<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 21, 1996
REGISTRATION NO. 333-3972
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 5 TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------
GENESEE & WYOMING INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 4011 06-0984624
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL IDENTIFICATION NO.)
INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
71 LEWIS STREET
GREENWICH, CT 06830
(203) 629-3722
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MORTIMER B. FULLER, III
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
GENESEE & WYOMING INC.
71 LEWIS STREET
GREENWICH, CT 06830
(203) 629-3722
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES TO:
SUSAN MASCETTE BRANDT, ESQ. JOEL S. KLAPERMAN, ESQ.
HARTER, SECREST & EMERY SHEARMAN & STERLING
700 MIDTOWN TOWER 599 LEXINGTON AVENUE
ROCHESTER, NY 14604 NEW YORK, NY 10022
(716) 232-6500 (212) 848-4000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
----------------
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 of
1933, check the following box. [_]
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a) MAY DETERMINE.
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- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the offering are estimated as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- --------
<S> <C>
Registration fee................................................ $ 16,802
NASD fee........................................................ 5,373
Nasdaq National Market application fee.......................... 29,243
Blue sky fees and expenses...................................... 22,000
Printing expenses............................................... 150,000
Legal fees and expenses......................................... 335,000
Accounting fees and expenses.................................... 300,000
Transfer agent and registrar fees............................... 2,500
Miscellaneous expenses.......................................... 14,082
--------
Total......................................................... $875,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Paragraph 10 of the Registrant's Restated Certificate of Incorporation
provides that the Registrant shall indemnify its directors and officers to the
fullest extent authorized by the Delaware General Corporation Law (the
"DGCL").
With respect to indemnification of directors and officers, Section 145 of
the DGCL provides that a corporation shall have the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Under this provision of
the DGCL, the termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
Furthermore, the DGCL provides that a corporation shall have the power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact that
he is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall
II-1
<PAGE>
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Paragraph 9 of the Registrant's Restated Certificate of Incorporation
contains a provision, authorized by Section 102(b)(7) of the DGCL, which
provides that a director of the Registrant shall not be personally liable to
the Registrant or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liability of the director (a) for any
breach of the director's duty of loyalty to the Registrant or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174 of
the DGCL, relating to the payment of unlawful dividends or unlawful stock
repurchases or redemptions, or (d) for any transaction from which the director
derived an improper personal benefit.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since January 1, 1993, the Registrant has sold the following shares of
common stock which were not registered under the Securities Act of 1933, as
amended (the "Act") (the following does not give effect to the stock split and
reclassification of the Registrant's common stock referenced in the Prospectus
forming a part of this Registration Statement):
<TABLE>
<CAPTION>
NUMBER OF AGGREGATE
DATE OF SALE NAME OF INVESTOR SHARES CONSIDERATION
------------ ---------------- --------- -------------
<S> <C> <C> <C>
10/22/93 John M. Randolph................................ 800 $20,000
11/5/93 Sandra B. Ringo................................. 200 $ 5,000
Mark W. Hastings and Susan M. Hastings, as joint
12/22/93 tenants......................................... 800 $20,000
10/25/94 Mortimer B. Fuller, III......................... 2,400 $30,000
</TABLE>
The sale to Mr. Fuller was upon exercise by him of stock options granted in
1978. All of the other sales were made following the Registrant's repurchase
of the shares from a stockholder. All of the shares listed on the table were
sold for cash except those sold to Mr. and Mrs. Hastings, for which Mr.
Hastings executed a promissory note which has since been paid.
On February 8, 1996, the Registrant issued to The First National Bank of
Boston, for a purchase price of $0, a warrant to purchase 2,262 shares of
common stock at an exercise price of $.01 per share. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Liquidity and Capital Resources."
In May 1994, Willamette & Pacific Railroad, Inc., a subsidiary of the
Registrant, issued $990,000 in aggregate principal amount of Subordinated
Secured Promissory Notes, guaranteed by the Registrant, to ten accredited
investors, including four related parties. See "Certain Transactions."
Each of the issuances of securities described above was made by private
offering in reliance on the exemption from the registration provisions of the
Act provided by Section 4(2) of the Act.
II-2
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
***1.1 Form of Underwriting Agreement
3.1 Certificate of Incorporation and Certificates of Amendment dated
October 12, 1989, February 21, 1991 and May 18, 1995
**3.2 Form of Restated Certificate of Incorporation
3.3 By-laws
4 The exhibits referenced under "3" hereof are incorporated herein by
reference.
***4.1 Specimen stock certificate representing shares of Class A Common
Stock.
**4.2 Form of Class B Stockholders' Agreement dated as of May 20, 1996,
among the Registrant, its executive officers and its Class B
stockholders
4.3 Promissory Note dated December 28, 1989 of GWI Leasing Corporation in
favor of Deutsche Credit Corporation
4.4 Railcar Finance Notes dated July 8, 1991 and November 27, 1991 of GWI
Leasing Corporation in favor of Deutsche Credit Corporation
4.5 Railcar Finance Notes, dated November 27, 1991 and December 31, 1991
of GWI Leasing Corporation in favor of Deutsche Credit Corporation
4.6 Promissory Note dated October 7, 1991 of Buffalo & Pittsburgh
Railroad, Inc. in favor of CSX Transportation, Inc.
4.7 Amended and Restated Loan and Security Agreement dated December 28,
1989 between GWI Leasing Corporation and Deutsche Credit Corporation,
and Amendment No. 1 dated December 28, 1989
4.8 Loan and Security Agreement dated December 27, 1990 between GWI
Leasing Corporation and Deutsche Credit Corporation, and Amendments
dated June 28, 1991 and November 22, 1991
4.9 Guaranty dated December 27, 1990 of the Registrant in favor of
Deutsche Credit Corporation
4.10 Amended and Restated Revolving Credit and Term Loan Agreement dated
as of February 8, 1996 among the Registrant and certain of its
Subsidiaries, The First National Bank of Boston, as agent, and the
Banks party thereto
4.11 Revolving Credit Note dated as of February 8, 1996 of the Registrant
and certain of its subsidiaries in favor of The First National Bank
of Boston
4.12 Term Note dated as of February 8, 1996 of the Registrant and certain
of its Subsidiaries in favor of The First National Bank of Boston
4.13 Amended and Restated Security Agreement dated as of February 8, 1996
among the Registrant, certain of its Subsidiaries and The First
National Bank of Boston
4.14 Amended and Restated Stock Pledge Agreement dated as of February 8,
1996 between the Registrant and The First National Bank of Boston
4.15 Amended and Restated Collateral Assignment of Partnership Interests
dated as of February 8, 1996 of the Registrant and GWI Dayton, Inc.
in favor of The First National Bank of Boston
**4.16 Amendment No. 1 to Amended and Restated Revolving Credit and Term
Loan Agreement dated as of April 26, 1996 among the Registrant and
certain of its Subsidiaries, The First National Bank of Boston, as
agent and the Banks' party thereto.
****5.1 Opinion of Harter, Secrest & Emery
9.1 Voting Agreement and Stock Purchase Option dated March 21, 1980 among
Mortimer B. Fuller, III, Mortimer B. Fuller, Jr. and Frances A.
Fuller, and amendments thereto dated May 7, 1988 and March 29, 1996
10 The exhibits referenced under "4" hereof are incorporated herein by
reference.
**10.1 Form of Genesee & Wyoming Inc. 1996 Stock Option Plan
**10.2 Form of Genesee & Wyoming Inc. Stock Option Plan for Outside
Directors
10.3 Form of Employment Agreement between the Registrant and each of its
executive officers
**10.4 Form of Genesee & Wyoming Inc. Employee Stock Purchase Plan
10.5 Agreement dated December 7, 1994 between Allegheny & Eastern
Railroad, Inc. and its Engineering Department Employees
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.6 Agreement dated March 29, 1995 between Allegheny & Eastern Railroad,
Inc. and its Mechanical Department Employees
10.7 Agreement dated July 1, 1992 between Buffalo & Pittsburgh Railroad,
Inc. and its Car Repair Department Employees, and the proposed changes
thereto dated September 16, 1994
10.8 Agreement dated December 1, 1994 between Buffalo & Pittsburgh
Railroad, Inc. and its Engineering Department Employees
10.9 Agreement dated April 30, 1991 between Buffalo & Pittsburgh Railroad,
Inc. and the American Train Dispatchers Association
10.10 Agreement dated February 9, 1995 between Buffalo & Pittsburgh
Railroad, Inc. and the International Association of Machinists
10.11 Agreement dated August 22, 1994 between Buffalo & Pittsburgh Railroad,
Inc. and the United Transportation Union (Train and Engine Service
Employees)
10.12 Agreement dated November 7, 1994 between Buffalo & Pittsburgh
Railroad, Inc. and the United Transportation Union (Representing
Clerks and Storekeepers)
10.13 Agreement dated November 1, 1994 between Buffalo & Pittsburgh
Railroad, Inc. and the United Transportation Union (Representing
Yardmasters)
10.14 Agreement dated September 1, 1990 between Genesee & Wyoming Railroad
Company and the United Transportation Union, and Tentative Agreement
dated February 21, 1995 between Genesee & Wyoming Railroad Company and
United Transportation Union Local Union 982
10.15 United Transportation Union Agreement dated May 1, 1994 between
Rochester & Southern Railroad, Inc. and its employees represented by
United Transportation Union
10.16 Shared Use Agreement for Albany Yard dated February 20, 1993 between
Southern Pacific Transportation Company and Willamette & Pacific
Railroad, Inc.
10.17 Trackage Rights Agreement (Albany-Eugene Yard) dated February 20, 1993
between Southern Pacific Transportation Company and Willamette &
Pacific Railroad, Inc.
10.18 Westside Oregon Lines Cooperative Marketing Agreement dated February
20, 1993 between Willamette & Pacific Railroad, Inc. and Southern
Pacific Transportation Company
10.19 Trackage Rights Agreement dated March 11, 1987 between Southern
Pacific Transportation Company and Louisiana & Delta Railroad, Inc.
10.20 Trackage Rights Agreement dated July 1, 1986 between Rochester &
Southern Railroad, Inc. and Genesee and Wyoming Railroad Company, and
undated Modification
10.21 Master Supplemental Agreement dated October 7, 1991 between CSX
Transportation, Inc., Buffalo, Rochester and Pittsburgh Railway
Company and Buffalo & Pittsburgh Railroad, Inc.
10.22 Assignment and Assumption Agreement for the Allegheny and Western
Railway Company Lease dated October 7, 1991 among CSX Transportation,
Inc., Buffalo, Rochester and Pittsburgh Railway Company and Buffalo &
Pittsburgh Railroad, Inc.
10.23 Mortgage and Assignment of Leases, Rents, Issues and Profits (New
York) dated as of October 7, 1991 by Buffalo & Pittsburgh Railroad,
Inc. in favor of CSX Transportation, Inc.
10.24 Security Agreement (New York) dated as of October 7, 1991 between
Buffalo & Pittsburgh Railroad, Inc. and CSX Transportation, Inc.
10.25 Mortgage and Assignment of Leases, Rents, Issues and Profits
(Pennsylvania) dated as of October 7, 1991 by Buffalo & Pittsburgh
Railroad, Inc. in favor of CSX Transportation, Inc.
10.26 Security Agreement (Pennsylvania) dated as of October 7, 1991 between
Buffalo & Pittsburgh Railroad, Inc. and CSX Transportation, Inc.
10.27 Lease Agreement for Real Property between Butler, Pennsylvania and
Eidenau, Pennsylvania dated as of October 7, 1991 between CSX
Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc.
10.28 Lease Agreement for Personal Property associated with Butler to
Eidenau dated as of October 7, 1991 between CSX Transportation, Inc.
and Buffalo & Pittsburgh Railroad, Inc.
10.29 Memorandum of Lease dated October 7, 1991 between CSX Transportation,
Inc. and Buffalo & Pittsburgh Railroad, Inc.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
+10.30 Lease Agreement for Real Property on the Northern Subdivision
dated as of October 7, 1991 between CSX Transportation, Inc. and
Buffalo & Pittsburgh Railroad, Inc.
+10.31 Lease Agreement for Personal Property on the Northern Subdivision
dated as of October 7, 1991 between CSX Transportation, Inc. and
Buffalo & Pittsburgh Railroad, Inc.
10.32 Lease Agreement for Real Property at Buffalo Creek Yard dated as
of October 7, 1991 among CSX Transportation, Inc., Buffalo,
Rochester and Pittsburgh Railway Company, Inc. and Buffalo &
Pittsburgh Railroad, Inc.
10.33 Memorandum of Lease dated October 7, 1991 among CSX
Transportation, Inc., Buffalo, Rochester and Pittsburgh Railway
Company, Inc. and Buffalo & Pittsburgh Railroad, Inc.
10.34 Agreement Relating to Interchange at Buffalo, NY dated as of July
18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh
Railroad, Inc.
10.35 Agreement Relating to Interchange at New Castle, PA dated as of
July 18, 1988 between CSX Transportation, Inc. and Buffalo &
Pittsburgh Railroad, Inc.
10.36 Agreement Relating to Trackage Rights between New Castle, PA and
Eidenau, PA dated as of July 18, 1988 between CSX Transportation,
Inc. and Buffalo & Pittsburgh Railroad, Inc.
10.37 Agreement Relating to Fallback Trackage Rights between Eidenau and
WS Tower, PA dated as of July 18, 1988 between CSX Transportation,
Inc. and Buffalo & Pittsburgh Railroad, Inc.
*****+10.38 Lease Agreement dated December 30, 1992 between Southern Pacific
Transportation Company and Willamette & Pacific Railroad, Inc.
10.39 Lease Agreement dated September 1, 1994 between Railcar, Ltd. and
GWI Leasing Corporation
10.40 Locomotive Lease Agreement and Letter Agreement (Equipment
Schedule 01) dated October 17, 1994 between Keycorp Leasing Ltd.
and GWI Leasing Corporation
10.41 Lease Agreement dated May 3, 1994 between Greenbrier Railcar, Inc.
and GWI Leasing Corporation
*****+10.42 Allegheny-International Paper Transportation Service Agreement
dated November 24, 1992 between Allegheny & Eastern Railroad, Inc.
and International Paper Company
*****10.43 Conrail-Allegheny Operating Contract dated November 24, 1992
between Consolidated Rail Corporation and Allegheny & Eastern
Railroad, Inc.
10.44 Lease recorded December 19, 1881 between The Seneca Nation of New
York Indians and The Great Valley & Bradford Railroad Co.
10.45 Assignment and Agreement dated September 20, 1994 among CMC
Railroad I, Ltd., GWI Switching Services, L.P. and Southern
Pacific Transportation Company
*****+10.46 Buffalo Terminal Operating Agreement dated July 18, 1988 between
CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc.
10.47 First Amendment to Buffalo Terminal Operating Agreement dated
December , 1990 between CSX Transportation, Inc. and Buffalo &
Pittsburgh Railroad, Inc.
*****+10.48 Operating Agreement and Car Storage Yard Agreement Consent to
Assignments dated as of September 20, 1994 between NCC Charlie
Company and GWI Switching Services L.P. with Exhibit I (Amended
and Restated Car Storage Yard Agreement dated September 20, 1994
between Southern Pacific Transportation Company and CMC Railroad
I, Ltd.) and Exhibit II (Amended and Restated Car Storage Yard
Agreement dated September 20, 1994 between Southern Pacific
Transportation Company and CMC Railroad I, Ltd.)
10.49 Trackage Rights Agreement dated March 12, 1994 between Southern
Pacific Transportation Company and GWI Switching Services L.P.
10.50 First Amendment to Trackage Rights Agreement dated September 20,
1994 between Southern Pacific Transportation Company and GWI
Switching Services L.P.
10.51 Indenture of Lease and Option to Purchase Agreement dated January
17, 1992 between Southern Pacific Transportation Company and
Louisiana and Delta Railroad, Inc.
10.52 Lease Agreement dated November 7, 1991 between CIS Corporation and
Buffalo & Pittsburgh Railroad, Inc.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.53 Notice and Acknowledgement of Assignment dated as of November 1,
1993 between James P. Hassett as Trustee for CIS Corporation,
Buffalo & Pittsburgh Railroad, Inc. and ATEL Financial Corporation
10.54 Agreement relating to Trackage Rights dated July 18, 1988 between
CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc.
10.55 Commercial Agreement dated March 11, 1987 between Louisiana &
Delta Railroad, Inc. and Southern Pacific Transportation Company
10.56 Assignment and Assumption Agreement dated March 11, 1987 between
Louisiana & Delta Railroad, Inc. and Southern Pacific
Transportation Company
10.57 Administrative Agreement dated as of February 19, 1985 between
Consolidated Rail Corporation and Genesee & Wyoming Railroad
Company
10.58 Interchange Agreement (Goodman Street Yard) dated December 13,
1984 between Consolidated Rail Corporation and Genesee & Wyoming
Railroad Company
10.59 Revolver A Note dated June 2, 1995 of the Registrant in favor of
The First National Bank of Boston, as Agent
10.60 Revolver B Note dated June 2, 1995 of the Registrant in favor of
The First National Bank of Boston, as Agent
10.61 Asset Purchase Agreement dated as of February 8, 1996 between
Illinois & Midland Railroad, Inc. and Stanford PRC Acquisition
Corp.
10.62 Guaranty dated as of February 8, 1996 of the Registrant in favor
of Stanford PRC Acquisition Corp.
10.63 Assignment and Assumption Agreements dated as of February 8, 1996
between Chicago & Illinois Midland Railway Company and Illinois &
Midland Railroad, Inc. (six)
10.64 Warrant Purchase Agreement dated as of February 8, 1996 between
the Registrant and The First National Bank of Boston
10.65 Agreement dated February 6, 1996 between Illinois & Midland
Railroad, Inc. and the United Transportation Union
*****+10.66 Lease Agreement dated as of August 18, 1995 between Southern
Pacific Transportation Company and Portland & Western Railroad,
Inc.
*****+10.67 Lease Agreement dated September 15, 1995 between Burlington
Northern Railroad Company and Portland & Western Railroad, Inc.
10.68 Lease Agreement dated as of October 1, 1982 between Livingston
County Industrial Development Agency and Genesee and Wyoming
Railroad
10.69 Lease Agreement dated as of February 1, 1995 between Livingston
County Industrial Development Agency and Genesee and Wyoming
Railroad Company
*+10.70 Asset Purchase Agreement dated April 19, 1996 among Pittsburg &
Shawmut Railroad, Inc., Genesee & Wyoming Inc., The Pittsburg &
Shawmut Railroad Company, Red Bank Railroad Company, Mountain
Laurel Railroad Company and Arthur T. Walker Estate Corporation,
and Amendment No. 1 to Asset Purchase Agreement dated April 19,
1996
**10.71 Amendment No. 1 to Warrant Purchase Agreement dated as of May 31,
1996 between the Registrant and FSC Corp.
**11.1 Statement re computation of per share earnings
12.1 Exhibit has been omitted because the required information is
included in the financial statements or notes thereto forming part
of this Registration Statement.
**21.1 Subsidiaries of the Registrant
****23.1 Consent of Arthur Andersen LLP
****23.2 Consent of Harter, Secrest & Emery (contained in Exhibit 5.1)
24.1 Officers' and Directors' Power of Attorney
**27 Financial Data Schedule (EDGAR filed only)
</TABLE>
- --------
* Filed with this Amendment.
** Filed with Amendment No. 1.
*** Filed with Amendment No. 2.
**** Filed with Amendment No. 3.
***** Filed with Amendment No. 4.
+ Confidential treatment requested as to certain portions, which have been
filed separately with the Commission pursuant to an application for such
treatment.
II-6
<PAGE>
(b) Financial Statement Schedules:
All schedules have been omitted either as inapplicable or because the
required information is included in the financial statements or notes thereto
forming part of this Registration Statement.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement, certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Act 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.
The undersigned Registrant hereby undertakes that:
(1) For the purpose of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Act shall be deemed to be part of this Registration
Statement as of the time that it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus 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.
II-7
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS AMENDMENT NO. 5 TO REGISTRATION STATEMENT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW
YORK, STATE OF NEW YORK, ON THE 21ST DAY OF JUNE, 1996.
Genesee & Wyoming Inc.
/s/ Mark W. Hastings
By: _________________________________
MARK W. HASTINGS
SENIOR VICE PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 5 TO REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS
IN THE CAPACITIES INDICATED AND ON THE 21ST DAY OF JUNE, 1996.
SIGNATURE TITLE
* Chairman of the Board, President and
- ------------------------------------- Chief Executive Officer (Principal
MORTIMER B. FULLER, III Executive Officer)
/s/ Mark W. Hastings Senior Vice President, Chief
- ------------------------------------- Financial Officer and Treasurer
MARK W. HASTINGS (Principal Financial Officer)
* Senior Vice President and Chief
- ------------------------------------- Accounting Officer (Principal
ALAN R. HARRIS Accounting Officer)
* Director
- -------------------------------------
JAMES M. FULLER
* Director
- -------------------------------------
LOUIS S. FULLER
* Director
- -------------------------------------
JOHN M. RANDOLPH
* Director
- -------------------------------------
PHILIP J. RINGO
/s/ Mark W. Hastings
*By: ________________________________
MARK W. HASTINGS
ATTORNEY-IN-FACT
II-8
<PAGE>
EXHIBIT 10.70
CONFIDENTIAL TREATMENT REQUESTED AS TO THOSE PORTIONS MARKED WITH ASTERISKS AND
- -------------------------------------------------------------------------------
THOSE PORTIONS HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
- --------------------------------------------------------------
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, dated April 19, 1996 is made by and among Pittsburg &
Shawmut Railroad, Inc., a Delaware corporation ("BUYER"), Genesee & Wyoming
Inc., a Delaware corporation ("GWI"), The Pittsburg & Shawmut Railroad Company,
a Pennsylvania corporation ("P&S"), Red Bank Railroad Company, a Pennsylvania
corporation ("RED BANK"), Mountain Laurel Railroad Company, a Pennsylvania
corporation ("MOUNTAIN LAUREL") and Arthur T. Walker Estate Corporation, a
Delaware corporation ("ATWEC"). P&S, Red Bank and Mountain Laurel are each
referred to individually herein as a "SELLER" and collectively as "SELLERS".
In consideration of the mutual covenants and agreements contained herein,
the parties hereto agree as follows:
ARTICLE 1. PURCHASE AND SALE
SECTION 1.1 TRANSFER OF ASSETS. Subject to all of the terms and conditions
of this Agreement, at the Closing (as hereinafter defined), each Seller agrees
to sell, transfer, convey, assign and deliver to Buyer, and Buyer agrees to
purchase and accept from each Seller, all of the following:
(a) Each Seller's real property and interests therein described in
Schedule 1.1(a), including railroad ties and track bed (the "REAL
PROPERTY");
(b) Each Seller's tangible personal property (excluding inventories),
including but not limited to tracks, rails, switches, crossings, bridges,
buildings, signals, crossing protection devices, communication lines, poles
and radio masts which may be affixed as of the date of this Agreement to the
Real Property, equipment, machinery, furniture, fixtures, leasehold
improvements, vehicles and supplies (as described in Schedule 1.1(b)),
including those described in Schedule 1.1(b) (the "TANGIBLE PERSONAL
PROPERTY"); provided, however, Buyer is not purchasing those assets
--------
identified as "Excluded Assets" on Schedule 1.1(b) (the "EXCLUDED ASSETS");
(c) Sellers' inventories and stores selected by Buyer in its sole
discretion and as described in Schedule 1.1(c), having an aggregate book
value of $50,000.00 (the "INVENTORIES");
(d) all of Sellers' interest in and to all of the contracts identified
in Schedule 2.1, including but not limited to product and service warranties
(the "CONTRACTS");
(e) all of Sellers' interest in and to (1) all patents, applications for
patents, copyrights, license agreements, assumed names, trade names,
trademark and/or service mark registrations, applications for trademark
and/or service mark registrations, trademarks and service marks of Sellers,
as more particularly described in Sche-
<PAGE>
dule 1.1(e), and the goodwill associated therewith, and all variants
thereof, including all rights to use the names "The Pittsburg & Shawmut
Railroad Company", "Red Bank Railroad Company" and "Mountain Laurel Railroad
Company" to the exclusion of Sellers and ATWEC, and (2) all of Sellers'
other proprietary information, including trade secrets, know-how, product
designs and specifications, operating data, customer lists and other
information pertaining to their respective businesses (other than those
relating to Excluded Assets) (the "INTANGIBLE ASSETS");
(f) copies or originals (as mutually determined by Sellers and Buyer) of
all of each Seller's business and operational records, including employee
records of any employee of any Seller who is hired by Buyer, office and
sales records, blueprints, marketing strategies, business plans, studies and
inventory lists and records (but expressly excluding each Seller's capital
stock records, corporate minute books, bank account records and tax returns)
(the "RECORDS"); and
(g) all of the issued and outstanding capital stock of Kittanning
Equipment Leasing Company (the "KITTANNING STOCK").
The Real Property, the Tangible Personal Property, the Inventories, the
Contracts, the Intangible Assets, the Records and the Kittanning Stock are
collectively referred to herein as the "PURCHASED ASSETS".
SECTION 1.2 USE OF SELLERS' NAMES. In furtherance of the purchase and sale
of the Purchased Assets hereunder, at the Closing, each Seller and ATWEC shall
cause each Seller's corporate name to be changed to a name completely dissimilar
to "The Pittsburg & Shawmut Railroad Company", "Red Bank Railroad Company" and
"Mountain Laurel Railroad Company", and thereafter shall not adopt, use, cause
to be used, or approve or sanction the use of any such names, or any names so
similar as to cause confusion therewith.
SECTION 1.3 PURCHASE PRICE. Subject to the terms and conditions of this
Agreement, the purchase price for the Purchased Assets shall be Eleven Million
Seven Hundred Two Thousand and 00/100 Dollars ($11,702,000.00) (the "PURCHASE
PRICE"). The Purchase Price shall be allocated to each Seller and to the
Purchased Assets as set forth in Schedule 1.3.
SECTION 1.4 PAYMENT OF PURCHASE PRICE. Subject to the terms and conditions
of this Agreement, at the Closing Buyer shall pay the Purchase Price to Sellers
in immediately available funds by wire transfer or other means acceptable to
Sellers.
SECTION 1.5 SUPPLEMENTAL PURCHASE PRICE. A supplemental purchase price (the
"Supplemental Purchase Price") shall be paid as additional consideration for the
Purchased Assets under, and contingent upon, the following terms and conditions.
(a) If Buyer obtains or receives satisfactory evidence that *** has
entered into a firm contract for the transportation of coal from sources on
Buyer's railroad purchased hereunder to
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*** and such contract is for a minimum of three (3) years and requires minimum
annual shipments of *** tons, then Buyer shall pay to Seller *** within forth-
five (45) days of the receipt of such evidence.
(b) *** Shipments. If Buyer does not obtain or receive satisfactory
evidence that CRC has entered into a firm contract meeting the requirements of
Section 1.5(a) hereof:
(i) And if in any calendar year from 1997 to 1999 inclusive
coal shipments originating on or transported over Buyer's railroad purchased
hereunder the routed via *** to *** exceed *** tons, then Buyer shall pay to
Sellers or their designees *** on or before March 31 of the following year, plus
interest at the rate of *** per annum from the Closing Date.
(ii) And if in calendar year 1997 and 1998 such coal
shipments exceed in the aggregate *** tons, then Buyer shall pay to Sellers or
their designees on or before March 31, 1999, ***, less any amount paid or then
being paid to Sellers or their designees pursuant to Section 1.5(b)(i) hereof,
plus interest at the rate of *** per annum from the Closing Date.
(iii) And if in calendar years 1997, 1998 and 1999 such coal
shipments exceed in the aggregate *** tons, then Buyer shall pay to Sellers or
their designees on or before March 31, 2000, ***, less any amount paid or then
being paid to Sellers or their designees pursuant to Section 1.5(b)(i) or
1.5(b)(ii) hereof, plus interest at the rate of *** per annum from the Closing
Date.
(c) Coal Revenues. If freight tonnage of Buyer for the shipment of
-------------
coal originating on or transported over Buyer's railroad purchased hereunder and
terminating on a location not on such railroad during any calendar year after
1999, but before 2010, exceeds *** tons, the Buyer shall, within ninety (90)
days after the end of any such year, pay to Sellers or their designees twenty-
five (25%) of the gross revenues attributable to such excess (any such revenues
shall be calculated by using the average gross revenues per ton for such year
for all tonnage of Buyer for the shipment of coal originating on or transported
over Buyer's railroad purchased hereunder); provided, however, the aggregate
-------- -------
of all moneys paid pursuant to this Section 1.5(c) shall not exceed ***.
(d) Access to Records. Within ninety (90) days after the end of 1997
-----------------
and each year thereafter, Buyer shall deliver to ATWEC, or its designee, a
notice certifying the amount due, if any, pursuant to this Section 1.5 with
respect to such year along with (i) a check for any such amount and (ii) a
calculation of such amount due based on tonnage shipped. ATWEC or its
designee shall have the right annually to inspect
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Buyer's books and records with respect to the shipments which are the
subject of this Section 1.5.
(e) Definition of "Buyer". For purposes of this Section 1.5, the term
---------------------
"Buyer" shall include Buyer's direct and indirect successors and assigns.
ARTICLE 2. LIABILITIES AND CONTRACTS
SECTION 2.1 CONTRACTS ASSUMED. Subject to the terms and conditions of this
Agreement, at the Closing, Buyer shall assume and become responsible to pay,
perform and discharge the Contracts of Sellers identified (or otherwise
described) in Schedule 2.1 and each other Contract of Sellers which, at or
before the Closing, is placed (or otherwise described) on a revised Schedule 2.1
executed by Buyer and Sellers.
SECTION 2.2 NO ASSUMPTION OF LIABILITIES OR OTHER CONTRACTS. Except as
provided in Section 2.1 or Article 10, it is expressly understood and agreed
that Buyer does not assume nor shall it be liable for any liability, obligation,
claim against or Contract of Sellers of any kind or nature, at any time existing
or asserted, whether or not accrued, whether fixed, contingent or otherwise,
whether known or unknown, and whether or not recorded on the books and records
of Sellers, arising out of or by reason of this or any other transaction or
event occurring prior or subsequent to the Closing.
ARTICLE 3. SELLERS' AND ATWEC'S REPRESENTATIONS AND WARRANTIES
Each Seller, with respect to its own affairs, and ATWEC, with respect to its
own affairs, hereby represents and warrants to Buyer and to GWI, except as set
forth in Schedule 3, the Disclosure Statement, as follows:
SECTION 3.1 SELLER ORGANIZATION, STANDING AND QUALIFICATION. Each Seller is
a duly organized, validly existing corporation, chartered and in good standing,
under the laws of the Commonwealth of Pennsylvania; is duly licensed, qualified
to do business, and in good standing in each jurisdiction in which the ownership
and operation of its business requires such licensing or qualifications except
for those states or jurisdictions in which the failure to be so qualified will
not have a Material Adverse Effect; and has full corporate power and authority
and all permits, consents and authorizations necessary to own and lease its
properties and to carry on its business as now conducted, including but not
limited to, any fictitious name registrations required to be filed, the absence
of which will not have a Material Adverse Effect. For purposes of this
Agreement, the term "Material Adverse Effect" means a material adverse effect on
the financial condition of the Sellers in the aggregate or their assets,
properties, liabilities, operations or conditions taken as a whole.
SECTION 3.2 ATWEC ORGANIZATION, STANDING AND QUALIFICATION. ATWEC is a
duly organized, validly existing corporation, chartered and in good standing,
under the laws
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of the State of Delaware. ATWEC has all necessary corporate power and authority
to execute and deliver this Agreement, to comply with the provisions hereof and
to consummate the transactions contemplated hereby.
SECTION 3.3 SUBSIDIARIES. Each Seller has no subsidiaries, other than
Kittanning Equipment Leasing Company ("KELC"), a subsidiary of P&S.
SECTION 3.4 CAPITALIZATION OF SELLER. All of the issued and outstanding
shares of each Seller's capital stock are owned by ATWEC.
SECTION 3.5 CORPORATE DOCUMENTS. All of Sellers' corporate books are
accurate as to the actions contained therein, and the Bylaws contained therein
are the Bylaws of each Seller as of the date of this Agreement and shall be the
Bylaws of such Seller as of the Closing Date.
SECTION 3.6 AUTHORIZATION. Each Seller's and ATWEC's execution and delivery
of this Agreement, its compliance with the provisions hereof and the
consummation of all of the transactions contemplated hereby have all been duly
and validly authorized by all necessary corporate action on the part of each
Seller and ATWEC, and this Agreement is valid and binding upon each Seller and
ATWEC in accordance with its terms.
SECTION 3.7 NO CONFLICT. Neither the execution and delivery of this
Agreement by any Seller or ATWEC, nor compliance by any Seller or ATWEC with any
of the provisions hereof, nor the consummation of the transactions contemplated
hereby, will:
(a) conflict with or result in a breach of any provision of such
Seller's or ATWEC's respective Certificate of Incorporation or By-laws;
(b) result in a default, or give rise to any right of termination,
cancellation or acceleration, under any term, condition or provision of any
Contract, Encumbrance or other instrument or obligation to which such
Seller, any subsidiary of such Seller is a party or by which they or any of
their respective properties or assets may be bound which default or right
will have a Material Adverse Effect; or
(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to such Seller, any subsidiary of such Seller, or any
of their respective properties or assets which violation will have a
Material Adverse Effect.
For purposes of this Agreement the term "ENCUMBRANCE" means and includes (a) all
interests securing obligations owed to any Person, whether based on common law,
statute or Contract, including those arising from mortgages, indentures, deeds
of trust, leases, collateral assignments of lease and rights, liens, pledges,
conditional sales contracts, consignments and bailments, (b) all reservations,
exceptions, encroachments, easements, rights-of-way, covenants, conditions,
restrictions, charges, claims, leases and other similar title exceptions and
encumbrances, (c) all liens of any taxing authority, and (d) all landlords',
mechanics', materialmen's, warehousemen's, carriers' and similar liens.
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<PAGE>
SECTION 3.8 FINANCIAL STATEMENTS. True and correct copies of Balance
Sheets for each Seller as of December 31, 1994, and December 31, 1995, true and
accurate copies of Operating and Revenue Statements for each Seller for the
twelve (12) month periods ending December 31, 1994 and December 31, 1995,
respectively, have been furnished to Buyer by Sellers. Within forty-five (45)
days after the Closing Date, true and correct copies of the Balance Sheet, as of
the Closing Date, as well as Operating and Revenue Statements for Seller from
December 31, 1995 through the Closing Date shall be furnished to Buyer by
Sellers. All of the foregoing Balance Sheets, Operating and Revenue Statements
shall collectively constitute the "FINANCIAL STATEMENTS". The Financial
Statements (1) are in accordance with the books and records of Sellers in all
material respects; and (2) present fairly the financial condition of Sellers at
the dates of such Financial Statements and their results of operations for the
respective period then ending; and (3) except for the interim statements
described above, the same have been prepared in accordance with generally
accepted accounting principles, consistently applied with prior periods.
SECTION 3.9 UNDISCLOSED LIABILITIES. Except as set forth in the Financial
Statements and except with respect to Environmental Laws which are separately
treated in Section 3.14, each Seller has no outstanding debt, liability or other
obligation, whether accrued, absolute, contingent or otherwise and whether due
or to become due other than debts, liabilities or obligations incurred in the
ordinary course of business or which would not have a Material Adverse Effect.
SECTION 3.10 TAXES, TAX RETURNS AND AUDITS.
(a) All federal, state and local tax returns as to the operations of
each Seller which are required by law to be filed on or before the Closing
Date have been timely filed, and all taxes, interest, penalties and
assessments for said periods which were due and owing pursuant to said tax
returns, or pursuant to any assessments or otherwise for any taxable periods
ending on or prior to the Closing Date for or which returns were due prior
to the Closing Date have been paid, except for any such tax, interest,
penalty or assessment which is being contested in good faith by such Seller
and with respect to which such Seller has set aside adequate reserves on its
books and except where the failure to file any such return or to pay any
such tax, interest, penalty or assessment would not have a Material Adverse
Effect. True and correct copies of all federal and state tax returns for
each Seller's 1993 and 1994 tax years have been furnished to Buyer by such
Seller.
(b) To the knowledge of each Seller, there are no pending investigations
or proceedings relating to, or claims asserted for, taxes or assessments
against such Seller. Each Seller has timely paid in full all property taxes
and other assessments levied on its assets and properties which have
heretofore become due and payable except for any such tax or other
assessment which is being contested in good faith by each Seller and with
respect to which each Seller has set aside adequate reserves on its books
and except where the failure to file any such return or to pay any such tax,
interest, penalty or assessment would not have a Material Adverse Effect.
There are in effect no agreements, waivers or other arrangements providing
for an extension of time with
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<PAGE>
regard to the assessment of any tax, or any deficiency with respect thereto,
against any Seller. There are no actions, suits, proceedings,
investigations or claims now pending against any Seller relating to any
taxes or assessments, or any claims or deficiencies with respect thereto.
(c) All applicable estimated federal, state and local income tax
payments or deposits for 1995 which were due and payable prior to the date
hereof, including the quarterly estimates for the third and fourth quarters
of 1995 have been made.
SECTION 3.11 TITLE TO ASSETS. Each Seller has good title to Purchased
Assets other than the Real Property being transferred by it, free and clear of
restrictions on, or conditions to, transfer or assignment, and of mortgages,
liens, pledges, charges, encumbrances and security interests, except minor liens
or encumbrances that, in the aggregate with all other Sellers, are not material
in amount and do not materially detract from or materially interfere with the
present use of any material properties, or materially impair the business
operations of Sellers in the aggregate (the foregoing collectively referred to
as "PERMITTED ENCUMBRANCES").
SECTION 3.12 REAL PROPERTY. Since December 31, 1993, no Seller has
received any written notice that the operations on and use of the Real Property
by Seller do not conform to all applicable zoning and similar laws, rules and
regulations. To each Seller's knowledge, the operations on and use of the Real
Property by each Seller conform to all applicable zoning and similar laws, rules
and regulations except to the extent non-compliance would not have a Material
Adverse Effect.
SECTION 3.13 NO THIRD PARTY RIGHTS OR OPTIONS. Except for certain
statutory rights of the Commonwealth of Pennsylvania to a priority in acquiring
abandoned railroad property or rights of reversion in the event the Real
Property ceases to be used for railroad purposes and except with respect to any
leased assets, there are no outstanding rights or options in any third party to
acquire any Purchased Assets or any interest therein, or to acquire any assets
or other properties of any Seller or any interest therein (excluding, however,
any such rights or options which may have been granted by Buyer or GWI).
SECTION 3.14 COMPLIANCE WITH LAWS. Since December 31, 1993, no Seller has
received any written notice from any governmental agency of any violations of
any applicable federal, state or local law or regulation affecting its assets or
the operation of its business, except for any such notice which has been or will
be complied with prior to the Closing. Since December 31, 1993, no Seller has
received any written notice from any governmental agency that it must remove,
repair or restore any bridge or grade crossing, except for any such notice which
has been or will be complied with prior to the Closing. Sellers warrant that,
to Sellers' knowledge, Sellers are in substantial compliance with all material
federal, state and local laws and regulations applicable to its business,
including without limitation, those respecting the health and safety of its
employees, the benefit or welfare plans provided for its employees, the hiring,
firing and conditions of employment of its employees and the protection of the
environment. Except in compliance with then applicable Environmental Laws (as
defined below) and in the ordinary course of business, Sellers further represent
and
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<PAGE>
warrant that (i) no Seller has stored, dumped or deposited nor participated in
the storing, dumping or depositing of any Hazardous Substance upon any of its
properties or elsewhere in violation of then applicable law, and (ii) no Seller
has at any time received, nor does it have any knowledge of any facts or
circumstances that would cause it to reasonably believe that it is likely to
receive, notice of an alleged violation of any then applicable Environmental
Law, rule or regulation from any governmental authority or any notice from any
federal, state or local governmental agency, or any other person, that any
Seller may have liability arising from or related to the discharge, disposal,
release, or threatened release, of any Hazardous Substance at or from a
"facility" (as defined in (S)101(9) of CERCLA), which liability would have a
Material Adverse Effect.
(a) "ENVIRONMENTAL LAWS" shall mean the Federal Water Pollution Control
Act, the Clean Air Act, the Resource Conservation Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), the Superfund Amendment and Reauthorization Act, the Toxic
Substances Control Act ("TSCA"), the Hazardous Materials Transportation Act
("HMTA"), and any other applicable federal, state or local statute, rule,
ordinance, law or regulation that pertains to the protection of the
environment or human health as enacted and in effect on the date hereof and
all licenses, orders, permits, certificates or like authorizations
promulgated under any Environmental Law.
(b) "HAZARDOUS SUBSTANCE" means, without limitation, any flammable
explosives, radon, radioactive materials, friable asbestos, polychlorinated
biphenyls, petroleum and petroleum products, hazardous materials, hazardous
wastes, hazardous or toxic substances, as defined in CERCLA, HMTA, RCRA,
TSCA, or any other federal, state or local environmental statute, rule,
ordinance, law or regulation as enacted and in effect as of the Closing
Date.
SECTION 3.15 CONTRACTS. Except for the leases and contracts set forth on
the Disclosure Statement and contracts set forth on Schedule 2.1 to this
Agreement (true copies of which have been delivered or made available to Buyer
by Sellers), no Seller is bound by any written or oral:
(a) Agreement or understanding not made in the ordinary course of its
business;
(b) Employment contract or contract for personal services not terminable
at will;
(c) Continuing contract for the future purchase of material, supplies,
machinery, or other equipment in excess of the requirements of its business
now booked or of normal operating requirements;
(d) Sales agency agreement or advertising contracts;
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<PAGE>
(e) Contract or commitment for capital expenditures, in excess of One
Thousand Dollars ($1,000.00) in the aggregate;
(f) Contract or agreement containing covenants by Seller not to compete
in any lines or business or with any person; or
(g) Lease for premises pursuant to which any Seller makes or receives
payments in excess of Five Thousand Dollars ($5,000) per year and which is
not cancelable upon not greater than forty (40) days notice.
SECTION 3.16 LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of Seller, threatened in any court
or before any governmental agency or instrumentality against any Seller or its
properties or assets which if adversely decided would have a Material Adverse
Effect, or which would prevent the carrying out of this Agreement or any of the
transactions contemplated hereby or declare the same unlawful or cause the
recision thereof.
SECTION 3.17 ABSENCE OF ADVERSE CHANGES OR OTHER EVENTS. Except as set
forth on the Disclosure Statement and except as contemplated by this Agreement,
since December 31, 1995 no Seller has:
(a) Created or incurred any liability (absolute or contingent) except
for trade debt and similar unsecured current liabilities, under oral or
written contracts other than debts, liabilities or obligations incurred in
the ordinary course of business or which would not have a Material Adverse
Effect;
(b) Other than in the ordinary course of business, loaned any money or
otherwise pledged the credit of Seller or mortgaged, pledged, or subjected
its assets to any tangible or intangible lien or encumbrance;
(c) Sold or otherwise disposed of, or contracted to sell or dispose of,
any of Purchased Assets, tangible or intangible; or canceled any debts owed
it or claims held by it against a third party other than in the ordinary
course of business;
(d) Terminated or amended or suffered the termination or amendment of
any material contract, lease, agreement or license or other instrument to
which it is or was a party;
(e) Made or become a party to any contract or commitment or renewed,
extended, amended, or modified any contract or commitment which in any one
case involves an amount in excess of Five Thousand Dollars ($5,000.00) and a
term in excess of forty (40) days (other than automatic extensions or
renewals);
(f) Except as otherwise provided in Schedule 2.1 with respect to the
ongoing agreements of any Seller and except as done in the ordinary course
of business, paid or agreed to pay, conditionally or otherwise, any bonus,
extra compensation, or severance
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pay to any employee listed on Schedule 3.17(f) not required under any
existing agreement disclosed to Buyer prior to the date of this Agreement,
or increased the compensation, including salaries, fees, commissions,
bonuses, profit sharing, incentive, pension, retirement, or other similar
payments paid to any of its employees listed on Schedule 3.17(f);
(g) Made any change in its business or operations or the manner of
conducting its business or operations, other than minor changes in the
lawful and ordinary course of business, which in the aggregate have not had
a Material Adverse Effect;
(h) Suffered any damage, destruction or loss having a Material Adverse
Effect; or
(i) Entered into any contract, agreement or arrangement to do or perform
any of the foregoing actions.
SECTION 3.18 UNION, EMPLOYEE COLLECTIVE BARGAINING UNIT OR ORGANIZING
ACTIVITY. No Seller is signatory to any collective bargaining agreement and is
not currently subject to any labor collective bargaining process or organizing
efforts by any union or other collective bargaining representative; and no
Seller has knowledge that any Seller employee, union or collective bargaining
representative is considering or threatening to organize any Seller's employees
to form a union or collective bargaining unit.
SECTION 3.19 EMPLOYEE BENEFITS. No Seller maintains or contributes to any
"employee pension benefit plans" or "employee welfare benefit plans" (as
described in Section 3(2) and (1), respectively, of Title I of the Employee
Retirement Income Security Act of 1974 ("ERISA")) or any "multi-employer plan"
(as defined in Section 414(f) of the Internal Revenue Code ("CODE")), nor does
it have any form of plan or agreement with any of its current employees
providing for present or future employee benefits or deferred compensation of
any nature whatsoever, stock options, stock purchase or any other material
employee benefits. The Disclosure Statement contains a summary of all documents
creating or evidencing any such plan or agreement. At the request of Buyer,
true, correct and complete copies of any such documents creating or evidencing
any such plan or agreement will be delivered to Buyer within five (5) days after
such request.
SECTION 3.20 EMPLOYEES AND COMPENSATION. The Disclosure Statement includes
(i) a true and complete list of all employees of each Seller as of December 31,
1995 and (ii) the job titles, salary rate or other compensation basis, and all
other types of compensation for each employee listed on Schedule 3.17(f). There
has been no material change in this list since December 31, 1995.
SECTION 3.21 CUSTOMERS. No current customer of any Seller which, during
the twelve-month period ended December 31, 1995, purchased goods or services
from the Seller in an amount in excess of $250,000 has furnished written notice
to terminate or intent to terminate transacting business with such Seller; no
Seller has knowledge which would
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indicate that any such current customer presently intends to terminate
transacting business with such Seller.
SECTION 3.22 BOOKS AND RECORDS. The books and records of each Seller are
true, complete and correct in all material respects and have been prepared in
the usual and customary manner. No changes or additions to the books and
records of any Seller have been made from the date such books and records were
first examined by Arthur Andersen LLP and nothing which should be set forth in
said books and records, if prepared in the usual and customary manner of such
Seller, has occurred from the date such books were first examined by Arthur
Andersen LLP, except for such changes, additions or events which have been made
or have occurred, as the case may be, in the ordinary course of the business of
such Seller consistent with the prior practice of such Seller or in connection
with the 1995 audit conducted by Arthur Andersen LLP.
SECTION 3.23 BROKERS AND FINDERS. Neither Sellers nor ATWEC nor any of
their respective officers, directors, employees or agents has employed any
broker or finder or incurred any liability for any brokerage fees, commissions
or finders' fees in connection with the transactions contemplated hereby;
provided, however, ATWEC and Sellers have engaged the services of The Meridian
Group and ATWEC and Sellers shall be solely responsible for any compensation due
and payable, or to become due and payable, to The Meridian Group as a result of
the closing or negotiations of the transactions contemplated herein.
SECTION 3.24 KELC REPRESENTATIONS.
(a) The authorized capital stock of KELC and the number of shares issued
and outstanding are as set forth in the Disclosure Statement. All of the
issued and outstanding shares of KELC's capital stock are owned by P&S.
(b) Other than the permits listed on Schedule 3.24(b) (the "Permits"),
KELC has neither assets nor liabilities in excess of Ten Thousand Dollars
($10,000).
(c) KELC has good title to the Permits and the Permits were duly issued
to KELC.
(d) KELC has never had any employees.
(e) The Disclosure Statement lists all officers and directors of KELC.
(f) Sellers have delivered to Buyer true copies of KELC's certificate of
incorporation, by-laws and minute book as presently in effect.
SECTION 3.25 MATERIAL MISSTATEMENTS OR OMISSIONS. No representation or
warranty of any Seller or of ATWEC made in this Agreement (including any
Schedule or Exhibit hereto), nor any document or statement required to be
delivered to Buyer by any Seller and/or ATWEC in connection with the Closing,
contains (or will when furnished
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contain) any untrue statement of a material fact, or omits (or will then omit)
to state a material fact necessary in order to make the statement of facts made
therein not misleading.
For purposes of this Article 3, "KNOWLEDGE", with respect to any Seller
shall mean the actual knowledge after reasonable due inquiry, as of the date of
this Agreement or any certificate delivered pursuant hereto, of the following
employees and/or officers of Seller: Gealy Wallwork, Dennis Hinderliter, Kevin
Bowser, or Jack Hubbard.
ARTICLE 4. BUYER'S AND GWI'S REPRESENTATIONS AND WARRANTIES
Buyer, with respect to its affairs, and GWI, with respect to its affairs,
hereby represents and warrants to Sellers and to ATWEC as follows:
SECTION 4.1 BUYER ORGANIZATION, STANDING AND POWER. Buyer is a duly
organized, validly existing corporation, chartered and in good standing under
the laws of the State of Delaware. Buyer has all necessary corporate power and
authority to execute and deliver this Agreement, to comply with the provisions
hereof and to consummate the transactions contemplated hereby.
SECTION 4.2 GWI ORGANIZATION, STANDING AND POWER. GWI is a duly organized,
validly existing corporation, chartered and in good standing under the laws of
the State of Delaware. GWI has all necessary corporate power and authority to
execute and deliver this Agreement, to comply with the provisions hereof and to
consummate the transactions contemplated hereby. GWI will be the beneficial
owner of all of the outstanding stock of Buyer through a trust arrangement.
SECTION 4.3 AUTHORIZATION. Buyer's and GWI's execution and delivery of this
Agreement, its compliance with the provisions hereof and the consummation of all
of the transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of Buyer and GWI, and this Agreement
is valid and binding upon Buyer and GWI in accordance with its terms.
SECTION 4.4 NO CONFLICT. Neither the execution and delivery of this
Agreement by Buyer or GWI, nor compliance by Buyer or GWI with any of the
provisions hereof, nor the consummation of the transactions contemplated hereby
will:
(a) conflict with or result in a breach of any provision of Buyer's or
GWI's respective Certificate of Incorporation or By-laws;
(b) result in a default, or give rise to any right of termination,
cancellation or acceleration, under any term, condition or provision of any
Contract, Encumbrance or other instrument or obligation to which Buyer or
GWI is a party or by which it or any of its properties or assets may be
bound; or
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(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Buyer or GWI, or any of its respective properties
or assets.
SECTION 4.5 LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of Buyer or GWI threatened, in any
court or before any governmental agency or instrumentality against, by or
affecting Buyer or GWI or their respective business, financial condition or any
of the properties or assets of either, or which would prevent the carrying out
of this Agreement or any of the transactions contemplated hereby or declare the
same unlawful or cause the recision thereof.
SECTION 4.6 COMPLIANCE WITH LAWS. Buyer is currently in compliance and has
heretofore complied in all respects with all material applicable statutes,
ordinances, orders, writs, injunctions, decrees, rules and regulations
promulgated by any federal, state, municipal or other governmental authority,
and Buyer has not received any notice of a violation of any such statute,
ordinance, order writ, injunction, decree, rule or regulation.
SECTION 4.7 GOVERNMENT APPROVALS AND CONSENTS. No consent, waiver,
approval, or authorization of, or registration, qualification, designation,
declaration or filing with, or notification to, any federal, state or local
governmental authority or administrative agency or any other third party is
required in connection with the execution, delivery and performance of this
Agreement or any agreement, instrument or document to be executed, delivered and
performed in connection herewith or the consummation of any of the transaction
contemplated hereby or thereby, by Buyer or GWI, except for such consents,
waivers, approvals, or authorizations which will be obtained by Buyer prior to
the Closing.
SECTION 4.8 FINANCING. GWI and/or Buyer has obtained a loan agreement which
provides a commitment to lend funds sufficient to enable GWI and/or Buyer to
fulfill its obligations to pay the Purchase Price, which commitment expires on
April 30, 1996.
ARTICLE 5. SELLERS' AND ATWEC'S COVENANTS
SECTION 5.1 TITLE MATTERS. To the extent tax, title and court searches are
desired by Buyer, Buyer may obtain such at its costs; provided, however, Sellers
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shall reimburse Buyer at the Closing for an aggregate amount of Seven Thousand
Dollars ($7,000) of such costs. Sellers shall cooperate with the title
companies and search companies selected by Buyer by providing access to Sellers'
deeds and records. Sellers shall provide prior to the Closing an executed
affidavit(s) in substantially the form of affidavit(s) attached as Schedule 5.1.
At the Closing, Sellers shall deliver the Real Property to Buyer free and clear
of the encumbrance of any mortgage or security interest securing the General
Mortgage Bonds of P&S in favor of ATWEC dated January 1, 1957.
SECTION 5.2 AFFIRMATIVE COVENANTS OF SELLERS PRIOR TO CLOSING. During the
period from the date hereof to the Closing Date, each Seller shall:
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(a) conduct such Seller's business and its operations in all material
respects in the same manner in which the same have heretofore been
conducted, and maintain its books of account in the same manner as
heretofore maintained;
(b) use reasonable efforts to maintain and preserve such Seller's
business and preserve such Seller's relationships with its customers,
employees and others having business relations with such Seller so that such
Seller's business shall be unimpaired in all material respects on the
Closing Date; and
(c) use reasonable efforts to maintain each Contract of such Seller
listed in Schedule 2.1 in full force and effect in accordance with its
terms.
SECTION 5.3 NEGATIVE COVENANTS OF SELLERS PRIOR TO CLOSING. During the
period from the date hereof to the Closing Date, no Seller shall, unless Buyer
shall have given its consent thereto in writing:
(a) create, assume or permit to exist any material Encumbrance attaching
to the Purchased Assets after the date of this Agreement, other than a
Permitted Encumbrance, on any of the Purchased Assets;
(b) sell, lease or otherwise transfer any of the Purchased Assets, or
cancel any of such Seller's material rights or claims, other than in the
ordinary course of business;
(c) enter into any material Contract not in the ordinary course of
business, or cancel, modify adversely, assign, encumber or in any way
discharge or terminate (other than by performance) any material Contract;
(d) allow to occur or exist any event of default by Seller under any
material Contract to which such Seller is a party unless such event of
default shall be cured or waived prior to the Closing Date; or
(e) make any material commitment (through negotiations or otherwise) or
incur any liability to any labor organization other than pursuant to any
agreement existing as of the date hereof and disclosed to Buyer or the
matters described in Schedule 5.3 hereof.
SECTION 5.4 NOTICES TO AND CONSENTS OF THIRD PARTIES. Each Seller shall in
a timely fashion give all notices to and make all filings with all governmental
authorities and other Persons (as hereafter defined) required to be given or
made by such Seller under any significant license, authorization, Contract or
other instrument in connection with the transactions contemplated by this
Agreement, including but not limited to those items set forth on Schedule 5.4.
Each Seller shall use its reasonable efforts to obtain, as soon as practicable
after the date hereof but in any event prior to the Closing Date, all written
consents or waivers of all governmental authorities and other Persons required
to be obtained by such Seller under any significant license, authorization,
Contract or other instrument or otherwise in connection with the transactions
contemplated by this Agreement. For purposes
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of this Section 5.4, "significant" means, as to any Contract or other
instrument, a Contract or instrument which will involve the payment to or by
Buyer of more than $250,000 annually or a Contract the absence of which would
have a Material Adverse Effect on the operation of the railroad lines purchased
hereunder. For purposes of this Agreement, a "PERSON" means and includes any
individual, partnership, corporation, trust, unincorporated organization or
other entity, and any government or governmental authority, agency or political
subdivision thereof.
SECTION 5.5 ATWEC'S CONTINUING EXISTENCE. For a period commencing on the
Closing Date and ending thirty-six (36) months after the Closing Date (the
"Maintenance Period"), ATWEC hereby covenants and agrees to maintain, in full
force and effect, and in compliance with all applicable corporate law, its
corporate status, and books and records.
SECTION 5.6 REMOVAL OF ITEMS NOT TRANSFERRED. Within one hundred eighty
(180) days following the Closing, each Seller shall remove from any of Real
Property all of such Seller's inventory and other items not purchased by Buyer
pursuant to this Agreement.
ARTICLE 6. BUYER'S AND GWI'S COVENANTS
SECTION 6.1 NOTICES TO AND CONSENTS OF THIRD PARTIES. Buyer and GWI shall
in a timely fashion give all notices to and make all filings with all
governmental authorities and other Persons required to be given or made by Buyer
or GWI under any license, authorization, Contract or other instrument, statute,
regulation or otherwise in connection with consummation of the transactions
contemplated by this Agreement. Buyer and GWI shall use its reasonable efforts
to obtain, as soon as practicable after the date hereof but in any event prior
to the Closing Date, all written approvals, consents or waivers of all
governmental authorities and other Persons required to be obtained by Buyer or
GWI under any license, authorization, Contract or other instrument, statute,
regulation or otherwise in connection with consummation of the transactions
contemplated by this Agreement. The authority which Buyer shall seek to obtain
in such manner from the Surface Transportation Board shall include the right to
operate the railroad lines operated by all three Sellers and shall be that
available under 49 U.S.C. Section 10901. Buyer shall provide to Seller prior to
filing a draft of materials to be filed with the Surface Transportation Board.
SECTION 6.2 SELLER ACCESS POST-CLOSING. For a period of one hundred eighty
(180) days following the Closing, to enable Sellers to remove inventory or other
items not being purchased hereunder, Buyer will permit each Seller, upon
reasonable advance notice to Buyer and in compliance with reasonable conditions
imposed by Buyer, to enter onto the Real Property and remove such inventory or
other items.
SECTION 6.3 EMPLOYEES.
(a) Buyer will give preference, both at the time of Closing, and for one
year thereafter, to hiring individuals who immediately prior to the Closing
were employees of any Seller. Buyer agrees to offer employment to an
aggregate of at least twenty-six
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(26) hourly employees of Seller to commence on the date of Closing (the
"DESIGNATED EMPLOYEES"). Any offer of employment to a Designated Employee
will involve a total compensation package, including wages and benefits,
substantially similar to those then being paid to similarly situated
employees employed on railroads operated by existing affiliates of Buyer.
Upon termination of employment by the Sellers, Sellers agree to pay the
Designated Employees for all previously earned but unused vacation time.
(b) If the Closing occurs on or after May 1, 1996, then Buyer shall
reimburse Seller for vacation time earned in 1996 for use in 1997 and for
which Seller has paid the Designated Employees, an amount for each such
Designated Employee equal to that paid for such 1997 unused vacation
multiplied by a fraction the numerator of which is the number of days
actually worked for Buyer in 1996 and the denominator of which is all days
actually worked in 1996 for either Seller or Buyer.
(c) Buyer agrees to permit the Designated Employees to use (subject to
Buyer's then current vacation policy) all such previously earned vacation
time, but shall have no obligation to pay the Designated Employees for such
vacation time.
(d) Buyer will give Designated Employees full credit for their prior
service with Seller with respect to Buyer's vacation benefit programs and,
within each applicable unit, certain applicable bumping rights.
ARTICLE 7. CONDITIONS TO PARTIES' OBLIGATIONS
SECTION 7.1 CONDITIONS TO BUYER'S AND GWI'S OBLIGATIONS. The obligations of
Buyer and GWI to complete the transactions provided for herein shall be subject,
at its election, to satisfaction on or before the Closing Date of each of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES: All representations and
warranties of each Seller contained in this Agreement shall be true and
correct in all respects as of the date hereof and as of the Closing Date as
though made on and as of the Closing Date (except as may be otherwise
provided in this Agreement), and Buyer shall have received a certificate to
that effect, dated the Closing Date, signed by the acting Executive Vice
President or Treasurer of each Seller and ATWEC to such effect;
(b) PRE-CLOSING OBLIGATIONS: Each Seller shall have performed all
obligations required to be performed by it hereunder, the performance of
which has not been waived by Buyer, and Buyer shall have received a
certificate to that effect, dated the Closing Date, signed by the Executive
Vice President and the Treasurer of each Seller;
(c) SELLER'S DUE AUTHORIZATION: Each Seller's execution and delivery
of this Agreement, its compliance with the provisions hereof and the
consummation of all of the transactions contemplated hereby shall have been
duly and validly authorized by all necessary corporate action on the part
of such Seller, and Buyer
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shall have received a duly certified copy of all actions taken by such
Seller's Board of Directors and by its shareholder effecting the same;
(d) ATWEC'S DUE AUTHORIZATION: ATWEC's execution and delivery of this
Agreement, its compliance with the provisions hereof and the consummation
of all of the transactions contemplated hereby shall have been duly and
validly authorized by all necessary corporate action on the part of ATWEC,
and Buyer shall have received a duly certified copy of all actions taken by
ATWEC's Board of Directors effecting the same;
(e) SELLERS' CONSENTS, ETC.: All notices, filings, consents, waivers
and approvals set forth in Schedule 7.1(e) shall have been given, made or
obtained, as the case may be, by the appropriate Seller, and Buyer shall
have received a true copy of each thereof;
(f) BUYER'S CONSENTS, ETC.: All notices, filings, consents, waivers
and approvals set forth in Section 6.1 or in Schedule 7.1(f) shall have
been given, made or obtained, as the case may be, by Buyer; and
(g) NO BAR: There shall not be in effect any judgment, decree or
order of, or position taken by, any court or administrative body of
competent jurisdiction, nor shall there have been any action, suit,
proceeding or known investigation instituted or threatened, nor shall any
law or regulation have been enacted or any action taken thereunder, which
would restrain or prohibit, make illegal, or subject Buyer to material
damage as a result of, the consummation of the transactions contemplated
hereby.
(h) FURTHER CLOSING DOCUMENTS: Each Seller shall have delivered, or
caused to be delivered, to Buyer the following documents and instruments in
form reasonably satisfactory to counsel to Buyer:
(1) A copy of the Certificate of Incorporation of such Seller and
of all amendments thereto, certified as of a date reasonably proximate
to the Closing Date by the Secretary of the Commonwealth of
Pennsylvania;
(2) Certificates of the Secretary of the Commonwealth of
Pennsylvania attesting to the good standing of such Seller in such
jurisdiction as of a date reasonably proximate to the Closing Date;
(3) A copy of the Certificate of Incorporation of ATWEC and of
all amendments thereto, certified as of a date reasonably proximate to
the Closing Date by the Secretary of the State of Delaware;
(4) Certificates of the Secretary of the State of Delaware
attesting to the good standing of ATWEC in such jurisdiction as of a
date reasonably proximate to the Closing Date;
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(5) A copy of the Certificate of Incorporation of KELC and of all
amendments thereto, certified as of a date reasonably proximate to the
Closing Date by the Secretary of the Commonwealth of Pennsylvania;
(6) Certificates of the Secretary of the Commonwealth of
Pennsylvania attesting to the good standing of KELC in such
jurisdiction as of a date reasonably proximate to the Closing Date;
(7) One or more quit claim deeds in the form attached hereto as
Exhibit C and other appropriate instruments of conveyance sufficient
to convey all of such Seller's interest in the Real Property, which
shall be duly executed by such Seller, acknowledged and in recordable
form;
(8) The affidavits described in Section 5.1, redated to the
Closing Date;
(9) Bills of sale, assignments and other instruments of transfer
and conveyance, each duly executed by such Seller, transferring to
Buyer title or other interest to the Purchased Assets being
transferred by such Seller other than the Real Property;
(10) An assignment, duly executed by such Seller, of each
Contract listed in Schedule 2.1 to which such Seller is a party; and
(11) Stock certificate(s) representing all of the Kittanning
Stock, duly endorsed in blank.
(12) Resignations of all the officers and directors of KELC.
(i) REAL ESTATE TAXES, ETC.: except as otherwise expressly provided
herein, all taxes, assessments, utilities, insurance and water charges on
the Real Property shall be prorated between Buyer and Sellers to the
Closing Date;
(j) OPINION OF COUNSEL: Buyer shall have received an opinion
addressed to Buyer, dated the Closing Date, of counsel to Sellers and to
ATWEC, in the form of Exhibit A;
(k) CLOSING OF RELATED TRANSACTIONS: The sale of the coal business of
certain subsidiaries of ATWEC to Stanford Energy Company (the
"Stanford/ATWEC Transaction") shall be closing contemporaneously with the
Closing;
(l) CRC AGREEMENT: Sellers shall have delivered to Buyer a valid and
binding contract between Mountain Laurel and Consolidated Rail Corporation
("CRC") in the form of an amendment to that certain Agreement dated December 30,
1991 between Mountain Laurel and CRC (the "Contract") which is in force, which
amendment governs coal shipments and which has the following terms and
conditions:
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(1) The term of the Contract will end no earlier than December
31, 1999.
(2) The rate paid to Mountain Laurel by CRC with respect to coal
originating, terminating or moving over the Mountain Laurel railroad
will be at least *** per ton in any calendar year in which total coal
tonnage originating, terminating or moving over the Mountain Laurel
railroad and delivered to CRC is *** or less and at least *** per ton
in any calendar year in which total coal tonnage originating,
terminating or moving over the Mountain Laurel railroad and delivered
to CRC is more than two million.
(3) CRC agrees that through December 31, 1999 it will not
increase its portion of coal rates for coal tonnage originating,
terminating or moving over the P&S or Mountain Laurel railroad to or
from the points listed on Schedule 7.1(1)(3) above the rates in effect
on this date, except for quarterly adjustments based on escalation
indices within industry norms.
(4) The Contract will be freely assignable by Mountain Laurel to
Buyer.
(5) All remaining terms and conditions of the Contract shall be
substantially similar to those contained in the unamended Contract,
other than those contained in Appendix L thereto.
(m) TITLE REPORT: Buyer shall have received a title report covering
the railroad operating property portion of the Real Property being conveyed
by such Sellers, marked up by a representative of the title insurance
company referred to in Section 5.1 to evidence that all matters to be
disposed of prior to the issuance of a title policy insuring the absence of
liens other than Permitted Encumbrances and the state of title sufficient
to allow Buyer to operate such operating portion of the Real Property as a
continuous line of railroad; and
(n) OTHER MATTERS: Buyer shall have received such other instruments
and documents as shall have been reasonably requested by counsel to Buyer
on or before the Closing Date.
SECTION 7.2 CONDITIONS TO SELLERS' OBLIGATIONS. The obligations of
Sellers to complete the transactions provided for herein shall be subject, at
their election, to satisfaction on or before the Closing Date of each of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES: all representations and
warranties of Buyer and GWI contained in this Agreement shall be true and
correct in all respects as of the date hereof and as of the Closing Date as
though made on and as of the Closing Date (except as may be otherwise
provided in this Agreement), and Sellers
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shall have received a certificate to that effect, dated the Closing Date,
signed by the Chief Executive Officer or Treasurer of Buyer and GWI;
(b) PRE-CLOSING OBLIGATIONS: Buyer shall have performed all
obligations required to be performed by it hereunder, the performance of
which has not been waived by Sellers, and Sellers shall have received a
certificate to that effect, dated the Closing Date, signed by the Chief
Executive Officer of Buyer;
(c) BUYER'S DUE AUTHORIZATION: Buyer's execution and delivery of this
Agreement, its compliance with the provisions hereof and the consummation
of all of the transactions contemplated hereby shall have been duly and
validly authorized by all necessary corporate action on the part of Buyer,
and Sellers shall have received a duly certified copy of all actions taken
by Buyer's Board of Directors effecting the same;
(d) GWI'S DUE AUTHORIZATION: GWI's execution and delivery of this
Agreement, its compliance with the provisions hereof and the consummation
of all of the transactions contemplated hereby shall have been duly and
validly authorized by all necessary corporate action on the part of GWI,
and Sellers shall have received a duly certified copy of all actions taken
by GWI's Board of Directors effecting the same;
(e) SELLER'S CONSENTS, ETC.: all notices, filings, consents, waivers
and approvals set forth in Schedule 7.1(e) shall have been given, made or
obtained, as the case may be, by the appropriate Seller;
(f) BUYER'S CONSENTS, ETC.: all notices, filings, consents, waivers
and approvals set forth in Section 6.1 or in Schedule 7.1(f) shall have
been given, made or obtained, as the case may be, by Buyer, and Sellers
shall have received a true copy of each thereof;
(g) NO BAR: there shall not be in effect any judgment, decree or
order of, or position taken by, any court or administrative body of
competent jurisdiction, nor shall there have been any action, suit,
proceeding or known investigation instituted or threatened, nor shall any
law or regulation have been enacted or any action taken thereunder, which
would, in Sellers' reasonable judgment, restrain or prohibit, make illegal,
or subject Sellers to material damage as a result of, the consummation of
the transactions contemplated hereby;
(h) FURTHER CLOSING DOCUMENTS: Buyer shall have delivered to Sellers
the following documents and instruments in form reasonably satisfactory to
counsel to Sellers:
(1) A copy of the Certificate of Incorporation of Buyer and of
all amendments thereto, certified as of a date reasonably proximate to
the Closing Date by the Secretary of State of Delaware;
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(2) A copy of the Certificate of Incorporation of GWI and of all
amendments thereto, certified as of a date reasonably proximate to the
Closing Date by the Secretary of State of Delaware;
(3) The amount provided by Section 1.4, in immediately available
funds; and
(4) Assumption of the Contracts referred to in Section 2.1, duly
executed by Buyer, in form and substance reasonably satisfactory to
Sellers.
(i) REAL ESTATE TAXES, ETC.: except as otherwise expressly provided
herein, all taxes, assessments, utilities, insurance and water charges on
the Real Property shall have been prorated between Buyer and Sellers to the
Closing Date;
(j) CLOSING OF RELATED TRANSACTIONS: All transactions contemplated by
Stanford/ATWEC Transaction shall be closing contemporaneously with the
Closing;
(k) OPINION OF COUNSEL: Sellers shall have received an opinion
addressed to Sellers, dated the Closing Date, of counsel to Buyer and GWI,
in the form of Exhibit B; and
(l) OTHER MATTERS: Sellers shall have received such other instruments
and documents as shall have been reasonably requested by counsel to Sellers
on or before the Closing Date.
ARTICLE 8. CLOSING
SECTION 8.1 CLOSING. The Closing shall take place at the offices of
Goodwin, Procter & Hoar LLP at 10:00 a.m. on April 25, 1996, or at such other
time and place as the parties may agree (the "CLOSING DATE"). The parties agree
that they shall take such actions, including the delivery of documents in
escrow, in order to facilitate completion on the Closing Date of all of the
transactions contemplated hereby.
SECTION 8.2 FAILURE TO CLOSE; TERMINATION. This Agreement may be
terminated at any time prior to the Closing Date, as follows:
(a) By the mutual consent of Buyer and each Seller; or
(b) By Buyer, upon notice to each Seller, if events occur which,
without any breach by Buyer of its obligations hereunder, render impossible
compliance with one or more of the conditions set forth in Section 7.1 (and
such compliance is not waived by Buyer); or
(c) By any Seller, upon notice to Buyer, if events occur which,
without breach by any Seller of its obligations hereunder, render
impossible compliance with
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one or more of the conditions set forth in Section 7.2 (and such compliance
is not waived by Sellers); or
(d) By Buyer or by any Seller, upon notice to all other parties
hereto, at any time after April 29, 1996.
In the event of any termination as provided by this Section 8.2, this Agreement
shall thereupon become void and of no effect, without any liability on the part
of any party; provided, however, that the obligations of the parties contained
in Section 9.2 and Section 9.3 shall survive.
ARTICLE 9. FURTHER COVENANTS
SECTION 9.1 TAXES ON TRANSACTION. All sales or use taxes and all
transfer taxes payable by reason of the sale and transfer of any of the
Purchased Assets hereunder, and any tax due under any applicable gains tax law,
shall be paid 50% by Buyer and 50% by Sellers.
SECTION 9.2 EXPENSES OF THE PARTIES. Except as otherwise expressly
provided in this Agreement, all expenses involved in the preparation,
negotiation, authorization and consummation of this Agreement and the
transactions contemplated hereby, including all fees and expenses of agents,
representatives, counsel and accountants, shall be borne solely by the party who
shall have incurred the same, and no other party shall have any responsibility
with respect thereto.
SECTION 9.3 CONFIDENTIALITY. Except for necessary disclosure to such
party's directors, officers, employees, counsel, accountants, bankers and other
agents, and except for the disclosure contemplated by Sections 5.4 and 6.1, each
party shall keep the provisions of this Agreement confidential both prior and
subsequent to the Closing Date. Without limiting the generality of the
foregoing, no party shall make any press release or advertisement with respect
to the transactions contemplated hereby without the prior consent of Buyer and
Sellers, unless such party determines, upon the advice of counsel, that such
action is required by law. Anything to the contrary herein notwithstanding,
Sellers and ATWEC recognize that in the event GWI intends to offer its
securities for sale information concerning Sellers and the transactions
contemplated by this Agreement may be included in a registration statement or
offering circular or memorandum used in connection with any such offer. Prior
to the first filing of such registration statement or offering circular or
memorandum with the Securities and Exchange Commission ("SEC"), GWI shall
deliver a copy of such registration statement (without exhibits) to ATWEC. If
GWI thereafter proposes to change any information therein with respect to the
Sellers or the transactions contemplated by this Agreement, it will provide
ATWEC with a copy of such proposed changes before filing them with the SEC.
ATWEC agrees to keep confidential the information contained in such document and
the fact that GWI is contemplating such offering until such first filing.
SECTION 9.4 FURTHER ASSURANCES. Each party shall cooperate with the
others, take such further action, and execute and deliver such further
documents, as may be reasonably
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requested by any other party in order to carry out the terms and purposes of
this Agreement. Without limiting the generality of the foregoing, from and
after the Closing Date:
(a) Each party shall file all tax returns consistent with the
allocation of the Purchase Price set forth in Schedule 1.3, and no party
shall take any position on audit or in litigation which is inconsistent
with such allocation if such position would result in the payment of any
additional tax by, or the disallowance of any deduction or credit to, any
other party; and
(b) On the request of Buyer, Sellers and ATWEC shall take such action
and deliver to Buyer such powers of attorney and further instruments of
assignment, conveyance or transfer and other similar documents of further
assurance as in the opinion of counsel to Buyer may be reasonably necessary
to assure, complete and evidence the full and effective transfer,
conveyance and assignment of the Purchased Assets and possession thereof to
Buyer, its successors and assigns, and the performance of this Agreement by
Sellers and ATWEC in all respects.
SECTION 9.5 COLLECTION OF RECEIVABLES AND PAYMENT OF PAYABLES . Sellers
may, at their option, request that Buyer, as paying agent of Sellers, beginning
ninety (90) days after the Closing hereunder, (i) collect Sellers' accounts
receivables which are (a) interline settlements, (b) freight receivables from
shippers and (c) carhire receivables, and (ii) pay any payables of Sellers'
which are (x) interline payables or (y) carhire payables. Upon such request,
which request shall be (1) received prior to the end of such 90 day period, (2)
accompanied by originals or copies of all necessary records with respect to any
such receivables and payables and (3) accompanied by authorization necessary to
permit Buyer to negotiate checks or other instruments payable to any Seller in
connection with such service, Buyer shall perform such service for a period of
one hundred eighty (180) days from the end of such 90 day period. Buyer shall
collect receivables and pay payables with its own funds, and within thirty (30)
days of the end of each month shall deliver to Sellers (I) a report indicating
its paying agent activity for such month, including by account all accounts paid
and all revenue received, and (II) either a bill or a check for the net amount
of such activity, as the case may be. If Buyer renders to Sellers a bill for
such month, Sellers shall pay any amount due hereunder to Buyer within five (5)
business days of the receipt of such bill.
ARTICLE 10. ALLOCATION OF LIABILITY
SECTION 10.1 DEFINITION OF "OBLIGATIONS". As used in this section, the
term "Obligations" shall be broadly construed and shall include, without
limitation, legal obligations, responsibilities, and liabilities to any Person,
and the legal responsibility to assume losses, damages, and costs, that arise
out of, by virtue of, or pursuant to:
(a) any federal or state statute, principle of common law, or
municipal ordinance;
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(b) any rule, regulation, order, decision, judgment, decree, mandate
or directive of any court or other tribunal, or of any governmental agency,
body, instrumentality, or political subdivision; or
(c) any deed, contract or other legal instrument.
"OBLIGATIONS," as defined herein, shall also include, without limitation,
and whether accrued before or after Closing, all obligations, responsibilities,
losses, and liabilities in connection with, in respect to, or arising out of,
(i) damage to or the loss of any property, or personal injury or wrongful death,
of any Person, (ii) costs and expenses incurred for any purpose whatsoever
(including reasonable attorneys' fees and expenses and costs incurred for
remedial or corrective action, containment, clean-up, repair work and response
to claims and actions) in order to discharge or satisfy the Obligations, and
(iii) assessments, fees, fines, penalties, judgments, awards, orders and
decrees.
SECTION 10.2 ALLOCATION OF SPECIFIC OBLIGATIONS. Except as otherwise
agreed by the parties in any other document and to the extent stated in such
other documents, the parties shall, as between themselves, allocate Obligations
pertaining to the Purchased Assets in accordance with this Section, without
regard to consideration of fault or negligence. With respect to any Obligation
allocated to ATWEC and/or the Sellers, subject to the limitations set forth in
Section 10.2(f) below, ATWEC and the Sellers shall indemnify, defend and hold
harmless Buyer and GWI and their respective officers, directors, employees,
shareholders and affiliates. With respect to any Obligation allocated to GWI
and/or Buyer, subject to the limitations set forth in Section 10.2(g) below, GWI
and Buyer shall indemnify, defend and hold harmless ATWEC and the Sellers and
their respective officers, directors, employees, shareholders and affiliates,
including without limitation, any trustee of any affiliate of ATWEC or Seller.
(a) LICENSES AND AGREEMENTS: Buyer and GWI shall be jointly and
severally responsible for all Obligations arising after Closing or
allocable to the period after Closing under the Contracts. Sellers and
ATWEC shall each be jointly and severally responsible for any such
Obligations arising before or allocable to the period before Closing.
(b) PERSONAL INJURY AND PROPERTY DAMAGE: Buyer and GWI shall be
jointly and severally responsible for all Obligations arising out of
personal injury to or the death of Persons or loss of, or damage to,
property (including the employees and property of the parties hereto)
occurring on or about the Real Property after Closing. Sellers and ATWEC
will each be jointly and severally responsible for all such Obligations
occurring on or about the Real Property on or prior to Closing.
(c) HAZARDOUS SUBSTANCES:
(1) Buyer and GWI shall be jointly and severally responsible for
Obligations which arise from the existence or presence of Hazardous
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<PAGE>
Substances in, on or about the Real Property (hereinafter "TOXIC
CONTAMINATION") after Closing.
(2) ATWEC and each Seller shall be jointly and severally
responsible for Obligations arising from Toxic Contamination, provided
that such Toxic Contamination resulted from a condition created by
ATWEC or any Seller during the time the Real Property was owned and
occupied by ATWEC or any Seller and further provided that such Toxic
Contamination was a violation of common law duty or exceeded allowable
limits or was otherwise in violation of applicable Environmental Laws
during such time. Neither ATWEC nor any Seller shall be liable for
any Obligation resulting from any condition created prior to the
acquisition of ownership of the Real Property by ATWEC or any Seller
even if such Obligations arise from ongoing, continuous, migrating
contamination that occurred during the ownership and control of the
Real Property by ATWEC or any Seller. Subject to the further
limitations set forth at Paragraph 10.2(f) below, ATWEC's and each
Seller's liability for any Obligation for which it is otherwise
responsible hereunder shall be no greater than that resulting from the
condition of the Real Property at Closing. Buyer and GWI shall be
jointly and severally responsible for all other Obligations arising
from Toxic Contamination which occurred prior to or after the Closing
including responsibility for any Obligation arising from Toxic
Contamination resulting from a condition created by Buyer's possession
of, or operations on, the Real Property, or from any ongoing,
continuing, migrating or subsequent release or contamination, or from
any increases in remediation or containment costs or liability,
created by or resulting from events occurring after Closing, including
the passage of time.
(3) If at any time after Closing any Toxic Contamination is
discovered which is or may be the responsibility of ATWEC or any
Seller pursuant to subsection (2) above, ATWEC and each Seller shall
be notified of such Toxic Contamination by Buyer and shall have the
opportunity and right to investigate, determine its responsibility
therefor, determine in connection with appropriate governmental or
regulatory bodies the appropriate response or remedy for such Toxic
Contamination, and remedy, with its own forces or contractors and at
its own expense, such Toxic Contamination to the satisfaction of
appropriate regulatory bodies or to the additional extent deemed
appropriate by ATWEC and Sellers. Buyer shall grant such rights of
entry or other rights to ATWEC and Sellers, upon reasonable terms and
without compensation, as may be necessary to allow ATWEC and Sellers
to perform the inspections, remediations or other actions necessary to
comply with this subsection. In the event of dispute concerning
ATWEC's and Sellers' responsibility for any obligation hereunder, the
parties shall cooperate to resolve such dispute as quickly as
possible, and Buyer, unless required by valid judicial or regulatory
order to take action to remedy a specific condition, shall during the
resolution of such dispute take no actions inconsistent with ATWEC's
and Sellers' right to seek a determination from the appropriate
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<PAGE>
regulatory or judicial body of the remedy required by law and to
remedy the Toxic Contamination with its own forces or contractors.
ATWEC and Sellers shall not be liable to Buyer for any damages, costs
or expenses incurred as a result of such Obligation, except that if
Buyer is required by valid judicial or administrative order as
provided above to take action to remedy any Obligation which is later
determined to be the responsibility of ATWEC or any Seller hereunder,
Buyer shall be able to recover its actual and reasonable costs from
ATWEC and Sellers.
(d) OTHER PHYSICAL CONDITION OF THE REAL PROPERTY: Except as
otherwise provided in this Article 10, Buyer and GWI shall be jointly and
severally responsible for:
(1) all Obligations that arise out of, in respect to, or in
connection with, the physical condition, safety, utility, adequacy,
marketability, value, suitability or fitness of the Real Property, or
any portion thereof, or any defects therein, including without
limitation, Obligations relating to (a) public or private street,
bridge, underpass or others crossings, (b) the removal or remediation
of contaminating materials or substances (other than Hazardous
Substances) (c) the demolition of structures or abatement of
nuisances, (d) the flow or obstruction of surface waters, (e) the
stability of the soil on, above, over, or adjacent to the property,
(f) support for or by, adjacent property or the collapse of soil or
other materials or buildings onto adjacent property, and (g) the
construction, repair, rehabilitation, alteration, maintenance, or use
of the Real Property;
(2) Obligations imposed by the regulations or orders of any
regulatory or licensing agency or by agencies or governmental bodies
responsible for preserving the public health or safety, the
environment, natural resources, wildlife, historic sites, vegetation,
public parks or forests, or wetlands; and
(3) Obligations imposed by buildings or construction codes, or
licensing, subdivision or zoning requirements, including Obligations
relating to licensing, permits, notices, and fees.
(e) BREACHES OF REPRESENTATIONS, WARRANTIES AND COVENANTS:
(1) ATWEC and Sellers shall each be jointly and severally liable
and responsible to Buyer for all Obligations that arise out of, in
respect to, or in connection with, the failure or breach by ATWEC or
any Seller of any representation or warranty made in this Agreement,
or any breach or nonfulfillment by ATWEC or any Seller of any covenant
or agreement made in this Agreement.
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<PAGE>
(2) Buyer and GWI shall each be jointly and severally liable and
responsible to Sellers and ATWEC for all Obligations that arise out
of, in respect to, or in connection with any failure or breach by
Buyer or GWI of any representation or warranty, or any breach or
nonfulfillment of any covenant or agreement, of Buyer or GWI in this
Agreement.
(f) LIMITATIONS ON OBLIGATIONS ALLOCATED TO ATWEC AND SELLERS:
Notwithstanding any other provision of this Agreement, the obligation of
ATWEC and the Sellers, in the aggregate, to indemnify Buyer and GWI or
their respective officers, directors or affiliates, and the responsibility
or liability of ATWEC and the Sellers, in the aggregate, with respect to
all Obligations allocated to ATWEC or any Seller hereunder shall be subject
to the following limitations:
(1) Any claim relating to an Obligation must be made in
accordance with Section 10.3 below prior to the second anniversary of
the Closing Date, except that any claim with respect to any Federal
Employers Liability Act claim asserted by any person employed by ATWEC
or any Seller on the date hereof must be made prior to the third
anniversary of the date hereof.
(2) The indemnification obligations of ATWEC and the Sellers and
the responsibility or liability of ATWEC and the Sellers relating to
Obligations pursuant to Paragraph 10.2(c) above (the "Environmental
Obligations") shall be limited to, and in no event shall exceed, an
aggregate amount of $1,000,000 and the indemnification obligations of
ATWEC and the Sellers and the responsibility or liability of ATWEC and
the Sellers relating to all Obligations shall be limited to, and in no
event shall exceed, and in no circumstance shall ATWEC and the Sellers
be required to pay more than, an aggregate amount of $5,000,000.
(3) The indemnification obligations of ATWEC and the Sellers and
the responsibility or liability of ATWEC and the Sellers with respect
to Environmental Obligations hereunder shall be limited solely to
Environmental Obligations arising out of or resulting from: (1) a
post-closing investigation or remedial action required by
Environmental Laws, conducted by a government agency or pursuant to an
order issued by a governmental agency with authority to administer the
Environmental Laws and having jurisdiction over the property or the
matter in question; (2) a third party claim or (3) the discovery of
the presence or release of Hazardous Substances as the result of a
facility expansion or renovation (excluding any losses, liabilities,
damages, or costs relating to or resulting from the removal of non-
friable or non-damaged asbestos containing material during such
activities which shall not constitute or be deemed or constitute an
Obligation or an Environmental Obligation hereunder), it being
understood that neither Buyer nor any affiliate thereof will, prior
to the second anniversary of the Closing, commence any plan to, or
conduct any studies or investigation with respect to, any such
expansion or renovation without the prior written approval of ATWEC.
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<PAGE>
(4) No claim for indemnification by ATWEC or any Seller or for the payment
of any Obligation shall be payable by ATWEC or any Seller with respect
to any Obligation allocated to any such party for the first $150,000
in the aggregate of such Obligations.
(g) LIMITATIONS ON OBLIGATIONS ALLOCATED TO BUYER AND GWI:
Notwithstanding any other provision of this Agreement, the obligation of
GWI and Buyer, in the aggregate, to indemnify ATWEC, each Seller or any of
their respective officers, directors, affiliates or shareholders or
trustees of any affiliate, and the responsibility or liability of GWI and
Buyer with respect to any Obligation allocated to GWI or Buyer hereunder
shall be subject to the following limitations: any claim relating to an
Obligation must be made in accordance with Section 10.3 below prior to the
second anniversary of the Closing Date, except that any claim with respect
to any Environmental Obligation must be prior to the fifth anniversary of
the date hereof.
(h) REGISTRATION STATEMENT FOR GWI SECURITIES: Buyer and GWI shall be
responsible to ATWEC and Sellers for all Obligations that arise out of, in
respect to, or in connection with, the use by GWI of financial information
obtained from Seller and of any other information relating to the
transactions contemplated by this Agreement or relating to Seller's
business in a registration statement filed with the Securities and Exchange
Commission or in a private placement memorandum circulated in connection
with the issuance by GWI of its securities, except when there has been a
finding by a court of competent jurisdiction that any such information
which caused the Obligation contains any untrue statement of a material
fact, or omits to state a material fact necessary in order to make such
information not misleading and any such untrue statement or omission was
made by Sellers or ATWEC.
SECTION 10.3 PROCEDURE FOR ENFORCEMENT OF OBLIGATIONS. Any party (the
"Demanding Party") seeking to hold any other party to this Agreement (the
"Receiving Party") responsible for any Obligation in accordance with this
Article 10 shall give to such Receiving Party notice of such demand, stating in
reasonable detail the nature thereof. If any demand relates to an Obligation
arising out of a claim made by any Person not a party to or affiliated with a
party to this Agreement, the notice shall also state whether the Demanding Party
(a) has made payment in full of the claim, (b) has compromised and made payment
of the compromised claim, or (c) disputes the claim and intends to defend
against it. The Receiving Party shall have the right to defend the claim. If
the Receiving Party shall defend against such claim, the Demanding Party shall
cooperate with the Receiving Party in such defense, shall make available to the
Receiving Party all records and other materials reasonably required by the
Receiving Party in such defense, and shall have the right to participate in such
defense, but the Receiving Party shall at all times control such defense. If
the Receiving Party does not intend to defend against the claim then the
Demanding Party may defend. If the Demanding Party shall defend against the
claim, the Receiving Party shall cooperate with it in such defense, shall make
available to the Demanding Party all records and other materials reasonably
required by it in such defense, and shall have the right to participate in such
defense, but the Demanding Party shall at all times control such
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<PAGE>
defense. Upon the giving of any written notice in accordance with this Section
10.3 of any claim by any Demanding Party against any Receiving Party with
respect to any Obligation within the time periods described in Paragraphs
10.2(f)(1) and Section 10.2(g) above, the right to indemnification with respect
to such claim shall remain in effect until such matter shall have been finally
determined and disposed of, and indemnification due in respect thereof shall
have been paid.
SECTION 10.4 REMEDIES. This Article 10 sets forth the exclusive remedies
of ATWEC, each Seller, Buyer and GWI with respect to any Obligation as a result
of the breach of, or the failure to perform or satisfy, any of the
representations, warranties, covenants and agreements of any party under this
Agreement or any other claim with respect to this Agreement or the transactions
contemplated hereby (other than intentional fraud); provided that the foregoing
shall not limit the availability prior to or (with the exception of any such
remedies as may be available under any Environmental Law or with respect to
environmental matters) after the Closing of any equitable remedy, including,
without limitation, any equitable remedy which may result in a monetary recovery
by Buyer or GWI (but in no case shall Buyer or GWI be entitled to any monetary
recovery or rescission or a similar remedy after the Closing).
ARTICLE 11. GENERAL PROVISIONS
SECTION 11.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
Subject to the provisions of Section 10.4 hereof, the several representations,
warranties and covenants of the parties herein contained, and the provisions
hereof which by their terms are to be performed after the Closing Date, shall
survive the Closing Date and shall be effective regardless of any investigation
which may have been or may be made at the time by or on behalf of the party to
whom such representations, warranties, covenants and agreements are made.
SECTION 11.2 AMENDMENT AND WAIVER. This Agreement may be amended only by
a writing executed by each of the parties hereto. No waiver of compliance with
any provision or condition hereof, and no consent provided for herein, shall be
effective unless evidenced by an instrument in writing duly executed by the
party sought to be charged therewith. No failure on the part of any party to
exercise, and no delay in exercising, any of its rights hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise by any party of
any right preclude any other or future exercise thereof or the exercise of any
other right.
SECTION 11.3 ASSIGNMENT. The Agreement may be freely assigned without
notice to, or consent by, Sellers or ATWEC to a corporation or other business
entity wholly owned by Buyer, but no such assignment shall relieve Buyer or GWI
of its obligations and liabilities hereunder. Sellers (other than to ATWEC or a
wholly owned subsidiary of ATWEC after notice to Buyer and GWI) and ATWEC may
not assign this Agreement for a period of thirty-six (36) months following the
Closing Date, after which period Sellers and ATWEC shall be free to assign this
Agreement without notice to, or consent by, Buyer. This Agreement shall
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<PAGE>
be binding upon and inure to the benefit of Sellers, ATWEC, GWI and Buyer, and
their respective successors and assigns.
SECTION 11.4 NOTICES, ETC. Each notice, report, demand, waiver, consent
and other communication required or permitted to be given hereunder shall be in
writing and shall be sent either by registered or certified first-class mail,
postage prepaid and return receipt requested, or by telex or telecopier,
addressed as follows:
If to Buyer or to GWI: Pittsburg & Shawmut Railroad, Inc.
201 N. Penn Street
Punxsutawney, PA 15767
Attention: President
Genesee & Wyoming Inc.
71 Lewis Street
Greenwich, CT 06830
Attention: Mortimer B. Fuller III
with a copy to: Harter, Secrest & Emery
700 Midtown Tower
Rochester, New York 14604-2070
Attention: James B. Gray, Jr. Esq.
If to any Seller or to ATWEC: Arthur T. Walker Estate Corporation
One Glade Park, East R.D. 8, Box 46
Kittanning, PA 16201
Attention: President
with a copy to: Dumaines
201 Devonshire Street
Fourth Floor
Boston, MA 02110
Attention: Gerard J. Sarnie
Goodwin, Procter & Hoar LLP
Exchange Place
53 State Street
Boston, MA 02109
Attention: Stephen W. Carr, P.C.
Each such notice and other communication given by mail shall be deemed to have
been given when it is deposited in the United States mail in the manner
specified herein, and each such notice and other communication given by telex or
telecopier shall be deemed to have been given when it is so transmitted and the
appropriate answer back is received. Any party may change its address for the
purpose hereof by giving notice in accordance with the provisions of this
Section 11.4.
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<PAGE>
SECTION 11.5 BINDING EFFECT. Subject to the provisions of Section 11.3,
this Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns. This Agreement creates no
rights of any nature in any Person not a party hereto.
SECTION 11.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
applicable to agreements made and to be performed entirely within the
Commonwealth of Pennsylvania.
SECTION 11.7 EFFECT OF AGREEMENT. This Agreement sets forth the entire
understanding of the parties, and supersedes any and all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof.
SECTION 11.8 HEADINGS; COUNTERPARTS. The Article and Section headings of
this Agreement are for convenience of reference only and do not form a part
hereof and do not in any way modify, interpret or construe the intention of the
parties. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
date first written above.
SELLERS:
THE PITTSBURG & SHAWMUT RAILROAD
COMPANY
By:/s/ Walter E. Travis
---------------------
Its [ ] Director
RED BANK RAILROAD COMPANY
By:/s/ Walter E. Travis
---------------------
Its [ ] Director
MOUNTAIN LAUREL RAILROAD COMPANY
By:/s/ Walter E. Travis
---------------------
Its [ ] Director
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<PAGE>
BUYER:
PITTSBURG & SHAWMUT RAILROAD, INC.
By:
---------------------
Its [ ]
ATWEC:
ARTHUR T. WALKER ESTATE CORPORATION
By:/s/ Walter E. Travis
---------------------
Its [ ] Chairman
GWI:
GENESEE & WYOMING INC.
By:
-----------------------
Its [ ]
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<PAGE>
BUYER:
PITTSBURG & SHAWMUT RAILROAD, INC.
By:/s/ Mark W. Hastings
---------------------
Its [ ] Treasurer
ATWEC:
ARTHUR T. WALKER ESTATE CORPORATION
By:
---------------------
Its [ ]
GWI:
GENESEE & WYOMING INC.
By: /s/ Mortimer B. Fuller
-----------------------
Its [ ] President
- 33 -
<PAGE>
TABLE OF EXHIBITS AND SCHEDULES
* Exhibit A Form of Opinion of Sellers' and ATWEC's
Counsel
* Exhibit B Form of Opinion of Buyer's and GWI's Counsel
* Exhibit C Form of Deed
* Schedule 1.1(a) Real Property
* Schedule 1.1(b) Tangible Personal Property
* Schedule 1.1(c) Inventories
* Schedule 1.1(e) Intangible Assets
* Schedule 1.3 Allocation of Purchase Price
* Schedule 2.1 Contracts Assumed
* Schedule 2.4(b) KELC Permits
* Schedule 3 Disclosure Statement
* Schedule 3.17(f) Employees
* Schedule 5.1 Form of Seller's Real Property Affidavit
* Schedule 5.3 Continuing Health Care Benefits
* Schedule 5.4 Consents
* Schedule 7.1(e) Seller's Consents
* Schedule 7.1(f) Buyer's Consents
* Schedule 7.1(l)(3) Coal Destinations
* OMITTED EXHIBITS AND SCHEDULES
UPON WRITTEN REQUEST, THE REGISTRANT WILL PROVIDE COPIES OF ANY OF THE
REFERENCED OMITTED EXHIBITS AND SCHEDULES, SUBJECT TO REQUESTS FOR
CONFIDENTIAL TREATMENT.
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<PAGE>
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT No. 1 to Asset Purchase Agreement, dated April 19, 1996,
among Pittsburg & Shawmut Railroad, Inc., a Delaware corporation, Genesee &
Wyoming Inc., a Delaware corporation, The Pittsburg & Shawmut Railroad Company,
a Pennsylvania corporation, Red Bank Railroad Company, a Pennsylvania
corporation, Mountain Laurel Railroad Company, a Pennsylvania corporation, and
Arthur T. Walker Estate Corporation, a Delaware corporation.
1. Section 11.5 of the Asset Purchase Agreement, is hereby amended by
deleting the last sentence thereof and substituting in its place:
"Except as specifically provided in Section 10.2 hereof, this
Agreement creates no rights of any nature in any Person not a party
hereto."
2. Except as set forth above, all other terms and conditions of the Asset
Purchase Agreement remain the same.
3. This Consent may be executed in various counterpart copies, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 on the
date first written above.
THE PITTSBURG & SHAWMUT RAILROAD
COMPANY
By:/s/ Walter E. Travis
---------------------
Its: Director
RED BANK RAILROAD COMPANY
By:/s/ Walter E. Travis
---------------------
Its: Director
MOUNTAIN LAUREL RAILROAD COMPANY
By:/s/ Walter E. Travis
---------------------
Its: Director
<PAGE>
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
[signatures continued]
PITTSBURG & SHAWMUT RAILROAD, INC.
By:
------------------------
Its:
ARTHUR T. WALKER ESTATE CORPORATION
By:/s/ Walter E. Travis
---------------------
Its: Chairman
GENESEE & WYOMING INC.
By:
-----------------------
Its:
<PAGE>
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
[signatures continued]
PITTSBURG & SHAWMUT RAILROAD, INC.
By: /s/ Mark W. Hastings
------------------------
Its: Treasurer
ARTHUR T. WALKER ESTATE CORPORATION
By:
---------------------
Its:
GENESEE & WYOMING INC.
By:/s/ Mortimer B. Fuller
-----------------------
Its: President
