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As filed with the Securities and Exchange Commission on February 5, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-2
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)
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<S> <C> <C>
Delaware 4011 65-0328006
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
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301 YAMATO ROAD
SUITE 1190
BOCA RATON, FLORIDA 33431
(407) 994-6015
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
GARY O. MARINO
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
RAILAMERICA, INC.
301 YAMATO ROAD
SUITE 1190
BOCA RATON, FLORIDA 33431
(407) 994-6015
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code of Agent for Service)
Please send copies of all communications to:
GARY EPSTEIN, ESQ.
GREENBERG, TRAURIG, HOFFMAN, LIPOFF, ROSEN & QUENTEL, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box.|X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering.|_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration number of the earlier effective registration statement for the
same offering.|_|
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box.|_|
Pursuant to Rule 416, this Registration Statement also covers such
indeterminable number of additional shares of Common Stock and Warrants, if any,
which may become issuable by virtue of the anti-dilution provisions of the
Warrants.
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PROPOSED MAXIMUM PROPOSED
TITLE OF SHARES AMOUNT TO BE AGGREGATE PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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Common Stock (par value
$.001 per share)........... 127,500 shares (2) $5.92 $754,800.00 $229
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(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low prices of the Company's Common
Stock as of January 31, 1997, as reported by the National Association of
Securities Dealers Automated Quotation System.
(2) Includes 127,500 shares of Common Stock issuable pursuant to the exercise
of a warrant giving holder the right to purchase 127,500 shares of Common
Stock together with such indeterminate number of shares as may be issuable
by reason of the antidilution provisions contained in such warrant.
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PROSPECTUS
RAILAMERICA, INC.
127,500 Shares of Common Stock
This Prospectus relates to the sale of up to 127,500 shares (the "Shares")
of common stock, par value $.001 per share (the "Common Stock"), of RailAmerica,
Inc., a Delaware corporation (the "Company"), proposed to be disposed of from
time to time by Eric D. Gerst (the "Selling Shareholder"). See "Selling
Shareholder." The Company will not have any interest in the proceeds of the sale
of Shares offered hereby.
The Selling Shareholder has advised the Company that he may from time to
time sell all or part of the Shares in one or more transactions (which may
involve block transactions) in the over-the-counter market, on the National
Association of Securities Dealers Automated Quotation System, Inc. ("NASDAQ")(or
any exchange on which the Common Stock may then be listed), in negotiated
transactions, through the writing of options on the Shares (whether such options
are listed on an options exchange or otherwise), or a combination of such
methods of sale, at market prices prevailing at the time of such sales or at
negotiated prices. The Selling Shareholder may effect such transactions by
selling the Shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Shareholder and/or purchasers of the Shares for
whom they may act as agent (which compensation may be in excess of customary
commissions). The Selling Shareholder may also pledge the Shares as collateral
for margin accounts or loans and the Shares could be resold pursuant to the
terms of such accounts or loans. In connection with such sales, the Selling
Shareholder and any participating brokers and dealers may be deemed to be
"underwriters" as defined in the Securities Act of 1933, as amended. Neither the
Company nor the Selling Shareholder can presently estimate the amount of
commissions or discounts, if any, that will be paid by the Selling Shareholder
on account of his sale of the Common Stock from time to time. The Company will
pay all expenses, estimated to be approximately 17,000, in connection with this
offering, other than underwriting and brokerage commissions, discounts, fees and
counsel fees and expenses incurred by the Selling Shareholder.
The Company's Common Stock is listed on the NASDAQ Small-Cap market under
the symbol "RAIL." On January 31, 1997, the average of the high and low prices
for the Common Stock as reported by the NASDAQ Small-Cap market was $5.92 per
share.
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THE SECURITIES OFFERED HEREBY ARE HIGHLY SPECULATIVE. FOR A
DISCUSSION OF CERTAIN RISKS IN EVALUATING THE INVESTMENT IN THE
SHARES, SEE "RISK FACTORS" ON PAGES 2 TO 5.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is February 5, 1997.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Atlanta Regional Office of the Commission at
3475 Lenox Road, N.E., Suite 1000, Atlanta, Georgia 30326-7232. Copies of such
materials may also be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. Copies of each document may also be obtained through the Commission's
internet address at http://www.sec.gov. The Common Stock of the Company is
quoted on the NASDAQ Small-Cap Market. Reports, proxy statements and other
information concerning the Company may be inspected at the offices of NASDAQ,
1735 K. Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Common Stock offered hereby. This Prospectus, which is a part of the
registration statement, does not contain all the information set forth in, or
annexed as exhibits to, such registration statement, certain portions of which
have been omitted pursuant to rules and regulations of the Commission. For
further information with respect to the Company and the Common Stock, reference
is made to such registration statement, including the exhibits thereto, copies
of which may be inspected and copied at the aforementioned facilities of the
Commission. Copies of such registration statement, including the exhibits, may
be obtained from the Public Reference Section of the Commission at the
aforementioned address upon payment of the fee prescribed by the Commission.
Copies of each document may also be obtained through the Commission's internet
address at http://www.sec.gov. The summaries contained in this Prospectus of
additional information included in the Registration Statement or any exhibit
thereto are qualified in their entirety by reference to such information or
exhibit.
THIS PROSPECTUS IS ACCOMPANIED BY A COPY OF THE COMPANY'S ANNUAL REPORT ON
FORM 10-KSB FOR THE YEAR ENDED DECEMBER 31, 1995
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents which have been filed by the Company with the
Commission pursuant to the Exchange Act or the Securities Act are incorporated
by reference in this Prospectus:
- The Company's Annual Report on Form 10-KSB for the year ended December
31, 1995.
- The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended March 31, 1996.
- The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended June 30, 1996.
- The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended September 30, 1996.
- The Company's Report on Form 8-K dated September 6, 1996.
- The Company's Report on Form 8-K dated September 30, 1996.
- The Company's Report on Form 8-K dated October 11, 1996.
- The Company's Report on Form 8-K/A dated December 11, 1996.
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- The Company's Report on Form 8-K dated January 15, 1997.
- The Company's Definitive Proxy Statement on Schedule 14A as filed with
the Commission on June 28, 1996.
- All other reports filed by the Registrant pursuant to Section 13(a) or 15
(d) of the Exchange Act since the end of fiscal year 1995.
In addition, all documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Common Stock offered hereby
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing of such documents.
Any information contained herein or in a document incorporated by reference
herein shall be deemed to be modified or replaced for purposes of this
Prospectus to the extent that information contained herein or in any other
subsequently filed document which also is incorporated by reference herein
modifies or replaces such information. Any such information so modified or
replaced shall not be deemed, except as so modified or replaced, to constitute a
part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus is delivered,
upon the written or oral request of any such person, a copy of any and all of
the above documents (not including exhibits to any of such documents unless such
exhibits are specifically incorporated by reference into such documents). Such
requests should be addressed to the Secretary, RailAmerica, Inc., 301 Yamato
Road, Suite 1190, Boca Raton, Florida 33431.
RISK FACTORS
The Securities offered hereby involve a high degree of risk. Prospective
investors should carefully consider, among other things, the following factors
before a decision is made to purchase any Common Stock.
DEPENDENCE ON INDUSTRY AND GOVERNMENTAL AGENCY DEMAND FOR TRUCK TRAILERS.
Through its wholly-owned subsidiary, Kalyn/Siebert, Inc. ("Kalyn"), the Company
manufacturers a broad range of specialty truck trailers. Kalyn's operations are
dependent on the demand for its products. Unit sales of new truck trailers have
historically been subject to substantial cyclical variation. In addition,
periods of economic recession in the United States have historically caused
declines in the profitability of the trucking industry, have had a materially
adverse effect on industry-wide demand for new truck trailers and may have a
materially adverse effect on Kalyn's results of operations. Future economic
downturns or cyclical decreases in demand for truck trailers would likely have a
material adverse effect on Kalyn and the Company. Kalyn's sales to governmental
agencies accounted for approximately 35% of its sales in the year ended December
31, 1996. In the year ended December 31, 1995, sales to commercial accounts and
governmental agencies represented 71% and 29%, respectively, of Kalyn's sales.
The majority of Kalyn's sales to governmental agencies are to the ("GSA"), the
purchasing arm of non-military agencies, and to TACOM, a department of defense
unit established to consolidate purchases for various branches of the military.
Accordingly, Kalyn believes the loss of GSA's and/or TACOM's business could have
a material adverse effect on Kalyn.
DEPENDENCE ON ONE TRUCK TRAILER MANUFACTURING SITE; DEPENDENCE ON KALYN
REVENUES. Kalyn operates one manufacturing facility which, as of the date of
this Prospectus, was operating at approximately 50% of capacity. Sustained
growth of Kalyn's production and, in turn, its net sales are dependent on its
ability to cost efficiently increase production at its plant. In 1995, such
sales from Kalyn accounted for 59% of the Company's total revenues. Although
Kalyn accounted for a smaller percentage of revenues in the year ended December
31, 1996, a long-term interruption in the operation of Kalyn's plant, from labor
strikes, a natural disaster or other cause, whether or not covered by insurance,
could have a material adverse effect on Kalyn.
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DEPENDENCE ON SUPPLIERS. Kalyn's ability to manufacture truck trailers
is dependent upon receiving supplies, or components and raw materials from a
limited number of sources. To date, Kalyn has experienced no material
difficulties in procuring supplies, components or materials. However, if
deliveries of such items are delayed, Kalyn's production ability may be
decreased which could have a negative effect on Kalyn's results of operations.
RAILROAD OPERATIONS - DEPENDENCE ON AGRICULTURAL INDUSTRY. Through its
wholly-owned subsidiaries, the Company operates twelve short line railroads in
the States of Delaware, Michigan, Minnesota, Pennsylvania, Tennessee,
Washington, Indiana and Texas. The Company's traffic base in Michigan includes
agricultural commodities, automotive parts, chemicals and fertilizer, ballast
and other stone products. Its traffic base in Tennessee includes wood chips,
paper, chemicals and processed foods. Traffic handled in Pennsylvania and
Delaware includes iron and steel products, chemicals, agricultural products,
lumber and processed foods. The Company's traffic base in Minnesota includes
agricultural products, aggregates, coal, plastics, lumber, denatured alcohol,
scrap iron and steel. The Company's traffic base in Texas consists of cotton,
sodium sulfate, chemicals, fertilizer, scrap iron and steel. The Company's
traffic base in Indiana consists of agricultural commodities and plastics. The
Company's traffic base in Washington consists of woodchips, lumber, minerals,
cement and agricultural products. A substantial portion of the Company's traffic
has consisted of agricultural commodities. As a result, the Company could be
materially and adversely affected by factors that generally affect the
agricultural industry in the regions in which it operates. Such factors include,
without limitation, the weather and fluctuations in agricultural prices. Sellers
of agricultural commodities typically hold back shipment of their products until
they deem prices to be advantageous. As a result, the number of carloads handled
by the Company and its recognition of revenue may vary significantly from period
to period as a result of fluctuations in the price for those commodities.
Shipments of agricultural commodities, on an overall basis, occur seasonally,
with the majority of the agricultural products being shipped from September
through May. As a result, the Company's revenues will normally be higher during
these months than during the summer. The Company believes that agricultural
commodities will continue to represent the primary component of the Company's
rail traffic base for the near future.
RELATIONSHIPS WITH CLASS I RAILROADS. The railroad industry in the United
States is dominated by a small number of large Class I carriers that have
substantial market control and negotiating leverage. Almost all of the traffic
on the Company's railroads is interchanged with Class I carriers. A decision by
any of these Class I carriers to discontinue transporting certain commodities or
to use alternate modes of transportation, such as motor carriers, could
adversely affect the Company's business.
The Company's ability to provide rail service to its customers depends in
large part upon its ability to maintain cooperative relationships with Class I
connecting carriers with respect to, among other matters, freight rates, car
supply, reciprocal switching, interchange and trackage rights. A deterioration
in the operations of or service provided by those connecting carriers, or in the
Company's relationship with its connecting carriers, could adversely affect the
Company's business. In addition, much of the freight transported by the
Company's railroads moves on railcars supplied by Class I carriers. Were these
carriers to reduce the number of railcars available for use by its railroads,
the Company might not be able to obtain replacement railcars on favorable terms.
ACQUISITION STRATEGY; POTENTIAL NEED FOR ADDITIONAL FINANCING; DILUTION.
The Company's business strategy includes the acquisition of additional railroad
properties or other transportation related businesses. The Company's ability to
implement this strategy is dependent on the availability of financing
alternatives for such acquisitions. There can be no assurance, however, that
such financing will be available or, if available, will be obtainable by the
Company on favorable terms. As of the date of this Prospectus, the Company had
22,185,987 shares of authorized but unissued common stock. The Company could
issue authorized but unissued common stock in the future to finance future
acquisitions on terms which could be dilutive to the stock ownership of existing
shareholders. Due to the Company's business strategy which places an emphasis on
additional acquisitions of transportation-related companies, it is anticipated
that deferred acquisition costs will continue to accumulate. Termination of
acquisition efforts prior to successful completion will result in write-downs or
write-offs of deferred acquisition costs and corresponding charges against
earnings. Depending on the deferred acquisition costs associated with a
terminated acquisition effort, these charges may be material.
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GOVERNMENTAL REGULATION OF RAILROAD OPERATIONS. The Company is subject to
governmental regulation by the Surface Transportation Board ("STB"), the Federal
Railroad Administration and other federal, state and local regulatory
authorities with respect to certain rates and railroad operations, as well as a
variety of health, safety, labor, environmental and other matters, all of which
could potentially affect the competitive position and profitability of the
Company. All railroad industry employees are covered by the Railroad Retirement
Act and the Railroad Unemployment Insurance Act in lieu of Social Security and
other federal and state unemployment insurance programs. Employer contributions
under Railroad Retirement are currently about triple those required under Social
Security. Management of the Company believes that the regulatory freedoms
granted by the Staggers Rail Act amendments have been beneficial to the Company
by giving it flexibility to adjust prices and operations to respond to market
forces and industry changes. However, various interests, and certain members of
the committees in the United States House of Representatives and Senate that
have jurisdiction over federal regulation of railroads, have from time-to-time
expressed their intention to support legislation that would eliminate or reduce
certain significant freedoms granted by the Staggers Rail Act. If enacted, these
proposals, or court or administrative rulings to the same effect under current
law, could have a significant adverse effect on the Company.
DEPENDENCE ON GOVERNMENT GRANTS. The Company has a history of attracting
federal and state financial support for rail infrastructure improvements. The
Company believes that it is a critical element of the transportation
infrastructure in many of its territories and that it enjoys strong support from
state and federal politicians.
GOVERNMENTAL REGULATION OF TRUCKING INDUSTRY. Through its wholly-owned
subsidiary, Steel City Carriers, Inc. ("Steel City"), the Company operates a
regional motor carrier from Sault Ste. Marie, Ontario. Truck trailer length,
height, width, gross vehicle weight and other specifications are regulated
within Canada by Transport Canada and the individual Provinces of Canada and
within the United States of America by the National Highway Traffic Safety
Administration and individual states within the United States of America.
Historically, changes and anticipated changes in these regulations have resulted
in significant fluctuations in demand for new trailers, thereby contributing to
a cyclical industry. Changes or anticipation of changes in these regulations can
have a materially adverse impact on Kalyn's manufacturing operations and sales.
MOTOR CARRIER OPERATIONS - WEATHER CONDITIONS; CUSTOMER DEMAND; FUEL
PRICES. Steel City's operations and results of operations have historically been
and may in the future be negatively affected by severe weather conditions. Steel
City's largest customer, Algoma Steel, accounted for 42% of Steel City's sales
in the year ended December 31, 1995. Although Algoma Steel accounted for a
smaller percentage of sales in the year ended December 31, 1996, Steel City
believes that the loss of Algoma Steel's business would have a material adverse
effect on Steel City. For the year ended December 31, 1995, fuel costs accounted
for approximately 11% of Steel City's motor carrier transportation expenses.
Accordingly, Steel City believes that its results of operations would be
negatively affected by material increases in the price of fuel. Even if Steel
City was capable of passing the increased cost of fuel on to its customers,
Steel City's results of operations may be negatively affected by a relative
reduction in demand for its services as a result of the higher cost of service.
COMPETITION. The Company's primary source of competition in its rail
operations comes from over-the-road trucks. While the Company must build or
acquire and maintain its rail system, trucks are able to use public roadways.
Any future expenditures materially increasing the roadway system in the
Company's present or proposed areas of operation (or legislation granting
materially greater latitude for trucks with respect to size or weight
limitations) could have a significant adverse effect on the Company's
competitiveness.
The Company faces significant competition in the truck trailer
manufacturing industry which is highly competitive and has relatively low
barriers to entry. Kalyn competes with a number of other trailer manufacturers,
some of which have greater financial resources and higher sales than Kalyn.
Furthermore, Kalyn's products compete with alternative forms of shipping, such
as intermodal containers. There can be no assurance that Kalyn will be able to
continue to compete effectively with existing or potential competitors or
alternative forms of shipping containers.
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DEPENDENCE ON KEY PERSONNEL. The Company's success is dependent on certain
management and personnel, including Gary O. Marino, its Chairman, President,
Treasurer and Chief Executive Officer. The Company's success is also dependent
upon the efforts of Robert B. Coward, the Vice President and General Manager of
Kalyn. The loss of the services of one or more of these executives could have an
adverse effect upon the business of the Company. While the Company believes that
it would be able to locate suitable replacements for these executives if their
services were lost to the Company, there can be no assurance it would be able to
do so. Gary Marino has agreed, pursuant to an employment agreement, to serve the
Company until, at a minimum, March 1, 1998. Mr. Coward has agreed, pursuant to
an employment agreement, to serve the Company until, at a minimum, February
1997.
LIABILITY FOR CASUALTY LOSSES. The Company has obtained insurance coverage
for losses arising from personal injury and for property damage in the event of
derailments or other accidents or occurrences. While the Company believes, based
upon its experience, that its insurance coverage is adequate, under catastrophic
circumstances the Company's liability could exceed its insurance limits.
Insurance is available from only a very limited number of insurers and there can
be no assurance that insurance protection at the Company's current levels will
continue to be available or, if available, will be obtainable on terms
acceptable to the Company. The occurrence of losses or other liabilities which
are not covered by insurance or which exceed the Company's insurance limits
could materially adversely affect the financial condition of the Company.
ENVIRONMENTAL MATTERS. The Company's railroad operations and real estate
ownership are subject to extensive federal, state and local environmental laws
and regulations concerning, among other things, emissions to the air, discharges
to waters, and the handling, storage, transportation and disposal of waste and
other materials. While the Company believes it is in substantial compliance with
all such matters, any allegations or findings to the effect that the Company had
violated laws or regulations could have a materially adverse effect on the
Company.
CERTAIN ANTI-TAKEOVER PROVISIONS. The Company's Amended and Restated
Certificate of Incorporation contains certain anti-takeover provisions that
could have the effect of making it more difficult for a third party to acquire,
or of discouraging a third party from attempting to acquire control of the
Company without negotiating with its Board of Directors. Such provisions could
limit the price that certain investors might be willing to pay in the future for
the Company's securities. Certain of such provisions provide for a classified
Board of Directors with staggered terms, and allow the Company to issue
preferred stock with rights senior to those of the common stock or impose
various procedural and other requirements which could make it more difficult for
stockholders to effect certain corporate actions.
DIVIDEND POLICY. The Company has never declared or paid a dividend on its
common stock, and management of the Company expects that the substantial portion
of the Company's future earnings will be retained for expansion or development
of the Company's business, which may include additional acquisitions. Whether
the Company will pay dividends in the future will be at the discretion of the
Company's Board of Directors and will depend upon, among other things, future
earnings, operations, capital requirements and surplus, the general financial
condition of the Company, restrictive covenants in loan or other agreements to
which the Company may be subject, and such other factors as the Board of
Directors may deem to be relevant, including the desirability of cash dividends
to stockholders.
SHARES ELIGIBLE FOR FUTURE SALE. On the date of this Prospectus, the
Company had 7,814,013 shares of Common Stock issued and outstanding and
3,435,234 shares of Common Stock reserved for issuance, including: (1) 631,513
shares of Common Stock reserved for issuance upon exercise of the Class B
Callable Stock Purchase Warrants (exercise price $3.50 per share); (2) 444,440
shares of Common Stock reserved for issuance upon conversion of $1,000,000 in
principal amount of Convertible Subordinated Promissory Notes (conversion price
$2.25); (3) 364,961 shares of Common Stock reserved for issuance upon conversion
of $2,000,000 in principal amount of Series A Convertible Subordinated
Debentures (conversion price $5.48); (4) 250,000 shares of Common Stock reserved
for issuance upon exercise of options granted under the 1992 Stock Option Plan
(exercise price $3.50); (5) 440,000 shares of Common Stock reserved for issuance
upon the exercise of options granted to officers of the Company (exercise price
$3.10 - $5.00); (6) 224,000 and 13,500 shares of Common Stock reserved for
5
<PAGE> 8
issuance upon exercise of options granted and yet to be granted, respectively,
under the 1995 Stock Incentive Plan (exercise price $3.50 - $3.625); (7) 210,000
and 40,000 shares of Common Stock reserved for issuance upon exercise of options
granted and yet to be granted, respectively, under the 1995 Non-Employee
Director Stock Option Plan (exercise price $3.50 - $4.81); (8) 232,092 shares of
Common Stock reserved for issuance upon exercise of options yet to be granted
under the 1995 Employee Stock Purchase Plan; (9) 127,500 shares of Common Stock
issuable upon exercise of a warrant issued to Eric D. Gerst (exercise price
$4.09); (10) 50,000 shares of Common Stock reserved for issuance on August 31,
1997 to certain employees of Kalyn; (11) 38,876 shares of Common Stock reserved
for issuance to certain key employees of Steel City; and (12) 292,000 shares of
Common Stock reserved for issuance upon the exercise of warrants issued to First
London Securities pursuant to a private placement agreement entered by the
Company (exercise price $4.60 - $5.75); and (13) 76,352 shares of Common Stock
reserved for issuance upon exercise of underwriter's warrants granted to Keene
Securities (effective exercise price - $4.16). Of the 7,814,013 shares of Common
Stock issued and outstanding, the Company believes that approximately 4,400,000
of the shares are freely tradable without restriction or further registration
under the Securities Act, except for any shares purchased by an "affiliate" of
the Company (in general, a person who has a control relationship with the
Company). The Company believes the remaining approximately 3,400,000 shares of
Common Stock are "restricted securities", as that term is defined under Rule 144
promulgated under the Securities Act, in that such shares were issued and sold
by the Company in private transactions not involving a public offering. Of the
3,400,000 restricted shares, 1,250,000 shares and 1,670,000 shares will become
eligible for sale under Rule 144 eighteen and twenty-three months, respectively,
from the date of this Prospectus. In general, under Rule 144, subject to the
satisfaction of certain other conditions, a person, including an affiliate of
the Company (or other persons whose shares are aggregated), who has owned
restricted shares of Common Stock beneficially for at least two years is
entitled to sell, within any three-month period, a number of shares that does
not exceed the greater of one percent of the total number of outstanding shares
of the same class or the average weekly trading volume during the four calendar
weeks preceding the sale. A person who has beneficially owned shares of
Common Stock for at least three years is entitled to sell such shares under Rule
144 without regard to any of the limitations described above.
The possibility that substantial amounts of Common Stock may be issued
and/or freely resold in the public market may adversely affect prevailing market
prices for the Common Stock and could impair the Company's ability to raise
capital through the sale of its equity securities.
PROBLEMS INHERENT IN GROWTH AND ACQUISITIONS. Since its first acquisition,
the Company has experienced significant growth in revenues, primarily through
the acquisition of transportation services companies that fit its growth
strategy. Since inception, the Company has completed 12 acquisitions. The
Company expects to continue its acquisition strategy. Although the Company
believes that additional acquisitions will enhance the opportunity to increase
net earnings, such acquisitions would result in greater administrative burdens
and create the financial risks of additional operating costs and additional
interest costs. Acquisitions also involve a number of other risks, including
diversion of management's attention to the assimilation of operations and
personnel of the acquired companies, the difficulty of integrating acquired
companies into the Company's management information and financial reporting
systems, possible adverse short-term effects on the Company's operating results
and an adverse impact on earnings from the amortization of acquired intangible
assets. There can be no assurance that the Company's business will continue to
grow in a similar fashion in the future, that it will be able to find, finance
and complete further suitable acquisitions and integrate effectively any
acquisitions made, that such acquisitions will be profitable or that the Company
can effectively adapt its management, administrative and operational systems to
respond to any future growth.
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THE COMPANY
RailAmerica, Inc. (together with its consolidated subsidiaries the
"Company"), is a multimodal transportation company that has experienced
significant growth in recent years. Historically, the Company has acquired,
developed and operated short line railroads formed primarily through the
acquisition of light density rail lines from larger railroads. The Company
currently operates approximately 1,000 miles of rail lines in Delaware, Indiana,
Michigan, Minnesota, Pennsylvania, Tennessee, Texas and Washington. In 1994, the
Company expanded its operations in the transportation industry through its
acquisition of Kalyn/Siebert, Inc. ("Kalyn"), a manufacturer of a broad range of
specialty and custom truck trailers, located in Gatesville, Texas. In 1995, the
Company acquired substantially all of the assets of Steel City Truck Lines,
Limited ("Steel City"), a regional motor carrier located in Sault Ste. Marie,
Ontario, Canada. The Company seeks to benefit from synergies among its rail,
manufacturing and motor carrier operations.
Since deregulation in 1980, Class I railroads in the United States and
Canada have focused their management and capital resources on their long-haul
core systems while divesting branch lines to smaller and more cost-effective
rail operators that are willing to commit the resources necessary to meet the
needs of the shippers located on these lines. Since 1980, more than 300 short
line and regional railroads operating approximately 26,000 miles of track have
been created. The commitment of Class I carriers to increase efficiency and
profitability and the recent merger activity among long-haul railroads is
expected to lead to additional short line divestitures as overlapping routes are
sold and the merged railroads seek to achieve synergies.
The Company's objectives are to foster growth of its existing subsidiaries
and to create a diversified transportation company by acquiring additional
railroads and, to a lesser extent, other transportation-related companies. Over
the last two and a half years, the Company has completed 12 acquisitions
including 10 short line railroads, a specialty truck trailer manufacturing
company and a regional motor carrier. These acquisitions have been successfully
integrated into current operations and serve as a platform for the growth
experienced by the Company. Over this same period, management has evaluated over
200 potential acquisitions.
Management is currently reviewing approximately 20 acquisition
opportunities, primarily of short line railroads, and believes that the Company
will be presented with future opportunities to make acquisitions among the over
500 existing short line railroads. The Company is currently negotiating a number
of acquisitions, but no assurance can be given that the Company will consummate
any of them. Many of the short line railroad acquisition opportunities are
similar to the Company's recent acquisitions in terms of size and breadth of
operations. However, several of the potential acquisitions are of a magnitude
that would require the Company to raise additional capital to effect the
acquisitions. If the Company were to acquire one or more of these operations,
the Company's pro forma results of operations and financial conditions would be
substantially affected.
The Company's principal executive offices are located at 301 Yamato Road,
Suite 1190, Boca Raton, Florida 33431 and its telephone number is (561)
994-6015.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares being offered by Selling Shareholder hereunder.
7
<PAGE> 10
SELLING SHAREHOLDER
The following table sets forth certain information with respect to the
amount of Common Stock beneficially owned by the Selling Shareholder and as
adjusted to reflect the sale of Shares offered hereby:
<TABLE>
<CAPTION>
NUMBER OF PERCENT OF PERCENT OF
SHARES OF NUMBER OF SHARES OF SHARES OF
COMMON STOCK SHARES OF COMMON COMMON STOCK COMMON STOCK
SELLING BENEFICIALLY STOCK REGISTERED HELD PRIOR TO HELD AFTER
STOCKHOLDER OWNED HEREIN OFFERING OFFERING (3)
------------------ --------------------- ----------------- -------------- ----------------
<S> <C> <C> <C> <C>
Eric D. Gerst(1) 127,500(2) 127,500(2) 1.6%(2) 0
</TABLE>
- ---------------------------
(1) On June 6, 1995, the Company settled litigation brought against the Company
and certain of its subsidiaries by the Selling Shareholder, a former
officer and director of the Company. Pursuant to the settlement agreement
dated as of March 15, 1995 ("Settlement Agreement"), the Selling
Shareholder dismissed the lawsuit with prejudice and provided general
releases to the Company and its subsidiaries. The Company repurchased from
the Selling Shareholder and certain of his family members 190,000 shares of
the Company Common Stock, constituting all shares of Common Stock owned by
them, and certain pieces of equipment consisting of locomotives and other
rolling stock for an aggregate cash payment of $1,000,000. In addition, the
Company issued to the Selling Shareholder a warrant (the "Warrant")
entitling him to purchase 127,500 shares of the Company's Common Stock,
which shares are the subject of this Prospectus. The Selling Shareholder
resigned as an officer and director of the Company on January 17, 1995.
(2) Includes 127,500 shares of Common Stock issuable upon exercise of the
Warrant. See "Plan of Distribution."
(3) Assumes all Shares registered hereby are sold.
PLAN OF DISTRIBUTION
The Selling Shareholder has advised the Company that he may from time to
time sell all or part of the Shares in one or more transactions (which may
involve block transactions) in the over-the-counter market, on the National
Association of Securities Dealers Automated Quotation System, Inc. ("NASDAQ")(or
any exchange on which the Common Stock may then be listed), in negotiated
transactions, through the writing of options on the Shares (whether such options
are listed on an options exchange or otherwise), or a combination of such
methods of sale, at market prices prevailing at the time of such sales or at
negotiated prices. The Selling Shareholder may effect such transactions by
selling the Shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Shareholder and/or purchasers of the Shares for
whom they may act as agent (which compensation may be in excess of customary
commissions). The Selling Shareholder may also pledge the Shares as collateral
for margin accounts or loans and the Shares could be resold pursuant to the
terms of such accounts or loans. In connection with such sales, the Selling
Shareholder and any participating brokers and dealers may be deemed to be
"underwriters" as defined in the Securities Act of 1933, as amended.
The Company has been advised by the Selling Shareholder that he has not, as
of the date of this Prospectus, entered into any arrangement with a
broker-dealer for the sale of the Shares.
At the time a particular offer of Common Stock is made by the Selling
Shareholder, to the extent required, a supplemental Prospectus will be
distributed which will set forth the number of Shares of Common Stock being
offered and the terms of the offering, including the name or names of any
underwriters, dealers, or agents, the purchase price paid by the underwriters
for the shares of Common Stock purchased from the Selling Shareholder,
8
<PAGE> 11
any discounts, commissions and other items constituting compensation from the
Selling Shareholder, and any discounts, commissions or concessions allowed or
re-allowed or paid to dealers.
The Company will pay all the expenses, estimated to be approximately
$17,000, in connection with this offering, other than underwriting and brokerage
commissions, discounts, fees and counsel fees and expenses incurred by the
Selling Shareholder.
Under the securities laws of certain states, the Shares may be sold in such
states only through registered or licensed brokers or dealers. In addition, in
certain states the Shares may not be sold unless the Shares have been registered
or qualified for sale in such state or an exemption from registration or
qualification is available and is complied with.
Under applicable rules and regulations promulgated pursuant to the Exchange
Act, any person engaged in the distribution of Common Stock may not
simultaneously engage in market making activities with respect to the Common
Stock of the Company for a period of two business days prior to the commencement
of such distribution. In addition, and without limiting the foregoing, each
person engaged in the distribution of Common Stock will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder,
including, without limitation, Rules 10b-6 and 10b-7, which provisions may limit
the timing and purchases and sales of shares of the Company's Common Stock.
The Shares are being registered at the request of the Selling Shareholder
and pursuant to a stock registration rights provision included in the Warrant
Agreement. The following, to the extent it describes the Warrant, is qualified
in its entirety by reference to the Warrant Agreement, a copy of which is filed
as Exhibit 10.38 to the Company's Registration Statement of which this
Prospectus is a part.
On the date of this Prospectus, the Selling Shareholder held a Warrant
entitling him to purchase 127,500 shares of Common Stock. The original exercise
price of the Warrant was $4.25 per share. Pursuant to the Warrant Agreement, the
exercise price per share has been adjusted to $4.09 as a result of the Company's
issuance of common stock in connection with the Company's issuance of 1,250,000
shares of common stock pursuant to a private placement dated September 30, 1996.
The Company has reserved for issuance a number of shares of Common Stock
sufficient to provide for the exercise of the Warrant. The exercise price of the
Warrant and the number of shares of Common Stock issuable upon exercise of the
Warrant is subject to an adjustment based on the occurrence of certain events
described in the Warrant Agreement. No fractional shares will be issued upon
exercise of the Warrant. If a fractional share of Common Stock is issuable upon
the exercise of the Warrant, the Company will pay cash in lieu of such
fractional share.
The Company has agreed to pay to Gerst, with respect to any and all
outstanding Shares, the difference (the "Price Differential"), if any, between
the fair market value of the Shares on the day before the Selling Shareholder
requested their registration (the "Registration Request Price") and, if a lower
value than the Registration Request Price, the fair market value of the Shares
on the day the Company notifies the Selling Shareholder of the effectiveness of
the registration statement of which this prospectus forms a part. The Company
has agreed to pay the Selling Shareholder the Price Differential five days after
the registration statement becomes effective.
The Company has agreed to indemnify the Selling Shareholder and any
underwriters against certain liabilities, including liabilities under the
Securities Act. The Selling Shareholder has also agreed to indemnify the
Company, its directors, officers, agents and representatives against certain
liabilities, including liabilities under the Securities Act.
9
<PAGE> 12
DESCRIPTION OF COMMON STOCK
The following summary is qualified in its entirety by reference to the
Company's Amended and Restated Certificate of Incorporation (the "Certificate of
Incorporation") and by-laws.
The Company is authorized to issue 30,000,000 shares of Common Stock,
par value $.001 per share and 1,000,000 shares of Preferred Stock, par value
$.001 per share. As of the date of this Prospectus, the Company had 7,814,013
shares of Common Stock outstanding and no shares of Preferred Stock outstanding.
COMMON STOCK
Each share of Common Stock entitles the holder thereof to vote on all
matters submitted to a vote of the stockholders. Since the holders of Common
Stock do not have cumulative voting rights, holders of more than 50% of the
outstanding shares can elect on an annual basis the entire class of Directors
then standing for election and holders of the remaining shares by themselves
cannot elect any Directors. The holders of Common Stock have no preemptive
rights or rights to convert their Common Stock into other securities. The
holders of Common Stock are entitled to receive dividends when, as and if
declared by the Board of Directors out of funds legally available therefor. In
the event of a liquidation, dissolution or winding up of the Company, holders of
the Common Stock have the right to a ratable portion of the assets remaining
after payment of liabilities and after provision has been made for each class of
stock, if any, having preference over the Common Stock. All shares of Common
Stock outstanding and to be outstanding upon completion of this Offering are and
will be fully paid and non-assessable. The transfer agent for the Common Stock
is American Stock Transfer and Trust Company, 40 Wall Street, New York, New York
10005.
PREFERRED STOCK
The Board of Directors has the authority to issue up to 1,000,000
shares of Preferred Stock in one or more series and to fix the number of shares
constituting any such series, the voting powers, designations, preferences and
relative participation, optional or other special rights and qualifications,
limitations or restrictions thereof, including the dividend rights and dividend
rate, terms of redemption (including sinking fund provisions), redemption price
or prices, conversion rights and liquidation preferences of the shares
constituting any series, without any further vote or action by the shareholders.
The issuance of Preferred Stock by the Board of Directors could affect the
rights of the holders of the Common Stock. For example, such issuance could
result in a class of securities outstanding that would have preferences with
respect to voting rights and dividends, and in liquidation, over the Common
Stock, and could (upon conversion or otherwise) enjoy all the rights appurtenant
to Common Stock. Because the Board of Directors is authorized to determine the
rights, preferences, privileges and restrictions granted to and imposed on any
series of Preferred Stock (without stockholder approval), the issuance of any
series of Preferred Stock could adversely affect the voting power and other
rights of the holders of Common Stock and could be used as an anti-takeover
measure by the Company without any further action by the holders of Common
Stock.
DELAWARE LAW AND CERTAIN CHARTER AND BYLAW PROVISIONS
The Certificate of Incorporation contains the following special
provisions that may delay, defer or prevent a change in control of the Company:
The Board of Directors is divided into three classes, with members
serving three-year terms ending in successive years. An objective of the
classified Board of Directors is to facilitate continuity and stability of the
Company's management and policies, since a majority of the Directors at any
given time will have prior experience as Directors of the Company. However,
classification also moderates the pace of any change in control of the Company,
because it makes it more difficult for the stockholders to change a majority of
the Board of Directors, for
10
<PAGE> 13
whatever reason. It would take at least two annual meetings to elect a
majority of the Board of Directors, unless the Certificate of Incorporation
were amended to eliminate provisions for a classified Board of Directors
The Certificate of Incorporation also provides that Directors may only
be removed, with cause, by the vote of the holders of at least two-thirds (66%)
of the voting power of the outstanding voting stock of the Company or 51% of
such voting power, together with the vote of a majority of "Disinterested
Directors" as defined in the Certificate of Incorporation. In addition, the
Certificate of Incorporation provides that the Board of Directors may, from time
to time, fix the number of Directors constituting the Board of Directors and
fill vacancies on the Board of Directors.
The Certificate of Incorporation limits the liability of Directors to
the maximum extent permitted by the General Corporation Law of Delaware (the
"Delaware Corporate Code"). Such 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 Corporate Code; or (iv)
for any transaction from which the Director derives an improper personal
benefit. The Certificate of Incorporation also provides that the Company shall
indemnify its Directors and Officers to the fullest extent permitted by Delaware
law, except against actions by the Company approved by the Board of Directors,
and requires the Company 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. The Company believes that these
provisions will assist the Company in attracting and retaining qualified
individuals to serve as Directors, Officers and employees.
The Company is subject to the provisions of Section 203 of the Delaware
Corporate Code. In general, Section 203 prohibits certain publicly-held Delaware
corporations from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person or entity became an interested stockholder, unless the business
combination is approved in a prescribed manner or certain other exceptions
apply. For purposes of Section 203, a "business combination" is defined broadly
to include mergers, asset sales and other transactions resulting in a financial
benefit to the interested stockholder. Subject to certain exceptions, an
"interested stockholder" is a person or entity who, together with affiliates and
associates, owns, or within the three immediately preceding years of a business
combination did own, 15% or more of the corporation's outstanding voting stock.
In addition to being subject to Section 203, the Certificate of
Incorporation also provides that where a vote of stockholders is otherwise
required under Delaware law to approve a merger or consolidation, dissolution,
reorganization, recapitalization or sale of substantially all of the Company's
assets, no such action can be taken unless approved by a vote of two-thirds (66
2/3%) of the voting power of the shares entitled to vote thereon (the "Special
Voting Provision"). The Special Voting Provision could make it more difficult
for a third party, or could discourage a third party from attempting, to
takeover the Company and therefore may limit the price that certain investors
might be willing to pay in the future for shares of the Company's Common Stock.
In accordance with the Certificate of Incorporation, for nominations
for the Board of Directors or for other business to properly brought by a
stockholder before an annual meeting of stockholders, the stockholder must first
have given timely notice thereof in writing to the Secretary of the Company. To
be timely, a stockholder's notice generally must be delivered not less than
sixty days nor more than ninety days prior to the annual meeting. The notice
must contain, among other things, certain information about the stockholder
delivering the notice and as applicable, background about the nominee or a
description of the proposed business to be brought before the meeting.
The Certificate of Incorporation provides that, if the Company has 10
or more stockholders, no action is permitted to be taken by the stockholders of
the Company by written consent. Special meetings may be called only
11
<PAGE> 14
by the Board of Directors, the Chairman of the Board or the President
of the Company. These provisions could have the effect of delaying until the
next annual stockholders' meeting stockholder actions which are favored by the
holders of a majority of the outstanding voting securities of the Company.
These provisions may also discourage another person or entity from making a
tender offer for the Company's Common Stock, because such person or entity,
even if it acquired a majority of the outstanding voting securities of the
Company, would be able to take action as a stockholder (such as electing new
Directors or approving a merger) only at a duly called stockholders' meeting,
and not by written consent.
The Delaware Corporate Code provides generally that the affirmative vote
of a majority of the shares entitled to vote on any matter is required to amend
a corporation's certificate of incorporation or by-laws, unless a corporation's
certificate of incorporation or by-laws, as the case may be, requires a greater
percentage. The affirmative vote of the holders of at least two-thirds of the
outstanding voting stock of the Company is required to amend or repeal any of
the foregoing provisions in the Certificate of Incorporation, or, in the case of
each of the foregoing provisions other than the vote required for a merger or
consolidation, etc., 51% of the voting stock and a majority of "Disinterested
Directors." Such stockholder vote would be in addition to any separate class
vote that might in the future be required pursuant to the terms of any Preferred
Stock that might be outstanding at the time any such amendments are submitted to
stockholders.
12
<PAGE> 15
LEGAL MATTERS
The validity of the issuance of the Common Stock offered hereby has
been passed upon for the Company by Greenberg, Traurig, Hoffman, Lipoff, Rosen
& Quentel, P.A., Miami, Florida.
EXPERTS
The financial statements of the Company and its consolidated
subsidiaries as of December 31, 1995 and 1994, and for each of the years in the
two-year period ended December 31, 1995, have been incorporated by reference in
this prospectus and registration statement from the Company's Annual Report on
Form 10-KSB in reliance upon the report of Coopers & Lybrand L.L.P, independent
certified public accountants, which is incorporated herein by reference, and
upon the authority of said firm as experts in accounting and auditing.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company 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 Company's Certificate of Incorporation provides for
indemnification of the Company's officers and directors to the fullest extent
permitted under the Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or controlling persons of
the Company, pursuant to the foregoing provisions or otherwise, the Company has
been advised that, in the opinion of the Securities and Exchange Commission (the
"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 Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Company 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.
13
<PAGE> 16
=============================================================================
No dealer, salesman or other person is authorized to give any
information or to make any representation other than as contained in this
Prospectus and, if given or made, such information or representation must not
be relied upon as having been authorized by the Company. This Prospectus does
not constitute an offer to sell, or a solicitation of an offer to buy, by any
person in any jurisdiction in which it is unlawful to make such an offer or
solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information contained herein is correct as of any time subsequent to the date
hereof.
-----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information.....................................................1
Incorporation Of Certain Information
By Reference........................................................1
Risk Factors..............................................................2
The Company...............................................................7
Use Of Proceeds...........................................................7
Selling Shareholder.......................................................8
Plan Of Distribution......................................................8
Description Of Common Stock..............................................10
Legal Matters............................................................13
Experts..................................................................13
Indemnification Of Directors And Officers................................13
</TABLE>
=============================================================================
127,500 Shares
of Common Stock
RAILAMERICA, INC.
--------------------------
PROSPECTUS
--------------------------
February 5, 1997
=============================================================================
<PAGE> 17
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses, excluding solicitation fees, in connection with
this offering are as follows:
<TABLE>
<CAPTION>
Amount
-------
<S> <C>
Registration Fee ........................................... $ 230
Legal fees and expenses .................................... $11,700
Blue Sky fees and expenses ................................. $ 2,000
Accounting fees and expenses ............................... $ 1,000
Miscellaneous .............................................. $ 2,000
-------
Total .................................... $16,930
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company 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 Company's Amended and Restated Certificate of
Incorporation provides for indemnification of the Company's officers and
directors to the extent permitted under the Delaware General Corporation 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 Registrant'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, and 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.
<PAGE> 18
ITEM 16. EXHIBITS
The following exhibits are included as a part of this Registration
Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of Registrant(10),
at pp. 1-4.
4.2 By-laws of Registrant(10), at pp. 5-16.
5.1 Opinion of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel,
P.A.
10.10 Third Party Agreement, dated December 19, 1990, between HESR and
TSBY(1)
10.14 RailAmerica, Inc. 1992 Stock Option Plan(1)+
10.18 Equipment Finance Lease, dated March 8, 1993, among Charter
Financial, Inc., the Company, HESR, SGVY and RSC(2)
10.19 Purchase Money Security Agreement, dated March 8, 1993, as
amended, among Charter Financial, Inc., the Company, HESR, SGVY
and RSC(2)
10.21 Purchase Money Loan and Security Agreement, dated April 1993,
among Charter Financial, Inc., Tilden Financial Corp., the
Company, HESR, SGVY, and RSC(2)
10.23 Loan Agreement among RailAmerica, Inc., South Central Tennessee
Railroad Corporation, South Central Tennessee Railroad Company,
Inc. and Charter Financial, Inc., dated as of December 31,
1993(5)
10.24 Lease Agreement between South Central Tennessee Railroad
Authority and South Central Tennessee Railroad Company, Inc.
dated October 16, 1984(3)
10.32 Stock Purchase Agreement between Steel City Truck Lines Limited,
Josef Bichler and RailAmerica, Inc. dated December 19, 1994(11)
10.33 Stock Purchase Agreement between 823215 Ontario, Inc. and
RailAmerica, Inc. dated February 6, 1995(11)
10.34 Loan documents in connection with RailAmerica's acquisition of
Kalyn/Siebert Incorporated(6)
10.35 Employment Agreement between Robert B. Coward and Kalyn/Siebert
Incorporated(6)
10.36 Loan documents in connection with RailAmerica's acquisition of
the assets of Steel City Truck Lines limited(7)
10.37 Stock Purchase Agreement, dated July 11, 1995, among RailAmerica,
Inc., Brain E. Muir, Elli M.A. Mills and Kimberly Hughes, Prairie
Holding Corporation and Dakota Rail, Inc.(8)
10.38 Settlement Agreement (including Warrant Agreement), entered into
March 15, 1995, by Eric D. Gerst and RailAmerica, Inc.,
RailAmerica Services Corporation and Huron and Eastern Railway
Company, Inc.(8)
</TABLE>
<PAGE> 19
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
10.39 Loan Agreement, dated September 29, 1995, by and between
RailAmerica, Inc., Kalyn/Siebert Incorporated, RailAmerica
Intermodal Services, Inc., RailAmerica Carriers, Inc., Steel City
Carriers, Inc., Saginaw Valley Railway Company, Inc., Huron and
Eastern Railway Company, Inc. and National Bank of Canada(10)
10.40 Asset Purchase Agreement, dated October 11, 1995, by and among
Seagraves, Whiteface & Lubbock Railroad Co., American Railway
Corporation, TEMCO Corporation and RailAmerica, Inc.(9)
10.41 Employment Agreement between Gary O. Marino and RailAmerica,
Inc.(10)+
10.42 Employment Agreement between John H. Marino and RailAmerica,
Inc.(10)+
10.43 Stock Option Agreement, dated November 11, 1994, between
RailAmerica, Inc. and Gary O. Marino)(10)+
10.44 RailAmerica, Inc. 1995 Stock Incentive Plan(10)+
10.45 RailAmerica, Inc. 1995 Non-Employee Director Stock Option
Plan(10)
10.46 RailAmerica, Inc. 1995 Employee Stock Purchase Plan(10)
10.47 RailAmerica, Inc. Corporate Senior Executive Bonus Plan(10)+
10.49 Purchase and Sale Agreement dated November 30, 1995, by and
between CSX Transportation, Inc. and Saginaw Valley Railway
Company, Inc.(11)
10.50 Stock Purchase Agreement dated October 1, 1995 by and between
RailAmerica, Inc. and the holders of all the issued and
outstanding shares of the Company's Preferred Stock(11)
10.51 Asset Purchase Agreement dated January 26, 1996 by and between
TEMCO Corporation and RailAmerica Equipment Corporation(11)
10.52 Agreement of Sale dated July 18, 1996 by and between the
Commonwealth's Department of Transportation and Delaware Valley
Railway Company, Inc., a wholly owned subsidiary of RailAmerica,
Inc.(12)
10.53 Agreement entered into by and between R. Frank Unger, Trustee of
Sagamore National Corporation, Indiana HiRail Corporation and
RailAmerica, Inc.(12)
10.54 Asset Purchase Agreement, dated August 5, 1996, by and among
Burlington Northern Railroad Company and Cascade and Columbia
River Railroad Company, a subsidiary of RailAmerica, Inc.(13)
10.55 Confidential Private Placement Memorandum dated September 20,
1996(14)
10.56 Stock Purchase Agreement, dated as of September 20, 1996, by and
among Otter Tail Valley Railroad Company, Inc. and the
shareholders of Otter Tail Valley Railroad Company, Inc. and
Dakota Rail, Inc.(15)
</TABLE>
<PAGE> 20
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
23.1 Consent of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel,
P.A. (contained in exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P.
24.1 Power of Attorney: Included Herein
- ----------------
(1) Incorporated by reference to the same exhibit number filed as part of
the Registrant's Registration Statement on Form S-1, Registration No.
33-49026.
(2) Incorporated by reference to the same exhibit number filed as part of
the Registrant's Post-Effective Amendment No. 3 on Form SB-2 dated
November 25,1994, Registration No. 33-49026.
(3) Incorporated by reference to the same exhibit number filed as part of
the Company's annual report on Form 10-KSB, filed with the Securities
and Exchange Commission on March 31, 1993.
(4) Incorporated by reference to the same exhibit number filed as part of
the Registrant's Post-Effective Amendment No. 4 on Form SB-2 dated
December 14, 1994, Registration No. 33-49026.
(5) Incorporated by reference to the same exhibit number filed as part of
the Company's Form 10-KSB for the year ended December 31, 1993, filed
with the Securities and Exchange Commission on April 15, 1994.
(6) Incorporated by reference to the same exhibit number filed as a part
of the Registrant's Post-Effective Amendment No. 2 on Form SB-2, dated
October 17,1994, Registration No. 33-49026.
(7) Incorporated by reference to the same exhibit number filed as part of
the Company's Form 10-KSB for the year ended December 31, 1994, filed
with the Securities and Exchange Commission on March 30, 1995.
(8) Incorporated by reference to the same exhibit number filed as part of
the Company's Form 10-QSB for the quarter ended June 30,1995, filed
with the Securities and Exchange Commission on August 9, 1995.
(9) Incorporated by reference to the exhibit 2.1 filed as part of the
Company's Form 8-K as of November 1, 1995, filed with the Securities
and Exchange Commission on November 3, 1995.
(10) Incorporated by reference to the same exhibit number filed as part of
the Company's Form 10-QSB for the quarter ended September 30, 1995,
filed with the Securities and Exchange Commission on November 12,
1995.
(11) Incorporated by reference to the same exhibit number filed as part of
the Company's Form 10-KSB for the year ended December 31, 1995, filed
with the Securities and Exchange Commission on April 12, 1996.
(12) Incorporated by reference to the same exhibit number filed as part of
the Company's Form 10-QSB for the quarter ended June 30, 1996, filed
with the Securities and Exchange Commission on August 12, 1996
(13) Incorporated by reference to the exhibit 2.1 filed as part of the
Company's Form 8-K as of September 6, 1996, filed with the Securities
and Exchange Commission on September 20, 1996.
(14) Incorporated by reference to the exhibit A filed as part of the
Company Form 8-K as of September 30, 1996, filed with the Securities
and Exchange Commission on October 17, 1996.
(15) Incorporated by reference to the exhibit 2.1 filed as part of the
Company's Form 8-K as of October 11, 1996, filed with the Securities
and Exchange Commission on October 25, 1996.
+ Executive Compensation Plan or Arrangement.
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes that it will:
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a fundamental change in the
information in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities
<PAGE> 21
offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) Include any additional or changed material
information on the plan of distribution.
(2) For determining liability under the Securities Act of
1933, treat each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-2 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Boca Raton, Florida, as of February 5, 1997.
RAILAMERICA, INC.
By:/s/ Gary O. Marino
----------------------------------------------
Gary O. Marino
Chairman, Chief Executive Officer and Treasurer
(Duly Authorized Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Gary O. Marino and Larry 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 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, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated as of February 5, 1997.
/s/ Gary O. Marino
-------------------------------------------------
Gary O. Marino, Chairman, Chief Executive Officer,
President, Chief Operating Officer and Treasurer
(Principal Executive and Financial Officer)
/s/ Donald D. Redfearn
-------------------------------------------------
Donald D. Redfearn, Executive Vice President,
Secretary and Director
/s/ Larry Bush
-------------------------------------------------
Larry Bush, Assistant Vice President and
Controller (Principal Accounting Officer)
/s/ Richard Rampell
-------------------------------------------------
Richard Rampell, Director
/s/ John M. Sullivan
-------------------------------------------------
John M. Sullivan, Director
/s/ Douglas R. Nichols
-------------------------------------------------
Douglas R. Nichols, Director
II-6
<PAGE> 1
EXHIBIT 5.1
OPINION OF GREENBERG TRAURIG HOFFMAN LIPOFF ROSEN & QUENTEL, P.A.
February 4, 1997
RailAmerica, Inc.
301 Yamato Road, Suite 1190
Boca Raton, Florida 33431
Ladies and Gentlemen:
We have acted as counsel for RailAmerica, Inc., a Delaware corporation
(the "Company"), in connection with the Company's Registration Statement on Form
S-2 (the "Registration Statement") being filed by the Company under the
Securities Act of 1933, as amended, with respect to 127,500 shares (the
"Shares") of the Company's common stock, par value $.001 per share (the "Common
Stock"), which may be disposed of from time to time by the selling shareholder
(the "Selling Shareholder") named therein. All of the Shares offered by the
Selling Shareholder are issuable upon the exercise of a warrant.
In connection with the preparation of the Registration Statement and
this letter, we have examined, considered and relied upon the following
documents (collectively, the "Documents"): the Registration Statement; the
Warrant Agreement between the Selling Shareholder and the Company dated March
15, 1995 (the "Warrant Agreement"); the Company's Amended and Restated
Certificate of Incorporation as filed with the Secretary of State of the State
of Delaware on July 27, 1996; the Company's Amended and Restated Certificate of
Incorporation as filed with the Secretary of State of the State of Delaware on
April 30, 1992; Bylaws and corporate minute book; a certificate of good standing
of the Company issued on January 30, 1997, by the Secretary of State of the
State of Delaware; and such matters of law as we have considered necessary or
appropriate for the expression of the opinions contained herein.
In rendering the opinions set forth below, we have assumed without
investigation the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, the conformity to authentic original
documents of all documents submitted to us as copies, and the veracity of the
Documents. As to questions of fact material to the opinions hereinafter
expressed, we have relied upon the representations and warranties of the Company
made in the Documents.
Based solely upon and subject to the Documents, and subject to the
qualifications set forth below, we are of the opinion that the Shares have been
duly authorized and when the Shares have been duly delivered against payment
therefor, as contemplated in the Warrant Agreement, the Shares will be validly
issued, fully paid and nonassessable.
Although we have acted as counsel to the Company in connection with
certain other matters, our engagement is limited to certain matters about which
we have been consulted. Consequently, there may exist matters of a legal nature
involving the Company in connection with which we have not been consulted and
have not represented the Company. This opinion letter is limited to the matters
stated herein and no opinions may be implied or inferred beyond the matters
expressly stated herein. The opinions expressed herein are as of the date
hereof, and we assume no obligation to update or supplement such opinions to
reflect any facts or circumstances that may hereafter come to our attention or
any changes in law that may hereafter occur.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the prospectus contained in the Registration Statement.
Very truly yours,
GREENBERG, TRAURIG, HOFFMAN, LIPOFF,
ROSEN & QUENTEL, P.A.
By: /S/ Gary M. Epstein
---------------------------------
Gary M. Epstein
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-2 of our report dated March 15, 1996, on our audits of the consolidated
financial statements of RailAmerica, Inc. and Subsidiaries as of December 31,
1995 and 1994 and for the years then ended, appearing in the Company's Annual
Report on Form 10-KSB for the year ended December 31, 1995. We also consent to
the reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand
- -------------------------------
COOPERS & LYBRAND
West Palm Beach, Florida
January 31, 1997
