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, D.C.WASHINGTON, DC 20549
_____________________
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
MIDDLESEX WATER COMPANY
(Exact name of registrant as specified in its charter)
New Jersey | 22-1114430 |
(State or other jurisdiction of incorporation or organization) | | 22-1114430 (I.R.S. Employer Identification No.)Number) |
| | |
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) |
| _______________________________ |
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) |
|
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 |
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)
_____________________
KENNETH J. QUINN
Vice President, General Counsel, Secretary and Treasurer
Middlesex Water Company
1500 Ronson Road, Iselin, New Jersey 08830-3020
(732) 634-1500
(Name, address, including zip code. and telephone number, including area code, of agent for service)
_____________________
With Copies to:
DOUGLAS R. BROWN, ESQ.
Norris, McLaughlin & Marcus, P.A.
721 Route 202-206, P.O. Box 1018
Bridgewater, New Jersey 08807
(908) 722-0700
Approximate date of commencement of proposed sale to the public: As soon as practicableFrom time to time after the effective date of this Registration Statement.Statement becomes effective, as determined by market conditions and other matters.
If the only securities being registered on this Form are being offered pursuant to dividend or reinvestment plans, please check the following box. ý¨
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 check markcheckmark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smallsmaller reporting company. See the definitions of “largecompany:
¨ Large accelerated filer” “accelerated filer” and “smaller
x Accelerated filer
¨ Non-accelerated filer
¨ Smaller reporting company” in Rule 12b-2 of the Exchange Act.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.
Large accelerated filer: ¨
| Accelerated filer: ý
|
| | |
Non-accelerated filer: ¨
| Smaller reporting company: ¨
|
(Do not check if a smaller reporting company) | |
The date of this prospectus is May 13, 2010.
| CALCULATION OF REGISTRATION FEE |
Title of each class of securities to be registered | Amount to be registered | Proposed maximum offering price per share | Proposed maximum aggregate offering price | Amount of registration fee 1 |
| Common Stock | 80,000 shares | $12.05 | $964,000.00 | $80.00 |
1 Estimated solely for the purpose of calculating the registration fee. Such estimate has been computed in accordance with Rule 457(c) under the Securities Act based on the average of the high and low prices of the Registrant’s Common Stock as reported on the Nasdaq Global Select Market on March 9, 2009.
MIDDLESEX WATER COMPANY
Dividend Reinvestment and Common Stock Purchase Plan
Common Stock (Without Par Value)
Dear Investor:
Middlesex Water Company (the “Company”) is pleased to offer the Middlesex Water Company Dividend Reinvestment and Common Stock Purchase Plan (the “Plan”). The Plan is a direct stock purchase plan designed to provide existing holders of Company Common Stock with a convenient method to purchase additional shares and to reinvest cash dividends paid on the Company’s Common Stock in the purchase of additional shares of Common Stock.
Key features of the Plan are summarized below:
| · | To open a new Plan account, you will be required to authorize the reinvestment of dividends on at least ten (10) shares. |
| · | If you currently own fewer than ten (10) registered shares, you may authorize the reinvestment of dividends on the shares you currently own and include an optional cash payment with your Authorization Form sufficient to purchase remaining shares required to enroll. Therefore, if you own at least one share of Common Stock, registered in your name, you may participate by completing and returning an enrollment form and following the optional cash payment instructions set forth in this Prospectus (see Question 17). |
| · | Once you have enrolled, you may elect to have dividends on all or part of your shares automatically reinvested in shares of Common Stock at market prices. |
| · | In addition, you may invest optional cash payments of $25 or more (maximum $25,000 per calendar quarter) in the purchase of Common Stock at market prices. |
| · | Eligible employees of the Company (and its subsidiary companies and affiliated companies) have the additional option of utilizing automatic payroll deductions to purchase shares. |
| · | As a participant, you may (but are not required to) deposit your Company Common Stock certificates with the Plan Agent for safekeeping. |
| · | The Company may, from time to time, make shares available to Plan participants at a discount of up to five percent (5%) from market prices. |
The Company has reserved a total of 1,780,000 shares of Common Stock to be used in connection with the Plan. As of the date of this Prospectus, 80,000 shares remain available for issuance under the Plan. Although the Plan contemplates the continued payment of quarterly dividends, the Company can make no assurances in that regard.
Sincerely, |
|
/s/ Dennis W. Doll |
|
Dennis W. Doll |
President and Chief Executive Officer |
---------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION PASSED UPON THE ACCURACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------------
The date of this Prospectus is March 13, 2009
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS. IF ANY OTHER INFORMATION OR REPRESENTATIONS ARE GIVEN OR MADE, YOU MUST NOT RELY ON THEM AS HAVING BEEN AUTHORIZED.
This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy shares of Company Common Stock in any state or other jurisdiction to any person to whom it is unlawful to make such an offer or solicitation.
Neither the delivery of this Prospectus nor any sale made hereunder should be deemed to imply that there has been no change in the affairs of the Company since the date of this Prospectus or that the information herein is correct as of any time subsequent to its date. This Prospectus relates only to the Common Stock offered hereby and is not to be relied upon in connection with the purchase or sale of any other securities in the Company.
| | Page |
Middlesex Water Company | 4 |
| ABOUT THIS PROSPECTUS | 1 |
| | |
Available Information; Incorporation of Certain Documents by ReferenceRISK FACTORS | 43 |
| | |
DESCRIPTION OF THE PLANFORWARD-LOOKING STATEMENTS | 5 |
PURPOSE OF THE PLAN | 5 |
ADVANTAGES AND DISADVANTAGES OF THE PLAN | 5 |
ADMINISTRATION OF THE PLAN | 6 |
PLAN ELIGIBILITY AND ENROLLMENT | 6 |
DIVIDEND REINVESTMENT | 7 |
OPTIONAL CASH PAYMENTS | 8 |
PURCHASE OF COMMON STOCK | 9 |
CUSTODIAL SERVICE | 10 |
ISSUANCE OF STOCK CERTIFICATES | 10 |
GIFTS AND TRANSFERS OF SHARES | 11 |
CHANGING METHOD OF PARTICIPATION AND WITHDRAWAL | 11 |
ADDITIONAL INFORMATION | 12 |
| |
LIMITATION OF LIABILITY | 13 |
| |
U.S. FEDERAL INCOME TAXATION | 143 |
| | |
| USE OF PROCEEDS | 145 |
| |
| DESCRIPTION OF CAPITAL STOCK | 5 |
| |
| DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN | 6 |
| |
| PLAN OF DISTRIBUTION | 8 |
| | |
| LEGAL MATTERS | 1410 |
| | |
| EXPERTS | 1410 |
| | |
INDEMNIFICATIONWHERE YOU CAN FIND MORE INFORMATION | 1510 |
| |
| INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE | 10 |
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, and in Delaware, through our wholly-owned subsidiary, Tidewater, Utilities, Inc. (“Tidewater”), since 1992.1992 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, including 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”), Pinelands Wastewater Company (“Pinelands Wastewater”), Utility Service Affiliates, Inc. (“USA”), and Utility Service Affiliates (Perth Amboy) Inc. (“USA-PA”).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 serviceservices to approximately 59,70059,800 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
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 LineCareLinecareSM.
Our Delaware subsidiaries, Tidewater and Southern Shores, provide water services to approximately 35,50033,200 retail customers in New Castle, Kent and Sussex Counties, Delaware. Our TESI subsidiary provides regulated wastewater service to approximately 1,8001,900 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.
Available InformationOur Twin Lakes subsidiary provides water system services to approximately 120 customers in Shohola, Pennsylvania.
Our Strategy
Our strategy is focused on four key areas:
Serve as a trusted and continually-improving provider of safe, reliable and cost-effective water, wastewater and related services.
Provide a comprehensive suite of water and wastewater solutions in the continually-developing Delaware market that results in profitable growth.
Pursue profitable growth in our core states of New Jersey and Delaware, as well as additional states.
Invest in products, services and other viable opportunities that complement our core competencies.
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 Companyinformation on our website is subjectnot part of this prospectus.
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 informational requirements ofSEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"“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 accordance therewith, files reports, proxy statementsthe documents incorporated by reference herein constitute “forward-looking statements” within the meaning of Section 21E of the Exchange Act and other information withSection 27A of the Securities and Exchange CommissionAct of 1933, as amended (the "Commission"“Securities Act”). Such reports, proxyThe Company intends that these statements and other information can be inspected and copied at the Public Reference Room maintainedcovered by the Commission at 100 F. Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. Copies of such material can be obtained from the Public Reference Section of the Commission, 100 F Street, N.E., Washington, D.C. 20549 at prescribed rates. The Commission maintains a web site that contains reports, proxy and informationsafe harbors created under those sections. These statements and other information regarding registrants that file electronically with the Commission. The address of the Commission's web site is http://www.sec.gov.include, but are not limited to:
Incorporation of Certain Documents by Reference
The Company has filed the following documents with the SEC. They are hereby incorporated herein by reference:
(a) | The- | statements as to expected financial condition, performance, prospects and earnings of the Company; |
| - | statements regarding strategic plans for growth; |
| - | statements regarding the amount and timing of rate increases and other regulatory matters, including the recovery of certain costs recorded as regulatory assets; |
| - | statements as to the Company’s Annual Reportexpected liquidity needs during the upcoming fiscal year and beyond and statements as to the sources and availability of funds to meet its liquidity needs; |
| - | statements as to expected rates, consumption volumes, service fees, revenues, margins, expenses and operating results; |
| - | statements as to the Company’s compliance with environmental laws and regulations and estimations of the materiality of any related costs; |
| - | statements as to the safety and reliability of the Company’s equipment, facilities and operations; |
| - | statements as to financial projections; |
| - | statements as to the ability of the Company to pay dividends; |
| - | statements as to the Company’s plans to renew municipal franchises and consents in the territories it serves; |
| - | 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 Form 10-K forplan assets; |
| - | statements as to trends; and |
| - | statements regarding the year ended December 31, 2008, filed on March 13, 2009.availability and quality of our water supply. |
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:
(b) | The material under - | the caption "Descriptioneffects of Capital Stock"general economic conditions; |
| - | increases in competition in the Company's Registration Statement on Form 8-A under Section 12(g)markets served by the Company; |
| - | the ability of the Securities Exchange ActCompany to control operating expenses and to achieve efficiencies in its operations; |
| - | the availability of 1934, which incorporatesadequate supplies of water; |
| - | actions taken by reference the information under "Common Stock" in the prospectus constituting a part of the Company's Registration Statementgovernment regulators, including decisions on Form S-1 (File No. 2-55058).base rate increase requests; |
| - | new or additional water quality standards; |
| - | weather variations and other natural phenomena; |
| - | the existence of financially attractive acquisition candidates and the risks involved in pursuing those acquisitions; |
| - | acts of war or terrorism; |
| - | significant changes in housing starts in Delaware; |
| - | the availability and cost of capital resources; |
| - | the ability to translate Preliminary Survey & Investigation charges into viable projects; and |
| - | other factors discussed elsewhere in this prospectus. |
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.”
(c) | All documents filed by the Company after the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, hereby are incorporated herein by reference and shall be deemed a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. |
USE OF PROCEEDS
CopiesWe will receive all of documents incorporated herein by reference may be obtained upon written or oral request without chargethe net proceeds from the headquarters officesale 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 Middlesex Water Company, 1500 Ronson Road, Iselin, New Jersey 08830 (732) 634-1500, Attn: A. Bruce O’Connor, Vice President & Chief Financial Officer (732) 638-7502.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.
DESCRIPTION OF THE PLAN
PURPOSE OF THE PLAN
1. | What is the purpose of the Plan? |
The purposeNo holder of Preferred Stock has any right to vote for the Plan is to promote long-term stock ownership among existing investors inelection of directors or, except as otherwise required by law, for any other purpose; provided, however, that if and whenever dividends on the Company by providing a convenient and economical method to purchase shares of Common Stock and reinvest cash dividends in shares of Common Stock.
ADVANTAGES AND DISADVANTAGES OF THE PLAN
2. | What are some advantages of enrolling in the Plan? |
| · | Cash dividends on the shares held in your Plan account can be automatically reinvested in shares of Common Stock. |
| · | You pay no commission or service charge on purchases made under the Plan. |
| · | You may purchase shares of Common Stock with optional cash payments of at least $25, subject to a maximum of $25,000 per calendar quarter. |
| · | Full investment of the funds you choose to invest is possible because fractional shares, as well as whole shares, will be credited to your Plan account. |
| · | Safekeeping of the shares held in your account is assured since those share certificates are not issued to you directly. |
| · | For simplified recordkeeping, you will receive regular statements of your Plan account. |
| · | If you are employed by the Company (or its subsidiaries and other affiliates), and are otherwise eligible to participate, you may make purchases through a program of regular payroll deductions. |
What are some disadvantages of enrolling in the Plan?
| · | You will be treated as having received dividend income on the dividend payment date for Federal income tax purposes; such dividends will generally give rise to a tax liability even though no cash was actually paid to you. |
outstanding
| · | You bear the risk of loss and the benefits of gain from market price changes for all of your shares of common stock. NEITHER WE NOR THE PLAN ADMINISTRATOR CAN GUARANTEE THAT SHARES OF COMMON STOCK PURCHASED UNDER THE PLAN WILL, AT ANY PARTICULAR TIME, BE WORTH MORE OR LESS THAN THEIR PURCHASE PRICE. |
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.
ADMINISTRATION OF THEConvertibility
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
3. | Who administers the Plan? |
The Plan is administered by RegistrarWe have an Amended and Transfer Company of Cranford, New Jersey (the “Plan Agent”). As Plan Agent, RegistrarRestated Dividend Reinvestment and Transfer Company keeps records, sends statements of account to Plan participants and performs other duties relating to the Plan. The Common Stock purchased in yourPurchase Plan account will be registered in the name(the “DRP”) under which (i) any person not currently a shareholder may purchase shares of the Plan Agent, or its nominee, as your agent. Youcommon stock having an aggregate value of at least $500 and not more than $10,000, and (ii) any current shareholders may at any time, withdrawhave cash dividends on all or any parta portion of the shares held in your Plan account. (See Questions 31 and 35.) Special arrangements may be made with the Plan Agent if you are an institution that is required by law to maintain physical possession of share certificates.
4. | How do I contact the Plan Agent or the Company? |
| Plan Agent | Company |
Written Inquiries: | Middlesex Water Company | Middlesex Water Company |
| c/o Registrar and Transfer Company | 1500 Ronson Road |
| Dividend Reinvestment Department | Iselin, New Jersey 08830 |
| 10 Commerce Drive | Attn: Investor Relations |
| Cranford, New Jersey 07016 | |
| | |
Phone Inquiries: | (800) 368-5948 | (732) 634-1500 |
5. | What kind of reports will be sent to participants in the Plan? |
As a participant, you will receive a statement of your account as soon as practicable after each transaction (i.e., dividend reinvestment, optional cash payments, share withdrawals, transfers, etc.) is posted to your Plan account. You should retain these statements in order to establish the cost basis of shares purchased under the Plan for income tax and other purposes. In addition, you will receive copies of all communications sent to all other shareholders, such as annual and quarterly reports, proxy statements and income tax information for reporting dividends paid. Under certain circumstances, in lieu of copies, you may receive a Notice of Internet Availability of Proxy Materials providing access to the Company’s proxy statement and annual report online.
PLAN ELIGIBILITY AND ENROLLMENT
6. | How does a Company shareholder become eligible to participate in the Plan? |
If you are already a registered shareholder of Common Stock (that is, your share certificates are registered directly in your name), you may enroll in the Plan by completing and returning the Authorization Form to the Plan Agent and following the instructions set forth in the following paragraph. If the stock you own is registered in more than one name (i.e., joint tenants, trustees, etc.), all registered holders must sign the Authorization Form. In addition, if the stock you own is registered in different names (i.e., “John Smith” and “J. Smith”), you must submit an Authorization Form for each registration in order to participate fully in the Plan.
To open a new Plan account, you will be required to authorize the reinvestment of dividends on at least ten (10)their shares of Company stock. If you currently own fewer than ten (10) registeredcommon stock or Preferred Stock automatically reinvested in newly issued shares youof common stock and may meet this enrollment requirement by authorizing the reinvestmentinvest up to an additional $25,000 per quarter in newly issued shares of dividends on the registered shares you currently own and including an optional cash payment with your Authorization Form sufficient to purchase the remainder of the ten (10) shares required to enroll. (Company employees should also refer to Question 11.)
7. | I already own shares, but they are held by my bank or broker and registered in “street name.” How can I participate? |
If you currently owncommon stock. Under the DRP, we may permit the purchase of shares of Common Stock that are held on your behalfcommon stock at ninety-five percent (95%) of market value for specified periods as announced by a bank or broker (that is, in “street name”), you will needus from time to arrange with your bank or broker to havetime. We last authorized the purchase of shares of common stock at least one (1) share registered directly in your name in order to be eligible to participate. Onceninety-five percent (95%) of market value during the share(s) is registered in your name, you may then enroll inperiod beginning February 1, 2010 and ending June 1, 2010. After June 1, 2010, the Plan as described in Question 6. (Company employees should also refer to Question 11.)
8. | I am not currently a shareholder. Can I participate in the Plan? |
You will first need to become a shareholderpurchase of record by purchasing at least one (1) share of Common Stock, and having a stock certificate issued in your name. You then may enroll in the Plan as described in Question 6. (Company employees should also refer to Question 11.)
9. | Are there fees associated with enrollment? |
No. The Company pays all fees, administrative and other expenses related to your Plan enrollment. However, you may incur certain charges for certain other transactions, requests or withdrawalsshares under the Plan. (See Questions 25, 33 and 35.DRP will be made at one hundred percent (100%)
10. | Are there any restrictions on participation in the Plan by shareholders residing outside the United States? |
Regulations of fair market value. No commission or service charge is paid by participants in certain countries may limit or prohibit participation in services provided under this type of program. Therefore, persons residing outside the United States should first determine whether they are subject to any governmental regulations prohibiting or limiting their participation before requestingconnection with any of the services provided through the Plan.
11. | Are there special eligibility or enrollment rules applicable to Company employees? |
Yes, if you are a Company employee or are an employee of one of the Company’s subsidiaries (which for purposes of the Plan, includes a subsidiary of one of the Company’s subsidiaries), you have the additional option of purchasing shares through automatic payroll deductions. (See Question 22 for details.) Employees who participate through the automatic payroll deduction option may open a Plan account simply by completing an Authorization Form and returning it to the Company (the ten (10) share minimum reinvestment requirement discussed in Question 6 is not applicable to employees participating through automatic payroll deductions). Employees of municipalities and municipal utility authorities under contract with the Company are not eligible to participate through automatic payroll deductions.
DIVIDEND REINVESTMENT
12. | What dividend reinvestment options are available in the Plan? |
(a) “Full Dividend Reinvestment” - Under this option, you direct the Company to reinvest the dividends on all of the shares of Common Stock registered in your name, as well as shares credited to your accounttheir purchases under the Plan. In addition, you may make additional investments by making optional cash payments;DRP. The cumulative amount of shares issued under the DRP as of April 29, 2010 is 1,841,759.
(b) “Partial Dividend Reinvestment” - Under this option, you direct the Company to reinvest the dividends on a portion of the shares of Common Stock registered in your name. Dividends on shares credited to your account under the Plan will be reinvested fully. In addition, you may make additional investments by making optional cash payments; or
(c) “Optional Cash Payments Only” - Under this option, you may participate in the Plan by making optional cash payments only. The Plan Agent will continue to pay cash dividends on the shares you hold outside the Plan. Dividends on shares credited to your account under the Plan (i.e., through the optional cash investments) will be reinvested fully.
The Plan Agent will return your Authorization Form to you if you fail to select one of these options or fail to sign the Authorization Form.
13. | Must my dividends be reinvested automatically to the extent I have chosen either Full Dividend Reinvestment or Partial Dividend Reinvestment? |
Yes. To the extent you have elected to participate in the Plan, cash dividends on those shares which are subject to reinvestment will be reinvested automatically in additional shares of Common Stock.PLAN OF DISTRIBUTION
14. | When will my dividends be reinvested and at what price? |
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.
If you are enrolledBy Underwriters
We may use an underwriter or underwriters in the Plan asoffer or sale of an applicable “record date” for dividends, either all or part of the dividends on your shares (depending on which option you have chosen) will be used to purchase shares of Common Stock as of the applicable dividend payment dates. Cash dividends on the Company’s Common Stock, when and as declared, are generally payable on the first business day of March, June, September and December.our securities.
| | The price of· | If we use an underwriter or underwriters, we will execute an underwriting agreement and the Common Stock tooffered securities will be purchased underacquired by the Plan is addressed in Questions 24 and 25.underwriters for their own account. |
15. | Will I be charged fees for participating· | 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 dividend reinvestment program?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. |
No. You will not be charged any fees in connection with the reinvestment of your dividends under the Plan. However, you may incur certain charges for certain other transactions, requests or withdrawals under the Plan. (See Questions 25, 33 and 35.)
OPTIONAL CASH PAYMENTS | · | The underwriters will use this prospectus and the prospectus supplement to sell our securities. |
16. | How does· | We may grant underwriters who participate in the cash paymentdistribution of our securities an option work? What areto purchase additional securities in connection with the minimum and maximum amounts for optional cash payments?distribution. |
AsBy Dealers
We may use a Plan participant, you may make optional cash payments at any time in amounts of at least $25, subjectdealer to a limitation of $25,000, per calendar quarter.sell our securities.
17. | How do I make an optional cash payment?· | If we use a dealer, we, as principal, will sell our securities to the dealer. |
If you choose to make an optional cash payment at the time of your enrollment in the Plan, you may do so by enclosing a check or money order made payable to the Plan Agent (that is, “Registrar and Transfer Company”) with your Authorization Form. Thereafter, you may make optional cash payments by sending a check or money order, together with the cash payment form attached to the statement of account you receive from the Plan Agent, to the Plan Agent (that is, “Registrar and Transfer Company”). | · | 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. |
18. | When· | We will optional cash payments be invested?include the name of the dealer and the terms of our transactions with the dealer in the prospectus supplement. |
If the Plan Agent receives your optional cash payment at least ten (10) days priorBy Agents
We may designate agents to the end of any month, it will invest your funds on the first business day of the next month. If the Plan Agent receives your payment fewer than ten (10) days priorsolicit offers to the end of any month, it will hold your funds and invest them on the first business day of the month following the next month. Only shares which are purchased prior to the applicable record date for dividends will be entitled to receive dividends. No interest will be paid on amounts held by the Plan Agent pending investment.purchase our securities.
| · | 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. |
| · | Unless indicated otherwise in the prospectus supplement, our agents will act on a best efforts basis for the period of their appointment. |
| · | An agent may be deemed to be underwriters under the Securities Act of any of our securities that they offer or sell. |
19. | Will I be charged fees for optional cash payments? |
By Delayed Delivery Contracts
No. You will not be charged any fees in connection with your optional cash payments. However, youWe may incurauthorize our agents and underwriters to solicit offers by certain charges for certain other transactions, requests or withdrawalsinstitutions to purchase our
securities at the public offering price under the Plan. (See Questions 25, 33 and 35.)delayed delivery contracts.
20. | Under what circumstances may an optional cash· | 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 returned to me? |
If the Plan Agent receives a written request from you to return your optional cash payment at least two (2) days prior to the day on which the Plan Agent is scheduled to purchase shares for you, the Plan Agent will return your payment.
No interest will be paid on amounts held by the Plan Agent
21. | How are payments with “insufficient funds” handled? |
If an optional cash payment is made by a check drawn on insufficient funds or incorrect draft information, or the Plan Agent otherwise does not receive the money, the requested purchase will be deemed void, and the Plan Agent will immediately remove from your account any shares already purchased upon the prior credit of such funds. The Plan Agent may, at its discretion, sell such shares to satisfy any uncollected amounts or return such shares to the Company. If the net proceeds from any sale of such shares are insufficient to satisfy the balance due, the Plan Agent may sell additional shares from your account as necessary to satisfy the uncollected balance.
22. | I am an employee eligible to participate (See Question 11). How can I make optional cash payments though automatic payroll deductions? |
If you are an eligible employee (See Question 11) and you have completed six (6) months of consecutive employment and you have already enrolled in the Plan (see Questions 6, 7, and 8), you can enroll to make optional cash payments through automatic payroll deductions by completing an Employee Authorization Form and submitting it to the Company (if you have not previously enrolled in the Plan, you may do so at the same time you enroll to make optional payroll deductions). The Company (and the Plan Agent) must receive your forms sufficiently in advance of your next paycheck to allow for processing. If you are paid weekly, you may authorize payroll deductions in a specified whole-dollar amount from each regular paycheck, subject to a $5 minimum and $100 maximum per pay period. If you are paid biweekly, the minimum deduction is $10 and the maximum deduction is $200 per pay period. Payroll deductions will be counted against the limitation on optional cash payments discussed in Question 16. Once authorized, payroll deductions will continue until changed or terminated by you.
No interest will be paid on payroll deductions held by the Company or the Plan Agent pending investment.
PURCHASE OF COMMON STOCK
23. | What isdemanded and securities delivered under the source of Company Common Stock purchased through the Plan?delayed delivery contracts. |
| | Share purchases· | These delayed delivery contracts will be made directly fromsubject only to the Company.conditions set forth in the prospectus supplement. |
24. | How many shares· | We will indicate in the prospectus supplement the commission that underwriters and agents soliciting purchases of Common Stockour securities under delayed delivery contracts will be purchased under the Plan and what will be the price of shares?entitled to receive. |
Your Plan accountWe 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 credited with the number of shares (including fractional shares, computed to four decimals) equal to the amount invested for your Plan account divided by the applicable price per share. Shares purchasedidentified and their compensation described in a prospectus supplement. We may indemnify agents, underwriters, and dealers against certain civil liabilities, including liabilities under the PlanSecurities 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 be purchased and credited to your account at the averagereceive compensation.
Representatives of the daily averagesunderwriters 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 highoffering 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 low sales pricespenalty bids may cause the price of Company Common Stock as reportedthe 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 NASDAQ Global Select Market foraggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.
five (5) days on which the Common Stock was traded immediately preceding and ending on the applicable date of purchase.LEGAL MATTERS
25. | Will the Company offer discounts on the price per share? |
Subject to certain limitations, the Company may, from time to time, offer shares to Plan participants at a discount of up to five percent (5%) from the purchase price described in Question 24. The following conditions will apply if and when the Company offers shares at a discount: (i) the Company may limit the number of shares offered at the discounted price; (ii) the Company may limit the time period during which the discounted price is in effect (but in no event will the time period be less than ninety (90) days); (iii) if you purchase shares at the discounted price and subsequently withdraw shares from your Plan account within six (6) months after the date of purchase, you will be charged a withdrawal fee equal to the applicable per share reduction in purchase price on all shares withdrawn (up to a maximum of the number of shares purchased at the discounted price). The withdrawal fee will be charged against your Plan account at the time of withdrawal, and will also apply to any purchases of shares made at the discounted price through automatic dividend reinvestment and employee payroll deductions (if applicable) during the six (6) month period before the date of withdrawal.
26. | Will I be charged fees in connection with purchases under the Plan? |
No. There are no brokerage fees or service charges applicable to purchases made under the Plan. However, you may incur certain charges for certain other transactions, requests or withdrawals under the Plan. (See Questions 25, 33 and 35.)
CUSTODIAL SERVICE
27. | How does the custodial service (book-entry shares) work? |
All shares of Company Common Stock that are purchased through the Plan will be held by the Plan Agent and reflected in book-entry form in your account on the records of the Plan Agent. If you hold Company Common Stock certificates you may also, at any time, deposit those certificates for safekeeping with the Plan Agent, and the shares represented by the deposited certificates will be included in the book-entry form in your Plan account.
28. | How do I deposit my Company Common Stock certificates with the Plan Agent? |
To deposit certificates into the Plan, you should send your certificates, by registered and insured mail, to the Plan Agent, with your written instructions to deposit the shares represented by the certificates to your Plan account.
The certificates should not be endorsed and the assignment section should not be completed.
29. | Are there any charges associated with this custodial service? |
No. There is no cost to you either for having the Plan Agent hold the shares purchased for you through the Plan or for depositing with the Plan Agent the stock certificates you hold for the purpose of adding the shares to your book-entry share position. However, you may incur certain charges for certain other transactions, requests or withdrawals under the Plan. (See Questions 25, 33 and 35.)
ISSUANCE OF STOCK CERTIFICATES
30. | Will stock certificates be issued for shares acquired through the Plan? |
No. Stock certificates will not be issued for shares in a Plan account unless a specific request is made to the Plan Agent.
31. | How do I request a stock certificate? |
Certificates for full shares held in the Plan may be obtained, without charge, by writing to the Plan Agent and requesting the issuance of shares in certificate form.
Certificates for fractional shares will not be issued under any circumstances.
32. | Can I pledge or assign the shares held in my Plan account? |
No. Shares held in your Plan account may not be pledged or assigned. If you wish to pledge or assign your shares, you first must write to the Plan Agent and request the issuance of shares in certificate form.
GIFTS AND TRANSFERS OF SHARES
33. | Can I transfer shares that I hold in the Plan to someone else? |
Yes. Subject to compliance with all applicable laws, you may transfer ownership of some or all of your Plan shares by sending the Plan Agent written, signed transfer instructions. You will be responsible for any applicable taxesCertain legal matters in connection with the transfer. Signatures of all registered holders must be “Medallion Guaranteed” by a financial institution participating in the Medallion Guarantee program. The Medallion Guarantee program ensures that the individual signing is in fact the owner as indicated on the participant’s account.
You may transfer shares to new or existing shareholders. If you are opening a new Plan account for the transferee, you must include a completed Authorization Form with the gift/transfer instructions; however, a new Plan account will not be opened as a result of a transfer of fewer than ten (10) shares, unless you (i) authorize the reinvestment of dividends on the shares to be transferred and (ii) include an optional cash payment with your transfer instructions sufficient to purchase the remaindervalidity of the ten (10) shares required to enroll.
CHANGING METHOD OF PARTICIPATION AND WITHDRAWAL
34. | How do I change my method of participation in the Plan? |
You may change your method of participation at any time by completing a new Authorization Form and returning it to the Plan Agent.
35. | How do I close my Plan account? |
You may terminate your participation in the Plan by giving written notice to the Plan Agent. Upon termination, you must elect either (a) to receive a certificate for the number of whole shares held in your Plan account and a check for the value of any fractional share (which value will be based on the closing market price of the Common Stock on the first day that thecommon stock is traded after the withdrawal request is received); or (b) to have all of the shares in your Plan account sold for you. If you request that your shares be sold, the Plan Agent will make the sale in the market, if practicable, within ten (10) trading days after receipt of the request. You will receive the proceeds of sale, less any brokerage commission and transfer tax. Receipt by the Plan Agent of due notice of a participant’s death or incompetence shall be deemed a notice of withdrawal.
Any certificates issued upon termination will be issued in the name or names in which the account is registered, unless otherwise instructed. If the certificate is to be issued in a name other than the name or names on your Plan account, your signature (and that of any co-owner) on the instructions or stock power must be “Medallion Guaranteed” by a financial institution participating in the Medallion Guarantee program. (See Question 33.) You will be responsible for any applicable taxes in connection with the transfer. No certificates will be issued for fractional shares.
The Plan Agent will process notices of withdrawal and send proceeds to you as soon as practicable, without interest. If a notice of withdrawal is received on or after an ex-dividend date but before the related dividend payment date, the withdrawal will be processed as described above and a separate dividend check will be mailed as soon as practicable following the payment date. Thereafter, cash dividends will be paid out to the shareholder and not reinvested in Company Common Stock.
If a notice of withdrawal is received by the Plan Agent at least two (2) days prior to an optional cash payment purchase date, any optional cash payment held by the Plan Agent will be returned to you as soon as practicable.
Plan withdrawals made within six (6) months after a purchase at a discounted price described in the answer to Question 25 are subject to the withdrawal fee explained in that answer.
| Employees participating through payroll deductions also must contact the Company. (See Question 36.) |
36. | I am an eligible employee investing though payroll deductions, do I need to do anything else to withdraw? |
Yes. In addition to sending a withdrawal request to the Plan Agent, you must notify the Company in writing in order to discontinue the payroll deductions. The Company must receive your request sufficiently in advance of your next paycheck to allow for processing. Any amounts held by the Company or the Plan Agent which have not been invested, will be returned to you, without interest.
37. | May I terminate automatic payroll deductions and still remain in the Plan? |
Yes. As an eligible employee, you may decide to terminate your payroll deductions but choose to leave your shares in the Plan and otherwise continue to participate. In such an instance, you may continue to make optional cash payments directly to the Plan Agent.
38. | After withdrawing from the Plan, may I later re-enroll? |
Generally, yes. As an eligible employee, you may re-enroll by following the procedures for enrollment described above; however, the Company reserves the right to reject your enrollment form if it believes that your participation may be contrary to the general intent of the Plan (promoting long-term ownership of Company shares) or is in violation of applicable law.
39. | Can the Company unilaterally terminate my participation in the Plan? |
The Company reserves the right to terminate you from the Plan if fewer than ten (10) shares of Common Stock are held in your Plan account and you no longer remain a record holder of Company Common Stock subject to automatic dividend reinvestment under the Plan. In such a case, you will be issued a check for the cash value of any fractional share in your Plan account. In addition, the Company reserves the right to terminate you from the Plan if it believes that your participation may be contrary to the general intent of the Plan (promoting long-term ownership of Company shares) or is in violation of applicable law.
ADDITIONAL INFORMATION
40. How would a stock split, stock dividend or rights offering affect my account?
Any shares resulting from a stock split or stock dividend paid on shares held in custody for you by the Plan Agent will be credited to your book-entry position. Of course you may request a certificate at any time for any or all of your shares. (See Question 31.) Stock dividends or split shares distributed on any certificated shares registered in your name will be mailed directly to you in the same manner as to stockholders who are not participating in the Plan.
Warrants representing rights on any shares registered in your name and on shares credited to your Plan account, will be mailed directly to you in the same manner as to stockholders not participating in the Plan.
41. | How do I vote my Plan shares at shareholders’ meetings? |
As a Plan participant, you will be sent a proxy statement in connection with each meeting of the Company’s shareholders, together with a proxy card representing the shares registered directly in your name and the whole shares held by the Plan Agent in your Plan account. This proxy card, when signed and returned, will be voted as you indicate. If the proxy card is not returned or if it is returned unsigned, the shares will not be voted unless you or a duly appointed representative votes in person at the meeting. As is the case with stockholders not participating in the Plan, if no instructions are indicated on a properly signed and returned proxy card, all of the shares represented by the proxy card will be voted in accordance with the recommendations of the Company’s management.
42. | Can the Plan be changed or discontinued? |
While the Company intends at the present time to continue the Plan indefinitely, the Company reserves the right to amend, suspend, modify or terminate the Plan at any time. Notice of any such amendment, suspension, modification or termination will be sent to all Plan participants. The Plan Agent reserves the right to resign at any time upon reasonable notice to the Company in writing. The Company reserves the right to elect and appoint at any time a new agent including itself or its nominee to administer the Plan.
Upon termination of the Plan by the Company, the Company or the Plan Agent, as the case may be, will return any uninvested optional cash payments and payroll deductions, issue a certificate for whole shares credited to each account under the Plan, and make a cash payment for any fractional share credited to each account.
43. | Who interprets and regulates the Plan? |
The Company reserves the right to interpret the Plan as may be necessary or desirable in connection with the operation of the Plan.
LIMITATION OF LIABILITY
IF YOU CHOOSE TO PARTICIPATE IN THE PLAN, YOU SHOULD RECOGNIZE THAT NEITHER THE COMPANY NOR THE PLAN AGENT CAN ASSURE YOU OF A PROFIT OR PROTECT YOU AGAINST A LOSS ON THE SHARES THAT YOU PURCHASE UNDER THE PLAN.
Neither the Company nor the Plan Agent, in administering the Plan, will be liable for any act done in good faith or for any good faith omission to act, including without limitation any claim of liability arising out of failure to terminate a participant's account upon such participant's death or incompetence, the price at which shares are purchased or sold for the participant's account, the times when purchases or sales are made, or fluctuations in the market value of Company Common Stock. This limitation of liability will not constitute a waiver by any participant of his or her rights under the federal securities laws.
Although the Plan provides for the reinvestment of dividends, the declaration and payment of dividends will continue to be determined by the Board of Directors of the Company in its discretion, depending upon future earnings, the financial condition of the Company and other factors. The amount and timing of dividends may be changed, or the payment of dividends terminated, at any time without notice.
U.S. FEDERAL INCOME TAXATION
Cash dividends reinvested under the Plan will be taxable for U.S. Federal income tax purposes as having been received by a participant even though the participant has not actually received them in cash. Each participant will receive an annual statement from the Plan Agent indicating the amount of reinvested dividends reported to the U.S. Internal Revenue Service as dividend income.
A participant will not realize gain or loss for U.S. Federal income tax purposes upon a transfer of shares to the Plan or the withdrawal of whole shares from the Plan. Participants will, however, generally realize gain or loss upon the receipt of cash for fractional shares held in the Plan. Gain or loss will also be realized by the participant when whole shares are sold by the participant after withdrawal from the Plan. The amount of gain or loss will be the difference between the amount that the participant receives for the shares or fraction of a share sold and the participant's tax basis therefor. In order to determine the tax basis for shares or any fraction of a share credited to a participant's account, each participant should retain all account statements and transaction advices.
Plan participants who are non-resident aliens or non-U.S. corporations, partnerships or other entities generally are subject to a withholding tax on dividends paid on shares held in the Plan. The Plan Agent is required to withhold from dividends paid the appropriate amount determined in accordance with Internal Revenue Service regulations. Where applicable, this withholding tax is determined by treaty between the United States and the country in which the participant resides. In addition, dividends paid on shares in Plan accounts are subject to the "backup withholding" provisions of the Internal Revenue Code. Accordingly, the amount of any dividends, net of the applicable withholding tax, will be credited to participant Plan accounts for investment in additional shares of Company Common Stock.
The foregoing does not purport to be a comprehensive summary of all of the tax considerations that may be relevant to a participant in the Plan and does not constitute tax advice. The summary does not reflect every possible outcome that could result from participation in the Plan, and does not consider any possible tax consequences under various state, local, foreign or other tax laws. Each participant is urged to consult his or her own tax advisor regarding the tax consequences applicable to his or her particular situation before participating in the Plan or disposing of shares purchased under the Plan.
USE OF PROCEEDS
Shares purchased for Plan participants with reinvested cash dividends and optional cash investments will, at the Company's option, be shares newly issued by the Company or shares held in the Company's treasury. The Company and the Plan Agent are unable to estimate the number of shares, if any, that will be purchased directly from the Company under the Plan or the amount of proceeds from any such shares. The net proceeds will be used by the Company for general corporate purposes.
LEGAL MATTERS
The legality of the Common Stock coveredoffered hereby will be passed upon for the Companyus by Norris, McLaughlin & Marcus, P.A., 721 Route 202-206, Bridgewater, New Jersey 08807.
EXPERTS 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, 20082009 and 20072008 and for each of the three years in the period ended December 31, 20082009 and management’smanagement’s assessment of the effectiveness of internal control over financial reporting as of December 31, 20082009 (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 Beard Miller Company, LLP,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.
WHERE YOU CAN FIND MORE INFORMATION
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.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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.
INDEMNIFICATIONIn 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.
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 Company's By-Laws provide for indemnificationdate of officers, directors and employees of the Company in certain circumstances for certain liabilities and expenses. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnificationthis prospectus is against public policy as expressed in the Securities Act, and is therefore unenforceable.
THIS PROSPECTUS SHOULD BE RETAINED BY PARTICIPANTS
IN THE PLAN FOR FUTURE REFERENCE.
|
May 13, 2010.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| |
| Item 14. | 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 | | To Be Paid By The Company | |
| Securities and Exchange Commission registration fee | | $ | 80.00 | |
| Accounting fees and expenses | | | 3,000.00 | |
| Legal fees and expenses | | | 7,500.00 | |
| Miscellaneous | | | 1,000.00 | |
| Total | | $ | 11,580.00 | |
| |
| Item 15. | Indemnification of Directors and Officers |
Item 15. Indemnification of Directors and Officers
Section 14A:3-5 of the New Jersey Business Corporation Act (the "NJBCA"“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'sperson’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'sCompany’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'sCompany’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,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,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."”
The Company has in effect a $20,000,000.00$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 May 31, 2009.June 1, 2010.
Pursuant to Section 14A:2-7 of the NJBCA, the Company'sCompany’s shareholders adopted an amendment to the Company'sCompany’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'sperson’s duty of loyalty to the Company or its shareholders, (b) not in good faith or involving a knowing violation of law, or (e)(c) resulting in receipt by such person of an improper personal benefit.
Item 16. Exhibits
Exhibits designated with an asterisk (*) are filed herewith. The exhibits not so designated have heretofore been filed with the Commission and are incorporated herein by reference to the documents indicated.
Exhibit
No.
| | Document Description |
| | | |
| 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 as amended 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 Auditors’ ConsentRegistered Public Accounting Firm. |
| | | |
| 23.2** | | Consent of Counsel is included in its legal opinion filed as Exhibit 5. |
| | | |
2424** | | Power of Attorney (is included as a part of the signature page of this registration statement). |
| | | |
99.1* | * | Authorization Form |
| | |
99.2* | | Employee Authorization FormTo 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. |
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "1933 Act"), may be available to directors, officers and controlling persons of the Company pursuant to the New Jersey Business Corporation Act, the By-laws of the Company, the Underwriting Agreement, or otherwise, the Company has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer, or controlling person of the Company 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 Company 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 1933 Act and will be governed by the final adjudication of such issue.
The undersigned Company hereby undertakes that:
| | (1) |
| Item 17. | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:Undertakings |
| | (i)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:
| | To include any prospectus required by section 10(a)(3) of the 1933Securities Act; |
| | (ii)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.statement; |
| | (iii)iii. | To include any material information with respect to the plan of distribution not previously disclosed in thethis registration statement or any material change to such information in the registration statement; |
Provided however, thatparagraphs (i), That paragraphs (a)1(i), (a)(1)(ii) and (a)(i)(iii) of this sectionabove 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 with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in thethis registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
Provided further, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is for an offering of asset-backed securities on Form S-1 (Rule 239.11 of this chapter) or Form S-3 (Rule 239.13 of this chapter), and the information required to be included in a post-effective amendment is provided pursuant to Item 1100(c) of Regulation AB.statement;
| (2)2. | For purposesThat, for the purpose of determining any liability under the 1933Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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. |
| (3) | For the purposes of determining any liability under the 1933 Act, each post-effective amendment that contains a form of prospectus 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 fidebonafide offering thereof. |
| | (4) | ForTo 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 |
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 1933Securities Act to any purchaser in the initial distribution of the securities,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: |
| | (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| | (ii) | 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; |
| | (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or usedits securities provided by or referred to byon behalf of the undersigned registrant; and |
| | (iv) | 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. |
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 this 9the 13th day of March, 2009.May, 2010.
| | MIDDLESEX WATER COMPANY |
| | | (Registrant) |
| | |
| | By: | |
| | 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 |
| | | | | |
| | | | | |
/s/ J. Richard Tompkins* | | Chairman of the Board and Director | | March 9, 2009 May 13, 2010 |
| J. Richard Tompkins | | | | |
| | | | | |
| | | | |
/s/ Kenneth J. QuinnA. Bruce O’Connor | | Vice President General Counsel, Corporate Secretary and TreasurerChief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | | March 9, 2009 May 13, 2010 |
Kenneth J. QuinnA. Bruce O’Connor | | | | |
| | | | | |
/s/ A. Bruce O’Connor | | Vice President and Chief Financial Officer (Principal Financial Officer and Principal | | March 9, 2009 |
A. Bruce O’Connor | | Accounting Officer) | | |
| | | | |
/s/ Dennis W. Doll* | | President, Chief Executive Officer and Director (Principal Executive Officer) | | March 9, 2009 May 13, 2010 |
| Dennis W. Doll | | | | |
| | | | | |
/s/ John C. Cutting* | | Director | | March 5, 2009 May 13, 2010 |
| John C. Cutting | | | | |
Signature | | Title | | Date |
| | | | | |
/s/ Annette Catino | | Director | | March 9, 2009May 13, 2010 |
| Annette Catino | | | | |
| | | | | |
/s/ John R. Middleton M.D. | | Director | | March 9, 2009May 13, 2010 |
| Steven M. Klein | | | | |
| | | | |
| | Director | | May 13, 2010 |
John R, Middeton,R. Middleton, M.D. | | | | |
| | | | | |
/s/ John P. Mulkerin | | Director | | March 9, 2009May 13, 2010 |
| John P. Mulkerin | | | | |
| | | | | |
/s/ Walter G. Reinhard | | Director | | March 5, 2009May 13, 2010 |
| Walter G. Reinhard | | | | |
| | | | | |
/s/ Jeffries Shein | | Director | | March 9, 2009May 13, 2010 |
| Jeffries Shein | | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| * By: | /s/ A. Bruce O’Connor | | | May 13, 2010 |
| A. Bruce O’Connor | | | |
| Attorney-In-Fact | | | |
II-5
II-6
