Registration No. 333-
As filed with the Securities and Exchange Commission on May 13, 2015
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 | 06-0984624 | |
| (State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification Number) |
| 20 West Avenue, Darien, Connecticut | 06820 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Genesee & Wyoming Inc.
Third Amended and Restated 2004 Omnibus Incentive Plan
(Full title of the plan)
Allison M. Fergus, Esq.
General Counsel and Secretary
20 West Avenue
Darien, Connecticut 06820
(Name and address of agent for service)
(203) 202-8900
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | x | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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| TITLE OF SECURITIES TO BE REGISTERED |
AMOUNT TO BE REGISTERED(1) |
PROPOSED MAXIMUM OFFERING PRICE PER SHARE(2) |
PROPOSED MAXIMUM AGGREGATE OFFERING PRICE(2) |
AMOUNT OF REGISTRATION FEE(2) | ||||
| Class A Common Stock, $0.01 par value per share |
1,250,000 | $91.20 | $114,000,000 | $13,247 | ||||
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| (1) | In addition to the shares of Class A Common Stock set forth in the table, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), the number of shares of Class A Common Stock registered includes an indeterminable number of shares of Class A Common Stock issuable under the Genesee & Wyoming Inc. Third Amended and Restated 2004 Omnibus Incentive Plan, as this amount may be adjusted as a result of stock splits, stock dividends and anti-dilution provisions set forth therein. |
| (2) | Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the proposed maximum offering price per share, the proposed maximum aggregate offering price and the amount of registration fee have been computed on the basis of the average high and low prices per share of Class A Common Stock on the New York Stock Exchange on May 6, 2015. |
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 1,250,000 shares of Class A common stock, $0.01 par value per share (the “Common Stock”), of Genesee & Wyoming Inc. (the “Company”) available for the grant of awards under the Company’s Third Amended and Restated 2004 Omnibus Incentive Plan (the “Plan”). These additional shares of Common Stock are additional securities of the same class as other securities for which original registration statements (File Nos. 333-120558 (as amended) and 333-174573) on Form S-8 were filed with the Securities and Exchange Commission (the “Commission”) on November 16, 2004, June 1, 2007 (post-effective amendment) and May 27, 2011, respectively.
Pursuant to General Instruction E to Form S-8, the contents of such earlier registration statements are incorporated by reference into this Registration Statement, except that the provisions contained in Part II of such earlier registration statements are modified as set forth in this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents of the Company previously filed with the Commission are incorporated herein by reference:
| (a) | the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014; |
| (b) | the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015; |
| (c) | the Company’s Current Reports on Form 8-K filed with the Commission on February 25, 2015 (except for Item 7.01), March 25, 2015 (except for Item 7.01), March 31, 2015 and May 13, 2015; and |
| (d) | the description of the Common Stock contained in the Company’s registration statement on Form 8-A (File No. 001-31456) filed with the Commission on September 23, 2002, including any amendments or supplements thereto, as updated by the description of the Common Stock under “Description of Our Capital Stock – Class A Common Stock and Class B Common Stock” contained in the Company’s Registration Statement on Form S-3ASR (File No. 333-183862), filed with the Commission on September 12, 2012. |
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
| Item 8. | Exhibits. |
For a list of exhibits, see the Exhibit Index in this Registration Statement, which is incorporated into this Item 8 by reference.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company 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 Town of Darien, State of Connecticut, on May 13, 2015.
| GENESEE & WYOMING INC. | ||
| By: | /s/ John C. Hellmann | |
| Name: | John C. Hellmann | |
| Title: | President and Chief Executive Officer | |
POWER OF ATTORNEY
Each individual whose signature appears below constitutes and appoints each of John C. Hellmann and Timothy J. Gallagher such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Date | Title | Signature | ||
| May 13, 2015 | President, Chief Executive Officer and Director |
/s/ John C. Hellmann John C. Hellmann | ||
| May 13, 2015 | Chief Financial Officer | /s/ Timothy J. Gallagher | ||
| Timothy J. Gallagher | ||||
| May 13, 2015 | Chief Accounting Officer and Global Controller |
/s/ Christopher F. Liucci Christopher F. Liucci | ||
| May 13, 2015 | Chairman of the Board | /s/ Mortimer B. Fuller | ||
| Mortimer B. Fuller | ||||
| May 13, 2015 | Director | /s/ Richard H. Allert | ||
| Richard H. Allert | ||||
| May 13, 2015 | Director | /s/ Richard H. Bott | ||
| Richard H. Bott | ||||
| May 13, 2015 | Director | /s/ Øivind Lorentzen III | ||
| Øivind Lorentzen III | ||||
| May 13, 2015 | Director | /s/ Robert M. Melzer | ||
| Robert M. Melzer | ||||
| May 13, 2015 | Director | /s/ Michael Norkus | ||
| Michael Norkus | ||||
| May 13, 2015 | Director | /s/ Ann N. Reese | ||
| Ann N. Reese | ||||
| May 13, 2015 | Director | /s/ Philip J. Ringo | ||
| Philip J. Ringo | ||||
| May 13, 2015 | Director | /s/ Mark A. Scudder | ||
| Mark A. Scudder | ||||
| May 13, 2015 | Director | /s/ Hunter C. Smith | ||
| Hunter C. Smith | ||||
EXHIBIT INDEX
| Exhibit |
Description | |
| 4.1 | Restated Certificate of Incorporation is incorporated herein by reference to Annex II to the Company’s Definitive Proxy Statement on Schedule 14A filed on April 15, 2011 (File No. 001-31456). | |
| 4.2 | Amended By-laws, effective as of August 19, 2004, is incorporated herein by reference to Exhibit 2.1 to the Company’s Quarterly Report on Form 10-Q filed on November 9, 2004 (File No. 001-31456). | |
| 4.3 | 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 Company’s Registration Statement on Form S-1 (Registration No. 333-03972) filed on June 12, 1996. | |
| 4.4 | Third Amended and Restated 2004 Omnibus Incentive Plan is incorporated herein by reference to Annex I to the Company’s Definitive Proxy Statement on Schedule 14A filed on March 30, 2015. | |
| 5.1* | Opinion of Simpson Thacher & Bartlett LLP | |
| 23.1* | Consent of PricewaterhouseCoopers LLP | |
| 23.2* | Consent of PricewaterhouseCoopers LLP | |
| 24.1* | Power of Attorney (included on the signature page to this Registration Statement). | |
| * | Filed herewith |
Exhibit 5.1
[Letterhead of Simpson Thacher & Bartlett LLP]
May 13, 2015
Genesee & Wyoming Inc.
20 West Avenue
Darien, Connecticut 06820
Ladies and Gentlemen:
We have acted as counsel to Genesee & Wyoming Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to up to 1,250,000 shares (the “Shares”) of the Class A Common Stock, $0.01 par value per share (the “Class A Common Stock”), which may be issued by the Company pursuant to the Genesee & Wyoming Inc. Third Amended and Restated 2004 Omnibus Incentive Plan (the “Plan”).
We have examined the Registration Statement, the Plan and a form of the share certificate representing the Class A Common Stock. We also have examined the originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company.
In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery in accordance with the Plan, will be validly issued, fully paid and nonassessable.
We do not express any opinion herein concerning any law other than the Delaware General Corporation Law.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement.
| Very truly yours, |
| /s/ Simpson Thacher & Bartlett LLP |
| SIMPSON THACHER & BARTLETT LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 27, 2015 relating to the financial statements and the effectiveness of internal control over financial reporting of Genesee & Wyoming Inc., which appears in Genesee & Wyoming Inc.’s Annual Report on Form 10-K for the year ended December 31, 2014.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Rochester, New York
May 13, 2015
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 1, 2013 relating to the financial statements of RailAmerica, Inc., which appears in Genesee & Wyoming Inc.’s Annual Report on Form 10-K for the year ended December 31, 2014.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Rochester, New York
May 13, 2015