-----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, WTkYxMZIMSbYB17dySKnLaeRIvqauWhjOHY3kacdE3hrTVbuChfE3Ds9gZSrx+3p OE2lhtZDAFUQAvEzYx333g== 0000950130-00-006603.txt : 20001214 0000950130-00-006603.hdr.sgml : 20001214 ACCESSION NUMBER: 0000950130-00-006603 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20001212 EFFECTIVENESS DATE: 20001212 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: 333-51684 FILM NUMBER: 787806 BUSINESS ADDRESS: STREET 1: 66 FIELD POINT ROAD CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2036293722 MAIL ADDRESS: STREET 1: 66 FIELD POINT ROAD CITY: GREENWICH STATE: CT ZIP: 06830 S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on December 12, 2000 Registration No. 333- - -------------------------------------------------------------------------------- UNITED STATES 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 incorporation (I.R.S Employer or organization) Identification No.) 66 Field Point Road Greenwich, Connecticut 06830 (Address of Principal Executive Offices) (Zip Code) Genesee & Wyoming Inc. 1996 Stock Option Plan, as amended through May 23, 2000 (Full title of Plan) Mortimer B. Fuller, III Chairman and Chief Executive Officer Genesee & Wyoming Inc. 66 Field Point Road Greenwich, Connecticut 06830 (Name and address of agent for service) 203-629-3722 (Telephone number, including area code, of agent for service)
Calculation of Registration Fee - -------------------------------------------------------------------------------------------------------------------- Title of Plan Title of Amount to Proposed maximum Proposed maximum Amount of securities be offering price aggregate registration to be registered per share/(1)/ offering price/(1)/ fee registered - -------------------------------------------------------------------------------------------------------------------- Genesee & Wyoming Inc. 1996 Class A Common 200,000 $29.875 $5,975,000 $1,578 Stock Option Plan, as amended Stock, par value through May 23, 2000 $.01 per share - --------------------------------------------------------------------------------------------------------------------
/(1)/ Estimated in accordance with Rule 457(c), as of December 7, 2000, solely for the purpose of calculating the registration fee. Pursuant to Rule 416, there are also being registered such additional shares of Common Stock as may become issuable pursuant to anti-dilution provisions of the Plan. This Registration Statement on Form S-8 relates to an amendment to the Genesee & Wyoming Inc. 1996 Stock Option Plan that increased the number of shares of Class A Common Stock, par value $.01 per share (the "Common Stock"), to be issued thereunder by 200,000 shares. The contents of the Company's Registration Statements on Form S-8 (File Nos. 333-09165 and 333-49231), filed with the Securities and Exchange Commission on July 20, 1996, and April 2, 1998, respectively, are hereby incorporated by reference pursuant to Instruction E to Form S-8. Also pursuant to Instruction E to Form S-8, the filing fee is being paid only with respect to the 200,000 shares of Common Stock not previously registered. 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 this 12th day of December, 2000. 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 and on the 12th day of December, 2000. Signature Title * Director, Chairman and - ------------------------------ Chief Executive Officer Mortimer B. Fuller, III (Principal Executive Officer) * Chief Financial Officer - ------------------------------ (Principal Financial Officer) John C. Hellmann /s/ Alan R. Harris Senior Vice President and - ------------------------------ Chief Accounting Officer Alan R. Harris (Principal Accounting Officer) * Director - ------------------------------ James M. Fuller * Director - ------------------------------ Louis S. Fuller * Director - ------------------------------ Robert M. Melzer * Director - ------------------------------ John M. Randolph * Director - ------------------------------ Philip J. Ringo * Director - ------------------------------ M. Douglas Young Director - ------------------------------ C. Sean Day *By: /s/ Alan R. Harris - ------------------------------ Alan R. Harris Attorney-in-Fact INDEX TO EXHIBITS (4.1) Instruments defining the rights of security holders, including indentures *(a) Restated Certificate of Incorporation (b) By-laws are incorporated herein by reference to Exhibit 3.3 to the Registrant's Registration Statement on Form S-1 (Registration No. 333-3972). (c) Specimen stock certificate representing shares of Class A Common Stock is incorporated herein by reference to Exhibit 4.1 to Amendment No. 2 to the Registrant's Registration Statement on Form S-1 (Registration No. 333-3972). (d) Form of Class B Stockholders' Agreement dated as of May 20, 1996, among the Registrant, its executive officers and its Class B stockholders is incorporated herein by reference to Exhibit 4.2 to Amendment No. 1 to the Registrant's Registration Statement on Form S-1 (Registration No. 333-3972). (e) Promissory Note dated October 7, 1991 of Buffalo & Pittsburgh Railroad, Inc. in favor of CSX Transportation, Inc. is incorporated herein by reference to Exhibit 4.6 to the Registrant's Registration Statement on Form S-1 (Registration No. 333-3972). (f) First Amendment to Promissory Note dated as of March 19, 1999 between Buffalo & Pittsburgh Railroad, Inc. and CSX Transportation, Inc. is incorporated herein by reference to Exhibit 4.1 to the Registrant's Report on Form 10-K for the year ended December 31, 1998. (g) Third Amended and Restated Revolving Credit and Term Loan Agreement dated as of August 17, 1999 among the Registrant, certain subsidiaries, BankBoston, N.A. and the banks named therein is incorporated herein by reference to Exhibit 4.1 to the Registrant's Report on Form 10-Q for the quarterly period ended September 30, 1999. *(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) Additional Exhibits (a) Genesee & Wyoming Inc. 1996 Stock Option Plan is incorporated herein by reference to Exhibit 10.1 to Amendment No. 1 to the Registrant's Registration Statement on Form S-1 (Registration No. 333-3972). (b) Amendment 1 to the Genesee & Wyoming Inc. 1996 Stock Option Plan is incorporated herein by reference to Exhibit 10.1 to the Registrant's Form 10-K for the year ended December 31, 1997. (c) Amendment 2 to the Genesee & Wyoming Inc. 1996 Stock Option Plan is incorporated herein by reference to Exhibit 10.1 to the Registrant's Form 10-Q for the quarterly period ended June 30, 1998. (d) Amendment 3 to the Genesee & Wyoming Inc. 1996 Stock Option Plan is incorporated herein by reference to Exhibit 10.1 to the Registrant's Form 10-Q for the quarterly period ended March 31, 2000. (e) Amendment 4 to the Genesee & Wyoming Inc. 1996 Stock Option Plan is incorporated herein by reference to Exhibit 10.1 to the Registrant's Form 10-Q for the quarterly period ended June 30, 2000. (f) Amendment 5 to the Genesee & Wyoming Inc. 1996 Stock Option Plan is incorporated herein by reference to Exhibit 10.2 to the Registrant's Form 10-Q for the quarterly period ended June 30, 2000. (g) Amendment 6 to the Genesee & Wyoming Inc. 1996 Stock Option Plan is incorporated herein by reference to Exhibit 10.1 to the Registrant's Form 10-Q for the quarterly period ended September 30, 2000. ____________________________ * Exhibit filed with this Registration Statement EX-4.1 2 0002.txt RESTATED CERTIFICATE OF INCORPORATION EXHIBIT 4.1 RESTATED CERTIFICATE OF INCORPORATION OF GENESEE & WYOMING INC. (Originally incorporated as Genesee and Wyoming Industries, Inc. on September 1, 1977) 1. Name. The name of the Corporation is Genesee & Wyoming Inc. ---- 2. Registered Agent. The address of its registered office in the ---------------- State of Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The registered agent at such address is The Corporation Trust Company. 3. Purposes. The nature of the business or purposes to be conducted -------- or promoted is: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. Capitalization. The aggregate number of shares which the -------------- Corporation shall have authority to issue is Fourteen Million Five Hundred Thousand (14,500,000), consisting of: (i) Twelve Million (12,000,000) shares of Class A Common Stock, par value $.01 per share (the "Class A Common"); (ii) One Million Five Hundred Thousand (1,500,000) shares of Class B Common Stock, par value $.01 per share (the "Class B Common" and together with the Class A Common, the "Common Stock"); and (iii) One Million (1,000,000) shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"). A. Common Stock. The Class A Common and the Class B Common shall be identical in all respects and shall entitle the holders thereof to the same rights, privileges and limitations, except as otherwise provided herein. The relative rights, privileges and limitations of the Class A Common and the Class B Common are as follows: (a) Voting Rights. The holders of Class A Common and Class B Common ------------- shall have the following rights: 2 (i) The holders of Class A Common and Class B Common shall be entitled to vote as separate classes on all matters as to which a class vote is now, or hereafter may be, required by law. (ii) On all other matters, the holders of Class A Common and Class B Common shall vote together as a single class, provided that the holders of Class A Common shall have one vote per share and the holders of Class B Common shall have ten votes per share. (iii) There shall be no cumulative voting of any shares of either the Class A Common or the Class B Common. (b) Conversion. ---------- (i) No Conversion of Class A Common. The Class A Common shall not ------------------------------- be convertible into any class of the securities of the Corporation. (ii) Voluntary Conversion of Class B Common. Each holder of record ------------------------------------- of a share of Class B Common may at any time or from time to time, without cost to such holder and at such holder's option, convert any whole number or all of such holder's shares of Class B Common into fully paid and nonassessable shares of Class A Common at the rate of one share of Class A Common for each share of Class B Common surrendered for conversion. Any such conversion may be effected by any holder of Class B Common by surrendering such holder's certificate or certificates for the shares of Class B Common to be converted, duly endorsed, at the office of the corporation or the office of any transfer agent for the Class A Common, together with a written notice to the Corporation at such office that such holder elects to convert all or a specific number of such shares of Class B Common. Thereafter, the Corporation shall cause its transfer agent to issue and deliver to such holder a certificate or certificates for the number of shares of Class A Common to which such holder shall be entitled as aforesaid. Such conversion shall be made as of the close of business on the tenth business day following the date of such surrender, and the person or persons entitled to receive the shares of Class A Common issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Class A Common on such date. (iii) Automatic Conversion of Class B Common Upon Certain Transfers. ------------------------------------------------------------- Upon any transfer, other than an Excluded Transfer (as hereinafter defined), of a share or shares of Class B Common by the holder of record thereof, such share or shares of Class B Common shall automatically convert into and become an equal number of shares of Class A Common. For purposes of this Article 4(b)(iii), the term "Excluded Transfers" shall mean (a) any transfer to an individual or entity that is, at the time of such transfer, a holder of record of any shares of Class B Common or an "Executive Officer" (as hereinafter defined) of the Corporation; (b) any transfer by gift to a spouse, child or grandchild of a holder of record of any shares of Class B Common, or to a trust for the benefit thereof; or (c) any transfer to a spouse, child or grandchild of a holder of record of any shares of Class B Common, or to a trust for the benefit thereof, which results, 3 whether by bequest, operation of the laws of intestate succession or otherwise, from the death of such holder or record. For purposes of this Article 4(b)(iii), the term "Executive Officer" shall mean an officer of the Corporation within the meaning of Rule 16a-1 promulgated under the Securities Exchange Act of 1934, as amended. The transferor of the Class B Common shall surrender the certificate or certificates representing the transferred shares at the principal office of the Corporation at any time during normal business hours, together with (a) a written notice stating that such holder has transferred the shares, or a stated number of the shares, represented by such certificate or certificates and (b) a written statement advising as to whether or not the transfer is an Excluded Transfer. In the event that, according to such statement, the transfer is an Excluded Transfer, the transferor shall also deliver to the Corporation proof acceptable to the Corporation and its counsel of the nature of the Excluded Transfer. If the transferor does not claim an Excluded Transfer, the transfer or shares and automatic conversion of shares of Class B Common into shares of Class A Common under this Article 4(b)(iii) shall be deemed to have been effected as of the close of business on the date on which the transferor surrenders such certificate or certificates representing shares of Class B Common and delivers such notice, and at such time the rights of the holder of record of the converted shares of Class B Common shall cease and the person or persons in whose name or names the certificate or certificates for shares of Class A Common are to be issued because of the conversion shall be deemed to have become the holder or holders of record of the Class A Common represented thereby. If the transferor claims an Excluded Transfer, the transfer shall be deemed to have been effected as of the close of business on the date on which the transferor surrenders such certificate or certificates representing shares of Class B Common, but only following the determination by the Corporation and its counsel that the proof of Excluded Transfer submitted by the transferor is acceptable. In the event the transferor claims an Excluded Transfer and the Corporation and its counsel determine that the submitted proof is not acceptable, the Corporation shall so advise the transferor by written notice accompanied by any share certificates and stock powers previously tendered by the transferor. (iv) Reserves of Class A Common. The Corporation will at all -------------------------- times reserve and keep available, solely for the purpose of issue upon conversion of the outstanding shares of Class B Common, such number of shares of Class A Common as shall be issuable upon the conversion of all outstanding shares of Class B Common, provided that the foregoing shall not be considered to preclude the Corporation from satisfying its obligations in respect of the conversion of the outstanding shares of Class B Common by delivery of shares of Class A Common which are held in the treasury of the Corporation. (c) Dividends. Subject to the rights of the Class A Common set --------- forth in Article 4(d) hereof, the Board of Directors, acting in its sole discretion, may declare in accordance with law a dividend payable in cash, in property or in shares of Class A Common on only the Class A Common or on both the Class A Common and the Class B Common. No dividends may be declared payable (i) in shares of Class B Common or (ii) only to holders of Class B Common. If a dividend is to be paid on the Class B Common, a dividend shall also be paid on the Class A Common such that the market price of the dividend paid on each share of the 4 Class A Common exceeds the market price of the dividend paid on each share of Class B Common by ten percent (rounded up, if necessary, to the nearest one- hundredth of a cent). (d) Rights Upon Liquidation. Holders of Class A Common and Class B ----------------------- Common shall have identical rights in the event of liquidation of the Corporation, and shall be treated as a single class for purposes thereof. (e) Other Terms. Neither the Class A Common Stock nor the Class B Common ----------- Stock may be subdivided, consolidated, reclassified or otherwise changed unless contemporaneously therewith the other class of shares is subdivided, consolidated, reclassified or otherwise changed in the same proportion and in the same manner. In any merger, consolidation, reorganization or other business combination, the consideration to be received per share by holders of either Class A Common Stock or Class B Common Stock must be identical to that received by holders of the other class. Holders of Common Stock are not entitled to preemptive rights, and neither the Class A Common Stock nor the Class B Common Stock is subject to redemption. B. Preferred Stock. --------------- The Board of Directors is authorized, subject to any limitations prescribed by law, to provide for the issuance of shares of Preferred Stock in series, and by filing a certificate pursuant to the applicable law of the State of Delaware (such certificate being hereinafter referred to as a "Preferred Stock Designation"), to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences, and rights of the shares of each such series and any qualifications, limitations or restrictions thereof. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of a majority of the voting power of all of the Common Stock, without a vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms of any Preferred Stock Designation. 5. Perpetual Existence. The Corporation is to have perpetual existence. ------------------- 6. By-laws. In furtherance and not in limitation of the powers ------- conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the By-laws of the Corporation. 7. Stockholders. Meetings of stockholders may be held within or without ------------ the State of Delaware, as the By-laws may provide. The books of the Corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-laws of the Corporation. Elections of directors need not be by written ballot unless the By-laws of the Corporation shall so provide. 8. Amendment. The Corporation reserves the right to amend, alter, --------- change or repeal any provision contained in this Certificate of Incorporation, in the manner now or 5 hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. 9. Liability to Directors. A member of the Corporation's Board of ---------------------- Directors shall not be personally liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except for liability of the director (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the Delaware General Corporation Law, relating to the payment of unlawful dividends or unlawful stock repurchases or redemptions, or (d) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is hereafter amended to further eliminate or limit the liability of a director of a corporation, then a director of the Corporation, in addition to the circumstances set forth herein, shall have no liability as a director (or such liability shall be limited) to the fullest extent permitted by the Delaware General Corporation Law as so amended. No repeal or modification of the foregoing provisions of this Article 9 nor, to the fullest extent permitted by law, any modification of law, shall adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. 10. Indemnification. --------------- (a) Right to Indemnification. Each person who was or is made a party or is ------------------------ threatened to be made party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she is or was a director or officer 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 of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by the indemnitee in connection therewith, and such indemnification shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnitee's heirs, executors and administrators; provided, however, that, except as provided in section (b) of this Article 10 with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred by this Article 10 shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition (hereinafter an "advancement of expenses"); provided, however, that, if the Delaware General Corporation Law 6 so requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including without limitation service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this Article 10 or otherwise. (b) Right of Indemnitee to Bring Suit. If a claim under section (a) of --------------------------------- this Article 10 is not paid in full by the Corporation within sixty days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In any suit brought by an indemnitee to enforce a right to indemnification hereunder (other than a suit brought by an indemnitee to enforce a right to an advancement of expenses) it shall be a defense that the indemnitee has not met the applicable standard of conduct set forth in the Delaware General Corporation Law. In any suit by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the indemnitee has not met the applicable standard of conduct set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense of such a suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to such indemnification or to such advancement of expenses, under this Article 10 or otherwise, shall be on the Corporation. (c) Non-Exclusive Rights. The rights to indemnification and to the -------------------- advancement of expenses conferred by this Article 10 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation's Certificate of Incorporation, as amended or supplemented, By-law, agreement, vote of stockholders or disinterested directors or otherwise. (d) Insurance. The Corporation may maintain insurance, at its expense, to --------- protect itself and any director, officer, employee or agent of the Corporation, or another corporation, partnership, joint venture, trust or other enterprise, against any expense, liability or 7 loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. (e) Indemnification of Employees and Agents. The Corporation may, to the --------------------------------------- extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article 10 with respect to the indemnification and advancement of expenses of directors and officers of the Corporation. 11. Super-Majority Voting Requirement. --------------------------------- (a) Without the affirmative vote of sixty-six and two-thirds percent (66 2/3%) of the voting power of all of the Common Stock of the Corporation entitled to vote thereon (voting together as one class), the Corporation shall not: (i) consolidate with or merge into or with any other Person (as hereinafter defined) unless the Corporation is the survivor of such consolidation or merger and no Change of Control (as hereinafter defined) has occurred thereby; or (ii) sell, lease, exchange, transfer (by liquidation or otherwise), or otherwise dispose of all or substantially all of its properties and assets (or the properties and assets of all of its Subsidiaries (as hereinafter defined), taken as a whole) to any Person or Persons, whether in a single transaction or a series of related transactions; or (iii) amend or otherwise modify or repeal this Article 11. (b) For the purposes of this Article 11, the following terms shall have the following meanings: (i) "Affiliate" of a Person is any other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, such Person. (ii) "Change of Control" shall be deemed to have occurred if and when any Person or Persons shall become the beneficial owner or owners, directly or indirectly, of shares of the Class A Common and/or the Class B Common which represent 50 percent or more of the votes represented by all outstanding shares of Class A Common and Class B Common. (iii) "Control" (including the terms "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. (iv) "Person" means and includes any individual, partnership, corporation, trust, unincorporated organization or other entity, and any government or 8 governmental authority, agency or political subdivision thereof. The term "Persons" shall include a Person and all Affiliates of such Person. The term "Person" and "Persons" shall also include any person or group of persons within the meaning of the Securities Exchange Act of 1934, as amended. (v) "Subsidiaries" means, with respect to the Corporation, all corporations, partnerships, joint ventures, trusts and other entities of which the Corporation, directly or indirectly, owns an amount of voting securities, or possesses other ownership interests, having the power, direct or indirect, to elect a majority of the Board of Directors or other governing body thereof. 12. Relevant Considerations. In discharging the duties of their ----------------------- respective positions, the Board of Directors, committees of the Board of Directors and individual Directors may, in considering the best interests of the Corporation, consider the effects of any action upon employees, general agents, and other customers and creditors of the Corporation and its subsidiaries, communities in which offices or other establishments of the Corporation are located, the economy of the state and nation, and the long-term as well as the short-term interests of the Corporation and its stockholders, including the possibility that these interests may be best served by the continued independence of the Corporation, and all other pertinent factors. 13. Classified Board of Directors. The Board of Directors shall ----------------------------- be and are divided into three classes, designated Class I, Class II and Class III, as nearly equal in number as possible, and the term of office of Directors of one class shall expire at each annual meeting of stockholders, and in all cases as to each Director, until his successor shall be elected and qualified or until his earlier resignation, removal from office, death or incapacity. Additional directorships resulting from an increase in number of Directors shall be apportioned among the classes as equally as possible. At each annual meeting of stockholders, the number of Directors equal to the number of Directors of the class whose term expires at the time of such meeting (or if less, the number of Directors properly nominated and qualified for election) shall be elected to hold office until the third succeeding annual meeting of stockholders after their election. This Restated Certificate of Incorporation shall be effective on the date of filing by the Secretary of State of the State of Delaware. IN WITNESS WHEREOF, this Restated Certificate of Incorporation which restates and integrates and further amends the provisions of the Restated Certificate of Incorporation of this Corporation, and which has been duly adopted in accordance with Sections 242 and 245 of the Delaware General Corporation Law, has been executed by its duly authorized officer this 14th day of November 2000. /s/ Mortimer B. Fuller, III ------------------------------------- Mortimer B. Fuller, III Chairman of the Board, President and Chief Executive Officer EX-5.1 3 0003.txt OPINION OF HARTER, SECREST & EMERY LLP EXHIBIT 5.1 [Letterhead of Harter, Secrest & Emery LLP] December 12, 2000 Genesee & Wyoming Inc. 66 Field Point Road 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 through May 23, 2000 (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. Genesee & Wyoming Inc. December 12, 2000 Page 2 2. The Corporation has the authority to issue an additional 200,000 shares of Common Stock pursuant to the terms of the Plan. 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 4 0004.txt CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 10, 2000, included in Genesee & Wyoming Inc.'s Form 10-K for the year ended December 31, 1999, and to all references to our firm included in this registration statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Chicago, Illinois December 12, 2000 EX-24.1 5 0005.txt 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 anticipates filing with the Securities and Exchange Commission (the "Commission"), under the provisions of the Securities Act of 1933, as amended (the "Act"), a Registration Statement on Form S-8 or a Post-Effective Amendment to the Corporation's previously filed Registration Statement on Form S-8 (collectively, the "Registration Statement") to reflect Amendment No. 4 to the Genesee & Wyoming Inc. 1996 Stock Option 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, John C. Hellmann and Alan R. Harris, 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, any and all exhibits thereto and any and all applications or other documents to be filed with the Commission pertaining to the securities covered by the Registration Statement, 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 the Commission, hereby ratifying and approving the acts of such attorney or attorneys, or any such substitute or substitutes; and (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: April 14, 2000 /s/ Mortimer B. Fuller, III ------------------------------------ Mortimer B. Fuller, III Chairman of the Board and Chief Executive Officer Dated: April 14, 2000 /s/ John C. Hellmann ------------------------------------ John C. Hellmann Chief Financial Officer Dated: April 14, 2000 /s/ Alan R. Harris ------------------------------------ Alan R. Harris Senior Vice President and Chief Accounting Officer Dated: April 14, 2000 /s/ James M. Fuller ------------------------------------ James M. Fuller, Director Dated: April 14, 2000 /s/ Louis S. Fuller ------------------------------------ Louis S. Fuller, Director Dated: April 14, 2000 /s/ Robert M. Melzer ------------------------------------ Robert M. Melzer, Director Dated: April 14, 2000 /s/ John M. Randolph ------------------------------------ John M. Randolph, Director Dated: April 14, 2000 /s/ Philip J. Ringo ------------------------------------ Philip J. Ringo, Director Dated: April 14, 2000 /s/ M. Douglas Young ------------------------------------ M. Douglas Young, Director 2 State of Arizona ) ) ss: County of Maricopa ) On this 14/th/ day of April, 2000, 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 ) ) ss: County of Maricopa ) On this 14/th/ day of April, 2000, before me personally came John C. Hellmann, 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 ) ) ss: County of Maricopa ) On this 14/th/ day of April, 2000, 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 ) ) ss: County of Maricopa ) On this 14/th/ day of April, 2000, 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 C. Hansen ------------------------------------ Notary Public State of Arizona ) ) ss: County of Maricopa ) On this 14/th/ day of April, 2000, 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 C. Hansen ------------------------------------ Notary Public State of Arizona ) ) ss: County of Maricopa ) On this 14/th/ day of April, 2000, 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 ) ) ss: County of Maricopa ) On this 14/th/ day of April, 2000, 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 ) ) ss: County of Maricopa ) On this 14/th/ day of April, 2000, 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 C. Hansen ------------------------------------ Notary Public State of Arizona ) ) ss: County of Maricopa ) On this 14/th/ day of April, 2000, before me personally came M. Douglas Young, 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 5 -----END PRIVACY-ENHANCED MESSAGE-----