SCHEDULE 14C
(Rule 14c-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(C)
OF THE SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box:
[ ] Preliminary information statement [ ] Confidential, for Use of the
Commission Only (as permitted
[x] Definitive information statement by Rule 14c-5(d)(2))
GENESEE & WYOMING INC.
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(Name of Registrant as Specified in Charter)
Payment of Filing Fee (Check the appropriate box):
[x] No fee required.
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), or 14c-5(g).
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and -011.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.
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(4) Date Filed:
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<PAGE>
GENESEE & WYOMING INC.
66 FIELD POINT ROAD
GREENWICH, CONNECTICUT 06830
October 23, 2000
Dear Stockholder:
We have obtained the written consent of certain of our stockholders
of record as of September 5, 2000 to approve an amendment to our Restated
Certificate of Incorporation authorizing 1,000,000 shares of Preferred Stock,
par value $.01 per share, which may be issued in series from time to time.
This amendment would change the authorized shares of capital stock to provide
for 1,000,000 shares of authorized Preferred Stock, par value $.01 per share,
in addition to the 12,000,000 shares of Class A Common Stock, par value $.01
per share, and 1,500,000 shares of Class B Common Stock, par value $.01 per
share, which are currently authorized. The amendment will also allow the
issuance of the Convertible Preferred referred to in the attached information
statement. The amendment will be reflected in a newly Restated Certificate of
Incorporation. Our board of directors has also approved the amendment. Your
consent is not required and is not being solicited in connection with these
actions.
Pursuant to Section 228 of the Delaware General Corporation Law,
you are hereby being provided with notice of the approval of these actions by
less than unanimous written consent of our stockholders. Pursuant to the
Securities Exchange Act of 1934, with this letter you are being furnished an
information statement relating to these actions.
By Order of the Board of Directors
/s/ Mortimer B. Fuller, III
-----------------------------------
Mortimer B. Fuller, III
Chairman and Chief Executive Officer
<PAGE>
GENESEE & WYOMING INC.
66 FIELD POINT ROAD
GREENWICH, CONNECTICUT 06830
INFORMATION STATEMENT
GENERAL
This information statement is being mailed on or about October 23,
2000 to holders of record as of September 5, 2000 of Class A Common Stock,
par value $.01 per share (the "Class A Common Stock") and Class B Common
Stock, par value $.01 per share (the "Class B Common Stock" and together with
the Class A Common Stock, the "Common Stock") of Genesee & Wyoming Inc. (the
"Company"). This statement is furnished in connection with the taking of
action by written consent of the holders of a majority of the voting power of
the outstanding shares of Common Stock approving an amendment to our Restated
Certificate of Incorporation authorizing 1,000,000 shares of Preferred Stock,
par value $.01 per share (the "Preferred Stock"), which may be issued in
series from time to time. This amendment would change the authorized shares
of capital stock to provide for 1,000,000 shares of authorized Preferred
Stock, par value $.01 per share, in addition to the 12,000,000 shares of
Class A Common Stock, par value $.01 per share, and 1,500,000 shares of Class
B Common Stock, par value $.01 per share, which are currently authorized (the
"Amendment"). The Amendment will be reflected in a newly Restated Certificate
of Incorporation. WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT
TO SEND US A PROXY.
As of September 5, 2000, there were issued and outstanding 3,489,597
shares of Class A Common Stock and 845,447 shares of Class B Common Stock.
Each stockholder of record on September 5, 2000 is entitled to one vote for
each share of Class A Common Stock and ten votes for each share of Class B
Common Stock. The record date for purposes of the written consent to this
action was September 5, 2000. However, because holders of a majority of the
voting power of the outstanding shares of Common Stock have consented to the
Amendment and have sufficient voting power to approve the Amendment, no other
stockholder consents are being solicited and no stockholders' meeting is
being held in connection with these actions. No appraisal rights or other
similar rights are available to dissenters of the Amendment.
SECURITIES OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth as of September 5, 2000 certain
information concerning shares of Common Stock held by (i) each stockholder
known by the Company to own beneficially more than 5% of either class of
Common Stock, (ii) each director of the Company, (iii) the chief executive
officer and the four most highly compensated executive officers of the
Company, and (iv) all directors and executive officers of the Company as a
group.
<PAGE>
<TABLE>
<CAPTION>
Class A Class B
Common Stock Common Stock
Beneficially Beneficially
Owned Owned
------------ ------------
Name and Address of Beneficial Percent Percent of Percent of
Owner <F(1)> No. of Shares of Class No. of Shares Class Vote <F(2)>
------------------------------ ------------- -------- ------------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Mortimer B. Fuller, III <F(3)> 332,736 9.0% 658,283 77.9% 56.9%
James M. Fuller <F(4)>. . . . . 51,530 1.5 11,100 1.3 1.4
Louis S. Fuller <F(5)>. . . . . 109,144 3.1 133,144 15.7 12.1
C. Sean Day <F(6)> . . . . . . 2,750 - - - -
Robert M. Melzer <F(7)> . . . 8,021 0.2 - - -
John M. Randolph <F(8)> . . . 30,600 0.9 7,400 0.9 0.9
Philip J. Ringo <F(9)> . . . . 12,692 0.4 - - 0.1
M. Douglas Young <F(10)> . . . 2,574 - - - -
Charles N. Marshall <F(11)>. . 77,500 2.2 - - 0.6
Charles W. Chabot <F(12)> . . 30,840 0.9 - - 0.3
Mark W. Hastings <F(13)>. . . . 62,175 1.8 7,400 0.9 1.1
Paul M. Victor <F(14)> . . . . 5,625 0.2 - - -
FMR Corp. <F(15)> . . . . . . . 440,300 12.6 - - 3.7
82 Devonshire Street
Boston, Massachusetts
02109
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Brandywine Asset Management, Inc. 203,962 6.0 - - 1.8
<F(16)>. . . . . . . . . . . .
Three Christina Centre
201 North Market Street
Suite 1200
Wilmington, Delaware
19801
All Directors and Executive 885,511 22.2 817,327 96.7 72.8
Officers
as a Group (20 persons) <F(17)>
</TABLE>
[FN]
<F(1)> Unless otherwise indicated, each stockholder shown on the table has
sole voting and investment power with respect to the shares beneficially
owned by him or it. The address of each of the directors and executive
officers of the Company is c/o Genesee & Wyoming Inc., 66 Field Point Road,
Greenwich, CT 06830. Percentages of less than 0.1% have been omitted from the
table.
<F(2)> Reflects the voting power of the share holdings shown on the table as
a result of the fact that the Class A Common Stock is entitled to one vote
per share and the Class B Common Stock is entitled to ten votes per share.
<F(3)> The amounts shown include: (i) 27,481 shares of Class A Common Stock
and 478,243 shares of Class B Common Stock owned by Mr. Fuller individually;
(ii) 25,900 shares of Class A Common Stock held by a family trust for the
benefit of Mr. Fuller and others, of which Mr. Fuller is sole trustee; (iii)
58,000 shares of Class A Common Stock and 82,171 shares of Class B Common
Stock held by the Estate of Frances A. Fuller, of which Mr. Fuller is
co-executor (which shares are subject to a Voting Agreement pursuant to which
Mr. Fuller has been granted an irrevocable proxy through March 20, 2008);
(iv) 21,498 shares of Class A Common Stock held by Overlook Estate
Foundation, Inc., of which Mr. Fuller is President; (v) presently exercisable
options to purchase an aggregate of 199,857 shares of Class A Common Stock;
and (vi) presently exercisable third party options to purchase an aggregate
of 97,869 shares of Class B Common Stock.
<F(4)> The amounts shown include: (i) 9,100 shares of Class A Common Stock
and 11,100 shares of Class B Common Stock owned by Mr. Fuller individually;
(ii) an aggregate of 33,930 shares of Class A Common Stock held by family
trusts for the benefit of Mr. Fuller and others, of which Mr. Fuller is
co-trustee; (iii) 500 shares of Class A Common Stock owned by Mr. Fuller's
wife, as to which shares he disclaims beneficial ownership; and (iv) a
<PAGE>
presently exercisable option to purchase 8,000 shares of Class A Common
Stock.
<F(5)> The amounts shown include: (i) 133,144 shares of Class B Common Stock
owned by Mr. Fuller individually; (ii) 41,144 shares of Class A Common Stock
owned jointly by Mr. Fuller and his wife; (iii) 60,000 shares of Class A
Common Stock owned by Mr. Fuller's wife, as to which shares he disclaims
beneficial ownership; and (iv) a presently exercisable option to purchase
8,000 shares of Class A Common Stock.
<F(6)> The amount shown includes: (i) 2,500 shares of Class A Common Stock
owned by Mr. Day individually; and (ii) units under the Company's Deferred
Stock Plan for Non-Employee Directors (the "Deferred Stock Plan")
representing 250 shares of Class A Common Stock.
<F(7)> The amount shown includes: (i) 3,000 shares of Class A Common Stock
owned by Mr. Melzer individually; (ii) presently exercisable options to
purchase an aggregate of 3,000 shares of Class A Common Stock; and (iii)
units under the Deferred Stock Plan representing 2,021 shares of Class A
Common stock.
<F(8)> The amounts shown include: (i) 21,600 shares of Class A Common Stock
and 7,400 shares of Class B Common Stock held by a trust for the benefit of
Mr. Randolph, of which he is co-trustee; (ii) 1,000 shares of Class A Common
Stock held by a trust for the benefit of Mr. Randolph's wife, of which he is
co-trustee and as to which shares he disclaims beneficial ownership; and
(iii) a presently exercisable option to purchase 8,000 shares of Class A
Common Stock.
<F(9)> The amount shown includes: (i) 3,700 shares of Class A Common Stock
owned by Mr. Ringo's wife, as to which shares he disclaims beneficial
ownership; (ii) a presently exercisable option to purchase 8,000 shares of
Class A Common Stock; and (iii) units under the Deferred Stock Plan
representing 992 shares of Class A Common Stock.
<F(10)> The amount shown includes: (i) a presently exercisable option to
purchase 667 shares of Class A Common Stock; and (ii) units under the
Deferred Stock Plan representing 1,907 shares of Class A Common Stock.
<F(11)> The amount shown includes: (i) 60,000 shares of Class A Common Stock
owned by Mr. Marshall individually; and (ii) presently exercisable options to
purchase an aggregate of 17,500 shares of Class A Common Stock.
<F(12)> The amount shown includes: (i) 2,715 shares of Class A Common Stock
owned by Mr. Chabot individually; and (ii) presently exercisable options to
purchase an aggregate of 28,125 shares of Class A Common Stock.
<PAGE>
<F(13)> The amounts shown include: (i) 7,400 shares of Class A Common Stock
and 7,400 shares of Class B Common Stock owned jointly by Mr. Hastings and
his wife; (ii) 400 shares of Class A Common Stock beneficially owned by Mr.
Hastings' minor children, as to which shares he disclaims beneficial
ownership; and (iii) presently exercisable options to purchase an aggregate
of 54,375 shares of Class A Common Stock.
<F(14)> The amount shown consists of presently exercisable options to
purchase shares of Class A Common Stock.
<F(15)> The amount shown and the following information is derived from a
Schedule 13G dated April 10 , 2000 filed by FMR Corp., Edward C. Johnson 3d
and Abigail P. Johnson. Fidelity Management & Research Company ("Fidelity"),
a wholly-owned subsidiary of FMR Corp. and an investment adviser registered
under Section 203 of the Investment Advisers Act of 1940, is the beneficial
owner of 440,300 shares or 12.751% of the Class A Common Stock outstanding of
the Company as a result of acting as investment adviser to various investment
companies (the "Funds") registered under Section 8 of the Investment Company
Act of 1940. The ownership of one investment company, Fidelity Low Priced
Stock Fund, amounted to 286,000 shares or 8.282% of the Class A Common Stock
outstanding. Edward C. Johnson 3d, FMR Corp., through its control of
Fidelity, and the Funds each has sole power to dispose of the 440,300 shares
owned by the Funds. Neither FMR Corp. nor Edward C. Johnson 3d, Chairman of
FMR Corp., has the sole power to vote or direct the voting of the shares
owned directly by the Fidelity Funds, which power resides with the Funds'
Boards of Trustees. Fidelity carries out the voting of the shares under
written guidelines established by the Funds' Boards of Trustees. Members of
the Edward C. Johnson 3d family are the predominant owners of Class B shares
of common stock of FMR Corp., representing approximately 49% of the voting
power of FMR Corp. Mr. Johnson 3d owns 12.0% and Abigail Johnson owns 24.5%
of the aggregate outstanding voting stock of FMR Corp. Mr. Johnson 3d is
Chairman of FMR Corp. and Abigail P. Johnson is a Director of FMR Corp. The
Johnson family group and all other Class B shareholders have entered into a
shareholders' voting agreement under which all Class B shares will be voted
in accordance with the majority vote of Class B shares. Accordingly, through
their ownership of voting common stock and the execution of the shareholders'
voting agreement, members of the Johnson family may be deemed, under the
Investment Company Act of 1940, to form a controlling group with respect to
FMR Corp.
<F(16)> The amount shown and the following information has been provided by
Brandywine Asset Management, Inc. Brandywine Asset Management, Inc. has sole
power to vote 185,977 of such shares, shared power to vote 560 of such
shares, and sole power to dispose of all of such shares.
<F(17)> See footnotes (3) through (14) to this table. The amounts shown
include: (i) presently exercisable options to purchase an aggregate of
<PAGE>
489,398 shares of Class A Common Stock; (ii) presently exercisable third
party options to purchase an aggregate of 97,869 shares of Class B Common
Stock; and (iii) units under the Deferred Stock Plan representing an
aggregate of 5,170 shares of Class A Common Stock.
AUTHORIZATION OR ISSUANCE OF SECURITIES
OTHERWISE THAN FOR EXCHANGE FOR OUTSTANDING SECURITIES
The terms of any series of Preferred Stock, including dividend or
interest rates, conversion prices, voting rights, redemption prices, maturity
dates and similar matters will be determined by the Board of Directors from
time to time. The Preferred Stock may be sold in multiple series, from time
to time, either publicly under a registration statement filed with the
Securities and Exchange Commission or privately pursuant to exemptions from
the Securities Act of 1933, as amended.
The Board of Directors has recommended that the Restated Certificate
of Incorporation be amended to authorize 1,000,000 shares of Preferred Stock,
par value $.01 per share. Pursuant to the amendment, the Board of Directors
would be authorized, subject to any limitations prescribed by law, to provide
for the issuance of shares of Preferred Stock in series, and by filing a
certificate pursuant to the applicable law of the State of Delaware, to
establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences, and rights of the
shares of each such series and any qualifications, limitations or
restrictions thereof. Any such issuances could be authorized by the Board
of Directors without further action by the shareholders.
The authorization of 1,000,000 shares of Preferred Stock is intended
to provide additional flexibility to the Company for possible capital
reorganization, acquisitions, financings, exchange of securities, public
offerings and other corporate purposes. The Board of Directors believes that
authorizing the Company to issue Preferred Stock will provide the Company
with a capital structure better suited to meet the Company's short and long-
term capital needs. By authorizing such shares at this time, the Board of
Directors would be in a position to issue shares of Preferred Stock,
including the Convertible Preferred referred to below, without the delay of
calling a shareholders meeting or seeking written consents in lieu thereof if
one or more suitable opportunities present themselves to the Company.
On October 19, 2000, the Company entered into a Stock Purchase
Agreement with The 1818 Fund III, L.P., an affiliate of Brown Brothers
Harriman & Co., (the "Fund") pursuant to which the Company agreed to sell to
the Fund up to $25 million of 4.0% Senior Redeemable Convertible Preferred
Stock, Series A (the "Convertible Preferred"). The Convertible Preferred has
a conversion price of $23.00 per share, a cash coupon of 4.0%, is subject to
redemption at the option of the Company on or after the fourth anniversary of
<PAGE>
the original date of issuance and is subject to mandatory redemption on the
eighth anniversary of the original date of issuance.
The issuance of Preferred Stock with voting rights could have an
adverse effect on the voting power of the holders of Common Stock by
increasing the number of outstanding shares having voting rights.
Furthermore, the holders of Convertible Preferred will vote, on an as-
converted basis, on all matters voted on by holders of Common Stock, voting
together as a single class with other shares entitled to vote thereon. The
Convertible Preferred also has a class vote with respect to, among other
things, the authorization of any shares of senior stock or parity stock. The
conversion of the Convertible Preferred will increase the number of shares of
Class A Common Stock outstanding by an amount equal to the aggregate
principal amount of Convertible Preferred outstanding divided by the
conversion price then in effect (other than with respect to any fractional
shares, for which payment will be made in cash). In addition, if the Board
of Directors further authorizes the issuance of Preferred Stock with
conversion rights, the number of common shares outstanding could potentially
be further increased up to the authorized amount. The issuance of the
Convertible Preferred will, and the issuance of additional Preferred Stock
may, decrease the amount of earnings and assets available for distribution to
holders of Common Stock and such issuances could also have the effect of
delaying, deterring or preventing a change of control of the Company through
the acquisition of shares of Common Stock, including a change of control that
could result in a premium being offered over the market price for the Common
Stock.
AMENDMENT TO CERTIFICATE OF INCORPORATION
On August 31, 2000, our board of directors adopted resolutions
authorizing, and on October 6, 2000 the holders of in excess of a majority of
the voting power of the outstanding shares of Common Stock approved, by
written consent, an amendment to our Restated Certificate of Incorporation
authorizing 1,000,000 shares of Preferred Stock, par value $.01 per share,
which may be issued in series from time to time. The Amendment would change
the authorized shares of capital stock to provide for 1,000,000 shares of
Preferred Stock, par value $.01 per share, in addition to the 12,000,000
shares of Class A Common Stock, par value $.01 per share and 1,500,000 of
Class B Common Stock, par value $.01 per share, which are currently
authorized. The Amendment will be reflected in a new Restated Certificate of
Incorporation of the Company.
UPON WRITTEN REQUEST OF ANY STOCKHOLDER, A COPY OF OUR ANNUAL REPORT
ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999, INCLUDING THE
FINANCIAL STATEMENTS AND THE SCHEDULES THERETO, AND THE QUARTERLY REPORTS FOR
THE FIRST AND SECOND FISCAL QUARTERS IN THE FISCAL YEAR BEGINNING JANUARY 1,
<PAGE>
2000 REQUIRED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE l3a-1 UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS
AMENDED, MAY BE OBTAINED WITHOUT CHARGE FROM MARK W. HASTINGS, SECRETARY,
GENESEE & WYOMING INC., 66 FIELD POINT ROAD, GREENWICH, CONNECTICUT 06830.
By Order of the Board of Directors
/s/ Mortimer B. Fuller, III
----------------------------------
Mortimer B. Fuller, III
Chairman and Chief Executive Officer
October 23, 2000
