-----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, WCnwsMfv+Wgouo/kS41derSHDJSvUz42fc8xeCXdENQHPcFedvG72dvrU1q/JfVm umEVOSDm6G1tQ9zp/DzukA== 0000912057-00-053809.txt : 20001219 0000912057-00-053809.hdr.sgml : 20001219 ACCESSION NUMBER: 0000912057-00-053809 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20001215 EFFECTIVENESS DATE: 20001215 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GREENBRIER COMPANIES INC CENTRAL INDEX KEY: 0000923120 STANDARD INDUSTRIAL CLASSIFICATION: RAILROAD EQUIPMENT [3743] IRS NUMBER: 930816972 STATE OF INCORPORATION: DE FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 033-80869 FILM NUMBER: 790930 BUSINESS ADDRESS: STREET 1: ONE CENTERPOINTE DR STREET 2: STE 200 CITY: LAKE OSWEGO STATE: OR ZIP: 97035 BUSINESS PHONE: 5036847000 MAIL ADDRESS: STREET 1: ONE CENTERPOINTE DR STREET 2: STE 200 CITY: LAKE OSWEGO STATE: OR ZIP: 97035 S-8 POS 1 a2033398zs-8pos.txt S-8 POS As filed with the Securities and Exchange Registration No. 33-80869 Commission on December 15, 2000 Post-effective Amendment No. 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------- FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 The Greenbrier Companies, Inc. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE 93-0816972 - -------------------------------------------------------------------------------- (State or other jurisdiction of (IRS Employer of incorporation or organization) Identification No.) 200 One Centerpointe Drive Lake Oswego,Oregon 97035 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) 1994 Stock Incentive Plan - -------------------------------------------------------------------------------- (Full title of the plan) William A. Furman President and Chief Executive Officer 200 One Centerpointe Drive Lake Oswego, Oregon 97035 (503) 684-7000 - -------------------------------------------------------------------------------- (Name, address and telephone number of agent for service) Copies to: Kenneth D. Stephens Tonkon Torp LLP 1600 Pioneer Tower 888 S.W. Fifth Avenue Portland, Oregon 97204 (503) 221-1440 CALCULATION OF REGISTRATION FEE
- ---------------------------- -------------------------- --------------------------- ------------------------ Title of securities to Amount to be Proposed maximum Amount of be registered registered aggregate offering price registration fee - ---------------------------- -------------------------- --------------------------- ------------------------ common stock, 312,500 shares (1) See note (2) See note (2) $.001 par value - ---------------------------- -------------------------- --------------------------- ------------------------
(1) This post-effective amendment to Registration No. 33-80869 amends the Form S-8 Registration Statement previously filed that registered 1,380,000 shares of Greenbrier's common stock reserved for issuance under Greenbrier's 1994 Stock Incentive Plan (the "Plan"). This filing registers 312,500 shares of Greenbrier's common stock relating to reofferings of common stock which may be acquired from time to time in connection with exercises of options granted under the Plan, by certain directors and officers of Greenbrier who may be deemed to be affiliates that hold control securities (as those terms are defined by Rule 144 and Rule 405 under the Securities Act of 1933, as amended (the "Securities Act")). (2) A registration fee of $6,168.61 was paid in connection with the registration of the securities offered pursuant to the Plan on Form S-8, Registration No. 33-80869. In accordance with Rule 457(h)(3), no additional fee is payable with respect to those securities now being offered for resale pursuant to this post-effective amendment to Registration No. 33-80869. THE GREENBRIER COMPANIES, INC. CROSS REFERENCE SHEET BETWEEN THE REGISTRATION STATEMENT AND THE PROSPECTUS (PART I OF FORM S-3 FOR USE ON FORM S-8) The location in the prospectus of the information to be included in the prospectus in response to the Items of Part I of Form S-3 for use on Form S-8 is as follows:
Item Location in Prospectus ---- ---------------------- 1. Forepart of the Registration Statement Outside Front Cover Page And Outside Front Cover Page of Prospectus 2. Inside Front and Outside Back Cover Inside Front Cover Page Pages of Prospectus 3. Summary of Information, Risk Factors Outside Front Cover Page, Risk Factors 4. Use of Proceeds Not Applicable 5. Determination of Offering Price Not Applicable 6. Dilution Not Applicable 7. Selling Security Holders Selling Stockholders 8. Plan of Distribution Outside Front Cover Page, Plan of Distribution 9. Description of Securities to be Registered Incorporation of Certain Documents by Reference 10. Interest of Named Experts and Counsel Legal Matters, Experts 11. Material Changes Not Applicable 12. Incorporation of Certain Information Incorporation of Certain by Reference Documents by Reference 13. Disclosure of Commission Position on Not Applicable Indemnification for Securities Act Liabilities
1 REOFFER PROSPECTUS THE GREENBRIER COMPANIES, INC. THE OFFERING This prospectus is being used in connection with the offering from time to time by certain officers and directors of The Greenbrier Companies, Inc. ("selling stockholders") or their successors in interest of shares of common stock (the "common stock") of The Greenbrier Companies, Inc. ("Greenbrier", or the "Company") that the selling stockholders may acquire upon the exercise of stock options granted under Greenbrier's 1994 Stock Incentive Plan. Shares of common stock offered by selling stockholders........ 312,500 Offering price.......................... The selling stockholders may offer the shares for sale on the New York Stock Exchange at the market price at the time of the sale. The selling stockholders may also offer the shares in privately negotiated transactions either at the market price at the time of the sale, at a price related to the market price or at a negotiated price. On December 11, 2000, the closing sales price of Greenbrier's common stock on the New York Stock Exchange was $9.25 per share. New York Stock Exchange Symbol ......... GBX
----------------------------------------- THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 7. ----------------------------------------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. --------------------------------- The date of this prospectus is December 11, 2000. 2 TABLE OF CONTENTS Prospectus Summary............................................................4 Explanatory Note.........................................................4 The Greenbrier Companies.................................................4 Where You Can Find More Information......................................4 Incorporation of Certain Documents by Reference..........................5 Risk Factors..................................................................7 Customer Concentration and Order Size....................................7 Fluctuating Demand for Railcar Products..................................7 Ability to Remarket Leased Equipment Profitably..........................7 Dependence on Suppliers..................................................7 Competition..............................................................8 Environmental Matters....................................................8 Control by Principal Stockholders........................................9 This Offering................................................................10 Selling Stockholders.........................................................11 Plan of Distribution.........................................................13 Experts......................................................................14 Signatures...................................................................15 ----------------------------------- THIS PROSPECTUS INCORPORATES IMPORTANT BUSINESS AND FINANCIAL INFORMATION ABOUT GREENBRIER THAT IS NOT INCLUDED IN OR DELIVERED WITH THIS PROSPECTUS. YOU MAY REQUEST A COPY OF ALL DOCUMENTS THAT ARE INCORPORATED BY REFERENCE IN THIS PROSPECTUS BY WRITING OR TELEPHONING GREENBRIER AT THE FOLLOWING ADDRESS: ATTENTION MARK J. RITTENBAUM, VICE PRESIDENT AND TREASURER, THE GREENBRIER COMPANIES, ONE CENTERPOINTE DRIVE, SUITE 200, LAKE OSWEGO, OREGON 97035, TELEPHONE (503) 684-7000. COPIES OF ALL DOCUMENTS REQUESTED WILL BE PROVIDED WITHOUT CHARGE (NOT INCLUDING THE EXHIBITS TO THOSE DOCUMENTS, UNLESS THE EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO THOSE DOCUMENTS OR THIS PROSPECTUS). 3 PROSPECTUS SUMMARY THIS SUMMARY HIGHLIGHTS SELECTED INFORMATION FROM THIS PROSPECTUS AND MAY NOT CONTAIN ALL THE INFORMATION THAT IS IMPORTANT TO YOU. TO UNDERSTAND THE CIRCUMSTANCES AND TERMS OF THE OFFERING AND FOR COMPLETE INFORMATION ABOUT GREENBRIER, YOU SHOULD READ THIS ENTIRE DOCUMENT AND THE INFORMATION INCORPORATED BY REFERENCE, INCLUDING THE FINANCIAL STATEMENTS AND THE NOTES TO THE FINANCIAL STATEMENTS. EXPLANATORY NOTE This reoffer prospectus is filed as a part of the Registration Statement on Form S-8 and has been prepared in accordance with the requirements of Part I of Form S-3 and may be used for reoffers of common stock defined as "control securities" under Instruction C to Form S-8 acquired by "affiliates" (as that term is defined in Rule 405 of the General Rules and Regulations under the Securities Act of 1933, as amended (the "Securities Act")) pursuant to the exercise of stock options under Greenbrier's 1994 Stock Incentive Plan. THE GREENBRIER COMPANIES Greenbrier was incorporated in the State of Delaware in 1981. On November 7, 2000 the Company's Board of Directors approved a plan of redomestication and recommended the plan to the Company's stockholders for approval. If the redomestication plan is approved by the Company's stockholders the Company will change its state of domicile and become an Oregon corporation. The redomestication will occur by means of a merger of the Company with and into an Oregon subsidiary of the Company, Oregon Greenbrier Companies, Inc., which will be the surviving corporation. The redomestication plan and plan of merger will be submitted to the Company's stockholders at its annual stockholders' meeting on January 9, 2001. Greenbrier supplies conventional and intermodal transportation equipment and services to the railroad industry. Intermodal transportation is the movement of cargo in standardized containers or trailers that are freely interchangeable among railcar, truck or ship. Greenbrier operates two primary business segments: manufacturing and leasing & services. The manufacturing segment produces double-stack intermodal railcars, conventional railcars, marine vessels and forged steel products, and performs railcar refurbishment and maintenance activities. In Europe, Greenbrier also manufactures new freight cars through the use of unaffiliated sub-contractors. Greenbrier currently manages a fleet of railcars of which 45% are owned and the remainder are managed for railroads, institutional investors and other leasing companies. Management services include equipment marketing and re-marketing, maintenance, management and administration. Greenbrier participates in both the finance and the operating lease segments of the market. WHERE YOU CAN FIND MORE INFORMATION Greenbrier is subject to the information requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In accordance with the Exchange Act Greenbrier files annual, quarterly and special reports, proxy statements and other information with the Securities 4 and Exchange Commission (the "SEC"). You may inspect and copy any document Greenbrier files at the SEC's public rooms at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's Northeast Regional Office at Seven World Trade Center, New York, New York 10048; and at the Midwest Regional Office, 500 West Madison Street, Suite 1400, Chicago, Illinois 60621. You may also purchase copies of Greenbrier's filings by writing to the Public Reference Section of the SEC at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549. Information on the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330. Greenbrier's SEC filings are also available on the SEC's website at http://www.sec.gov. ------------------ INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE This prospectus is part of a registration statement on Form S-8 that Greenbrier filed with the SEC in accordance with the requirements of Part I of Form S-3 and General Instruction C of the Instructions to Form S-8. The SEC allows the Company to "incorporate by reference" information that it files with the SEC. This means the Company can disclose important information to you by referring you to other documents that the Company has filed with the SEC. The information that is incorporated by reference is considered part of this prospectus, and information that Greenbrier files later will automatically update and may supersede this information. For further information about Greenbrier and the securities being offered, you should refer to the registration statement and the following documents that are incorporated by reference: - Greenbrier's annual report on Form 10-K for the fiscal year ended August 31, 2000; - The description of the Greenbrier's common stock, $0.001 par value included in the Company's Registration Statement on Form S-1, as declared effective on July 11, 1994 (Registration No. 33-78852), including any amendments or report filed for the purpose of updating such information; and - All documents Greenbrier files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus and prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold. Greenbrier will provide without charge to each person to whom a copy of this prospectus is delivered, on the written or oral request of such person, a copy of any and all of the information that has been incorporated by reference into the registration statement (other than exhibits to such information unless such exhibits are specifically incorporated by reference into the information that the registration statement incorporates). Written or oral requests for such information should be directed to: Mark J. Rittenbaum, Vice President and Treasurer, The Greenbrier Companies, One Centerpointe Drive, Suite 200, Lake Oswego, Oregon 97035, telephone (503) 684-7000. Greenbrier has not authorized any person to give any information or to make any representations in connection with sale of the shares by the selling stockholders other than those 5 contained in this prospectus. You should not rely on any information or representations in connection with such sales other than the information or representations in this prospectus. You should not assume that there has been no change in the Company's affairs since the date of this prospectus or that the information in this prospectus is correct as of any time after its date. This prospectus is not an offer to sell or a solicitation of an offer to buy shares in any state or under any circumstances in which such an offer or solicitation is unlawful. 6 RISK FACTORS Before you invest in Greenbrier's common stock you should be aware that there are various risks, including those described below, that may affect the Company's business, financial condition and results of operations. However, this list of risk factors may not be exhaustive. CUSTOMER CONCENTRATION AND ORDER SIZE. The railcar customer base is highly concentrated and each customer has substantial purchasing power. In any given year, a small number of customers and a correspondingly small number of large purchase orders represent a significant percentage of the Company's revenues. In 2000, sales to the two largest customers, TTX Company and The Burlington Northern and Santa Fe Railway Company ("BNSF"), accounted for 30% and 9% of total revenues and 33% and 7% of manufacturing revenues. Sales to Union Pacific Railroad and BNSF accounted for approximately 27% and 12% of leasing & services revenues. The loss of any of these or other substantial customers, or a material adverse change in the financial condition of these customers, could have a material adverse effect on the Company's results of operations. FLUCTUATING DEMAND FOR RAILCAR PRODUCTS. Demand for new railcars has widely fluctuated on an industry-wide basis over the past two decades. During most of the 1980's new railcar deliveries declined severely due to production overcapacity. During the 1990's the overall use of railroads for freight transportation increased, overcapacity decreased, and a large number of railcars are now nearing the end of their useful lives. There can be no assurance, however, that economic conditions will remain favorable or that there will not be significant fluctuations in demand for railcars that adversely impact the industry as a whole, and the Company in particular. ABILITY TO REMARKET LEASED EQUIPMENT PROFITABLY. The profitability of the Company's transportation equipment leasing & services activities is dependent in part upon the Company's ability to resell or re-lease owned equipment upon the expiration of the existing lease terms or otherwise. The lease rates and residual value of leased equipment may vary substantially, and the Company's ability to remarket such equipment profitably depends upon, among other factors, the cost of comparable new equipment, the general market availability of other used or new equipment, the degree of obsolescence of the leased equipment, the prevailing market and economic conditions, including interest and inflation rates, the need for refurbishment and the cost of materials and labor. Most of these factors are outside the control of the Company. Therefore, there can be no assurance that the Company will be able to continue to remarket its transportation equipment at a profit. DEPENDENCE ON SUPPLIERS. Each railcar produced by the Company requires the supply of raw materials such as steel plate, as well as numerous specialty components such as brakes, wheels and axles. The 7 Company has at least two suppliers for most of the raw materials and specialty components used in its manufacturing operations. There can be no assurance, however, that the Company will not experience shortages of raw materials or components essential to the production of railcars or be forced to seek alternative sources of supply which may increase costs or adversely affect the Company's ability to obtain and fulfill orders for railcar products. COMPETITION. The freight car manufacturing business and the transportation equipment leasing industry are both highly competitive. Price competition is vigorous and, coupled with the existence of a strong United States-Canada Free Trade Agreement and the ratification in 1993 of the North American Free Trade Agreement, as well as currency fluctuations and other factors, the number of railroad freight cars entering the United States from Canada increased in 1993 and may continue to increase. Orders for most types of railcars are competitively bid. Greenbrier is affected by a variety of competitors in each of its principal business activities. There are currently seven major railcar manufacturers competing in North America. Two of these producers build railcars principally for their own fleets and five producers -- Trinity Industries, Inc., Thrall Car Manufacturing Co., Johnstown America Corp., National Steel Car, Ltd. and the Company -- compete principally in the general railcar market. Some of these producers have substantially greater resources than the Company. Greenbrier competes on the basis of type of product, reputation for quality, price, reliability of delivery and customer service and support. Competition in Europe, with 20 to 30 railcar producers, is more fragmented than in North America. In railcar leasing, principal competitors in North America include Bombardier Rail Capital, The CIT Group, First Union Rail, GATX Corporation and General Electric Railcar Services. Greenbrier does not currently provide significant leasing services in Europe. Some of the Company's competitors have greater financial resources than the Company and there can be no assurance that such competitors will not increase their participation in the primary market segments in which the Company operates. ENVIRONMENTAL MATTERS. The Company is subject to national, state, provincial and local environmental laws and regulations concerning, among other matters, air emissions, wastewater discharge, solid and hazardous waste disposal and employee health and safety. Greenbrier maintains an active program of environmental compliance and believes that its current operations are in material compliance with all applicable national, state, provincial and local environmental laws and regulations. Prior to acquiring manufacturing facilities, the Company conducts investigations to evaluate the environmental condition of subject properties and negotiates contractual terms for allocation of environmental exposure arising from prior uses. Upon commencing operations at acquired facilities, the Company endeavors to implement environmental practices, which are at least as stringent as those mandated by applicable laws and regulations. Environmental studies have been conducted of owned and leased properties, which indicate additional investigation and some remediation may be necessary. The Portland, Oregon 8 manufacturing facility is located on the Willamette River. The United States Environmental Protection Agency is considering possible classification of portions of the river bed, including the portion fronting the facility, as a federal "superfund" site due to sediment contamination. There is no indication that the Company has contributed to the contamination of the Willamette River bed, although uses by prior owners of the property may have contributed. Nevertheless, ultimate classification of the Willamette River may have an impact on the value of the Company's investment in the property and may require the Company to initially bear a portion of the cost of any mandated remediation. The Company may be required to perform periodic maintenance dredging in order to continue to launch vessels from its side-launch ways on the river and classification as a superfund site could result in some limitations on future launch activity. Management believes that its operations adhere to sound environmental practices, and applicable laws and regulations. However, there can be no assurance that current regulatory requirements will not change or that currently unforeseen environmental incidents will not occur or past failures to comply with environmental laws will not be discovered on the Company's properties. CONTROL BY PRINCIPAL STOCKHOLDERS. The two principal stockholders of the Company, Alan James and William A. Furman, beneficially own an aggregate of approximately 60.1% of the outstanding common stock. Messrs. James and Furman are parties to a stockholders' agreement (the "Stockholders' Agreement") pursuant to which they agreed to vote all shares of the Company's common stock over which they control voting power to elect the current and proposed directors of the Company, including each other, and generally to vote in concert (or to refrain from voting) with respect to all other matters submitted to a vote of the stockholders. As a result, Messrs. James and Furman have the ability to control the Company's operations as well as the vote on most issues submitted to the Company's stockholders, including the election of all of the Company's directors and approval or disapproval of fundamental corporate changes, such as mergers, dissolution and changes in control. In addition, as long as they hold 55% or more of the outstanding common stock, Messrs. James and Furman may amend all of the provisions of the Company's Restated Certificate of Incorporation (the "Certificate of Incorporation"). As stockholders, Messrs. James and Furman will not be prohibited from acting in their own self-interest in respect of, among other things, voting or disposition of their shares of common stock. The Stockholders' Agreement also provides that Messrs. James and Furman will not take any action in furtherance of any transaction resulting in, or likely to result in, a change in control of the Company, except as may be required by law in the performance of their duties as a director or officer of the Company or except as they mutually agree. 9 THIS OFFERING Certain selling stockholders may offer and sell, from time to time, up to 312,500 shares of Greenbrier's common stock. These are shares that have been or may be acquired by the selling stockholders upon the exercise of stock options granted to them as of the date of this prospectus pursuant to Greenbrier's 1994 Stock Incentive Plan (the "Plan"). Options or shares of common stock may be issued under the Plan in amounts and to persons not presently known. Once the amounts and names are known, such persons, their holdings of common stock and certain other information may be included in a subsequent version of this prospectus. Greenbrier will pay the expenses of preparing this prospectus and the related registration statement. All brokerage commissions and other expenses incurred in connection with sales by the selling stockholders will be borne by such selling stockholders. Greenbrier will not receive any of the proceeds from the sale of the shares covered by this prospectus. While Greenbrier will receive sums upon any exercise of options by the selling stockholder, there are currently no plans for application of such sums other than for general corporate purposes. Greenbrier cannot assure that any of such options will be exercised. 10 SELLING STOCKHOLDERS The following table sets forth: (i) the name and position of each selling stockholder who may sell common stock pursuant to this prospectus, whose name is known as of the date of the filing of the Registration Statement of which this prospectus forms a part; (ii) the number of shares of common stock owned (or subject to option under the 1994 Stock Incentive Plan) by each selling stockholder as of the date of this prospectus; (iii) the number of shares of common stock which may be offered and are being registered for the account of each selling stockholder by this prospectus (all of which may be acquired by the selling stockholders pursuant to the exercise of options); and (iv) the amount and percentage of common stock to be owned by each such selling stockholder if such selling stockholder were to sell all of the shares of common stock covered by this prospectus. Options or shares of common stock may be issued under the Plan in amounts and to persons not presently known; when known, such persons, their holdings of common stock and certain other information may be included in a subsequent version of this prospectus.
- -------------------------------- ------------------------------- ---------------------------- ------------------------ Name and Position Number of Shares of Common Number of Shares of Common Number of Shares of Stock Owned or Subject to Stock to be Offered Common Stock Option Prior to Offering(1) Owned/Percentage After Offering(2) - -------------------------------- ------------------------------- ---------------------------- ------------------------ Victor G. Atiyeh, Director 5,800 5,500 * - -------------------------------- ------------------------------- ---------------------------- ------------------------ Peter K. Nevitt, Director 10,500 5,500 * - -------------------------------- ------------------------------- ---------------------------- ------------------------ Benjamin R. Whiteley, Director 10,500 3,500 * - -------------------------------- ------------------------------- ---------------------------- ------------------------ A. Daniel O'Neal, Director 40,402 35,125 * - -------------------------------- ------------------------------- ---------------------------- ------------------------ C. Bruce Ward, Director 11,125 8,625 * - -------------------------------- ------------------------------- ---------------------------- ------------------------ Robin Bisson, 50,430 45,625 * Senior Vice President, Marketing and Sales - -------------------------------- ------------------------------- ---------------------------- ------------------------ Larry G. Brady, 29,500 29,500 * Senior Vice President and Chief Financial Officer - -------------------------------- ------------------------------- ---------------------------- ------------------------ Mark J. Rittenbaum, Vice 35,800 34,500 * President and Treasurer - -------------------------------- ------------------------------- ---------------------------- ------------------------ Timothy A. Stuckey, President 20,625 20,625 * of Gunderson Rail Services, Inc. - -------------------------------- ------------------------------- ---------------------------- ------------------------ 11 - -------------------------------- ------------------------------- ---------------------------- ------------------------ Norris M. Webb, Executive 48,331 45,000 * Vice President and General Counsel - -------------------------------- ------------------------------- ---------------------------- ------------------------ L. Clark Wood, President of 49,300 49,000 * Greenbrier Manufacturing Operations - -------------------------------- ------------------------------- ---------------------------- ------------------------ William L. Bourque, 35,000 30,000 * Vice President, International Marketing - -------------------------------- ------------------------------- ---------------------------- ------------------------ TOTAL 347,313 312,500 - -------------------------------- ------------------------------- ---------------------------- ------------------------
* Less than one percent. (1) For purposes of this table, the number of shares of common stock owned prior to this offering includes (a) all shares of common stock owned as of the date of this prospectus and (b) shares of common stock which would be owned if all options granted under the Plan as of the date of this prospectus were exercised, regardless of whether those options are currently exercisable. It does not include options, exercisable or unexercisable, granted under the other stock option plans maintained by Greenbrier. (2) Applicable percentage of ownership is based on 14,171,732 shares of common stock outstanding on September 29, 2000. 12 PLAN OF DISTRIBUTION The selling stockholders have not advised Greenbrier of any specific plan for distribution of the shares offered hereby, but it is anticipated that the shares will be sold from time-to-time by the selling stockholders or by their pledges, donees, transferees or other successors in interest. Such sales may be made over-the-counter on the New York Stock Exchange at prices and at terms then prevailing or at prices related to the then current market price, or in negotiated transactions. The shares may be sold by one or more of the following: (i) a block trade in which the broker or dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; (ii) purchases by a broker or dealer for its account pursuant to this prospectus; or (iii) ordinary brokerage transactions and transactions in which the broker solicits purchases. In effecting sales, brokers or dealers engaged by the selling stockholders may arrange for other brokers or dealers to participate. Brokers or dealers will receive commissions or discounts from the selling stockholders in amounts to be negotiated immediately prior to the sale. Such brokers or dealers may be deemed to be "underwriters" within the meaning of the Securities Act in connection with such sales, and any commission received by them and any profit realized by them on the resales of shares as principals may be deemed underwriting compensation under the Securities Act. Shares of common stock covered by this prospectus also may qualify to be sold pursuant to Rule 144 under the Securities Act, rather than pursuant to this prospectus. 13 EXPERTS The financial statements and the related financial statement schedule incorporated in this prospectus by reference from the Company's Annual Report on Form 10-K for the year ended August 31, 2000 have been audited by Deloitte & Touche, independent auditors, as stated in their reports, which are incorporated herein by reference, and have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing. 14 SIGNATURES Pursuant to the requirements of the Securities 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 amendment to Registration Statement No. 33-80869 to be signed on its behalf by the undersigned, thereunto duly authorized, in Lake Oswego, Oregon, on December 11, 2000. THE GREENBRIER COMPANIES, INC. By /s/ William A. Furman ------------------------------------- William A. Furman President and Chief Executive Officer And as Attorney-in-Fact 15 II-5 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by Greenbrier with the Securities Exchange Commission (the "SEC") are incorporated by reference in this Registration Statement: (a) Greenbrier's annual report on Form 10-K for the fiscal year ended August 31, 2000. (b) The description of Greenbrier's common stock, $0.001 par value (the "common stock") set forth in Greenbrier's Registration Statement on Form S-1, as declared effective on July 11, 1994 (Registration No. 33-78852), including any amendments or reports filed for the purpose of updating such information. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Tonkon Torp LLP acted as counsel for the Company in connection with the preparation of this Registration Statement. A member of Tonkon Torp LLP is Secretary of the Company and beneficially owns 7,450 shares, including 350 shares owned by his spouse of which he disclaims ownership. Three other members of the firm beneficially own an aggregate of 8,890 shares. Pursuant to Item 8 of Form S-8, no opinion of counsel is required with respect to the shares of common stock registered by this filing as such shares are offered for resale and are not original issuance securities. Item 6. Indemnification of Directors and Officers. Under the Delaware General Corporation Law ("DGCL"), the Company's Restated Certificate of Incorporation (the "Certificate"), and the Company's Amended and Restated Bylaws (the "Bylaws"), the Company has broad powers to indemnify directors and officers against liabilities that they may incur in such capacities. Pursuant to Section 102(b)(7) of the DGCL, Article Sixth of the Certificate contains the following provision relating to the personal liability of the Company's directors: "No director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability, to the extent provided by applicable law, (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omission not in good faith II-1 or which involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware, as so amended. This Article Sixth shall not eliminate or limit the liability of a director for any act or omission which occurred prior to the effective date of its adoption. Any repeal or modification of this Article Sixth by the stockholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification." Pursuant to DGCL Section 145 and Article Seventh of the Certificate, Article VIII of the Company's Amended and Restated Bylaws provides: "Section 1. DIRECTORS AND OFFICERS. (a) INDEMNITY IN THIRD-PARTY PROCEEDINGS. The corporation shall indemnify its Directors and officers in accordance with the provisions of this Section 1(a) if the Director or officer was or is a party to, or is threatened to be made a party to, any proceeding (other than a proceeding by or in the right of the corporation to procure a judgment in its favor), against all expenses, judgments, fines and amounts paid in settlement, actually and reasonably incurred by the Director or officer in connection with such proceeding if the Director or officer acted in good faith and in a manner the Director or officer reasonably believed was in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, the Director or officer, in addition, had no reasonable cause to believe that the Director's or officer's conduct was unlawful; PROVIDED HOWEVER, that the Director or officer shall not be entitled to indemnification under this Section 1(a): (i) in connection with any proceeding charging improper personal benefit to the Director or officer in which the Director or officer is adjudged liable on the basis that personal benefit was improperly received by the Director or officer unless and only to the extent that the court conducting such proceeding or any other court of competent jurisdiction determines upon application that, despite the adjudication of liability, the Director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, or (ii) in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against the corporation or its Directors, officers, employees or other agents unless (A) such indemnification is expressly required to be made by law, (B) the proceeding was authorized by the Board of Directors, or (C) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the Delaware General Corporation Law." In addition to the indemnification and exculpation provided by the Company's Certificate and Bylaws, the Company has entered into an indemnification agreement with each of its directors and officers. The indemnification agreements provide that no director or officer shall have a monetary liability of any kind in respect of the director's or officer's errors or omissions in II-2 serving the Company or any of its subsidiaries, stockholders or related enterprises, so long as such errors are not shown by clear and convincing evidence to have involved: (i) any breach of the duty of loyalty to such entities; (ii) any act or omission not in good faith or which involved intentional misconduct or a knowing violation of the law; (iii) any transaction from which the director or officer derived an improper personal benefit; (iv) any unlawful corporate distribution as defined in the DGCL; or (v) profits made from the purchase and sale by the director or officer of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended. Furthermore, regardless of the theory of liability asserted and to the fullest extent permitted by law, no director or officer shall have personal liability for (i) punitive, exemplary or consequential damages; (ii) treble or other damages computed based upon any multiple of damages actually and directly proved to have been sustained; (iii) fees of attorneys, accountants, expert witnesses or professional consultants; or (iv) civil fines or penalties of any kind or nature whatsoever. The indemnification agreements also require the Company to indemnify any director or officer who is a party to, or is threatened to be made a party to, any proceeding, against all expenses, judgments, fines and amounts paid in settlement, actually and reasonably incurred by the director or officer in connection with such proceeding, if the director or officer: (i) acted in good faith and in a manner the director or officer reasonably believed was in or not opposed to the best interests of the Company; and (ii) with respect to any criminal proceeding, the director or officer also had no reasonable cause to believe that his or her conduct was unlawful. In any proceeding charging a director or officer with improper personal benefit to the director or officer, the Company will indemnify the director or officer if the appropriate court determines that the director or officer is fairly and reasonably entitled to indemnification. The indemnification agreements also provide indemnity to a director or officer in proceedings brought by or in the right of the Company, as long as the director or officer acted in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the Company. If a director or officer is adjudged liable to the Company, he or she will not be indemnified unless the appropriate court determines that the director or officer is fairly and reasonably entitled to indemnification. Notwithstanding the foregoing, the indemnification agreements indemnify each director and officer to the fullest extent permitted by law with respect to any proceeding against all expenses, judgments, fines and amounts paid in settlement, actually and reasonably incurred by the director or officer in connection with any proceeding. The forms of indemnification agreements entered into between the Company and its officers and directors have been filed with the SEC and are incorporated by reference to the Company's Registration Statement on Form S-1, as declared effective on July 11, 1994 (Registration No. 33-78852). The Company maintains directors' and officers' liability insurance under which the Company's directors and officers are insured against claims for errors, neglect, breach of duty and other matters. Item 7. Exemption from Registration Claimed. II-3 Not applicable. Item 8. Exhibits. The exhibits listed in the Index to Exhibits, which appears on page 16 herein, are filed as part of this Registration Statement. 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 Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or most recent post-effective amendment thereto) 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) do 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 the Registration Statement. (2) That, for the purpose of determining any liability under the Securities 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 Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration II-4 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 Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the above-referenced provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than 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 of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. [THIS SPACE IS INTENTIONALLY LEFT BLANK.] II-5 INDEX TO EXHIBITS
Exhibit Number Exhibit - -------------- ------- 4.1 Restated Certificate of Incorporation(1) 4.2 Amended and Restated Bylaws(1) 4.3 Form of Indemnification Agreements(1) 23.1 Consent of Deloitte & Touche LLP, Independent Auditors
Other exhibits listed in Item 601 of Regulation S-K are not applicable. An opinion of counsel is not required with respect to the shares of common stock registered by this filing as such shares are offered for resale and are not original issuance shares. - ---------------- (1) Incorporated by reference to the Company's Registration Statement on Form S-1, as declared effective on July 11, 1994 (Registration No. 33-78852). EX-23.1 2 a2033398zex-23_1.txt EXHIBIT 23.1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors of The Greenbrier Companies, Inc. We consent to the incorporation by reference in this post-effective Amendment No. 1 to Registration Statement No. 33-80869 on Form S-8 of The Greenbrier Companies, Inc. of our reports dated October 24, 2000 appearing in and incorporated by reference in the Annual Report on Form 10-K of The Greenbrier Companies, Inc. for the year ended August 31, 2000, and to the reference to us under the heading "Experts" in the Reoffer Prospectus, which is part of this Registration Statement. DELOITTE & TOUCHE Portland, Oregon December 15, 2000 -----END PRIVACY-ENHANCED MESSAGE-----