<PAGE>
As filed with the Securities and Exchange Commission on November 12, 1999
Registration No.
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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. Deferred Stock Plan for Non-Employee Directors
(Full title of the Plan)
Mortimer B. Fuller, III
Chairman of the Board 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 maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share/(1)/ price/(1)/ registration fee
<S> <C> <C> <C> <C>
Class A Common Stock, par 50,000 $13.50 $675,000 $188
value $.01 per share
</TABLE>
/(1)/ Estimated in accordance with Rule 457(h), as of November 8, 1999,
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 the Plan.
<PAGE>
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 Registrant's Report on Form 10-K for the fiscal year ended December
31, 1998;
(b) the Registrant's Report on Form 10-Q for the quarter ended March 31,
1999;
(c) the Registrant's Report on Form 10-Q for the quarter ended June 30,
1999; and
(d) 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 the person 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
<PAGE>
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding, if the person acted in good
faith and in a manner the person 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 the person's 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 the person 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 the person's 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 the
person 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 the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person 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
the 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 6 hereof.
2
<PAGE>
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 therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and 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 whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
3
<PAGE>
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 Rochester, State of New York, on the 12th day of
November, 1999.
Genesee & Wyoming Inc.
By: /s/ Alan R. Harris
--------------------------
Alan R. Harris
Senior Vice 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 12th day of November, 1999.
Signature Title
--------- -----
* Chairman of the Board
- ------------------------ and Chief Executive Officer
Mortimer B. Fuller, III (Principal Executive Officer)
* Senior Vice President,
- ------------------------ Chief Financial Officer and Treasurer
Mark W. Hastings (Principal Financial Officer)
/s/ Alan R. Harris Senior Vice President and
- ------------------------ Chief Accounting Officer
Alan R. Harris (Principal Accounting Officer)
*
- ------------------------ Director
James M. Fuller
*
- ------------------------ Director
Louis S. Fuller
*
- ------------------------ Director
Robert M. Melzer
4
<PAGE>
*
- --------------------------- Director
John M. Randolph
*
- --------------------------- Director
Philip J. Ringo
- --------------------------- Director
M. Douglas Young
*By: /s/ Alan R. Harris
-----------------------
Alan R. Harris
Attorney-in-Fact
5
<PAGE>
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 October 7, 1991 of Buffalo & Pittsburgh Railroad,
Inc. in favor of CSX Transportation, Inc. (Exhibit 4.6)/1/
(f) Second Amended and Restated Revolving Credit Agreement dated as of
October 31, 1997 among the Registrant, its subsidiaries, BankBoston, N.A. and
the banks named therein. (Exhibit 4.1)/4/
(g) First Amendment to Promissory Note dated as of March 19, 1999 between
Buffalo & Pittsburgh Railroad, Inc. and CSX Transportation, Inc. (Exhibit
4.1)/5/
*(5.1) Opinion of Harter, Secrest & Emery LLP
(15) Letter re unaudited interim financial information
Not Applicable.
*(23.1) Consent of Arthur Andersen LLP
*(23.2) Consent of Harter, Secrest & Emery LLP (contained in Exhibit (5.1))
*(24.1) Power of Attorney
(99.1) Genesee & Wyoming Inc. Deferred Stock Plan for Non-Employee
Directors/6/
____________________________
* 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.
/4/ Exhibit previously filed as part of, and incorporated herein by
reference to, the Registrant's Report Form 10-K for the fiscal year ended
December 31, 1997. The exhibit number contained in parenthesis refers to the
exhibit number in such Report.
/5/ Exhibit previously filed as part of, and incorporated herein by
reference to the Registrant's Report Form 10-K for the fiscal year
ended December 31, 1998. The exhibit number contained in parenthesis refers to
the exhibit number in such Report.
/6/ Exhibit previously filed with, and incorporated herein by reference to,
the Registrant's 1999 Definitive Proxy Statement, which Plan was filed in
electronic format on April 19, 1999 as Annex A to the Proxy Statement.
6
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF HARTER, SECREST & EMERY LLP)
November 12, 1999
Genesee & Wyoming Inc.
71 Lewis Street
Greenwich, Connecticut 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 50,000 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 pursuant to the
Genesee & Wyoming Inc. Deferred Stock Plan for Non-Employee Directors (the
"Plan").
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 and its Board of Directors, from the date of incorporation to the
date hereof; the Plan; 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.
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 50,000
shares of Common Stock pursuant to the terms of the Plan.
<PAGE>
3. The shares of Common Stock to be issued by the Corporation will,
when issued in accordance with the provisions of the Plan, 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 of the 50,000 shares
of Common Stock covered thereby, and we hereby consent to the filing of this
opinion as Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ HARTER, SECREST & EMERY LLP
-2-
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 16, 1999
included in the Registrant's Report on Form 10-K of Genesee & Wyoming Inc. for
the year ended December 31, 1998 and to all references to our Firm included in
this registration statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Chicago, Illinois
November 12, 1999
<PAGE>
EXHIBIT 24.1
GENESEE & WYOMING INC.
Officers' and Directors' Power of Attorney
KNOW ALL MEN BY THESE PRESENTS: That the undersigned, being Directors or
Officers of Genesee & Wyoming Inc., a Delaware corporation (the "Corporation"),
which Corporation anticipates filing with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended (the
"Act"), a Registration Statement on Form S-8 (the "Registration Statement") to
register under the Act all of the shares of the Corporation's Class A Common
Stock issuable under the Genesee & Wyoming Inc. Deferred Stock Plan for Non-
Employee Directors, DO HEREBY constitute and appoint Mortimer B. Fuller, III,
Mark W. Hastings, Alan R. Harris, Walter D. Bay and Susan Mascette Brandt, and
each and any of them, the attorneys of the undersigned with full power of
substitution for and in the name, place and stead of the undersigned:
(1) To sign and file on behalf of the undersigned the Registration Statement
and any and all amendments thereto, any and all exhibits thereto and any and all
applications or other documents to be filed with the Securities and Exchange
Commission pertaining to the securities covered by the Registration Statement,
with full power and authority to do and perform any and all acts and things
whatsoever under and in accordance with the Act and the rules and regulations
promulgated thereunder by said Commission, hereby ratifying and approving the
acts of such attorney or attorneys, or any such substitute or substitutes.
(2) To take any and all action which they may deem necessary or desirable to
register or qualify the Corporation and further to register or qualify the
securities of the Corporation under the Blue Sky or securities laws of such
states as they may deem necessary and desirable, and in connection therewith to
prepare, execute, acknowledge and file such applications, certificates,
affidavits, covenants, consents to service of process and other documents as
such attorneys may deem necessary or desirable.
This Instrument may be executed in several counterparts, each of which shall
be an original but all of which together shall constitute one and the same
Instrument.
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals
as of the respective dates set forth below.
Dated: May 25, 1999 /s/ Mortimer B. Fuller, III
-----------------------------------------
Mortimer B. Fuller, III
Chairman of the Board and
Chief Executive Officer
Dated: May 25, 1999 /s/ Mark W. Hastings
-----------------------------------------
Mark W. Hastings
Senior Vice President and
Chief Financial Officer
Dated: May 25, 1999 /s/ Alan R. Harris
-----------------------------------------
Alan R. Harris
Senior Vice President and
Chief Accounting Officer
Dated: May 25, 1999 /s/ James M. Fuller
-----------------------------------------
James M. Fuller, Director
Dated: May 25, 1999 /s/ Louis S. Fuller
-----------------------------------------
Louis S. Fuller, Director
Dated: May 25, 1999 /s/ Robert M. Melzer
-----------------------------------------
Robert M. Melzer, Director
Dated: May 25, 1999 /s/ John M. Randolph
-----------------------------------------
John M. Randolph, Director
Dated: May 25, 1999 /s/ Philip J. Ringo
-----------------------------------------
Philip J. Ringo, Director
2
<PAGE>
State of Connecticut)
County of Fairfield) ss:
On this 25th day of May, 1999, before me personally came Mortimer B.
Fuller, III, to me known and known to me to be the individual described in, and
who executed the foregoing instrument, and he acknowledged to me that he
executed the same.
/s/ SM Brandt
-------------------------------
Notary Public
State of Connecticut)
County of Fairfield) ss:
On this 25th day of May, 1999, before me personally came Mark W. Hastings,
to me known and known to me to be the individual described in, and who executed
the foregoing instrument, and he acknowledged to me that he executed the same.
/s/ SM Brandt
-------------------------------
Notary Public
State of Connecticut)
County of Fairfield) ss:
On this 25th day of May, 1999, before me personally came Alan R. Harris, to
me known and known to me to be the individual described in, and who executed the
foregoing instrument, and he acknowledged to me that he executed the same.
/s/ SM Brandt
-------------------------------
Notary Public
3
<PAGE>
State of Connecticut)
County of Fairfield) ss:
On this 25th day of May, 1999, before me personally came James M. Fuller,
to me known and known to me to be the individual described in, and who executed
the foregoing instrument, and he acknowledged to me that he executed the same.
/s/ SM Brandt
-------------------------------
Notary Public
State of Connecticut)
County of Fairfield) ss:
On this 25th day of May, 1999, before me personally came Louis S. Fuller, to
me known and known to me to be the individual described in, and who executed the
foregoing instrument, and he acknowledged to me that he executed the same.
/s/ SM Brandt
-------------------------------
Notary Public
State of Connecticut)
County of Fairfield) ss:
On this 25th day of May, 1999, before me personally came Robert M. Melzer,
to me known and known to me to be the individual described in, and who executed
the foregoing instrument, and he acknowledged to me that he executed the same.
/s/ SM Brandt
-------------------------------
Notary Public
4
<PAGE>
State of Connecticut)
County of Fairfield) ss:
On this 25th day of May, 1999, before me personally came John M. Randolph,
to me known and known to me to be the individual described in, and who executed
the foregoing instrument, and he acknowledged to me that he executed the same.
/s/ SM Brandt
-------------------------------
Notary Public
State of Connecticut)
County of Fairfield) ss:
On this 25th day of May, 1999, before me personally came Philip J. Ringo, to
me known and known to me to be the individual described in, and who executed the
foregoing instrument, and he acknowledged to me that he executed the same.
/s/ SM Brandt
-------------------------------
Notary Public
5
