<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 29, 1997
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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RAILAMERICA, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 65-0328006
- ------------------------------- ----------------------
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
301 YAMATO ROAD, SUITE 1190
BOCA RATON, FL 33431
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
STOCK INCENTIVE PLAN
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(FULL TITLE OF THE PLAN)
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GARY O. MARINO
CHAIRMAN, PRESIDENT, CHIEF EXECUTIVE OFFICER AND TREASURER
RAILAMERICA, INC.
301 YAMATO ROAD, SUITE 1190
BOCA RATON, FLORIDA 33431
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(Name and address of agent for service)
(561) 994-6015
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(Telephone number, including area code, of agent for service)
COPY TO:
GARY M. EPSTEIN, ESQ.
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0894
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE(1) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK,
$.001 PAR VALUE......... 50,000 SHARES $5.00 $250,000 $76
====================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) on the basis of sale price of the
Common Stock on August 28, 1997 for an aggregate of 50,000 shares being
registered, which will be granted under the Stock Incentive Plan.
</TABLE>
<PAGE> 2
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1996, as amended;
(b) all other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
since the end of fiscal year 1996; and
(c) the descriptions of the Registrant's Common Stock and related matters
set forth under the captions "Description of Capital Stock" and
"Dividend Policy" in the Registrant's Registration Statement on Form
S-2 (File No. 333-22479) filed under the Securities Act of 1933, as
amended (the "Act"), including any amendments to such descriptions in
such Registration Statement.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference 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.
The Registrant has authority under Section 145 of the Delaware General
Corporation Law to indemnify its directors and officers to the extent provided
for in such statute. The Registrant's Amended and Restated Certificate of
Incorporation provides that the Registrant shall indemnify and advance expenses
on behalf of its officers and directors to the fullest extent not prohibited by
law. The Registrant has also entered into agreements with certain of its
officers and directors wherein it has agreed to indemnify each of them to the
fullest extent permitted by law.
The Registrant's Amended and Restated Certificate of Incorporation limits
the liability of Directors to the maximum extent permitted by Delaware General
Corporation Law. Delaware law provides that the directors of a corporation will
not be personally liable to such corporation or its stockholders for monetary
damages for breach of their fiduciary duties as directors, except for liability
(i) for any breach of their duty of loyalty to the corporation or its
stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the Delaware General Corporation Law; or (iv) for any
transaction from which the director derives an improper personal benefit. The
Registration's Amended and Restated Certificate of Incorporation provides that
the Registrant shall indemnify its Directors and Officers to the fullest extent
permitted by Delaware law, except against actions by the Registrant approved by
the Board of Directors, requires the Registrant to advance expenses to such
Directors and Officers to defend any action for which rights of indemnification
are provided in the Certificate of Incorporation, and also permits the Board of
Directors to grant such rights to its employees and agents.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought, nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
II-1
<PAGE> 3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See "Exhibit Index" on page II-4 below.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(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
Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i)
and (a)(1)(ii) shall not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the 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 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 the 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 Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, 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 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 Act and will be governed by the final adjudication of
such issue.
II-2
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certified that it has reasonable grounds to believe it meets all the
requirements for filing on Form S-8 and had duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boca Raton, State of Florida, as of the 29th day of
August, 1997.
RAILAMERICA, INC.
By:/s/ GARY O. MARINO
-------------------------------------
Gary O. Marino, Chairman, President,
Chief Executive Officer and Treasurer
(Duly Authorized Representative)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Gary O. Marino and Larry W. Bush his true
and lawful attorneys-in-fact, each acting alone, with full powers of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this Registration Statement, and to file the same,
with exhibits thereto, and other documents to be filed in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact or their substitutes, each acting alone, may
lawfully do or cause to be done by virtue hereof.
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 as of August 29, 1997.
NAME TITLE DATE
/s/ Gary O. Marino Chairman, President, Chief August 29, 1997
- ---------------------- Executive Officer and Treasurer
Gary O. Marino Principal Executive Officer and
Principal Financial Officer
/s/ John H. Marino Vice Chairman, Senior August 29, 1997
- ---------------------- Transportation Officer and
John H. Marino Assistant Secretary
/s/ Douglas R. Nichols Director August 29, 1997
- ----------------------
Douglas R. Nichols
/s/ Richard Rampell Director August 29, 1997
- ----------------------
Richard Rampell
/s/ Donald D. Redfearn Executive Vice President August 29, 1997
- ---------------------- and Director
Donald D. Redfearn
/s/ John M. Sullivan Director August 29, 1997
- ----------------------
John M. Sullivan
/s/ Charles Swinburn Director August 29, 1997
- ----------------------
Charles Swinburn
/s/ Robert F. Toia Director August 29, 1997
- ----------------------
Robert F. Toia
/s/ Larry W. Bush Controller August 29, 1997
- ---------------------- (Principal Accounting Officer)
Larry W. Bush
<PAGE> 5
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
4.1 Registrant's Amended and Restated Articles of Incorporation
(1)
4.2 Registrant's Bylaws (2)
4.3 Stock Incentive Plan
5.1 Opinion of Greenberg Traurig Hoffman Lipoff Rosen &
Quentel, P.A.
23.1 Consent of Coopers & Lybrand LLP
23.2 Consent of Greenberg Traurig Hoffman Lipoff Rosen &
Quentel, P.A.(contained in its opinion filed as Exhibit 5.1
hereto)
24.1 Power of Attorney is included in the Signatures section of this
Registration Statement
- ----------------------------
(1) Incorporated by reference to Exhibit 4.1 filed with the Registrant's
Form 10-QSB (File No.0-20618)
(2) Incorporated by reference to Exhibit 4.2 filed with the Registrant's
Form 10-QSB (File No.0-20618)
<PAGE> 1
EXHIBIT 4.3
STOCK INCENTIVE PLAN
The Stock Incentive Plan shall provide for the following:
1. RailAmerica shall reserve 50,000 shares of RailAmerica common stock (the
"Pool Shares"), to be issued on the Distribution Date (as defined below).
2. The reserved Pool Shares shall be divided into two groups, with 20,000
reserved Pool Shares being allocated to the "Supervisory Group Pool" and 30,000
reserved Pool Shares allocated to the "Production Group Pool".
3. Employees in either group will be able to participate in the Stock
Incentive Plan ("Eligible Employees") under the following conditions:
(a) An Eligible Employee must be employed full-time at Kalyn at the
time of the closing of the purchase of the stock of Kalyn by Kalyn
Acquisition Corp. (the "Closing Date").
(b) An Eligible Employee must remain employed full-time at Kalyn
continuously for a period of three years following the Closing Date.
(c) Any employee that is terminated without cause by Kalyn during such
three year period as the result of a slow down in Kalyn's business will be
an Eligible Employee entitled to participate in the pool provided that such
employee remains willing to reestablish employment with Kalyn, upon Kalyn's
request.
(d) No employee that voluntarily terminates his employment with Kalyn
or is terminated for cause prior to the end of the three year period shall
be an Eligible Employee.
(e) No employee that was a shareholder of Kalyn prior to the Closing
Date shall be an Eligible Employee.
4. Three years from the Closing Date (the "Distribution Date") RailAmerica
shall issue the Supervisory Group Pool and the Production Group Pool as follows:
(a) The number of reserved Pool Shares in the Supervisory Group Pool
shall be issued equally to the Eligible Employees that are members of the
Supervisory Group.
(b) The number of reserved Pool Shares in the Production Group shall
be issued equally to the Eligible Employees that are members of the
Production Group.
5. At the time the Pool Shares are issued to the Eligible Employees, they
shall be fully registered and freely tradable, provided that such registration
may be made pursuant to an S-8 registration with the Securities and Exchange
Commission or provided that the S.E.C. issues a no-action letter stating that
the Pool Shares are exempt from registration.
6. At RailAmerica's option, RailAmerica, in lieu of distribution all of or
any part of the Pool Shares to any or all former Kalyn employees who are
Eligible Employees pursuant to Section 3(c) above, RailAmerica may make a cash
payment so that such Eligible Employee may purchase the number of RailAmerica
Shares that he or she would be entitled to receive on the open market in the
<PAGE> 2
event the Pool Shares to be issued to such Eligible Employee is not permitted to
be registered pursuant to an S-8 registration with the Securities and Exchange
Commission. Such cash payment shall be an amount sufficient to purchase such
shares, including brokerage commissions, and must be used by such Eligible
Employee to purchase such shares of RailAmerica on the open market.
7. RailAmerica shall have no obligation to issue the Pool Shares until the
Distribution Date. The creation of the pool or the reserve of the Pool Shares
shall not be deemed to create any trust or fiduciary relationship between
RailAmerica and/or Kalyn and the Eligible Employees. The Eligible Employees
shall have no rights as shareholders of RailAmerica unless and until they are
issued their respective share of the Pool Shares.
<PAGE> 1
EXHIBIT 5.1
OPINION OF GREENBERG TRAURIG HOFFMAN LIPOFF ROSEN & QUENTEL, P.A.
August 29, 1997
RailAmerica, Inc.
301 Yamato Road
Suite 1190
Boca Raton, Florida 33431
RE: REGISTRATION STATEMENT ON FORM S-8 FOR
RAILAMERICA INC.'S STOCK INCENTIVE PLAN
Ladies and Gentlemen:
On the date hereof, RailAmerica, Inc. a Delaware corporation ("the
Company"), sent for filing with the Securities and Exchange Commission ("the
Commission"), a Registration Statement on Form S-8 (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Act"). The
Registration Statement relates to the issuance by the Company of up to 50,000
shares of the Company's Common Stock, par value $.001 per share (the "Common
Stock"), pursuant to the Company's Stock Incentive Plan, as amended (the "Stock
Incentive Plan"). We have acted as counsel to the Company in connection with the
preparation and filing of the Registration Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Certificate of
Incorporation and Bylaws of the Company; (ii) records of corporate proceedings
of the Company authorizing the Stock Incentive Plan; (iii) the Stock Incentive
Plan; (iv) the Registration Statement and exhibits thereto; and (v) such other
documents and instruments as we have deemed necessary for the expression of the
opinions herein contained. In making the foregoing examinations, we have assumed
the genuineness of all signatures and the authenticity of all documents
submitted to us as originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies. As to various
questions of fact material to this opinion, we have relied, to the extent we
deemed reasonably appropriate, upon representations of officers or directors of
the Company and upon documents, records and instruments furnished to us by the
Company, without independently checking or verifying the accuracy of such
documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Company presently has available at least 50,000 shares of authorized and
unissued Common Stock from which the 50,000 shares of Common Stock proposed to
be distributed under the Stock Incentive Plan may be issued. In addition,
assuming that the Company maintains an adequate number of authorized but
unissued shares of Common Stock available for issuance to those persons who are
eligible, and that the consideration for the underlying shares of Common Stock
issued pursuant to the distribution, is actually received by the Company as
provided in the Stock Incentive Plan, we are of the opinion that the shares of
Common Stock issued pursuant to the Stock Incentive Plan, granted under and in
accordance with the terms of the Stock Incentive Plan will be duly and validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
By: /s/ Gary M. Epstein
--------------------
Gary M. Epstein
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated March 21, 1997, on our audits of the
consolidated financial statements of RailAmerica, Inc. and its subsidiaries as
of December 31, 1996 and 1995, and for the years then ended, appearing in the
Company's Annual Report on Form 10-KSB for the year ended December 31, 1996.
COOPERS & LYBRAND
/s/ Coopers & Lybrand
------------------------
West Palm Beach, Florida
August 29, 1997
