SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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DELAWARE OTSEGO CORPORATION
(Exact name of registrant as specified in its charter)
New York 16-0913491
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(State or other juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
1 Railroad Avenue
Cooperstown, New York 13326
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(Address of principal (Zip Code)
executive offices)
Delaware Otsego Corporation
1993 Stock Option Plan
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(Full title of the plan)
Nathan R. Fenno, General Counsel
Delaware Otsego Corporation
1 Railroad Avenue
Cooperstown, New York 13326
(607) 547-2555, Ext. 236
(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount maximum maximum
securities to be offering aggregate Amount of
to be registered price per offering registra-
registered (1) share price tion fee
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Common 70,977 $ 8.43 (2) $ 598,336.11 $ 181.31
stock, 2,936 9.28 (2) 27,246.08 8.26
par value 7,078 9.30 (2) 65,825.40 19.95
$.125 5,250 9.52 (2) 49,980.00 15.15
35,309 16.63 (3) 587,188.67 177.94
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Totals 121,550 $1,328,576.26 $ 402.61
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(1) An undetermined number of additional shares may be issued if the
antidilution provisions of the Delaware Otsego Corporation 1993
Stock Option Plan become operative.
(2) Calculated pursuant to Rule 457(h) on the basis of the price at
which the outstanding options may be exercised.
(3) Calculated pursuant to rule 457(h) and (c) on the basis of the
average of the high and low prices ($17.00 and $ 16.25) of a
share of Common Stock as quoted on the Nasdaq National Market
System on March 27, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference the following
documents into this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996; and
(b) The description of the Common Stock of the Registrant contained
in any registration statement of the Registrant filed with the
Securities and Exchange Commission (the Commission) pursuant to
Section 12 of the Securities Exchange Act of 1934 (the "Exchange
Act"), including any amendment or report filed for the purpose
of updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have
been sold, or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in and made a part
of this Registration Statement from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Nathan R. Fenno, the Vice President-Law and Secretary of the
Registrant, has given the opinion being filed as Exhibit 5 to this
Registration Statement as to the legality of the securities being
registered hereby. Mr. Fenno is the beneficial owner of 5,033
shares of Common Stock, all of which are issuable upon exercise of
employee stock options.
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Item 6. Indemnification of Directors and Officers.
Article XI of the By-Laws of the Registrant provides as follows:
Section 1. To the extent permitted by law:
(a) The Corporation shall indemnify any person made a party to an
action or proceeding by or in the right of the Corporation to
procure a judgment in its favor, by reason of the fact that he, his
testator or intestate, is or was a Director, officer or employee of
the Corporation against the reasonable expenses, including attorneys'
fees, actually and necessarily incurred by him in connection with
the defense of such action, and/or with any appeal therein; and
(b) The Corporation shall indemnify any person made or threatened
to be made a party to any action or proceeding, other than one by or
in the right of the Corporation, of any type or kind, domestic or
foreign, which any Director, officer or employee of the Corporation
served in any capacity at the request of the Corporation, by reason
of the fact that he, his testator or intestate, is or was a Director,
officer or employee of the Corporation, or served such other
corporation in any capacity against judgment, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees,
actually and necessarily incurred as a result of such action or
proceeding, or any appeal therein, in each case to the fullest
extent permissible under Section 721 through 726 of the New York
Business Corporation Law or the indemnification provisions of any
successor statute.
Section 721 of the New York Business Corporation Law (the "B.C.L.")
provides that no indemnification may be made to or on behalf of any director
or officer of the Registrant under Article XI of its By-Laws if "a judgment
or other final adjudication adverse to the director or officer establishes
that his acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so
adjudicated, or that he personally gained in fact a financial profit or
other advantage to which he was not legally entitled." Article XI of the
Registrant's By-Laws incorporates the foregoing statutory language by
reference.
The rights granted under Article XI of the By-Laws are in addition to,
and are not exclusive of, any other rights to indemnification and expenses
to which any director or officer may otherwise be entitled. Under the
B.C.L., a New York corporation may indemnify any director or officer who
is made or threatened to be made a party to an action by or in the right
of such corporation against "amounts paid in settlement and reasonable
expenses, including attorneys' fees," actually and necessarily incurred by
him in connection with the defense or settlement of such action, or in
connection with an appeal therein, if such director or officer acted, in
good faith, for a purpose which he reasonably believed to be in the best
interests of the corporation, except that no indemnification shall be made
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in respect of (1) a threatened action, or a pending action which is settled
or otherwise disposed of, or (2) any claim, issue or matter as to which
such director or officer shall have been adjudged liable to the corporation,
unless and only to the extent that a court determines that the director or
officer is fairly and reasonably entitled to indemnity (B.C.L. Section
722(c)). A corporation may also indemnify directors and officers who are
parties to other actions or proceedings (including actions or proceedings
by or in the right of any other corporation or other enterprise which the
director or officer served at the request of the corporation) against
"judgments, fines, amounts paid in settlement and reasonable expenses,
including attorneys' fees," actually or necessarily incurred as a result of
such actions or proceedings, or any appeal therein, provided the director
or officer acted, in good faith, for a purpose which he reasonably believed
to be in the best interests of the corporation (or in the case of service
to another corporation or other enterprise at the request of such
corporation, not opposed to the best interests of such corporation) and, in
criminal cases, that he also had no reasonable cause to believe that his
conduct was unlawful (B.C.L. Section 722(a)). Any indemnification under
Section 722 may be made only if authorized in the specific case by disin-
terested directors, or by the board of directors upon the opinion in
writing of independent legal counsel that indemnification is proper, or by
the shareholders (B.C.L. Section 723(b)), but even without such
authorization, a court may order indemnification in certain circumstances
(B.C.L. Section 724). Further, any director or officer who is "successful,
on the merits or otherwise," in the defense of an action or proceeding is
entitled to indemnification as a matter of right (B.C.L. Section 723(a)).
A New York corporation may generally purchase insurance, consistent with
the limitations of New York insurance law and regulatory supervision, to
indemnify the corporation for any obligation which it incurs as a result of
the indemnification of directors and officers under the provisions of the
B.C.L., so long as no final adjudication has established that the directors'
or officers' acts of active and deliberate dishonesty were material to the
cause of action so adjudicated or that the directors or officers personally
gained in fact a financial profit or other advantage (B.C.L. Section 726).
The Registrant has purchased insurance covering expenditures by it and its
subsidiaries which might arise in connection with the lawful indemnification
of directors and officers for certain liabilities and expenses and insurance
insuring directors and officers of the Registrant and its subsidiaries
against certain other liabilities and expenses.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The index to exhibits appears on the page immediately following the
signature page of this Registration Statement.
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Item 9. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) 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 of 1933, unless the information required to be
included in such post-effective amendment is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act and incorporated
herein by reference;
(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 hereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this Registration Statement, unless the information required
to be included in such post-effective amendment is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act and
incorporated herein by reference;
(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.
(b) 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 herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) 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.
(d) 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 Section 15(d) of the Exchange Act that
is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(2) 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 provisions
described in Item 6 above, 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
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Cooperstown, New York, on this 24th day of
March, 1997.
DELAWARE OTSEGO CORPORATION
By: /s/WALTER G. RICH
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Walter G. Rich, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Walter G. Rich and C. David Soule,
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and any other
regulatory authority, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on March 22, 1997, by the following
persons in the capacities indicated:
Signature Title
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/s/Walter G. Rich President, Chief Executive Officer & Director
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Walter G. Rich
/s/C. David Soule Executive Vice President & Director
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C. David Soule
/s/William B. Blatter Senior Vice President & Chief Financial Officer
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William B. Blatter
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/s/Everett A. Gilmour Chairman of the Board & Director
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Everett A. Gilmour
/s/ Albert B. Aftoora Director
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Albert B. Aftoora
/s/Charles S. Brenner Director
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Charles S. Brenner
/s/David B. Common Director
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David B. Common
/s/Niles F. Curtis Director
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Niles F. Curtis
/s/Gordon R. Fuller Director
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Gordon R. Fuller
/s/Gerald D. Groff Director
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Gerald D. Groff
/s/Malcolm C. Hughes Director
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Malcolm C. Hughes
/s/Robert L. Marcalus Director
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Robert L. Marcalus
/s/Harvey Polly Director
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Harvey Polly
/s/Richard A. White Director
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Richard A. White
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EXHIBIT INDEX
Exhibits
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5 Opinion of Nathan R. Fenno, Esq. as to the
shares of Common Stock being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Nathan R. Fenno, Esq. (included in Exhibit 5)
25 Powers of Attorney (see page 8 of this Registration
Statement)
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EXHIBIT 5
March 31, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth St. NW
Washington, DC 20549
RE: Registration Statement on Form S-8
Dear Sirs:
I am the Secretary and Vice President - Law of Delaware Otsego Corporation,
a New York corporation (the Corporation). In such capacity I participated
in the preparation of a Registration Statement on Form S-8 of the Corporation
relating to 121,550 shares (the Shares) of the Corporation's Common Stock,
par value $.125, issuable under the Delaware Otsego Corporation's 1993
Stock Option Plan (the Plan). The Shares may be treasury shares or
authorized but previously unissued shares.
I have examined originals, or copies certified or otherwise identified to
my satisfaction, of such corporate records and such other documents as I
have deemed relevant as a basis for the opinion hereinafter expressed.
Based on the foregoing, I am of the opinion that up to 121,550 previously
unissued Shares which may be the subject of options under the Plan, when
paid for in accordance with the terms of the Plan and the options granted
thereunder, will be legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
above-mentioned Registration Statement.
Very truly yours,
/s/Nathan R. Fenno
Nathan R. Fenno
Vice President-Law & Corporate Secretary
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Exhibit 23.1
Consent of Independent Auditors
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We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1993 Stock Option Plan of Delaware Otsego
Corporation and in the related Prospectus of our report dated February 28,
1997 (except for Note 13, as to which the date is March 24, 1997) with
respect to the consolidated financial statements of Delaware Otsego
Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Syracuse, New York
March 28, 1997
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