospectus) in conformity with the
requirements of the Securities Act, and such
other documents, as such Holder may reasonably
request in order to effect the offering and sale
of the Registrable Shares to be offered and sold,
but only while NUI shall be required under the
provisions hereof to cause the registration
statement to remain current; and
(d) use its reasonable best efforts to register or
qualify the Registrable Shares covered by such
registration statements under the securities or
blue sky laws of such jurisdictions as each
Holder shall reasonably request provided that NUI
shall not be required in connection therewith or
as a condition thereto to qualify to do business
or to file a general consent to service of
process in any such jurisdiction where it has not
been qualified).
(e) cause all Registrable Shares covered by a
registration statement to be listed on the New
York Stock Exchange or any other national
securities exchange or quotation system, if any,
upon which NUI Common Stock is then trading or
being listed.
3.2 Notification Obligations. NUI shall promptly notify
each Holder whose shares of Registrable Shares are covered
by a registration statement hereunder.
(a) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and,
with respect to the registration statement or any
post-effective amendment, when the same has
become effective;
(b) of any request by the SEC or any other federal or
state governmental authority during the period of
effectiveness of the registration statement for
amendments or supplements to the registration
statement or related prospectus or for additional
information relating to the registration
statement;
(c) of the issuance by the SEC or any other federal
or state governmental authority of any stop order
suspending the effectiveness of the registration
statement or the initiation of any proceedings
for that purpose;
(d) of the receipt by NUI of any notification with
respect to the suspension of the qualification or
exemption from qualification of any of the
Registrable Shares for sale in any jurisdiction
or the initiation or threatening of any
proceeding for such purpose; or
(e) of the happening of any event which makes any
statement made in the registration statement or
related prospectus or any document incorporated
or deemed to be incorporated therein by reference
untrue in any material respect or which requires
the making of any changes in the registration
statement or prospectus so that, in the case of
the registration statement, it will not contain
any untrue statement of a material fact or omit
to state any material fact required to be stated
therein or necessary to make the statements
therein not misleading, and that in the case of
the prospectus, it will not contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading.
Upon the happening of any event of the kind described in
clause (b), (c), (d) or (e) above or any other event that,
in the good faith judgment of NUI's Board of Directors,
renders it advisable to suspend use of any prospectus due
to pending corporate developments, public filings with the
SEC or similar material events, NUI may suspend use of the
prospectus on written notice to the Holders (in which case
each Holder shall discontinue disposition of Registrable
Shares covered by a registration statement or prospectus
until copies of a supplemented or amended prospectus are
distributed to the Holders or until the Holders are advised
in writing by NUI that the use of the applicable prospectus
may be resumed). Subject to the last sentence of this
paragraph, any such suspension or suspensions shall be for
no more than sixty days in the aggregate but no more than
thirty continuous days, provided that such time
restrictions shall not apply if the happening is beyond
NUI's reasonable control and provided further that NUI may
suspend such use for up to thirty additional days in
connection with a then proposed underwritten public
offering and provided further that the Effectiveness Period
shall be extended by the number of days during such period
that the registration statement failed to be effective.
NUI shall use its reasonable best efforts to ensure that
the use of the prospectus may be resumed as soon as
practicable. NUI shall use its reasonable best efforts to
obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting
of any suspension of the qualification (or exemption from
qualification) of any of the securities for sale in any
jurisdiction, at the earliest practicable time. NUI shall,
upon the occurrence of any recent contemplated by clause
(e) above, prepare a supplement or post-effective amendment
to the registration statement or a supplement to the
related prospectus or any document incorporated therein by
reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable
Shares being sold thereunder, such prospectus will not
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3.3. Reports Under Exchange Act. NUI agrees to (a) use its
reasonable best efforts to file with the SEC in a timely
manner all reports and other documents required of NUI
under the Securities Act and the Exchange Act and (b)
furnish to each Holder forthwith upon request (i) a written
statement by NUI that it has complied with the reporting
requirements of the Securities Act and the Exchange Act or
that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3, (ii) a copy of the most recent
annual report of NUI and (iii) such other information as
may be reasonably requested in availing each Holder of any
rule or regulation of the SEC which permits the selling of
any such securities pursuant to Form S-3.
4. Obligations of Holders.
4.1 Relating to Shelf Offerings. In order for any
Registrable Shares of a Holder to be included in any Shelf
Registration pursuant to Section 2.1, each Holder shall
provide all such information and materials to NUI and take
all such action as may be required in order to permit NUI
to comply with all applicable requirements of the SEC and
any state securities commission or bureau and to obtain the
effectiveness of and any desired acceleration of the
effective date of such registration statement. Such
provision of information and materials is a condition
precedent to the obligations of NUI pursuant to this
Section 4.2; provided that NUI shall have used its
reasonable best efforts to provide reasonable advance
notice of the need for such information, materials or
actions and shall have afforded each Holder a reasonable
opportunity to provide such information and materials and
to take such action.
4.2 General. By exercising any rights hereunder, each
Holder shall be deemed to assume all obligations of a
Holder hereunder as through such Holder were a signatory
hereto. NUI may require any Holder to execute an
instrument whereby such Holder expressly assumes all
obligations of such Holder hereunder as a condition
precedent to any obligations of NUI to such Holder
hereunder.
5. Expenses
NUI shall pay all expenses incident to its performance of
or compliance with this Declaration, regardless of whether
any registration becomes effective, including (a) all
registration and filing fees of the SEC, the National
Association of Securities Dealers, Inc. and the New York
Stock Exchange, (b) all fees and expenses incurred in
complying with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection
with blue sky qualifications of the Registrable Shares),
(c) all printing, messenger and delivery expenses, (d) all
fees and expenses of NUI's transfer agent and registrar,
(e) all fees and disbursements of NUI's independent public
accountants and counsel and (f) all fees and expenses of
any special experts retained by NUI in connection with any
registration pursuant to the terms of this Declaration;
provided, however, that the Holders shall be liable for (A)
any fees or commissions of brokers, dealers or
underwriters, (B) any transfer taxes and (c) any fees or
expenses of consultants, financial advisors, counsel and
other professionals acting on behalf of the Holders in
connection with any registration pursuant to the terms of
this Declaration.
6. Indemnification
In the event of any offering registered pursuant to this
Declaration:
6.1 controlling a Holder (within the meaning of Section 15
of the Securities Act and Section 20(a) of the Exchange
Act), and the respective representatives and agents of each
Holder or any person controlling a Holder against all
claims, losses, damages and liabilities (or actions in
respect thereof), including any of the foregoing incurred
in settlement of any litigation, commenced or threatened,
(including, but not limited to, attorneys fees) arising out
of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration
statement, prospectus, or any amendment or supplement
thereto, incident to any offering registered pursuant to
this Declaration, or based on any omission (or alleged
omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein,
in light of the circumstances in which they are made, not
misleading, or any violation by NUI of any rule or
regulation promulgated under the Securities Act, or state
securities laws applicable to NUI in connection with any
such registration, and, will reimburse each such Holder,
and each person controlling such Holder, for any legal and
any other out-of-pocket expenses reasonably incurred in
connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, provided
that NUI will not be liable in any such case to the extent
that any such claim, loss, damage or liability arises out
of or is based on any untrue statement or omission or
alleged untrue statement or omission, made in reliance upon
and in conformity with written information furnished to NUI
by such Holder or controlling person and stated to be
specifically for use therein.
6.2 Each Holder will, if Registrable Shares held by such
Holder are included in the securities as to which such
registration, qualification or compliance is being
effected, indemnify NUI, each of its directors and officers
and its legal counsel and independent accountants, each
underwriter, if any, of NUI's securities covered by such a
registration statement, each person who controls NUI or
such underwriter within the meaning of Section 15 of the
Securities Act and Section 20(a) of the Exchange Act, and
each such Holder, and such Holder's legal counsel and
independent accountants, against all claims, losses,
damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged
untrue statement) or a material fact contained in any such
registration statement, prospectus, offering circular or
any amendment or supplement thereto, or any omission (or
alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, and will reimburse NUI, such
Holders, such directors, officers, legal counsel,
independent accountants, underwriters or control persons
for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim,
loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement,
prospectus, offering circular or any amendment or
supplement thereto in reliance upon and in conformity with
written information furnished to NUI by such Holder and
stated to be specifically for use therein; provided,
however, that the obligations of such Holders hereunder
shall be limited to an amount equal to the respective net
proceeds after expenses and commissions to each such Holder
of Registrable Shares sold as contemplated herein.
6.3 Each party entitled to indemnification under this
Section 6.3 (the "Indemnified Party") shall give notice to
the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party
receives written notice of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation
resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not be unreasonably withheld),
and the Indemnified Party my participate in such defense at
such Indemnified Party's expense, and provided further that
the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of
its obligations under this Declaration, except to the
extent, but only to the extent, that the Indemnifying
Party's ability to defend against such claim or litigation
is impaired as a result of such failure to give notice.
Notwithstanding the foregoing sentence, the Indemnified
Party may retain its own counsel to conduct the defense of
any such claim or litigation, and shall be entitled to be
reimbursed by the Indemnifying Party for expenses
reasonably incurred by the Indemnified Party in defense of
such claim or litigation, in the event that the
Indemnifying Party does not assume the defense of such
claim or litigation within sixty days after the
Indemnifying Party receives notice thereof from the
Indemnified Party. Further, an Indemnifying Party shall be
liable for amounts paid in settlement of any such claim or
litigation only if the Indemnifying Party consents in
writing to such settlement (which consent shall not be
reasonably withheld). No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with
the consent of each Indemnified Party, consent to entry of
any judgment or enter any settlement which does not include
as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party a release from all
liability in respect to such claim or litigation.
6.5 The obligations of NUI and each holder under this
Section 6.4 shall survive the completion of any offering of
stock in a registration statement under this Declaration
and otherwise.
7. Miscellaneous.
7.1 Amendment: Waiver. This Declaration, or any provision
of this Declaration, may be amended or waived from time to
time only upon the mutual written agreement of NUI and
Holders who then owning of record a majority of the
Registrable Shares. No delay or omission by any party to
exercise any right or power hereunder shall impair such
right or power or be construed to be a waiver thereof. A
waiver by any of the parties hereto of any of the covenants
to be performed by the other or any breach thereof shall
not be construed to be a waiver of any subsequent breach or
of any other covenant contained in this Declaration.
7.2 Notices. Notices and other communications by a party
under this Declaration shall be in writing and hand-
delivered, deposited with an overnight carrier for next day
delivery, addressed to the parties as follows (or to such
other addresses as any party may designate from time to
time in writing):
To NUI Corporation: NUI Corporation
550 Route 202-206
P. O. Box 760
Bedminster, New Jersey 07921-0760
Attention: General Counsel
To the Stockholders: c/o Richard Boudria
International Telephone Group, Inc.
1500 Mount Kemble Avenue
Morristown, New Jersey 07960
With copies to: Gibbons, Del Deo, Dolan, Griffinger &
Vecchione
One Riverfront Plaza
Newark, NJ 07102
Attention: Frank B. Reilly, Jr., Esq.
And shall be deemed given when received.
7.3 Assignment of Rights. The rights of any Holders to
cause NUI to register Registrable Shares pursuant to this
Declaration may not be assigned by the Holders to any
person or entity, except that a Holder may transfer its
rights hereunder in connection with a transfer to any of
such record holders' respective family members and trusts
wholly or principally for the benefit of family members to
who such holders transfer record ownership of any of the
Registrable Shares.
7.4 Construction. Titles or captions of Sections
contained in this Declaration are inserted only as a matter
of convenience and for reference, and in no way define,
limit, extend or describe the scope of this Declaration or
the intent or any provision of this Declaration. The words
"herein" and "hereof" and other words of similar import
refer to this Declaration as a whole and not to any
particular part of this Declaration. The word "including"
as used herein shall not be construed so as to exclude any
other thing not referred to or described. All references
herein to Sections shall be deemed references to sections
of this Declaration, except as otherwise provided.
