Chesapeake Utilities Corp - Shelf Registration Statement
As
filed with the Securities and Exchange Commission on July 5,
2006
Registration
No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Chesapeake
Utilities Corporation
(Exact
name of registrant as specified in its charter)
|
Delaware
|
51-0064146
|
|
(State
or other jurisdiction of incorporation or
organization)
|
(I.R.S.
Employer Identification No.)
|
909
Silver Lake Boulevard
Dover,
Delaware 19904
(302)
734-6799
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Michael
P. McMasters, Senior Vice President &
Chief
Financial Officer
Chesapeake
Utilities Corporation
909
Silver Lake Boulevard
Dover,
Delaware 19904
(302)
734-6799
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
Copies
to:
Jeffrey
E. Decker, Esq.
Baker
& Hostetler LLP
2300
SunTrust Center
200
S. Orange Avenue
Orlando,
Florida 32801
(407)
649-4000
Approximate
date of commencement of proposed sale to the public: From
time
to time after the effective date of this Registration Statement.
If
the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. [
]
If
any of
the securities being registered on this form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If
this
form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] _____________
If
this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. [ ]
If
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. [ ]
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of
securities
to be registered
|
Amount
to
be
registered
(1)
|
Proposed
maximum
offering
price
per unit
(1)
|
Proposed
maximum
aggregate
offering
price
(1)
|
Amount
of
registration
fee
(1)
|
|
Common
Stock, par value per share $0.4867
Debt
Securities
TOTAL
|
|
|
$40,000,000.00
|
$4,280.00
|
(1) The
Registrant is
registering an indeterminate aggregate initial offering price and number of
shares of common stock, par value per share $0.4867, and an indeterminate
aggregate amount of debt securities, as may from time to time be offered at
indeterminate prices. The maximum aggregate offering price for all securities
that the Registrant is registering is $40 million. Separate consideration may
or
may not be received for securities that are issuable on exercise, conversion
or
exchange of other securities. In accordance with Rule 457(o), the Registrant
is
required to specify only the maximum aggregate offering price for all classes
of
securities being registered.
The
Registrant hereby amends this registration statement on such date or dates
as
may be necessary to delay its effective date until the Registrant shall file
a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a),
may determine.
PROSPECTUS
Chesapeake
Utilities Corporation
Common
Stock and Debt Securities
We
may
offer, from time to time in one or more offerings, in amounts, at prices and
on
terms that we will determine at the time of offering, shares of our common
stock, par value per share $0.4867 (the “Common Stock”), and/or debt securities.
We will provide the specific terms of any offering of Common Stock and/or debt
securities in supplements to this prospectus. The prospectus supplements will
also describe the specific manner in which we will offer these securities and
may also supplement, update or amend information contained in this prospectus.
You should read this prospectus, the applicable prospectus supplement, and
any
documents incorporated by reference into this prospectus carefully before you
invest.
We
may
sell Common Stock and/or debt securities on a continuous or delayed basis
directly, through agents, dealers or underwriters as designated from time to
time, or through a combination of these methods. If any agents, dealers or
underwriters are involved in the sale of any securities, the applicable
prospectus supplement will set forth any applicable commissions or discounts.
Our net proceeds from the sale of securities also will be set forth in the
applicable prospectus supplement.
Our
Common Stock is listed on the New York Stock Exchange under the symbol, “CPK.”
The last reported sale price of our common shares on the New York Stock Exchange
on [_______], 2006 was $[________] per share.
These
Securities have not been approved or disapproved by the Securities and Exchange
Commission or any state securities commission, nor has the Securities and
Exchange Commission or any state securities commission passed upon the accuracy
or adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is [_________], 2006.
We
have not authorized any dealer, salesman or other person to give any information
or to make any representation other than those contained or incorporated by
reference in this prospectus or any applicable supplement to this prospectus.
You must not rely upon any information or representation not contained or
incorporated by reference in this prospectus or any applicable supplement to
this prospectus as if we had authorized it. This prospectus and any applicable
prospectus supplement do not constitute an offer to sell or the solicitation
of
an offer to buy any securities other than the registered securities to which
they relate. Nor do this prospectus and any accompanying prospectus supplement
constitute an offer to sell or the solicitation of an offer to buy securities
in
any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. You should not assume that the information
contained in this prospectus or any applicable prospectus supplement is correct
on any date after its date, even though this prospectus or a supplement is
delivered or securities are sold on a later date.
TABLE
OF CONTENTS
|
Forward-Looking
Information
|
2
|
|
About
This Prospectus
|
2
|
|
Where
You Can Find More Information
|
3
|
|
Incorporation
of Certain Information by Reference
|
3
|
|
The
Company
|
5
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|
Use
of Proceeds
|
5
|
|
Description
of Common Stock
|
5
|
|
Description
of Debt Securities
|
8
|
|
Ratio
of Earnings to Fixed Charges
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8
|
|
Plan
of Distribution
|
8
|
|
Experts
|
10
|
|
Legal
Matters
|
10
|
FORWARD-LOOKING
INFORMATION
This
prospectus and the applicable prospectus supplements include and incorporate
by
reference forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We intend
such forward-looking statements to be covered by the safe harbor provisions
for
forward-looking statements contained in the Private Securities Litigation Reform
Act of 1995. Forward-looking statements are generally identifiable by use of
the
words “believe,” “expect,” “intend,” “anticipate,” “plan,” “estimate,” “project”
or similar expressions. Our ability to predict results or the actual effect
of
future plans or strategies is inherently uncertain. Actual results could differ
materially from those in forward-looking statements because of, among other
reasons, the factors described under the caption “Risk Factors” in the periodic
reports that we file with the Securities and Exchange Commission. We undertake
no obligation to publicly update or revise any forward-looking statements,
whether as a result of new information, future events or otherwise.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission using a “shelf” registration process. Under this shelf
process, we may sell any combination of our Common Stock and/or debt securities
described in this prospectus in one or more offerings up to a total amount
of
$40,000,000.00. This prospectus only provides you with a general description
of
the securities we may offer. Each time we sell securities, we will provide
a
prospectus supplement that will contain specific information about the terms
of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and the applicable prospectus supplement together with additional information
described under the headings, “Where You Can Find More Information” and
“Incorporation of Certain Information by Reference.”
Unless
otherwise indicated or unless the context requires otherwise, all references
in
this prospectus to “we,” “us,” “our,” the “Company,” the “Registrant” or
“Chesapeake” mean Chesapeake Utilities Corporation and all entities owned or
controlled by Chesapeake Utilities Corporation. When we refer to our
“Certificate of Incorporation,” we mean Chesapeake Utilities Corporation’s
Amended Certificate of Incorporation, and when we refer to our “Bylaws,” we mean
Chesapeake Utilities Corporation’s Amended Bylaws.
WHERE
YOU CAN FIND MORE INFORMATION
We
file
annual, quarterly and special reports, proxy statements and other information
with the Securities and Exchange Commission (the “SEC”) pursuant to the Exchange
Act. Such filings are available to the public from the SEC’s website at
http://www.sec.gov. You may also read and copy any document we file with the
SEC
at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C.
20549. You may obtain copies of any document filed by us at prescribed rates
by
writing to the Public Reference Section of the SEC at that address. You may
obtain information about the operation of the SEC’s Public Reference Room by
calling the SEC at 1-800-SEC-0330. You may inspect reports and other information
that we file at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005. Information about us, including our filings,
is also available on our website at http://www.chpk.com; however, that
information is not part of this prospectus or any accompanying prospectus
supplement.
We
have
filed a registration statement, of which this prospectus is a part, and related
exhibits with the SEC under the Securities Act. That registration statement
contains additional information about us and the Common Stock and debt
securities. You may inspect the registration statement and exhibits without
charge at the SEC’s Public Reference Room or at the SEC’s web site set forth
above, and you may obtain copies from the SEC at prescribed rates.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC
allows us to “incorporate by reference” the information contained in documents
we file with the SEC, which means that we can disclose important information
to
you by referring to those documents. The information incorporated by reference
is an important part of this prospectus. Any statement contained in a document
that is incorporated by reference in this prospectus is automatically updated
and superseded if information contained in this prospectus, or information
that
we later file with the SEC, modifies or replaces that information. Any statement
made in this prospectus or any prospectus supplement concerning the contents
of
any contract, agreement or other document is only a summary of the actual
contract, agreement or other document. If we have filed or incorporated by
reference any contract, agreement or other document as an exhibit to the
registration statement, you should read the exhibit for a more complete
understanding of the document or matter involved. Each statement regarding
a
contract, agreement or other document is qualified in its entirety by reference
to the actual document.
We
incorporate by reference the following documents we filed, excluding any
information contained therein or attached as exhibits thereto which has been
furnished to, but not filed with, the SEC:
| |
(a)
|
Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2005,
filed on March 7, 2006;
|
| |
(b)
|
Our
Current Report on Form 8-K dated March 11, 2006, filed on March 16,
2006;
|
| |
(c)
|
Our
definitive Proxy Statement on Schedule 14A filed on March 31,
2006;
|
| |
(d)
|
Our
Current Report on Form 8-K dated May 2, 2006, filed on May 3,
2006;
|
| |
(e)
|
Our
Current Report on Form 8-K dated May 1, 2006, filed on May 5,
2006;
|
| |
(f)
|
Our
Current Report on Form 8-K dated May 5, 2006, filed on May 5,
2006;
|
| |
(g)
|
Our
Quarterly Report on Form 10-Q for the quarterly period ended
March 31,
2006, filed on May 10, 2006;
|
| |
(h)
|
Our
Current Report on Form 8-K dated May 31, 2006, filed on June
2,
2006;
|
| |
(i)
|
Our
Current Report on Form 8-K dated June 13, 2006, filed on June
19,
2006;
|
| |
(j)
|
The
description of our preferred stock purchase rights contained
in our
Registration Statement on Form 8-A filed on August 24, 1999,
and all
amendments or reports filed with the SEC for the purpose of updating
such
description, and further described in the section, “Description of Common
Stock”; and
|
| |
(k)
|
The
description of our Common Stock contained in our registration
statements
filed pursuant to Section 12 of the Exchange Act, and all amendments
or
reports filed with the SEC for the purpose of updating such description,
and further described in the section, “Description of Common
Stock.”
|
Any
documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date of this prospectus and prior to the termination of the
offering of the securities to which this prospectus relates will automatically
be deemed to be incorporated by reference in this prospectus and a part of
this
prospectus from the date of filing such documents; provided however, that we
are
not incorporating, in each case, any documents or information contained therein
that has been furnished to, but not filed with, the SEC.
To
receive a free copy of any of the documents incorporated by reference in this
prospectus (other than exhibits, unless they are specifically incorporated
by
reference in any such documents), call or write Chesapeake Utilities
Corporation, 909 Silver Lake Boulevard, Dover, Delaware 19904, Attention:
Michael P. McMasters, Senior Vice President and Chief Financial Officer,
telephone number (302) 734-6799. We also maintain a web site that contains
additional information about us (http://www.chpk.com).
You
should rely only on the information incorporated by reference or set forth
in
this prospectus or the applicable prospectus supplement. We have not authorized
anyone else to provide you with different information. We may only use this
prospectus to sell securities if it is accompanied by a prospectus supplement.
We are offering these securities only in states where the offer is
permitted.
You
should not assume that the information in this prospectus or the applicable
prospectus supplement is accurate as of any date other than the dates on the
front pages of these documents.
THE
COMPANY
We
are a
diversified utility company engaged directly or through subsidiaries in natural
gas distribution, transmission and marketing, propane distribution and wholesale
marketing, advanced information services and other related businesses. We are
a
Delaware corporation that was formed in 1947. Our three natural gas distribution
divisions serve approximately 54,800 residential, commercial and industrial
customers in central and southern Delaware, Maryland’s Eastern Shore and parts
of Florida. Our natural gas transmission subsidiary, Eastern Shore Natural
Gas
Company, operates a 331-mile interstate pipeline system that transports gas
from
various points in Pennsylvania to our Delaware and Maryland distribution
divisions, as well as to other utilities and industrial customers in southern
Pennsylvania, Delaware and on the Eastern Shore of Maryland. Our propane
distribution operation serves approximately 32,900 customers in central and
southern Delaware, the Eastern Shore of Maryland and Virginia, southeastern
Pennsylvania, and parts of Florida; and our wholesale propane marketing
subsidiary markets propane to large independent and petrochemical companies,
resellers and retail propane companies in the United States. Our advanced
information services segment provides domestic and international clients with
information technology-related business services and solutions for both
enterprise and e-business applications.
Our
principal executive office is located at 909 Silver Lake Boulevard, Dover,
Delaware 19904, and our telephone number is (302) 734-6799. Our website address
is http://www.chpk.com. Information on our website does not constitute part
of
this prospectus.
USE
OF PROCEEDS
Unless
otherwise specified in a prospectus supplement, the net proceeds from the sale
of Common Stock and/or debt securities will be added to our general corporate
funds and may be used for general corporate purposes including, but not limited
to, financing of capital expenditures, repayment of short-term debt, funding
share repurchases, financing acquisitions, investing in subsidiaries and general
working capital purposes. Prior to such application, all or a portion of the
net
proceeds may be invested in short-term investments.
DESCRIPTION
OF COMMON STOCK
Our
Certificate of Incorporation authorizes us to issue up to 12,000,000 shares
of
Common Stock, par value per share $0.4867. As of March 31, 2006, we had
5,931,487 shares of Common Stock outstanding. In addition, as of March 31,
2006,
we have reserved 572,373 shares of Common Stock for issuance under our
equity-based compensation plans and 30,000 shares of Common Stock for issuance
upon the exercise of warrants. Our Certificate of Incorporation also authorizes
us to issue up to 2,000,000 shares of preferred stock, par value per share
$0.01; however, no shares of preferred stock are outstanding. Our Common Stock
is listed on the New York Stock Exchange under the symbol, “CPK.” The transfer
agent and registrar of the Common Stock is Computershare Trust Company,
N.A.,
P.O.
Box 43010, Providence, Rhode Island 02940-3010.
The
following descriptions of our Common Stock and preferred stock set forth certain
of their general terms and provisions. The following descriptions are in all
respects subject to and qualified by reference to the applicable provisions
of
our Certificate of Incorporation and our Bylaws.
Holders
of our Common Stock are entitled to receive dividends when, as and if declared
by our Board of Directors, out of funds legally available therefor. If we are
liquidated, dissolved or involved in any winding-up, the holders of our Common
Stock are entitled to receive ratably any assets legally available for
distribution to holders of Common Stock. Holders of our Common Stock possess
ordinary voting rights, with each share entitling the holder to one vote.
Directors are elected by a plurality of the votes cast by the holders of our
Common Stock present in person or represented by proxy at the meeting and
entitled to vote for the election of directors. Holders of our Common Stock
do
not have preemptive rights, which means that they have no right to acquire
any
additional shares of Common Stock that we may subsequently issue (other than
pursuant to the Rights, described below). Holders of our Common Stock also
do
not have conversion or subscription rights, and the Common Stock is not subject
to redemption by the Company.
All
of
our shares of Common Stock currently outstanding are, and any shares of Common
Stock offered hereby when issued will be, fully paid and
nonassessable.
We
may
issue preferred stock from time to time, by authorization of our Board of
Directors and without the necessity of further action or authorization by our
stockholders, in one or more series and with such voting powers, designations,
preferences and relative, participating, optional or other special rights and
qualifications as our Board may, in its discretion, determine, including, but
not limited to (a) the distinctive designation of such series and the number
of
shares to constitute such series; (b) the dividends, if any, for such series;
(c) the voting power, if any, of shares of such series; (d) the terms and
conditions (including price), if any, upon which shares of such stock may be
converted into or exchanged for shares of stock of any other class or any other
series of the same class or any other securities or assets; (e) our right,
if
any, to redeem shares of such series and the terms and conditions of such
redemption; (f) the retirement or sinking fund provisions, if any, of shares
of
such series and the terms and provisions relative to the operation thereof;
(g)
the amount, if any, which the holders of the shares of such series shall be
entitled to receive in case of our liquidation, dissolution or winding-up;
(h)
the limitations and restrictions, if any, upon the payment of dividends or
the
making of other distributions on, and upon our purchase, redemption, or other
acquisition of, our Common Stock; and (i) the conditions or restrictions, if
any, upon the creation of indebtedness or upon the issuance of any additional
stock.
Under
our
Certificate of Incorporation, the affirmative vote of not less than 75% of
the
total voting power of all outstanding shares of our stock is required to approve
our merger or consolidation with, or the sale of all or substantially all of
our
assets or business to, any other corporation (other than a corporation 50%
or
more of the common stock of which we own), if such corporation or its affiliates
singly or in the aggregate own or control directly or indirectly 5% or more
of
our outstanding shares of Common Stock, unless the transaction is approved
by
our Board of Directors prior to the acquisition by such corporation or its
affiliates of ownership or control of 5% or more of our outstanding shares
of
Common Stock. In addition, our Certificate of Incorporation provides for a
classified Board of Directors under which one-third of the members are elected
annually for three-year terms. The supermajority voting requirement for certain
mergers and consolidations and our classified Board of Directors may have the
effect of delaying, deferring or preventing a change in control of the
Company.
On
August
25, 1999, we filed with the SEC a Registration Statement on Form 8-A with
respect to Rights (defined below) to purchase our Series A Participating
Cumulative Preferred Stock, par value per share $0.01 (the “Preferred Shares”).
On August 20, 1999, our Board of Directors declared a dividend distribution
of
one preferred share purchase right (a “Right”) for each outstanding share of our
Common Stock. The dividend was payable to the stockholders of record on
September 3, 1999 (the “Record Date”). One Right will also be issued with each
share of Common Stock issued thereafter until the Distribution Date (defined
below) and, in certain circumstances, with each share of Common Stock issued
after the Distribution Date. Except as set forth below, each Right, when it
becomes exercisable, entitles the registered holder to purchase from the Company
one-fiftieth of a Preferred Share at a price of $54.56 (the “Purchase Price”),
subject to adjustment. The description and terms of the Rights and the
definition of the “Distribution Date” are set forth in a Rights Agreement (the
“Rights Agreement”) between the Corporation and Computershare Trust Company,
N.A., successor to BankBoston, N.A., as Rights Agent (the “Rights Agent”), dated
as of August 20, 1999. The Rights are not exercisable until the Distribution
Date and will expire at the close of business on August 20, 2009, unless earlier
redeemed by the Company. The Registration Statement on Form 8-A, and the Rights
Agreement attached thereto as an exhibit, are incorporated herein by reference.
This description of the Rights, the Rights Agreement and the Preferred Shares
is
in all respects subject to and qualified by reference to the Registration
Statement on Form 8-A, the Rights Agreement attached thereto as an exhibit
and
the applicable provisions of our Certificate of Incorporation and our
Bylaws.
The
Preferred Shares purchasable upon exercise of the Rights will not be redeemable.
Each Preferred Share will be entitled to a minimum preferential quarterly
dividend payment equal to the greater of (i) $13.00 per share (or $0.26 per
1/50th of a Preferred Share) and (ii) an aggregate dividend per share of 50
times (subject to adjustment) the dividend declared per share of Common Stock.
In the event of liquidation, the holders of the Preferred Shares will be
entitled to a minimum preferential liquidation payment of $900.00 per share
(or
$18.00 per 1/50th of a Preferred Share); thereafter, and after the holders
of
the Common Stock receive a liquidation payment of $18.00 per share, the holders
of the Preferred Shares and the holders of the Common Stock will share the
remaining assets in the ratio of 50 (subject to adjustment) to one for each
Preferred Share and share of Common Stock so held, respectively. In the event
of
any merger, consolidation or other transaction in which Common Stock is
exchanged, each Preferred Share will be entitled to receive 50 times (subject
to
adjustment) the amount received per share of Common Stock. The holders of
Preferred Shares will be entitled to vote on all matters submitted to a vote
of
the Common Stock (with the Preferred Shares being entitled to 50 votes per
share). In the event that the amount of accrued and unpaid dividends on the
Preferred Shares is equivalent to six full quarterly dividends or more, the
holders of the Preferred Shares shall have the right, voting as a class, to
elect two directors in addition to the directors elected by the holders of
the
Common Stock until all cumulative dividends on the Preferred Shares have been
paid through the last quarterly dividend payment date. These rights are
protected by customary anti-dilution provisions.
Because
of the nature of the dividend, liquidation and voting rights of the Preferred
Shares, the value of a one-fiftieth interest in a Preferred Share purchasable
upon the exercise of a Right should approximate the value of one share of Common
Stock.
The
Rights approved by the Board of Directors of the Company were designed to
protect the value of the outstanding Common Stock in the event of an unsolicited
attempt by an acquirer to take over the Company in a manner or on terms not
approved by the Board of Directors. The Rights were not intended to prevent
a
takeover of the Company at a fair price and should not interfere with any merger
or business combination approved by the Board of Directors. The Rights have
no
dilutive effect, nor do they affect reported earnings per share or change the
way in which the Common Stock is traded.
The
Rights may have the effect of rendering more difficult or discouraging an
acquisition of the Company deemed undesirable by the Board of Directors. If
a
person or group attempts to acquire the Company on terms or in a manner not
approved by the Board of Directors, then the Rights may cause such person’s or
group’s ownership interest to become substantially diluted unless the offer
includes, as a condition to the acquisition, a provision that the Rights will
be
purchased, redeemed or otherwise effectively eliminated.
DESCRIPTION
OF DEBT SECURITIES
A
description of the debt securities that we may offer will be included in an
applicable prospectus supplement.
RATIO
OF EARNINGS TO FIXED CHARGES
Our
ratios of earnings to fixed charges for the fiscal years ended December 31,
2001
- 2005, were as follows:
|
Time
Period
|
|
Ratio
|
|
|
2001
|
|
|
3.23
|
|
|
2002
|
|
|
3.26
|
|
|
2003
|
|
|
3.66
|
|
|
2004
|
|
|
3.73
|
|
|
2005
|
|
|
4.10
|
|
Our
ratio
of earnings to fixed charges for the quarterly period ended March 31, 2006,
was
7.38.
The
ratio
of earnings to fixed charges is computed by dividing fixed charges into earnings
plus fixed charges. For purposes of computing this ratio, earnings have been
calculated as pretax income from continuing operations before adjustment for
minority interests in consolidated subsidiaries. Fixed charges include a portion
of rents representative of the interest factor, interest on indebtedness and
the
amortization of debt discounts and expenses.
PLAN
OF DISTRIBUTION
We
may
sell securities offered pursuant to any applicable prospectus supplement to
one
or more underwriters for public offering and sale by them or we may sell such
securities to investors directly or through agents, some of which may be
dealers. We may also sell the securities through a combination of these methods.
The name of any underwriter or agent involved in the offer and sale of such
securities will be included in the applicable prospectus
supplement.
The
distribution of securities offered pursuant to any applicable prospectus
supplement may occur:
| |
(a)
|
at
a fixed price or prices, which may be
changed;
|
| |
(b)
|
at
market prices prevailing at the time of sale;
|
| |
(c)
|
at
prices related to prevailing market prices;
or
|
| |
(d)
|
at
negotiated prices.
|
From
time
to time, we may also authorize underwriters acting as our agents to offer and
sell securities upon the terms and conditions set forth in an applicable
prospectus supplement. Underwriters may be deemed to have received compensation
from us in the form of underwriting discounts or commissions in connection
with
the sale of securities offered pursuant to any applicable prospectus supplement.
Underwriters may also receive commissions from purchasers of securities for
whom
such underwriters may act as agent. Underwriters may sell securities offered
pursuant to any applicable prospectus supplement to or through dealers. Such
dealers may receive compensation in the form of discounts, concessions from
the
underwriters or commissions from the purchasers for whom such dealers may act
as
agent.
We
may
enter into derivative transactions with third parties, or sell securities not
covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement so indicates, in
connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including short
sale transactions. If so, the third party may use securities pledged by us
or
borrowed from us or others to settle those sales or to close out any related
open borrowings of common shares, and may use securities received from us in
settlement of those derivatives to close out any related open borrowings of
common shares. The third party in such sale transactions will be an underwriter
and, if not identified in this prospectus, will be identified in the applicable
prospectus supplement or a post-effective amendment to this registration
statement.
We
will
describe in the applicable prospectus supplement any underwriting compensation
we pay to underwriters or agents in connection with any offering of securities.
Likewise, we will also describe any discounts, concessions or commissions
allowed by underwriters to participating dealers in the applicable prospectus
supplement. Underwriters, dealers and agents participating in the distribution
of the securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
securities may be deemed to be underwriting discounts and commissions. We may
enter into agreements to indemnify underwriters, dealers and agents against
certain civil liabilities, including liabilities under the Securities Act,
and
to reimburse these persons for certain expenses. We will describe any
indemnification agreements in the applicable prospectus supplement.
If
indicated in the applicable prospectus supplement, we may authorize dealers
acting as our agents to solicit offers by certain institutions to purchase
the
securities from us at the public offering price set forth in such prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on the date or dates stated in the prospectus supplement. Each delayed
delivery contract will be for an amount not less than the respective amounts
stated in the applicable prospectus supplement. Likewise, the aggregate
principal amount of the securities sold pursuant to delayed delivery contracts
will not be less or more than the respective amounts stated in the applicable
prospectus supplement. We may make delayed delivery contracts with various
institutions, including commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions,
and other institutions. Delayed delivery contracts will always be subject to
our
approval. Delayed delivery contracts will not be subject to any conditions
except the following:
| |
(a)
|
The
purchase by an institution of the securities covered by its delayed
delivery contracts shall not at the time of delivery be prohibited
under
the laws of any jurisdiction in the United States to which such
institution is subject; and
|
| |
(b)
|
If
the securities are being sold to underwriters, we shall have sold
to such
underwriters the total principal amount of the offered securities
less the
principal amount covered by the delayed delivery
contracts.
|
Certain
of the underwriters or their affiliates may, but will not necessarily, be
customers of, engage in transactions with or perform services for us or one
or
more of our subsidiaries in the ordinary course of our and/or their business.
It
is also possible that certain of the underwriters or their affiliates may be
affiliates of banking institutions or other financial services firms with which
we or one or more of our subsidiaries has a pre-existing business
relationship.
EXPERTS
The
consolidated financial statements and management’s assessment of the
effectiveness of internal control over financial reporting (which is included
in
Management’s Report on Internal Control Over Financial Reporting) incorporated
in this prospectus by reference to the Annual Report on Form 10-K for the year
ended December 31, 2005, have been so incorporated in reliance on the report
of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
LEGAL
MATTERS
The
validity of the Common Stock and debt securities will be passed upon for the
Company by Baker & Hostetler LLP, Orlando, Florida. Any underwriters will
also be advised about the validity of the securities and other legal matters
by
their own counsel, which will be named in the prospectus
supplement.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the fees and expenses in connection with the issuance
and distribution of the securities being registered hereunder. Except for the
SEC registration fee, all amounts are estimates. Certain amounts that cannot
be
presently estimated will be provided in amendments to this registration
statement.
|
SEC
registration fee
|
|
$
|
4,280.00
|
|
|
NYSE
listing fee
|
|
|
5,000.00
|
|
|
Accounting
fees and expenses
|
|
|
70,000.00
|
|
|
Legal
fees and expenses (other than Blue Sky)
|
|
|
50,000.00
|
|
|
Blue
Sky fees and expenses (including counsel fees)
|
|
|
5,000.00
|
|
|
Printing
and engraving expenses
|
|
|
20,000.00
|
|
|
Transfer
agent’s and registrar’s fees and expenses
|
|
|
10,000.00
|
|
|
Rating
Agency fees
|
|
|
50,000.00
|
|
|
Miscellaneous
expenses
|
|
|
10,000.00
|
|
|
Total
|
|
$
|
224,280.00
|
|
Item
15. Indemnification of Directors and Officers.
Under
the
Company’s Bylaws, each person who was or is made a party or is threatened to be
made a party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact he is or was a director
or officer of the Company, or is or was serving at the request of the Company
as
a director or officer of another corporation or of a partnership, joint venture,
trust or other enterprise (including employee benefit plans), is entitled to
indemnification and to be held harmless by the Company to the fullest extent
permitted by the General Corporation Law of the State of Delaware (the “DGCL”)
against all expense, liabilities and loss (including attorneys’ fees, judgments,
fines or penalties and amounts paid in settlement) reasonably incurred or
suffered by such person in connection therewith, including liabilities arising
under the Securities Act. These indemnification rights include the right to
be
paid by the Company the expenses incurred in defending any action, suit or
proceeding in advance of its final disposition, subject to the receipt by the
Company of an undertaking by or on behalf of such person to repay all amounts
so
advanced if it is ultimately determined that such person is not entitled to
be
indemnified. These indemnification rights under the Bylaws are not exclusive
of
any other indemnification right which any person may have or acquire under
any
law, bylaw, agreement, vote of stockholders, disinterested directors or
otherwise.
Under
Section 145 of the DGCL, a corporation may indemnify any person who was or
is a
party, or is threatened to be made a party, to any action, suit, or proceeding
by reason of the fact that he is or was a director or officer of such
corporation if such person acted in good faith and in a manner he reasonably
believed to be in and not opposed to the best interest of the corporation and,
with respect to a criminal action or proceeding, such person had no reasonable
cause to believe that his conduct was unlawful, except that, in the case of
any
action or suit by or in the right of the corporation (such as a derivative
action), no indemnification is permitted if the person shall be adjudged liable
to the corporation (other than indemnification for such expenses as a court
shall determine such person is fairly and reasonably entitled).
Article
Eleven of the Company’s Certificate of Incorporation provides that a director of
the Company shall not be personally liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (a) for breach of the director’s duty of loyalty to the Company or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174
of
the DGCL, or (d) for any transaction from which the director derived an improper
personal benefit.
The
Company has in effect liability insurance policies covering certain claims
against any director or officer of the Company by reason of certain breaches
of
duty, neglect, error, misstatement, omission or other act committed by such
person in his capacity as director or officer.
Item
16. Exhibits.
A
list of
exhibits filed herewith or incorporated by reference is contained in the Exhibit
Index, which is incorporated herein by reference.
Item
17. Undertakings.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
| |
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
|
| |
(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 a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation
of Registration Fee”
table in the effective Registration Statement; and
|
| |
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
|
provided,
however, that paragraphs (i), (ii) and (iii) do not apply if the Registration
Statement is on Form S-3 and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed
with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by
reference in the Registration Statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for
the purpose of determining any liability under the Securities Act of 1933,
each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That,
for
the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i)
(A) 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
(B) 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 the 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; and
(5) That,
for
the purpose of determining liability of the Registrant under the Securities
Act
to any purchaser in the initial distribution of the securities, 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 its
securities provided by or on 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 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 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.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers, and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that, in the opinion of the 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.
(d) The
undersigned Registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
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 City of
Dover, State of Delaware, on June 15, 2006.
CHESAPEAKE
UTILITIES CORPORATION
By:
/s/
John R. Schimkaitis
John
R.
Schimkaitis
President
and Chief Executive Officer
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints John R. Schimkaitis, Michael P. McMasters and Beth
W.
Cooper, or any of them, his or her true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him or her and in his
or
her name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file same, with all exhibits
thereto, and other documents in connection therewith, with the Commission,
granting unto said attorneys-in-fact and agents, and each of them, 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
all
that the attorneys-in-fact and agents or any of them, 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 and on the dates
indicated.
|
/s/
Ralph J. Adkins
|
/s/
John R. Schimkaitis
|
|
Ralph
J. Adkins, Chairman of the Board
|
John
R. Schimkaitis, President,
|
|
and
Director
|
Chief
Executive Officer and Director
|
|
Date:
June 15, 2006
|
Date:
June 15, 2006
|
| |
|
|
/s/
Michael P. McMasters
|
/s/
Eugene H. Bayard
|
|
Michael
P. McMasters, Senior Vice President
|
Eugene
H. Bayard, Director
|
|
and
Chief Financial Officer
|
Date: June
15, 2006
|
|
(Principal
Financial and Accounting Officer)
|
|
|
Date:
June 15, 2006
|
|
| |
|
|
/s/
Richard Bernstein
|
/s/
Thomas J. Bresnan
|
|
Richard
Bernstein, Director
|
Thomas
J. Bresnan, Director
|
|
Date:
June 15, 2006
|
Date:
June 15, 2006
|
| |
|
|
/s/
Walter J. Coleman
|
/s/
Thomas P. Hill, Jr.
|
|
Walter
J. Coleman, Director
|
Thomas
P. Hill, Jr., Director
|
|
Date:
June 15, 2006
|
Date:
June 15, 2006
|
| |
|
|
/s/
J. Peter Martin
|
/s/
Joseph E. Moore
|
|
J.
Peter Martin
|
Joseph
E. Moore, Esq., Director
|
|
Date:
June 15, 2006
|
Date:
June 15, 2006
|
| |
|
|
/s/ Calvert
A. Morgan, Jr.
|
|
|
Calvert
A. Morgan, Jr., Director
|
|
|
Date:
June 15, 2006
|
|
CHESAPEAKE
UTILITIES CORPORATION
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
1.1
|
Form
of Underwriting Agreement for Common Stock *
|
|
1.2
|
Form
of Underwriting Agreement for debt securities *
|
|
4.1
|
Amended
Certificate of Incorporation of Chesapeake Utilities Corporation
is
incorporated herein by reference to Exhibit 3.1 of the Company’s Quarterly
Report on Form 10-Q for the period ended June 30, 1998, File No.
001-11590.
|
|
4.2
|
Amended
Bylaws of Chesapeake Utilities Corporation, effective February
24, 2005,
are incorporated herein by reference to Exhibit 3 of the Company’s Annual
Report on Form 10-K for the year ended December 31, 2004, File
No.
001-11590.
|
|
4.3
|
Form
of Trust Indenture between Chesapeake Utilities Corporation and
the
trustee for the debt securities *
|
|
4.4
|
Form
of debt securities *
|
|
5.1
|
Opinion
of Baker & Hostetler LLP **
|
|
12.1
|
Computation
of Ratio of Earnings to Fixed Charges is incorporated herein by
reference
to Exhibit 12 of each of the Company’s Annual Reports on Form 10-K for the
years ended December 31, 2005, 2004 and 2003, File No. 001-11590.
Computation of Ratio of Earnings to Fixed Charges for the quarterly
period
ended March 31, 2006, is filed herewith. **
|
|
23.1
|
Consent
of PricewaterhouseCoopers LLP **
|
|
23.2
|
Consent
of Baker & Hostetler LLP (included in Exhibit 5.1)
|
|
24.1
|
Power
of Attorney (set forth on the signature page hereto)
|
|
25.1
|
Statement
of Eligibility on Form T-1 of [______], as trustee for the Chesapeake
Utilities Corporation debt securities
*
|
* To
be
filed by amendment or as an exhibit to a document incorporated by reference
into
the registration
statement.
** Filed
herewith