Registration No. 333-92817
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
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.
THIS REGISTRATION STATEMENT SHALL HEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933.
SUBJECT TO COMPLETION, DATED January , 2000
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". On January 3, 2000, the last
reported sale price of our common stock on the New York Stock
Exchange was $25.375 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.
January ____, 2000
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 of 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 January 1, 2000 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 SHARES TO BE
BENEFICIALLY BENEFICIALLY OWNED
OWNED PRIOR NUMBER OFFERING IF ALL
TO OFFERING(1) OF SHARES SHARES SOLD(1)
BEING
NAME NUMBER PERCENT OFFERED 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, 1998 and 1999
and our related consolidated statements of operations,
stockholders' equity and cash flows for the years ended
September 30, 1997, 1998 and 1999 incorporated by reference in
this prospectus from our Annual Report on Form 10-K for the
fiscal year ended September 30, 1999 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, 1999 (as filed on December 21, 1999);
- our current report on Form 8-K dated December 6, 1999 (as
filed on December 15, 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.
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 January 10,
2000.
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 January 10, 2000.
/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 EX-1
23.1 Consent of Arthur Andersen, LLP EX-3
23.2 Consent of Bourne, Noll & Kenyon, P.A. -
included as Exhibit 5.1 of this Registration
Statement --
24.1 Power of Attorney Previously
Filed
99.1 Declaration of Registration Rights by NUI
Corporation for the benefit of the former
stockholders of Interest on Telephone Group,
Inc. Previously
Filed
Exhibit 5.1
Opinion of Counsel
January 5, 2000
NUI Corporation
550 Route 202-206
P.O. Box 760
Bedminster, NJ 07921-0760
Ladies and Gentlemen:
We have acted as special counsel for NUI Corporation, a New
Jersey corporation (the "Company") in connection with the
preparation and filing with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, of a registration
statement on Form S-3, as amended by Amendment No. 1 thereto (the
"Registration Statement") relating to the offering of up to 113,200
shares (the "Shares") of the Company's common stock, no par value,
together with associated stock purchase rights, by certain
stockholders of the Company.
In arriving at the opinion expressed, therein, we have
examined and relied on:
(i) The Registration Statement;
(ii) The Certificate of Amendment of Restated Certificate
of Incorporation;
(iii) The Amended and Restated By-Laws of the Company; and
(iv) Minutes of the meetings of the Board of Directors of
the Company, including a meeting held on July 27,
1999.
In addition, we have examined and relied on the originals or
copies certified or otherwise identified to our satisfaction of all
other records, documents and instruments of the Company and such
other persons, and we have made such investigations of law, as we
have deemed appropriate as a basis for the opinions expressed
below. We have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the
conformity to the original documetns of all documents submitted to
us as certified or photostatic copies.
We express no opinion other than as to the corporation laws of
the State of New Jersey.
Based upon the foregoing, we are of the opinion that the
Shares have been duly authorized and validly issued and are fully
paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5.2 to
the Registration Statement and to the reference to us under the
heading "Legal Matters" in the prospectus forming a part of the
Registration Statement.
Very truly yours,
/S/ BOURNE, NOLL & KENYON
BOURNE, NOLL & KENYON
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,
1999 and to all references to our firm in this Registration
Statement.
/s/ ARTHUR ANDERSEN LLP
New York, New York
January 10, 2000
