UNITED STATES
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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PATRIOT TRANSPORTATION HOLDING, INC.
FLORIDA 59-2924957
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1801 Art Museum Drive
Jacksonville, Florida 32207
(Address of principal executive offices) (Zip code)
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PATRIOT TRANSPORTATION HOLDING, INC.
PROFIT SHARING AND
DEFERRED EARNINGS PLAN
(Full title of the plan)
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Ray M. Van Landingham
Vice President and Chief Financial Officer
1801 Art Museum Drive
Jacksonville, Florida 32207
(Name and address of agent for service)
904-396-5733
(Telephone number, including area code,
of agent for service)
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Copies to:
Daniel B. Nunn, Jr.
McGuireWoods LLP
50 North Laura Street
Suite 3300
Jacksonville, Florida 32202
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CALCULATION OF REGISTRATION FEE
- ----------------------- ---------------- ------------ ------------
Title of each class of Amount to be Proposed Amount of
securities to be Registered (1) maximum registration
Registered aggregate fee
offering
price (3)
- ----------------------- ---------------- ------------ ------------
Common Stock, par value 20,000 $ 915,700 $107.78
$.10 value per share
(including preferred
share purchase rights
(2))
======================= ================ ============ ============
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended,
this registration statement also covers additional shares that may
become issuable under the plans by reason of certain corporate
transactions or events, including any stock dividend, stock split,
recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the
number of the registrant's outstanding shares of common stock.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate
amount of interests as available in accordance with the Patriot
Transportation Holding, Inc. Profit Sharing and Deferred Earnings
Plan.
(3) Estimated solely for the purpose of determining the registration
fee pursuant to Rule 457(h) under the Securities Act of 1933 based
upon the average of the high and low sale price of Patriot common
stock as reported by NASDAQ on May 16, 2005.
EXPLANATORY NOTE
This registration statement registers shares of common stock, par
value $0.10 per share (the "Common Stock"), of Patriot Transportation
Holding, Inc. (the "Company") that were issued and sold or may be
issued and sold under the Patriot Transportation Holding, Inc. Profit
Sharing and Deferred Earnings Plan (the "Plan"), together with an
indeterminate number of interests as available in accordance with the
Plan.
PART 1
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* The documents containing the information specified in Part 1 of Form
S-8 will be sent or given to employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents need not be filed with the Securities and Exchange Commission
(the "SEC")
either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of the Securities Act.
These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this registration
statement, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed or to be filed with the
SEC are incorporated by reference in this registration statement:
(a) The Company's Annual Report on Form 10-K for the year
ended September 30, 2004 (the "Annual Report");
(b) The Plan's Annual Report on Form 11-K for the year ended
December 31, 2003 (the "Plan Annual Report");
(c) Other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 as amended (the "Exchange Act")
since the end of the fiscal year covered by the Annual Report.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 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 have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this registration statement shall be
deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained in this registration
statement, or in any other subsequently filed document that also is or
is deemed to be incorporated by reference in this registration
statement, modifies or supersedes such prior statement. Any statement
contained in this registration statement shall be deemed to be modified
or superseded to the extent that a statement contained in a
subsequently filed document that is or is deemed to be incorporated by
reference in this registration statement modifies or supersedes such
prior statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of
this registration statement.
Item 4. Description of Securities.
Articles III, VII, and XIII of the Amended Articles of
Incorporation of the Company previously filed with the Registration
Statement on Form S-4 (File No. 33-26115) as amended, pursuant to the
Articles of Amendment to the Articles of Incorporation previously as an
exhibit to the Annual Report on Form 10-K for the year ended September
30, 1994 (File No. 33-26115) are incorporated by reference in this
Registration Statement on Form S-8.
Legal counsel has advised the Company that it is subject to claims
for rescission of acquisitions of shares of the Company's common stock
occurring prior to the effective date of the Registration Statement
during the one year period following the date of acquisition of the
shares (the statute of limitations period that applies to claims for
rescission), due to the failure to register the shares in accordance
with applicable securities law. Approximately 1,918 shares of the
Company's common stock were transferred to Plan participants during the
Plan year ended December 31, 2004 and, if rescinded, would have an
aggregate repurchase price of approximately $68,000, plus interest. The
Plan Sponsor may also face penalties in connection with these matters
and could be subject to claims for rescission for acquisitions prior to
the one-year statute of limitations. The Participants' rights with
respect to rescission have been disclosed in a Current Report on Form 8-
K filed by the Company on December 14, 2004.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 607.0850 of the Florida Business Corporation Act permits,
and in some cases requires, the Registrant as a Florida corporation to
indemnify a director, officer, employee, or agent of the Registrant, or
any person serving at the request of the Registrant in any such
capacity with respect to another entity, against certain expenses and
liabilities incurred as a party to any proceeding, including, among
others, a proceeding under the Securities Act, brought against such
person by reason of the fact that such person is or was a director,
officer, employee, or agent of the Registrant or is or was serving in
such capacity with respect to another entity at the request of the
Registrant. With respect to actions, other than in the right of the
Registrant, such indemnification is permitted if such person acted in
good faith and in a manner such person reasonably believed to be in, or
not opposed to, the best interests of the Registrant, and with respect
to any criminal action or proceeding, if such person had no reasonable
cause to believe his or her conduct was unlawful. Termination of any
such action by judgment, order, settlement or conviction or a plea of
nolo contedere, or its equivalent shall not, of itself, create a
presumption that such person did not act in good faith and in a manner
he or she reasonably believed to be in, or not opposed to, the best
interest of the Registrant, or with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
With respect to any action threatened, pending or completed in the
right of the Registrant to procure a judgment in its favor against any
such person, the Registrant may indemnify any such person against
expenses actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit, including the
appeal thereof, if he or she acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests
of the Registrant, except that no indemnification shall be made in
respect of any claim, issue or matter as to which any such person shall
have been adjudged to be liable for negligence or misconduct in the
performance of his or her duties to the Registrant unless the court in
which the action was brought determines that despite the adjudication
of liability, but in view of all the circumstances in the case, such
person is fairly and reasonably entitled to indemnity for such
expenses.
Section 607.0850 of the Florida Business Corporation Act also
provides that if any such person has been successful on the merits or
otherwise in defense of any action, suit or proceeding, whether
brought in the right of the Registrant or otherwise, such person
shall be indemnified against expenses actually and reasonably incurred by
him or her in connection therewith.
If any director or officer does not succeed upon the merits or
otherwise in defense of an action, suit or proceeding, then unless
pursuant to a determination made by a court, indemnification by the
Registrant shall be made only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper
because he or she has met the applicable standard of conduct. Any such
determination may be made:
(a) by the board of directors by a majority vote of a quorum
consisting of directors who are not parties to such action, suit or
proceeding;
(b) if such a quorum is not obtainable, or, even if
obtainable, by a majority vote of a committee duly designated by the
board of directors (in which directors who are parties may participate)
consisting solely of two or more directors not at the time parties to
the proceeding;
(c) by independent legal counsel selected by the board of
directors prescribed in paragraph (a) or the committee prescribed in
paragraph (b); or if a quorum of the directors cannot be obtained for
paragraph (a) or the committee cannot be designated under paragraph
(b), selected by a majority vote of the full board of directors (in
which directors who are parties may participate); or
(d) by the shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to the proceeding or,
if no such quorum is obtainable, by a majority vote of shareholders who
were not parties to such proceeding.
Section 607.0850 of the Florida Business Corporation Act also
contains a provision authorizing corporations to purchase and maintain
liability insurance on behalf of its directors and officers. The
Registrant maintains an insurance policy which insures directors and
officers of the Registrant against amounts the directors or officers
are obligated to pay in respect of their respective legal liability,
whether actual or asserted, for any negligent act, any error, any
omission or any breach of duty which, subject to the applicable limits
and terms of the policy, includes damages, judgments, settlements,
costs of investigation, and costs, charges and expenses incurred in the
defense of actions, suits or proceedings or appeals thereto, subject to
the exceptions, limitations and conditions set forth in the policy.
The Articles of Incorporation of Patriot Transportation Holding,
Inc. provide for indemnification of its officers and directors, in
their capacity as such, in accordance with the laws of the State of
Florida.
Article X of the Articles of Incorporation of Patriot
Transportation Holding, Inc., provides as follows:
"1. The corporation shall indemnify and hold harmless each
person, his heirs, executors and administrators, who shall serve at any
time as a director or officer of the corporation or, at its request, of
any other corporation, partnership, joint venture, trust, or other
enterprise, from and against any and all claims and liabilities to
which such person shall become subject by reason of his being or having
heretofore or hereafter been a director or officer of the corporation,
or of any other such corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been
heretofore or hereafter taken or omitted by such person as such
director or officer, such indemnification to be in accordance with the
laws of the State of Florida as now in existence or as hereafter
amended.
2. The corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director or officer
of the corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation,
partnership, joint venture, trust, or other enterprise, against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such
liability.
3. The corporation, its directors, officers, employees and agent
shall be fully protected in taking any action or making any payment
under this Article X or refusing to do so, in reliance upon the advice
of counsel.
4. In addition to the foregoing provisions, this corporation
shall indemnify each person or party described in paragraph A of this
Article X to the fullest extent permitted by Section 607.014, Florida
Statutes.
5. If any part of this Article X shall be found in any
proceeding to be invalid or ineffective, the remaining provisions shall
not be affected."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibits required to be filed with this Registration Statement are
listed in the following Exhibit Index. Certain of such exhibits that
previously have been filed with the Securities and Exchange Commission
and that are designated by reference to prior filings are incorporated
by reference and made a part of this Registration Statement. The
undersigned registrant hereby undertakes to submit the Plan and any
amendment thereto to the Internal Revenue Service ("IRS") in a timely
manner and will make all changes required by the IRS in order to
qualify the Plan under Section 401 of the Internal Revenue Code.
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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed
with the Commission pursuant to Rule 424 (b) if, in the
aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the 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) The undersigned 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 section 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, 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 Jacksonville,
State of Florida, on May 4, 2005.
PATRIOT TRANSPORTATION HOLDING, INC.
(Registrant)
By: /s/ John E. Anderson
--------------------------------------------
Name: John E. Anderson
Title: President and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned officers and directors of Patriot
Transportation Holding, Inc., a Florida corporation, hereby constitutes
and appoints John E. Anderson and Ray M. Van Landingham and each of
them, severally, as his or her attorney-in-fact and agent, with full
power of substitution and resubstitution, in his or her name and on his
or her behalf, to sign in any and all capacities this Registration
Statement and any and all amendments (including post-effective
amendments) and exhibits to this Registration Statement and any and all
applications and other documents relating thereto, with the Securities
and Exchange Commission, with full power and authority to perform and
do any and all acts and things whatsoever which any such attorney or
substitute may deem necessary or advisable to be performed or done in
connection with any or all of the above-described matters, as fully as
each of the undersigned could do if personally present and acting,
hereby ratifying and approving all acts of any such attorney or
substitute.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Signature Title
/s/ John E. Anderson /s/ Luke E. Fichthorn, III
_____________________________________ ________________________________
John E. Anderson, President and Chief Luke E. Fichthorn, III, Director
Executive Officer (Principal Executive Date: May 4, 2005
Officer)
Date: May 4, 2005
/s/ Edward L. Baker /s/ John D. Klopfenstein
____________________________________ _________________________________
Edward L. Baker, Director, John D. Klopfenstein, Controller
Date: May 4, 2005 (Principal Accounting Officer)
Date: May 4, 2005
/s/ John D. Baker, II
____________________________________ _________________________________
John D. Baker, II, Director Robert H. Paul, II, Director
Date: May 4, 2005 Date: May 4, 2005
/s/ Thompson S. Baker II /s/ John D. Klopfenstein
____________________________________ _________________________________
Thompson S. Baker II, Director H. W. Shad, III, Director
Date: May 4, 2005 Date: May 4, 2005
/s/ Charles E. Commander III /s/ Martin E. Stein, Jr.
____________________________________ _________________________________
Charles E. Commander III, Director Martin E. Stein, Jr., Director
Date: May 4, 2005 Date: May 4, 2005
/s/ Ray M. Van Landingham
____________________________________ _________________________________
Ray M. Van Landingham, Vice President, James H. Winston, Director
Finance and Administration, Secretary May 4, 2005
and Chief Financial Officer (Principal
Financial Officer)
Date: May 4, 2005
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the Plan) have duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Jacksonville,
State of Florida on May 4, 2005.
The Patriot Transportation Holding, Inc.
Profit Sharing and Deferred Earnings Plan
By: /s/ John E. Anderson
------------------------------------------
Name: John E. Anderson
Title: President and CEO of Patriot
Transportation Holding, Inc.
(3)(a)(1) Articles of Incorporation of Patriot Transportation Holding,
Inc., incorporated by reference to the corresponding exhibit
filed with Form S-4 dated December 13, 1988. File No. 33-
26115.
(3)(a)(2) Amendment to the Articles of Incorporation of Patriot
Transportation Holding, Inc., filed with the Secretary of
State of Florida on February 19, 1991 incorporated by
reference to the corresponding exhibit filed with Form 10-K
for the fiscal year ended September 30, 1993. File No. 33-
26115.
(3)(a)(3) Amendments to the Articles of Incorporation of Patriot
Transportation Holding, Inc., filed with the Secretary of
State of Florida on February 7, 1995, incorporated by
reference to an appendix to the Company's Proxy Statement
dated December 15, 1994. File No. 33-26115.
(3)(a)(4) Amendment to the Articles of Incorporation of Patriot
Transportation Holding, Inc., filed with the Florida
Secretary of State on May 6, 1999 incorporated by reference
to a form of such amendment filed as Exhibit 4 to the
Company's Form 8-K dated May 5, 1999. File No. 33-26115.
(3)(a)(5) Amendment to the Articles of Incorporation of Patriot
Transportation Holding, Inc., filed with the Secretary of
State of Florida on February 21, 2000, incorporated by
reference to the corresponding exhibit filed with Form 10-Q
for the quarter ended March 31, 2000. File No. 33-26115.
(3)(b)(1) Restated Bylaws of Patriot Transportation Holding, Inc.,
adopted December 1, 1993, incorporated by reference to the
corresponding exhibit filed with Form 10-K for the fiscal
year ended September 30, 1993. File No. 33-26115.
(3)(b)(2) Amendment to the Bylaws of Patriot Transportation Holding,
Inc., adopted August 3, 1994, incorporated by reference to
the corresponding exhibit filed with Form 10-K for the fiscal
year ended September 30, 1994. File No. 33-26115.
(3)(b)(3) Amendment to the Articles of Incorporation of Patriot
Transportation Holding, Inc., filed with the Secretary of
State of State of Florida on February 7, 1995, incorporated
by reference to an appendix to the Company's Proxy Statement
dated December 15, 1994. File No. 33-26115.
(4)(a) Articles III, VII and XII of the Articles of Incorporation of
Patriot Transportation Holding, Inc., incorporated by
reference to an exhibit filed with Form S-4 dated December
13, 1998. And amended Article III, incorporated by reference
to an exhibit filed with Form 10-K for the fiscal year ended
September 30, 1993. And Articles XIII and XIV, incorporated
by reference to an appendix filed with the Company's Proxy
Statement dated December 15, 1994. File No. 33-26115.
(4)(e) Rights Agreement, dated as May 5, 1999 between the Company
and First Union National Bank, incorporated by reference to
Exhibit 4 of the Company's Form 8-K dated May 5, 1999. File
No. 33-26115.
23.1 Consent of PricewaterhouseCoopers LLP.
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED CERTIFIED PUBLIC ACCOUNTINGS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated November 30,
2004 relating to the financial statements and financial statement
schedules of Patriot Transportation Holding, Inc., which appears in
Patriot Transportation Holding, Inc.'s Annual Report on Form 10-K for
the year ended September 30, 2004.
PricewaterhouseCoopers LLP
Jacksonville, Florida
May 19, 2005