-----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, WxFawfuPF971tzT/hVEKaa0h70H02J7/+hMqxLLBxqlydxoBikccAbn2KvQQ+Dwu M4h9NoW6ZRPIoWp/QMDAHg== 0000914260-98-000118.txt : 19981022 0000914260-98-000118.hdr.sgml : 19981022 ACCESSION NUMBER: 0000914260-98-000118 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 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: 333-65949 FILM NUMBER: 98728587 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 Non-Qualified Stock Option 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 Amount of Class of Amount to be Maximum Maximum Registration Securities to Be Registered Offering Aggregate Fee Registered Price Per Offering Share (2) Price ______________________________________________________________________________ Common Stock, par value $.50 per share............. 108,895(1) $10.96875 $1,194,442.03 $352.60 _______________________________________________________________________________ (1) Represents additional shares of Common Stock issuable under the Non-qualified Stock Option Plan. The Registrant filed Registration Statements on Form S-8 on February 7, 1989 (Registration No. 33-26944) and May 19, 1996 (Registration No. 333-02975) registering 50,000 and 52,257 shares, respectively, of Common Stock issuable under the Non-qualified Stock Option Plan. (2) 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. REGISTRATION OF ADDITIONAL SECURITIES Providence and Worcester Railroad Company, a Rhode Island corporation (the "Registrant") has filed Registration Statements on Form S-8 on February 7, 1989 and May 19, 1996, registering 50,000 and 52,257 shares, respectively, of the Common Stock ("Common Stock") of the Company reserved for issuance under its Non-qualified Stock Option Plan (the "Plan"). The Plan provides that the number of shares authorized for issuance under the Plan is the greater of 50,000 or 5% of the Common Stock outstanding. As a result of the Company's issuance of Common Stock, an additional 108,895 shares of Common Stock are available for issuance pursuant to options granted under the Plan. The contents of Registration Statement on Form S-8 for the Plan (Registration No. 333-02975) are incorporated herein by reference subject to the following changes and additional information required in this Registration Statement that are not contained in the earlier Registration Statement. Part II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, which have been filed by 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 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 8. Exhibits. The Index to Exhibits to this Registration Statement is incorporated herein by reference. 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 an additional 108,895 shares of the Registrant's Common Stock issuable pursuant to the Providence and Worcester Railroad Company Non-qualified Stock Option 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. McCollom, 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 Providence and Worcester Railroad Company Non-qualified Stock Option Plan (filed as Exhibit 10.3 to Form S-1 Registration Statement No. 33-46433 and by this reference incorporated herein) 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 5) EX-5 2 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 Non-Qualified Stock Option 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 108,895 shares of the Company's common stock, par value $.50 per share (the "Common Stock"), issuable under its Non-Qualified Stock Option 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 3 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-----