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.
<PAGE>
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.
<PAGE>
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)
<PAGE>
___________________________ 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.
<PAGE>
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)
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
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
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
