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As filed with the Securities and Exchange Commission on July 30, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GENESEE & WYOMING INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 16-0984624
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
71 LEWIS STREET
GREENWICH, CONNECTICUT 06830
(203) 629-3722
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
GENESEE & WYOMING INC. 1996 STOCK OPTION PLAN
GENESEE & WYOMING INC. STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
GENESEE & WYOMING INC. EMPLOYEE STOCK PURCHASE PLAN
(Full titles of Plans)
MORTIMER B. FULLER, III
CHAIRMAN OF THE BOARD,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
GENESEE & WYOMING INC.
71 LEWIS STREET
GREENWICH, CONNECTICUT 06830
(203) 629-3722
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
PROPOSED
MAXIMUM PROPOSED
AMOUNT TO OFFER- MAXIMUM
TITLE OF SECURITIES BE ING PRICE PER AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED SHARE/(1)/ OFFERING PRICE/(1)/ REGISTRATION FEE
<S> <C> <C> <C> <C>
Class A Common Stock, 950,000 $22.75 $21,612,500 $7,453
par value $.01 per share
</TABLE>
/(1)/ Estimated in accordance with Rule 457(h), as of July 24, 1996, solely for
the purpose of calculating the registration fee.
--------------------------
Pursuant to Rule 416, there are also being registered such additional shares of
Class A Common Stock as may become issuable pursuant to anti-dilution provisions
of each of the Plans.
--------------------------
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Registrant previously filed with the
Securities and Exchange Commission are incorporated herein by reference:
(a) the Company's latest prospectus dated June 24, 1996 filed with
the Securities and Exchange Commission pursuant to Rule 424(b) of the
Securities Act of 1933;
(b) the description of the Registrant's Class A Common Stock, par value $.01
per share, contained in Item 9 of the Registrant's Registration
Statement on Form S-1 Amendment No. 3 (Registration No. 333-3972), filed
with the Securities and Exchange Commission on June 18, 1996.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement (and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold) shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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),
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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 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 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibits filed as part of this Registration Statement are listed on the
Index to Exhibits located at page 5 hereof.
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ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes (subject to the proviso
contained in Item 512(a) of Regulation S-K):
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this Registration
Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, controlling persons of
the Registrant pursuant to the provisions described under Item 6 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities 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 of whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudications of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stamford, State of Connecticut, on the 26th day of
July, 1996.
GENESEE & WYOMING INC.
By: /s/ Mortimer B. Fuller, III
---------------------------
Mortimer B. Fuller, III
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on the 26th day of July, 1996.
SIGNATURE TITLE
--------- -----
/s/ Mortimer B. Fuller, III Chairman of the Board, President and
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Mortimer B. Fuller, III Chief Executive Officer
(Principal Executive Officer)
/s/ Mark W. Hastings Senior Vice President,
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Mark W. Hastings Chief Financial Officer and Treasurer
(Principal Financial Officer)
/s/ Alan R. Harris Senior Vice President and
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Alan R. Harris Chief Accounting Officer
(Principal Accounting Officer)
/s/ James M. Fuller Director
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James M. Fuller
/s/ Louis S. Fuller Director
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Louis S. Fuller
/s/ John M. Randolph Director
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John M. Randolph
/s/ Philip J. Ringo Director
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Philip J. Ringo
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INDEX TO EXHIBITS
(4) Instruments defining the rights of security holders, including indentures
(a) Form of Restated Certificate of Incorporation (Exhibit 3.2)/2/
(b) By-laws (Exhibit 3.3)/1/
(c) Specimen stock certificate representing shares of Class A Common
Stock (Exhibit 4.1)/3/
(d) Form of Class B Stockholders' Agreement dated as of May 20, 1996,
among the Registrant, its executive officers and its Class B
stockholders (Exhibit 4.2)/2/
(e) Promissory Note dated December 28, 1989 of GWI Leasing Corporation in
favor of Deutsche Credit Corporation (Exhibit 4.3)/1/
(f) Railcar Finance Notes dated July 8, 1991 and November 27, 1991 of GWI
Leasing Corporation in favor of Deutsche Credit Corporation (Exhibit
4.4)/1/
(g) Railcar Finance Notes, dated November 27, 1991 and December 31, 1991
of GWI Leasing Corporation in favor of Deutsche Credit Corporation
(Exhibit 4.5)/1/
(h) Promissory Note dated October 7, 1991 of Buffalo & Pittsburgh
Railroad, Inc. in favor of CSX Transportation, Inc. (Exhibit 4.6)/1/
(i) 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 (Exhibit 4.7)/1/
(j) 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 (Exhibit 4.8)/1/
(k) Guaranty dated December 27, 1990 of the Registrant in favor of
Deutsche Credit Corporation (Exhibit 4.9)/1/
(l) 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 (Exhibit 4.10)/1/
(m) 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 (Exhibit 4.11)/1/
(n) 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
(Exhibit 4.12)/1/
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(o) 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 (Exhibit 4.13)/1/
(p) Amended and Restated Stock Pledge Agreement dated as of February 8,
1996 between the Registrant and The First National Bank of Boston
(Exhibit 4.14)/1/
(q) 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 (Exhibit 4.15)/1/
(r) 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 (Exhibit 4.16)/2/
*(5) Opinion of Harter, Secrest & Emery
(15) Letter re unaudited interim financial information
Not applicable.
(23) Consents of Experts and Counsel
*(a) Consent of Arthur Andersen LLP
*(b) Consent of Harter, Secrest & Emery [contained in Exhibit (5)]
(24) Power of Attorney
Not applicable.
(28) Information from reports furnished to State insurance regulatory
authorities
Not applicable.
(99) Additional Exhibits
(a) Genesee & Wyoming Inc. 1996 Stock Option Plan (Exhibit 10.1)/2/
(b) Genesee & Wyoming Inc. Stock Option Plan For Outside Directors
(Exhibit 10.2)/2/
(c) Genesee & Wyoming Inc. Employee Stock Purchase Plan (Exhibit 10.4)/2/
____________________________
* Exhibit filed with this Registration Statement.
/1/ Exhibit previously filed as part of, and incorporated herein by
reference to, the Registrant's Registration Statement on Form S-1
(Registration No. 333-3972). The exhibit number contained in
parenthesis refers to the exhibit number in such Registration
Statement.
/2/ Exhibit previously filed as part of, and incorporated herein by
reference to, Amendment No. 1 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-3972). The exhibit number
contained in parenthesis refers to the exhibit number in such
Amendment.
/3/ Exhibit previously filed as part of, and incorporated herein by
reference to, Amendment No. 2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-3972). The exhibit number
contained in parenthesis refers to the exhibit number in such
Amendment.
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[Harter, Secrest & Emery letterhead]
EXHIBIT (5)
July 30, 1996
Genesee & Wyoming Inc.
71 Lewis Street
Greenwich, CT 06830
Re: Genesee & Wyoming Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion in connection with your Registration
Statement on Form S-8, filed this date under the Securities Act of 1933, as
amended, with the Securities and Exchange Commission (the "Registration
Statement"), in respect of an aggregate of 950,000 authorized and unissued
shares of the Class A Common Stock, par value $.01 per share (the "Common
Stock"), of Genesee & Wyoming Inc. (the "Corporation"), which may be issued as
follows:
a. upon exercise, after the date hereof, of options heretofore or
hereafter granted under the Genesee & Wyoming Inc. 1996 Stock Option Plan;
b. upon exercise, after the date hereof, of options heretofore or
hereafter granted under the Genesee & Wyoming Inc. Stock Option Plan for
Outside Directors; or
c. pursuant to the Genesee & Wyoming Inc. Employee Stock Purchase Plan
(all such documents are herein collectively referred to as the "Plans").
We have examined the following corporate records and proceedings of the
Corporation in connection with the preparation of this opinion: its Restated
Certificate of Incorporation; its By-laws as currently in force and effect; its
Minute Books, containing minutes and records of other proceedings of its
stockholders, its Board of Directors and the Personnel Committee (acting as the
Stock Option Committee) of the Board of Directors, from the date of
incorporation to the date hereof; the Plans; the Registration Statement;
applicable provisions of the laws of the State of Delaware; and such other
documents and matters as we have deemed necessary.
In rendering this opinion, we have made such examination of laws as we have
deemed relevant for the purposes hereof. As to various questions of fact
material to this opinion, we have relied upon representations and/or
certificates of officers of the Corporation, certificates and documents issued
by public officials and authorities, and information received from searchers of
public records.
<PAGE>
Based upon and in reliance on the foregoing, we are of the opinion that:
1. The Corporation has been duly incorporated and is validly existing
under the laws of the State of Delaware.
2. The Corporation has the authority to issue an aggregate of 950,000
shares of Common Stock pursuant to the terms of the Plans.
3. The shares of Common Stock to be issued and sold by the Corporation
will, when sold and paid for in accordance with the provisions of the respective
Plans, and the respective stock option agreements pursuant to which options are
granted under certain of the Plans, be validly authorized and legally issued and
outstanding, fully paid and non-assessable.
We hereby consent to be named in the Registration Statement as attorneys
passing upon legal matters in connection with the issuance and sale of the
950,000 shares of Common Stock covered thereby, and we hereby consent to the
filing of this opinion as Exhibit (5) to the Registration Statement.
Very truly yours,
/s/ HARTER, SECREST & EMERY
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 16, 1996
(except with respect to matters discussed in Note 14 as to which the dates are
April 22, 1996, April 29, 1996, June 10, 1996 and June 21, 1996) included in the
Genesee & Wyoming Inc.'s Registration Statement S-1 (Registration No. 333-3972)
and all references to our firm included in this Registration Statement Form S-8.
/s/ Arthur Andersen
Chicago, Illinois
July 30, 1996
