-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BBuPbWQ/sOO1PTWEF0jCpNufoU56H7fltjqoC1G59Tt3sRmLewlsmUmJ71BGPASi H29ibleiKsrtNfBSfkMDTA== 0000950130-98-001721.txt : 19980403 0000950130-98-001721.hdr.sgml : 19980403 ACCESSION NUMBER: 0000950130-98-001721 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980402 EFFECTIVENESS DATE: 19980402 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENESEE & WYOMING INC CENTRAL INDEX KEY: 0001012620 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 060984624 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-49231 FILM NUMBER: 98586285 BUSINESS ADDRESS: STREET 1: 71 LEWIS ST CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2036293722 MAIL ADDRESS: STREET 1: 71 LEWIS STREET STREET 2: 71 LEWIS STREET CITY: GREENWICH STATE: CT ZIP: 06830 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on April 2, 1998 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 __________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 __________________________ GENESEE & WYOMING INC. (Exact name of Registrant as specified in its charter) DELAWARE 16-0984624 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 71 LEWIS STREET GREENWICH, CONNECTICUT 06830 (203) 629-3722 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) GENESEE & WYOMING INC. 1996 STOCK OPTION PLAN, AS AMENDED BY AMENDMENT NO. 1 THERETO (Full title of Plan) MORTIMER B. FULLER, III CHAIRMAN AND CHIEF EXECUTIVE OFFICER GENESEE & WYOMING INC. 71 LEWIS STREET GREENWICH, CONNECTICUT 06830 (203) 629-3722 (Name, address, including zip code, and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
============================================================================================================ AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------ Class A Common Stock, 200,000/(2)/ $26.75 $5,350,000 $1,622 par value $.01 per share ============================================================================================================
(1) Estimated in accordance with Rule 457(h), as of March 27, 1998, solely for the purpose of calculating the registration fee. (2) Representing the increased number of shares of Class A Common Stock, par value $.01 per share, issuable pursuant to the Genesee & Wyoming Inc. 1996 Stock Option Plan, as amended by Amendment No. 1 thereto. ____________________ Pursuant to Rule 416, there are also being registered such additional shares of Class A Common Stock as may become issuable pursuant to anti-dilution provisions of the Plan. ____________________ The Registrant's Registration Statement on Form S-8 (Registration No. 333- 09165), filed July 30, 1996, is incorporated herein by reference. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 Rochester, State of New York, on the 2nd day of April, 1998. GENESEE & WYOMING INC. By: /s/ Alan R. Harris ------------------ Alan R. Harris Senior Vice President and Chief Accounting Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on the 2nd day of April, 1998. SIGNATURE TITLE --------- ----- * Chairman, Chief Executive Officer and - ------------------------------ Director (Principal Executive Officer) Mortimer B. Fuller, III * Senior Vice President and Chief Financial - ------------------------------ Officer (Principal Financial Officer) Mark W. Hastings /s/ Alan R. Harris Senior Vice President and Chief Accounting - ------------------------------ Officer (Principal Accounting Officer) Alan R. Harris * Director - ------------------------------ James M. Fuller * Director - ------------------------------ Louis S. Fuller * Director - ------------------------------ Robert M. Melzer * Director - ------------------------------ John M. Randolph * Director - ------------------------------ Philip J. Ringo *By: /s/ Alan R. Harris ------------------------- Alan R. Harris Attorney-in-Fact 2 INDEX TO EXHIBITS * 5.1 Opinion of Harter, Secrest & Emery LLP *23.1 Consent of Arthur Andersen LLP *23.2 Consent of Harter, Secrest & Emery LLP (contained in Exhibit 5.1) *24.1 Power of Attorney 99.1/(a)/ Amendment No. 1 to Genesee & Wyoming Inc. 1996 Stock Option Plan __________________________ * Exhibit filed with this Registration Statement. /(a)/ Incorporated by reference to Exhibit 10.1 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. EX-5.1 2 OPINION OF HARTER SECREST & EMERY LLP EXHIBIT 5.1 [letterhead of Harter, Secrest & Emery LLP] April 2, 1998 Genesee & Wyoming Inc. 71 Lewis Street Greenwich, CT 06830 Re: Genesee & Wyoming Inc. Registration Statement on Form S-8 Ladies and Gentlemen: You have requested our opinion in connection with your Registration Statement on Form S-8, filed this date under the Securities Act of 1933, as amended, with the Securities and Exchange Commission (the "Registration Statement"), in respect of an additional 200,000 authorized and unissued shares of the Class A Common Stock, par value $.01 per share (the "Common Stock"), of Genesee & Wyoming Inc. (the "Corporation"), which may be issued upon exercise, after the date hereof, of options heretofore or hereafter granted under the Genesee & Wyoming Inc. 1996 Stock Option Plan as amended by Amendment No. 1 thereto (as so amended, the "Plan"). We have examined the following corporate records and proceedings of the Corporation in connection with the preparation of this opinion: its Restated Certificate of Incorporation; its By-laws as currently in force and effect; its Minute Books, containing minutes and records of other proceedings of its stockholders, its Board of Directors and the Compensation and Stock Option Committee of the Board of Directors, from the date of incorporation to the date hereof; the Plan; the Registration Statement; applicable provisions of the laws of the State of Delaware; and such other documents and matters as we have deemed necessary. In rendering this opinion, we have made such examination of laws as we have deemed relevant for the purposes hereof. As to various questions of fact material to this opinion, we have relied upon representations and/or certificates of officers of the Corporation, certificates and documents issued by public officials and authorities, and information received from searchers of public records. Based upon and in reliance on the foregoing, we are of the opinion that: 1. The Corporation has been duly incorporated and is validly existing under the laws of the State of Delaware. 2. The Corporation has the authority to issue an additional 200,000 shares of Common Stock pursuant to the terms of the Plan. Genesee & Wyoming Inc. April 2, 1998 Page 2 3. The 200,000 shares of Common Stock to be issued and sold by the Corporation will, when sold and paid for in accordance with the provisions of the Plan and the respective stock option agreements pursuant to which options are granted under the Plan, be validly authorized and legally issued and outstanding, fully paid and non-assessable. We hereby consent to be named in the Registration Statement as attorneys passing upon legal matters in connection with the issuance and sale of the additional 200,000 shares of Common Stock covered thereby, and we hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Very truly yours, /s/ Harter, Secrest & Emery LLP EX-23.1 3 CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our reports dated February 12, 1998 included in Genesee & Wyoming Inc.'s Form 10-K for the year ended December 31, 1997 and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Chicago, Illinois April 2, 1998 EX-24.1 4 POWER OF ATTORNEY EXHIBIT 24.1 GENESEE & WYOMING INC. OFFICERS' AND DIRECTORS' POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the undersigned, being Directors or Officers of GENESEE & WYOMING INC., a Delaware corporation (the "Corporation"), which Corporation anticipates filing with the Securities and Exchange Commission, under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-8 (the "Registration Statement") and one or more Amendments to the Registration Statement on Form S-8 (Registration No. 333-09165) previously filed by it (collectively, the "Amendments"), to reflect Amendment No. 1 and Amendment No. 2 to the Genesee & Wyoming Inc. 1996 Stock Option Plan and Amendment No. 1 to the Genesee & Wyoming Inc. Employee Stock Purchase Plan, and to register under the Act all of the additional shares of the Corporation's Class A Common Stock issuable as a result thereof, DO HEREBY constitute and appoint MORTIMER B. FULLER, III, MARK W. HASTINGS, ALAN R. HARRIS, JAMES B. GRAY, JR. and SUSAN MASCETTE BRANDT, and each of them, the attorneys of the undersigned with full power of substitution for and in the name, place and stead of the undersigned: (1) To sign and file on behalf of the undersigned the Registration Statement and any and all amendments thereto, the Amendments, any and all exhibits thereto and any and all applications or other documents to be filed with the Securities and Exchange Commission pertaining to the securities covered by the Registration Statement or the Amendments, with full power and authority to do and perform any and all acts and things whatsoever under and in accordance with the Act and the rules and regulations promulgated thereunder by said Commission, hereby ratifying and approving the acts of such attorney or attorneys, or any such substitute or substitutes. (2) To take any and all action which they may deem necessary or desirable to register or qualify the Corporation and further to register or qualify the securities of the Corporation under the Blue Sky or securities laws of such states as they may deem necessary and desirable, and in connection therewith to prepare, execute, acknowledge and file such applications, certificates, affidavits, covenants, consents to service of process and other documents as such attorneys may deem necessary or desirable. This Instrument may be executed in several counterparts, each of which shall be an original but all of which together shall constitute one and the same Instrument. IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals as of the respective dates set forth below. Dated: March 28 , 1998 /s Mortimer B. Fuller, III ---- ---------------------------------------- MORTIMER B. FULLER, III Chairman of the Board and Chief Executive Officer Dated: March 28 , 1998 /s Mark W. Hastings ---- ---------------------------------------- MARK W. HASTINGS Senior Vice President and Chief Financial Officer Dated: March 28 , 1998 /s Alan R. Harris ---- ---------------------------------------- ALAN R. HARRIS Senior Vice President and Chief Accounting Officer Dated: March 28 , 1998 /s James Fuller ---- ---------------------------------------- JAMES M. FULLER, Director Dated: March 28 , 1998 /s Louis S. Fuller ---- ---------------------------------------- LOUIS S. FULLER, Director Dated: March 28 , 1998 /s R.M. Melzer ---- ---------------------------------------- ROBERT M. MELZER, Director Dated: March 28 , 1998 /s John M. Randolph ---- ---------------------------------------- JOHN M. RANDOLPH, Director Dated: March 28 , 1998 /s Philip J. Ringo ---- ---------------------------------------- PHILIP J. RINGO, Director 2 State of Arizona ) ----------- County of Maricopa ) ss: ---------- On this 28th day of March, 1998, before me personally came MORTIMER B. ---- FULLER, III, to me known and known to me to be the individual described in, and who executed the foregoing instrument, and he acknowledged to me that he executed the same. /s Marilyn C. Hansen ---------------------------------------- Notary Public State of Arizona ) ----------- County of Maricopa ) ss: ---------- On this 28th day of March, 1998, before me personally came MARK W. HASTINGS, ---- to me known and known to me to be the individual described in, and who executed the foregoing instrument, and he acknowledged to me that he executed the same. /s Marilyn C. Hansen ---------------------------------------- Notary Public State of Arizona ) - -------------------- County of Maricopa ) ss: - -------------------- On this 28th day of March, 1998, before me personally came ALAN R. HARRIS, ---- to me known and known to me to be the individual described in, and who executed the foregoing instrument, and he acknowledged to me that he executed the same. /s Marilyn C. Hansen ---------------------------------------- Notary Public 3 State of Arizona ) --------- County of Maricopa ) ss: ---------- On this 28th day of March, 1998, before me personally came JAMES M. FULLER, ---- to me known and known to me to be the individual described in, and who executed the foregoing instrument, and he acknowledged to me that he executed the same. /s Marilyn S. Hansen ---------------------------------------- Notary Public State of Arizona ) ----------- County of Maricopa ) ss: ---------- On this 28th day of March, 1998, before me personally came LOUIS S. FULLER, ---- to me known and known to me to be the individual described in, and who executed the foregoing instrument, and he acknowledged to me that he executed the same. /s Marilyn S. Hansen ---------------------------------------- Notary Public State of Arizona ) ----------- County of Maricopa ) ss: ---------- On this 28th day of March, 1998, before me personally came ROBERT M. ---- MELZER, to me known and known to me to be the individual described in, and who executed the foregoing instrument, and he acknowledged to me that he executed the same. /s Marilyn C. Hansen ---------------------------------------- Notary Public 4 State of Arizona ) ----------- County of Maricopa ) ss: ---------- On this 28th day of March, 1998, before me personally came JOHN M. ---- RANDOLPH, to me known and known to me to be the individual described in, and who executed the foregoing instrument, and he acknowledged to me that he executed the same. /s Marilyn C. Hansen --------------------------------------------- Notary Public State of Arizona ) ----------- County of Maricopa ) ss: ---------- On this 28th day of March, 1998, before me personally came PHILIP J. RINGO, ---- to me known and known to me to be the individual described in, and who executed the foregoing instrument, and he acknowledged to me that he executed the same. /s Marilyn S. Hansen ---------------------------------------- Notary Public 5 -----END PRIVACY-ENHANCED MESSAGE-----