UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(Mark One)
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended
December 31, 2007
OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______________________ to _________________________
Commission file number
001-10608
Florida Public Utilities Company
(Exact name of the registrant as specified in its charter)
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Florida
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59-0539080
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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401 South Dixie Highway, West Palm Beach, FL
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33401
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(Address of principal executive offices,
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Zip Code)
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Registrant’s telephone number, including area code
(561) 832-0872
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Name of each exchange on which registered
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Common Stock par value $1.50 per share
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American Stock Exchange
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Securities registered pursuant to section 12(g) of the Act:
__________________________________________________________________________________
(Title of class)
__________________________________________________________________________________
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
o
Yes
x
No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
o
Yes
x
No
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
x
Yes
o
No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.
x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
o
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Accelerated filer
o
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Non-accelerated filer
x
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Smaller reporting company
o
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(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
o
Yes
x
No
As of June 29, 2007, the aggregate market value of the Registrant’s Common Stock held by non-affiliates (based upon the closing price of the Common Stock on that date on the American Stock Exchange) was approximately $70,700,000.
On March 18, 2008, 6,187,175 shares of the Registrant’s $1.50 par value common stock were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s Proxy Statement for the May 13, 2008 Annual Meeting of Shareholders are incorporated by reference in Part III hereof.
Introduction
The Registrant is filing this Amendment No. 1 to Form 10-K for the limited purposes of (1) correcting its reference to “disclosure controls and procedures” in Item 9A and (2) providing corrected certifications of both its Chief Executive Officer and Chief Financial Officer.
PART II
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Item 9A.
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Controls and Procedures
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Disclosure Controls and Procedures
In accordance with Exchange Act Rules 13a-15 and 15d-15, we carried out an evaluation, under the supervision and with the participation of management, including our CEO and CFO, of the effectiveness of our disclosure controls and procedures as of December 31, 2007. Based on evaluation, our CEO and CFO have concluded that, as of December 31, 2007, our disclosure controls and procedures were effective.
Management’s annual report on internal control over financial reporting
Management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. The Company’s internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Because of the inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2007. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control-Integrated Framework. Based on such assessment and those criteria, management believes that the Company’s internal control over financial reporting was effective as of December 31, 2007.
Changes in Internal Control Over Financial Reporting
There have not been any changes in the Company’s internal control over financial reporting during the fiscal quarter ended December 31, 2007 that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
This annual report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to temporary rules of the SEC that permit the Company to provide only management’s report in this annual report.
PART IV
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Item 15.
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Exhibits, Financial Statement Schedules
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(a)
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The following documents are filed as part of this report:
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The following consolidated financial statements of the Company are included herein and in the Registrant's 2007 Annual Report to Shareholders:
Consolidated Statements of Income
Consolidated Statements of Comprehensive Income
Consolidated Balance Sheets
Consolidated Statements of Capitalization
Consolidated Statements of Common Shareholders' Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Report of Independent Registered Public Accounting Firm
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(2)
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Financial Statement Schedules
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The following valuation and qualifying accounts table is included in Note 1.I. herein and in the Registrant’s 2007 Annual Report to Shareholders:
Allowance for Doubtful Accounts
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3(i)
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Amended Articles of Incorporation (Incorporated herein by reference as Exhibit 3(i) to FPU’s quarterly report on Form 10-Q for the period ended June 30, 2002. SEC File No. 1-10608)
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3(ii)
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Amended By-Laws (Incorporated herein by reference as Exhibit 3(ii) to FPU’s quarterly report on Form 10-Q for the period ended June 30, 2002. SEC File No. 1-10608)
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4(a)
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Indenture of Mortgage and Deed of Trust of FPU dated as of September 1, 1942 (Incorporated by reference herein to Exhibit 7-A to Registration No. 2-6087)
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4(b)
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Fourteenth Supplemental Indenture dated September 1, 2001. (Incorporated by reference to exhibit 4(b) on FPU’s annual report on Form 10-K for the year ended December 31, 2001)
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4(c)
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Fifteenth Supplemental Indenture dated November 1, 2001. (Incorporated by reference to exhibit 4(c) on FPU’s annual report on Form 10-K for the year ended December 31, 2001)
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10(a)
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First Amendment to Amended and Restated Loan Agreement and Promissory Note between FPU and Bank of America dated August 25, 2006. (Incorporated by reference to exhibit 10(2) on FPU’s Form 10-Q for third quarter ending September 30, 2006, File No. 001-10608)
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10(b)
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Contract for the transportation of natural gas between FPU and the City of Lake Worth dated March 25, 1992 (Incorporated by reference to exhibit 10(f) on FPU’s Form S-2 for July 1992, File No. 0-1055)
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10(c)
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Contract for the purchase of electric power between FPU and Jacksonville Electric Authority dated January 29, 1996. (Incorporated by reference to exhibit 10(h) on FPU’s annual report on Form 10-K for the year ended December 31, 2000)
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10(d)
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Contract for the purchase of electric power between FPU and Gulf Power Company effective November 21, 1996. (Incorporated by reference to exhibit 10(i) on FPU’s annual report on Form 10-K for the year ended December 31, 2000)
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10(e)
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Contract for the purchase of as-available capacity and energy between FPU and Container Corporation of America dated September 19, 1985 (Incorporated by reference to exhibit 10(i) on FPU’s Form S-2 for July 1992, File No. 0-1055)
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10(f)
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Contract for the sale of electric service between FPU and Container Corporation of America dated August 26, 1982 (Incorporated by reference to exhibit 10(j) on FPU’s Form S-2 for July 1992, File No. 0-1055)
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10(g)
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Contract for the sale of electric service between FPU and ITT Rayonier Inc. Dated April 1, 1982 (Incorporated by reference to exhibit 10(k) on FPU’s Form S-2 for July 1992, File No. 0-1055)
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10(h)
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Form of Stock Purchase and Sale Agreement between FPU and three persons who, upon termination of two trusts, will become the record and beneficial owners of an aggregate of 313,554 common shares of the Registrant (Incorporated by reference to exhibit 10(p) on FPU’s Form S-2 for July 1992, File No. 0-1055)
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10(i)
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Contract for the sale of certain assets comprising FPU’s water utility business to the City of Fernandina Beach dated December 3, 2002. (Incorporated by reference to exhibit 10(o) on FPU’s annual report on Form 10-K for the year ended December 31, 2002)
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10(j)
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Transportation agreement between FPU and the City of Lake Worth (Incorporated by reference to exhibit 99.2 on FPU’s Form 8-K filed April 4, 2003, File No. 001-10608)
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10(k)
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A Mutual Release agreement, as of March 31, 2003, by and between FPU, Lake Worth Generation, LLC, The City of Lake Worth, and The AES Corporation. (Incorporated by reference to exhibit 99.3 on FPU’s Form 8-K filed April 4, 2003, File No. 001-10608)
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10(l)
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Amended and Restated loan agreement between FPU and Bank of America, N.A. dated October 29, 2004. (Incorporated by reference as exhibit 10(n) on FPU’s annual report on Form 10-K for the year ended December 31, 2004)
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10(m)
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Security agreement between FPU and Bank of America, N.A. dated October 29, 2004. (Incorporated by reference as exhibit 10(o) on FPU’s annual report on Form 10-K for the year ended December 31, 2004)
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10(n)#
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Non-Employee Director Compensation Plan, approved by Board of Directors on March 18, 2005. (Incorporated by reference as exhibit 10(p) on FPU’s annual report on Form 10-K for the year ended December 31, 2004)
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10(o)
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Amendment to Electric Service Contract by and between JEA and FPU dated September 25, 2006, effective January 1, 2007. (Incorporated by reference as Exhibit 10.1 to our Form 10-Q, for the quarter ending September 30, 2006, File No. 001-10608)
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10(s)*
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Contract for the Agreement for Generation Services by and between FPU and Gulf Power Company dated December 28, 2006, effective January 1, 2008 (Incorporated by reference as Exhibit 10(s) on FPU’s annual report on Form 10-K for the year ended December 31, 2006)
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10(t)
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Agreement for the purchase of land in south Florida, dated July 5, 2007. (Incorporated by reference as Exhibit 10.1 to our Form 10-Q, for the quarter ended June 30, 2007)
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10(u)
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Agreement for the Firm Transportation Service with Florida Gas Transmission, for services beginning 11/01/07, expiring 2/29/2016, Contract No. 107033 (Incorporated by reference as Exhibit 10.1 to our Form 10-Q, for the quarter ended on September 30, 2007)
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10(v)
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Agreement for Firm Transportation Service with Florida Gas Transmission, for services beginning 11/01/07, expiring 3/31/2022, Contract No. 107034 (Incorporated by reference as Exhibit 10.2 to our Form 10-Q, for the quarter ended on September 30, 2007)
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10(w)
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Agreement for Firm Transportation Service with Florida Gas Transmission, for services beginning 11/01/07, expiring 2/29/2016, Contract No. 107035 (Incorporated by reference as Exhibit 10.3 to our Form 10-Q, for the quarter ended on September 30, 2007)
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10(x)
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Agreement with Chevron Natural Gas dated December 13, 2007 (previously filed).
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10(y)
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Amendment to physical sale Agreement with Inergy Propane, LLC dated October 31, 2007 (previously filed).
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10(z)
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Agreement with Crosstex Gulf Coast Marketing LTD dated December 14, 2007 (previously filed).
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10(aa)#
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Employment Agreement between the Company and John T. English dated March 31, 2006, amended October 22, 2007 (previously filed).
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10(ab)#
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Employment Agreement between the Company and Charles L. Stein dated March 31, 2006, amended October 22, 2007 (previously filed).
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10(ac)#
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Employment Agreement between the Company and George M. Bachman dated March 31, 2006, amended October 22, 2007 (previously filed).
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14
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Ethics Policy (Incorporated by reference to exhibit 99.3 on FPU’s Form 10-K, filed March 30, 2004 File No. 001-10608).
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16
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Change in certifying accountants (Incorporated herein by reference as exhibit 16 to FPU’s current report on Form 8-K, filed April 18, 2003).
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21
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Subsidiary of the registrant (Incorporated by reference to exhibit 21 on FPU’s annual report on Form 10-K, for the year ended December 31, 2000).
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23
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Independent Registered Public Accounting Firm’s Consent BDO Seidman LLP
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31.1
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Certification of Principal Executive Officer (302).
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31.2
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Certification of Principal Financial Officer (302).
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32
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Certification of Principal Executive Officer and Principal Financial Officer (906).
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#
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Denotes management contract or compensatory plan or arrangement
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*
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Confidential treatment is being requested for a portion of this agreement
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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FLORIDA PUBLIC UTILITIES COMPANY
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By:
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/s/ George M. Bachman
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George M. Bachman, Chief Financial Officer
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(Duly Authorized Officer)
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Date: August 13, 2008
FLORIDA PUBLIC UTILITIES COMPANY
EXHIBIT INDEX
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Regulation S-K
Item Number
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10(t)
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Agreement for the purchase of land in south Florida, dated July 5, 2007 (previously filed).
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10(u)
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Agreement for the Firm Transportation Service with Florida Gas Transmission, for services beginning 11/01/07, expiring 2/29/2016, Contract No. 107033 (previously filed).
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10(v)
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Agreement for Firm Transportation Service with Florida Gas Transmission, for services beginning 11/01/07, expiring 3/31/2022, Contract No. 107034 (previously filed).
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10(w)
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Agreement for Firm Transportation Service with Florida Gas Transmission, for services beginning 11/01/07, expiring 2/29/2016, Contract No. 107035 (previously filed).
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10(x)
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Agreement with Chevron Natural Gas dated December 13, 2007 (previously filed).
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10(y)
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Amendment to physical sale Agreement with Inergy Propane, LLC dated October 31, 2007 (previously filed).
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10(z)
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Agreement with Crosstex Gulf Coast Marketing LTD dated December 14, 2007 (previously filed).
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10(aa) #
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Employment Agreement between the Company and John T. English dated March 31, 2006, amended October 22, 2007 (previously filed).
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10(ab) #
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Employment Agreement between the Company and Charles L. Stein dated March 31, 2006, amended October 22, 2007 (previously filed).
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10(ac) #
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Employment Agreement between the Company and George M. Bachman dated March 31, 2006, amended October 22, 2007 (previously filed)
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23
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Independent Registered Public Accounting Firm’s Consent BDO Seidman LLP (previously filed).
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31.1
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Certification of Principal Executive Officer (302).
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31.2
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Certification of Principal Financial Officer (302).
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32
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Certification of Principal Executive Officer and Principal Financial Officer (906) (previously filed).
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