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Exhibit 10.1
AMENDMENT NO. 6
to the
GENESEE & WYOMING INC.
1996 STOCK OPTION PLAN
Effective May 23, 2000
WHEREAS, Genesee & Wyoming Inc., a Delaware corporation (the "Company"), has
established the Genesee & Wyoming Inc. 1996 Stock Option Plan, as heretofore
amended (the "Plan"); and
WHEREAS, deeming it appropriate and advisable so to do, and pursuant to
Section 19 of the Plan, the Board of Directors of the Company has authorized,
approved and adopted the further amendments to the Plan set forth herein;
NOW, THEREFORE, the Plan is hereby amended, effective May 23, 2000, as set
forth below:
1. A new Section "26. Cancellation and Rescission of Awards." of the
Plan is hereby added to the Plan, to provide in its entirety as follows:
"26. Cancellation and Rescission of Awards.
"(a) The Stock Option Committee shall have the authority, in its
discretion and without limitation, to include in such agreements
evidencing Options as it determines appropriate a provision that permits
the Company to (i) cancel all unexercised Options granted to an Option
grantee who enters into Competition (as hereinafter defined), and (ii)
rescind the exercise of any Options exercised by an Option grantee (or
his permitted transferee) within six months before the date that such
Option grantee enters into Competition, if (x) the Option grantee
voluntarily terminates his or her employment with the Company, or (y) the
Company terminates the Option grantee's employment because the Option
grantee has cooperated with a competitor of the Company contrary to the
best interests of the Company.
"(b) As used herein, the term `Competition' means the Option
grantee's participation, whether as employee, consultant, investor or
otherwise, directly or indirectly in any business which is or becomes
competitive with the business of the Company or any of its affiliates.
For the purpose of determining whether an Option grantee has engaged in
Competition, or has cooperated with a competitor of the Company contrary
to the best interests of the Company, the judgment of the chief executive
officer of the Company shall prevail. For an Option grantee whose
employment with the Company has terminated, the judgment of the chief
executive officer shall be based on that person's position and
responsibilities while employed by the Company, his or her post-
employment responsibilities and position with the other business, the
extent of past, current and potential competition or conflict between the
Company and the other business, the effect on the Company's customers,
suppliers and competitors, and such other considerations as are deemed
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relevant by the chief executive officer given the applicable facts and
circumstances.
"(c) In the event that the chief executive officer so determines
that an Option grantee has engaged in Competition, or has cooperated with
a competitor of the Company contrary to the best interests of the
Company, the Company shall have the discretion to cancel all unexercised
Options granted to the Option grantee and to rescind all Options
exercised within six months before the date that the Option grantee
entered into Competition (or so cooperated with a competitor). In the
case of cancellation of an unexercised Option, the cancellation shall be
effective upon the giving of written notification of cancellation to the
Option grantee, which notice shall be given within the period during
which such Option would, by its terms, otherwise be exercisable. In the
case of rescission, the Company shall notify the Option grantee in
writing of any such rescission within six months after the date of
termination of employment with the Company. Within ten days after
receiving such notice from the Company, the Option grantee (or his
permitted transferee) shall pay to the Company the amount of any gain
realized or payment received as a result of the rescinded exercise. Such
payment shall be made either in cash or by returning to the Company the
number of shares of Class A Common Stock that the Option grantee (or his
permitted transferee) received in connection with the rescinded exercise.
"(d) The written agreement evidencing the Options to be subject
to the provisions of this Section 26 shall also include a covenant that
during the term of the Option grantee's employment with the Company and
for six months following termination of such employment, the Option
grantee shall not engage in Competition. Such provision shall also state
that the Company will be entitled to bring an action at law or equity to
enforce the terms of such covenant.
"(e) Notwithstanding any other provision hereof to the contrary,
a retired Option grantee will not be deemed to be engaged in Competition
if he or she purchases as an investment or otherwise, stock or other
securities of a competitor business so long as such business is listed
upon a recognized securities exchange or traded over-the-counter, and
such investment does not represent a greater than five percent equity
interest in the business."
2. Except as amended hereby, the Plan shall remain in full force and
effect in accordance with its terms.
This Amendment No. 6 to the Genesee & Wyoming Inc. 1996 Stock Option Plan
was authorized, approved and adopted by the Board of Directors of the Company on
May 23, 2000.
/s/ Thomas P. Loftus
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Thomas P. Loftus, Assistant Secretary
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