As filed with the Securities and Exchange Commission on February 27, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Aqua America, Inc.
(Exact name of registrant as specified in its charter)
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| Pennsylvania |
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4941 |
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23-1702594 |
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incorporation or organization) |
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(Primary Standard Industrial
Classification Code Number) |
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(I.R.S. Employer
Identification Number) |
762 W. Lancaster Avenue
Bryn Mawr, Pennsylvania 19010-3489
(610) 527-8000
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Christopher P.
Luning
Senior Vice President, General Counsel and Corporate Secretary
Aqua America, Inc.
762 W.
Lancaster Avenue
Bryn Mawr, Pennsylvania 19010-3489
(610) 527-8000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With a copy to:
Mary J. Mullany
Ballard
Spahr LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103-7599
(215) 665-8500
Approximate date of
commencement of proposed sale of the securities to the public: From time to time after the effective date of this Registration Statement.
If the
securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following
box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list 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(d) 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. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a small reporting company. See the
definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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| Large accelerated filer |
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x |
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Accelerated filer |
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¨; |
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| Non-accelerated filer |
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¨; (Do not check if a smaller reporting company) |
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Smaller reporting company |
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If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issue Tender Offer) ¨
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ¨
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities to be Registered |
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Amount to be
Registered (1) |
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Proposed Maximum
Offering Price Per
Unit (1) |
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Proposed Maximum
Aggregate Offering
Price (2) |
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Amount of
Registration Fee (3) |
| Common Stock, par value $0.50 per share |
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| Preferred Stock, par value $1.00 per share |
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| Total |
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$500,000,000 |
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$58,100 |
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Includes an indeterminate number of shares of common stock and preferred stock that may be issued from time to time at indeterminate prices up to a proposed aggregate offering price not to exceed $500,000,000. This
registration statement shall also cover any additional securities to be offered or issued from stock splits, stock dividends, recapitalizations or similar transactions. |
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Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. |
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Calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
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 this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed or supplemented. We
may not sell any of the securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell the securities described herein and we are not soliciting offers to buy the
securities described herein in any jurisdiction where the offer or sale is not permitted.
Subject To Completion, Dated February 27, 2015
PROSPECTUS
AQUA AMERICA, INC.
$500,000,000
Common
Stock
Preferred Stock
This prospectus
relates to shares of our common stock, par value $0.50 per share, and shares of our preferred stock, par value $1.00 per share, that we may offer and issue in acquisition transactions that we may make from time to time. The aggregate initial
offering price of all shares of common stock and preferred stock issued under this prospectus will not exceed $500,000,000. These acquisitions of assets, businesses or securities, whether by purchase, merger, or any other form of business
combination, will be made at negotiated prices. The consideration for any such acquisition may consist of shares of our common stock or a combination of common stock, preferred stock, cash, notes or assumption of liabilities. The total number of
shares issued to consummate any of these acquisitions will be determined through arms’ length negotiations and we expect that the shares of common stock and the shares of preferred stock issued in connection with any of these transaction will
be valued at a price reasonably related to the prevailing market price of our common stock at the time an acquisition agreement is entered into or at or about the time the acquisition is consummated or during some other negotiated period.
We do not expect to receive any cash proceeds when we issue common stock or preferred stock registered by this prospectus.
We expect to pay all expenses of any offerings under this prospectus. We do not expect to pay any underwriting discounts or commissions in
connection with issuing these shares, although we may pay finder’s fees in specific acquisitions. Any person receiving a finder’s fee may be deemed an underwriter within the meaning of Section 2(a)(11) of the Securities Act of 1933,
as amended.
Our common stock is listed on the New York Stock Exchange under the symbol “WTR.” On February 26, 2015, the
closing price of our common stock on the New York Stock Exchange was $26.27 per share. You are urged to obtain current market quotations of the common stock prior to making an investment decision.
Investing in our securities involves risk. Before you invest, you should carefully read and evaluate the risk factors and other information
included in this prospectus and any applicable prospectus supplement, including the documents incorporated by reference. See “Risk Factors” beginning on page 6 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this
prospectus is , 2015.
TABLE OF CONTENTS
You must not rely upon any information or representation not contained or incorporated by reference in this prospectus or any prospectus
supplement. We have not authorized anyone else to provide you with different or additional information. This prospectus and any 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 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 prospectus supplement is accurate on any date subsequent to the date set forth on the front of such document or that any
information we have incorporated by reference into this prospectus or any prospectus supplement is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus and any prospectus supplement is
delivered or securities are sold on a later date. Our business, financial condition, results of operations and prospects may have changed since that date.
The prospectus incorporates important business and financial information about the company that is not included in or delivered with the
prospectus. You may obtain documents incorporated by reference into this prospectus at no cost by writing or telephoning us at the following address:
Aqua America, Inc.
762
W. Lancaster Avenue
Bryn Mawr, PA 19010-3489
Telephone: 610-527-8000
Attention: Corporate Secretary
To obtain timely delivery, you must request information no later than five business days before the date you must make your
investment decision. For a more detailed discussion about the information about us that is incorporated by reference into this prospectus, see “Where You Can Find More Information.”
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ABOUT THIS PROSPECTUS
This prospectus is a part of a “shelf” registration statement on Form S-4 that we have filed with the United States Securities and
Exchange Commission, or SEC. Under the shelf registration process, we may from time to time offer and sell shares of our common stock, par value $0.50 per share, and shares of our preferred stock, par value $1.00 per share, with an aggregate initial
offering price of up to $500,000,000, in connection with the acquisition of assets, stock or businesses, whether by purchase, merger or any other form of business combination.
This prospectus provides you with a general description of the securities that we may offer. If necessary or appropriate, when we offer common
stock or preferred stock under this prospectus, we will provide a prospectus supplement that will contain more specific information about the terms of that offering and those securities. The information in the prospectus supplement may add, update
or change the information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus. Before investing in our common stock or preferred stock being offered under this Registration Statement, you
should read carefully this prospectus and any applicable prospectus supplement, together with the information incorporated herein and therein by reference as described under the heading “Where You Can Find More Information.”
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as
exhibits to the Registration Statement of which this prospectus is a part, and you may obtain copies of those documents as described under the heading “Where You Can Find More Information.”
The shares of common stock and the shares of preferred stock to be issued in connection with an acquisition made pursuant to this prospectus
will be registered under the Securities Act and will be freely transferable under the Securities Act, except for shares of common stock or preferred stock issued to any person who is deemed to be an “affiliate” of ours following the
consummation of the applicable acquisition.
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FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus, or incorporated by reference into this prospectus, are forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 and are made based upon, among other things, our current assumptions, expectations, plans, and beliefs concerning future events and their
potential effect on us. These forward-looking statements involve risks, uncertainties and other factors, many of which are outside our control, that may cause our actual results, performance or achievements to be materially different from any future
results, performance or achievements expressed or implied by these forward-looking statements. In some cases you can identify forward-looking statements where statements are preceded by, followed by, or include the words “believes,”
“expects,” “anticipates,” “plans,” “future,” “potential,” “probably,” “predictions,” “intends,” “will,” “continue” or the negative of such terms or
similar expressions. Forward-looking statements in this prospectus, or incorporated by reference into this prospectus, include, but are not limited to, statements regarding:
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recovery of capital expenditures and expense in rates; |
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projected capital expenditures and related funding requirements; |
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the availability and cost of capital financing; |
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developments, trends and consolidation in the water and wastewater utility industries; |
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dividend payment projections; |
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opportunities for future acquisitions, the success of pending acquisitions and the impact of future acquisitions; |
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the capacity of our water supplies, water facilities and wastewater facilities; |
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the impact of geographic diversity on our exposure to unusual weather; |
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the impact of conservation awareness of customers and more efficient plumbing fixtures and appliances on water usage per customer; |
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our capability to pursue timely rate increase requests; |
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our authority to carry on our business without unduly burdensome restrictions; |
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our ability to obtain fair market value for condemned assets; |
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the impact of fines and penalties; |
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the impact of changes in and compliance with governmental laws, regulations and policies, including those dealing with taxation, the environment, health and water quality, and public utility regulation;
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the impact of decisions of governmental and regulatory bodies, including decisions to raise or lower rates; |
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the development of new services and technologies by us or our competitors; |
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the availability of qualified personnel; |
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the condition of our assets; |
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the impact of legal proceedings; |
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general economic conditions; |
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acquisition-related costs and synergies; |
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the sale of water and wastewater divisions; |
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the impact of federal and/or state tax policies and the regulatory treatment of the effects of those policies; |
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the amount of income tax deductions for qualifying utility asset improvements and the Internal Revenue Service’s ultimate acceptance of the deduction methodology; and |
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the forward-looking statements contained under the heading “Forward-Looking Statements” in the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of
Operations,” and contained within such section, from the portion of our 2014 Annual Report to Shareholders incorporated by reference herein and made a part hereof. |
Because forward-looking statements involve risks and uncertainties, there are important factors that could cause actual results to differ
materially from those expressed or implied by these forward-looking statements, including but not limited to:
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changes in general economic, business, credit and financial market conditions; |
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changes in governmental laws, regulations and policies, including those dealing with taxation, the environment, health and water quality, and public utility regulation; |
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changes to the rules or our assumptions underlying our determination of what qualifies for an income tax deduction for qualifying utility asset improvements; |
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the decisions of governmental and regulatory bodies, including decisions on rate increase requests; |
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the ability to file rate cases on a timely basis to minimize regulatory lag; |
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abnormal weather conditions, including those that result in water use restrictions; |
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changes in, or unanticipated, capital requirements; |
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changes in our credit rating or the market price of our common stock; |
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our ability to integrate businesses, technologies or services which we may acquire; |
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our ability to manage the expansion of our business; |
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our ability to treat and supply water or collect and treat wastewater; |
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the extent to which we are able to develop and market new and improved services; |
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the effect of the loss of major customers; |
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our ability to retain the services of key personnel and to hire qualified personnel as we expand; |
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increasing difficulties in obtaining insurance and increased cost of insurance; |
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cost overruns relating to improvements to, or the expansion of, our operations; |
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increases in the costs of goods and services; |
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civil disturbance or terroristic threats or acts; |
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the continuous and reliable operation of our information technology systems, including the impact of cyber security attacks or other cyber-related events; |
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changes in accounting pronouncements; |
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litigation and claims; and |
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changes in environmental conditions, including the effects of climate change. |
Given these
risks and uncertainties, you should not place undue reliance on any forward-looking statements. You should read this prospectus and the documents that we incorporate by reference into this prospectus completely and with the understanding that our
actual future results, performance and achievements may be
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materially different from what we expect. These forward-looking statements represent assumptions, expectations, plans and beliefs only as of the date of this prospectus. Except for our ongoing
obligations to disclose certain information under the federal securities laws, we are not obligated, and assume no obligation, to update these forward-looking statements, even though our situation may change in the future. For further information or
other factors which could effect our financial results and such forward-looking statements, see “Risk Factors.” We qualify all of our forward-looking statements by these cautionary statements.
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AQUA AMERICA, INC.
Aqua America, Inc. is the holding company for regulated utilities providing water or wastewater services to what we estimate to be almost
three million people in Pennsylvania, Ohio, Texas, Illinois, North Carolina, New Jersey, Indiana, and Virginia. Our utility customer base is diversified among residential water, commercial water, fire protection, industrial water, other water,
wastewater customers and other utility customers (consisting of operating contracts that are closely associated with the utility operations). Residential water and wastewater customers make up the largest component of our utility customer base, with
these customers representing approximately 70% of our water and wastewater revenues for the year ended December 31, 2014.
Our
largest operating subsidiary is Aqua Pennsylvania, Inc. (“Aqua Pennsylvania”), which accounted for approximately 53% of our operating revenues and approximately 70% of our net income for 2014. As of December 31, 2014, Aqua
Pennsylvania provided water or wastewater services to approximately one-half of the total number of people we serve Aqua Pennsylvania’s service territory is located in the suburban areas in counties north and west of the City of Philadelphia
and in 26 other counties in Pennsylvania. Our other regulated utility subsidiaries provide similar services in seven other states. In addition, the Company’s non-regulated subsidiary, Aqua Resources, Inc., provides liquid waste hauling and
disposal, water and wastewater service through operating and maintenance contracts with municipal authorities and other parties in close proximity to our utility companies’ service territories; offers, through a third party, water and
wastewater line repair service and protection solutions to households; inspects, cleans and repairs storm and sanitary wastewater lines; installs and tests devices that prevent the contamination of potable water; designs and builds water and
wastewater systems, and provides other non-regulated water and wastewater services. Lastly, the Company’s non-regulated subsidiaries, Aqua Infrastructure, LLC, provides non-utility raw water supply services for firms in the natural gas drilling
industry.
In the early 1990s we embarked on a growth through acquisition strategy focused on water and wastewater operations. Since the
early 1990s, we have more than quadrupled the number of regulated customers we serve, and have extended our regulated operations from southeastern Pennsylvania to include our current regulated utility operations throughout Pennsylvania and in seven
other states. Beginning in 2010, and substantially completed in 2013, we pursued a portfolio rationalization strategy to focus our operations in areas where we have critical mass and economic growth potential and to divest operations where limited
customer growth opportunities exist or where we are unable to achieve favorable operating results or a return on equity that we consider acceptable.
Our growth in revenues over the past five years is primarily a result of increases in water and wastewater rates and customer growth through
our acquisition strategy. The majority of the increase in our utility customer base has been due to customers added through acquisitions. In 2014, 2013, 2012, 2011, and 2010, the utility customer growth rate due to acquisitions and other growth
ventures (excluding dispositions) was 1.3%, 1.3%, 7.2%, 1.0%, and 1.0%, respectively. In 2014, our customer count, excluding dispositions, increased by 12,120 customers, primarily due to utility systems that we acquired and natural growth. Overall,
for the five-year period of 2010 through 2014, our utility customer base, adjusted to exclude customers associated with utility system dispositions, increased at an annual compound rate of 2.3%.
Our principal executive office is located at 762 W. Lancaster Avenue, Bryn Mawr, Pennsylvania
19010-3489, and our telephone number is 610-527-8000. Our website may be accessed at www.aquaamerica.com. The references to our website and the SEC’s website are intended to be inactive textual references
only, and the contents of those websites are not incorporated by reference herein and should not be considered part of this prospectus.
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RISK FACTORS
Investing in our securities involves risks. Please see the risk factors described under the section captioned “Risk Factors” in our
Annual Report on Form 10-K for the fiscal year ended December 31, 2014, as such risk factors may be updated from time to time in filings we make with the SEC subsequent to the date hereof. Before making an investment decision, you should
carefully consider these risk factors, together with all other information contained in or incorporated by reference into this prospectus or any applicable prospectus supplement (which includes information contained in certain filings we make with
the SEC subsequent to the date hereof as set forth in the section below captioned “Where You Can Find More Information”). Please also refer to the section above captioned “Forward-Looking Statements.”
USE OF PROCEEDS
We do not expect to receive any cash proceeds when we issue common stock or preferred stock registered by this prospectus.
RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Our ratios of earnings to combined fixed charges and preferred stock dividends for the periods indicated below were as follows:
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Year Ended December 31, |
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2014 |
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4.05 |
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3.79 |
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3.95 |
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3.38 |
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3.28 |
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The ratios of earnings to combined fixed charges and preferred stock dividends were computed by dividing our
earnings by our combined fixed charges and preferred stock dividends. For the purpose of these computations, earnings include the sum of income from continuing operations before income taxes and non-controlling interest, and fixed charges, less
capitalized interest. Fixed charges consist of interest on all indebtedness, whether expensed or capitalized, amortization of debt expense, and the estimated interest attributable to rental and lease expense.
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DESCRIPTION OF CAPITAL STOCK
As of February 12, 2015 our authorized capital stock was 301,770,819 shares, consisting of:
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300,000,000 shares of common stock, par value $0.50 per share, of which 176,823,519 shares were outstanding; and |
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1,770,819 shares of preferred stock, par value $1.00 per share, of which no shares were outstanding. |
The following summary of certain terms of our common stock and preferred stock is qualified in its entirety by the provisions of our articles
of incorporation and bylaws each of which is incorporated by reference as an exhibit to the registration statement of which this prospectus constitutes a part.
Common Stock
This section describes the
general terms of our common stock. For more detailed information, you should refer to our articles of incorporation and bylaws, including any amendments thereto, copies of which have been filed with the SEC. These documents are incorporated by
reference into this prospectus.
Voting Rights
Holders of our common stock are entitled to one vote for each share held by them at all meetings of the shareholders and are not entitled to
cumulate their votes for the election of directors.
Dividend Rights and Limitations
Holders of our common stock may receive dividends when declared by our board of directors. Because we are a holding company, the funds we use
to pay any dividends on our common stock are derived predominantly from the dividends that we receive from our subsidiaries and the dividends they receive from their subsidiaries. Therefore, our ability to pay dividends to holders of our common
stock depends upon our subsidiaries’ earnings, financial condition and ability to pay dividends. Most of our subsidiaries are subject to regulation by state utility commissions and the amounts of their earnings and dividends are affected by the
manner in which they are regulated. In addition, they are subject to restrictions on the payment of dividends contained in their various debt agreements. Under our most restrictive debt agreements, the amount available for payment of dividends to us
as of December 31, 2014 was approximately $1.0 billion of Aqua Pennsylvania’s retained earnings and $92 million of the retained earnings of certain other subsidiaries. Payment of dividends on our common stock is also subject to the
preferential rights of the holders of any outstanding preferred stock.
Liquidation Rights
In the event that we liquidate, dissolve or wind-up, the holders of our common stock are entitled to share ratably in all of the assets that
remain after we pay our liabilities. This right is subject, however, to the prior distribution rights of any outstanding preferred stock.
Preferred
Stock
Our board of directors has the authority, from time to time and without further action by our shareholders, to divide our
unissued capital stock into one or more classes and one or more series within any class and to make determinations of the designation and number of shares of any class or series and determinations of the voting rights, preferences, limitations and
special rights, if any, of the shares of any class or series. The rights, preferences, limitations and special rights of different classes of capital stock may differ with respect to dividend rates, amounts payable on liquidation, voting rights,
conversion rights, redemption provisions, sinking fund provisions and other matters. The rights, preferences, privileges and restrictions of each series may be fixed by the designations of that series set forth in either a restated version of our
articles of incorporation or a certificate of designations relating to that series, which will be filed with the SEC as an exhibit to or incorporated by reference in the registration statement of which this prospectus constitutes a part.
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The issuance of preferred stock may be perceived by some as possibly having the effect of
delaying, deferring or preventing a change of control of us without further action by our shareholders. The issuance of preferred stock with voting and conversion rights may also adversely affect the voting power of the holders of our common stock.
In certain circumstances, an issuance of preferred stock could possibly have the effect of decreasing the market price of our common stock.
Whenever preferred stock is to be sold pursuant to this prospectus, we will file a prospectus supplement relating to that sale which will
specify:
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the number of shares in the series of preferred stock; |
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the designation for the series of preferred stock by number, letter or title that will distinguish the series from any other series of preferred stock; |
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the dividend rate, if any, and whether dividends on that series of preferred stock will be cumulative, noncumulative or partially cumulative; |
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the voting rights of that series of preferred stock, if any; |
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any conversion provisions applicable to that series of preferred stock; |
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any redemption or sinking fund provisions applicable to that series of preferred stock; |
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the liquidation preference per share of that series of preferred stock; and |
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the terms of any other preferences or rights, if any, applicable to that series of preferred stock. |
Anti-Takeover Provisions
Pennsylvania State Law
Provisions
Under Section 1712 of the Business Corporation Law, which is applicable to us, directors stand in a fiduciary relation
to their corporation and, as such, are required to perform their duties in good faith, in a manner they reasonably believe to be in the best interests of the corporation and with such care, including reasonable inquiry, skill and diligence, as a
person of ordinary prudence would use under similar circumstances. Under Section 1715 of the Business Corporation Law, in discharging their duties, directors may, in considering the best interests of their corporation, consider various
constituencies, including, shareholders, employees, suppliers, customers and creditors of the corporation, and upon communities in which offices or other establishments of the corporation are located. Directors are not required to give prominent
consideration to the interests of any particular constituency. Absent a breach of fiduciary duty, a lack of good faith or self-dealing, any act of the board of directors, a committee thereof or an individual director is presumed to be in the best
interests of the corporation. Actions by directors relating to an acquisition or potential acquisition of control of the corporation are not subject to any greater obligation to justify, or higher burden of proof, than is applied to any other acts
of directors. The Business Corporation Law expressly provides that the fiduciary duty of directors does not require them to (i) redeem or otherwise render inapplicable outstanding rights issued under any shareholder rights plan;
(ii) render inapplicable the anti-takeover statutes set forth in Chapter 25 of the Business Corporation Law (described below); or (iii) take any action solely because of the effect it may have on a proposed acquisition or the consideration
to be received by shareholders in such a transaction. In addition, Section 2513 of the Business Corporation Law specifically validates shareholder rights plans, or “poison pills,” and the discriminatory dilution provisions contained
in such plans.
Chapter 25 of the Business Corporation Law contains several anti-takeover statutes applicable to publicly-traded
corporations. Corporations may opt-out of such anti-takeover statutes under certain circumstances. We have not opted-out of any of such statutes.
Section 2538 of Subchapter 25D of the Business Corporation Law requires certain transactions with an “interested shareholder”
to be approved by a majority of disinterested shareholders. “Interested shareholder” is defined broadly to include any shareholder who is a party to the transaction or who is treated differently than other shareholders and affiliates of
the corporation.
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Subchapter 25E of the Business Corporation Law requires a person or group of persons acting in
concert which acquires 20% or more of the voting shares of the corporation to offer to purchase the shares of any other shareholder at “fair value.” “Fair value” means the value not less than the highest price paid by the
controlling person or group during the 90-day period prior to the control transaction, plus a control premium. Among other exceptions, Subchapter 25E does not apply to shares acquired directly from the corporation in a transaction exempt from the
registration requirements of the Securities Act of 1933, or to a one-step merger.
Subchapter 25F of the Business Corporation Law
generally establishes a 5-year moratorium on a “business combination” with an “interested shareholder.” “Interested shareholder” is defined generally to be any beneficial owner of 20% or more of the corporation’s
voting stock. “Business combination” is defined broadly to include mergers, consolidations, asset sales and certain self-dealing transactions. Certain restrictions apply to business combination following the 5-year period. Among other
exceptions, Subchapter 25F will be rendered inapplicable if the board of directors approves the proposed business combination, or approves the interested shareholder’s acquisition of 20% of the voting shares, in either case prior to the date on
which the shareholder first becomes an interested shareholder.
Subchapter 25G of the Business Corporation Law provides that “control
shares” lose voting rights unless such rights are restored by the affirmative vote of a majority of (i) the disinterested shares (generally, shares held by persons other than the acquiror, executive officers of the corporation and certain
employee stock plans) and (ii) the outstanding voting shares of the corporation. “Control shares” are defined as shares which, upon acquisition, will result in a person or group acquiring for the first time voting control over
(a) 20%, (b) 33 1/3% or (c) 50% or more of the outstanding shares, together with shares acquired within 180 days of attaining the applicable threshold and shares purchased with the intention of attaining such threshold. A corporation
may redeem control shares if the acquiring person does not request restoration of voting rights as permitted by Subchapter 25G. Among other exceptions, Subchapter 25G does not apply to a merger, consolidation or a share exchange if the corporation
is a party to the transaction agreement.
Subchapter 25H of the Business Corporation Law provides in certain circumstances for the
recovery by the corporation of profits realized from the sale of its stock by a controlling person or group if the sale occurs within 18 months after the controlling person or group became a controlling person or group, and the stock was acquired
during such 18-month period or within 24 months before such period. A controlling person or group is a person or group that has acquired, offered to acquire, or publicly disclosed an intention to acquire 20% or more of the voting shares of the
corporation. Among other exceptions, Subchapter 25H does not apply to transactions approved by both the board of directors and the shareholders prior to the acquisition or distribution, as appropriate.
Subchapter 25I of the Business Corporation Law mandates severance compensation for eligible employees who are terminated within 24 months
after the approval of a control-share acquisition. Eligible employees generally are all employees employed in Pennsylvania for at least two years prior to the control-share approval. Severance equals the weekly compensation of the employee
multiplied by the employee’s years of service (up to 26 years), less payments made due to the termination.
Subchapter 25J of the
Business Corporation Law requires the continuation of certain labor contracts relating to business operations owned at the time of a control-share approval.
Articles of Incorporation and Bylaw Provisions
Certain provisions of our articles of incorporation and bylaws may have the effect of discouraging unilateral tender offers or other attempts
to take over and acquire our business. These provisions might discourage some potentially interested purchaser from attempting a unilateral takeover bid for us on terms which some shareholders might favor. Our articles of incorporation require that
certain fundamental transactions must be approved by the holders of 75% of the outstanding shares of our capital stock entitled to vote on the matter unless
9
at least 50% of the members of the board of directors has approved the transaction, in which case the required shareholder approval will be the minimum approval required by applicable law. The
fundamental transactions that are subject to this provision are those transactions that require approval by shareholders under applicable law or the articles of incorporation. These transactions include certain amendments of our articles of
incorporation or bylaws, certain sales or other dispositions of our assets, certain issuances of our capital stock, or certain transactions involving our merger, consolidation, division, reorganization, dissolution, liquidation or winding up. Our
articles of incorporation and bylaws provide that:
| |
• |
|
a special meeting of shareholders may only be called by the chairman, the president, the board of directors or shareholders entitled to cast a majority of the votes which all shareholders are entitled to cast at the
particular meeting; |
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• |
|
nominations for election of directors may be made by any shareholder entitled to vote for election of directors if the name of the nominee and certain information relating to the nominee is filed with our corporate
secretary not less than 14 days nor more than 50 days before any meeting of shareholders to elect directors; and |
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• |
|
certain advance notice procedures must be met for shareholder proposals to be made at annual meetings of shareholders. These advance notice procedures generally require a notice to be delivered not less than 90 days nor
more than 120 days before the anniversary date of the immediately preceding annual meeting of shareholders. |
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
10
PLAN OF DISTRIBUTION
This prospectus is a part of a “shelf” registration statement on Form S-4 that we have filed with the SEC. Under the shelf
registration process, we may from time to time offer and sell shares of our common stock, par value $0.50 per share, and shares of our preferred stock, par value $1.00 per share, with an aggregate initial offering price of up to $500,000,000, in
connection with the acquisition of assets, stock or businesses, whether by purchase, merger or any other form of business combination. We are actively looking for acquisition opportunities complementary or additive to our business.
It is expected that the terms of these acquisitions will be determined by direct negotiations with the owners or controlling persons of the
assets, businesses or securities to be acquired, and that the shares of common stock and the shares of preferred stock issued will be valued at prices reasonably related to the market price of our common stock at the time an agreement is entered
into concerning the terms of the acquisition, at or about the time the shares are delivered or during some other negotiated period. Factors taken into account in acquisitions may include, among other factors, the quality and reputation of the
business to be acquired and its management, the strategic market position of the business to be acquired and its proprietary assets, earning power, cash flow and growth potential. In addition to shares of our common stock and our preferred stock,
consideration for these acquisitions may consist of any consideration permitted by applicable law, including, without limitation, the payment of cash, the issuance of a note or other form of indebtedness, the assumption of liabilities or any
combination of these items. All expenses of this registration will be paid by us. We do not expect to pay underwriting discounts or commissions, although we may pay finders’ fees from time to time in connection with certain acquisitions. Any
person receiving finders’ fees may be deemed to be an “underwriter” within the meaning of the Securities Act, and any profit on the resale of securities purchased by them may be considered underwriting commissions or discounts under
the Securities Act.
In addition, we may issue our common stock and preferred stock pursuant to this prospectus and applicable prospectus
supplement, or post-effective amendment, to acquire the assets, stock or business of debtors in cases under the United States Bankruptcy Code, which may constitute all or a portion of the debtor’s assets, stock or business. The common stock and
preferred stock we issue in these transactions may be sold by the debtor or its stockholders for cash from time to time in market transactions or it may be transferred by the debtor in satisfaction of claims by creditors under a plan of
reorganization approved by the applicable United States Bankruptcy Court or otherwise transferred in accordance with the Bankruptcy Code.
In an effort to maintain an orderly market in our securities or for other reasons, we may negotiate agreements with persons receiving common
stock and preferred stock covered by this prospectus that will limit the number of shares that they may sell at specified intervals. These agreements may be more or less restrictive than restrictions on sales made under exemptions from the
registration requirements of the Securities Act, including the requirements under Rule 144 or Rule 145(d), and the persons party to these agreements may not otherwise be subject to the Securities Act requirements. We anticipate that, in general,
negotiated agreements will be of limited duration and will permit the recipients of securities issued in connection with acquisitions to sell up to a specified number of shares during a specified period of time. We may also determine to waive any
such agreements without public notice.
This prospectus may be supplemented to furnish the information necessary for a particular
negotiated transaction, and the registration statement of which this prospectus is a part will be amended or supplemented, as required, to supply information concerning an acquisition.
11
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we file
at the SEC’s public reference room at 100 F Street N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. You may also obtain our SEC filings from the SEC’s website at
www.sec.gov or from our website at http://ir.aquaamerica.com/.
We have filed with the SEC a “shelf” registration statement on
Form S-4 under the Securities Act of 1933 relating to the securities being offered by this prospectus. This prospectus is a part of that registration statement, but does not contain all of the information in the registration statement. We have
omitted certain parts of the registration statement in accordance with rules and regulations of the SEC. Statements made in this prospectus as to the contents of any contract, agreement or other documents are not necessarily complete, and, in each
instance, we refer you to a copy of such document filed as an exhibit to the registration statement, of which this prospectus is a part, or otherwise filed with the SEC. For more detail about us and the securities being offered by this prospectus,
you may examine the registration statement on Form S-4 and the exhibits filed with it at the locations listed in the previous paragraph.
The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. When we file information with the SEC in the future, that information will automatically update and
supersede this information. We incorporate by reference the documents listed below and any future filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we sell all of the securities
covered by this prospectus; provided, however, that we are not incorporating, in each case, any documents or information deemed to have been furnished and not filed in accordance with SEC rules:
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• |
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2014; and |
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• |
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The description of our common stock set forth in our Registration Statement on Form 8-A, including any amendments or reports filed for the purpose of updating such description. |
These documents contain important business and financial information about us that is not included in or delivered with this prospectus. You
may request a copy of any documents that we incorporate by reference at no cost, by writing or telephoning us at:
Aqua America, Inc.
762 W. Lancaster Avenue
Bryn Mawr,
PA 19010-3489
Telephone: 610-527-8000
Attention: Corporate Secretary
You should rely only on the information contained in or incorporated by reference in this prospectus and any supplements to this prospectus.
We have not authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should not assume that the information provided in this prospectus or
incorporated by reference in this prospectus is accurate as of any date other than the date on the front of this prospectus or the date of those documents. Our business, financial condition, results of operations and prospects may have changed since
those dates.
If you find inconsistencies between the documents, or between the documents and this prospectus, you should rely on the most
recent document or prospectus.
12
LEGAL MATTERS
The validity of the securities being offered hereby will be passed upon for us by Ballard Spahr LLP, Philadelphia, Pennsylvania.
EXPERTS
Our 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 our Annual Report on Form 10-K for the year ended December 31, 2014, have been so incorporated in
reliance on the reports of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
Ballard Spahr LLP, our outside counsel, has given its opinion regarding the validity of the securities that may be offered hereby.
13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 20. |
Indemnification of Directors and Officers. |
The Registrant is a Pennsylvania
corporation. Sections 1741 and 1742 of the Pennsylvania Business Corporation Law of 1988, as amended (the “PBCL”), provide that, unless otherwise restricted in its bylaws, a business corporation may indemnify directors and officers against
liabilities they may incur as such, provided that the particular person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal
proceeding, had no reasonable cause to believe his or her conduct was unlawful. In general, the power to indemnify under these sections does not exist in the case of actions against a director or officer by or in the right of the corporation if the
person otherwise entitled to indemnification shall have been adjudged to be liable to the corporation unless it is judicially determined that, despite the adjudication of liability but in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnification for specified expenses. Section 1743 of the PBCL requires a business corporation to indemnify directors and officers against expenses they may incur in defending actions against them in such
capacities if they are successful on the merits or otherwise in the defense of such actions.
Section 1713 of the PBCL permits the
shareholders to adopt a bylaw provision relieving a director (but not an officer) of personal liability for monetary damages except where (i) the director has breached the applicable standard of care, and (ii) such conduct constitutes
self-dealing, willful misconduct or recklessness. This Section also provides that a director may not be relieved of liability for the payment of taxes pursuant to any federal, state or local law or of liability or responsibility under a criminal
statute. Section 4.01 of the Registrant’s bylaws limits the liability of any director of the Registrant to the fullest extent permitted by Section 1713 of the PBCL.
Section 1746 of the PBCL grants a corporation broad authority to indemnify its directors, officers and other agents for liabilities and
expenses incurred in such capacity, except in circumstances where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness. Article VII of the
Registrant’s bylaws provides indemnification of directors, officers and other agents of the Registrant, which is broader than the indemnification permitted by Section 1741 of the PBCL and pursuant to the authority of Section 1746 of
the PBCL.
Article VII of the Registrant’s bylaws provides, except as expressly prohibited by law, an unconditional right to
indemnification for expenses and any liability paid or incurred by any director or officer of the Registrant, or any other person designated by the board of directors as an indemnified representative, in connection with any actual or threatened
claim, action, suit or proceeding (including derivative suits) in which he or she may be involved by reason of being or having been a director, officer, employee or agent of the Registrant or, at the request of the Registrant, of another
corporation, partnership, joint venture, trust, employee benefit plan or other entity. The bylaws specifically authorize indemnification against both judgments and amounts paid in settlement of derivative suits, unlike Section 1742 of the PBCL
which authorizes indemnification only of expenses incurred in defending and in settlement of a derivative action. In addition, Article VII of the bylaws also allows indemnification for punitive damages and liabilities incurred under the federal
securities laws.
Unlike the provisions of PBCL Sections 1741 and 1742, Article VII does not require the Registrant to determine the
availability of indemnification by the procedures or the standard of conduct specified in Sections 1741 or 1742 of the PBCL. A person who has incurred an indemnifiable expense or liability has a right to be indemnified independent of any procedures
or determinations that would otherwise be required, and that right is enforceable against the Registrant as long as indemnification is not prohibited by law. To the extent indemnification is permitted only for a portion of a liability, the bylaw
provisions require the Registrant to indemnify such portion. If the indemnification provided for in Article VII is unavailable for any reason in respect of any liability or portion thereof, the bylaws require the Registrant to make a contribution
toward the liability. Indemnification rights under the bylaws do not depend upon the approval of any future board of directors.
II-1
Section 7.04 of the Registrant’s bylaws also authorizes the Registrant to further
effect or secure its indemnification obligations by entering into indemnification agreements, maintaining insurance, creating a trust fund, granting a security interest in its assets or property, establishing a letter of credit, or using any other
means that may be available from time to time. Section 1747 of the PBCL also enables a business corporation to purchase and maintain insurance on behalf of a person who is or was serving as a representative of the corporation or is or was
serving at the request of the corporation as a representative of another entity against any liability asserted against that representative in his capacity as such, whether or not the corporation would have the power to indemnify him against that
liability under the PBCL. The Registrant maintains, on behalf of its directors and officers, insurance protection against certain liabilities arising out of the discharge of their duties, as well as insurance covering the Registrant for
indemnification payments made to its directors and officers for certain liabilities. The premiums for such insurance are paid by the Registrant.
The Exhibit Index which appears immediately after the signature pages hereto
is incorporated by reference herein.
| (a) |
The undersigned Registrant hereby undertakes: |
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(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
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(ii) |
to reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
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(iii) |
to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
|
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(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. |
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(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. |
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(4) |
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
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(i) |
Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration
statement; and |
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(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 |
II-2
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415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in this
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 this registration statement relating to the securities in this 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 a prospectus that is part of this
registration statement or made in a document incorporated or deemed incorporated by reference into this registration statement or prospectus that is part of this 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 this registration statement or prospectus that was part of this registration statement or made in any such document immediately prior to such effective date. That, for the
purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned
Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the
undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
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(A) |
Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
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(B) |
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; |
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(C) |
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
|
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(D) |
Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
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(E) |
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or 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. |
| (b) |
The undersigned Registrant hereby undertakes that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party
who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be
deemed underwriters, in addition to the information called for by the other items of the applicable form. |
| (c) |
The undersigned Registrant hereby undertakes that every prospectus (i) that is filed pursuant to the immediately preceding paragraph, or
(ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration
statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such |
II-3
| |
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. |
| (d) |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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. |
| (e) |
The undersigned Registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of
receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date
of responding to the request. |
| (f) |
The undersigned Registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective. |
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Bryn Mawr, Commonwealth of Pennsylvania on February 27, 2015.
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| AQUA AMERICA, INC. |
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| By: |
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/s/ Nicholas DeBenedictis |
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Nicholas DeBenedictis |
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Chairman, President and Chief Executive Officer |
II-5
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints David P. Smeltzer, Chief Financial Officer of Registrant, and Christopher P. Luning,
Senior Vice President, General Counsel and Corporate Secretary of Registrant, and each of them acting individually, as his or her true and lawful attorneys-in-fact, with full power of substitution and resubstitution, with the authority to execute in
the name of each such person, and to file with the Securities and Exchange Commission, together with any exhibits thereto and other documents therewith, any and all amendments to this registration statement (including post-effective amendments and
all other related documents) necessary or advisable to enable the registrant to comply with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, which amendments may
make such changes in the registration statement as the aforesaid attorney-in-fact executing the same deems appropriate. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
|
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| Signature |
|
Title |
|
Date |
| /s/ Nicholas DeBenedictis |
|
Chairman, President, Chief Executive Officer and Director (Principal Executive Officer) |
|
February 27, 2015 |
| Nicholas DeBenedictis |
|
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| /s/ David P. Smeltzer |
|
Executive Vice President and Chief Financial
Officer (Principal Financial Officer) |
|
February 27, 2015 |
| David P. Smeltzer |
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| /s/ Robert A. Rubin |
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Senior Vice President, Controller and Chief Accounting Officer (Principal Accounting Officer) |
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February 27, 2015 |
| Robert A. Rubin |
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| /s/ Michael L. Browne |
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Director |
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February 27, 2015 |
| Michael L. Browne |
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| /s/ Richard H. Glanton |
|
Director |
|
February 27, 2015 |
| Richard H. Glanton |
|
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|
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| /s/ Lon R. Greenberg |
|
Director |
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February 27, 2015 |
| Lon R. Greenberg |
|
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| /s/ William P. Hankowsky |
|
Director |
|
February 27, 2015 |
| William P. Hankowsky |
|
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|
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| /s/ Wendell F. Holland |
|
Director |
|
February 27, 2015 |
| Wendell F. Holland |
|
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| /s/ Ellen T. Ruff |
|
Director |
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February 27, 2015 |
| Ellen T. Ruff |
|
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| /s/ Andrew J. Sordoni, III |
|
Director |
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February 27, 2015 |
| Andrew J. Sordoni, III |
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|
II-6
EXHIBIT INDEX
|
|
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| Exhibit No. |
|
Description |
|
|
| 3.1 |
|
Restated Articles of Incorporation of Registrant (filed as Exhibit 3.1 to Registrant’s Current Report on Form 8-K on May 11, 2012, and incorporated by reference herein). |
|
|
| 3.2 |
|
Amended and Restated Bylaws of Registrant (filed as Exhibit 3.2 to Registrant’s Current Report on Form 8-K on May 11, 2012, and incorporated by reference herein). |
|
|
| 5.1* |
|
Opinion of Ballard Spahr LLP. |
|
|
| 12.1* |
|
Statement regarding computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends. |
|
|
| 23.1* |
|
Consent of PricewaterhouseCoopers LLP. |
|
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| 23.2* |
|
Consent of Ballard Spahr LLP (included in Exhibit 5.1). |
|
|
| 24.1* |
|
Power of Attorney (See page II-6 of this Registration Statement). |
II-7
Exhibit 5.1
17535 Market Street, 51st Floor
Philadelphia, PA 19103-7599
TEL 215-665-8500
FAX 215-864-8999
www.ballardspahr.com
February 27, 2015
Aqua America, Inc.
762 W. Lancaster Avenue
Bryn Mawr, PA 19010-3489
RE: Aqua America, Inc.
Ladies and Gentlemen:
We have acted as counsel to Aqua America,
Inc., a Pennsylvania corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of the Company’s Registration Statement on Form
S-4, dated the date hereof (the “Registration Statement”), under the Securities Act of 1933, as amended (the “Securities Act”), relating to the issuance by the Company from time to time of an aggregate of up to $500
million of (i) shares of common stock, par value $0.50 per share (the “Common Stock”) and (ii) shares of preferred stock, par value $1.00 per share (“Preferred Stock”). The Common Stock and the Preferred
Stock are collectively referred to in this opinion as the “Securities.”
The Company has informed us that the Securities will be issued
from time to time in connection with future business combination transactions or acquisitions by the Company, or its subsidiaries, of assets, businesses or securities as set forth in the Registration Statement (and any amendments thereto), the
prospectus contained therein and any prospectus supplement. We understand that prior to the issuance of any Securities under the Registration Statement, the Company will afford us an opportunity to review the operative documents pursuant to which
such Securities are issued and will file any applicable amendment to the Registration Statement or Current Report on Form 8-K (which may include as an exhibit an amendment to this opinion) or prospectus supplement as we may reasonably consider
necessary or appropriate by reason of the terms of the issuance of such Securities.
In so acting, we have examined originals or copies (certified or
otherwise identified to our satisfaction) of (i) the Restated Articles of Incorporation of the Company together with all amendments thereto; (ii) the Amended and Restated Bylaws of the Company; (iii) the Registration Statement and the
exhibits thereto; (iv) the prospectus contained within the Registration Statement; (v) such corporate records, agreements, documents and other instruments; and (vi) such certificates or comparable documents of public officials and
other sources believed by us to be reliable, and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
Atlanta | Baltimore | Bethesda | Denver | Las
Vegas | Los Angeles | New Jersey | New York | Philadelphia | Phoenix |
Salt Lake Ciy | San Diego | Washington,
DC | Wilmington | www.ballardspahr.com
Aqua America, Inc.
February 27, 2015
Page
2
In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural
persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter
documents. As to all questions of fact material to this opinion that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company.
We have also assumed that (i) the Registration Statement and any amendments or supplements thereto (including any post-effective amendments) will have
become effective and comply with all applicable laws and no stop order suspending the Registration Statement’s effectiveness will have been issued and remain in effect, in each case, at the time the Securities are offered or issued as
contemplated by the Registration Statement, (ii) a prospectus supplement will have been prepared and filed with the Commission describing the Securities issued thereby and will at all relevant times comply with all applicable laws,
(iii) the Company has timely filed all necessary reports pursuant to the Securities Exchange Act of 1934, as amended, which are incorporated into the Registration Statement by reference, (iv) all Securities will be issued in compliance
with applicable federal and state securities laws and in the manner stated in the Registration Statement and the appropriate prospectus supplement, (v) a definitive purchase, merger or similar agreement and any other necessary agreement with
respect to any Securities will have been duly authorized and validly executed and delivered by the Company and the other party or parties thereto and (vi) any Securities issuable upon conversion, exercise or exchange of any Securities being
issued will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exercise or exchange.
Based on the foregoing,
and subject to the qualifications stated herein, we are of the opinion that:
1. Common Stock. Assuming that the issuance and terms
of any Common Stock and the terms of the acquisition transaction in connection with which the Common Stock is to be issued have been duly authorized, when (i) the Company has received the consideration therefor specified in any applicable
acquisition, merger or other agreement approved by the Company’s board of directors or any authorized committee thereof, (ii) the consideration for such Common Stock is at least equal to the aggregate par value of such Common Stock, and
(iii) in the case of any Common Stock to be issued upon the exchange or conversion of Preferred Stock, due exercise of such exchange or conversion rights in accordance with the terms of the applicable instruments, such Common Stock will be
validly issued, fully paid and non-assessable.
2. Preferred Stock. Assuming that the issuance and terms of any series of Preferred
Stock and the terms of the acquisition transaction in connection with which the Preferred Stock is to be issued have been duly authorized, when (i) a Statement with respect to Shares fixing and determining the terms of the Preferred Stock has
been duly filed with the Department of State of the Commonwealth of Pennsylvania and accepted for recording, (ii) the Company has received the consideration therefor specified in any applicable acquisition, merger or other agreement approved by
the Company’s board of directors or any authorized committee thereof, and (iii) the consideration for such Preferred Stock is at least equal to the aggregate par value of such Preferred Stock, such Preferred Stock will be validly issued,
fully paid and non-assessable.
Aqua America, Inc.
February 27, 2015
Page
3
The opinions expressed above with respect to validity, binding effect and enforceability are subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles
of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution thereunder may be limited by federal or state
securities laws or public policy relating thereto.
We express no opinion as to the laws of any jurisdiction other than the federal laws of the United
States of America and the laws of the Commonwealth of Pennsylvania.
We hereby consent to the use of this letter as an exhibit to the Registration
Statement and to any and all references to our firm in the prospectus which is a part of the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of
the Securities Act and the rules and regulations promulgated thereunder.
Sincerely yours,
/s/ Ballard Spahr LLP
Exhibit 12.1
Aqua America, Inc.
Computation of Ratio of Earnings to Fixed
Charges and
Computation of Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends
(In thousands, except ratios)
|
|
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|
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|
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|
|
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| |
|
Year Ended December 31, |
|
| |
|
2014 |
|
|
2013 |
|
|
2012 |
|
|
2011 |
|
|
2010 |
|
| Ratio of earnings to combined fixed charges and preferred stock dividends: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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| Earnings: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Income from continuing operations before income taxes and non-controlling interest |
|
$ |
243,092 |
|
|
$ |
226,769 |
|
|
$ |
245,081 |
|
|
$ |
207,265 |
|
|
$ |
187,930 |
|
| Add: combined fixed charges |
|
|
79,220 |
|
|
|
80,564 |
|
|
|
81,624 |
|
|
|
84,143 |
|
|
|
80,159 |
|
| Less: preferred stock dividends |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| Less: capitalized interest |
|
|
(1,494 |
) |
|
|
(1,743 |
) |
|
|
(3,965 |
) |
|
|
(6,848 |
) |
|
|
(5,062 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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| Total earnings |
|
$ |
320,818 |
|
|
$ |
305,591 |
|
|
$ |
322,741 |
|
|
$ |
284,560 |
|
|
$ |
263,027 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Combined fixed charges: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Interest on all indebtedness |
|
$ |
76,673 |
|
|
$ |
77,735 |
|
|
$ |
78,546 |
|
|
$ |
80,854 |
|
|
$ |
76,911 |
|
| Amortization of debt expense |
|
|
1,609 |
|
|
|
1,613 |
|
|
|
1,604 |
|
|
|
1,789 |
|
|
|
1,806 |
|
| Estimated interest attributable to rental and lease expense |
|
|
938 |
|
|
|
1,216 |
|
|
|
1,474 |
|
|
|
1,500 |
|
|
|
1,442 |
|
| Preferred stock dividends |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total combined fixed charges and preferred stock dividends |
|
$ |
79,220 |
|
|
$ |
80,564 |
|
|
$ |
81,624 |
|
|
$ |
84,143 |
|
|
$ |
80,159 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Ratio of earnings to combined fixed charges and preferred stock dividends |
|
|
4.05 |
|
|
|
3.79 |
|
|
|
3.95 |
|
|
|
3.38 |
|
|
|
3.28 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note: Capitalized interest only includes account with the Allowance for Funds Used During Construction (AFDUC) debt component
as this is the portion that would be considered a fixed interest charge.
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of our report dated February 27, 2015 relating to the
financial statements and the effectiveness of internal control over financial reporting, which appears in Aqua America Inc.’s Annual Report on Form 10-K for the year ended December 31, 2014. We also
consent to the reference to us under the heading “Experts” in such Registration Statement.
|
| /s/ PricewaterhouseCoopers LLP |
| PRICEWATERHOUSECOOPERS LLP |
| Philadelphia, Pennsylvania |
| February 27, 2015 |
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