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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 7, 1998
REGISTRATION NO. 333-
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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)
RAILAMERICA, INC. 1998 OMNIBUS EXECUTIVE INCENTIVE COMPENSATION PLAN
GARY O. MARINO CHIEF EXECUTIVE OFFICER EMPLOYMENT AGREEMENT
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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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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
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...... 1,275,000 SHARES $9.50 $8,819,580 $2,601.78
===================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) of the Securities Act of 1933,
as amended, on the basis of (i) the exercise price of $7.25 for an
aggregate of 75,000 options granted under Mr. Gary O. Marino's employment
agreement dated as of January 1, 1998 (the "Employment Agreement"), (ii)
the exercise price of $8.00 for an aggregate of 75,000 options granted
under the Employment Agreement, (iii) the exercise price of $8.75 for an
aggregate of 75,000 options granted under the Employment Agreement, (iv)
the exercise price of $9.50 for an aggregate of 75,000 options granted
under the Employment Agreement and (v) the average of the high and low
prices reported on the NASDAQ National Market System (equaling $6.4688 per
share) of the Common Stock on May 6, 1998, with respect to options to
purchase 930,000 shares of Common Stock to be granted under the Plan and
45,000 shares of Common Stock issued pursuant to the Employment Agreement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant are hereby incorporated by
reference in this Registration Statement:
(a) the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, filed with the Commission on March 31,
1998;
(b) The Registrant's Current Report on Form 8-K for an
event occurring on January 23, 1998; and
(c) the description of the Registrant's Common Stock filed
as a part of the Registrant's Registration Statement on Form S-2, as amended
(Registration No. 333-21165).
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.
Section 145(a) of the Delaware General Corporation Law (the "GCL")
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no cause to believe his
or her conduct was unlawful.
Section 145(b) of the GCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above, against expenses
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of GCL further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsection (a) and (b) or in the defense of
any claim, issue or matter therein, such officer or director shall be
indemnified against expenses actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation may purchase and maintain insurance on behalf
of a director or officer of the corporation against any liability asserted
against such officer or director and incurred by him or her in any such capacity
or arising out of his or her status as such, whether or not the corporation
would have the power to indemnify him or her against such liabilities under
Section 145.
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Under its Certificate of Incorporation (the "Certificate"), the Company
may indemnify, to the full extent permitted by Delaware law, its directors,
officers, employees and agents who are a party, or are threatened to be made a
party, to an action or proceeding, by reason of the fact that the person serves
or served the Company as a director, officer, employee or agent. The Company
also is authorized to purchase insurance and enter into indemnification
agreements. The Certificate also eliminates the liability of directors and
officers to the Company or its stockholders for monetary damages for breach of
fiduciary duty except to the extent such exemption from liability or limitation
thereof is not permitted under applicable law. This provision does not eliminate
the duty of care or loyalty and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director continues to be subject
to liability for monetary damages for acts or omissions involving breach of the
duty of loyalty, acts or omissions not in good faith, intentional misconduct,
knowing violations of law, unlawful distributions and any transaction from which
the director derived an improper personal benefit. The Company believes that
these provisions of the Certificate are necessary to attract and retain
qualified persons as directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See "Exhibit Index" on page II-5 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
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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.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Act, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has 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 on April __, 1998.
RAILAMERICA, INC.
By: /s/ Gary O. Marino
----------------------------------------------------
Name: Gary O. Marino
Title: Chairman, President, Chief Executive Officer
and Treasurer (Principal Executive Officer and
Principal Financial Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Gary O. Marino and Donald D.
Redfearn 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 Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Gary O. Marino Chairman, President, Chief Executive Officer and April __, 1998
- ------------------------------------- Treasurer (Principal Executive Officer and
Gary O. Marino Principal Financial Officer)
/s/ Larry Bush Controller (Principal Accounting Officer) April __, 1998
- -------------------------------------
Larry Bush
/s/ Donald D. Redfearn Executive Vice President - Administration and Director April __, 1998
- -------------------------------------
Donald D. Redfearn
/s/ Richard Rampell Director April __, 1998
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Richard Rampell
Director April __, 1998
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Douglas R. Nichols
Director April __, 1998
- -------------------------------------
Charles Swinburn
Director April __, 1998
- -------------------------------------
John H. Marino
/s/ John H. Sullivan Director April __, 1998
- -------------------------------------
John H. Sullivan
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
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<S> <C> <C>
4.1 RailAmerica, Inc. 1998 Omnibus Executive Incentive Compensation
Plan(1)
4.2 Employment Agreement, dated as of January 1, 1998 between the
Registrant and Gary O. Marino
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
</TABLE>
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(1) Incorporated by reference to Appendix A to Registrant's Schedule 14A filed
on April 30, 1998.
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EXHIBIT 4.2
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EXHIBIT 5.1
OPINION OF GREENBERG TRAURIG HOFFMAN LIPOFF ROSEN & QUENTEL, P.A.
May 7, 1998
RailAmerica, Inc.
301 Yamato Road
Suite 1190
Boca Raton, Florida 33431
RE: REGISTRATION STATEMENT ON FORM S-8 FOR
(I) RAILAMERICA INC.'S 1998 OMNIBUS EXECUTIVE INCENTIVE
COMPENSATION PLAN AND (II) THE EMPLOYMENT AGREEMENT, DATED AS
OF JANUARY 1, 1998, BETWEEN GARY O. MARINO AND RAILAMERICA,
INC.
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 offering and sale by the Company of up to
1,275,000 shares of the Company's Common Stock, par value $.001 per share (the
"Common Stock") including (i) 45,000 shares of Common Stock issued and 300,000
shares of Common Stock issuable upon exercise of options to purchase Common
Stock (the "Marino Options") granted by the Company pursuant to the Employment
Agreement dated as of January 1, 1998 between Gary O. Marino and the Company
(the "Employment Agreement") and (ii) options to purchase 930,000 shares of
Common Stock (the "Plan Options" and together with the Marino Options, the
"Options") granted or to be granted under the Company's 1998 Omnibus Executive
Incentive Compensation Plan (the "1998 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 1998 Plan and the preparation of the Registration
Statement and related matters; (iii) the Employment Agreement, (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
shares of Common Stock issued under (i) the Employment Agreement and (ii) the
1998 Plan, when issued against payment therefor in accordance with the terms of
the Employment Agreement or the 1998 Plan, as the case may be, will be duly and
validly issued, fully paid and nonassessable.
<PAGE> 2
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 25, 1998, on our audits of the consolidated
financial statements of RailAmerica, Inc. and Subsidiaries as of December 31,
1996 and 1995 and for the three years in the period ended December 31, 1997,
appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997.
/s/ Coopers & Lybrand L.L.P.
West Palm Beach, Florida
May 11, 1998
