As filed
with the United States Securities and Exchange Commission on May 13,
2010
Registration Statement No.
333-166425
UNITED STATES SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON,
DC 20549
_______________________________
AMENDMENT
NO. 1 TO
FORM S-3
FORM S-3
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
_______________________________
MIDDLESEX
WATER COMPANY
(Exact
name of registrant as specified in its charter)
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New
Jersey
(State
or other jurisdiction of incorporation or
organization)
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22-1114430
(I.R.S.
Employer Identification Number)
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1500
Ronson Road, Iselin, New Jersey 08830
(732)
634-1500
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
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_______________________________
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A.
BRUCE O’CONNOR
Vice
President and Chief Financial Officer
Middlesex
Water Company
1500
Ronson Road, Iselin, New Jersey 08830-3020
(732)
638-7502
(Name,
address, including zip code. and telephone number, including area code, of
agent for service)
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_______________________________
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With
Copies to:
DOUGLAS
R. BROWN, ESQ.
Norris,
McLaughlin & Marcus, P.A.
721
Route 202-206, P.O. Box 5933
Bridgewater,
New Jersey 08807
(908)722-0700
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_______________________________
Approximate date of commencement of
proposed sale to the public: From time to time after this Registration
Statement becomes effective, as determined by market conditions and other
matters.
_______________________________
If only
securities being registered on this Form are being offered pursuant to dividend
or 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 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 this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
Indicate
by checkmark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer or a smaller reporting company:
¨ Large
accelerated filer
x Accelerated
filer
¨ Non-accelerated
filer
¨ Smaller
reporting company
THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
THE CASE 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.
The
information in this preliminary prospectus is not complete and may be changed.
We may not sell these securities until the Registration Statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting offers to buy these
securities in any state where the offer is not permitted.
SUBJECT
TO COMPLETION, DATED MAY 13, 2010
PROSPECTUS
5,000,000
Shares of
Common
Stock
This
prospectus relates to 5,000,000 shares of our common stock that we may sell from
time to time in one or more offerings. This prospectus will allow us
to issue and sell shares over time. We will provide a prospectus
supplement each time we issue shares, which will inform you about the specific
terms of that offering and may also supplement, update or amend information
contained in this document. You should read this prospectus and each
applicable prospectus supplement carefully before you invest.
Our
common stock is listed for trading on The Nasdaq Global Select Market under the
symbol “MSEX”. On May 12, 2010, the last reported sale price for our common
stock was $18.47 per share.
We may
sell securities directly to you or through underwriters, dealers or
agents. The names of any underwriters, dealers or agents involved in
the sale of any securities and the specific manner in which they may be offered
will be set forth in the prospectus supplement covering the sale of these
securities.
Investing
in our common stock involves risk. See “Risk Factors” beginning on page 3 of
this prospectus.
This
prospectus may not be used to offer or sell any securities unless accompanied by
a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
The date
of this prospectus is May 13, 2010.
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ABOUT
THIS PROSPECTUS
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1
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RISK
FACTORS
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3
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FORWARD-LOOKING
STATEMENTS
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3
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USE
OF PROCEEDS
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5
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DESCRIPTION
OF CAPITAL STOCK
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5
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DIVIDEND
REINVESTMENT AND STOCK PURCHASE PLAN
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PLAN
OF DISTRIBUTION
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LEGAL
MATTERS
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EXPERTS
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WHERE
YOU CAN FIND MORE INFORMATION
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INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
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ABOUT
THIS PROSPECTUS
This
Prospectus is part of a registration statement that we filed with the United
States Securities and Exchange Commission (the “SEC”) using a “shelf”
registration process. Under this shelf process, we may, from time to
time, sell common stock in one or more offerings under this registration
statement. This prospectus provides you with a general description of
the securities we may offer. Each time we sell any securities under
this prospectus, we will provide a prospectus supplement filed with the SEC that
will contain specific information about the terms of that
offering. The prospectus supplement also may add, update or change
information contained in this prospectus. You should read this
prospectus and the applicable prospectus supplement together with the additional
information described below under the heading “Where You Can Find More
Information” before you decide whether to invest in our securities.
The
registration statement (including the exhibits) of which this prospectus is a
part contains additional information about us and the securities we may offer
under this prospectus. We may file certain other legal documents that will
control the terms of the securities we may offer under this prospectus as
exhibits to the registration statement or as exhibits to reports we file with
the SEC. The registration statement and the reports can be read at the SEC web
site or at the SEC offices mentioned under the heading “Where You Can Find More
Information.”
You
should rely only upon the information contained in, or incorporated into, this
prospectus and the applicable prospectus supplement that contains specific
information about the securities we are offering. We have not authorized any
other person to provide you with different information. If anyone provides you
with different or inconsistent information, you should not rely on it. We are
not making an offer to sell these securities in any jurisdiction where the offer
or sale is not permitted. You should assume that the information appearing in
this document is accurate only as of the date on the front cover of this
document. Our business, financial condition, results of operations and prospects
may have changed since that date.
The
terms “Company” “we,” “our,” and “us” refer to Middlesex Water Company and its
subsidiaries, including Tidewater Utilities, Inc. (“Tidewater”) (and Tidewater’s
wholly-owned subsidiaries, Southern Shores Water Company, LLC (“Southern
Shores”) and White Marsh Environmental Systems, Inc. (“White Marsh”)), Tidewater
Environmental Services, Inc. (“TESI”), Pinelands Water Company (“Pinelands
Water”) and Pinelands Wastewater Company (“Pinelands Wastewater” and,
collectively with Pinelands Water, “Pinelands”), Utility Service Affiliates,
Inc. (“USA”), Utility Service Affiliates (Perth Amboy) Inc., (“USA-PA”), and
Twin Lakes Utilities, Inc. (“Twin Lakes”). The term “you” refers to a
prospective investor. The term “Middlesex System” refers to our central New
Jersey water utility. To understand the offering fully and for a more complete
description of the offering you should read this entire document and the
prospectus supplement carefully, including especially the “Risk Factors”
section, as well as the documents to which we have referred you in the section
entitled “Where You Can Find More Information.”
Our
Company
Middlesex
Water Company has operated as a water utility in New Jersey since 1897, in
Delaware, through our wholly-owned subsidiary, Tidewater, since 1992 and in
Pennsylvania, though our wholly-owned subsidiary, Twin Lakes, since 2009. We are
in the business of collecting, treating, distributing and selling water for
domestic, commercial, municipal, industrial and fire protection purposes. We
also operate a New Jersey municipal water and wastewater system under contract
and provide wastewater services in New Jersey and Delaware through our
subsidiaries. We are regulated as to the rates charged to customers for water
and wastewater services, as to the quality of water service we provide and as to
certain other matters. Our issuances of equity securities are subject to the
prior approval of the New Jersey Board of Public Utilities (the “NJBPU”) and
require registration with the SEC, unless an exemption from registration is
available. Our issuances of long-term debt securities are subject to
the prior approval of the utility commissions by which the issuing subsidiary is
regulated. Only our USA, USA-PA and White Marsh subsidiaries are not regulated
utilities.
Our
Middlesex System provides water services to approximately 59,800 retail
customers, primarily in central New Jersey. The Middlesex System also provides
water service under contract to municipalities in central New Jersey with a
total population of approximately 303,000. Through our subsidiary, USA-PA, we
operate the water
1
supply
system and wastewater system for the City of Perth Amboy, New Jersey. Our other
New Jersey subsidiaries, Pinelands Water and Pinelands Wastewater, provide water
and wastewater services to residents in Southampton Township, New
Jersey. Our USA subsidiary offers residential customers in New Jersey
and Delaware a service line maintenance program called LinecareSM.
Our
Delaware subsidiaries, Tidewater and Southern Shores, provide water services to
approximately 33,200 retail customers in New Castle, Kent and Sussex Counties,
Delaware. Our TESI subsidiary provides regulated wastewater service to
approximately 1,900 residential retail customers in Delaware. Our White Marsh
subsidiary serves an additional 7,200 customers under unregulated operating
contracts with various owners of small water and wastewater systems in Kent and
Sussex Counties.
Our Twin
Lakes subsidiary provides water system services to approximately 120 customers
in Shohola, Pennsylvania.
Our
Strategy
Our
strategy is focused on four key areas:
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Serve
as a trusted and continually-improving provider of safe, reliable and
cost-effective water, wastewater and related
services.
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Provide
a comprehensive suite of water and wastewater solutions in the
continually-developing Delaware market that results in profitable
growth.
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Pursue
profitable growth in our core states of New Jersey and Delaware, as well
as additional states.
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Invest
in products, services and other viable opportunities that complement our
core competencies.
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Recent
Developments
Middlesex
Rate Matters
On March
17, 2010, Middlesex’s application with the NJBPU seeking permission to increase
its base rates was partially approved, granting an increase in annual operating
revenues of 13.57%, or $7.8 million. The rate increase request was
made to seek recovery of increased costs of operations, chemicals and fuel,
electricity, taxes, labor and benefits, decreases in industrial and commercial
customer demand patterns, as well as capital investment. The new
rates are designed to recover these increased costs, as well as a return on
invested capital in rate base of $180.3 million based on a return on equity of
10.30%.
Corporate
Information
Our
executive offices are located at 1500 Ronson Road, Iselin, New Jersey
08830-3020. Our telephone number is (732) 634-1500 and our website is www.middlesexwater.com. The
information on our website is not part of this prospectus.
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Investing
in our securities involves significant risks. Before making an
investment decision, you should carefully read and consider the risk factors
incorporated by reference into this prospectus under “Risk Factors” in Item 1A
of Part I of our Annual Report on Form 10-K for the year ended December 31,
2009, as the same may be updated from time to time by our future filings with
the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). You should also refer to other information contained in or
incorporated by reference into this prospectus and any applicable prospectus
supplement, including our financial statements and the related notes
incorporated by reference herein. Additional risks and uncertainties not
presently known to us at this time or that we currently deem immaterial may also
materially and adversely affect our business and operations. In such
case, the trading price of our securities could decline and you might lose all
or part of your investment.
FORWARD-LOOKING
STATEMENTS
Certain
statements contained in this prospectus and in the documents incorporated by
reference herein constitute “forward-looking statements” within the meaning of
Section 21E of the Exchange Act and Section 27A of the Securities Act of 1933,
as amended (the “Securities Act”). The Company intends that these
statements be covered by the safe harbors created under those
sections. These statements include, but are not limited
to:
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statements
as to expected financial condition, performance, prospects and earnings of
the Company;
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statements
regarding strategic plans for
growth;
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statements
regarding the amount and timing of rate increases and other regulatory
matters, including the recovery of certain costs recorded as regulatory
assets;
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statements
as to the Company’s expected liquidity needs during the upcoming fiscal
year and beyond and statements as to the sources and availability of funds
to meet its liquidity needs;
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statements
as to expected rates, consumption volumes, service fees, revenues,
margins, expenses and operating
results;
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statements
as to the Company’s compliance with environmental laws and regulations and
estimations of the materiality of any related
costs;
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statements
as to the safety and reliability of the Company’s equipment, facilities
and operations;
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statements
as to financial projections;
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statements
as to the ability of the Company to pay
dividends;
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statements
as to the Company’s plans to renew municipal franchises and consents in
the territories it serves;
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expectations
as to the amount of cash contributions to fund the Company’s retirement
benefit plans, including statements as to anticipated discount rates and
rates of return on plan assets;
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statements
as to trends; and
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statements
regarding the availability and quality of our water
supply.
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These
forward-looking statements are subject to risks, uncertainties and other factors
that could cause actual results to differ materially from future results
expressed or implied by the forward-looking statements. Important factors that
could cause actual results to differ materially from anticipated results and
outcomes include, but are not limited to:
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the
effects of general economic
conditions;
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increases
in competition in the markets served by the
Company;
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the
ability of the Company to control operating expenses and to achieve
efficiencies in its operations;
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the
availability of adequate supplies of
water;
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actions
taken by government regulators, including decisions on base rate increase
requests;
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new
or additional water quality
standards;
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weather
variations and other natural
phenomena;
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the
existence of financially attractive acquisition candidates and the risks
involved in pursuing those
acquisitions;
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acts
of war or terrorism;
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significant
changes in housing starts in
Delaware;
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the
availability and cost of capital
resources;
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the
ability to translate Preliminary Survey & Investigation charges into
viable projects; and
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other
factors discussed elsewhere in this
prospectus.
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3
Many of
these factors are beyond the Company’s ability to control or predict. Given
these uncertainties, readers are cautioned not to place undue reliance on any
forward-looking statements, which only speak to the Company’s understanding as
of the date of this prospectus. The Company does not undertake any obligation to
release publicly any revisions to these forward-looking statements to reflect
events or circumstances after the date of this prospectus or to reflect the
occurrence of unanticipated events, except as may be required under applicable
securities laws. For an additional discussion of factors that may affect the
Company’s business and results of operations, see “Risk Factors.”
4
We will
receive all of the net proceeds from the sale of shares of our common
stock. Unless otherwise specified in a prospectus supplement
accompanying this prospectus, we expect to use the net proceeds from the sale of
our shares for general corporate purposes, which may include, among other
things, reduction or refinancing of debt or other corporate obligations, the
financing of capital expenditures and working capital.
The
actual application of proceeds from the sale of shares of our common stock
issued hereunder will be described in the applicable prospectus supplement
relating thereto. Our management will have broad discretion in the allocation of
net proceeds from the sale of any securities sold by us.
DESCRIPTION
OF CAPITAL STOCK
Our
authorized capital stock consists of 40,000,000 shares of common stock, without
par value, 134,472 shares of Preferred Stock, without par value, and 100,000
shares of Preference Stock, without par value. As of April 29, 2010, there were
13,566,281 shares of common stock outstanding, an aggregate of 31,873 shares of
Preferred Stock outstanding in four separate series and no shares of Preference
Stock outstanding. The issuance of the common stock offered hereby is subject to
approval by the NJBPU.
The
transfer agent for the common stock is Registrar and Transfer Company. Our
outstanding common stock is traded on The Nasdaq Global Select Market under the
symbol “MSEX”.
Certain
New Jersey state laws and provisions in our Restated Certificate of
Incorporation may deter or prevent a change in control of us and/or a change in
management, even if desired by a majority of the shareholders.
The
following is a brief summary of certain information relating to our common
stock, Preferred Stock and Preference Stock. This summary does not purport to be
complete and is intended to outline such information in general terms
only.
Dividend
Rights
Our
Restated Certificate of Incorporation provides that whenever full dividends have
been paid on the Preferred Stock and the Preference Stock outstanding for all
past quarterly periods, the Board of Directors may declare and pay dividends on
the common stock out of legally available funds.
The
dividend rate for our varying classes of Preferred Stock is as follows: $7 per
share per annum for the $7 Series Cumulative Preferred Stock, $4.75 per share
per annum for the $4.75 Series Cumulative Preferred Stock, $7 per share per
annum for the $7 Cumulative and Convertible Preferred Stock, and $8 per share
per annum for the $8 Series Cumulative and Convertible Preferred
Stock. As of the quarter ended March 31, 2010, all such dividends
have been paid.
Voting
Rights
Every
holder of our common stock is entitled to one vote for each share held of
record. Our Restated Certificate of Incorporation and By-laws provide for a
Board of Directors divided into three classes of directors serving staggered
three-year terms. A classified board has the effect of increasing the time
required to effect a change in control of the Board of Directors. Our By-laws
provide that nominations for directors must be (i) made in writing, (ii)
received by the Secretary of the Company not less than 21 days prior to the date
fixed for the meeting of shareholders and (iii) accompanied by the written
consent of the nominee to serve as a director. In addition, the Restated
Certificate of Incorporation provides that the By-laws may only be amended by
shareholders if the holders of two-thirds or more of the issued and outstanding
shares of common stock vote for the amendment. Our Restated Certificate of
Incorporation also provides that shareholders may take action only at an annual
or special meeting upon prior notice and pursuant to a vote.
No holder
of Preferred Stock has any right to vote for the election of directors or,
except as otherwise required by law, for any other purpose; provided, however,
that if and whenever dividends on the outstanding
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Preferred
Stock are in arrears in an amount equal to at least four quarterly dividends,
the holders of the outstanding Preferred Stock of all series, voting as a class,
are entitled, until all dividends in arrears are paid, to elect two members to
the Board of Directors, which two members shall be in addition to the directors
elected by the holders of the common stock. Holders of Preference Stock (none of
which has been issued) will have such voting rights as are established by the
Board of Directors, provided that such voting rights will not exceed or be
superior to the voting rights of the holders of common stock. Whenever dividends
on the outstanding Preference Stock are in arrears in an amount equal to at
least four quarterly dividends, the holders of the outstanding Preference Stock
of all series, voting as a class, are entitled, until all dividends in arrears
are paid, to elect two members to the Board of Directors, which two members
shall be in addition to the members elected by the holders of the common stock
and by the holders of Preferred Stock. In addition, unless certain tests set
forth in our charter are met, the consent of the holders of a majority of the
outstanding shares of Preferred Stock of all series, voting as a class, is
required for issuance or sale of any additional series of Preferred Stock or any
class of stock ranking prior to or on a parity with Preferred Stock as to
dividends or distributions. The consent of the holders of a majority in interest
of the outstanding Preference Stock of all series, voting as a class, is
required to create or authorize any stock ranking prior to Preference Stock as
to dividends or in liquidation, or to create or authorize any obligation or
security convertible into shares of any such stock, except that such consent is
not required with respect to any increase in the number of shares of Preferred
Stock which we are authorized to issue or with respect to the creation and
establishment of any series of our Preferred Stock.
Convertibility
The
conversion feature of the no par $7.00 Series Cumulative and Convertible
Preferred Stock allows the holders of such shares of such Preferred Stock to
exchange one convertible preferred share for twelve shares of our common stock.
In addition, such may redeem up to 10% of the outstanding convertible stock in
any calendar year at a price equal to the fair market value of twelve shares of
our common stock for each share of convertible stock redeemed.
The
conversion feature of the no par $8.00 Series Cumulative and Convertible
Preferred Stock allows us to exchange one convertible share of such Preferred
Stock for 13.714 shares of our common stock.
The other
series of our Preferred Stock and the Preference Stock are not convertible into
shares of common stock.
Liquidation
Rights
Holders
of common stock are entitled to share on a pro-rata basis, subject to the rights
of holders of our First Mortgage Bonds, Preferred Stock and Preference Stock, in
our assets legally available for distribution to shareholders in the event of
our liquidation, dissolution or winding up.
Restriction
on Acquisitions
As a New
Jersey corporation with its headquarters and principal operations in that state,
we are a “resident domestic corporation” as defined in New Jersey’s Shareholder
Protection Act (the “Act”). The Act bars any “business combination” as defined
in the Act (generally, a merger or other acquisition transaction) with any
person or affiliate of a person who owns 10% or more of the outstanding voting
stock of a resident domestic corporation for a period of five years after such
person first owns 10% or more of such stock, unless the “business combination”
both is approved by the board of directors of the resident domestic corporation
prior to the time that person acquires 10% or more of the resident domestic
corporation’s voting stock and meets certain other statutory
criteria.
DIVIDEND
REINVESTMENT AND STOCK PURCHASE PLAN
We have
an Amended and Restated Dividend Reinvestment and Common Stock Purchase Plan
(the “DRP”) under which (i) any person not currently a shareholder may purchase
shares of common stock having an aggregate value of at least $500 and
not more than $10,000, and (ii) any current shareholders
may have cash dividends on all or a portion of their shares of common stock or
Preferred Stock automatically reinvested in newly issued shares of common stock
and may invest up to an additional $25,000 per quarter in newly issued shares
of
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common
stock. Under the DRP, we may permit the purchase of shares of common stock at
ninety-five percent (95%) of market value for specified periods as announced by
us from time to time. We last authorized the purchase of shares of common stock
at ninety-five percent (95%) of market value during the period beginning
February 1, 2010 and ending June 1, 2010. After June 1, 2010, the purchase of
shares under the DRP will be made at one hundred percent (100%) of fair market
value. No commission or service charge is paid by participants in connection
with any of their purchases under the DRP. The cumulative amount of shares
issued under the DRP as of April 29, 2010 is 1,841,759.
7
We may
sell our securities from time to time directly to purchasers or through
underwriters, dealers or agents, in one or more transactions at a fixed price or
prices, which may be changed, or at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. We may also issue these securities as compensation to such agents,
underwriters or dealers for making sales of our securities. We may use these
methods in any combination.
By
Underwriters
We may
use an underwriter or underwriters in the offer or sale of our
securities.
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If
we use an underwriter or underwriters, we will execute an underwriting
agreement and the offered securities will be acquired by the underwriters
for their own account.
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We
will include the names of the specific managing underwriter or
underwriters, as well as any other underwriters, and the terms of the
transactions, including the compensation the underwriters and dealers will
receive, in the prospectus supplement. The underwriter may sell the
securities to or through dealers, and the underwriter may compensate those
dealers in the form of discounts, concessions or
commissions.
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The
underwriters will use this prospectus and the prospectus supplement to
sell our securities.
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We
may grant underwriters who participate in the distribution of our
securities an option to purchase additional securities in connection with
the distribution.
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By
Dealers
We may
use a dealer to sell our securities.
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If
we use a dealer, we, as principal, will sell our securities to the
dealer.
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The
dealer will then resell our securities to the public at varying prices
that the dealer will determine at the time it sells our
securities.
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We
will include the name of the dealer and the terms of our transactions with
the dealer in the prospectus
supplement.
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By
Agents
We may
designate agents to solicit offers to purchase our securities.
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We
will name any agent involved in offering or selling our securities and any
commissions that we will pay to the agent in the prospectus
supplement.
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Unless
indicated otherwise in the prospectus supplement, our agents will act on a
best efforts basis for the period of their
appointment.
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An
agent may be deemed to be underwriters under the Securities Act of any of
our securities that they offer or
sell.
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By
Delayed Delivery Contracts
We may
authorize our agents and underwriters to solicit offers by certain institutions
to purchase our
securities
at the public offering price under delayed delivery contracts.
|
|
·
|
If
we use delayed delivery contracts, we will disclose that we are using them
in the prospectus supplement and will tell you when payment will be
demanded and securities delivered under the delayed delivery
contracts.
|
|
|
·
|
These
delayed delivery contracts will be subject only to the conditions set
forth in the prospectus supplement.
|
|
|
·
|
We
will indicate in the prospectus supplement the commission that
underwriters and agents soliciting purchases of our securities under
delayed delivery contracts will be entitled to
receive.
|
We may
directly solicit offers to purchase our securities, and we may directly sell our
securities to institutional or other investors, including our affiliates. We
will describe the terms of our direct sales in the prospectus supplement. We may
also sell our securities upon the exercise of rights which we may
issue.
General
Information
Underwriters,
dealers and agents that participate in the distribution of our securities may be
underwriters as defined in the Securities Act, and any discounts or commissions
they receive and any profit they make on the resale of the offered securities
may be treated as underwriting discounts and commissions under the Securities
Act. Any underwriters or agents will be identified and their compensation
described in a prospectus supplement. We may indemnify agents, underwriters, and
dealers against certain civil liabilities, including liabilities under the
Securities Act, or make contributions to payments they may be required to make
relating to those liabilities. Our agents, underwriters, and dealers, or their
affiliates, may be customers of, engage in transactions with, or perform
services for us or our subsidiaries in the ordinary course of business for which
they will receive compensation.
Representatives
of the underwriters or agents through whom our securities are or may be sold may
engage in over-allotment, stabilizing transactions, syndicate short covering
transactions and penalty bids in accordance with Regulation M under the Exchange
Act. Over-allotment involves syndicate sales in excess of the offering size,
which creates a syndicate short position. Stabilizing transactions permit bids
to purchase the offered securities so long as the stabilizing bids do not exceed
a specified maximum.
Syndicate
short covering transactions involve purchases of the offered securities in the
open market after the distribution has been completed in order to cover
syndicate short positions. Penalty bids permit the representative of the
underwriters or agents to reclaim a selling concession from a syndicate member
when the offered securities originally sold by such syndicate member are
purchased in a syndicate covering transaction to cover syndicate short
positions. Such stabilizing transactions, syndicate short covering transactions
and penalty bids may cause the price of the offered securities to be higher than
it would otherwise be in the absence of such transactions. These transactions
may be effected on a national securities exchange and, if commenced, may be
discontinued at any time.
The
maximum consideration or discount to be received by any Financial Industry
Regulatory Authority, or FINRA, member or independent broker dealer will not
exceed 8% of the aggregate amount of the securities offered pursuant to this
prospectus and any applicable prospectus supplement.
9
LEGAL
MATTERS
Certain
legal matters in connection with the validity of the common stock offered hereby
will be passed upon for us by Norris, McLaughlin & Marcus, P.A. Walter G.
Reinhard, a member of the firm, is also one of our directors, and owns 3,052
shares of our common stock.
The
consolidated financial statements of Middlesex Water Company as of December 31,
2009 and 2008 and for each of the three years in the period ended December 31,
2009 and management’s assessment of the effectiveness of internal
control over financial reporting as of December 31, 2009 (which is included in
Management’s Report on Internal Control Over Financial Reporting) incorporated
by reference in this Prospectus have been so incorporated in reliance on the
reports of ParenteBeard LLC, an independent registered public accounting firm,
incorporated herein by reference, given on the authority of said firm as experts
in auditing and accounting.
We are a
reporting company and file annual, quarterly and current reports, proxy
statements, and other information with the SEC. You may read and copy these
reports, proxy statements, and other information at the SEC’s public reference
room located at 100 F Street, N.E., Room 1580, Washington, DC
20549. You can request copies of these documents by writing to the
SEC and paying a fee for the copying cost. Please call the SEC at
1-800-SEC-0330 for more information about the operation of the public reference
rooms. Our SEC filings are also available at the SEC’s web site at
www.sec.gov. In
addition, you can read and copy our SEC filings at the office of the Financial
Industry Regulatory Authority, Inc. at 1735 K Street, Washington, DC
20006.
We make
available free of charge through our Internet website at www.middlesexwater.com,
our Annual Reports on Form 10-K, Proxy Statements, Quarterly Reports on Form
10-Q, Current Reports on Form 8-K, and amendments to those reports filed or
furnished pursuant to Section 13(a) or 15(d) of the Exchange Act of 1934 as soon
as reasonably practicable after we electronically file such material with, or
furnish it to, the SEC. The information on our website is not incorporated by
reference into this prospectus and does not constitute a part of this
prospectus.
This
prospectus is a part of a Registration Statement on Form S-3 (which, together
with all exhibits filed along with it, will be referred to as the “Registration
Statement”) which we filed with the SEC to register the securities we will be
offering. Certain information and details which may be important to specific
investment decisions may be found in other parts of the Registration Statement,
including its exhibits, but are left out of this prospectus in accordance with
the rules and regulations of the SEC. To see more detail, you may wish to review
the Registration Statement and its exhibits. Copies of the Registration
Statement and its exhibits are on file at the offices of the SEC and may be
obtained upon payment of the prescribed fee or may be examined without charge at
the public reference facilities of the SEC described above.
The SEC’s
rules allow us to “incorporate by reference” the information we file with the
SEC, which means we can disclose important information to you by referring you
to those documents. The information incorporated by reference is an important
part of this prospectus. We incorporate by reference the documents listed below,
which already have been filed with the SEC, and certain information we may file
in the future will automatically update and take the place of information
already filed. The following documents are incorporated by reference: (a) our
Annual Report on Form 10-K for the year ended December 31, 2009 filed on March
8, 2010; (b) our Current Report on Form 8-K filed on March 18, 2010; (c) our
Current Report on Form 8-K filed on March 26, 2010; (d) our Current Report on
Form 8-K filed on April 30, 2010; (e) our Quarterly Report on Form 10-Q filed on
May 6, 2010; and (f) the portions of our proxy statement on Schedule 14A for our
2010 Annual Meeting of Shareholders that have been incorporated by reference
into our most recent Annual Report on Form 10-K.
10
In
addition to the documents already filed, all reports and other documents which
we file in the future with the Commission pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, while the registration
statement of which this prospectus is a part remains effective, shall also be
incorporated by reference in this prospectus.
You may
request a copy of any of these filings. Such requests should be directed to: Mr.
Kenneth J. Quinn, Vice President, General Counsel, Secretary and Treasurer,
Middlesex Water Company, 1500 Ronson Road, Iselin, New Jersey 08830, Phone No.
(732) 634-1500. You will not be charged for these copies unless you request
exhibits, for which we will charge you a nominal fee. However, you will not be
charged for exhibits in any case where the exhibit you request is specifically
incorporated by reference into another document which is incorporated by this
prospectus.
11
We have
not authorized any dealer, salesperson or other person to give any information
or represent anything not contained in this prospectus. You must not rely on any
unauthorized information. If anyone provides you with different or inconsistent
information, you should not rely on it. This prospectus does not offer to sell
any shares in any jurisdiction where it is unlawful. The information in this
prospectus is current as of the date shown on the cover page.
___________________________________________________
5,000,000
Shares of Common Stock
________________________________________________
PROSPECTUS
________________________________________________
The date
of this prospectus is May 13, 2010.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
Item 14.
|
Other
Expenses of Issuance and Distribution
|
The costs and expenses, other than underwriting discounts and commissions,
payable by the Company in connection with this Offering (all amounts are
estimated except the registration fee) are as follows:
|
Item
|
Amount
|
||||
|
SEC
registration fee
|
$
|
6,417.00
|
|||
|
Nasdaq
listing fee
|
20,000.00
|
||||
|
Accounting
fees and expenses
|
50,000.00
|
||||
|
Legal
fees and expenses
|
115,000.00
|
||||
|
Printing
|
15,000.00
|
||||
|
Transfer
agent fees and expenses
|
1,000.00
|
||||
|
Miscellaneous
|
52,583.00
|
||||
|
Total
|
$
|
260,000.00
|
|||
|
Item 15.
|
Indemnification
of Directors and Officers
|
Section 14A:3-5 of the New Jersey Business Corporation Act (the
“NJBCA”) gives the Company power to indemnify each of its directors and officers
against expenses and liabilities in connection with any proceeding involving him
by reason of his being or having been a director or officer if (a) he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Company, and (b) with respect to any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful.
However, in a proceeding by or in the right of the Company, there shall be no
indemnification in respect of any liabilities or expenses if the officer or
director shall have been adjudged liable to the Company unless the Court in such
proceeding determines he is entitled to indemnity for such liabilities and/or
expenses. No indemnification shall be made to or on behalf of a director or
officer if a judgment or other final adjudication adverse to such director or
officer establishes that his acts or omissions (a) were in breach of his
duty of loyalty to the Company and its shareholders, (b) were not in good
faith or involved a knowing violation of law or (c) resulted in receipt by
the director or officer of an improper personal benefit. The NJBCA defines an
act or omission in breach of a person’s duty of loyalty as an act or omission
which that person knows or believes to be contrary to the best interests of the
Corporation or its shareholders in connection with a matter in which he has a
material conflict of interest. If a director or officer is successful in a
proceeding, the statute mandates that the Company indemnify him against
expenses.
Article VI of the Company’s By-laws provides:
“Any
present or future director or officer of the Company and any present or future
director or officer of any other corporation serving as such at the request of
the Company because of the Company’s interest in such other corporation, or the
legal representative of any such director or officer, shall be indemnified by
the Company against reasonable costs, expenses (exclusive of any amount paid to
the Company in settlement), and counsel fees paid or incurred in connection with
any action, suit, or proceeding to which any such director or officer or his
legal representative may be made a party by reason of his being or having been
such director or officer; provided (1) said action, suit, or proceeding
shall be prosecuted against such director or officer or against his legal
representative to final determination, and it shall not be finally adjudged in
said action, suit, or proceeding that he had been derelict in the performance of
his duties as such director or officer; or (2) said action, suit or
proceeding shall be settled or otherwise terminated as against such director or
officer or his legal representative without a final determination on the merits,
and it shall be determined by the Board of Directors (or, at the option of the
Board of Directors, by a disinterested person or persons selected by the Board
of Directors to determine the matter) that said director or officer had not in
any substantial way been derelict in the performance of his duties as charged in
such action, suit, or proceeding. The right of indemnification provided by this
By-law shall be in addition to and not in restriction or limitation of any other
privilege or power which the Company may have with respect to the
indemnification or reimbursement of directors, officers, or
employees.”
II-1
The
Company has in effect a $25,000,000.00 policy of insurance indemnifying it
against certain liabilities to directors and officers of the Company, and
indemnifying directors and officers of the Company against certain of the
liabilities which they may incur in acting in their capacities as such, all
within specific limits. The insurance has a term expiring June 1,
2010.
Pursuant
to Section 14A:2-7 of the NJBCA, the Company’s shareholders adopted an
amendment to the Company’s Certificate of Incorporation which provides that a
director or officer shall not be personally liable to the Company or its
shareholders for damages for breach of any duty owed to the Company or its
shareholders, except that such provision shall not relieve a director or officer
from liability for any breach of duty based upon an act or omission (a) in
breach of such person’s duty of loyalty to the Company or its shareholders,
(b) not in good faith or involving a knowing violation of law, or
(c) resulting in receipt by such person of an improper personal
benefit.
|
Item 16.
|
Exhibits
|
| Document Description | ||||
|
1.1*
|
Form
of Underwriting Agreement.
|
|||
|
4.1
|
Form
of Common Stock Certificate, is incorporated by reference to
Exhibit 2(a) filed with the Company’s Registration Statement
No. 2-55058.
|
|||
|
4.2
|
Articles
7A through 7F, 8, 9 and 10 of the Restated Certificate of
Incorporation are incorporated herein by reference to Exhibit 3.1 to
the Company’s Annual Report on Form 10-K for the Year ended
December 31, 1998.
|
|||
|
4.3
|
Certificate
of Amendment to the Restated Certificate of Incorporation, filed with the
State of New Jersey on June 20, 1997, is incorporated herein by reference
to Exhibit 3.1 to the Company’s Annual Report on Form 10-K for
the year ended December 31, 1997.
|
|||
|
4.4
|
Certificate
of Amendment to the Restated Certificate of Incorporation, filed with the
State of New Jersey on May 27, 1998, is incorporated herein by reference
to Exhibit 3.1 to the Company’s Annual Report on Form 10-K for
the year ended December 31, 1998.
|
|||
|
4.5
|
Certificate
of Amendment to the Restated Certificate of Incorporation, filed with the
State of New Jersey on June 10, 1998, is incorporated herein by reference
to Exhibit 3.1 to the Company’s Annual Report on Form 10-K for
the year ended December 31, 1998.
|
|||
|
4.6
|
Certificate
of Correction of Middlesex Water Company filed with the State of New
Jersey on April 30, 1999, is incorporated herein by reference to
Exhibit 3.3 to the Company’s Annual Report on Form 10-K/A-2 for
the year ended December 31, 2003.
|
|||
|
4.7
|
Certificate
of Amendment to the Restated Certificate of Incorporation of Middlesex
Water Company, filed with the State of New Jersey on February 17,
2000, is incorporated herein by reference to Exhibit 3.4 to the
Company’s Annual Report on Form 10-K/A-2 for the year ended
December 31, 2003.
|
|||
|
4.8
|
Certificate
of Amendment to the Restated Certificate of Incorporation of Middlesex
Water Company, filed with the State of New Jersey on June 5, 2002, is
incorporated herein by reference to Exhibit 3.5 to the Company’s
Annual Report on Form 10-K/A-2 for the year ended December 31,
2003.
|
|||
|
4.9
|
Certificate
of Amendment to the Restated Certificate of Incorporation, filed with the
State of New Jersey on June 19, 2007, is incorporated herein by reference
to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed April 30,
2010.
|
|||
|
4.10
|
By-laws
of Middlesex Water Company are incorporated herein by reference to
Exhibit 3.2 to the Company’s Annual Report on Form 10-K for the year
ended December 31, 2005.
|
|||
|
5**
|
Opinion
of Counsel Re: Legality of Securities Registered.
|
|||
|
23.1**
|
Consent
of Independent Registered Public Accounting Firm.
|
|||
|
23.2**
|
Consent
of Counsel is included in its legal opinion filed as
Exhibit 5.
|
|||
|
24**
|
Power
of Attorney (is included as a part of the signature page of this
registration statement).
|
|||
|
*
|
To
be filed by amendment or as an exhibit to a document to be incorporated by
reference in the prospectus forming a part of this registration
statement.
|
|
**
|
Previously
filed.
|
|
II-2
|
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:
|
|
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. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement;
|
|
|
iii.
|
To
include any material information with respect to the plan of distribution
not previously disclosed in this registration statement or any material
change to such information in the registration
statement;
|
Provided
however, that
paragraphs (i), (ii) and (iii) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to
the Commission by the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in this registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement;
|
2.
|
That,
for the purpose of determining any liability under the Securities Act,
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
bonafide offering thereof.
|
|
|
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.
|
|
|
4.
|
That,
for the purpose of determining liability under the Securities Act to any
purchaser:
|
|
|
i.
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration
statement; and
|
|
|
ii.
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5),
or (b)(7)
as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by section 10(a) of the
Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference into
|
II-3
the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
|
|
That,
for the purpose of determining liability of the registrant under the
Securities Act to any purchaser in the initial distribution of the
securities: the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such
purchaser:
|
|
|
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
|
|
Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
|
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
|
|
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
|
|
b.
|
The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of
the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Exchange Act) that is incorporated by reference in 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 may be
available 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 Securities and Exchange
Commission, such indemnification is against public policy as expressed in
the Securities 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 Securities Act and will be governed
by the final adjudication of such
issue.
|
II-4
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 Woodbridge, State of New Jersey on
the 13th day of May,
2010.
|
MIDDLESEX
WATER COMPANY
|
||
|
(Registrant)
|
||
|
By:
|
/s/
A. Bruce O’Connor
|
|
|
Name:
|
A.
Bruce O’Connor
|
|
|
Title:
|
Vice
President and Chief Financial
Officer
|
KNOW ALL MEN BY
THESE PRESENTS, that each person whose signature appears below constitutes and
appoints each of Kenneth J. Quinn and A. Bruce O’Connor (with full power in each
to act alone), his true and lawful attorneys-in-fact, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming that all said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities on behalf of the
registrant and on the dates indicated below.
|
Signature
|
Title
|
Date
|
||
|
*
|
Chairman
of the Board and Director
|
May 13, 2010 | ||
|
J.
Richard Tompkins
|
||||
|
/s/A.
Bruce O’Connor
|
Vice
President and Chief Financial Officer (Principal Financial Officer and
Principal Accounting Officer)
|
May 13, 2010 | ||
|
A.
Bruce O’Connor
|
||||
|
*
|
President,
Chief Executive Officer and Director (Principal Executive
Officer)
|
May 13, 2010 | ||
|
Dennis
W. Doll
|
||||
|
*
|
Director
|
May 13, 2010 | ||
|
John
C. Cutting
|
II-5
|
Signature
|
Title
|
Date | ||
|
*
|
Director
|
May 13, 2010 | ||
|
Annette
Catino
|
||||
|
*
|
Director
|
May 13, 2010 | ||
|
Steven
M. Klein
|
||||
|
*
|
Director
|
May 13, 2010 | ||
|
John
R. Middleton, M.D.
|
||||
|
*
|
Director
|
May 13, 2010 | ||
|
John
P. Mulkerin
|
||||
|
*
|
Director
|
May 13, 2010 | ||
|
Walter
G. Reinhard
|
||||
|
*
|
Director
|
May 13, 2010 | ||
|
Jeffries
Shein
|
||||
|
|
||||
|
|
||||
|
*
By:
|
/s/
A. Bruce O’Connor
|
May 13, 2010 | ||
|
|
A.
Bruce O’Connor
|
|||
|
|
Attorney-In-Fact
|
II-6