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:
[x] Preliminary information statement [ ] Confidential, for Use of
the Commission Only (as
permitted
[ ] Definitive information statement by Rule 14c-5(d)(2))
GENESEE & WYOMING INC.
(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:
(2) Aggregate number of securities to which transaction applies:
(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):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] 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.
<PAGE>
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.
(3) Filing Party:
(4) Date Filed:
<PAGE>
GENESEE & WYOMING INC.
66 FIELD POINT ROAD
GREENWICH, CONNECTICUT 06830
October __, 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 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 __,
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
<PAGE>
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.
<TABLE>
<CAPTION>
<C> <S> <S> <S> <S> <S>
Class A Class B
Common Stock Common Stock
Beneficially Beneficially
Owned Owned
Name and Address of Beneficial No. of Shares Percent No. of Shares Percent of Percent of
Owner <F(1)> of Class Class Vote <F(2)>
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)> . . . . . . . . . .
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
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>
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[FN]
(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.
<PAGE>
(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.
(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.
(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 presently
exercisable option to purchase 8,000 shares of Class A Common Stock.
(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.
(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.
(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.
(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.
<PAGE>
(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.
(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.
(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.
(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.
(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.
(14) The amount shown consists of presently exercisable options to purchase
shares of Class A Common Stock.
(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
<PAGE>
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.
(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.
(17) See footnotes (3) through (14) to this table. The amounts shown include:
(i) presently exercisable options to purchase an aggregate of 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,
<PAGE>
the Board of Directors would be in a position to issue shares of Preferred
Stock 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.
The issuance of Preferred Shares 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. In
addition, if the Board of Directors authorizes the issuance of Preferred
Stock with conversion rights, the number of common shares outstanding could
potentially be increased up to the authorized amount. The issuance of
Preferred Stock could decrease the amount of earnings and assets available
for distribution to holders of Common Stock and the issuance 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 newly 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
<PAGE>
JANUARY 1, 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 __, 2000
