-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JyPwMEZiB1w9cuI/5kjEfiHQEvdhWOegxMEeLeqU0N9JTBmRmoOE9OZHXzzt/ZUl hyBMONAmNLIISbhB+iHsUQ== 0000914260-98-000117.txt : 19981022 0000914260-98-000117.hdr.sgml : 19981022 ACCESSION NUMBER: 0000914260-98-000117 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19981021 EFFECTIVENESS DATE: 19981021 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: PROVIDENCE & WORCESTER RAILROAD CO/RI/ CENTRAL INDEX KEY: 0000831968 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 050344399 STATE OF INCORPORATION: RI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-65937 FILM NUMBER: 98728563 BUSINESS ADDRESS: STREET 1: 75 HAMMOND ST CITY: WORCESTER STATE: MA ZIP: 01610 BUSINESS PHONE: 5087554000 MAIL ADDRESS: STREET 1: PROVIDENCE & WORCESTER RAILROAD CO STREET 2: 75 HAMMOND STREET CITY: WORCESTER STATE: MA ZIP: 01610 S-8 1 FORM S-8 Registration Statement No. 333-______ SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- PROVIDENCE AND WORCESTER RAILROAD COMPANY (Exact Name of Registrant as Specified in its Charter) Rhode Island 05-03444399 (State or other jurisdiction of (IRS Employer Identification No.) incorporation or organization 75 Hammond Street, Worcester, MA 01610 (Address, including zip code of Principal Executive Offices) Providence and Worcester Railroad Company Anniversary Stock Plan (Full Title of the Plan) Heidi J. Eddins, Esq., Vice President, Secretary and General Counsel Providence and Worcester Railroad 75 Hammond Street Worcester, MA 01610 (508) 755-4000 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) Copies to: Margaret D. Farrell, Esq. Hinckley, Allen & Snyder 1500 Fleet Center Providence, RI 02903 (401) 274-2000 If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box. [X] __________________ CALCULATION OF REGISTRATION FEE _______________________________________________________________________________ Title of Each Proposed Proposed Class of Maximum Maximum Amount of Securities to Be Amount to be Offering Price Aggregate Registration Registered Registered Per Share (1) Offering Price Fee _______________________________________________________________________________ _______________________________________________________________________________ Common Stock, par value $.50 per share.... 5,000 $10.96875 $54,843.75 $16.18 _______________________________________________________________________________ (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) based on the average of the high and low prices of the Registrant's Common Stock, $11.125 and $10.8125, respectively, reported by The American Stock Exchange on October 19, 1998. Part II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, which have been filed by Providence and Worcester Railroad Company, a Rhode Island corporation (the "Registrant") with the Securities and Exchange Commission (the "Commission"), are incorporated by reference herein and shall be deemed to be a part hereof: (a) The Registrant's latest prospectus filed with the Commission pursuant to Rule 424(b)(4) on October 6, 1998 (Registration No. 333-62229); (b) Quarterly Reports on Form 10-Q for the quarters ended March 31 and June 30, 1998; and (c) The description of Common Stock included in the Registrant's Registration Statement on Form S-1 (Registration No. 333-62229) filed with the Commission on August 25, 1998. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference and shall be deemed a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Article SIXTH of the Registrant's Charter provides that a director shall not be liable to the Registrant or its shareholders for breach of fiduciary duty as a director, other than liability for (a) breach of the director's duty of loyalty to the Registrant or its shareholders, (b) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) unlawful payment of a dividend or unlawful stock purchase or redemption, or (d) any transaction from which the director derived an improper personal benefit. Section 4.1 of the Rhode Island Business Corporation Act authorizes indemnification of directors and officers of Rhode Island corporations. Article XI of the Registrant's By-laws (i) authorizes the indemnification of directors and officers (the "Indemnified Person") under specified circumstances to the fullest extent authorized, (ii) provides for the advancement of expenses to the Indemnified Persons for defending any proceedings related to the specified circumstances and (iii) gives the Indemnified Persons the right to bring suit against the Registrant to enforce the foregoing rights to indemnification and advancement of expenses. Item 7. Exemption From Registration Claimed. Not applicable. Item 8. Exhibits. The Index to Exhibits to this Registration Statement is incorporated herein by reference. Item 9. Undertakings. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of 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 (or the most recent post-effective amendment thereof); (iii) To include any material information with respect to the plan of distribution not previously disclosed or any material change to such information; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) 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. (c) 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 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Worcester, Commonwealth of Massachusetts, on October 21, 1998. Providence and Worcester Railroad Company By: /s/ Robert H. Eder ____________________________________ Robert H. Eder Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned do hereby constitute and appoint Robert H. Eder, Orville R. Harrold and Heidi J. Eddins, and each of them, with full power of substitution and full power to act without the other, as his true and lawful attorney-in-fact and agent to act in his name, place and stead and to execute in the name and on behalf of the undersigned, individually and in each capacity stated below, a Registration Statement on Form S-8 of Providence and Worcester Railroad Company with respect to 5,000 shares of the Registrant's Common Stock issuable pursuant to the Providence and Worcester Railroad Company Anniversary Stock Plan, and any and all amendments (including post-effective amendments) thereto, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on October 21, 1998. Signature Title /s/ Robert H. Eder ___________________________ Chief Executive Officer and Chairman Robert H. Eder (Principal Executive Officer) /s/ Orville R. Harrold ___________________________ President, Chief Operating Officer and Director Orville R. Harrold /s/ Robert J. Easton ___________________________ Treasurer, Controller and Director (Principal Robert J. Easton Financial Officer and Controller) ___________________________ Director Frank W. Barrett /s/ Philip D. Brown ___________________________ Director Philip D. Brown /s/ John P. Burnham ___________________________ Director John P. Burnham ___________________________ Director John H. Cronin /s/ J. Joseph Garrahy ___________________________ Director J. Joseph Garrahy /s/ John J. Healy ___________________________ Director John J. Healy ___________________________ Director William J. LeDoux /s/ Charles M. McCollam, Jr. ___________________________ Director Charles M. McCollam, Jr. EXHIBIT INDEX Exhibit Number Description 4.1 Restated Charter (filed as Exhibit 3.1 to Form S-1 Registration Statement No. 333-46433 and by this reference incorporated herein) 4.2 By-laws, as amended (filed as Exhibit 4.2 to Form S-8 Registration Statement No. 333-02975 and by this reference incorporated herein) 4.3 Anniversary Stock Plan of Providence and Worcester Railroad Company 5.1 Opinion of Hinckley, Allen & Snyder 23.1 Consent of Hinckley, Allen & Snyder (included in Exhibit 5.1) 23.2 Consent of Deloitte & Touche LLP 24.1 Power of Attorney (see page 6) EX-4 2 EXHIBIT 4.3 Exhibit 4.3 PROVIDENCE AND WORCESTER RAILROAD COMPANY ANNIVERSARY STOCK PLAN 1. Purpose. Providence and Worcester Railroad Company (the "Company") desires to reward employees who have demonstrated a long-term commitment to the success of the Company. 2. Definitions. A. "Company" means Providence and Worcester Railroad Company, a Rhode Island corporation. B. "Employee" means each person who is employed by the Company. C. "Eligible Employee" means each Employee who meets the eligibility requirements set forth in Section 4. D. "Plan" means this stock bonus plan of the Company, as the same may be amended from time to time. The Plan may be referred to as the "Anniversary Stock Plan." E. "Board" means the Board of Directors of the Company. F. "Administrator" means the person appointed by the Board to administer the Plan as provided in Section 3. G. "Plan Year" means the calendar year. H. "Effective Date" means October 22, 1998, the date as of which the Plan shall be effective. I. "Common Stock" means the Company's common stock, $.50 par value per share. J. "Full-time Employment" means continuous employment by the Company of at least 1,000 hours in a year (a period of 12 consecutive calendar months), excluding employment as a seasonal, temporary, special, or extra employee. Employment by a corporation prior to the date such corporation became acquired by the Company shall not be considered as Full-time Employment. 3. Administration. The Plan shall be administered by the Administrator. The Board shall appoint the Administrator. Subject to and not inconsistent with the express provisions of the Plan, the Administrator shall have plenary authority to, in his or her discretion, to make all determinations deemed necessary or advisable for the administration of the Plan. No Administrator shall be liable for any loss or damage or depreciation which may result in connection with the execution of his or her duties or the exercise of his or her discretion or from any other act or omission hereunder, except when due to his or her gross negligence or willful misconduct. The Company shall indemnify and hold harmless each Administrator from any and all claims, losses, damages, expenses (including reasonable counsel fees approved by the Board), and liabilities (including any amounts paid in settlement with the Board's approval) arising from any act or omission of such Administrator, except when the same is judicially determined to be due to the gross negligence or willful misconduct of such Administrator. 4. Eligibility. An Employee shall be an Eligible Employee if and when the following conditions are satisfied: (a) The Employee shall be employed in Full-time Employment; and (b) The Employee has not previously received a stock bonus under the Plan; and (c) (i) From January 1, 1998 through December 31, 1998, the Employee shall have or will have completed twenty-five years (a period of 300 consecutive calendar months) of Full-time Employment; or (ii) After December 31, 1988 and during any Plan Year, the Employee shall have or will have completed twenty-five continuous years (a period of 300 consecutive calendar months) of Full-time Employment. 5. Stock Bonus Awards. Eligible Employees shall receive a stock bonus of 25 shares of Common Stock. Certificates for any stock bonus shall be issued to the Eligible Employees annually on or before the last day of the Plan Year. Upon the issuance of the stock certificates to an Eligible Employee, such Eligible Employee shall have all the rights of a shareholder with respect to such shares of Common Stock. 6. Amendment and Termination. The Company reserves the right at any time and from time to time to modify, suspend, amend, or terminate the Plan in whole or in part by delivering to the Administrator a copy of such modification, suspension, amendment, or termination executed by any officer of the Company. Notwithstanding anything herein contained, the Company upon any such termination of the Plan, shall have no obligation or liability whatsoever to make any further awards to any Employee, nor shall any Employee or other person have any right to compel the Company to make any award after the termination of the Plan. 7. Shares Subject to the Plan. The Common Stock to be issued and delivered to the Company pursuant to the Plan may be either authorized by unissued shares or treasury shares of the Company. The aggregate number of Common Shares of the Company which may be issued under the Plan shall not exceed 5,000 shares of Common Stock; subject, however, to the adjustment provided in Section 8. 8. Share Adjustments. In the event there is any change in the number of shares of Common Stock outstanding resulting from stock splits, stock dividends, combinations or exchanges of shares, or other similar capital adjustments, equitable proportionate adjustments shall automatically be made, without further action by the Company or the Administrator, in the number of shares issuable as a stock bonus and available for award under the Plan. 9. Tax Withholding. Upon any award of a stock bonus hereunder, the Administrator shall provide appropriate arrangements for the satisfaction by the Company and the Eligible Employee of all federal, state, local or other income, excise or employment taxes or tax withholding requirements applicable to the receipt of Common Stock as determined by the Administrator. 10. No Effect on Employment Status. The fact that an Employee has been granted a stock bonus under the Plan shall not limit or otherwise qualify the right of the Company to terminate the Employee's employment at any time. 11. Compliance with Securities Laws. Common Stock issued by the Company pursuant to the Plan shall be granted and issued only in full compliance with all applicable securities laws, including laws, rules and regulations of the Securities and Exchange Commission and applicable state Blue Sky Laws. With respect thereto, the Board and the Administrator may impose such conditions on transfer, restrictions and limitations as they may deem necessary and appropriate to ensure compliance with such applicable securities laws. 12. Rhode Island Law to Govern. The Plan shall be construed in accordance with and governed by the laws of the State of Rhode Island. IN WITNESS WHEREOF, the Company has caused this Providence and Worcester Railroad Company Anniversary Stock Plan to be executed by its duly authorized officer as of the 21st day of October, 1998. PROVIDENCE AND WORCESTER RAILROAD COMPANY By: /s/ Heidi J. Eddins Name (printed): Heidi J. Eddins Title: Vice President, Secretary and General Counsel EX-5 3 EXHIBIT 5.1 Exhibit 5.1 1500 Fleet Center Providence, Rhode Island 02903 401 274-2000 FAX: 401 277-9600 HINCKLEY, ALLEN & SNYDER Attorneys at Law October 21, 1998 Providence and Worcester Railroad Company 75 Hammond Street Worcester, MA 01610 RE: Registration Statement on Form S-8 for Anniversary Stock Plan Ladies and Gentlemen: We have acted as counsel to Providence and Worcester Railroad Company, a Rhode Island corporation, (the "Company") in connection with the filing by the Company of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission relating to 5,000 shares of the Company's common stock, par value $.50 per share (the "Common Stock"), issuable under its Anniversary Stock Plan (the "Plan"). In connection with this opinion, we have examined the Company's Charter, By-laws, the Registration Statement, corporate proceedings of the Company relating to the issuance of the Common Stock, the Plan and such other instruments and documents as we have deemed relevant under the circumstances. In making the aforesaid examination, we have assumed the genuineness of all signatures and the conformity to original documents of all copies furnished to us as original or photostatic copies. Based upon and subject to the foregoing, we are of the opinion that the Common Stock which may be issued under the Plan has been duly authorized and when issued in accordance with the terms of the Plan will be validly issued, fully paid and non-assessable. We hereby consent to the use of our opinion as herein set forth as an exhibit to the Registration Statement. This opinion is rendered to you in connection with the Registration Statement, and except as consented to in the preceding sentence, may not be relied upon or furnished to any other person in any context. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Hinckley, Allen & Snyder EX-23 4 EXHIBIT 23.2 EXHIBIT 23.2 INDEPENDENT AUDITOR'S CONSENT We consent to the incorporation by reference in this Registration Statement of Providence and Worcester Railroad Company on Form S-8 of our report dated January 30, 1998, appearing in the Prospectus dated October 6, 1998 filed with the Commission pursuant to Rule 424(b)(4) (Registration No. 333-62229). /s/ Deloitte & Touche LLP Worcester, Massachusetts October 19, 1998 -----END PRIVACY-ENHANCED MESSAGE-----