-----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, Wtfmati+V2BAqbCF6atbEJDeF8hVzMRhfwNhR284uDxWdQZ8WpehGPoD8Er7bgek N/rmI6+lelIXVk5Y3+3Naw== 0000950130-96-002195.txt : 19960613 0000950130-96-002195.hdr.sgml : 19960613 ACCESSION NUMBER: 0000950130-96-002195 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19960612 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENESEE & WYOMING INC CENTRAL INDEX KEY: 0001012620 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 060984624 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-03972 FILM NUMBER: 96579750 BUSINESS ADDRESS: STREET 1: 71 LEWIS ST CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2036293722 MAIL ADDRESS: STREET 2: 71 LEWIS STREET CITY: GREENWICH STATE: CT ZIP: 06830 S-1/A 1 AMENDMENT NO. 2 TO FORM S-1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 12, 1996 REGISTRATION NO. 333-3972 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- AMENDMENT NO. 2 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- GENESEE & WYOMING INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) 4011 06-0984624 DELAWARE (PRIMARY STANDARD (I.R.S. EMPLOYER (STATE OR OTHER INDUSTRIAL IDENTIFICATION NO.) JURISDICTION OF CLASSIFICATION CODE INCORPORATION OR NUMBER) ORGANIZATION) 71 LEWIS STREET GREENWICH, CT 06830 (203) 629-3722 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) MORTIMER B. FULLER, III CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER GENESEE & WYOMING INC. 71 LEWIS STREET GREENWICH, CT 06830 (203) 629-3722 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ---------------- COPIES TO: SUSAN MASCETTE BRANDT, ESQ. JOEL S. KLAPERMAN, ESQ. HARTER, SECREST & EMERY SHEARMAN & STERLING 700 MIDTOWN TOWER 599 LEXINGTON AVENUE ROCHESTER, NY 14604 NEW YORK, NY 10022 (716) 232-6500 (212) 848-4000 ---------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective. ---------------- If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [_] ---------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------- - -------------------------------------------------------------------------------
PROPOSED PROPOSED TITLE OF EACH CLASS OF MAXIMUM MAXIMUM SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE - --------------------------------------------------------------------------------------------- Class A Common Stock, par value $.01 per share............ 3,045,200 shares $16.00 $48,723,200 $16,802 - ---------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------- (1) Includes 148,000 shares to be sold by a selling stockholder and 397,200 shares that may be purchased by the Underwriters solely to cover over- allotments, if any. (2) Estimated solely for the purpose of calculating the registration fee. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a) MAY DETERMINE. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- GENESEE & WYOMING INC. ---------------- CROSS-REFERENCE SHEET PURSUANT TO RULE 404(a) AND ITEM 501(b) OF REGULATION S-K
ITEM NO. FORM S-1 CAPTION PROSPECTUS CAPTION -------- ---------------- ------------------ 1 Forepart of the Registration Statement and Outside Front Cover Page of Prospectus..... Outside Front Cover Page 2 Inside Front and Outside Back Cover Pages of Prospectus............. Inside Front Cover Page; Outside Back Cover Page 3 Summary Information, Risk Factors and Ratio of Earnings to Fixed Charges................ Outside Front Cover Page; Prospectus Summary; Selected Consolidated Financial and Operating Data; Risk Factors 4 Use of Proceeds......... Use of Proceeds 5 Determination of Offering Price......... Outside Front Cover Page; Underwriting 6 Dilution................ Dilution 7 Selling Security Holders................ Principal and Selling Stockholders 8 Plan of Distribution.... Outside Front Cover Page; Underwriting 9 Description of Securities to be Registered............. Outside Front Cover Page; Description of 10 Interests of Named Capital Stock Experts and Counsel.... Legal Matters; Experts 11 Information With Respect to the Registrant (a)Description of Business .......... Business; Recent Developments (b)Description of Property .......... Property (c)Legal Proceedings ... Business (d)Market Price of and Dividends on the Registrant's Common Equity and Related Stockholder Matters ................... Outside Front Cover Page; Dividend Policy; Principal and Selling Stockholders; Shares Eligible for Future Sale (e)Financial Statements ................... Financial Statements; Pro Forma Financial Information (f)Selected Financial Data .............. Selected Consolidated Financial and Operating Data (g)Supplementary Financial Information ....... Not Applicable (h)Management's Discussion and Analysis of Financial Condition and Results of Operations ........ Management's Discussion and Analysis of Financial Condition and Results of (i)Changes in and Operations Disagreements with Accountants on Accounting and Financial Disclosure ........ Not Applicable (j)Directors and Executive Officers ................... Management (k)Executive Compensation ...... Management (l)Security Ownership of Certain Beneficial Owners and Management ........ Principal and Selling Stockholders (m)Certain Relationships and Related Transactions....... Certain Transactions 12 Disclosure of Commission Position on Indemnification for Securities Act Liabilities............ Not Applicable
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT + +BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR + +THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF + +ANY SUCH STATE. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION, DATED JUNE 12, 1996 2,648,000 SHARES LOGO GENESEE & WYOMING INC. CLASS A COMMON STOCK ($.01 PAR VALUE) Of the 2,648,000 shares of Class A Common Stock offered hereby, 2,500,000 shares are being sold by the Company and 148,000 shares are being sold by a stockholder of the Company (the "Selling Stockholder"). See "Principal and Selling Stockholders." The Company will not receive any proceeds from the sale of Class A Common Stock by the Selling Stockholder. Prior to this offering, there has been no public market for the Class A Common Stock of the Company. It is currently anticipated that the initial public offering price will be between $14.00 and $16.00 per share. See "Underwriting" for information relating to the method of determining the initial public offering price. The Company's authorized capital stock consists of Class A Common Stock and Class B Common Stock. The Class A Common Stock is substantially identical to the Class B Common Stock, except with respect to voting rights, convertibility and dividends. The Class A Common Stock is entitled to one vote per share and the Class B Common Stock is entitled to ten votes per share. Each share of Class B Common Stock is freely convertible into one share of Class A Common Stock. Shares of Class A Common Stock are entitled to a 10% dividend preference over shares of Class B Common Stock when, as and if dividends are declared by the Board of Directors. See "Description of Capital Stock." The Class A Common Stock has been approved for quotation, subject to official notice of issuance, on the Nasdaq Stock Market's National Market (the "Nasdaq National Market") under the symbol "GNWR." FOR INFORMATION CONCERNING CERTAIN FACTORS RELATING TO THIS OFFERING, SEE "RISK FACTORS" BEGINNING ON PAGE 7. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
UNDERWRITING PROCEEDS PRICE TO DISCOUNTS AND PROCEEDS TO TO SELLING PUBLIC COMMISSIONS(1) COMPANY(2) STOCKHOLDER - -------------------------------------------------------------------------------- Per Share...................... $ $ $ $ - -------------------------------------------------------------------------------- Total(3)....................... $ $ $ $
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (1) See "Underwriting" for indemnification arrangements. (2) Before deducting estimated expenses of $875,000 payable by the Company. (3) The Company has granted the Underwriters a 30-day option to purchase up to an additional 397,200 shares of Class A Common Stock at the Price to Public, less Underwriting Discounts and Commissions shown above, solely to cover over-allotments, if any. If this option is exercised in full, the total Price to Public, Underwriting Discounts and Commissions and Proceeds to Company will be $ , $ and $ , respectively. See "Underwriting." The shares of Class A Common Stock offered hereby are being offered by the several Underwriters named herein, subject to prior sale and acceptance by the Underwriters and subject to their right to reject any order in whole or in part. It is expected that the Class A Common Stock will be available for delivery on or about , 1996 at the offices of Schroder Wertheim & Co. Incorporated, New York, New York. SCHRODER WERTHEIM & CO. FURMAN SELZ , 1996 [ART TO COME] ---------------- IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE CLASS A COMMON STOCK AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NASDAQ NATIONAL MARKET, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. 2 PROSPECTUS SUMMARY The following summary is qualified in its entirety by reference to, and should be read in conjunction with, the more detailed information and the Consolidated Financial Statements, including the Notes thereto, appearing elsewhere in this Prospectus. All references to "GWI" or the "Company" in this Prospectus mean Genesee & Wyoming Inc., a Delaware corporation, and its subsidiaries. Unless otherwise indicated, all information in this Prospectus (i) assumes an initial public offering price of $15.00 per share of Class A Common Stock,(ii) assumes that the Underwriters' over-allotment option is not exercised, and (iii) gives effect to an 18.5:1 stock split and reclassification of the Company's common stock into Class A Common Stock and Class B Common Stock (collectively, the "Common Stock") which became effective on June 10, 1996. THE COMPANY GWI is a leading operator of short line and regional freight railroads, based on revenues and total track miles. In 1977, when Mortimer B. Fuller, III purchased a controlling interest in the Company and became its Chief Executive Officer, the Company operated a single 14-mile railroad that generated $3.9 million in operating revenues, substantially all of which were attributable to shipments of salt by Akzo Nobel Salt, Inc. ("Akzo"). As a result of the Company's acquisition and marketing strategies, the Company has grown to operate over approximately 1,500 miles of track and, in 1995, the Company generated $53.4 million in operating revenues. The Company now operates in four regions of the United States: Western New York and Pennsylvania; Illinois; Louisiana and Texas; and Oregon. The Company's growth to date has been the result of its acquisition of rail properties and its marketing efforts. This growth has largely been "stair-step" in nature--large revenue increases resulting primarily from acquisitions, followed by more gradual, incremental revenue growth as the Company implements its marketing and operating strategies. The Company's growth has resulted in an expanded customer base, a more diversified commodity mix and decreased dependence on any one customer. The success of the Company's growth strategy is evidenced by the fact that it has continued to maintain a stable revenue base despite the collapse and subsequent closure of the salt mine operated by Akzo, the Company's largest freight customer until 1994. See "Management's Discussion and Analysis of Financial Condition and Results in Operations--Akzo Mine." The Company's strategy is to become the dominant provider of rail freight transportation in the markets it serves by (i) growing its business through acquisitions to establish new regions or increase its presence in existing regions, (ii) expanding its revenue base within each region through marketing efforts, and (iii) improving its operating efficiency through rationalization and consolidation of overhead expenses. The Company's fundamental acquisition strategy is to acquire properties that have large industrial customers which will provide the Company with a stable revenue base and the potential to generate incremental revenues and additional customers upon implementation of a focused marketing plan. In the first four months of 1996, the Company completed two acquisitions, one which established a new region and another which increased and diversified its customer base in the New York and Pennsylvania region. In both cases, the Company acquired rail properties that serve large industrial customers. In February 1996, the Company formed Illinois & Midland Railroad, Inc. ("Illinois & Midland") which acquired certain railroad assets from Chicago & Illinois Midland Railway Company ("CIMR") (the "Illinois & Midland Acquisition"). In 1995, CIMR generated operating revenues of $13.7 million and transported 48,104 carloads, 91% of which consisted of coal shipments to two power plants operated by Commonwealth Edison Company ("ComEd"). In April 1996, the Company formed Pittsburg & Shawmut Railroad, Inc. ("Pittsburg & Shawmut"), which acquired certain railroad assets owned by three operating subsidiaries of the Arthur T. Walker Estate Corporation (the "ATWEC Railroads") (the "Pittsburg & Shawmut Acquisition"). Pittsburg & Shawmut 3 interchanges with one of the Company's other railroads in three locations. In 1995, the ATWEC Railroads generated operating revenues of $5.9 million and transported approximately 17,500 carloads, 93% of which were shipments of coal from four mines located along its lines. See "Recent Developments." The Illinois & Midland Acquisition established the Company in a new region and broadened the Company's base of major industrial customers. This acquisition provides the Company with an immediate presence in the midwest and a strong base for additional growth in the region. The Pittsburg & Shawmut Acquisition expanded the Company's presence in its New York and Pennsylvania region and further broadened its customer base. The Company believes that the proximity of Pittsburg & Shawmut to one of the Company's other railroads offers an excellent opportunity for rationalization and consolidation of overhead expenses as well as market extension and diversification. The Company's marketing strategy is to build each region on a base of major industrial customers, to grow that base business through marketing efforts directed at its major customers and to generate incremental revenues outside the base of major customers by attracting smaller customers and providing ancillary services which generate non-freight revenues. The Company believes that over the long term, its strategy of building its regions around a core of major industrial customers provides a stable revenue base and allows the Company to focus its efforts on additional growth opportunities within a region. The Company's operating strategy is to empower local managers with the resources and authority to increase revenues, lower operating costs and rationalize track where appropriate to make operations more efficient. GWI has established incentive compensation programs that reward local managers for improving results. The Company also seeks to increase the profitability of its railroads by spreading regional and corporate overhead expenses over an expanding revenue base. The Company's principal executive offices are located at 71 Lewis Street, Greenwich, Connecticut 06830. Its telephone number is (203) 629-3722. 4 THE OFFERING(1) Class A Common Stock offered: By the Company.................................... 2,500,000 shares By the Selling Stockholder........................ 148,000 shares Common Stock to be outstanding after the Offering: Class A Common Stock(2)........................... 4,001,937 shares(3) Class B Common Stock(2)........................... 846,556 shares --------- Total........................................... 4,848,493 shares(3) ========= To repay debt. See "Use of Use of proceeds..................................... Proceeds." Nasdaq National Market symbol....................... GNWR
- -------- (1) The offering of shares of Class A Common Stock made hereby is referred to herein as the "Offering." (2) The Class A Common Stock is entitled to one vote per share. The Class B Common Stock is entitled to ten votes per share. The Class B Common Stock is convertible into Class A Common Stock on a one-to-one basis at the option of the holder and, with certain exceptions, automatically converts upon transfer by the original holder thereof. The Class A Common Stock is entitled to a 10% dividend preference over the Class B Common Stock when, as and if dividends are declared by the Board of Directors. The Class A Common Stock and Class B Common Stock vote together as a single class except as required by law, and are substantially identical except with respect to voting rights, convertibility and dividends. See "Description of Capital Stock." (3) Excludes (i) an aggregate of 500,000 shares of Class A Common Stock reserved for issuance under the Company's 1996 Stock Option Plan and Stock Option Plan for Outside Directors, of which options to purchase 350,500 shares of Class A Common Stock are currently outstanding, (ii) 450,000 shares of Class A Common Stock reserved for issuance under the Company's Employee Stock Purchase Plan, and (iii) 41,847 shares of Class A Common Stock reserved for issuance upon exercise of the Bank Warrant. See "Management--Stock Options," "Management--Employee Stock Purchase Plan" and "Description of Capital Stock--Bank Warrant." 5 SUMMARY CONSOLIDATED FINANCIAL AND OPERATING DATA (IN THOUSANDS, EXCEPT PER SHARE AND OPERATING DATA) The summary consolidated financial and operating data below has been taken or derived from the audited consolidated financial statements and other records of the Company. The summary consolidated financial and operating data should be read in conjunction with the Consolidated Financial Statements and accompanying Notes contained in this Prospectus. The results of operations for the interim periods are not necessarily indicative of results of operations for the full year. See also "Management's Discussion and Analysis of Financial Condition and Results of Operations." The pro forma financial and operating data is based upon certain pro forma adjustments to reflect (i) the sale by the Company of 2,500,000 shares of Class A Common Stock in the Offering and the application of the estimated net proceeds of the Offering as set forth under "Use of Proceeds," (ii) the amendment and restatement of the Credit Facilities and (iii) the closing of the Illinois & Midland and Pittsburg & Shawmut Acquisitions. The pro forma unaudited condensed consolidated balance sheet data assumes that the Pittsburg & Shawmut Acquisition occurred on March 31, 1996, and the pro forma unaudited condensed consolidated income statement and operating data assumes that the Illinois & Midland and Pittsburg & Shawmut Acquisitions and the amendment and restatement of the Credit Facilities occurred on January 1, 1995.
THREE MONTHS YEAR ENDED DECEMBER 31, ENDED MARCH 31, PRO FORMA ------------------------------------------------ ---------------- ------------------------- THREE MONTHS YEAR ENDED ENDED DECEMBER 31, MARCH 31, 1991 1992 1993 1994 1995 1995 1996 1995 1996 -------- -------- -------- -------- -------- ------- ------- ------------ ------------ (UNAUDITED) (UNAUDITED) INCOME STATEMENT DATA: Operating revenues...... $ 20,536 $ 32,940 $ 49,645 $ 55,419 $ 53,387 $13,391 $16,608 $ 73,042 $19,448 Operating income........ 275 2,748 6,144 8,038 6,572 1,526 2,814 12,416 3,558 Interest expense........ (1,583) (2,319) (2,864) (3,212) (3,405) (766) (1,274) (4,020) (948) Net income (loss)....... (884) 637 1,624 3,011 1,657 502 965 6,104 1,620 Earnings per common share: Income before extraor- dinary item and cumu- lative effect of ac- counting change....... $ (0.39) $ 0.28 $ 0.88 $ 1.31 $ 0.92 $ 0.21 $ 0.41 $ 1.36 $ 0.33 Net income (loss)...... $ (0.39) $ 0.28 $ 0.70 $ 1.31 $ 0.71 $ 0.21 $ 0.41 $ 1.26 $ 0.33 Weighted average number of common shares outstanding............ 2,258 2,258 2,304 2,304 2,348 2,348 2,348 4,848 4,848 OPERATING DATA: Total track mile- age(1)(2).............. 298 555 841 808 839 808 964 1,160 1,236 Total carloads.......... 43,077 73,429 115,301 119,051 118,673 30,966 39,345 184,277 49,674 Total employees(2)...... 176 266 357 380 397 399 462 485 489 Operating revenues per carload................ $ 477 $ 449 $ 431 $ 466 $ 450 $ 432 $ 422 $ 396 $ 392 Operating revenues per employee............... $116,682 $123,835 $139,062 $145,839 $134,476 $33,561 $35,948 $150,602 $39,771 Carloads per employee... 245 276 323 313 299 78 85 380 102 Operating ratio(3)...... 98.7% 91.7% 87.6% 85.5% 87.7% 88.6% 83.1% 83.0% 81.7%
MARCH 31, 1996 ----------------------------------- AS FURTHER ACTUAL AS ADJUSTED(4) ADJUSTED(5) -------- -------------- ----------- (UNAUDITED) BALANCE SHEET DATA: Total assets................................ $115,859 $125,027 $125,027 Total debt.................................. 66,207 72,207 38,207 Stockholders' equity........................ 11,952 11,952 45,952
- -------- (1) Excludes track miles operated under trackage rights and operating contracts. See "Property." (2) Based on monthly averages over the respective periods, except for pro forma data which is as of December 31, 1995 and March 31, 1996. (3) Operating expenses divided by operating revenues. (4) As adjusted to give effect to the Pittsburg & Shawmut Acquisition. See "Recent Developments." (5) As further adjusted to give effect to the sale by the Company of 2,500,000 shares of Class A Common Stock in the Offering and the application of the estimated net proceeds of the Offering as described in "Use of Proceeds." 6 RISK FACTORS Potential purchasers of the Class A Common Stock should carefully consider the following factors, as well as the other information contained in this Prospectus, before deciding to purchase shares of the Class A Common Stock offered hereby. AVAILABILITY OF ACQUISITION OPPORTUNITIES The Company's ability to continue to grow is dependent in part upon its ability to acquire additional rail properties. In making acquisitions the Company competes with other short line and regional rail operators, some of which are larger and have greater financial resources than the Company. There can be no assurance that acquisition opportunities will be available to the Company in the future or that the Company will be able to compete successfully for available properties. The Company's ability to acquire additional rail properties and related railroad assets may also be dependent upon its ability to obtain financing for such acquisitions. Financing may not be available or may be available only on terms and conditions unfavorable to the Company. In addition, the Company's Credit Facilities contain certain limitations on the Company's ability to make acquisitions. See "Business--Strategy--Acquisition of Rail Properties," "Business--Competition" and "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." FLUCTUATIONS IN REVENUES AND EXPENSES The Company has historically experienced fluctuations in revenues and expenses due to unpredictable events such as one-time freight moves, customer plant expansions and shut-downs, railcar sales, accidents and derailments. The occurrence of such events in the future could cause further fluctuations in revenues and expenses and negatively affect the Company's financial performance. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--General." CUSTOMER CONCENTRATION In 1995, the Company's ten largest customers accounted for approximately 50% of the Company's operating revenues. The Company's two largest customers in 1995 were Akzo and Georgia-Pacific Corporation ("Georgia Pacific"), which accounted for 9% and 8% of operating revenues, respectively. As a result of the Illinois & Midland Acquisition, the Company anticipates that ComEd will become its largest customer. On a pro forma basis after giving effect to both the Illinois & Midland Acquisition and the Pittsburg & Shawmut Acquisition, ComEd represented 16% of operating revenues in 1995. See "Pro Forma Financial Information." The Company's business could be adversely affected if its customers suffer significant reductions in their businesses or reduce shipments of commodities transported by the Company. See "Business--Railroad Operations--Customers." RELIANCE ON KEY PERSONNEL The Company's success to date has been largely dependent on the leadership of Mortimer B. Fuller, III, its Chairman, President and Chief Executive Officer. While the Company has a decentralized organizational structure and an experienced management team, the loss of Mr. Fuller's services could adversely affect the Company's operations. See "Business--Railroad Operations-- Management" and "Management." RELATIONSHIPS WITH CLASS I RAILROADS The railroad industry in the United States is dominated by a small number of large Class I carriers that have substantial market control and negotiating leverage. Almost all of the traffic on the Company's railroads is interchanged with Class I carriers. A decision by any of these Class I carriers to discontinue transporting certain commodities or to use alternate modes of transportation, such as motor carriers, could adversely affect the Company's business. See "Business--Industry Overview." The Company's ability to provide rail service to its customers depends in large part upon its ability to maintain cooperative relationships with Class I connecting carriers with respect to, among other matters, freight rates, car supply, reciprocal switching, interchange and trackage rights. A deterioration in the operations of or 7 service provided by those connecting carriers, or in the Company's relationship with its connecting carriers, could adversely affect the Company's business. In addition, much of the freight transported by the Company's railroads moves on railcars supplied by Class I carriers. Were these carriers to reduce the number of railcars available for use by its railroads, the Company might not be able to obtain replacement railcars on favorable terms. See "Business--Railroad Operations" and "Management's Discussion and Analysis of Financial Condition and Results of Operations--Results of Operations." Portions of the Company's rail properties are operated under leases, operating agreements or trackage rights agreements with Class I carriers. Failure of the Company's railroads to comply with such leases and agreements in all material respects could result in the loss of operating rights with respect to such rail properties, which would adversely affect the Company's business. See "Property." COMPETITION Each of the Company's railroads is typically the only rail carrier directly serving its customers; however, the Company's railroads compete directly with other modes of transportation, including motor carriers and, to a lesser extent, ships and barges. Competition is based primarily upon the rate charged and the transit time required, as well as the quality and reliability of the service provided. Any improvement in the cost or quality of these alternate modes of transportation could increase competition from these other modes of transportation and adversely affect the Company's business. Approximately 12.8% of the Company's 1995 freight revenues was generated by overhead traffic (i.e. traffic neither originating nor terminating on one of its railroads). Overhead traffic is subject to diversion based on service and prices charged by other railroads. See "Business--Competition" and "Business--Railroad Operations--Rail Traffic." REGULATION The Company's railroads are subject to regulation by the Surface Transportation Board ("STB"), the Federal Railroad Administration ("FRA"), state departments of transportation and some state and local regulatory agencies. See "Business--Regulation." Despite deregulation in recent years, federal and state regulation continues to affect profitability and competitiveness in the railroad industry. The federal and state regulatory schemes negatively affect the Company through, among other things, the delays and costs associated with protracted abandonment proceedings and the legal costs associated with acquisition proceedings. Although the recently enacted ICC Termination Act of 1995 (the "ICCTA") purports to aim at eliminating or reducing such costs, the ICCTA has not been in effect long enough to determine the extent to which it will be successful in this regard. In reducing regulation, an effect of the ICCTA may be diminished regulatory protection for small railroads, which negatively affects their competitive position with their Class I connections. See "Business--Railroad Operations" and "Business-- Regulation." LIABILITY FOR CASUALTY LOSSES The Company has obtained for each of its railroads insurance coverage for losses arising from personal injury and for property damage in the event of derailments or other accidents or occurrences. The Company believes that its insurance coverage is adequate based on its experience. However, under catastrophic circumstances such as accidents involving passenger trains or spillage of hazardous materials, the Company's liability could exceed its insurance limits. Insurance is available from only a very limited number of insurers and there can be no assurance that insurance protection at the Company's current levels will continue to be available or, if available, will be obtainable on terms acceptable to the Company. The occurrence of losses or other liabilities which are not covered by insurance or which exceed the Company's insurance limits could materially adversely affect the financial condition of the Company. See "Business--Insurance." ENVIRONMENTAL MATTERS The Company's railroad operations and real estate ownership are subject to extensive federal, state and local environmental laws and regulations concerning, among other things, emissions to the air, discharges to waters, and the handling, storage, transportation and disposal of waste and other materials. The Company's railroads regularly transport hazardous materials for shippers, and also periodically use hazardous materials in their own 8 operations. As a result, the Company's business involves the risk of substantial environmental liability as a result of current and past operations. See "Business--Environmental Matters." LABOR MATTERS Five of the Company's railroads have employees who are subject to collective bargaining agreements. Strikes and work stoppages, whether brought against the Company's railroads or against the Class I carriers with which they connect, could adversely affect the operations of the Company's railroads. See "Business--Railroad Operations--Employees." DILUTION Purchasers of Class A Common Stock in the Offering will experience an immediate and substantial dilution of $9.12 per share in the net tangible book value of their shares. See "Dilution." CONCENTRATION OF VOTING POWER Upon completion of the Offering, the directors and executive officers of the Company will beneficially own approximately 27.9% of the outstanding shares of Class A Common Stock and approximately 99.0% of the outstanding shares of Class B Common Stock, representing approximately 76.2% of the voting power of the Company (including approximately 57.5% of the voting power of the Company controlled by Mortimer B. Fuller, III, the Company's Chairman, President and Chief Executive Officer). As a result, Mr. Fuller and the other directors and executive officers of the Company will have the ability to affect the vote of the Company's stockholders on significant corporate actions requiring stockholder approval, including mergers, share exchanges or sales of all or substantially all of the Company's assets. With such voting power, Mr. Fuller and the other directors and executive officers of the Company may also have the ability to delay or prevent a change in control of the Company. See "Principal and Selling Stockholders," "Certain Transactions" and "Description of Capital Stock." NO PRIOR PUBLIC MARKET FOR CLASS A COMMON STOCK Prior to the Offering, there has been no public market for the Class A Common Stock. Although the Company has applied for quotation of the Class A Common Stock on the Nasdaq National Market, there can be no assurance that an active trading market for the Class A Common Stock will develop or, if it does develop, that such trading market will be sustained after the completion of the Offering. The initial public offering price will be determined through negotiations between GWI and representatives of the Underwriters and may not be indicative of the market price for the Class A Common Stock after the Offering. See "Underwriting" for information relating to the factors considered in determining the initial public offering price of the Class A Common Stock. The market price of the Class A Common Stock could be subject to significant fluctuations in response to variations in quarterly operating results and other factors. In addition, general market price declines or market volatility in the future could affect the market price of the Class A Common Stock. SHARES ELIGIBLE FOR FUTURE SALE Upon completion of the Offering, 1,353,937 shares of Class A Common Stock held by certain stockholders of the Company will be eligible for sale subject to the volume and other limitations of Rule 144 under the Securities Act of 1933, as amended (the "Act"). In addition, all of the 846,556 shares of Class B Common Stock outstanding immediately prior to the Offering are freely convertible into shares of Class A Common Stock and, if so converted, will be eligible for sale subject to the volume and other limitations of Rule 144. Holders of the Bank Warrant are also entitled under certain circumstances to demand and "piggy-back" registration rights with respect to the shares issuable upon exercise thereof. No prediction can be made as to the effect, if any, that future sales of shares of Class A Common Stock, or the availability of shares of Class A Common Stock for future sales, will have on the market price of the Class A Common Stock prevailing from time to time. Sales of substantial amounts of Class A Common Stock (including shares issued upon the exercise of options, warrants or the conversion of Class B Common Stock, or under the Company's Employee Stock Purchase Plan), or the perception that such sales could occur, could adversely affect prevailing market prices for the Class A Common Stock. See "Management--Stock Options," "Management--Employee Stock Purchase Plan" and "Description of Capital Stock--Bank Warrant." 9 The Company, its officers and directors and certain other stockholders have agreed not to sell or otherwise dispose of any shares of Common Stock, subject to certain exceptions, for a period of 180 days after the date of this Prospectus without the prior written consent of Schroder Wertheim & Co. Incorporated. Following the Offering, an aggregate of 2,112,253 shares will be subject to these restrictions. See "Shares Eligible for Future Sale" and "Underwriting." LIMITATIONS ON TAKEOVERS Certain provisions of the Company's Certificate of Incorporation and By-laws may have the effect of discouraging a third party from making an acquisition proposal for the Company and may thereby inhibit a change in control of the Company under circumstances that could give the stockholders the opportunity to realize a premium over the then-prevailing market prices. Specifically, mergers and certain other corporate actions require the approval of two-thirds of the total votes represented by all Class A Common Stock and Class B Common Stock, the Board of Directors is divided into three classes, with the members of each class serving for staggered three-year terms, and the Board is expressly authorized to consider a variety of factors and constituencies in determining the Company's best interests. In addition, under certain circumstances Section 203 of the Delaware General Corporation Law makes it more difficult for an "interested stockholder" (generally a 15% stockholder) to effect certain business combinations with a corporation for a three-year period. See "Description of Capital Stock--Limitations on Takeovers." RECENT DEVELOPMENTS ILLINOIS & MIDLAND ACQUISITION On February 8, 1996, the Company established its Illinois region when Illinois & Midland acquired certain railroad operating assets from CIMR. The purchase price was $27.5 million (including the assumption of certain liabilities and $159,000 of related costs) and was financed by the proceeds of the term loan described below. The Illinois & Midland Acquisition is an example of the Company's strategy of acquiring rail properties that service major industrial customers. In 1995, CIMR generated operating revenues of $13.7 million and operating income of $4.0 million and transported 48,104 carloads, approximately 91% of which consisted of coal shipments to two power plants operated by ComEd. Illinois & Midland has the exclusive right to serve these power plants and the majority of the shipments are under long-term contracts extending until 2002. A second coal customer, Illinois Power Company, began to receive coal shipments at a power plant located in Havana, Illinois in 1996. Illinois Power Company has entered into a contract to receive an average of 7,000 carloads annually through 1999. The Company believes that these contracts will provide a stable revenue base from which to grow other freight revenues and non-freight revenues. In addition to coal, Illinois & Midland also transports flour, roofing granules, ethanol and lumber. The assets acquired by Illinois & Midland consist primarily of a 126-mile line extending from Peoria, Illinois, through Springfield to Taylorville, Illinois, a small number of railcars which will be used for maintenance of way, and certain rights under real property leases. The rail line consists of 111 miles of FRA Class III track and 15 miles of FRA Class II track. The Company believes that the track is in excellent condition and that a relatively low level of capital expenditures will be required in the near future. Illinois & Midland interchanges with 11 railroads, including six Class I railroads, and also connects with the Illinois River through an unloading facility owned by ComEd and operated by Illinois & Midland. The Company believes there will be opportunities for additional expansion through acquisitions in the midwest. In connection with the acquisition, Illinois & Midland hired 70 former CIMR employees, including 55 operating and hourly employees who had been represented by 12 different labor unions. Illinois & Midland, through negotiation with the United Transportation Union ("UTU"), has entered into an agreement whereby the UTU will represent all of these operating and hourly employees. The agreement simplifies operating rules contained in the prior agreements. 10 PITTSBURG & SHAWMUT ACQUISITION On April 29, 1996, Pittsburg & Shawmut acquired substantially all of the operating assets of the ATWEC Railroads. These railroad assets were previously operated by ATWEC subsidiaries Pittsburg & Shawmut Railroad Company, Mountain Laurel Railroad Company and Red Bank Railroad Company. The purchase price was approximately $15.2 million (including the assumption of a grant from the Commonwealth of Pennsylvania and $250,000 of related costs). In addition, the purchase and sale agreement provides for additional contingency payments of up to $2.5 million in the event that coal revenues exceed certain agreed upon levels. The purchase price was financed by the proceeds of the term loan described below. The 237-mile line acquired by Pittsburg & Shawmut consists of a main line that extends from Driftwood, Pennsylvania through DuBois to Freeport, Pennsylvania, and branch lines that extend to Reidsburg and Lawsonham, Pennsylvania. In 1995, the ATWEC Railroads generated operating revenues of $5.9 million and transported approximately 17,500 carloads, 93% of which were shipments of coal from four mines located along its lines. Pittsburg & Shawmut has entered into a seven-year agreement covering the shipments by its largest customer, which represented 60% of coal hauled by the ATWEC Railroads in 1995. The Pittsburg & Shawmut Acquisition is an example of the Company's strategy of acquiring rail properties in its existing regions in order to capitalize on operating efficiencies. Pittsburg & Shawmut consists of three separate rail lines, which interchange with another of the Company's railroads in three locations. The Company believes that the proximity of these two railroads offers an excellent opportunity for rationalization as well as market extension and diversification. The assets acquired by Pittsburg & Shawmut consist of 237 miles of track, 859 railcars, 19 locomotives and various other related assets necessary to operate the rail lines. As a result of operating efficiencies obtained with the Company's existing railroads in the New York and Pennsylvania region, Pittsburg & Shawmut plans to liquidate 42 miles of track and sell a significant portion of the railcars and locomotives, thereby reducing the effective purchase price of the acquisition. AMENDMENT AND RESTATEMENT OF CREDIT FACILITIES On February 8, 1996, the Company and each of its subsidiaries entered into an Amended and Restated Revolving Credit and Term Loan Agreement (the "Credit Agreement") whereby the Company restructured its credit facilities (the "Credit Facilities") with The First National Bank of Boston, as agent for a syndicate of banks (the "Bank of Boston"). The Credit Agreement provides for a five-year $34 million revolving credit facility and a five-year $40 million loan. The term loan was made available to the Company in two tranches. The Company borrowed $26 million in February 1996 to consummate the Illinois & Midland Acquisition, and an additional $11.7 million was used in April 1996 to consummate the Pittsburg & Shawmut Acquisition. In connection with the Credit Agreement, the Company issued to the Bank of Boston a warrant to purchase 41,847 shares of Class A Common Stock at a price of $.0005 per share (the "Bank Warrant"). See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources" and "Description of Capital Stock--Bank Warrant." 11 USE OF PROCEEDS The net proceeds to the Company from the Offering are estimated to be $34.0 million ($39.5 million ifthe Underwriters' over-allotment option is exercised in full), after deducting underwriting discounts and commissions and estimated expenses of the Offering payable by the Company. The Company will not receive any proceeds from the sale of Class A Common Stock by the Selling Stockholder. The Company intends to use all of the net proceeds of the Offering to repay borrowings under the Credit Facilities. Borrowings under the Credit Facilities were used as follows: (i) $26.1 million in connection with the Illinois & Midland Acquisition, (ii) $11.7 million in connection with the Pittsburg & Shawmut Acquisition, (iii) $14.3 million to repay outstanding debt, including $701,000 in debt held by or for the benefit of directors and officers of the Company and members of their respective families (see "Certain Transactions") and $2.7 million in prepayment and other financing costs, (iv) $8.3 million to purchase rolling stock and locomotives, and (v) $700,000 to construct a locomotive facility. As of May 31, 1996, the Company had $59.3 million outstanding under the Credit Facilities at an interest rate of 8.53% per annum. The interest rate fluctuates at increments over prime or London Inter- Bank Offered Rates ("LIBOR"), based on the Company's ratio of debt to EBITDA. Following application of the net proceeds to the Company from the Offering, the Credit Facilities will be available to the Company to finance future acquisitions. See "Recent Developments" and "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." DIVIDEND POLICY The Company has historically paid quarterly dividends in order to provide limited liquidity to its stockholders. In 1994, 1995 and the first quarter of 1996, the Company paid total cash dividends of $63,000, $191,000 and $32,000, respectively. Dividends in 1994 were reduced in anticipation of decreased net income as a result of the loss of production at the Akzo mine. Because the Company's net income increased in 1994 despite Akzo's decreased production, a larger than usual dividend was paid in the first quarter of 1995 to offset the lower dividends paid in 1994. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Akzo Mine." Although the Company has paid dividends in the past, it currently intends to retain all earnings to support its operations and future growth and, therefore, does not anticipate the payment of cash dividends on the Common Stock in the foreseeable future. In addition, the Credit Facilities have certain covenant limitations on the payment of dividends. See "Management's Discussion and Analysis of Financial Condition and Results of Operations-- Liquidity and Capital Resources." 12 CAPITALIZATION The following table sets forth the capitalization of the Company at March 31, 1996 and as adjusted to give effect to (i) the Pittsburg & Shawmut Acquisition and (ii) the sale by the Company of 2,500,000 shares of Class A Common Stock in the Offering and the application of the estimated net proceeds of the Offering as described in "Use of Proceeds."
MARCH 31, 1996 ---------------------------------- AS FURTHER ACTUAL AS ADJUSTED(1) ADJUSTED(2) ------- -------------- ----------- (DOLLARS IN THOUSANDS) Long-term debt: Current portion of long-term debt......... $ 2,894 $ 4,690 $ 2,730 Long-term debt, excluding current portion. 63,313 67,517 35,477 ------- ------- ------- Total long-term debt.................... 66,207 72,207 38,207 ------- ------- ------- Stockholders' equity: Class A Common Stock, $.01 par value, 12,000,000 shares authorized; 1,501,937 outstanding and outstanding as adjusted; 4,001,937 outstanding as further adjusted(3)(4)........................... 15 15 40 Class B Common Stock, $.01 par value, 1,500,000 shares authorized; 846,556 outstanding(4)........................... 8 8 8 Additional paid-in capital................ 1,340 1,340 35,315 Warrants outstanding(5)................... 471 471 471 Retained earnings......................... 10,118 10,118 10,118 ------- ------- ------- Total stockholders' equity.............. 11,952 11,952 45,952 ------- ------- ------- Total capitalization.................. $78,159 $84,159 $84,159 ======= ======= =======
- -------- (1) As adjusted to give effect to the Pittsburg & Shawmut Acquisition as if it had occurred on March 31, 1996. See "Recent Developments." (2) As further adjusted to give effect to the sale by the Company of 2,500,000 shares of Class A Common Stock in the Offering and the application of the estimated net proceeds of the Offering as described in "Use of Proceeds." (3) Excludes (i) an aggregate of 500,000 shares of Class A Common Stock reserved for issuance under the Company's 1996 Stock Option Plan and Stock Option Plan for Outside Directors, of which options to purchase 350,500 shares of Class A Common Stock are currently outstanding and (ii) 450,000 shares of Class A Common Stock reserved for issuance under the Company's Employee Stock Purchase Plan. See "Management--Stock Options" and "Management--Employee Stock Purchase Plan." (4) For a description of the Class A Common Stock and the Class B Common Stock, see "Description of Capital Stock." (5) For a description of the Bank Warrant, see "Description of Capital Stock-- Bank Warrant." 13 DILUTION Pro forma net tangible book value per share before the Offering takes into consideration the Pittsburg & Shawmut Acquisition as if it had occurred on March 31, 1996. The Company's pro forma net tangible book value at March 31, 1996 was $(5.5) million, or $(2.33) per share of Common Stock. Pro forma net tangible book value per share is determined by dividing the pro forma tangible net worth of the Company (total tangible assets less total liabilities) by the total number of shares of Class A Common Stock and Class B Common Stock outstanding. After giving effect to the sale by the Company of 2,500,000 shares of Class A Common Stock in the Offering and the application of the net proceeds as described in "Use of Proceeds," the Company's pro forma net tangible book value at March 31, 1996 would have been $28.5 million, or $5.88 per share. This represents an immediate increase in net tangible book value of $8.21 per share to existing stockholders and an immediate dilution in net tangible book value of $9.12 per share to new investors purchasing shares of Class A Common Stock in the Offering. The following table illustrates the pro forma per share dilution at March 31, 1996: Assumed initial public offering price per share.................. $15.00 Pro forma net tangible book value per share before the Offer- ing(1)........................................................ $(2.33) Increase per share attributable to new investors............... 8.21 ------ Pro forma net tangible book value per share after giving effect to the Offering(1).............................................. 5.88 ------ Dilution per share to new investors.............................. $ 9.12 ======
- -------- (1) Tangible assets include leasehold interests. Intangible assets include unamortized service assurance agreement (see note 1 to audited condensed consolidated financial statements), organization costs and financing costs in the amount of $17.4 million. The following table shows, on a pro forma basis at March 31, 1996, the difference between existing stockholders and new investors with respect to the number of shares purchased from the Company and the total consideration and average price per share paid to the Company:
SHARES PURCHASED(1) TOTAL CONSIDERATION AVERAGE ----------------------------------------- PRICE NUMBER PERCENT AMOUNT PERCENT PER SHARE ----------- --------------------- ------- --------- Existing stockhold- ers(2)(3)................. 2,348,493 48.4% $ 1,362,995 3.5% $ 0.58 New investors(3)........... 2,500,000 51.6 37,500,000 96.5 15.00 ----------- ------- ----------- ----- Total.................... 4,848,493 100.0% $38,862,995 100.0% =========== ======= =========== =====
- -------- (1) The Class A Common Stock is entitled to one vote per share and the Class B Common Stock is entitled to ten votes per share. The Class A Common Stock and the Class B Common Stock vote together as a single class, except as required by law. (2) The information presented assumes no exercise of outstanding options or warrants. See "Management--Stock Options" and "Description of Capital Stock--Bank Warrant." (3) After giving effect to the Offering (i) existing stockholders (other than the Selling Stockholder) will beneficially own 1,353,937 shares of Class A Common Stock and 846,556 shares of Class B Common Stock, and new investors will own 2,648,000 shares of Class A Common Stock; and (ii) new investors will control approximately 21.2% and existing stockholders (other than the Selling Stockholder) will control approximately 78.8%, respectively, of the total combined voting power of both classes of Common Stock. See "Risk Factors--Concentration of Voting Power" and "Description of Capital Stock." 14 SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA (IN THOUSANDS, EXCEPT PER SHARE AND OPERATING DATA) The following selected consolidated income statement data and selected consolidated balance sheet data of the Company for the years ended December 31, 1991, 1992, 1993, 1994 and 1995, and the three months ended March 31, 1995 and 1996, have been derived from the Company's consolidated financial statements. The results of operations for the interim periods are not necessarily indicative of results of operations for the full year. The following selected consolidated operating data for the years ended December 31, 1991, 1992, 1993, 1994 and 1995, and the three months ended March 31, 1995 and 1996, have been derived from the records of the Company. All of the information should be read in conjunction with the consolidated financial statements and related notes included elsewhere in this Prospectus. See also "Management's Discussion and Analysis of Financial Condition and Results of Operations."
THREE MONTHS YEAR ENDED DECEMBER 31, ENDED MARCH 31, PRO FORMA(1) ------------------------------------------------ ----------------- ---------------------- THREE YEAR MONTHS ENDED ENDED DECEMBER 31, MARCH 31, 1991 1992 1993 1994 1995 1995 1996 1995 1996 -------- -------- -------- -------- -------- ------- -------- ------------ --------- (UNAUDITED) (UNAUDITED) INCOME STATEMENT DATA: Operating revenues...... $ 20,536 $ 32,940 $ 49,645 $ 55,419 $ 53,387 $13,391 $ 16,608 $ 73,042 $ 19,448 Operating expenses...... 20,261 30,192 43,501 47,381 46,815 11,865 13,794 60,626 15,890 -------- -------- -------- -------- -------- ------- -------- -------- -------- Operating income........ 275 2,748 6,144 8,038 6,572 1,526 2,814 12,416 3,558 Interest expense........ (1,583) (2,319) (2,864) (3,212) (3,405) (766) (1,274) (4,020) (948) Other income............ 105 643 165 192 456 105 81 2,711 113 -------- -------- -------- -------- -------- ------- -------- -------- -------- Income (loss) before income taxes, extraordinary item and cumulative effect of accounting change...... (1,203) 1,072 3,445 5,018 3,623 865 1,621 11,107 2,723 Income taxes............ 319 (435) (1,428) (2,007) (1,472) (363) (656) (4,509) (1,103) -------- -------- -------- -------- -------- ------- -------- -------- -------- Income (loss) before extraordinary item and cumulative effect of accounting change...... (884) 637 2,017 3,011 2,151 502 965 6,598 1,620 Extraordinary item...... -- -- -- -- (494) -- -- (494) -- Cumulative effect of ac- counting change(2)..... -- -- (393) -- -- -- -- -- -- -------- -------- -------- -------- -------- ------- -------- -------- -------- Net income (loss)....... $ (884) $ 637 $ 1,624 $ 3,011 $ 1,657 $ 502 $ 965 $ 6,104 $ 1,620 ======== ======== ======== ======== ======== ======= ======== ======== ======== Earnings per common share: Income (loss) before extraordinary item and cumulative effect of accounting change..... $ (0.39) $ 0.28 $ 0.88 $ 1.31 $ 0.92 $ 0.21 $ 0.41 $ 1.36 $ 0.33 Extraordinary item..... -- -- -- -- (0.21) -- -- (0.10) -- Cumulative effect of accounting change(2).. -- -- (0.18) -- -- -- -- -- -- -------- -------- -------- -------- -------- ------- -------- -------- -------- Net income (loss)...... $ (0.39) $ 0.28 $ 0.70 $ 1.31 $ 0.71 $ 0.21 $ 0.41 $ 1.26 $ 0.33 ======== ======== ======== ======== ======== ======= ======== ======== ======== Dividends per common share.................. $ 0.05 $ 0.05 $ 0.05 $ 0.03 $ 0.08 $ 0.04 $ 0.01 Weighted average number of common shares outstanding............ 2,258 2,258 2,304 2,304 2,348 2,348 2,348 4,848 4,848 OPERATING DATA: Total track mile- age(3)(4).............. 298 555 841 808 839 808 964 1,160 1,236 Total carloads.......... 43,077 73,429 115,301 119,051 118,673 30,966 39,345 184,277 49,674 Total employees(4)...... 176 266 357 380 397 399 462 485 489 Operating revenues per carload................ $ 477 $ 449 $ 431 $ 466 $ 450 $ 432 $ 422 $ 396 $ 392 Operating revenues per employee............... $116,682 $123,835 $139,062 $145,839 $134,476 $33,561 $ 35,948 $150,602 $ 39,771 Carloads per employee... 245 276 323 313 299 78 85 380 102 Operating ratio(5)...... 98.7% 91.7% 87.6% 85.5% 87.7% 88.6% 83.1% 83.0% 81.7% BALANCE SHEET DATA AS OF PERIOD END: Total assets............ $ 44,404 $ 56,965 $ 63,653 $ 69,888 $ 78,429 $67,334 $115,859 $125,027 Total debt.............. 26,592 32,109 35,095 32,640 39,941 31,415 66,207 38,207 Stockholders' equity.... 4,030 4,575 6,074 9,082 10,548 9,488 11,952 45,952
- -------- (1) The pro forma financial information presented is based upon certain pro forma adjustments to reflect (i) the sale by the Company of 2,500,000 shares of Class A Common Stock in the Offering and the application of the estimated net proceeds of the Offering as set forth under "Use of Proceeds," (ii) the amendment and restatement of the Credit Facilities, and (iii) the closing of the Illinois & Midland and Pittsburg & Shawmut Acquisitions. The pro forma unaudited condensed consolidated balance sheet data assumes that the Pittsburg & Shawmut Acquisition occurred on March 31, 1996, and the pro forma unaudited condensed consolidated income statement and operating data assumes that the Illinois & Midland and Pittsburg & Shawmut Acquisitions and the amendment and restatement of the Credit Facilities occurred on January 1, 1995. (2) Represents the adoption, as of January 1, 1993, of SFAS No. 106, "Employers' Accounting for Postretirement Benefits Other than Pensions." See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Accounting Matters." (3) Excludes track miles operated under trackage rights and operating contracts. See "Property." (4) Based on monthly averages over the respective periods, except for pro forma data which is as of December 31, 1995 and March 31, 1996. (5) Operating expenses divided by operating revenues. 15 PRO FORMA FINANCIAL INFORMATION The following Pro Forma Unaudited Condensed Consolidated Statements assume (i) the sale by the Company of 2,500,000 shares of Class A Common Stock in the Offering and the application of the estimated net proceeds of the Offering as set forth under "Use of Proceeds," (ii) the amendment and restatement of the Credit Facilities and (iii) the closing of the Illinois & Midland and Pittsburg & Shawmut Acquisitions. The Pro Forma Unaudited Condensed Consolidated Balance Sheet assumes that the Pittsburg & Shawmut Acquisition occurred on March 31, 1996, and the Pro Forma Unaudited Condensed Consolidated Statement of Income assumes that the Illinois & Midland and Pittsburg & Shawmut Acquisitions and the amendment and restatement of the Credit Facilities occurred on January 1, 1995. The Pro Forma Unaudited Condensed Consolidated Income Statement for the year ended December 31, 1995 reflects the audited income statement of the Company for the year ended December 31, 1995 and the audited income statements of CIMR and the ATWEC Railroads for the year ended December 31, 1995 on a historical basis. The Pro Forma Unaudited Condensed Consolidated Income Statement for the period ended March 31, 1996 reflects the unaudited income statement of the Company for the period ended March 31, 1996 and the unaudited income statements of CIMR and the ATWEC Railroads for the period ended February 8, 1996 and March 31, 1996, respectively, on a historical basis. The pro forma financial information is a presentation of historical results with accounting and other adjustments. The pro forma financial information does not reflect the effects of any of the anticipated changes to be made by the Company in the Illinois & Midland and Pittsburg & Shawmut operations from the historical operations of CIMR and the ATWEC Railroads. THE PRO FORMA STATEMENTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED TO BE INDICATIVE OF THE COMPANY'S FINANCIAL POSITION OR RESULTS OF OPERATIONS HAD THE TRANSACTIONS BEEN CONSUMMATED ON THE DATES ASSUMED AND DO NOT PROJECT THE COMPANY'S RESULTS OF OPERATIONS FOR ANY FUTURE PERIOD. SEE "RECENT DEVELOPMENTS." The following Pro Forma Unaudited Condensed Consolidated Statements and accompanying notes should be read in conjunction with the financial statements and the financial information pertaining to the Company, CIMR and the ATWEC Railroads included elsewhere in this Prospectus. 16 PRO FORMA UNAUDITED CONDENSED CONSOLIDATED STATEMENT OF INCOME FOR THE YEAR ENDED DECEMBER 31, 1995 (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
CHICAGO & THE GENESEE & ILLINOIS MIDLAND ATWEC PRO WYOMING INC. RAILWAY COMPANY RAILROADS COMBINED ADJUSTMENTS FORMA ------------ ---------------- --------- -------- ----------- ------- Operating Revenues...... $53,387 $13,733 $ 5,922 $ 73,042 $ -- $73,042 ------- ------- ------- -------- ------- ------- Operating Expenses: Transportation......... 14,262 2,593 1,027 17,882 -- 17,882 Maintenance of ways and structures............ 6,127 1,814 806 8,747 -- 8,747 Maintenance of equip- ment.................. 12,230 1,659 846 14,735 -- 14,735 General and administra- tive.................. 10,309 2,203 1,918 14,430 (631)(1) 13,799 Depreciation and amor- tization.............. 3,887 1,437 1,808 7,132 (1,669)(2,3) 5,463 ------- ------- ------- -------- ------- ------- Total operating expenses............. 46,815 9,706 6,405 62,926 (2,300) 60,626 Operating Income........ 6,572 4,027 (483) 10,116 2,300 12,416 Interest Expense........ (3,405) (1,461) (481) (5,347) 1,327 (4) (4,020) Other Income............ 456 1,525 730 2,711 -- 2,711 Loss on Sale of Assets . -- (16,082) (10,288) (26,370) 26,370 (5) -- ------- ------- ------- -------- ------- ------- Income Before Income Taxes.................. 3,623 (11,991) (10,522) (18,890) 29,997 11,107 Income Taxes............ 1,472 (4,545) (4,214) (7,287) 11,796 (6) 4,509 ------- ------- ------- -------- ------- ------- Income From Continuing Operations............. $ 2,151 $(7,446) $(6,308) $(11,603) $18,201 $ 6,598 ======= ======= ======= ======== ======= ======= Income From Continuing Operations Per Common Share.................. $ 0.92 $ 1.36 Weighted Average Number of Common Shares Outstanding............ 2,348 4,848
See accompanying notes to pro forma unaudited condensed consolidated financial statements. 17 PRO FORMA UNAUDITED CONDENSED CONSOLIDATED STATEMENT OF INCOME FOR THE THREE MONTHS ENDED MARCH 31, 1996 (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY THE GENESEE & (THROUGH ATWEC PRO WYOMING INC. FEBRUARY 8, 1996) RAILROADS COMBINED ADJUSTMENTS FORMA ------------ ----------------- --------- -------- ----------- ------- Operating Revenues...... $16,608 $1,420 $1,420 $19,448 $ -- $19,448 Operating Expenses: Transportation......... 4,480 532 261 5,273 -- 5,273 Maintenance of ways and structures............ 2,186 411 210 2,807 -- 2,807 Maintenance of equip- ment.................. 2,994 390 215 3,599 -- 3,599 General and administra- tive.................. 2,809 757 400 3,966 (1,291)(1) 2,675 Depreciation and amortization.......... 1,325 184 442 1,951 (415)(2,3) 1,536 ------- ------ ------ ------- ------ ------- Total operating expenses............. 13,794 2,274 1,528 17,596 (1,706) 15,890 Operating Income........ 2,814 (854) (108) 1,852 1,706 3,558 Interest Expense........ (1,274) (107) (78) (1,459) 511 (4) (948) Other Income............ 81 17 15 113 -- 113 ------- ------ ------ ------- ------ ------- Income Before Income Taxes.................. 1,621 (944) (171) 506 2,217 2,723 Income Taxes............ 656 (360) (70) 226 877 (6) 1,103 ------- ------ ------ ------- ------ ------- Income From Continuing Operations............. $ 965 $ (584) $ (101) $ 280 $1,340 $ 1,620 ======= ====== ====== ======= ====== ======= Income From Continuing Operations Per Common Share.................. $ 0.41 $ 0.33 Weighted Average Number of Common Shares Outstanding............ 2,348 4,848
See accompanying notes to pro forma unaudited condensed consolidated financial statements. 18 PRO FORMA UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEET AS OF MARCH 31, 1996 (IN THOUSANDS)
THE GENESEE & ATWEC PRO WYOMING INC. RAILROADS COMBINED ADJUSTMENTS FORMA ------------ --------- -------- ----------- -------- ASSETS Current Assets: Cash and cash equiva- lents................. $ 6,588 $ 2,697 $ 9,285 $ (2,697)(7) $ 6,588 Accounts receivable, net................... 14,764 710 15,474 (710)(7) 14,764 Materials and supplies. 2,295 183 2,478 (183)(7) 2,295 Prepaid expenses....... 1,747 298 2,045 (298)(7) 1,747 Deferred income tax as- sets, net............. 1,364 -- 1,364 -- 1,364 -------- ------- -------- -------- -------- Total current assets.. 26,758 3,888 30,646 (3,888) 26,758 Note Receivable......... -- 1,249 1,249 (1,249)(7) -- Property and Equipment, net.................... 70,609 14,480 85,089 (5,312)(8) 79,777 Service Assurance Agree- ment, net.............. 14,851 -- 14,851 -- 14,851 Other Assets, net....... 3,641 84 3,725 (84)(7) 3,641 -------- ------- -------- -------- -------- Total assets.......... $115,859 $19,701 $135,560 $(10,533) $125,027 ======== ======= ======== ======== ======== LIABILITIES AND STOCK- HOLDERS' EQUITY Current Liabilities: Current portion of long-term debt........ $ 2,894 $ 125 $ 3,019 $ (289)(7,9) $ 2,730 Accounts payable....... 17,103 784 17,887 (784)(7) 17,103 Accrued expenses....... 4,431 433 4,864 (433)(7) 4,431 -------- ------- -------- -------- -------- Total current liabili- ties................. 24,428 1,342 25,770 (1,506) 24,264 Long-Term Debt.......... 63,313 3,900 67,213 (31,736)(7,9) 35,477 Other Liabilities....... 2,055 333 2,388 (333)(7) 2,055 Deferred Income Taxes, net.................... 4,489 1,921 6,410 (1,921)(7) 4,489 Deferred Items--grants.. 9,622 3,168 12,790 -- 12,790 Stockholders' Equity: Class A common stock... 15 194 209 (169)(7,10) 40 Class B common stock... 8 150 158 (150)(7) 8 Treasury stock......... -- (33) (33) 33 (7) -- Additional paid-in cap- ital.................. 1,340 7,653 8,993 26,322 (7,10) 35,315 Warrants outstanding... 471 -- 471 -- 471 Retained earnings...... 10,118 1,157 11,275 (1,157)(7) 10,118 Pension liability ad- justment.............. -- (84) (84) 84 (7) -- -------- ------- -------- -------- -------- Total stockholders' equity............... 11,952 9,037 20,989 24,963 45,952 -------- ------- -------- -------- -------- Total liabilities and stockholders' equity. $115,859 $19,701 $135,560 $(10,533) $125,027 ======== ======= ======== ======== ========
See accompanying notes to pro forma unaudited condensed consolidated financial statements. 19 NOTES TO PRO FORMA UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS The following notes identify the pro forma adjustments made to the historical amounts in the pro forma unaudited condensed consolidated financial statements. 1. For the fiscal year ended December 31, 1995, represents the elimination of compensation of executive officers of acquired railroads not retained or replaced by the Company ($406,000), occupancy and other costs of the offices of the parent company of the ATWEC Railroads which were not acquired ($168,000) and retiree benefits retained by the selling railroads ($57,000). For the three months ended March 31, 1996, represents the elimination of transaction bonuses ($286,000), severance payments ($920,000), occupancy and other costs of the offices of the parent company of the ATWEC Railroads which were not acquired ($77,000) and retiree benefits retained by the selling railroads ($8,000). 2. Represents the decrease in depreciation expense resulting from a decrease in the depreciable basis and a change in the depreciable lives of certain assets. Depreciation expense of CIMR and the ATWEC Railroads for the year ended December 31, 1995 and the three months ended March 31, 1996 was approximately $2,740,000 and $573,000, respectively. Pro forma depreciation expense of CIMR and the ATWEC Railroads, calculated on a straight-line basis, was approximately $1,200,000 and $173,000, respectively, or a difference of approximately $1,530,000 and $400,000, respectively. Pro forma depreciation expense was calculated using the composite depreciable lives utilized by the Company and the asset basis of the Illinois & Midland and Pittsburg & Shawmut Acquisitions. 3. Represents the increase in amortization expense for the year ended December 31, 1995 and the three months ended March 31, 1996 of approximately $179,000 and $20,000, respectively, resulting from a reduction in the amortization period for intangible assets, including the service assurance agreement from the acquisition of CIMR. 4. Represents a decrease in interest expense associated with the reduction of debt as a result of the Offering, plus the effect of the reduced interest expense associated with the replacement of CIMR's and the ATWEC Railroads' credit facilities with the Company's Credit Facilities. Included in the pro forma interest expense is approximately $94,000 of amortization of the debt discount associated with the Bank Warrant for the year ended December 31, 1995 and $10,000 for the three months ended March 31, 1996. The debt bears interest at an assumed rate of approximately 8.5%. Also included is the amortization of approximately $1,640,000 of debt financing fees over five years. An increase in the assumed interest rate of 1/8% would decrease net income by approximately $31,000 and $17,000 for the year ended December 31, 1995 and the three months ended March 31, 1996, respectively. 5. Represents the elimination of the write down of assets of CIMR and the ATWEC Railroads to the purchase price paid by the Company. 6. Represents the income tax effects of the pro forma adjustments. The Company's pro forma income tax rate is 40.6% for the year ended December 31, 1995 and 40.5% for the three months ended March 31, 1996. 7. Represents the elimination of assets (other than operating rail assets) and liabilities the ATWEC Railroads which the Company did not acquire or assume in connection with the Pittsburg & Shawmut Acquisition. 8. The total purchase price for the ATWEC Railroads of approximately $15,194,000 includes approximately $250,000 of costs related to the Pittsburg & Shawmut Acquisition. The purchase price was allocated to property and equipment, less the anticipated sale of assets of approximately $6,000,000. 9. Represents reduction of debt through the application of the estimated net proceeds of the Offering, after giving effect to the additional debt incurred by the Company in connection with the Pittsburg & Shawmut Acquisition. 10. Represents estimated net proceeds to the Company in the Offering of $34 million. 20 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion should be read in connection with the Company's consolidated financial statements, related notes and other financial information included elsewhere in this Prospectus. GENERAL GWI is a holding company whose subsidiaries own and operate short line and regional freight railroads and provide related rail services. The Company generates revenues primarily from the movement of freight over track owned or operated by its railroads. The Company also generates non-freight revenues primarily by providing related rail services such as railcar leasing, railcar repair, switching and storage to shippers along its lines and to the Class I railroads that connect with its lines. The Company's operating expenses include wages and benefits, equipment rents (including car hire), purchased services, depreciation and amortization, diesel fuel, casualties and insurance, materials and other expenses. Car hire is a charge paid by a railroad to the owners of railcars used by that railroad in moving freight. Other expenses generally include property and other non- income taxes, professional services, communication and data processing costs and general overhead expense. When comparing the Company's results of operations from one reporting period to another, the following factors should be taken into consideration. First, in 1994 and 1995, the Company experienced a substantial decrease in revenues and operating income as a result of the collapse of Akzo's salt mine and subsequent loss of salt production. See "--Akzo Mine." Second, the Company has historically experienced fluctuations in revenues and expenses due to unpredictable events such as one-time freight moves, customer plant expansions and shut-downs, railcar sales, accidents and derailments. In periods when these events occur, results of operations are not easily comparable to other periods. Finally, much of the Company's growth to date has resulted from acquisitions and this growth has been "stair-step" in nature--periods with large revenue increases primarily as a result of these acquisitions, followed by periods of more gradual, incremental growth as the Company implements its marketing and operating strategies. The Company acquired two rail properties in 1993, one in 1994 and one in 1995. In addition, the Company completed the Illinois & Midland and Pittsburg & Shawmut Acquisitions during the first four months of 1996. See "Recent Developments." Because of variations in the structure, timing and size of these acquisitions and differences in economics among the Company's railroads resulting from differences in the rates and other material terms established through negotiation, the Company's results of operations in any reporting period may not be directly comparable to its results of operations in other reporting periods. AKZO MINE The major customer of one of the Company's railroads is Akzo, which operated a rock salt mine in Retsof, New York. In 1993, the last year the salt mine was fully operational, Akzo accounted for $9.7 million or 19.5% of the Company's operating revenues, $5.9 million or 15.2% of its freight revenues and $3.8 million or 35.0% of its non-freight revenues. In March 1994, a section of the mine's roof collapsed, causing flooding from an underground aquifer. The mine closed in September 1995. Akzo had previously announced its intention to construct a new mine. In anticipation of the construction of a new mine, the Company incurred approximately $600,000 of costs in connection with construction of a rail spur. Akzo announced in April 1996 that a new mine will not be constructed and that the Retsof location will be converted to a rock salt distribution center. While the Company anticipates that it will be reimbursed for these costs, there can be no assurance that such reimbursement will occur. The Akzo mine flooding negatively affected the Company's freight revenues in 1994 and 1995. Freight revenues attributable to Akzo totaled $2.9 million in 1994 and $1.9 million in 1995. The Company anticipates that freight revenues attributable to Akzo will be minimal in 1996 and thereafter. The flooding has not affected non-freight revenues from Akzo, which consist primarily of income from railcar leases under long-term contracts. Non-freight revenues from Akzo totaled $2.9 million in 1995 compared to $3.6 million in 1994. 21 RESULTS OF OPERATIONS THREE MONTHS ENDED MARCH 31, 1996 COMPARED TO THREE MONTHS ENDED MARCH 31, 1995 Operating Revenues Operating revenues were $16.6 million in the first three months of 1996 compared to $13.4 million in the first three months of 1995, an increase of $3.2 million or 24.0%. The increase was attributable to a $2.4 million increase in freight revenues and an $834,000 increase in non-freight revenues. Freight revenues were $13.0 million in the first three months of 1996 compared to $10.6 million in the first three months of 1995, an increase of $2.4 million or 22.6%. The following table compares freight revenues, carloads and average freight revenues per carload for the first three months of 1995 and 1996: FREIGHT REVENUES AND CARLOADS COMPARISON BY COMMODITY GROUP THREE MONTHS ENDED MARCH 31, 1995 AND 1996
AVERAGE FREIGHT REVENUES FREIGHT REVENUES CARLOADS PER CARLOAD ---------------------------- -------------------------- ----------- % OF % OF % OF % OF COMMODITY GROUP 1995 TOTAL 1996 TOTAL 1995 TOTAL 1996 TOTAL 1995 1996 - --------------- ------- ----- ------- ----- ------ ----- ------ ----- ----- ----- (DOLLARS IN THOUSANDS) Coal, Coke & Ores....... $ 694 6.6% $ 3,007 23.2% 3,324 10.7% 11,941 30.3% $209 $252 Petroleum Products...... 2,125 20.1 2,270 17.5 4,383 14.2 4,542 11.6 485 500 Pulp & Paper............ 1,691 16.0 1,793 13.8 4,610 14.9 4,772 12.1 367 376 Lumber & Forest Prod- ucts................... 1,051 9.9 1,269 9.8 3,102 10.0 4,123 10.5 339 308 Metals.................. 1,065 10.1 1,220 9.4 4,098 13.2 4,715 12.0 260 259 Chemicals & Plastics.... 1,008 9.5 967 7.5 2,078 6.7 1,841 4.7 485 525 Farm & Food Products.... 508 4.8 787 6.1 1,468 4.7 2,282 5.8 346 345 Autos & Auto Parts...... 582 5.5 764 5.9 1,085 3.5 1,463 3.7 536 522 Minerals & Stone........ 394 3.7 277 2.1 1,007 3.3 915 2.3 391 303 Salt.................... 1,125 10.7 72 0.6 4,057 13.1 388 1.0 277 186 Other................... 327 3.1 528 4.1 1,754 5.7 2,363 6.0 186 223 ------- ----- ------- ----- ------ ----- ------ ----- ----- ----- Total.................. $10,570 100.0% $12,954 100.0% 30,966 100.0% 39,345 100.0% $341 $329 ======= ===== ======= ===== ====== ===== ====== ===== ===== =====
The increase in freight revenues was largely attributable to the commencement of operations on Illinois & Midland, which generated freight revenues of $2.5 million, $2.3 million of which were revenues from the shipment of coal. A new line acquired in August 1995 in the Oregon region generated an additional $591,000 in revenues in the first three months of 1996, primarily from shipments of grain and lumber. Excluding freight revenues from the Akzo mine, freight revenues from all other operations increased $389,000. These increases offset the continuing effect of the loss of production at the Akzo mine. See "--Akzo Mine." Total carloads were 39,345 in the first three months of 1996 compared to 30,966 in the first three months of 1995, an increase of 8,379 or 27.1%. The increase was attributable to 9,720 carloads transported by Illinois & Midland, which consisted primarily of coal and 2,682 carloads from a new Oregon line. These increases were offset by a decrease of 4,023 carloads from other operations, most of which were related to the closure of the Akzo mine. Non-freight revenues were $3.7 million in the first three months of 1996 compared to $2.8 million in the first three months of 1995, an increase of $834,000 or 29.6%. Revenues from car hire and car rentals were $1.3 million in the first three months of 1996 compared to $818,000 in the first three months of 1995, an increase of $491,000 or 60.1%. This increase includes a gain on the sale of railcars of $593,000. Revenues from switching and storage activities were $1.1 million in the first three months of 1996 compared to $821,000 in the first three months of 1995, an increase of $307,000 or 37.4%. The increase reflects the effect of increased capacity at the Company's railcar storage facility in 1996 compared to 1995, and switching revenues generated by Illinois & Midland. Operating revenues per carload were $422 in the first three months of 1996 compared to $432 in the first three months of 1995, a decrease of $10 or 2.3%. The decrease is primarily due to the decline in average freight revenues per carload associated with increased coal shipments. 22 Operating Expenses Operating expenses were $13.8 million in the first three months of 1996 compared to $11.9 million in the first three months of 1995, an increase of $1.9 million or 16.3%. Expenses associated with the Illinois & Midland Acquisition represented $1.4 million of the increase. The Company's operating ratio improved to 83.1% in the first three months of 1996 from 88.6% in the first three months of 1995. The following table sets forth a comparison of the Company's operating expenses for the first three months of 1995 and 1996: OPERATING EXPENSE COMPARISON THREE MONTHS ENDED MARCH 31, 1995 AND 1996
1995 1996 ----------------- ----------------- % OF % OF OPERATING OPERATING $ REVENUES $ REVENUES ------- --------- ------- --------- (DOLLARS IN THOUSANDS) Labor and benefits.......................... $ 4,764 35.6% $ 5,452 32.8% Equipment rents............................. 1,884 14.1 1,880 11.3 Purchased services.......................... 779 5.8 780 4.7 Depreciation and amortization............... 926 6.9 1,325 8.0 Diesel fuel................................. 892 6.7 1,065 6.4 Casualties and insurance.................... 635 4.7 1,157 7.0 Materials................................... 881 6.6 706 4.3 Other....................................... 1,104 8.2 1,429 8.6 ------- ---- ------- ---- Total..................................... $11,865 88.6% $13,794 83.1% ======= ==== ======= ====
Labor and benefits expense was $5.5 million in the first three months of 1996 compared to $4.8 million in the first three months of 1995, an increase of $688,000 or 14.4%, primarily due to the commencement of operations on Illinois & Midland. Labor costs decreased as a percentage of revenues, however, to 32.8% in the first three months of 1996 from 35.6% in the first three months of 1995. The decrease reflects the efficiency of the unit coal train operations on Illinois & Midland. Depreciation and amortization expense was $1.3 million in the first three months of 1996 compared to $926,000 in the first three months of 1995, an increase of $399,000 or 43.1%. The increase reflects depreciation and amortization related to the Illinois & Midland Acquisition and the depreciation of rolling stock purchased during the second and third quarters of 1995. Casualties and insurance expense was $1.2 million in the first three months of 1996 compared to $635,000 in the first three months of 1995, an increase of $522,000 or 82.2%. The majority of this increase reflects increased derailment expenses. Interest Expense and Income Taxes Interest expense in the first three months of 1996 was $1.3 million compared to $766,000 in the first three months of 1995, an increase of $508,000 or 66.3%. The increase reflects the higher overall debt outstanding due to the financing of the Illinois & Midland Acquisition and the financing of rolling stock. The Company's effective income tax rate was 40.5% in the first three months of 1996 compared to 42.0% in the first three months of 1995. Net Income The Company's net income in the first three months of 1996 was $965,000 compared to $502,000 in the first three months of 1995, an increase of $463,000 or 92.2%. 23 YEAR ENDED DECEMBER 31, 1995 COMPARED TO YEAR ENDED DECEMBER 31, 1994 Operating Revenues Operating revenues were $53.4 million in 1995 compared to $55.4 million in 1994, a decrease of $2.0 million or 3.7%. This decrease was attributable to a $1.4 million decrease in non-freight revenues coupled with a $633,000 decrease in freight revenues. Freight revenues were $42.4 million in 1995 compared to $43.0 million in 1994, a decrease of $633,000 or 1.5%. The following table compares freight revenues, carloads and average freight revenues per carload for 1994 and 1995: FREIGHT REVENUES AND CARLOADS COMPARISON BY COMMODITY GROUP YEARS ENDED DECEMBER 31, 1994 AND 1995
AVERAGE FREIGHT REVENUES FREIGHT REVENUES CARLOADS PER CARLOAD ---------------------------- ---------------------------- ----------- % OF % OF % OF % OF COMMODITY GROUP 1994 TOTAL 1995 TOTAL 1994 TOTAL 1995 TOTAL 1994 1995 - --------------- ------- ----- ------- ----- ------- ----- ------- ----- ----- ----- (DOLLARS IN THOUSANDS) Coal, Coke & Ores....... $ 2,828 6.6% $ 2,656 6.3% 12,867 10.8% 12,398 10.5% $ 220 $ 214 Petroleum Products...... 8,341 19.4 8,487 20.0 17,186 14.4 17,559 14.8 485 483 Pulp & Paper............ 6,354 14.8 6,797 16.1 17,070 14.3 18,667 15.7 372 364 Lumber & Forest Prod- ucts................... 4,610 10.7 4,496 10.6 13,711 11.5 14,022 11.8 336 321 Metals.................. 4,862 11.3 4,459 10.5 16,606 14.0 17,014 14.3 293 262 Chemicals & Plastics.... 3,673 8.6 3,321 7.9 5,942 5.0 6,641 5.6 618 500 Farm & Food Products.... 2,112 4.9 2,756 6.5 6,525 5.5 5,778 4.9 324 477 Autos & Auto Parts...... 3,960 9.2 3,490 8.2 6,624 5.6 6,381 5.4 598 547 Minerals & Stone........ 1,860 4.3 1,407 3.3 5,037 4.2 4,189 3.5 369 336 Salt.................... 2,835 6.6 2,215 5.2 10,621 8.9 7,865 6.6 267 282 Other................... 1,550 3.6 2,268 5.4 6,862 5.8 8,159 6.9 226 278 ------- ----- ------- ----- ------- ----- ------- ----- ----- ----- Total.................. $42,985 100.0% $42,352 100.0% 119,051 100.0% 118,673 100.0% $ 361 $ 357 ======= ===== ======= ===== ======= ===== ======= ===== ===== =====
The decrease in freight revenues was largely attributable to the continuing effect of the loss of production at the Akzo mine. See "--Akzo Mine." Freight revenues from Akzo totaled $1.9 million in 1995 on 6,934 carloads compared to $2.9 million on 10,423 carloads in 1994. Excluding Akzo, total carloads increased by 3,111 or 2.9% in 1995 compared to 1994, while total freight revenues increased $338,000 or 0.6% in 1995 compared to 1994. In 1995, the Company realized $673,000 in additional freight revenues attributable to the acquisition of a new rail line in the Oregon region. This increase was partially offset by a $470,000 decrease in freight revenues from autos and auto parts to $3.5 million in 1995 from $4.0 million in 1994. Freight revenues from autos and auto parts in 1994 included a large one-time move of finished vehicles diverted to the Company by another carrier, which was not repeated in 1995. Non-freight revenues were $11.0 million in 1995 compared to $12.4 million in 1994, a decrease of $1.4 million or 11.2%. Revenues from car hire and car rentals were $3.2 million in 1995 compared to $5.2 million in 1994, a decrease of $2.0 million or 38.7%. Revenues from car hire and rentals were unusually high in 1994 due to a gain on the sale of railcars. The Company also had a reduced operating fleet in 1995 as a result of a sale of railcars in 1994, which reduced rental revenue. Revenues from switching and storage activities were $3.6 million in 1995 compared to $2.7 million in 1994, an increase of $934,000 or 34.5%. The increase reflects the operation of the Company's railcar storage facility for a full year. Car repair revenues were $1.6 million in 1995 compared to $1.9 million in 1994, a decrease of $349,000 or 18.3%. The decrease was attributable to a lower number of cars required to haul salt and the improvement in the quality of cars received in interchange. Operating revenues per carload were $450 in 1995 compared to $466 in 1994, a decrease of $16 or 3.4%. The $1.4 million decrease in non-freight revenues accounts for $12 of the per carload decline. The remainder is attributable to a $4 decrease in average freight revenues per carload. 24 Operating Expenses Operating expenses were $46.8 million in 1995 compared to $47.4 million in 1994, a decrease of $565,000 or 1.2%. The Company's operating ratio increased to 87.7% in 1995 from 85.5% in 1994. The following table sets forth a comparison of the Company's operating expenses in 1994 and 1995: OPERATING EXPENSE COMPARISON YEARS ENDED DECEMBER 31, 1994 AND 1995
1994 1995 ----------------- ----------------- % OF % OF OPERATING OPERATING $ REVENUES $ REVENUES ------- --------- ------- --------- (DOLLARS IN THOUSANDS) Labor and benefits....................... $18,092 32.6% $18,683 35.0% Equipment rents.......................... 8,634 15.6 7,434 13.9 Purchased services....................... 2,737 4.9 2,530 4.7 Depreciation and amortization............ 3,577 6.5 3,887 7.3 Diesel fuel.............................. 3,410 6.2 3,249 6.1 Casualties and insurance................. 2,742 5.0 3,673 6.9 Materials................................ 3,401 6.1 2,531 4.7 Other.................................... 4,788 8.6 4,828 9.1 ------- ---- ------- ---- Total.................................. $47,381 85.5% $46,815 87.7% ======= ==== ======= ====
Labor and benefits expense was $18.7 million in 1995 compared to $18.1 million in 1994, an increase of $591,000 or 3.3%. Labor costs increased as a percentage of revenues to 35.0% in 1995 compared to 32.6% in 1994. The increase was attributable to the start-up costs in connection with additional lines in Oregon and expansion of operations in Texas. Equipment rents were $7.4 million in 1995 compared to $8.6 million in 1994, a decrease of $1.2 million or 13.9%. The decrease reflects a reduction in the number of operating leases and lower car hire expense. In 1995, the Company purchased railcars and locomotives subject to an operating lease, which reduced equipment rent expense under this operating lease to $606,000 in 1995 compared to $1.7 million in 1994. Car hire expense decreased to $4.2 million in 1995 compared to $5.4 million in 1994, reflecting a concerted management effort to reduce this expense. Depreciation expense was $3.9 million in 1995 compared to $3.6 million in 1994, an increase of $310,000 or 8.7%. The majority of this increase reflects depreciation expense associated with railcars and locomotives purchased in 1995. Casualties and insurance expense, including claims brought under the Federal Employers' Liability Act, was $3.7 million in 1995 compared to $2.7 million in 1994, an increase of $931,000 or 34.0%. Additions to reserves for third party liability were $1.4 million in 1995 compared to $669,000 in 1994, an increase of $736,000. The majority of the increase in 1995 related to incidents occurring prior to 1995. While the Company establishes reserves for incidents as they occur, an unexpected legal action brought in 1995, together with changes in circumstances relating to prior incidents, necessitated this increase. In August 1994, the Company reduced its self-insured retention. If this level of coverage had been in place when these incidents occurred, necessary additions to reserves in 1995 would have been reduced by $400,000. The remainder of the increase in casualties and insurance expense reflects an increase in derailment expense. Materials expense was $2.5 million in 1995 compared to $3.4 million in 1994, a decrease of $870,000 or 25.6%. The decrease was largely attributable to a reduction in car repairs. Interest Expense and Income Taxes Interest expense was $3.4 million in 1995 compared to $3.2 million in 1994, an increase of $193,000 or 6.0%. The increase reflects higher overall debt outstanding related to the financing of rolling stock. During 1995, the Company refinanced the majority of its outstanding debt into the Credit Facilities, resulting in an effective 25 rate of interest that was lower than in 1994. See "--Liquidity and Capital Resources." Penalties and fees paid to lenders related to the repayment of debt resulted in an extraordinary charge of $494,000, net of related income taxes of $357,000. The Company's effective income tax rate was 40.6% in 1995 compared to 40.0% in 1994. Net Income The Company's net income in 1995 was $1.7 million (or $2.2 million before an extraordinary expense of $494,000 in connection with the early extinguishment of debt) compared to net income in 1994 of $3.0 million. Excluding the effect of this extraordinary expense, net income in 1995 decreased $860,000 or 28.6% compared to 1994. YEAR ENDED DECEMBER 31, 1994 COMPARED TO YEAR ENDED DECEMBER 31, 1993 Operating Revenues Operating revenues were $55.4 million in 1994 compared to $49.6 million in 1993, an increase of $5.8 million or 11.6%. Of this increase, $4.0 million was attributable to increases in freight revenues and $1.7 million was attributable to increases in non-freight revenues. Freight revenues were $43.0 million in 1994 compared to $39.0 million in 1993, an increase of $4.0 million or 10.3%. The following table compares freight revenues, carloads and average freight revenues per carload for 1993 and 1994: FREIGHT REVENUES AND CARLOADS COMPARISON BY COMMODITY GROUP YEARS ENDED DECEMBER 31, 1993 AND 1994
AVERAGE FREIGHT REVENUES FREIGHT REVENUES CARLOADS PER CARLOAD ---------------------------- ---------------------------- ----------- % OF % OF % OF % OF COMMODITY GROUP 1993 TOTAL 1994 TOTAL 1993 TOTAL 1994 TOTAL 1993 1994 - --------------- ------- ----- ------- ----- ------- ----- ------- ----- ----- ----- (DOLLARS IN THOUSANDS) Coal, Coke & Ores....... $ 3,514 9.0% $ 2,828 6.6% 15,915 13.8% 12,867 10.8% $ 221 $ 220 Petroleum Products...... 8,202 21.1 8,341 19.4 16,946 14.7 17,186 14.4 484 485 Pulp & Paper............ 4,360 11.2 6,354 14.8 11,789 10.2 17,070 14.3 370 372 Lumber & Forest Prod- ucts................... 3,208 8.2 4,610 10.7 10,020 8.7 13,711 11.5 320 336 Metals.................. 3,137 8.1 4,862 11.3 13,626 11.8 16,606 14.0 230 293 Chemicals & Plastics.... 2,766 7.1 3,673 8.6 4,446 3.9 5,942 5.0 622 618 Farm & Food Products.... 1,259 3.2 2,112 4.9 3,960 3.4 6,525 5.5 318 324 Autos & Auto Parts...... 1,152 3.0 3,960 9.2 2,206 1.9 6,624 5.6 522 598 Minerals & Stone........ 1,664 4.3 1,860 4.3 5,558 4.8 5,637 4.2 300 369 Salt.................... 5,980 15.3 2,835 6.6 24,525 21.3 10,621 8.9 244 267 Other................... 3,711 9.5 1,550 3.6 6,310 5.5 6,862 5.8 588 226 ------- ----- ------- ----- ------- ----- ------- ----- ----- ----- Total.................. $38,953 100.0% $42,985 100.0% 115,301 100.0% 119,051 100.0% $ 338 $ 361 ======= ===== ======= ===== ======= ===== ======= ===== ===== =====
The increase in freight revenues was attributable to a 3.3% increase in carloads, to 119,051 in 1994 from 115,301 in 1993, combined with a 6.8% increase in average freight revenues per carload, to $361 in 1994 from $338 in 1993. The increase in carloads occurred despite the collapse of Akzo's salt mine which significantly decreased production from the mine. The loss of production was primarily responsible for a 52.6% decrease in the Company's freight revenues attributable to shipments of salt, to $2.8 million in 1994 from $6.0 million in 1993. See "--Akzo Mine." Total carloads of commodities other than salt were 108,430 in 1994 compared to 90,776 in 1993, an increase of 17,654 or 19.4%. Autos and auto parts shipments increased by 4,418 carloads due to new contracts with Canadian auto plants and a large short-term movement of finished vehicles diverted to the Company by another carrier. Pulp and paper shipments increased by 5,281 carloads due to plant expansion and increased production from plants located on the Company's lines. Shipments of lumber and forest products increased by 3,691 26 carloads primarily due to a new contract with a paper mill. These increases were offset by a 3,048 carload decrease in shipments of coal, coke and ores in 1994 compared to 1993 primarily due to lower shipments to a Canadian utility. Non-freight revenues were $12.4 million in 1994 compared to $10.7 million in 1993, an increase of $1.7 million or 16.3%. Revenues from car hire and car rentals were $5.2 million in 1994 compared to $4.4 million in 1993, an increase of $792,000 or 17.8%. The increase was primarily attributable to a gain on the sale of railcars. Railcar repair revenue was $1.9 million in 1994 compared to $1.5 million in 1993, an increase of $373,000 or 24.3%. This increase was primarily attributable to the increased volume of freight traffic in 1994. Other non-freight revenues were $5.3 million in 1994 compared to $4.7 million in 1993, an increase of $579,000 or 12.3%. The increase was primarily due to higher demurrage and storage charges and easement sales. Operating revenues per carload were $466 in 1994 compared to $431 in 1993, an increase of $35 or 8.1%. The increase reflects a $23 increase in average freight revenues per carload combined with the $1.7 million increase in non- freight revenues. Operating Expenses Operating expenses were $47.4 million in 1994 compared to $43.5 million in 1993, an increase of $3.9 million or 8.9%. The Company's operating ratio improved to 85.5% in 1994 from 87.6% in 1993. The following table sets forth a comparison of the Company's operating expenses in 1993 and 1994: OPERATING EXPENSE COMPARISON YEARS ENDED DECEMBER 31, 1993 AND 1994
1993 1994 ----------------- ----------------- % OF % OF OPERATING OPERATING $ REVENUES $ REVENUES ------- --------- ------- --------- (DOLLARS IN THOUSANDS) Labor and benefits....................... $16,499 33.2% $18,092 32.6% Equipment rents.......................... 6,726 13.5 8,634 15.6 Purchased services....................... 3,407 6.9 2,737 4.9 Depreciation and amortization............ 3,115 6.3 3,577 6.5 Diesel fuel.............................. 2,788 5.6 3,410 6.2 Casualties and insurance................. 2,446 4.9 2,742 5.0 Materials................................ 3,680 7.4 3,401 6.1 Other.................................... 4,840 9.8 4,788 8.6 ------- ---- ------- ---- Total.................................. $43,501 87.6% $47,381 85.5% ======= ==== ======= ====
Labor and benefits expense was $18.1 million in 1994 compared to $16.5 million in 1993, an increase of $1.6 million or 9.7%. However, labor and benefits expense decreased as a percentage of operating revenues to 32.6% in 1994 from 33.2% in 1993. Equipment rents were $8.6 million in 1994 compared to $6.7 million in 1993, an increase of $1.9 million or 28.3%. Equipment rents increased as a percentage of operating revenues to 15.6% in 1994 from 13.5% in 1993. The increase was primarily due to higher car hire costs resulting from the change in mix of commodities hauled. The Company's railroads pay minimal car hire on shipments of minerals, which declined from 1993 to 1994, but pay relatively high car hire fees on shipments of autos and auto parts, which increased from 1993 to 1994. Purchased services expense was $2.7 million in 1994 compared to $3.4 million in 1993, a decrease of $670,000 or 19.7%. Purchased services expense decreased as a percentage of operating revenues to 4.9% in 1994 27 from 6.9% in 1993. The decrease was attributable to a reduction in contracted maintenance of way expense and a reduction in repairs performed by third parties on railcars owned or leased by GWI railroads. Diesel fuel expense was $3.4 million in 1994 compared to $2.8 million in 1993, an increase of $622,000 or 22.3%. Diesel fuel expense increased as a percentage of operating revenues to 6.2% in 1994 from 5.6% in 1993. The increase was caused by an increase in fuel prices and severe winter weather conditions in 1994. Other expense was $4.8 million in both 1994 and 1993, but decreased as a percentage of operating revenues to 8.6% in 1994 from 9.8% in 1993 as a result of the relatively fixed nature of these expenses. Other expense included write-offs of other assets of $675,000 and $180,000 in 1994 and 1993, respectively, both as a result of rail line abandonments. Interest Expense and Income Taxes Interest expense was $3.2 million in 1994 compared to $2.9 million in 1993, an increase of $348,000 or 12.2%. The increase reflects generally higher interest rates on the Company's debt in 1994. The Company's effective income tax rate decreased to 40.0% in 1994 from 41.5% in 1993 due to lower state and other income taxes. Net Income The Company's net income in 1994 was $3.0 million compared to net income in 1993 of $1.6 million (or $2.0 million before a cumulative change of accounting for postretirement benefits of $393,000). Excluding the effect of the accounting change, net income in 1994 increased $994,000 or 49.3% compared to 1993. LIQUIDITY AND CAPITAL RESOURCES During the first three months of 1996, the Company generated cash from operations of $6.0 million, which includes the effect of a $3.5 million increase in net trade payables associated with the commencement of operations of Illinois & Midland. In addition, the Company received $1.6 million in proceeds from the sale of equipment and invested $970,000 in track and other fixed assets (apart from its investment in the Illinois & Midland Acquisition). During 1995, the Company generated cash from operations of $2.6 million, generated cash from asset sales of $318,000, received $3.5 million in state grant funds for track rehabilitation, and had net new borrowings of $6.7 million. During the year the Company invested $8.6 million in equipment and rolling stock and $8.0 million in track maintenance and buildings. During 1994, the Company generated cash from operations of $7.3 million and cash from asset sales of $824,000, and received $1.8 million in state grants for rehabilitation of track. The cash generated was used to fund $6.2 million in capital expenditures and to repay a net $2.5 million in long-term debt and capital leases. Track and track structures accounted for $5.3 million of these capital expenditures, while the balance was invested in equipment. The Company has budgeted $7.3 million in capital expenditures in 1996, primarily for track rehabilitation, of which $970,000 was expended during the first three months of 1996. In connection with its lease of a rail line, one of the Company's railroads has committed to install a minimum of five miles of 100 lb. rail or better in each of the next five years. The annual cost of this obligation is included in the 1996 capital budget. In June 1995, the Company borrowed under the Credit Facilities to restructure a majority of its long-term debt and finance the purchase of rail equipment. The Company repaid $14.3 million in debt maturing at various dates between 1996 and 2001 and bearing interest rates ranging from 6.75% to 15.0% per annum, including the repayment of $701,000 in debt held by or for the benefit of directors and officers of the Company and members of their respective families. See "Certain Transactions." The Company borrowed $6.0 million under the Credit Facilities to purchase rolling stock which had been under an operating lease. At March 31, 1996, the Company had long term debt (including current portion) totaling $66.2 million, which comprised 84.7% of its total capitalization. This compares to long term debt of $39.9 million, comprising 28 79.1% of total capitalization at December 31, 1995, and long term debt of $32.6 million, comprising 78.2% of total capitalization, at December 31, 1994. In February 1996, the Company amended and restated its Credit Facilities to provide funding for the Illinois & Midland and Pittsburg & Shawmut Acquisitions. As amended, the Credit Facilities include a $40.0 million term loan and a $34.0 million revolving credit facility. The term loan requires varying quarterly principal payments beginning September 30, 1996, with the remaining balance payable in February 2001. The revolving credit facility provides for a mandatory commitment reduction of $2.0 million on December 31, 1997 with the remaining balance payable in February 2001. The interest rate on the facilities is a varying increment over the Bank of Boston's prime rate or LIBOR, based on the Company's ratio of debt to EBITDA. The Credit Facilities are secured by a blanket first-priority lien on all of the Company's railroad assets except real estate, and a pledge of all capital stock of the Company's subsidiaries. In conjunction with the financing, the Company paid a fee to the Bank of Boston of $1.5 million and issued the Bank Warrant. See "Description of Capital Stock--Bank Warrant." The Company's railroads have entered into a number of rehabilitation grants with state and federal agencies. The grant funds are used as a supplement to the Company's normal capital programs. In return for the grants, the railroads pledge to maintain various levels of service and maintenance on the rail lines that have been rehabilitated. The Company believes that the levels of service and maintenance required under the grants are not materially different from those that would be required without the grant obligation. While the Company has benefited in recent years from these grant funds, there can be no assurance that the funds will continue to be available. The Company has historically relied primarily on cash generated from operations to fund working capital and capital expenditures relating to ongoing operations, while relying on borrowed funds to finance acquisitions and equipment needs (primarily rolling stock) related to acquisitions. The Company believes that its cash flow from operations together with available amounts under the Credit Facilities will enable the Company to meet its liquidity and capital expenditure requirements relating to ongoing operations for at least the next four years. INFLATION In recent years, inflation has not had a significant impact on the Company's operations. The Company's contracts with connecting carriers typically include clauses that adjust the rates based on specific inflation factors. SEASONALITY Historically, the Company's operating revenues from existing operations have not been subject to significant seasonal changes. ACCOUNTING MATTERS Effective January 1, 1993, the Company adopted Statement of Financial Accounting Standards No. 106, "Employers' Accounting for Postretirement Benefits Other Than Pensions." The cumulative effect of the accounting change resulted in an after-tax charge to 1993 earnings of $393,000. The Company does not provide postemployment benefits to its employees. Accordingly, the adoption of Statement of Financial Accounting Standards No. 112 "Employers' Accounting for Postemployment Benefits" will have no effect on the Company. The Company adopted Statement of Financial Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of" (effective for fiscal years beginning after December 15, 1995), in the first quarter of 1996. The adoption did not have a material impact on the Company. Statement of Financial Accounting Standards No. 123, "Accounting for Stock- based Compensation" (effective for fiscal years beginning after December 15, 1995) encourages, but does not require, employers to adopt a fair value method of accounting for employee stock-based compensation, and requires increased stock-based compensation disclosures if the fair value method is not adopted. The Company does not intend to elect the fair value method for stock options. Accordingly, implementation of this Statement will have no effect on the Company's operating results or financial condition. 29 BUSINESS The Genesee and Wyoming Railroad Company, the Company's predecessor, was founded in 1899 by E.L. Fuller and his partners. From its founding through 1977, the Company was dependent on a single commodity, salt, produced by a single customer. In 1977, when Mortimer B. Fuller, III purchased a controlling interest in the Company and became its Chief Executive Officer, the Company generated $3.9 million in operating revenues over its 14 miles of track. In 1978, under the leadership of Mr. Fuller, the Company began a strategy of diversifying its sources of revenues, initially in the railcar leasing business and then through rail line acquisitions. As a result of the Company's acquisition and marketing strategies, the Company has become a diversified rail operation extending over approximately 1,500 miles of track and serving over 280 customers in six states. In 1995, the Company generated $53.4 million in operating revenues. INDUSTRY OVERVIEW The railroad industry in the United States has undergone significant change since the passage of the Staggers Rail Act of 1980 (the "Staggers Rail Act"), which deregulated the pricing and types of services provided by railroads. Since 1980, Class I railroads in the United States and Canada have taken aggressive steps to improve profitability and recapture market share. In furtherance of that goal, these Class I railroads have focused their management and capital resources on their long-haul core systems, and certain of them have sold branch lines to smaller and more cost-efficient rail operators that are willing to commit the resources necessary to meet the needs of the shippers located on these lines. Divestment of branch lines enables Class I carriers to minimize incremental capital expenditures, concentrate traffic density, improve operating efficiency and avoid traffic losses associated with rail line abandonment. The commitment of Class I carriers to increase efficiency and profitability has also led to an increase in merger activity among long haul railroads, such as the mergers between Union Pacific Corporation and Chicago and North Western Holdings Corp. and between Burlington Northern Inc. and Santa Fe Pacific Corporation, and the pending merger between Union Pacific Corporation and Southern Pacific Rail Corporation. Such merger activity is expected to lead to additional short line divestments, as overlapping routes are sold and the merged railroads seek to achieve operational synergies. The Company believes that there will continue to be opportunities to acquire lines from Class I railroads in the United States and that there may be opportunities to make acquisitions among the over 500 existing short line and regional railroads. The Company believes there may be acquisition opportunities in Canada and Mexico as well, although governmental regulations may limit acquisition opportunities in these countries. Both Canadian National Railway Company and Canadian Pacific Limited have divestment programs, and Mexico has announced a privatization program of the National Railroad of Mexico which could include the disposition of rail lines. Since 1980, more than 300 short line and regional railroads, operating approximately 36,500 miles of track, have been created, largely through divestments and other dispositions of track by Class I railroads. Reflecting the downsizing and operations rationalization that has been occurring among the Class I railroads, the proportion of total track miles operated by short line and regional railroads in the United States has increased from approximately 15% of total track miles in 1980 to approximately 27% in 1994 (the latest year for which information is available). STRATEGY The Company's strategy is to become the dominant provider of rail freight transportation in the markets it serves by (i) growing its business through acquisitions to establish new regions or increase its presence in existing regions, (ii) expanding its revenue base within each region through marketing efforts, and (iii) improving its operating efficiency through rationalization and consolidation of overhead expenses. The Company's growth to date has been the result of the acquisition of rail properties, which has expanded the Company's customer base and diversified its commodity mix, and its marketing efforts. The Company intends to continue to grow its business in each of its four regions and to acquire rail properties in new regions to build on its experience and further diversify its geographic and customer base. 30 Acquisition of Rail Properties The Company seeks to expand its business through the selective acquisition of rail properties, both in new regions and in regions in which it currently operates. The Company's fundamental acquisition strategy is to identify properties that have large industrial customers which will provide the Company with a stable revenue base and the potential to generate incremental revenues and additional customers upon implementation of a focused marketing plan. In new regions, the Company targets rail properties that have adequate size to establish a presence in the region, provide a basis for growth in the region and attract qualified management. When acquiring rail properties in its existing regions, in addition to seeking properties with large industrial customers, the Company targets rail properties where it believes the successful implementation of its operating strategy is likely to generate significant operating efficiencies. In evaluating acquisition opportunities, the Company considers, among other matters, the size of the rail operations, opportunities for expansion, commodity and customer diversification, revenue stability, connecting carriers, track condition and maintenance requirements, and expected financial returns. The Company also considers acquisition opportunities that have the potential to enable its railroads to provide better or more cost-effective service to major shippers or to increase and diversify the overall customer base of its railroads. The Company develops acquisition prospects through its relationships with Class I carriers and its reputation in the industry. In addition, the Company currently has four consultants on retainer to assist in the identification and development of acquisition opportunities. The Company has successfully integrated eleven acquisitions of varying sizes and operating characteristics, of which four were existing short lines and seven were Class I divestitures. The Company acquires rail properties by purchase of assets, lease or operating contract. Typically, the Company bids against other short line and regional operators for available properties. The structure of each transaction is determined by the seller based upon economic and strategic considerations. In addition to the financial terms of the transaction, sellers consider more subjective criteria such as a prospective acquiror's operating experience, its reputation among shippers, and its ability to close a transaction and commence operations smoothly. The Company believes it has established an excellent record in each of these areas. In addition, by growing revenues on its acquired lines and providing improved service to shippers, the Company is able to provide increased revenue to the Class I carriers that connect with its lines. The Company sees this ability to provide increased revenue to Class I carriers as an advantage in bidding for properties. Marketing The Company's marketing strategy is to build each region on a base of major industrial customers, to grow that base business through marketing efforts directed at its major customers and to generate incremental revenues outside the base of major customers by attracting smaller customers and providing ancillary services which generate non-freight revenues. The Company believes that over the long term, its strategy of building its regions around a core of major industrial customers provides a stable revenue base and allows the Company to focus its efforts on additional growth opportunities within a region. Of the 13 customers that generated freight revenues in excess of $1 million in 1995, all but two depend exclusively on the Company for rail service to support their facilities, and the Company believes that each of these facilities is strategically important to the respective customers. While the other two customers are not dependent on the Company, the Company's railroads provide the best route for them to move their products by rail. Through implementation of its marketing strategy, the Company intends to increase further the number of major customers so that, over time, the Company's reliance on any one customer will be reduced. Consistent with its decentralized management structure, the Company's sales and marketing activity is coordinated in each region by a marketing manager. The marketing manager works closely with personnel of each of the Company's railroads and with other department heads to develop marketing plans to increase shipments from existing customers and develop new business. The Company focuses on providing rail service to its customers that is easily accessible, reliable and cost-effective. The Company considers all of its employees to be customer service representatives and encourages them to initiate and maintain regular contact with shippers. 31 Because most of the traffic transported by the Company's railroads is interchanged with Class I carriers, the Company's marketing efforts are often aimed at enhancing its railroads' relationships with Class I carriers as well as shippers. The Company provides related rail services such as railcar leasing, railcar repair, switching, storage, weighing and blocking and bulk transfer, which enable Class I carriers and customers to move freight more easily and cost-effectively. For example, the Company supplies cars to its customers or its railroads when, among other things, a customer has a need which cannot be filled by cars supplied by Class I railroads or the Company has an opportunity to provide cars on a cost basis that both meets customer needs and improves the economics of a freight move to the Company. The Company actively manages its railcar portfolio, buying and selling equipment to take advantage of changes in market value in conjunction with changes in its customers needs. Operations The Company's operating strategy is to increase efficiency and profitability in each region in which it operates. When acquiring new rail properties within an existing region, the Company capitalizes on operating efficiencies created by the presence of its other railroads within that region. For example, in connection with the Pittsburg & Shawmut Acquisition, the Company will be able to liquidate 42 miles of track and sell a number of locomotives and railcars. In addition, consolidation of revenue and accounting functions often allows the Company to operate new railroads with fewer employees, as was the case with both the Illinois & Midland and Pittsburg & Shawmut Acquisitions. The Company rationalizes its track, where appropriate, to make its operations more efficient. Abandonments are planned on Buffalo & Pittsburgh, Louisiana & Delta and Pittsburg & Shawmut in 1996 and 1997. The Company also seeks and grants trackage rights to improve regional rail infrastructure efficiency. The Company intends to continue to improve the operating efficiency of its railroads by track rehabilitation, especially where maintenance has been deferred by the prior owner. Because of the importance of certain of the Company's shippers to the economic stability and or development of the regions where they are located, and because of the importance of certain of the Company's railroads to the economic infrastructure of those regions, approximately $17.5 million in state and federal grants for track rehabilitation and service improvements has been invested in the Company's rail properties since 1987. RAILROAD OPERATIONS Management The Company's decentralized management structure is an important element of its railroad operations. The Company's Chief Executive Officer and Chief Financial Officer have responsibility for overall strategic and financial planning. Significant operational discretion is given to local management of the Company's railroads, with each regional Senior Vice President responsible for implementing a strategic plan for the region based on annual budgets, quarterly reviews and incentive compensation tied to results. Regional Senior Vice Presidents and local managers also have specific operational objectives for continuous improvement such as reducing car hire expense or on-the-job lost time injuries. The plan for each region is updated annually and constitutes a basis for incentive compensation. Each railroad is given significant freedom in pricing, staffing, purchasing, marketing and operations, enabling the railroad's management to be more responsive to customer needs and emerging business opportunities. Managers from all regions meet periodically to discuss operational matters such as marketing, safety and locomotive acquisition and maintenance. Senior management of the Company also meets monthly to review each railroad's operations. The Company believes that through its decentralized management structure it has developed a culture that encourages employees to take initiative and responsibility which is rewarded through performance-based profit sharing and bonus programs. Customers The Company's railroads serve over 280 customers in its four operating regions. Through 1995, the Company's largest customer was Akzo, which accounted for approximately 20% of operating revenues in 1993, 32 12% in 1994 and 9% in 1995. Since 1994, revenues from Akzo have been negatively affected by the flooding of the Akzo mine. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Akzo Mine." As a result of the Illinois & Midland Acquisition, the Company anticipates that its largest customer in 1996 will be ComEd. The Company's ten largest customers accounted for 50% of operating revenues in 1995. These same ten customers accounted for 51.6% of operating revenues in 1994. Assuming continuation of the Company's acquisition strategy, management expects the Company's reliance on any one customer to diminish over time. The Company typically ships freight pursuant to transportation contracts among the Company, its connecting carriers and the shipper. These contracts are in accordance with industry norms and vary in duration from one to seven years. In recent years, the Company has benefited from the expansion of customers' facilities on its railroads. For example, Willamette Industries recently completed a $600 million expansion of its paper mill in Johnsonburg, Pennsylvania, which contributed to a $1.6 million increase in freight revenues from 1993 to 1995. A $98 million expansion at Armco Advanced Materials Company's Butler, Pennsylvania plant contributed to an increase in freight revenues from Armco of $478,000 from 1993 to 1995. Certain other customers have recently made or announced capital expansions at facilities served by the Company's railroads. Georgia Pacific's pulp and paper mill in Toledo, Oregon is undergoing a $100 million expansion that will increase capacity by 300 tons per day and also increase the input of raw materials. In 1995, Cascade Rolling Mills in McMinnville, Oregon began a two- phased investment of $42 million to construct and install a new wire rod and bar mill designed to roll an additional 500,000 tons per year. The Company believes it is well-positioned to realize an increase in freight revenues from these plant expansions. There can be no assurance, however, that these plant expansions, or the Company's marketing efforts, will lead to increased freight revenues. Commodities The Company's railroads transport a wide variety of commodities for their customers. Some of the Company's railroads have a well-diversified commodity mix while others transport one or two principal commodities. In 1995, pulp and paper and petroleum products were the two largest commodity groups transported by the Company's railroads, constituting 15.7% and 14.8%, respectively, of total carloads. On a pro forma basis after giving effect to both the Illinois & Midland Acquisition and the Pittsburg & Shawmut Acquisition, coal accounted for approximately 39.5% of total carloads in 1995. In 1996, the Company expects that coal will be the largest commodity transported by the Company's railroads as a result of the Illinois & Midland and Pittsburg & Shawmut Acquisitions. The following table summarizes the aggregate traffic volume of the Company's railroads by commodity group: CARLOADS CARRIED BY COMMODITY GROUP
YEAR ENDED YEAR ENDED THREE MONTHS ENDED DECEMBER 31, 1994 DECEMBER 31, 1995 MARCH 31, 1996 ------------------- ------------------- ------------------- COMMODITY CARLOADS % OF TOTAL CARLOADS % OF TOTAL CARLOADS % OF TOTAL - --------- -------- ---------- -------- ---------- -------- ---------- Coal, Coke & Ores....... 12,867 10.8% 12,398 10.5% 11,941 30.3% Pulp & Paper............ 17,070 14.3 18,667 15.7 4,772 12.1 Metals.................. 16,606 14.0 17,014 14.3 4,715 12.0 Petroleum Products...... 17,186 14.4 17,559 14.8 4,542 11.6 Lumber & Forest Prod- ucts................... 13,711 11.5 14,022 11.8 4,123 10.5 Farm & Food Products.... 6,525 5.5 5,778 4.9 2,282 5.8 Chemicals & Plastics.... 5,942 5.0 6,641 5.6 1,841 4.7 Autos & Auto Parts...... 6,624 5.6 6,381 5.4 1,463 3.7 Minerals & Stone........ 5,037 4.2 4,189 3.5 915 2.3 Salt.................... 10,621 8.9 7,865 6.6 388 1.0 Other................... 6,862 5.8 8,159 6.9 2,363 6.0 ------- ----- ------- ----- ------ ----- Total................. 119,051 100.0% 118,673 100.0% 39,345 100.0% ======= ===== ======= ===== ====== =====
33 Coal, coke and ores consist primarily of shipments of coal to utilities and industrial customers. Pulp and paper consist primarily of inbound shipments of pulp and outbound shipments of kraft and fine papers. Metals consist primarily of scrap metal and finished steel products shipped to and from two steel mills, and coated pipe. Petroleum products consist primarily of fuel oil and crude oil. Lumber and forest products consist primarily of finished lumber used in construction, particleboard used in furniture manufacturing, and wood chips and pulpwood used in paper manufacturing. Farm and food products consist primarily of sugar, molasses, rice and other grains and fertilizer. Chemicals and plastics consist primarily of various chemicals used in manufacturing. Autos and auto parts consist primarily of finished automobiles. Minerals and stone consist primarily of gravel and stone used in construction. Salt consists of mined rock salt used for roadway ice control. Rail Traffic Rail traffic is classified as on-line or overhead traffic. On-line traffic is traffic that either originates or terminates with shippers located on a railroad and is interchanged with another rail carrier. On-line traffic that both originates and terminates on a railroad is referred to as local traffic. Overhead traffic neither originates nor terminates on a railroad, but rather passes over a railroad from one connecting carrier to another. The Company believes that on-line shipments provide it with a stability of revenues because such traffic represents shipments to or from shippers located along its lines which cannot easily be diverted to other rail carriers. While overhead traffic is more easily diverted, it is less costly to handle. To offset the potential for diversion of overhead traffic, the Company has sought long-term contracts, based on a percentage of the shipper's annual rail volume, on its significant overhead traffic. In 1995, approximately two-thirds of GWI's overhead traffic was transported under such multi-year contracts. In 1995, 12.8% of freight revenues was generated by overhead traffic. On a pro forma basis after giving effect to both the Illinois & Midland Acquisition and the Pittsburg & Shawmut Acquisition, approximately 9.0% of freight revenues was generated by overhead traffic in 1995. The following table summarizes freight revenues by type of traffic carried by the Company's railroads. FREIGHT REVENUES BY TRAFFIC TYPE
YEAR ENDED YEAR ENDED THREE MONTHS DECEMBER 31, 1994 DECEMBER 31, 1995 ENDED MARCH 31, 1996 ------------------ ------------------ --------------------- % OF % OF % OF TRAFFIC TYPE AMOUNT TOTAL AMOUNT TOTAL AMOUNT TOTAL ------------ --------- -------- --------- -------- ----------- --------- (DOLLARS IN THOUSANDS) On-line Originated............ $ 18,784 43.7% $ 16,770 39.6% $ 3,862 29.8% Terminated............ 16,504 38.4 17,104 40.4 6,836 52.8 Local................. 1,964 4.6 3,068 7.2 1,035 8.0 --------- ------- --------- ------- ----------- --------- Total On-line....... 37,252 86.7 36,942 87.2 11,733 90.6 Overhead................ 5,733 13.3 5,410 12.8 1,221 9.4 --------- ------- --------- ------- ----------- --------- Total Traffic....... $ 42,985 100.0% $ 42,352 100.0% $ 12,954 100.0% ========= ======= ========= ======= =========== =========
34 Safety GWI's safety program involves all employees and focuses on the prevention of accidents and injuries. The Senior Vice President of each region is accountable for the results of the program, and each has an officer responsible for day-to-day program administration. Line supervisors have direct responsibility for the safety and training of their personnel. The Company maintains a corporate-wide safety policy facilitated by a full- time Safety Director. The Company's safety program also gives each railroad the flexibility to develop its own safety rules based on local requirements or practices. Each railroad complies fully with all federal, state and local government regulations. Operating personnel are trained and certified in train operations, hazardous materials handling, proper radio procedures and all other areas subject to governmental rules and regulations. The Company also participates in governmental and industry sponsored safety programs. Members of the Company's management serve on the Board of Directors of Operation Lifesaver (the national grade crossing awareness program), the New Program Committee of Operation Lifesaver and the American Short Line Railroad Association Safety Committee. In addition, the Company has a "working team" consisting of the safety officers from each railroad. This team is charged with ongoing development and refinement of the Company's safety program and coordination with each railroad to insure compliance with and implementation of all safety rules and regulations. Employees As of May 31, 1996, the Company had 484 full-time employees, 88 of whom were hired in 1996 in connection with the Illinois & Midland and Pittsburg & Shawmut Acquisitions. Of this total, 146 are members of national labor organizations, including 52 employees hired in connection with the Illinois & Midland Acquisition. The Company has seven contracts with these national labor organizations which have expiration dates ranging from August 1997 to June 1999. The Company has also entered into collective bargaining agreements with an additional 61 employees who represent themselves, all of which expire in 1999. In March 1994, approximately 40 employees of one of the Company's railroads began an illegal work stoppage to protest the use of management on train crews. A temporary restraining order was issued and the underlying dispute was subsequently resolved in arbitration. The work stoppage did not have a material effect on the Company's operations and the Company believes the work stoppage has not had an adverse effect on its overall employee relations. The Company has not experienced any other strikes or work stoppages for over 20 years. The Company believes that its railroads' relations with their employees are good. INSURANCE The Company has obtained for each of its railroads insurance coverage for losses arising from personal injury and for property damage in the event of derailments or other accidents or occurrences. The liability policies have self-insured retentions ranging from $25,000 to $250,000 per occurrence. In addition, the Company maintains an excess liability policy which provides supplemental coverage for losses in excess of primary policy limits. With respect to the transportation of hazardous commodities, the Company's liability policy covers sudden releases of hazardous materials, including expenses related to evacuation. Personal injuries associated with grade crossing accidents are also covered under the Company's liability policy. The Company also maintains all-risk property damage coverage, subject to a standard pollution exception and self-insured retentions ranging from $10,000 to $250,000. Employees of the Company's railroads are covered by the Federal Employers' Liability Act ("FELA"), a fault-based system under which injuries and deaths of railroad employees are settled by negotiation or litigation based on the comparative negligence of the employee and the employer. FELA-related claims are covered under the Company's liability insurance policies. 35 The Company believes its insurance coverage is adequate in light of its experience and the experience of the rail industry. However, there can be no assurance as to the adequacy, availability or cost of insurance in the future. See "Risk Factors--Liability for Casualty Losses." COMPETITION In acquiring rail properties, the Company competes with other short line and regional railroad operators, some of which are larger and have greater financial resources than the Company. Competition for rail properties is based primarily upon price, operating history and financing capability. The Company believes its established reputation as a successful acquiror and operator of short line rail properties, in combination with its managerial and financial resources, effectively positions it to take advantage of future acquisition opportunities. See "--Strategy--Acquisition of Rail Properties." Each of the Company's railroads is typically the only rail carrier directly serving its customers; however, the Company's railroads compete directly with other modes of transportation, principally motor carriers and, to a lesser extent, ship and barge operators. The extent of this competition varies significantly among the Company's railroads. Competition is based primarily upon the rate charged and the transit time required, as well as the quality and reliability of the service provided, for an origin-to-destination transportation package. To the extent other carriers are involved in transporting a shipment, the Company cannot control the cost and quality of such service. Cost reductions achieved by major rail carriers over the past several years have generally improved their ability to compete with alternate modes of transportation. REGULATION The Company's railroads are subject to regulation by the STB, the FRA, state departments of transportation and some state and local regulatory agencies. The STB is the successor to certain regulatory functions previously administered by the Interstate Commerce Commission. Established by the ICCTA in 1995, the STB has jurisdiction over, among other things, service levels and compensation of carriers for use of their railcars by other carriers. It also must authorize extension or abandonment of rail lines, the acquisition of rail lines, and consolidation, merger or acquisition of control of rail common carriers; in limited circumstances, it may condition such authorization upon the payment of severance benefits to affected employees. The STB may review rail carrier pricing only in response to a complaint concerning rates charged for transportation where there is an absence of effective competition. The FRA has jurisdiction over safety and railroad equipment standards and also assists in coordinating projects for railroad route simplification. In 1980, the Staggers Rail Act fundamentally changed federal regulatory policy by emphasizing the promotion of revenue adequacy (the opportunity to earn revenues sufficient to cover costs and attract capital) for the railroads and allowing competition to determine to a greater extent rail prices and route and service options. The ICCTA continues the trend towards limiting regulation of rail prices. As a result of these changes in legislative policy, the railroad industry's rate structure has evolved from a system of interrelated prices that applied over different routes between the same points to a combination of market based prices that are now subject to limited regulatory constraints. While federal regulation of rail prices has been significantly curtailed, federal regulation of services continues to affect profitability and competitiveness in the railroad industry. To date, the most significant impact on the Company of the federal and state regulatory schemes has been the delays and costs associated with protracted abandonment proceedings and the legal costs associated with acquisition proceedings. Although the ICCTA purports to aim at eliminating or reducing such costs, the ICCTA has not been in effect long enough to determine if it will be successful in this regard. In reducing regulation an effect of the ICCTA may be diminished regulatory recourse for small railroads which negatively affects their competitive position with their Class I connections. 36 ENVIRONMENTAL MATTERS The Company's operations are subject to various federal, state and local laws and regulations relating to the protection of the environment, which have become increasingly stringent. These environmental laws and regulations, which are implemented principally by the Environmental Protection Agency and comparable state agencies, govern the management of hazardous wastes, the discharge of pollutants into the air and into surface and underground waters, and the manufacture and disposal of certain substances. There are no material environmental claims currently pending or, to the Company's knowledge, threatened against the Company or any of its railroads. In addition, the Company believes that the operations of its railroads are in material compliance with current laws and regulations. The Company estimates that any expenses incurred in maintaining compliance with current laws and regulations will not have a material effect on the Company's earnings or capital expenditures. However, there can be no assurance that the current regulatory requirements will not change, or that currently unforeseen environmental incidents will not occur, or that past non-compliance with environmental laws will not be discovered on the Company's properties. LEGAL PROCEEDINGS The Company currently has no claims or legal actions pending other than claims arising in the ordinary course of its business. The Company believes these claims, taking into account reserves and applicable insurance, will not have a material adverse effect on the Company. 37 PROPERTY The Company currently operates twelve railroads in six states, of which nine are owned, two are leased and one is operated under an operating agreement. The Company's railroads own or lease 1,236 miles of track and operate over an additional 270 miles pursuant to trackage rights and haulage contracts. These rail properties typically consist of the track and the underlying land. Real estate adjacent to the railroad rights-of-way is generally retained by the seller, and the Company's holdings of such property are not material. Similarly, the seller typically retains mineral rights and rights to grant fiber optic and other easements in the properties acquired by the Company's railroads. The following table sets forth certain information with respect to the Company's railroads:
TRACK CONNECTING RAILROAD AND LOCATION MILES STRUCTURE CARRIERS(1) - --------------------- ----- --------- ----------- Allegheny & Eastern Railroad, 153 (2) Owned BPRR, CR Inc. ("ALY")................ Pennsylvania Bradford Industrial Railroad, 4 (3) Owned BPRR, CR Inc. ("BR")................. New York, Pennsylvania Buffalo & Pittsburgh Rail- 279 (4) Owned/Leased ALY, BLE, BR, CN, road, Inc. ("BPRR")......... CPRS, CR, CSX, NS, New York, Pennsylvania PS, RSR, SB The Dansville & Mount Morris 8 Owned GNWR Railroad Company ("DMM").... New York Genesee and Wyoming Railroad 26 (5) Owned (5) CPRS, CR, DMM, RSR Company ("GNWR")............ New York Pittsburg & Shawmut Railroad, 224 (6) Owned BPRR, CR Inc. ("PS")................. Pennsylvania Rochester & Southern Rail- 66 (7) Owned BPRR, CPRS, CR, road, Inc. ("RSR").......... GNWR, NS New York Illinois & Midland Railroad, 97 (8) Owned BNSF, CR, GWWR, Inc. ("IMR")................ IAIS, IC, KJRY, NS, Illinois PPU, SP, TPW, UP Portland & Western Railroad, 107 (9) Leased BNSF, SP, WPRR, Inc. ("PNWR")............... POTB Oregon Willamette & Pacific Rail- 185 (10) Leased SP, PNWR road, Inc. ("WPRR")......... Oregon Louisiana & Delta Railroad, 87 (11) Owned/Leased SP Inc. ("LDRR")............... Louisiana GWI Switching Services, L.P. 0 (12) Operating Agreement SP ("GWSW").................... Texas
- -------- (1) See Legend of Connecting Carriers following this table. (2) In addition, ALY operates by trackage rights over 3 miles of CR. (3) In addition, BR operates by trackage rights over 14 miles of BPRR. (4) Includes 92 miles under perpetual leases and 9 miles under a lease expiring in 2090. In addition, BPRR operates by trackage rights over 27 miles of CSX under an agreement expiring in 2018. (5) Track has been conveyed to a county industrial development agency and leased back to GNWR. In addition, GNWR operates by trackage rights over an aggregate of 49 miles of RSR. (6) In addition, PS operates over 13 miles pursuant to an operating contract. (7) In addition, RSR has a haulage contract over 52 miles of CP. (8) In addition, IMR operates by trackage rights over 15 miles of IC, 9 miles of PPU and 5 miles of UP. (9) In addition, PNWR operates by trackage rights over 2 miles of SP and 4 miles of POTB. (10) All under lease expiring in 2013, with renewal options subject to both parties' consent. In addition, WPRR operates over 41 miles of SP under a concurrent trackage rights agreement. (11) Includes 14 miles under a lease expiring in 2011. In addition, LDRR operates by trackage rights over 91 miles of SP under an agreement terminable by either party after 1997 and has a haulage contract with M.A. Patout & Sons over 4 miles of track. (12) GWSW operates via trackage rights over 5 miles of SP. 38 LEGEND OF CONNECTING CARRIERS BLE Bessemer and Lake Erie Railroad Company BNSF Burlington Northern Santa Fe Corp. CN Canadian National CPRS CP Rail Systems CR Consolidated Rail Corporation CSX CSX Transportation, Inc. GWWR Gateway Western Railway IAIS Iowa Interstate Railroad, Ltd. IC Illinois Central Railroad Company
KJRY Keokuk Junction Railway NS Norfolk Southern Corp. POTB Port of Tillamook Bay Railroad PPU Peoria & Pekin Union Railway SB South Buffalo Railway Company SP Southern Pacific Transportation Company TPW Toledo, Peoria & Western Railway Corp. UP Union Pacific Railroad Company
The following is a description of each of the twelve railroads operated by the Company: Allegheny & Eastern Railroad, Inc. In 1992, ALY acquired from International Paper 153 miles of track between Erie and Emporium, Pennsylvania. Connections are made with CR at Erie and Emporium, Pennsylvania and with BPRR at Johnsonburg, Pennsylvania. Traffic in 1995 totaled 5,769 carloads, which included petroleum products, pulpwood, wood pulp, chemicals and paper. In addition, a CR unit train operates over ALY between International Paper plants in Lock Haven and Erie, Pennsylvania. Bradford Industrial Railroad, Inc. In 1992 BR acquired 4 miles of track running from East Bradford to Bradford, Pennsylvania and 14 miles of trackage rights from Bradford to Salamanca, New York, where BR connects with CR and BPRR. Traffic in 1995 totaled 722 carloads which included paper products, petroleum products and plastics. Buffalo & Pittsburgh Railroad, Inc. BPRR purchased and leased 365 miles of track and obtained 27 miles of trackage rights from CSX in 1991. BPRR conveyed its interest in the 26-mile Clearfield Branch to CR in 1992. In 1993, BPRR discontinued service over the 60-mile Indiana Branch leased from CSX. BPRR connects with every Class I railroad in the eastern United States and Canada. In 1995, BPRR handled 49,057 carloads. Principal commodities included aggregates, automobiles, chemicals, coal, petroleum products, lumber, paper products and steel. The Dansville & Mount Morris Railroad Company DMM operates 8 miles of track from a connection with GNWR at Groveland, New York to Dansville, New York, where it serves the Foster Wheeler Energy Corporation. In 1995, DMM handled 21 carloads of steel and machinery. DMM was acquired in 1985. In 1988, its 60-90 lb. rail was replaced with 131 lb. continuous welded rail. Genesee and Wyoming Railroad Company GNWR commenced operations in 1899. The 26-mile GNWR mainline runs from Groveland, New York to P&L Junction in Caledonia, New York. In addition, GNWR operates via trackage rights over 49 miles of RSR to interchange with CR in Rochester, New York. GNWR also interchanges with CPRS at Silver Springs, New York. The principal commodity handled by GNWR is rock salt for snow and ice control. Traffic in 1995 totaled 7,741 carloads and was negatively affected by the collapse and closure of the Akzo mine. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Akzo Mine." Pittsburg & Shawmut Railroad, Inc. The assets of PS were acquired on April 29, 1996. See "Recent Developments." PS operates over 237 miles of track in western Pennsylvania, connecting with BPRR in three locations and CR. Coal is the primary commodity hauled by PS. 39 Rochester & Southern Railroad, Inc. The 93-mile RSR mainline and 6 miles of branch lines between Ashford and Rochester, New York were acquired from CSX in 1986. RSR abandoned 33 miles between Silver Springs and Machias, New York in 1991, leaving 60 miles of mainline. RSR interchanges with CR at Rochester and Silver Springs, with CPRS at Silver Springs, with GNWR at P&L Junction and with BPRR in Buffalo, New York via a haulage contract with CPRS. Traffic in 1995 totaled 4,290 carloads which included fuel oil, chemicals, coal, lumber and auto parts. Illinois & Midland Railroad, Inc. The assets of IMR were acquired on February 8, 1996. See "Recent Developments." IMR is headquartered in Springfield, Illinois and operates between Taylorville and Peoria, Illinois over 97 miles of owned track, 15 miles of trackage rights over IC, 9 miles of trackage rights over PPU and 5 miles of trackage rights over UP. IMR handles principally coal to two ComEd power plants. IMR connects with BNSF, CR, GWWR, IAIS, IC, KJRY, NS, PPU, SP, TPW and UP and with the Illinois River through an unloading facility owned by ComEd and operated by IMR at Havana, Illinois. Coal is the primary commodity hauled by IMR. Portland & Western Railroad, Inc. PNWR acquired by lease 53 miles of SP's remaining Oregon branch lines on August 18, 1995. The lease runs for 20 years with a 10-year renewal unless terminated by either party. PNWR has trackage rights from Willsburg Junction, Oregon to interchange with SP at Brooklyn Yard in Portland. On October 1, 1995 PNWR leased 54 miles of BNSF's former Oregon Electric subdivision for three years with three-year renewals subject to termination by either party. PNWR also interchanges with BNSF at Brooklyn Yard. In the last five months of 1995, PNWR handled 3,753 carloads comprised principally of lumber and grain. Willamette & Pacific Railroad, Inc. In 1993 WPRR acquired, under a 20-year lease with renewal options subject to both parties' consent, 185 miles of SP's Westside Branches between Portland and Eugene, Oregon. WPRR operates under a trackage rights agreement over 41 miles of SP from Albany, Oregon to interchange with SP at Eugene Yard. Traffic in 1995 totaled 35,281 carloads. Major commodities shipped on WPRR include paper, newsprint, wood chips, lumber, steel, grain, scrap steel, fertilizer and grass seed. Louisiana & Delta Railroad, Inc. In 1987 LDRR purchased and leased certain SP branch lines between Raceland and New Iberia, Louisiana. Seven separate branches total 92 miles and are connected by 93 miles of trackage rights over the SP mainline. Service to an eighth branch, acquired by a shipper, began in 1989. LDRR handled 12,039 carloads in 1995. Principal commodities carried by LDRR are carbon black, sugar and molasses, pipe, plastics, rice, salt and paper products. GWI Switching Services, L.P. GWSW began operation of a Dayton, Texas plastic pellet car storage yard in 1994 under a long-term contract. The yard was completed in December 1995 and has capacity to hold 3,000 cars. The yard is located on over 100 acres along SP's Baytown branch and contains over 50 miles of track. GWSW operates over 5 miles of SP under trackage rights to move the cars to and from the storage yard and SP's Dayton rail yard. The yard has capacity to be expanded, at SP's option, to hold approximately 4,500 cars. TRACK CONDITION The Company's railroads conduct freight operations on 1,506 miles of track. Of this total, 829 miles of track are owned by the Company's railroads, 407 miles of track are leased and the Company operates over 202 miles of track pursuant to trackage rights agreements. In addition, the Company has a haulage contract whereby it pays a connecting carrier to carry its customers' freight over 56 miles of the connecting carrier's line. The remaining 12 miles are operated by Pittsburg & Shawmut pursuant to an operating contract. 40 Of the 1,506 miles of track operated on or by the Company's railroads, 13% was in FRA Class IV condition, permitting speeds of up to 60 miles per hour for freight trains. An additional 45% was in FRA Class III condition, permitting speeds of up to 40 miles per hour, while 21% was in FRA Class II condition, permitting speeds of up to 25 miles per hour. The remaining 21% was in FRA Class I or FRA Excepted Class I condition, which permits maximum speeds of 10 miles per hour. The following table summarizes the track condition of the Company's railroads: TRACK CONDITION
FRA CLASS ---------------------------- IV III II I EXCEPTED TOTAL % --- --- --- --- -------- ----- --- Owned.................................. - 528 170 95 36 829 55% Leased................................. - 119 120 46 122 407 27 Trackage rights........................ 146 31 18 7 - 202 13 Contract............................... 50 2 3 13 - 68 5 --- --- --- --- --- ----- --- Total miles............................ 196 680 311 161 158 1,506 100% === === === === === ===== === FRA Class as percentage of miles....... 13% 45% 21% 11% 10% 100% === === === === === =====
The Company's track maintenance policy is to maintain its railroads' track, ties and roadbed consistent with safe operations and with the volume of traffic transported over their lines. Safety-related maintenance receives the highest maintenance priority, followed by high-density track segments on which the highest volume of traffic is transported. Low-density segments, sidings and lines for which higher transit speeds are not essential to providing timely and effective service are maintained at lower FRA Class conditions. In connection with its lease of the SP rail line, WPRR installed 30,600 railroad ties and has committed to upgrade approximately 25 miles of rail. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." EQUIPMENT As of March 31, 1996, rolling stock of the Company's railroads consisted of 113 locomotives and 1,133 freight cars, some of which were owned and some of which were leased from others. The average age of the Company's locomotive fleet is approximately 28 years. The following tables summarize the aggregate fleet of the Company's railroads at March 31, 1996(1): LOCOMOTIVES
HORSEPOWER PER UNIT OWNED LEASED TOTAL ------------------- ----- ------ ----- 3000 to 3200.............................................. 18 7 25 2000 to 3000.............................................. 28 6 34 1800 and under............................................ 24 30 54 --- --- --- Total................................................... 70 43 113 === === ===
FREIGHT CARS
CAR TYPE OWNED LEASED MANAGED TOTAL -------- ----- ------ ------- ----- Covered hopper.................................... 651 19 162 832 Plain box car..................................... 25 - 101 126 Equipped box car.................................. - 50 - 50 Gondola........................................... - 115 - 115 Wood chip gondola................................. - 10 - 10 --- --- --- ----- Total........................................... 676 194 263 1,133 === === === =====
- -------- (1) In addition, in connection with the Pittsburg & Shawmut Acquisition, the Company acquired an additional 859 railcars and 19 locomotives, a significant portion of which will be sold. 41 MANAGEMENT The following table sets forth information regarding the executive officers and directors of the Company:
NAME AGE POSITION ---- --- -------- Mortimer B. Fuller, III. 54 Chairman of the Board of Directors, President and Chief Executive Officer Senior Vice President, Chief Financial Officer and Mark W. Hastings........ 46 Treasurer Forrest L. Becht........ 52 Senior Vice President-Louisiana and Texas Charles W. Chabot....... 49 Senior Vice President-New York and Pennsylvania Robert I. Melbo......... 53 Senior Vice President-Oregon Spencer D. White........ 36 Senior Vice President-Illinois Alan R. Harris.......... 48 Senior Vice President and Chief Accounting Officer James M. Fuller(1)...... 55 Director Louis S. Fuller(2)...... 55 Director John M. Randolph(1)(2).. 70 Director Philip J. Ringo(1)(2)... 54 Director
- -------- (1) Member of Audit Committee. (2) Member of Compensation Committee. The Company's Board of Directors is divided into three classes and directors serve for staggered three-year terms. The current terms of office of James M. Fuller and John M. Randolph expire in 1997, the current terms of office of Louis S. Fuller and Philip J. Ringo expire in 1998, and the current term of office of Mortimer B. Fuller, III expires in 1999. Mortimer B. Fuller, III has been President and Chief Executive Officer of the Company since 1977. He has been a director of the Company since 1973 and also serves as Chairman of the Board and of the Board's Executive Committee. He is a graduate of Princeton University, Boston University School of Law and Harvard Business School. Mr. Fuller is a director of the American Short Line Railroad Association. He is a founding member of the Regional Railroads of America, and serves on that Association's executive committee. He also serves on the Board of Directors of Detection Systems, Inc. Mr. Fuller is a first cousin of James M. Fuller and Louis S. Fuller. Mark W. Hastings, Senior Vice President, Chief Financial Officer and Treasurer, has been the Company's chief financial officer since he joined the Company in 1978. Prior to joining GWI, Mr. Hastings was a credit analyst for Marine Midland Bank. He currently represents the short line industry on the Board of the Railroad Clearing House, which has been established to create the administrative systems and banking functions for the electronic settlement of all rail industry interline freight payments. Forrest L. Becht, Senior Vice President-Louisiana and Texas, joined the Company in 1987 as General Manager of Louisiana & Delta Railroad, Inc., and now serves as its President and General Manager. His 25-year career in the railroad industry has included service with The Atchison, Topeka and Santa Fe Railway from 1968 to 1981 in a succession of staff and line positions in its mechanical and operating departments. Mr. Becht is a director of the American Short Line Railroad Association and is active in several other railroad operating associations. Charles W. Chabot, Senior Vice President-New York and Pennsylvania, joined the Company as Senior Vice President--Marketing and Sales in 1991. He became President of Buffalo & Pittsburgh Railroad, Inc. in 1992. Prior to joining the Company, Mr. Chabot was employed for over ten years by the Chessie System Railroad (predecessor of CSX Transportation, Inc.), where he served in various capacities in marketing and freight equipment planning, including Director, Minerals Marketing, Assistant Vice President, Chemical Marketing, and Assistant Vice President, Planning and Equipment. He also served as a management consultant with Booz, Allen and Hamilton. Mr. Chabot represents the short line railroad industry on the Board of Directors of Operation Lifesaver, Inc. 42 Robert I. Melbo, Senior Vice President-Oregon, has served as General Manager of Willamette & Pacific Railroad, Inc. since 1993. He joined the Company in 1993 after over 25 years of service in operations with Southern Pacific Transportation Company in various capacities, including Manager-Field Operations, Northern Willamette Valley, and Superintendent of the Oregon Division. Spencer D. White, Senior Vice President-Illinois, joined the Company in 1988 as Chief Engineer of Buffalo & Pittsburgh Railroad, Inc. after serving in progressive engineering positions with CSX Transportation since 1982. He has served the Company as Vice President-Operations of Buffalo & Pittsburgh Railroad, Inc. and Chief Engineer of the New York and Pennsylvania railroads. He assumed his current position in February 1996, following the Illinois & Midland Acquisition. Alan R. Harris, Senior Vice President and Chief Accounting Officer, joined the Company in 1990 as its Chief Accounting Officer. Mr. Harris is a certified public accountant and from 1985 to 1990, he was Director of Accounting, and subsequently Secretary and Treasurer, of Preston Trucking Company, Inc., an interstate carrier. James M. Fuller has been a director of the Company since 1974. In 1995 he became Regional Sales Manager of the Harvey Salt Co., a distributor of salt and water purification chemicals. From 1983 until 1993, Mr. Fuller was National Account Manager-Export for Akzo, where he served for over 25 years. Mr. Fuller is a first cousin of Mortimer B. Fuller, III and Louis S. Fuller. Louis S. Fuller, has been a director of the Company since 1974. Since 1991, he has been a member of Courtright and Associates, an executive search firm. Mr. Fuller serves on the Advisory Board of Pioneer American Bank. He is a first cousin of Mortimer B. Fuller, III and James M. Fuller. John M. Randolph, a financial consultant and private investor for more than the past five years, has been a director of the Company since 1986. In 1965 Mr. Randolph founded and was Chief Executive Officer of Randolph Computer Corporation, one of the first computer leasing companies. He subsequently served as Chairman and Chief Executive Officer of J.M. Randolph and Associates, a company created to manage certain computer leasing assets acquired by the Bank of Boston. Mr. Randolph currently serves as a director of Leasing Technologies International Inc. and as Vice Chairman and a director of Financing for Science International, Inc. Philip J. Ringo has been a director of the Company since 1978. Since 1995, he has been President of Chemical Leaman Tank Lines Inc., a trucking firm. From 1992 to 1995, Mr. Ringo served as President and Chief Operating Officer of The Morgan Group, Inc. and Chairman and Chief Executive Officer of Morgan Drive Away, Inc., a common and contract carrier for the manufactured housing and recreational vehicle industries. From 1988 to 1992, he was Chief Executive Officer and President of Energy Innovations, Inc., a monitoring and communications equipment firm. Prior to that, he served as President of ATE Management and Service Co., Inc., now known as Ryder/ATE, Inc. (municipal transportation services). Mr. Ringo is a Trustee of the Bartlett Capital Trust and the Bartlett Management Trust, and a director of Chemical Leaman, Inc. 43 EXECUTIVE COMPENSATION Shown on the table below is information on the annual and long-term compensation for services rendered to the Company in all capacities during 1995, paid by the Company to those persons who were, at the end of 1995, the Chief Executive Officer and each other executive officer of the Company whose salary and bonus in 1995 exceeded $100,000 (collectively, the "Named Executives"). SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION LONG-TERM COMPENSATION ------------------------- -------------------------- AWARDS PAYOUTS ------------------ ------- OTHER ANNUAL RESTRICTED ALL OTHER COMPEN- STOCK LTIP COMPEN- NAME AND PRINCIPAL POSITION YEAR SALARY BONUS(1) SATION AWARDS OPTIONS PAYOUTS SATION(2) - --------------------------- ---- -------- -------- ------- ---------- ------- ------- --------- Mortimer B. Fuller, III, 1995 $286,456 $70,400 - - - - $8,933 ....................... Chairman of the Board, President and Chief Ex- ecutive Officer Mark W. Hastings ....... 1995 $115,375 $22,700 - - - - $7,086 Senior Vice President, Chief Financial Officer and Treasurer Charles W. Chabot ...... 1995 $138,116 $15,400 - - - - $9,557 Senior Vice President- New York and Pennsylva- nia
- -------- (1) The bonuses shown were awarded and paid in 1996 for services rendered during 1995. (2) The amounts shown include (i) Company contributions to the Company's 401(k) Savings Plan (see "--401(k) Savings Plan") on behalf of the Named Executives as follows: Mr. Fuller-$1,613, Mr. Hastings-$1,459 and Mr. Chabot-$1,613; (ii) the value of insurance premiums paid by the Company, and the economic benefit (projected on an actuarial basis) to the Named Executives, under split dollar life insurance arrangements as follows: Mr. Fuller-$6,845, Mr. Hastings-$5,152 and Mr. Chabot-$7,469; and (iii) $475 in life insurance premiums paid by the Company for the benefit of each Named Executive under a group life insurance program. STOCK OPTIONS No options were granted or exercised during 1995 and no options to purchase Common Stock were outstanding at the end of 1995. 1996 Stock Option Plan The Company's 1996 Stock Option Plan (the "Stock Option Plan") provides for the grant of incentive stock options, within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), and non-statutory options to executives and other employees of the Company to purchase up to an aggregate of 450,000 shares of Class A Common Stock. The Stock Option Plan is administered by a Stock Option Committee comprised of at least two disinterested directors within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended. The Stock Option Committee is authorized to determine the recipients of options, the type of options granted, the number of shares subject to each option, the term of each option, exercise prices and other option features. The term of an option may not exceed ten years, except that if an incentive stock option is granted to an optionee who would thereafter own stock possessing more than 10% of the combined voting power of the Common Stock (a "10% Stockholder"), the term of the option may not exceed five years. The exercise price must at least equal the market value of the Class A Common Stock on the grant date of the option, except that if an incentive stock option is granted to a 10% Stockholder, the exercise price must at least equal 110% of such value. Options are not transferable except by will or intestacy, and lapse within stated periods following the death of the optionee or the termination of the optionee's employment with the Company. The Stock Option Plan contains customary anti- dilution provisions and provides for the acceleration of the vesting of options upon a change in control of the Company. The Stock Option Plan terminates in 2006. Options to purchase an aggregate of 350,500 shares of Class A Common Stock at the initial public offering price are currently outstanding. 44 Stock Option Plan for Outside Directors The Company's Stock Option Plan for Outside Directors (the "Outside Directors' Plan") provides for the grant to non-employee directors of the Company of non-statutory options to purchase up to an aggregate of 50,000 shares of Class A Common Stock. The Outside Directors' Plan provides for three categories of option grants: (i) options to purchase 8,000 shares of Class A Common Stock at the initial public offering price, granted to each of the Company's four current outside directors on the closing date of the Offering; (ii) options to purchase 2,000 shares of Class A Common Stock at its market value on the option grant date, granted to each new outside director of the Company upon his or her election to the Board; and (iii) options to purchase 1,000 shares of Class A Common Stock at its market value on the option grant date, granted to each such new outside director on fixed dates in 1997 and 1998 provided that the Company's net income after taxes for the most recently completed year exceeds by at least 10% its net income after taxes for the immediately preceding year. Options vest over a three-year period in increments of one-third on each anniversary of the grant date, and expire on the tenth anniversary. Options are not transferable except by will or intestacy, and lapse within stated periods following the death of the optionee or cessation of his service as a director. The Outside Directors' Plan contains customary anti-dilution provisions and provides for the acceleration of the vesting of options upon a change in control of the Company. EMPLOYMENT AGREEMENTS The Company is a party to employment agreements with each of its seven executive officers which provide that upon termination of the officer's employment with the Company within three years after a defined change in control of the Company, the officer will receive a cash amount equal to three times the average annual compensation payable to him by the Company during the immediately preceding five years. The agreements provide for reduction of the amounts paid pursuant thereto to the extent that such amounts would otherwise be non-deductible to the Company under Section 280G of the Code. CASH BONUS PLAN The Company awards annual bonuses to ten employees (including its seven executive officers) based on pre-tax earnings targets and individual performance objectives. Earnings targets, individual performance objectives and bonus percentages are established at the beginning of each year by the Compensation Committee of the Board. Maximum bonus percentages currently range from 15% to 50% of annual salary. 401(K) SAVINGS PLAN The Company's 401(k) Savings Plan (the "401(k) Plan") provides retirement, death and disability benefits to certain employees with a cash or deferred arrangement intended to qualify under the Code. It became effective in 1994 and covers employees other than union employees covered by a collective bargaining agreement with a union local (which employees are covered by a separate 401(k) plan of the Company). Each participant may defer and have contributed to his account under the 401(k) Plan up to 15% of compensation each year, including any bonuses. The Company and its subsidiaries make matching contributions annually equal to 25% of each participant's contribution. The maximum matching contribution is 1 1/2% of the participant's annual compensation. Each employer may make an additional discretionary contribution for its employees which is allocated to participants' accounts in proportion to their total compensation for the plan year for which the contribution is made. DIRECTORS' COMPENSATION The Company currently pays its outside directors $2,100 per Board meeting attended, $500 per Board Committee meeting attended not in conjunction with a Board meeting, $250 per Committee meeting attended in conjunction with a Board meeting and $250 per meeting attended by telephone. All of the Company's directors other than Mortimer B. Fuller, III qualify for such payments. In addition, during 1995 the Company provided medical insurance on behalf of Louis S. Fuller and John M. Randolph at a cost of $5,448 and $5,818, respectively. 45 COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION During 1995 the Compensation Committee of the Board of Directors was composed of Louis S. Fuller, John M. Randolph and Philip J. Ringo. Mortimer B. Fuller, III participates in the deliberations of the Compensation Committee for the purpose of providing evaluations and recommendations with respect to the compensation paid to officers other than himself. However, Mr. Fuller neither participates nor is otherwise involved in the deliberations of the Compensation Committee with respect to his own compensation, and those deliberations are conducted by the Compensation Committee in executive session without Mr. Fuller present. EMPLOYEE STOCK PURCHASE PLAN Under the Company's Employee Stock Purchase Plan (the "Stock Purchase Plan"), all full-time employees who have been employed by the Company for at least two years are eligible to purchase from the Company shares of Class A Common Stock by payroll deduction at market price. The Stock Purchase Plan is administered by a committee composed of at least two disinterested directors. An aggregate of 450,000 shares of Class A Common Stock (subject to customary anti-dilution provisions) may be purchased under the Stock Purchase Plan. During any year, a participating employee may purchase under the Stock Purchase Plan shares having an aggregate market value of up to $25,000, provided that after any such purchase, he or she would own no more than 5% of the total combined voting power of the Company. The Stock Purchase Plan will become effective upon the effectiveness of the Company's registration statement on Form S-8 under the Act covering the shares subject to the Stock Purchase Plan. CERTAIN TRANSACTIONS In 1983, the Company issued $598,365 in aggregate principal amount of subordinated debentures maturing in 1998, including (i) a debenture in $260,865 principal amount issued to Louis S. Fuller, a director of the Company, and his wife, and (ii) debentures in $337,500 aggregate principal amount issued to trusts for the benefit of James M. Fuller, a director of the Company, and others. The debentures bore interest at the rate of 10% per annum and contained customary loan covenants. Such transactions were at arm's length, on terms and conditions identical to those offered to non-affiliated third parties. In June 1995, the Company repaid all such debt with borrowings under the Credit Facilities. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." In May 1994, a subsidiary of the Company issued $990,000 in aggregate principal amount of subordinated notes maturing in 2001, including (i) a note in $100,000 principal amount issued to Louis S. Fuller, (ii) a note in $100,000 principal amount issued to Frances A. Fuller, the mother of Mortimer B. Fuller, III, and (iii) notes in $50,000 aggregate principal amount issued to trusts for the benefit of John M. Randolph, a director of the Company, and his wife. The notes bore interest at the rate of 12% per annum and contained customary loan covenants. Such transactions were at arm's length, on terms and conditions identical to those offered to non-affiliated third parties. In June 1995, the Company repaid all of such debt with borrowings under the Credit Facilities. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." The Company, Mortimer B. Fuller, III, the other executive officers of the Company (the "Other Executives") and all of the holders of the Class B Common Stock are parties to a Class B Stockholders' Agreement dated as of May 20, 1996. Under that agreement, if a party proposes to transfer shares of Class B Common Stock in a transaction that will not result in the automatic conversion of those shares into shares of Class A Common Stock (see "Description of Capital Stock"), the Other Executives have the right to purchase up to an aggregate of 50% of those shares, and Mr. Fuller has the right to purchase the balance, all at the then-current market price of the Class A Common Stock. If Mr. Fuller does not purchase the entire balance of the shares, the Other Executives have the right to purchase whatever shares remain. Such purchase rights also apply if the employment of any of the Other Executives is terminated for any reason. The effect of this agreement will be to concentrate ownership of the Class B Common Stock, which enjoys ten times the voting power of the Class A Common Stock, in the hands of management of the Company, particularly Mr. Fuller. See "Principal and Selling Stockholders." 46 PRINCIPAL AND SELLING STOCKHOLDERS The following table sets forth as of May 31, 1996 certain information concerning shares of both classes of the Company's Common Stock held by (i) each stockholder known by the Company to own beneficially more than 5% of either class, (ii) each director of the Company, (iii) each Named Executive (see "Management--Executive Compensation"), (iv) the Selling Stockholder, and (v) all directors and executive officers of the Company as a group. The address for each of the directors and Named Executives is the address of the Company.
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP PRIOR TO OFFERING AFTER OFFERING ---------------------------- CLASS A ---------------------------- CLASS A CLASS B COMMON CLASS A CLASS B COMMON COMMON STOCK COMMON COMMON NAME AND ADDRESS OF BENEFICIAL OWNER(1) STOCK STOCK PERCENT(2) OFFERED STOCK STOCK PERCENT(2) - --------------------------------------- --------- ------- ---------- ------- --------- ------- ---------- Mortimer B. Fuller, 651,347 651,347 55.5% 651,347 651,347 26.9%(4) III(3)................. James M. Fuller(5)...... 283,901 11,100 12.6 283,901 11,100 6.1 Louis S. Fuller(6)...... 160,894 160,894 13.7 160,894 160,894 6.6 John M. Randolph(7)..... 7,400 7,400 0.6 7,400 7,400 0.3 Philip J. Ringo(8)...... 3,700 -- 0.2 3,700 -- 0.1 Mark W. Hastings(9)..... 7,400 7,400 0.6 7,400 7,400 0.3 Charles W. Chabot....... -- -- -- -- -- -- Nancy E. Putney, Trustee 159,470 -- 6.8 159,470 -- 3.3 ....................... Putney Family Trust 4833 Leland Street Chevy Chase, MD 20815 Ryder/ATE, Inc. ........ 148,000 -- 6.3 148,000 -- -- -- 1 Centennial Plaza, Suite 500 705 Central Avenue Cincinnati, OH 45202 All Directors and Execu- tive Officers as a Group (11 persons)..... 1,114,642 838,141 83.2% 1,114,642 838,141 40.3%(4)
- -------- (1) Unless otherwise indicated, each stockholder shown on the table has sole voting and investment power with respect to the shares beneficially owned by him or it. (2) Percentages are based on ownership of both Class A Common Stock and Class B Common Stock. (3) The amounts shown include: (i) 351,592 shares of Class A Common Stock and 351,592 shares of Class B Common Stock owned by Mr. Fuller individually; (ii) 188,607 shares of Class A Common Stock and 188,607 shares of Class B Common Stock held by a family trust for the benefit of Mr. Fuller and others, of which Mr. Fuller is a co-trustee; (iii) 83,583 shares of Class A Common Stock and 83,583 shares of Class B Common Stock held by another family trust for the benefit of Mr. Fuller and others, of which Mr. Fuller is a co-trustee; (iv) 925 shares of Class A Common Stock and 925 shares of Class B Common Stock owned by Mr. Fuller's wife, as to which shares Mr. Fuller disclaims beneficial ownership; (v) 10,915 shares of Class A Common Stock and 10,915 shares of Class B Common Stock owned by Mr. Fuller's mother which, together with the shares held by the above-mentioned family trusts, are subject to a Voting Agreement pursuant to which Mr. Fuller has been granted irrevocable proxies to vote all such shares through March 20, 2008; and (vi) 15,725 shares of Class A Common Stock and 15,725 shares of Class B Common Stock held by a family trust for the benefit of Mr. Fuller and others, of which Mr. Fuller is the Trustee. (4) Because the Class A Common Stock is entitled to one vote per share and the Class B Common Stock is entitled to ten votes per share, immediately after the Offering the stock ownership of Mortimer B. Fuller, III will represent 57.5% of the voting power of the Company and the stock ownership of all directors and executive officers as a group will represent 76.2% of the voting power of the Company. (5) The amounts shown include 11,100 shares of Class A Common Stock and 11,100 shares of Class B Common Stock held by Mr. Fuller individually, and an aggregate of 272,801 shares of Class A Common Stock held by family trusts for the benefit of Mr. Fuller and others, of which Mr. Fuller is a co- trustee. (6) The amounts shown include 133,144 shares of Class A Common Stock and 133,144 shares of Class B Common Stock held by Mr. Fuller individually, and an aggregate of 27,750 shares of Class A Common Stock and 27,750 shares of Class B Common Stock owned by Mr. Fuller's children (as to which shares he disclaims beneficial ownership). (7) Such shares are held by a trust for the benefit of Mr. Randolph, of which he is a co-trustee. (8) Such shares are owned by Mr. Ringo's wife, and he disclaims beneficial ownership thereof. (9) Such shares are owned by Mr. Hastings jointly with his wife. 47 DESCRIPTION OF CAPITAL STOCK The following summary description of the capital stock of the Company is qualified in its entirety by reference to the Restated Certificate of Incorporation and By-laws of the Company. IN GENERAL The Company's authorized capital stock consists of 12,000,000 shares of Class A Common Stock, par value $.01 per share, and 1,500,000 shares of Class B Common Stock, par value $.01 per share. At the date of this Prospectus, 1,501,937 shares of Class A Common Stock and 846,556 shares of Class B Common Stock were issued and outstanding, and there were 31 holders of record of Class A Common Stock and 18 holders of record of Class B Common Stock. CLASS A COMMON STOCK AND CLASS B COMMON STOCK Voting. Holders of Class A Common Stock are entitled to one vote per share. Holders of Class B Common Stock are entitled to ten votes per share. All actions submitted to a vote of stockholders are voted on by the holders of Class A Common Stock and Class B Common Stock voting together as a single class, except as otherwise required by law. Under current Delaware law, the holders of the outstanding shares of a class are entitled to vote as a class upon a proposed charter amendment that would change the aggregate number of authorized shares of such class, change the par value of the shares of such class or change the powers, preferences or special rights of the shares of such class so as to affect them adversely. Holders of the Company's Common Stock are not entitled to cumulate voting in the election of directors. Conversion. Class A Common Stock has no conversion rights. Each share of Class B Common Stock is convertible into one share of Class A Common Stock (i) at any time at the option of the holder of the Class B Common Stock and (ii) automatically upon any transfer by the holder thereof other than (a) a transfer to a spouse, child or grandchild of the transferor by gift or upon the transferor's death, or (b) a transfer to an individual or entity that is, at the time of transfer, a holder of record of Class B Common Stock or an executive officer of the Company. Dividends. Dividends are payable on the outstanding shares of (i) only Class A Common Stock or (ii) both Class A Common Stock and Class B Common Stock, in each case, when, as and if declared by the Board of Directors. If the Board determines to pay a dividend on the Class B Common Stock, each share of Class A Common Stock will receive a dividend in an amount 10% greater than the amount of the dividend per share paid on the Class B Common Stock. Subject to the foregoing, dividends in the form of stock can only be paid in shares of Class A Common Stock. Although the Company has paid dividends in the past, it currently intends to retain all earnings to support its operations and future growth and, therefore, does not anticipate the payment of cash dividends on the Common Stock in the foreseeable future. See "Dividend Policy." Liquidation. In the event of liquidation, holders of Class A Common Stock and Class B Common Stock will share with each other on a ratable basis as a single class in the net assets of the Company available for distribution after payment or provision for the liabilities of the Company. 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. Neither the holders of Class A Common Stock nor the holders of Class B Common Stock are entitled to preemptive rights, and neither the Class A Common Stock nor the Class B Common Stock is subject to redemption. Listing. The Class A Common Stock has been approved for quotation, subject to official notice of issuance, on the Nasdaq National Market under the symbol "GNWR." 48 BANK WARRANT As part of the consideration for the availability of the Credit Facilities (see "Recent Developments"), in February 1996 the Company paid a fee of $1.5 million and issued to the Bank of Boston, for no additional consideration, a warrant to purchase 41,847 shares of Class A Common Stock at a price of approximately $.0005 per share (the "Bank Warrant"), subject to customary anti-dilution adjustments. The Bank Warrant is immediately exercisable, is transferable to members of the banking syndicate and their affiliates, and expires in 2006. Holders of the Bank Warrant are entitled under certain circumstances to demand and "piggy-back" registration rights, at the Company's expense (subject to certain limitations), with respect to the shares issuable upon exercise thereof. LIMITATIONS ON TAKEOVERS Super-Majority Voting Provision. The Company's Restated Certificate of Incorporation requires the affirmative vote of the holders of at least two- thirds of the combined voting power of the Class A Common Stock and Class B Common Stock, voting together as one class, for approval of the following actions: (i) any merger or consolidation unless the Company is the surviving corporation in such transaction and no change of control (defined as any person or group becoming the beneficial owner of shares of Class A Common Stock and Class B Common Stock representing 50% or more of the votes represented by all outstanding shares of Class A Common Stock and Class B Common Stock) has occurred, (ii) any sale, lease or other disposition of all or substantially all of the assets of the Company and (iii) any amendment of the super-majority voting provision. These voting requirements could have the effect of delaying, deferring or preventing such transactions. Classified Board of Directors. The Company's Board of Directors is divided into three classes, with the members of each class serving for staggered three-year terms. The classification of the directors will have the effect of making it more difficult for stockholders to force an immediate change in the composition of the Board of Directors. The Board of Directors believes that the longer time required to elect a majority of a classified Board of Directors helps to ensure the continuity and stability of the Company's management and policies since a majority of the directors at any given time will have had prior experience as directors of the Company. Consideration of Non-Price Issues. The Company's Restated Certificate of Incorporation permits the Board of Directors, in considering the best interests of the Company, to consider the effects of any action upon employees, general agents, customers, creditors, communities, the state and national economies and the long-term as well as short-term interests of the Company and its stockholders, including the possibility that these interests may be best served by the continued independence of the Company, and all other pertinent factors. Delaware General Corporation Law Section 203. Section 203 of the Delaware General Corporation Law provides that, subject to certain exceptions specified therein, a corporation may not engage in any business combination (which includes a merger or a sale of more than 10% of the corporation's assets) with an "interested stockholder" for a three-year period following the time that such stockholder becomes an interested stockholder unless (i) prior to such time, the Board of Directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder, (ii) upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (excluding certain shares), or (iii) at or subsequent to such time, the business combination is approved by the Board of Directors of the corporation and by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder. Except as specified in Section 203, an interested stockholder is defined to include (a) any person that is the owner of 15% or more of the outstanding voting stock of the corporation, or is an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation at any time within three years immediately prior to the date of determination and (b) the affiliates and associates of any such person. Under certain circumstances, Section 203 makes it more difficult for an interested stockholder to effect various business combinations with a corporation for a three-year period. 49 TRANSFER AGENT AND REGISTRAR The transfer agent and registrar for the Class A Common Stock is The First National Bank of Boston. SHARES ELIGIBLE FOR FUTURE SALE Upon completion of the Offering, 1,353,937 shares of Class A Common Stock held by certain stockholders of the Company will be eligible for sale subject to the volume and other limitations of Rule 144 under the Act. In addition, all of the 846,556 shares of Class B Common Stock outstanding immediately prior to the Offering are freely convertible into shares of Class A Common Stock and, if so converted, will be eligible for sale subject to the volume and other limitations of Rule 144 under the Act. In general, under Rule 144 as currently in effect, a holder (or holders whose shares are aggregated) of "restricted securities," including persons who may be deemed affiliated with the Company, whose shares meet a two-year holding period requirement are entitled to sell, within any three-month period, a number of those shares that does not exceed the greater of 1% of the then outstanding shares of Class A Common Stock (36,742 shares of Class A Common Stock immediately after the Offering) or the average weekly reported trading volume in the Class A Common Stock during the four calendar weeks preceding the date on which notice of the sale is given, provided certain manner of sale and notice requirements and requirements as to the availability of current public information about the Company are satisfied. Under Rule 144(k), a holder of "restricted securities" who is deemed not to have been an affiliate of the Company during the three months preceding a sale by him, and whose shares meet a three-year holding period requirement, is entitled to sell those shares without regard to these restrictions and requirements. However, affiliates of the Company must comply with the restrictions and requirements of Rule 144, other than the two-year holding period requirement, in order to sell shares of Class A Common Stock which are not "restricted securities" (such as shares acquired by affiliates in the Offering). The Company, its officers and directors and certain other stockholders have agreed not to sell or otherwise dispose of any shares of Common Stock, subject to certain exceptions, for a period of 180 days after the date of this Prospectus without the prior written consent of Schroder Wertheim & Co. Incorporated. Following the Offering, an aggregate of 2,112,253 shares will be subject to these restrictions. An aggregate of 450,000 shares of Class A Common Stock is available for issuance under the Company's 1996 Stock Option Plan (including 350,500 shares subject to outstanding options, none of which are currently exercisable), and an aggregate of 450,000 shares of Class A Common Stock is available for issuance under the Company's Employee Stock Purchase Plan. The Company expects to file a registration statement on Form S-8 under the Act immediately after the closing of the Offering to register all of the shares issuable under both such Plans. In addition, an aggregate of 50,000 shares of Class A Common Stock is available for issuance under the Company's Stock Option Plan for Outside Directors, which shares, if issued, will be eligible for sale subject to the volume and other limitations of Rule 144 under the Act. See "Management--Stock Options" and "Management--Employee Stock Purchase Plan." The holders of the Bank Warrant are entitled under certain circumstances to demand and "piggy- back" registration rights with respect to the shares issuable upon exercise thereof. See "Description of Capital Stock--Bank Warrant." Prior to the Offering, there has been no public market for the Class A Common Stock and no determination can be made as to the effect, if any, that sales of shares of Class A Common Stock or the availability of shares for sale will have on the market price of the Class A Common Stock prevailing from time to time. Nevertheless, sales of substantial amounts of the Class A Common Stock in the public market (including shares issued upon exercise of options or warrants, the conversion of Class B Common Stock, or under the Company's Employee Stock Purchase Plan) could adversely affect the market price of the Class A Common Stock and could impair the Company's future ability to raise capital through an offering of its equity securities. 50 UNDERWRITING Under the terms and subject to the conditions contained in an Underwriting Agreement dated the date hereof (the "Underwriting Agreement"), the Underwriters named below (the "Underwriters") have severally agreed to purchase and the Company and the Selling Stockholder have agreed to sell to them, severally, the aggregate number of shares of Class A Common Stock set forth opposite their respective names.
NUMBER OF UNDERWRITER SHARES ----------- --------- Schroder Wertheim & Co. Incorporated............................ Furman Selz LLC................................................. --------- Total..................................................... 2,648,000 =========
The Underwriting Agreement provides that the several Underwriters are obligated, subject to the approval of certain legal matters by their counsel and certain other conditions, to purchase all the shares of Class A Common Stock offered hereby (other than those covered by the Underwriters' over- allotment option described below), if any are purchased. Schroder Wertheim & Co. Incorporated and Furman Selz LLC, as representatives of the several Underwriters (the "Representatives"), have advised the Company that the Underwriters propose to offer the shares to the public at the public offering price set forth on the cover page of this Prospectus; that the Underwriters propose initially to allow a concession not in excess of $ per share to certain dealers, including the Underwriters; that the Underwriters and such dealers may initially allow a discount of not in excess of $ per share to other dealers; and that the initial public offering price and the concession and discount to dealers may be changed by the Representatives after the initial public offering. The Company has granted to the Underwriters an option, expiring at the close of business on the 30th day after the date of the Underwriting Agreement, to purchase up to an additional 397,200 shares of Class A Common Stock, at the initial public offering price set forth on the cover page of this Prospectus, less underwriting discounts and commissions. The Underwriters may exercise the option only to cover over-allotments, if any, in the sale of shares of Class A Common Stock in the Offering. To the extent that the Underwriters exercise this option, each Underwriter will be committed, subject to certain conditions, to purchase a number of additional shares proportionate to such Underwriter's initial commitment. The Company has agreed to indemnify the several Underwriters against certain liabilities, including liabilities under the Act. The Company, certain management stockholders, directors and certain other stockholders have agreed not to offer to sell, sell, grant any option to purchase or otherwise dispose of any shares of Common Stock, subject to certain exceptions, for a period of 180 days after the date of this Prospectus without the prior written consent of Schroder Wertheim & Co. Incorporated. Prior to the Offering, there has been no public market for the Class A Common Stock. Consequently, the initial public offering price of the Class A Common Stock will be determined by negotiations between the Company and the Representatives. Among the factors to be considered in such negotiations are the Company's 51 results of operations and financial condition, the prospects for the Company and for the industry in which the Company operates, the Company's capital structure and prevailing conditions in the securities market. The Representatives have informed the Company that the Underwriters do not intend to confirm sales to accounts over which they exercise discretionary authority in excess of 5% of the total number of shares offered hereby. NOTICE TO ONTARIO RESIDENTS The distribution of the shares of Class A Common Stock in the Province of Ontario, Canada is being made only on a private placement basis and is exempt from the requirement that the Company prepare and file a prospectus with the relevant Canadian securities regulatory authorities. Accordingly, any resale of the shares of Class A Common Stock must be made in accordance with applicable securities laws, which may require resales to be made in accordance with exemptions from registration and prospectus requirements. Purchasers are advised to seek legal advice prior to any resale of the shares of Class A Common Stock. Each Ontario purchaser who receives a purchase confirmation regarding the purchase of shares of Class A Common Stock will be deemed to represent to the Company and to the dealer from whom such confirmation is received that such purchaser is entitled under applicable Ontario securities laws to purchase such shares of Class A Common Stock without the benefit of a prospectus qualified under such securities laws. Ontario purchasers of shares of Class A Common Stock should consult their own legal and tax advisors with respect to the tax consequences of an investment in the shares of Class A Common Stock in their particular circumstances and with respect to the eligibility of the shares of Class A Common Stock for investment by purchaser under relevant Canadian legislation. The securities being offered are those of a foreign issuer and Ontario purchasers will not receive the contractual right of action prescribed by Section 32 of the Regulation under the Securities Act (Ontario). As a result, Ontario purchasers must rely on other remedies that may be available, including common law rights of action for damages or rescission or rights of action under the civil liability provisions of the U.S. federal securities laws. All of the Company's directors and officers as well as the experts named herein may be located outside of Canada and, as a result, it may not be possible for Ontario purchasers to effect service of process within Canada upon the Company or such persons. All or a substantial portion of the assets of the Company and such persons may be located outside of Canada and, as a result, it may not be possible to satisfy a judgment against the Company or such persons in Canada or to enforce a judgment obtained in Canadian courts against the Company or persons outside of Canada. LEGAL MATTERS The validity of the Class A Common Stock offered by this Prospectus is being passed on for the Company by Harter, Secrest & Emery, Rochester, New York. Certain legal matters will be passed upon for the Underwriters by Shearman & Sterling, New York, New York. EXPERTS The financial statements and schedules included in this Prospectus and elsewhere in the Registration Statement have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and are included herein in reliance upon the authority of said firm as experts in giving said reports. 52 ADDITIONAL INFORMATION The Company intends to furnish to its stockholders annual reports containing consolidated financial statements audited by its independent auditors and quarterly reports containing unaudited interim financial information for the first three quarters of each year. The Company has filed with the Securities and Exchange Commission a Registration Statement on Form S-l under the Act for registration of the shares of Class A Common Stock offered hereby. This Prospectus does not contain all the information set forth in the Registration Statement and the exhibits and schedules thereto, to which reference is hereby made. Statements made in this Prospectus as to the contents of any contract, agreement or other document referred to do not purport to be complete; with respect to each such contract, agreement or other document filed as an exhibit to the Registration Statement, reference is made to the exhibit for a more complete description of the matter involved and each statement shall be deemed qualified in its entirety by this reference. The Registration Statement and the exhibits and schedules thereto may be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the public reference facilities of the Commission's Regional Offices: New York Regional Office, Seven World Trade Center, Suite 1300, New York, New York 10048; and Chicago Regional Office, Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of such material may also be obtained from the Public Reference Section of the Securities and Exchange Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. 53 INDEX TO FINANCIAL STATEMENTS
PAGE ---- Genesee & Wyoming Inc. and Subsidiaries: Report of Independent Public Accountants................................ F-2 Consolidated Balance Sheets as of December 31, 1994 and 1995 and March 31, 1996 (Unaudited)................................................... F-3 Consolidated Statements of Income for the Years Ended December 31, 1993, 1994 and 1995, and the Three Months Ended March 31, 1995 (Unaudited), and March 31, 1996 (Unaudited)......................................... F-4 Consolidated Statements of Stockholders' Equity for the Years Ended December 31, 1993, 1994 and 1995, and the Three Months Ended March 31, 1996 (Unaudited)....................................................... F-5 Consolidated Statements of Cash Flows for the Years Ended December 31, 1993, 1994 and 1995, and the Three Months Ended March 31, 1995 (Unaudited), and March 31, 1996 (Unaudited)............................ F-6 Notes to Consolidated Financial Statements.............................. F-7 Chicago & Illinois Midland Railway Company: Report of Independent Public Accountants................................ F-20 Balance Sheets as of December 31, 1994 and 1995, and February 8, 1996 (Unaudited)............................................................ F-21 Statements of Operations for the Years Ended December 31, 1993, 1994 and 1995, and the One Month and Eight Day Period Ended February 8, 1996 (Unaudited)............................................................ F-22 Statements of Shareholder's Equity for the Years Ended December 31, 1993, 1994 and 1995, and the One Month and Eight Day Period Ended February 8, 1996 (Unaudited)........................................... F-23 Statements of Cash Flows for the Years Ended December 31, 1993, 1994 and 1995, and the One Month and Eight Day Period Ended February 8, 1996 (Unaudited)............................................................ F-24 Notes to Financial Statements........................................... F-25 Pittsburg & Shawmut Railroad Company, Mountain Laurel Railroad Company and Red Bank Railroad Company: Report of Independent Public Accountants................................ F-30 Combined Balance Sheets as of December 31, 1994 and 1995, and March 31, 1996 (Unaudited)....................................................... F-31 Combined Statements of Operations for the Years Ended December 31, 1993, 1994 and 1995, and the Three Months Ended March 31, 1995 (Unaudited), and March 31, 1996 (Unaudited)......................................... F-32 Combined Statements of Shareholder's Equity for the Years Ended December 31, 1993, 1994 and 1995, and the Three Months Ended March 31, 1996 (Unaudited)............................................................ F-33 Combined Statements of Cash Flows for the Years Ended December 31, 1993, 1994 and 1995, and the Three Months Ended March 31, 1995 (Unaudited), and March 31, 1996 (Unaudited)......................................... F-34 Notes to Combined Financial Statements.................................. F-35
F-1 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Board of Directors and the Stockholders of Genesee & Wyoming Inc.: We have audited the accompanying consolidated balance sheets of GENESEE & WYOMING INC. (a Delaware corporation) AND SUBSIDIARIES as of December 31, 1994 and 1995, and the related consolidated statements of income, changes in stockholders' equity and cash flows for each of the three years in the period ended December 31, 1995. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Genesee & Wyoming Inc. and Subsidiaries as of December 31, 1994 and 1995, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 1995, in conformity with generally accepted accounting principles. As discussed in Note 8 to the consolidated financial statements, effective January 1, 1993, the Company changed its method of accounting for postretirement benefits other than pensions. Arthur Andersen LLP Chicago, Illinois February 16, 1996 (except with respect to matters discussed in Note 14 as to which the dates are April 22, 1996, April 29, 1996, June 10, 1996 and June 12, 1996) F-2 GENESEE & WYOMING INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (IN THOUSANDS)
DECEMBER 31, --------------- MARCH 31, 1994 1995 1996 ------- ------- ----------- (UNAUDITED) ASSETS CURRENT ASSETS: Cash and cash equivalents........................ $ 5,884 $ 2,115 $ 6,588 Accounts receivable, net......................... 10,698 9,441 14,764 Materials and supplies........................... 1,550 1,512 2,295 Prepaid expenses and other....................... 1,005 1,455 1,747 Deferred income tax assets, net.................. 1,075 1,278 1,364 ------- ------- -------- Total current assets........................... 20,212 15,801 26,758 ------- ------- -------- PROPERTY AND EQUIPMENT, net........................ 49,263 61,574 70,609 ------- ------- -------- SERVICE ASSURANCE AGREEMENT, net................... -- -- 14,851 ------- ------- -------- OTHER ASSETS, net.................................. 413 1,054 3,641 ------- ------- -------- Total assets................................. $69,888 $78,429 $115,859 ======= ======= ======== LIABILITIES AND STOCKHOLDERS' EQUITY CURRENT LIABILITIES: Current portion of long-term debt................ $ 4,230 $ 1,239 $ 2,894 Accounts payable................................. 13,501 8,408 17,103 Accrued expenses................................. 3,062 3,404 4,431 ------- ------- -------- Total current liabilities...................... 20,793 13,051 24,428 ------- ------- -------- LONG-TERM DEBT..................................... 28,410 38,702 63,313 ------- ------- -------- OTHER LIABILITIES.................................. 1,629 2,043 2,055 ------- ------- -------- DEFERRED INCOME TAX LIABILITIES, net............... 3,125 4,139 4,489 ------- ------- -------- DEFERRED ITEMS--grants from governmental agencies.. 6,849 9,946 9,622 ------- ------- -------- COMMITMENTS AND CONTINGENCIES (NOTE 11) STOCKHOLDERS' EQUITY: Class A common stock, $0.01 par value; 12,000,000 shares authorized; 1,501,937 shares issued and outstanding..................................... 15 15 15 Class B common stock, $0.01 par value; 1,500,000 shares authorized; 846,556 shares issued and outstanding..................................... 8 8 8 Additional paid-in capital....................... 1,340 1,340 1,340 Warrants outstanding............................. -- -- 471 Retained earnings................................ 7,719 9,185 10,118 ------- ------- -------- Total stockholders' equity..................... 9,082 10,548 11,952 ------- ------- -------- Total liabilities and stockholders' equity... $69,888 $78,429 $115,859 ======= ======= ========
The accompanying notes are an integral part of these consolidated financial statements. F-3 GENESEE & WYOMING INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF INCOME (IN THOUSANDS, EXCEPT FOR PER SHARE AMOUNTS)
THREE MONTHS YEARS ENDED DECEMBER 31, ENDED MARCH 31, ---------------------------- ---------------- 1993 1994 1995 1995 1996 -------- -------- -------- ------- ------- (UNAUDITED) OPERATING REVENUES............ $ 49,645 $ 55,419 $ 53,387 $13,391 $16,608 OPERATING EXPENSES: Transportation............... 11,444 13,357 14,262 3,663 4,480 Maintenance of ways and structures.................. 7,293 6,632 6,127 1,644 2,186 Maintenance of equipment..... 12,365 14,533 12,230 3,198 2,994 General and administrative... 9,284 9,282 10,309 2,434 2,809 Depreciation and amortization................ 3,115 3,577 3,887 926 1,325 -------- -------- -------- ------- ------- Total operating expenses.... 43,501 47,381 46,815 11,865 13,794 -------- -------- -------- ------- ------- Income from operations...... 6,144 8,038 6,572 1,526 2,814 INTEREST EXPENSE.............. (2,864) (3,212) (3,405) (766) (1,274) OTHER INCOME.................. 165 192 456 105 81 -------- -------- -------- ------- ------- Income before provision for income taxes, extraordinary item and cumulative effect of accounting change....... 3,445 5,018 3,623 865 1,621 PROVISION FOR INCOME TAXES.... (1,428) (2,007) (1,472) (363) (656) -------- -------- -------- ------- ------- Income before extraordinary item and cumulative effect of accounting change....... 2,017 3,011 2,151 502 965 EXTRAORDINARY ITEM FROM EARLY EXTINGUISHMENT OF DEBT, net of related income tax benefit of $357,000.................. -- -- (494) -- -- CUMULATIVE EFFECT OF ACCOUNTING CHANGE FOR POSTRETIREMENT BENEFITS, net of related income tax benefit of $263,000.................. (393) -- -- -- -- -------- -------- -------- ------- ------- NET INCOME.................... $ 1,624 $ 3,011 $ 1,657 $ 502 $ 965 ======== ======== ======== ======= ======= EARNINGS PER COMMON SHARE: Income before extraordinary item and cumulative effect of accounting change....... $ 0.88 $ 1.31 $ 0.92 $ 0.21 $ 0.41 Extraordinary item.......... -- -- (0.21) -- -- Cumulative effect of accounting change.......... (0.18) -- -- -- -- -------- -------- -------- ------- ------- Net Income.................. $ 0.70 $ 1.31 $ 0.71 $ 0.21 $ 0.41 ======== ======== ======== ======= ======= WEIGHTED AVERAGE NUMBER OF COMMON SHARES OUTSTANDING.... 2,304 2,304 2,348 2,348 2,348
The accompanying notes are an integral part of these consolidated financial statements. F-4 GENESEE & WYOMING INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (IN THOUSANDS)
CLASS A CLASS B COMMON STOCK COMMON STOCK ----------------- ----------------- SHARES $0.01 SHARES $0.01 ADDITIONAL STOCKHOLDERS' ISSUED AND PAR ISSUED AND PAR PAID-IN WARRANTS RETAINED EQUITY OUTSTANDING VALUE OUTSTANDING VALUE CAPITAL OUTSTANDING EARNINGS TOTAL ----------- ----- ----------- ----- ---------- ----------- -------- ------------- BALANCE, December 31, 1992................... 1,480 $ 15 824 $ 8 $1,280 $ -- $ 3,272 $ 4,575 Net income............ -- -- -- -- -- -- 1,624 1,624 Cash dividends--$0.05 per share............ -- -- -- -- -- -- (125) (125) ----- ---- --- ---- ------ ----- ------- ------- BALANCE, December 31, 1993................... 1,480 15 824 8 1,280 -- 4,771 6,074 Stock options exercised ........... 22 -- 22 -- 60 -- -- 60 Net income............ -- -- -- -- -- -- 3,011 3,011 Cash dividends--$0.03 per share............ -- -- -- -- -- -- (63) (63) ----- ---- --- ---- ------ ----- ------- ------- BALANCE, December 31, 1994................... 1,502 15 847 8 1,340 -- 7,719 9,082 Net income............ -- -- -- -- -- -- 1,657 1,657 Cash dividends--$0.08 per share............ -- -- -- -- -- -- (191) (191) ----- ---- --- ---- ------ ----- ------- ------- BALANCE, December 31, 1995................... 1,502 15 847 8 1,340 -- 9,185 10,548 Proceeds from issuance of stock warrants (Unaudited).......... -- -- -- -- -- 471 -- 471 Net income (Unaudited).......... -- -- -- -- -- -- 965 965 Cash dividends--$0.01 per share (Unaudited).......... -- -- -- -- -- -- (32) (32) ----- ---- --- ---- ------ ----- ------- ------- BALANCE, March 31, 1996 (Unaudited)............ 1,502 $ 15 847 $ 8 $1,340 $ 471 $10,118 $11,952 ===== ==== === ==== ====== ===== ======= =======
The accompanying notes are an integral part of these consolidated financial statements. F-5 GENESEE & WYOMING INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (IN THOUSANDS)
THREE MONTHS YEARS ENDED DECEMBER 31, ENDED MARCH 31, -------------------------- ----------------- 1993 1994 1995 1995 1996 -------- -------- -------- -------- -------- (UNAUDITED) CASH FLOWS FROM OPERATING ACTIVITIES: Net income.................... $ 1,624 $ 3,011 $ 1,657 $ 502 $ 965 Adjustments to reconcile net income to net cash provided by operating activities-- Cumulative effect of accounting change........... 393 -- -- -- -- Depreciation and amortization................ 3,115 3,577 3,887 926 1,325 Deferred income taxes........ 952 738 811 279 264 Gain on disposition of property and equipment...... (55) (169) (195) (8) (627) Write-off of other assets.... 180 675 -- -- -- Changes in assets and liabilities-- Receivables................. 633 (3,226) 1,257 1,511 (5,042) Materials and supplies...... (99) (214) 38 (5) (33) Prepaid expenses and other.. (29) (236) (450) (439) (292) Accounts payable and accrued expenses................... 497 2,855 (4,751) (2,158) 9,227 Other assets and liabilities, net........... 38 279 310 19 235 ------- ------- -------- ------- -------- Net cash provided by operating activities..... 7,249 7,290 2,564 627 6,022 ------- ------- -------- ------- -------- CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of assets of Chicago & Illinois Midland Railway Company...................... -- -- -- -- (26,335) Purchase of property and equipment.................... (7,600) (6,153) (16,632) (1,135) (970) Proceeds from disposition of property..................... 166 824 318 8 1,555 ------- ------- -------- ------- -------- Net cash used in investing activities............... (7,434) (5,329) (16,314) (1,127) (25,750) ------- ------- -------- ------- -------- CASH FLOWS FROM FINANCING ACTIVITIES: Principal payments on long- term borrowings, including capital leases............... (4,951) (4,962) (16,999) (1,225) (326) Proceeds from issuance of long-term debt............... 7,557 2,476 24,300 -- 25,925 Debt issuance costs........... -- -- (641) -- (1,642) Net proceeds (payments) on grants....................... 243 1,755 3,512 405 (195) Dividends paid................ (125) (63) (191) (95) (32) Proceeds from issuance of stock warrants............... -- -- -- -- 471 Proceeds from exercise of stock options................ -- 60 -- -- -- ------- ------- -------- ------- -------- Net cash provided by (used in) financing activities. 2,724 (734) 9,981 (915) 24,201 ------- ------- -------- ------- -------- INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS............... 2,539 1,227 (3,769) (1,415) 4,473 CASH AND CASH EQUIVALENTS, beginning of period............ 2,118 4,657 5,884 5,884 2,115 ------- ------- -------- ------- -------- CASH AND CASH EQUIVALENTS, end of period...................... $ 4,657 $ 5,884 $ 2,115 $ 4,469 $ 6,588 ======= ======= ======== ======= ======== CASH PAID DURING THE PERIOD FOR: Interest...................... $ 2,850 $ 3,075 $ 3,204 $ 538 $ 1,240 Income taxes.................. 184 1,023 1,022 445 65 ======= ======= ======== ======= ======== SUPPLEMENTAL NON-CASH INVESTING ACTIVITY: Assumption of liabilities in connection with purchase of assets of Chicago & Illinois Midland Railway Company.................... $ -- $ -- $ -- $ -- $ 1,162 ======= ======= ======== ======= ========
The accompanying notes are an integral part of these consolidated financial statements. F-6 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Data with respect to the three months ended March 31, 1995 and 1996, are unaudited.) 1. THE COMPANY'S BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES: Genesee & Wyoming Inc. and Subsidiaries (the "Company") operates 11 short- line and regional railroads in New York, Pennsylvania, Louisiana, Oregon, Texas and, beginning in 1996, Illinois (see Note 14), through its various subsidiaries. The Company, through its leasing subsidiary, also buys, sells, leases and manages railroad transportation equipment primarily for customers served by the Company's subsidiaries. In the opinion of management, the unaudited financial statements for the three-month periods ended March 31, 1995 and 1996, are presented on a basis consistent with the audited financial statements and contain all adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation. The results of operations for interim periods are not necessarily indicative of results of operations for the full year. On May 18, 1995, the Company changed its name from Genesee & Wyoming Industries, Inc. to Genesee & Wyoming Inc. Principles of Consolidation The consolidated financial statements include the accounts of the Company and its subsidiaries. All significant intercompany transactions and accounts have been eliminated in consolidation. Revenue Recognition Revenues are estimated and recognized as shipments initially move onto the Company's tracks, which, due to the relatively short length of haul, is not materially different from the recognition of revenues as shipments progress. Cash Equivalents The Company considers all highly liquid instruments with a maturity of three months or less when purchased to be cash equivalents for purposes of classification in the consolidated balance sheets and consolidated statements of cash flows. Cash equivalents are stated at cost, which approximates fair market value. Materials and Supplies Materials and supplies consist of items for improvement and maintenance of road property and equipment, and are stated at the lower of average cost or market. Property and Equipment Property and equipment are carried at historical cost. Acquired railroad property is recorded at the purchased cost. Major renewals or betterments are capitalized while routine maintenance and repairs, which do not improve or extend asset lives, are charged to expense when incurred. Gains or losses on sales or other dispositions are credited or charged to other income. Gains of approximately $790,000 and $593,000 realized by the leasing subsidiary on the sale or disposition of transportation equipment during fiscal year 1994 and the first quarter of 1996, respectively are classified in operating revenues. Depreciation is provided on the straight-line method over the useful lives of the property and are as follows: Road properties................................................ 20-50 years Equipment...................................................... 3-20 years
F-7 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Service Assurance Agreement The service assurance agreement represents a commitment from a significant customer of the Company, through its subsidiary Illinois & Midland Railroad, Inc. (see Notes 2 and 14), which grants the Company the exclusive right to service three of the customer's facilities indefinitely. The service assurance agreement is amortized on a straight-line basis over the same period as the related track structure, which is 20 years. The Company continually evaluates whether later events and circumstances have occurred that indicate the remaining estimated useful life of the asset may not be recoverable. When factors indicate that the asset should be evaluated for possible impairment, the Company uses an estimate of the related undiscounted future cash flows over the remaining life of the asset in measuring whether the asset is recoverable. Net Income per Share Net income per share is determined by dividing net income by the weighted average number of common shares outstanding during the periods, as adjusted for the stock split discussed in Note 14. The dilutive effect of unexercised stock options and stock warrants have not been included in the calculation as the effect would not be material. Significant Customer Relationship A large portion of the Company's operating revenues is attributable to customers operating in the salt, forest products and petroleum industries. The largest ten customers accounted for approximately 51%, 53% and 50% of the Company's revenues in 1993, 1994 and 1995, respectively. One customer in the salt industry accounted for approximately 20%, 12% and 9% of the Company's revenue in 1993, 1994 and 1995, respectively (see Note 14 for a discussion of recent developments of this significant customer). The Company regularly grants trade credit to all of its customers. In addition, the Company grants trade credit to other railroads through the routine interchange of traffic. Although the Company's accounts receivable include a diverse number of customers and railroads, the collection of these receivables is substantially dependent upon the economies of the regions in which the Company operates, the salt, forest products and petroleum industries, and the railroad sector of the economy in general. Disclosures About Fair Value of Financial Instruments The following methods and assumptions were used to estimate the fair value of each class of financial instrument held by the Company: Current assets and current liabilities: The carrying value approximates fair value due to the short maturity of these items. Long-term debt: The fair value of the Company's long-term debt is based on secondary market indicators. Since the Company's debt is not quoted, estimates are based on each obligation's characteristics, including remaining maturities, interest rate, credit rating, collateral, amortization schedule and liquidity. The carrying amount approximates fair value. Management Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. F-8 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) 2. EXPANSION OF RAILROAD OPERATIONS: Portland & Western Railroad, Inc.--In 1995 the Company formed a new subsidiary, the Portland & Western Railroad, Inc. ("P&W"). This subsidiary operates 107 miles of track in Oregon under two lease agreements. See Note 5 for further discussion. Finger Lakes Railway Corporation--In July of 1995, the Company invested $175,000 to acquire 44% of the outstanding common stock of this entity. The Company also provided a $150,000 irrevocable letter of credit in order to provide assurance that the entity will comply with a certain agreement. This investment will be recorded on the equity method. The results of operations and financial position of this entity are not material. Illinois & Midland Railroad, Inc.--Subsequent to year-end, the Company formed the Illinois & Midland Railroad, Inc. to purchase certain assets of the Chicago & Illinois Midland Railway Company for approximately $27.5 million. See Note 14 for further discussion of this acquisition. Pittsburg & Shawmut Railroad, Inc.--Subsequent to year-end, the Company formed the Pittsburg & Shawmut Railroad, Inc. to purchase certain assets of the Pittsburg & Shawmut Railroad Company, Mountain Laurel Railroad Company and Red Bank Railroad Company for approximately $15.2 million. See Note 14 for further discussion of this acquisition. 3. PROPERTY AND EQUIPMENT: Major classifications of property and equipment are as follows (amounts in thousands):
DECEMBER 31, --------------- MARCH 31, 1994 1995 1996 ------- ------- ----------- (UNAUDITED) Road properties..................................... $41,420 $48,691 $57,203 Equipment and other................................. 21,596 30,540 32,323 ------- ------- ------- 63,016 79,231 89,526 Less--Accumulated depreciation and amortization..... 13,753 17,657 18,917 ------- ------- ------- $49,263 $61,574 $70,609 ======= ======= =======
4. OTHER ASSETS: Other assets includes approximately $605,000 of deferred financing costs at December 31, 1995, net of accumulated amortization, which were capitalized in conjunction with the refinancing transaction during 1995 (see Note 6). These costs are amortized over the period covered by the related revolving credit agreement using the straight-line method, which is not materially different from the amortization computed using the effective-interest method. In 1993 and 1994, the Company wrote off all road property which was being held for sale or future use to state the property at net realizable value. These write-offs (approximately $180,000 and $675,000 in 1993 and 1994, respectively) were recorded as a charge to maintenance of ways and structures expense. 5. LEASES: Lessor A subsidiary leases rolling stock to third parties under agreements that are accounted for as operating leases. The property held for lease on December 31, 1995, totaled $15,334,000 less accumulated depreciation of F-9 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) $2,904,000. The following is a schedule of minimum future rentals receivable on noncancelable operating leases (amounts in thousands): 1996.............................................................. $ 3,335 1997.............................................................. 3,198 1998.............................................................. 2,910 1999.............................................................. 1,160 2000.............................................................. 1,160 Thereafter........................................................ 3,402 ------- $15,165 =======
Lessee The Company has entered into several leases for rolling stock, locomotives and other equipment. Operating lease expense for the years ended December 31, 1993, 1994 and 1995, was approximately $2,264,000, $2,275,000 and $2,173,000, respectively. The following is a summary of future minimum payments under noncancelable leases (amounts in thousands):
OPERATING CAPITAL LEASES LEASES --------- ------- 1996....................................................... $1,537 $479 1997....................................................... 1,220 -- 1998....................................................... 957 -- 1999....................................................... 581 -- 2000....................................................... 263 -- Thereafter................................................. 181 -- ------ ---- Total minimum payments..................................... $4,739 479 ====== Less: Amount representing interest......................... (26) ---- Present value of minimum lease payments.................... $453 ====
Also, the Company entered into a lease agreement with a Class I carrier for one of its subsidiaries to operate 185 miles of track in Oregon in 1992, and the subsidiary began operations in 1993. The Company has assumed all operating and financial responsibilities including maintenance and regulatory compliance. Under the lease, no payments to the lessor are required as long as the subsidiary only interchanges its freight traffic with the lessor. Through December 31, 1995, no payments were required under this lease arrangement. The lease is subject to an initial 20 year term and shall be renewed for successive ten year renewal terms, unless either party elects not to renew the lease. If the lessor terminates the lease for any reason, the lessor must reimburse the Company for its depreciated basis in the property. In August, 1995, the P&W signed an agreement with a Class I carrier to lease and operate 53 miles of track in Oregon. The lease is subject to an initial 20 year term and shall be renewed for an additional ten years, unless either party elects not to renew the lease. Under the lease, no payments to the lessor are required as long as the subsidiary maintains minimum levels of traffic and provided the subsidiary interchanges its freight traffic with only the lessor and certain permitted carriers. The maximum annual lease payment required if the P&W did not move any traffic would be $1.3 million. In October, 1995, the P&W signed an agreement with another Class I carrier to lease and operate an additional 54 miles of connecting track in Oregon. The lease is subject to an initial three year term and shall be renewed for successive three year intervals, unless either party elects not to renew the lease. Under the lease, no payments to the lessor are required as long as the subsidiary interchanges its freight traffic with only the lessor and certain permitted carriers. Under both of these arrangements, the Company has assumed all operating and financial responsibilities including maintenance and regulatory compliance. Through December 31, 1995, no payments were required under either lease arrangement. F-10 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) A subsidiary of the Company has entered into a trackage rights agreement to operate over 91 miles of a Class I carrier. This agreement is terminable by either party after 1997. 6. LONG-TERM DEBT: Long-term debt consists of the following (amounts in thousands):
DECEMBER 31, --------------- MARCH 31, 1994 1995 1996 ------- ------- ----------- (UNAUDITED) Credit facilities with variable interest depending upon certain financial ratios of the Company, as defined (8.44% at December 31, 1995), due partially in quarterly installments, with balance due in 2001...................................... $ -- $24,300 $50,201 Promissory note payable with interest at 8% and principal payments due annually of $1,188,000 if certain conditions, as specified in the agreement, are met, with balance due in 1999..... 9,306 9,122 9,122 Term loan payable in quarterly installments, variable maturities through 2005 with interest adjusted quarterly at 90-day treasury bill rate plus 3.25%....................................... 6,691 6,066 5,895 Capital lease obligations with interest at 12.47%, payable in monthly installments of $47,885 through 1996 (see Note 5)........................ 937 453 322 Secured promissory note with the State of Illinois, interest at 3%, payable in annual installments over 10 years beginning on the first anniversary of the project completion date....... -- -- 667 Other long-term debt with interest rates varying from 6.75% to 15%, refinanced in 1995 (see below)........................................... 15,706 -- -- ------- ------- ------- 32,640 39,941 66,207 Less--Current portion............................. 4,230 1,239 2,894 ------- ------- ------- Long-term debt, less current portion.............. $28,410 $38,702 $63,313 ======= ======= =======
On June 2, 1995, the Company refinanced approximately $14.3 million ($15.7 million as of December 31, 1994) of previously existing notes and purchased approximately $6 million of rolling stock previously under an operating lease by entering into a credit facilities agreement. In conjunction with this refinancing transaction, an extraordinary charge for prepayment penalties and other financing costs on the early extinguishment of debt for approximately $851,000 ($494,000 net of income taxes) was incurred. These amounts have been recorded in the accompanying consolidated income statement as an extraordinary item, net of income taxes. Subsequent to year-end, on February 8, 1996, the Company amended and restated the credit facilities agreement. In conjunction with this transaction, the Company incurred additional indebtedness of approximately $28.0 million, primarily for the purchase of certain assets of the Chicago & Illinois Midland Railway Company (see Note 14 for further discussion). The amended and restated credit facilities provide for a $40 million term loan and a $34 million revolving credit facility. The term loan requires varying quarterly principal payments beginning September 30, 1996, with the remaining balance payable in February, 2001. The revolving credit facility provides for a mandatory commitment reduction of $2.0 million on December 31, 1997, with the remaining balance payable in February, 2001. The Company may voluntarily reduce the commitment on the revolving credit facility at any time without penalty, provided that no reinstatement of the commitment amounts may occur. In conjunction with the amendment and restatement, the Company paid debt financing fees of $1.6 F-11 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) million, primarily to a financial institution. These costs have been capitalized in the accompanying balance sheets as of March 31, 1996 as an other asset and are being amortized over the period covered by the related credit facilities agreement using the straight-line method, which is not materially different from the amortization computed using the effective- interest method. Both the term loan and the revolving credit facility accrue interest at prime or the Eurodollar rate, at the option of the Company, plus the applicable margin, which varies from 0% to 3% depending upon the Company's funded debt to EBITDA ratio, as defined in the agreement. Interest is payable in arrears based on certain elections of the Company, never to exceed three months outstanding. The Company pays a 1/2% per annum commitment fee on all unused portions of the credit facilities. Both the term loan and the revolving credit facility require mandatory prepayments when certain events occur. These events include, among other things, the generation of excess cash flow, the disposition of certain levels of assets not subject to prior liens and the sale of Company stock, all as defined in the agreement. These credit facilities are secured by substantially all the assets of the Company and the stock of certain subsidiaries. These facilities require the maintenance of certain covenants, including, but not limited to, funded debt to EBITDA, funded debt to net worth, cash flow coverage, EBIT to interest and minimum net worth, all as defined in the agreement. The Company is also limited in its ability to incur additional indebtedness, create liens on its assets, make certain capital expenditures and pay dividends greater than $32,000 in any one quarter. The following is a summary of the maturities of long-term debt as of December 31, 1995, as adjusted to reflect the payment terms of the amended and restated credit facilities (amounts in thousands): 1996............................................................ $ 1,239 1997............................................................ 2,035 1998............................................................ 2,002 1999............................................................ 7,434 2000............................................................ 825 2001............................................................ 24,775 Thereafter...................................................... 1,631 ------- $39,941 =======
The promissory note payable with an outstanding balance of $9,122,000 at December 31, 1995, provides for annual principal payments of $1,188,000 provided that certain levels of revenue and cash flow are met. In accordance with these provisions, the Company was not required to make any principal payments in 1994 or 1995. The Company did, however, make principal payments of $177,000 and $184,000 in 1994 and 1995, respectively, due to additional requirements regarding the sale of assets, as defined in the agreement. Management believes that the Company will be required to make the full principal payments beginning in 1997 through the due date of the note. The annual debt maturity schedule has been adjusted accordingly. The Company's debt has been secured by substantially all the assets of the Company and the stock of certain subsidiaries. Certain obligations require the maintenance of covenants including, but not limited to, funded debt to EBITDAR, funded debt to net worth, EBIT to interest, cash flow and the incurrence of additional indebtedness, as defined in the agreement. The Company and its subsidiaries were in compliance with the provisions of these covenants as of December 31, 1995. 7. INTEREST RATE RISK MANAGEMENT: The Company uses derivative financial instruments, specifically interest rate caps and interest rate swaps, to manage its variable interest rate risk on long-term debt. F-12 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Interest Rate Cap--In August, 1995, the Company entered into a three-year interest rate cap agreement whereby the Company paid $90,000 to a financial institution in order to cap the rate on three-month dollar deposits, as defined, to a fixed rate of 8.0%. The notional amount under this agreement reduces on a quarterly basis in varying amounts from $15,250,000 at September 30, 1995, to $11,438,000 at September 30, 1998 ($15,000,000 at December 31, 1995). The fees paid by the Company for the interest rate cap were capitalized and are amortized over the period covered by the agreement. Interest Rate Swap--On February 14, 1996, the Company entered into a three- year interest rate swap agreement with a financial institution whereby the Company fixed its LIBOR interest rate at 5.14% by exchanging its variable interest rate on long-term debt for a fixed interest rate. The notional amount under this agreement is $10.0 million. Any fees paid or received under this arrangement are accrued as earned, the effect of which results in fixed interest expense over the period covered by the agreement. Interest Rate Risk Management Commitment--In conjunction with amending and restating the Company's existing credit facilities as discussed in Note 6, the Company entered a commitment to provide interest rate protection for at least 50% of the commitment amount ($37.0 million as of February 8, 1996) under the credit facilities by June 30, 1996. This commitment will be waived if the Company's ratio of funded debt to net worth, as defined, is less than 1.50 to 1.00 as of June 30, 1996. 8. EMPLOYEE BENEFIT PLANS: Pension The Company administers a noncontributory defined benefit plan for the employees of a subsidiary who are members of a union and who meet minimum service requirements. Benefits are determined based on a fixed amount per year of credited service. The Company's funding policy is to make contributions for pension benefits based on actuarial computations which reflect the long-term nature of the plan. Contributions are subject to Board of Directors approval. The Company has met the minimum funding requirements according to the Employee Retirement Income Security Act. Pension costs for 1993, 1994 and 1995 were approximately $13,000, $13,000, and $14,000, respectively. The pension liability recognized in the accompanying consolidated balance sheet at December 31, 1994 and 1995, was approximately $85,000 and $80,000, respectively. The projected benefit obligation was determined using a discount rate of 7.8%. The long-term rate of return on plan assets was 7.5%. The plan assets, which consist of fixed income securities, were approximately $109,000 and $117,000, respectively, at December 31, 1994 and 1995. The unrecognized net transition obligation is being amortized over the remaining service lives of plan participants. Postretirement Benefits The Company adopted Statement of Financial Accounting Standards No. 106, "Employers' Accounting for Postretirement Benefits Other Than Pensions" (FAS 106), on January 1, 1993. This statement requires that employers recognize the cost of providing benefits other than pensions to retirees during the years an employee provides services. Historically, the Company has provided certain health care and life insurance benefits for certain retired employees. Eligible employees include union employees for one of its subsidiaries, and certain nonunion employees who have reached the age of 55 with 30 or more years of service. The Company funds the plan on a pay-as-you-go basis. F-13 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Total postretirement benefit costs for the years ended December 31, 1993, 1994 and 1995, were $711,000, $55,000 and $49,000, respectively, $656,000 of which in 1993 represented the immediate recognition of the transition obligation on the cumulative effect of accounting change for postretirement benefits. The funded status of the plan at December 31, 1994 and 1995, was as follows (amounts in thousands):
1994 1995 ---- ---- Accumulated postretirement benefit obligation-- Fully eligible active participants.............................. $ 3 $ 4 Other active participants....................................... 114 145 Retirees........................................................ 460 486 ---- ---- 577 635 Plan assets at fair value......................................... -- -- ---- ---- Accumulated postretirement benefit obligation in excess of plan assets........................................................... 577 635 Unrecognized net gain resulting from change in actuarial assump- tions............................................................ 99 51 ---- ---- Accrued postretirement benefit cost............................... $676 $686 ==== ====
For measurement purposes, a 10.0% annual rate of increase in the per capita cost of covered health care benefits was assumed for 1996 and 1997. The rate was then assumed to gradually decrease to 5% by the year 2002, at which time the rate was assumed to remain level. To illustrate the effect of these assumptions, increasing the assumed health care cost trend by 1% each year would increase the accumulated postretirement benefit obligation as of December 31, 1995, by approximately $65,000 and the net periodic postretirement benefit cost for 1995 by approximately $6,000. Relevant assumptions used in accounting for the postretirement benefit plan as of December 31 were as follows:
1994 1995 ---- ---- Weighted average discount rate................................... 7.5% 7.5% Long-term rate of return on plan assets.......................... N/A N/A === ===
Employee Bonus Programs The Company has performance-based bonus programs which include a majority of nonunion employees. Key employees are granted bonuses on a discretionary basis. Total compensation of approximately $92,000, $314,000 and $308,000 was awarded under the various bonus plans in 1993, 1994 and 1995, respectively. Profit Sharing The Company maintains a defined contribution profit-sharing plan for two subsidiaries. There were no contributions in 1993, 1994 or 1995. Effective January 1, 1994, the Company established two 401(k) plans covering union and nonunion employees who have met specified length of service requirements. The 401(k) plans qualify under Section 401(k) of the Internal Revenue Code as salary reduction plans. Employees may elect to contribute a certain percentage of their salary on a before-tax basis. For nonunion employees, the Company matches the participants contributions up to 1 1/2% of the participants salary. The Company's contributions to the plans in 1994 and 1995 were approximately $70,000 and $83,000, respectively. F-14 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Postemployment Benefits The Company does not provide postemployment benefits to its employees. 9. INCOME TAXES: The Company files consolidated U.S. federal income tax returns which include all of its subsidiaries. The components of the provision for income taxes on income before extraordinary item and cumulative effect of accounting change are as follows (amounts in thousands):
YEARS ENDED THREE MONTHS DECEMBER 31, ENDED MARCH 31, -------------------- --------------- 1993 1994 1995 1995 1996 ------ ------ ------ ------- ------- (UNAUDITED) Current-- Federal.................................. $ 473 $1,123 $ 550 $ 54 $ 332 State.................................... 3 146 111 30 60 Deferred................................... 952 738 811 279 264 ------ ------ ------ ------- ------- $1,428 $2,007 $1,472 $ 363 $ 656 ====== ====== ====== ======= =======
The provision for income taxes on income before extraordinary item and cumulative effect of accounting change in each period differs from that which would be computed by applying the statutory U.S. federal income tax rate to the income before taxes. The following is a summary of the effective tax rate reconciliation:
THREE MONTHS YEARS ENDED ENDED DECEMBER 31, MARCH 31, ---------------- -------------- 1993 1994 1995 1995 1996 ---- ---- ---- ------ ------ (UNAUDITED) Tax provision at statutory rate.............. 34.0% 34.0% 34.0% 34.0% 34.0% State income taxes, net of federal income tax benefit..................................... 6.9 4.6 4.0 6.3 4.5 Other, net................................... .6 1.4 2.6 1.7 2.0 ---- ---- ---- ------ ------ 41.5% 40.0% 40.6% 42.0% 40.5% ==== ==== ==== ====== ======
The following summarizes the estimated tax effect of significant cumulative temporary differences that are included in the net deferred income tax liability, which is classified between current and long-term in the accompanying consolidated balance sheets (amounts in thousands):
DECEMBER 31, ---------------- MARCH 31, 1994 1995 1996 ------- ------- ----------- (UNAUDITED) Deferred tax assets-- Accruals and reserves not deducted for tax pur- poses until paid.............................. $ 1,349 $ 1,438 $ 1,554 Alternative minimum tax credits................ 2,487 2,903 3,258 Net operating losses........................... 219 489 111 Investment tax credits......................... 156 52 -- Postretirement benefits........................ 271 272 272 Other.......................................... 140 74 63 ------- ------- ------- 4,622 5,228 5,258 Deferred tax liability--differences in deprecia- tion and amortization........................... (6,672) (8,089) (8,383) ------- ------- ------- Net deferred tax liability................... $(2,050) $(2,861) $(3,125) ======= ======= =======
F-15 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) The Company's alternative minimum tax credits can be carried forward indefinitely; however, the Company must achieve future regular taxable income in order to realize this credit. The Company's net operating loss carryforwards expire between 2008 and 2010. The investment tax credits expire in 2000. Management does not believe that a valuation allowance is required for the deferred tax assets based on anticipated future profit levels and the reversal of current temporary differences. 10. GRANTS FROM GOVERNMENTAL AGENCIES: During 1995, a subsidiary of the Company received a grant from the State of Pennsylvania of $3,500,000 for rehabilitation of a portion of the subsidiary's track. The agreement requires the State of Pennsylvania to reimburse the subsidiary for 75% of the total costs of the project. This project was approximately 85% completed as of December 31, 1995. Another subsidiary of the Company received a grant from the State of Louisiana of $300,000 for rehabilitation of a portion of the subsidiary's track. This project was substantially completed as of December 31, 1995. During 1994, three subsidiaries of the Company received grants totaling approximately $1,755,000 from the State of Pennsylvania for the rehabilitation of a portion of each subsidiary's track. The agreements require the State to reimburse each subsidiary for 70%-75% of the total costs for each rehabilitation project. Each of these rehabilitation projects was completed by December 31, 1994. During a prior year, a subsidiary of the Company received a grant from the State of New York of $4,000,000 for the rehabilitation of a portion of the subsidiary's track. This subsidiary also received a grant of $900,000 from the Federal Railroad Administration for the same rehabilitation project. The State of New York is entitled to 63.8% of the net liquidation value of the rehabilitated track upon abandonment. The State of New York agreement also requires the subsidiary to maintain the track structure by making capital improvements with a value equal to or less than $4,000,000, payable over a 10 year period beginning on April 1, 1994. The capital improvements are computed based on the number of loaded cars moved over the subsidiary's track. Failure by the Company to propose the capital improvements by March 1 of the following year will result in the State of New York assessing a penalty in the form of a usage fee, thereby requiring the Company to repay a portion of the grant equal to the required capital improvements. The Company believes that it has proposed and/or performed capital improvements which eliminate any repayments associated with the grant. All of the aforementioned grants do not represent a future liability of the Company unless the Company abandons the rehabilitated track structure within a specified period of time, as defined in the respective agreements. As the Company does not intend to abandon the track, the Company has recorded additions to road property and has deferred the amount of the grants as the rehabilitation expenditures have been incurred. The amortization of the deferred grant is a noncash offset to depreciation expense over the useful life of the related assets and is not included as taxable income. During the years ended December 31, 1993, 1994 and 1995, the Company recorded offsets to depreciation expense from grant amortization of $279,000, $313,000 and $415,000, respectively. 11. COMMITMENTS AND CONTINGENCIES: The Company has built its portfolio of railroad properties through the purchase or lease of road and track structure and through operating agreements. These transactions have related only to the physical assets of the railroad property. Historically, the Company does not assume the operations or liabilities of the divesting railroads. In connection with the Company's lease of its 185-mile line in Oregon, the Company has committed to the lessor to rehabilitate 25 miles of track over five years, beginning February, 1993, at an estimated total cost of approximately $5.0 million. As of December 31, 1995, the Company has completed approximately $1.0 million of this rehabilitation. F-16 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) The Company is a defendant in certain lawsuits resulting from the railroad operations. Management believes that adequate provision has been made in the financial statements for any expected liabilities which may result from disposition of such lawsuits. While it is possible that some of the foregoing matters may be settled at a cost greater than that provided for, it is the opinion of management that the ultimate liability, if any, will not be material to the Company. 12. STOCKHOLDERS' EQUITY: The Company entered into an agreement in 1978 (extended in 1987) with its president whereby options to purchase 90,650 shares were granted. In 1994, the remaining outstanding options to purchase 44,400 shares were exercised. In conjunction with the amendment and restatement of the Company's credit facilities as discussed in Note 6, detachable warrants were issued to a financial institution to purchase 41,847 shares of Class A Common Stock at an exercise price of $0.0005 per share. These warrants are exercisable at any time through March 1, 2006. Issuance of additional warrants for the purchase of 11,950 shares of Class A Common Stock are required if the Company does not successfully complete an initial public offering of at least $30 million in net proceeds by December 31, 1996. These warrants provide a put option whereby the warrant holder can require the Company to repurchase the shares based on market value, as defined in the agreement. This put option is exercisable under certain conditions after March 1, 2001. The warrants also provide a call option whereby the Company can elect to repurchase the shares based on market value, as defined in the agreement. This call option is exercisable under certain conditions after March 1, 2003. Management has valued the warrants at approximately $471,000, the amount of which was recorded as a debt discount in the three-month period ending March 31, 1996. The discount is being amortized over the period covered by the related credit facilities agreement using the straight-line method, which is not materially different from the amortization computed using the effective-interest method. 13. ACCOUNTING PRONOUNCEMENTS: In March, 1995, Statement of Financial Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of" ("FAS 121") was issued. Under FAS 121, an impairment loss must be recognized for long-lived assets and certain identifiable intangibles to be held and used by an entity whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. FAS 121 is effective for financial statements issued for fiscal years beginning after December 15, 1995, and must be adopted on a prospective basis. Restatement of previously issued financial statements is not permitted. The Company adopted FAS 121 prospectively in the first quarter of 1996, the adoption of which did not have a material impact on the financial condition or results of operations of the Company. Statement of Financial Accounting Standards No. 123, "Accounting for Stock- based Compensation" (effective for fiscal years beginning after December 15, 1995) encourages, but does not require, employers to adopt a fair value method of accounting for employee stock-based compensation, and requires increased stock-based compensation disclosures if the fair value method is not adopted. The Company does not intend to elect the fair value method for stock options. Accordingly, implementation of this Statement will have no effect on the Company's operating results or financial condition. 14. POST DECEMBER 31, 1995 EVENTS: Illinois & Midland Railroad, Inc.--On February 8, 1996, a newly-formed subsidiary, the Illinois & Midland Railroad, Inc., purchased certain assets, primarily road and track structure, of the Chicago & Illinois Midland Railway Company for approximately $27.5 million, including related costs and the assumption of certain F-17 liabilities. The purchase price was allocated to purchased inventory ($750,000), assumed note receivable ($1,220,000), property ($10,546,000), and the service assurance agreement ($14,981,000). This subsidiary will operate approximately 126 miles of track in the State of Illinois. A significant portion of this subsidiary's operating revenues (83% in 1995) is attributable to coal shipments for one customer which is an electric utility. The acquisition was accounted for as a purchase. The allocation of the purchase price is based on preliminary estimates and may be revised at a later date. Pittsburg & Shawmut Railroad, Inc.--On April 29, 1996, a newly formed subsidiary, the Pittsburg & Shawmut Railroad, Inc. purchased certain assets, primarily road and track structure, of the Pittsburg & Shawmut Railroad Company, Mountain Laurel Railroad Company, and Red Bank Railroad Company for approximately $15.2 million, including related costs and the assumption of a grant from the Commonwealth of Pennsylvania. In addition, the purchase and sale agreement provides for additional contingency payments of up to $2.5 million. A portion of these payments are required (up to a maximum of $500,000) if certain coal shipments during any calendar year from 1997-1999, as defined, exceed 290,000 tons. The remaining contingency payments (up to a maximum of $2.0 million) are calculated as 25% of the gross revenues attributable to certain coal shipments that exceed 564,793 tons during any calendar year from 2000-2009, as defined. Upon resolution of the amount of the contingency payments, there will be an additional element of cost related to the transaction, which will be recorded as excess cost over the fair market value of tangible net assets acquired and amortized over the same period as the related track structure, which is 20 years. A significant portion of this subsidiary's revenue is attributable to coal shipments. The acquisition was accounted for as a purchase. The allocation of the purchase price is based on preliminary estimates and may be revised at a later date. Pro Forma for Acquisitions--Results for the operations of the Illinois & Midland Railroad, Inc. and the Pittsburg & Shawmut Railroad, Inc. are included within the consolidated financial statements subsequent to February 8, 1996, and April 29, 1996, respectively. Unaudited pro forma results assuming both acquisitions had been made as of January 1, 1995, are as follows (in thousands):
THREE MONTHS ENDED ----------------------------- MARCH 31, 1995 MARCH 31, 1996 -------------- -------------- (UNAUDITED) (UNAUDITED) Revenues.......................................... $18,204 $19,448 Net income........................................ 1,393 280 Net income per share.............................. $0.59 $0.12 ======= =======
The above information reflects adjustments for only depreciation, amortization and interest expense based on the new cost basis and debt structure of the Company. Income per share information has been adjusted for the stock split, but not for the underwritten initial public offering. Recent Developments of Significant Customer--As discussed in Note 1, a significant portion of the Company's revenue is attributable to a customer operating in the salt industry. This customer accounted for approximately 9% of the Company's revenue for 1995, of which 40% was for freight hauling and 60% represented car rental revenue. Similar amounts for 1993 were 20%, 61% and 39%, respectively. Similar amounts for 1994 were 12%, 43% and 57%, respectively. On March 12, 1994, this customer experienced a subsidence and subsequent flooding at its Retsof, New York, salt mine. Salt shipments by rail ceased until August, 1994. Rail shipments then resumed and continued, at a lower level than experienced before the subsidence, until September, 1995, when the mine closed. Car rental revenue from long-term operating leases with this customer is unaffected. This customer had previously announced its intentions to construct a new mine. On April 22, 1996, this customer announced that a new mine will not be constructed and that the closed mine will be converted to a distribution center. In anticipation of the construction of a new mine, the Company incurred approximately $600,000 of costs in connection with construction of a rail spur. While management anticipates that it will be reimbursed for these costs, there can be no assurance that such reimbursement will occur. F-18 GENESEE & WYOMING INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED) Initial Public Offering and Related Stock Transactions--On June 12, 1996 the Company filed an amended registration statement with the Securities and Exchange Commission for an underwritten initial public offering of 2,648,000 shares of Class A Common Stock (the Common Stock Offering), of which 2,500,000 shares will be offered by the Company and 148,000 shares will be offered by a selling stockholder. The proceeds of the Common Stock Offering will be used to pay down borrowings on the credit facilities. In connection with the Common Stock Offering, the Company, effective June 10, 1996, changed the par value of its Class A and Class B Common Stock from $10 per share to $.01 per share and increased the shares authorized to 12 million and 1.5 million shares, respectively. The rights and privileges of Class B Common Stock changed to substantially the same as Class A Common Stock, except it will carry 10 votes per share, be convertible into Class A Common Stock and have transfer restrictions. The Class A Common Stock also has a 10% dividend preference over Class B Common Stock, as and if dividends are declared by the Board of Directors. Also, the Company executed an 18.5 to 1 stock split and reclassified the Company's outstanding Class A Common Stock into Class A and Class B Common Stock, depending on the election of the shareholder. For purposes of this statement the reclassification has been assumed to be equal between Class A and Class B Common Stock. Also, the Company established an incentive and nonqualified stock option plan for key employees and a nonqualified stock option plan for nonemployee directors that will allow employees and directors to purchase up to an aggregate of 500,000 shares of Class A Common Stock. In addition, the Company established an employee stock purchase plan and reserved 450,000 shares under the plan. The plan allows employees to purchase stock at market value. All references in the consolidated financial statements of the Company to the number of shares authorized and outstanding of Class A and Class B Common Stock have been retroactively adjusted to reflect the reclassification of the capital stock and the stock split. F-19 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To Genesee & Wyoming Inc.: We have audited the accompanying balance sheets of CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY (an Illinois corporation) as of December 31, 1994 and 1995, and the related statements of operations, shareholder's equity and cash flows for each of the three years in the period ended December 31, 1995. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provides a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Chicago & Illinois Midland Railway Company as of December 31, 1994 and 1995, and the results of its operations and its cash flows for the each of the three years in the period ended December 31, 1995, in conformity with generally accepted accounting principles. Arthur Andersen LLP Chicago, Illinois, April 4, 1996 F-20 CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY BALANCE SHEETS (IN THOUSANDS)
DECEMBER 31, --------------- FEBRUARY 8, 1994 1995 1996 ------- ------- ----------- (UNAUDITED) ASSETS CURRENT ASSETS: Cash and cash equivalents....................... $ 46 $ 419 $ 124 Accounts receivable............................. 3,972 4,360 3,127 Materials and supplies.......................... 993 733 750 Other current assets............................ 541 302 859 ------- ------- ------- Total current assets.......................... 5,552 5,814 4,860 ------- ------- ------- PROPERTY AND EQUIPMENT, NET....................... 27,321 10,630 10,546 ------- ------- ------- LONG-TERM RECEIVABLE FROM AFFILIATE............... 360 439 439 ------- ------- ------- OTHER ASSETS, NET................................. 15,888 15,790 15,711 ------- ------- ------- Total assets................................. $49,121 $32,673 $31,556 ======= ======= ======= LIABILITIES AND SHAREHOLDER'S EQUITY CURRENT LIABILITIES: Accounts payable................................ $ 7,029 $ 8,367 $ 8,129 Accrued expenses................................ 1,509 1,286 1,740 ------- ------- ------- Total current liabilities..................... 8,538 9,653 9,869 ------- ------- ------- LONG-TERM DEBT: Affiliates...................................... 8,500 8,500 8,500 Other........................................... 9,323 5,281 4,712 ------- ------- ------- Total long-term debt.......................... 17,823 13,781 13,212 ------- ------- ------- OTHER LIABILITIES................................. 1,395 1,252 1,095 ------- ------- ------- DEFERRED INCOME TAX LIABILITIES, NET.............. 12,394 6,462 6,439 ------- ------- ------- COMMITMENTS AND CONTINGENCIES (NOTE 10) SHAREHOLDER'S EQUITY: Common stock, no par value; 10,000,000 shares authorized; 3,130,016 shares issued and out- standing....................................... 3,524 3,524 3,524 Retained earnings (deficit)..................... 5,447 (1,999) (2,583) ------- ------- ------- Total shareholder's equity.................... 8,971 1,525 941 ------- ------- ------- Total liabilities and shareholder's equity... $49,121 $32,673 $31,556 ======= ======= =======
The accompanying notes are an integral part of these financial statements. F-21 CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY STATEMENTS OF OPERATIONS (IN THOUSANDS)
ONE MONTH AND EIGHT DAY YEARS ENDED DECEMBER 31, PERIOD ENDED ---------------------------- FEBRUARY 8, 1993 1994 1995 1996 -------- -------- -------- ------------- (UNAUDITED) OPERATING REVENUES................. $ 13,983 $ 9,365 $ 13,733 $1,420 OPERATING EXPENSES: Transportation.................... 3,017 2,547 2,593 532 Maintenance of ways and struc- tures............................ 1,702 1,752 1,814 411 Maintenance of equipment.......... 1,401 2,579 1,659 390 General and administrative........ 2,693 2,134 2,203 757 Depreciation and amortization..... 1,569 1,579 1,437 184 -------- -------- -------- ------ Total operating expenses....... 10,382 10,591 9,706 2,274 -------- -------- -------- ------ Income (loss) from operations.. 3,601 (1,226) 4,027 (854) INTEREST EXPENSE................... (1,345) (1,613) (1,461) (107) OTHER INCOME....................... 2,162 533 1,525 17 LOSS ON SALE OF ASSETS (Note 11)... -- -- (16,082) -- -------- -------- -------- ------ Income (loss) before income taxes......................... 4,418 (2,306) (11,991) (944) PROVISION (BENEFIT) FOR INCOME TAX- ES................................ 1,747 (850) (4,545) (360) -------- -------- -------- ------ NET INCOME (LOSS).................. $ 2,671 $ (1,456) $ (7,446) $ (584) ======== ======== ======== ======
The accompanying notes are an integral part of these financial statements. F-22 CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY STATEMENTS OF SHAREHOLDER'S EQUITY (IN THOUSANDS)
COMMON STOCK ------------- RETAINED EARNINGS SHARES AMOUNT (DEFICIT) TOTAL ------ ------ --------- ------- BALANCE, January 1, 1993....................... 3,130 $3,524 $ 4,232 $ 7,756 Net income................................... -- -- 2,671 2,671 ----- ------ ------- ------- BALANCE, December 31, 1993..................... 3,130 3,524 6,903 10,427 Net loss..................................... -- -- (1,456) (1,456) ----- ------ ------- ------- BALANCE, December 31, 1994..................... 3,130 3,524 5,447 8,971 Net loss..................................... -- -- (7,446) (7,446) ----- ------ ------- ------- BALANCE, December 31, 1995..................... 3,130 3,524 (1,999) 1,525 Net loss (Unaudited)......................... -- -- (584) (584) ----- ------ ------- ------- BALANCE, February 8, 1996 (Unaudited).......... 3,130 $3,524 $(2,583) $ 941 ===== ====== ======= =======
The accompanying notes are an integral part of these financial statements. F-23 CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY STATEMENTS OF CASH FLOWS (IN THOUSANDS)
ONE MONTH AND EIGHT DAY YEARS ENDED DECEMBER 31, PERIOD ENDED -------------------------- FEBRUARY 8, 1993 1994 1995 1996 ------- -------- ------- ------------- (UNAUDITED) CASH FLOWS FROM OPERATING ACTIVITIES: Net income (loss)................... $ 2,671 $ (1,456) $(7,446) $(584) Adjustments to reconcile net income (loss) to net cash (used in) pro- vided by operating activities-- Depreciation and amortization...... 1,569 1,579 1,439 184 Deferred income taxes.............. 387 (850) (5,932) (23) Gain on disposition of equipment... -- -- (1,074) -- Loss on sale of assets (Note 11)... -- -- 16,082 -- Changes in assets and liabilities-- Accounts receivable.............. (250) 697 (388) 1,233 Materials and supplies........... 190 294 (167) (17) Other current assets............. (63) (76) 239 (557) Accounts payable and accrued ex- penses.......................... (2,357) (1,624) 1,115 216 Other assets and liabilities, net............................. (2,582) 146 (176) (131) ------- -------- ------- ----- Net cash (used in) provided by operating activities...................... (435) (1,290) 3,692 321 ------- -------- ------- ----- CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of property and equipment.. (874) (1,362) (2,829) (47) Proceeds from disposition of prop- erty and equipment................. 83 66 4,007 -- Deposit on equipment................ -- -- (376) -- Advances to affiliate, net.......... -- (360) (79) -- ------- -------- ------- ----- Net cash (used in) provided by investing activities............ (791) (1,656) 723 (47) ------- -------- ------- ----- CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from issuance of long-term debt............................... 1,075 2,498 271 11 Principal payments on long-term debt............................... -- -- (4,313) (580) ------- -------- ------- ----- Net cash provided by (used in) financing activities...................... 1,075 2,498 (4,042) (569) ------- -------- ------- ----- (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS......................... (151) (448) 373 (295) CASH AND CASH EQUIVALENTS, beginning of period........................... 645 494 46 419 ------- -------- ------- ----- CASH AND CASH EQUIVALENTS, end of pe- riod................................ $ 494 $ 46 $ 419 $ 124 ======= ======== ======= ===== CASH PAID DURING THE PERIOD FOR: Interest........................... $ 1,350 $ 1,498 $ 1,548 $ 269 Income taxes (refunds)............. 1,830 (275) 1,574 -- ======= ======== ======= =====
The accompanying notes are an integral part of these financial statements. F-24 CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY NOTES TO FINANCIAL STATEMENTS (DATA WITH RESPECT TO THE ONE MONTH AND EIGHT DAY PERIOD ENDED FEBRUARY 8, 1996 ARE UNAUDITED) 1. THE COMPANY'S BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES: Chicago & Illinois Midland Railway Company (the "Company") is a short-line railroad located in Illinois that operates over 126 miles of track, including 29 miles of trackage rights over two Class I carriers and a terminal switching carrier. The Company is a wholly-owned subsidiary of Pawnee Railroad Company ("Pawnee"). In the opinion of management, the unaudited financial statements for the one month and eight day period ended February 8, 1996, are presented on a basis consistent with the audited financial statements and contain all adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation. The results of operations for the interim period are not necessarily indicative of results of operations for the full year. Revenue Recognition Revenues are estimated and recognized as shipments initially move onto the Company's tracks, which, due to the relatively short length of haul, is not materially different from the recognition of revenues as shipments progress. Cash Equivalents The Company considers all highly liquid instruments with a maturity of three months or less when purchased to be cash equivalents for purposes of classification in the balance sheets and statements of cash flows. Cash equivalents are stated at cost, which approximates fair market value. Materials and Supplies Materials and supplies, consisting primarily of fuel and replacement parts, are valued at the lower of average cost or market. Property and Equipment Property and equipment are carried at historical cost. Major renewals or betterments are capitalized while routine maintenance and repairs, which do not improve or extend asset lives, are charged to expense when incurred. Gains or losses on sales or other dispositions are credited or charged to other income. Depreciation is provided using the straight-line method over the estimated useful lives of the property and are as follows: Road properties............................................... 24-79 years Equipment..................................................... 8-33 years
The Company continually evaluates whether events and circumstances have occurred that indicate the remaining estimated useful life of the property and equipment may not be recoverable. When factors indicate that the asset should be evaluated for possible impairment, the Company uses an estimate of the related undiscounted future cash flows over the remaining useful life of the asset in measuring whether the asset is recoverable. Income Taxes The Company is a member of a group that files a consolidated tax return. The consolidated amount of current and deferred tax expense is allocated among the members of the group based on each entity's tax attributes using a separate return approach. F-25 CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY NOTES TO FINANCIAL STATEMENTS--(CONTINUED) Significant Customer Relationship A large portion of the Company's operating revenues is attributable to the shipment of coal for an electric utility. This customer accounted for approximately 77%, 78% and 83% of the Company's operating revenues in 1993, 1994 and 1995, respectively. This traffic is covered under a service assurance agreement. See Note 4 for further discussion. Disclosures About Fair Value of Financial Instruments The following methods and assumptions were used to estimate the fair value of each class of financial instrument held by the Company: Current assets and current liabilities: The carrying amount approximates fair value due to the short maturity of these items. Long-term debt: The fair value of the Company's long-term debt is based on secondary market indicators. Since the Company's debt is not quoted, estimates are based on each obligation's characteristics, including remaining maturities, interest rate, credit rating, collateral, amortization schedule and liquidity. The carrying amount approximates fair value. Management Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. 2. OTHER INCOME: In 1993, the Company settled a significant lawsuit for a third-party crossing accident. Total cash paid for the settlement was $600,000, resulting in a gain, from reversal of the related reserve, of $1,900,000 which is included in other income. In 1995, the Company sold various railcars and locomotives to third-parties for proceeds of approximately $4,007,000. The Company realized a gain on these transactions of approximately $1,074,000 which is included in other income. 3. PROPERTY AND EQUIPMENT: Major classifications of property and equipment are as follows (amounts in thousands):
DECEMBER 31, --------------- FEBRUARY 8, 1994 1995 1996 ------- ------- ----------- (UNAUDITED) Road properties..................................... $26,922 $27,696 $27,550 Equipment and other................................. 6,046 2,741 2,922 ------- ------- ------- 32,968 30,437 30,472 Less--Accumulated depreciation...................... 5,647 19,807 19,926 ------- ------- ------- $27,321 $10,630 $10,546 ======= ======= =======
F-26 CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY NOTES TO FINANCIAL STATEMENTS--(CONTINUED) 4. OTHER ASSETS: Other assets at December 31, 1994 and 1995, consist of the following (amounts in thousands):
DECEMBER 31, --------------- FEBRUARY 8, 1994 1995 1996 ------- ------- ----------- (UNAUDITED) Service assurance agreement with significant cus- tomer............................................. $17,238 $17,238 $17,238 Organization costs................................. 446 446 446 Other.............................................. 210 617 591 ------- ------- ------- 17,894 18,301 18,275 Less--Accumulated amortization..................... 2,006 2,511 2,564 ------- ------- ------- $15,888 $15,790 $15,711 ======= ======= =======
The service assurance agreement represents a commitment from the Company's significant customer which grants the Company the exclusive right to service three of the customer's facilities indefinitely. The service assurance agreement is being amortized on a straight-line basis over a 40-year period through the year 2029. Organization costs are being amortized over seven years through 1998. Amortization included in the statements of operations for each of the three years in the period ended December 31, 1995, was $505,000. 5. OPERATING LEASE AGREEMENTS: The Company has entered into several leases for rolling stock. As of December 31, 1995, the Company is a lessee for 110 rotary gondolas. This agreement requires payments of $230 per car per month ($303,600 annually) through December 31, 1999, for total future minimum lease payments as of December 31, 1995 of $1,214,000. The Company subleases the same 110 rotary gondolas to another party. Actual future rental receipts from this sublease are dependent, in part, upon usage by the lessee. Minimum future rentals to be received under noncancelable leases in effect at December 31, 1995, are $442,000, all of which are due in 1996. The net effect of all lease arrangements are classified as a reduction in maintenance of equipment expense in the accompanying statements of income. Net reductions in maintenance of equipment expense for the years ended December 31, 1993, 1994 and 1995 were approximately $939,000, $1,249,000 and $358,000, respectively. Subsequent to year-end, the Company assigned both of the above lease arrangements to Illinois & Midland Railroad, Inc. in conjunction with the transaction discussed in Note 11. 6. LONG-TERM DEBT: Long-term debt consists of the following (amounts in thousands):
DECEMBER 31, --------------- FEBRUARY 8, 1994 1995 1996 ------- ------- ----------- (UNAUDITED) Unsecured senior notes due to affiliate with interest at 10.5%, due December 31, 1998.......... $ 8,500 $ 8,500 $ 8,500 Revolving line of credit with interest at prime or the Eurodollar rate, as appropriate, plus an applicable margin, as defined (9.00% and 7.94%, respectively, at December 31, 1995), due according to annual commitment reduction amounts with the balance due on April 10, 1998, secured by substantially all the assets of the Company....... 8,938 4,625 4,045 Secured promissory note with the State of Illinois, interest at 3%, payable in annual installments over 10 years beginning on the first anniversary of the project completion date.................... 385 656 667 ------- ------- ------- Total long-term debt............................. $17,823 $13,781 $13,212 ======= ======= =======
F-27 CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY NOTES TO FINANCIAL STATEMENTS--(CONTINUED) Subsequent to year-end, on February 8, 1996, all of the Company's long-term debt was either paid in full or assumed by Illinois & Midland Railroad, Inc. See Note 11 for further discussion. Both the unsecured senior notes and the revolving line of credit require the maintenance of certain covenants, including, but not limited to, minimum net worth, minimum fixed obligation coverage and maximum debt to net worth. The Company was in compliance with the provisions of these covenants as of December 31, 1995. 7. RELATED PARTIES: The unsecured senior notes for $8,500,000 (see Note 6) are payable to stockholders of Pawnee. As of December 31, 1994 and 1995, the Company owed interest totaling $223,000 on these notes. Interest expense on these notes for each of the three years ended December 31, 1995, was $893,000. Included in other current assets at December 31, 1994 and 1995, are $367,000 and $155,000, respectively, due from Pawnee and related entities. During 1994, the Company advanced $1,360,600 at 8% interest to Pawnee Transportation Company ("PTC"), a wholly owned subsidiary of Pawnee, in connection with the construction of a coal unloading facility located at the Company's rail yard in Kincaid, Illinois. At December 31, 1994 and 1995, PTC owed $360,000 and $439,000, respectively, to the Company under this arrangement. Included in other income for the years ended December 31, 1994 and 1995, is $54,000 and $93,000, respectively, of interest earned from PTC. 8. EMPLOYEE BENEFIT PLANS: Retirement benefits for all employees of the Company are provided for in accordance with the Railroad Retirement Act. The Company has 401(k) plans in effect for all management and certain union employees. The 401(k) plans qualify under Section 401(k) of the Internal Revenue Code as salary reduction plans. Employees may elect to contribute a certain percentage of their salary on a before-tax basis. The Company matches 50% of eligible employee contributions up to a maximum percentage of the employee's salary, as approved by the Board of Directors. Such percentage was 6% in 1993 and ranged from 1% to 6% for 1994 and 3% to 4% in 1995. For the years ended December 31, 1993, 1994 and 1995, the Company contributed $44,000, $60,000 and $41,000, respectively, to those plans on behalf of its employees. 9. INCOME TAXES: The components of the provision (benefit) for income taxes are as follows (amounts in thousands):
YEARS ENDED DECEMBER 31, PERIOD ENDED --------------------- FEBRUARY 8, 1993 1994 1995 1996 ------ ----- ------- ------------ (UNAUDITED) Current-- Federal................................ $ 955 $ -- $ 1,113 $(274) State.................................. 221 -- 274 (63) Deferred-- Federal ............................... 471 (701) (4,913) (19) State.................................. 100 (149) (1,019) (4) ------ ----- ------- ----- $1,747 $(850) $(4,545) $(360) ====== ===== ======= =====
F-28 CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY NOTES TO FINANCIAL STATEMENTS--(CONTINUED) The provision (benefit) for income taxes differs from that which would be computed by applying the statutory U.S. federal income tax rate to income (loss) before taxes. The following is a summary of the effective tax rate reconciliation:
YEARS ENDED DECEMBER 31, PERIOD ENDED ------------------- FEBRUARY 8, 1993 1994 1995 1996 ---- ----- ----- ------------ (UNAUDITED) Tax provision (benefit) at statutory rate.................................... 34.0% (34.0)% (34.0)% (34.0) % State income taxes, net of federal income tax benefit............................. 4.8 (4.3) (4.9) (4.7) Other, net............................... .7 1.4 1.0 .6 ---- ----- ----- ----- 39.5% (36.9)% (37.9)% (38.1)% ==== ===== ===== =====
The following summarizes the estimated tax effect of significant cumulative temporary differences that are included in the net deferred income tax liability in the accompanying balance sheets (amounts in thousands):
DECEMBER 31, --------------- FEBRUARY 8, 1994 1995 1996 ------- ------ ----------- (UNAUDITED) Deferred tax liability--differences in depre- ciation and amortization..................... $13,512 $6,993 $6,970 Accruals for casualty claims.................. (595) (518) (518) Other......................................... (33) (13) (13) NOL........................................... (490) -- -- ------- ------ ------ Net deferred tax liability................ $12,394 $6,462 $6,439 ======= ====== ======
Management does not believe that a valuation allowance is required for the deferred tax assets based on anticipated future profit levels and the reversal of current temporary differences. 10. COMMITMENTS AND CONTINGENCIES: The Company is a defendant in certain lawsuits resulting from its railroad operations. Management believes that adequate provision has been made in the financial statements for any expected liabilities which may result from disposition of such lawsuits. While it is possible that some of the foregoing matters may be settled at a cost greater than that provided for, it is the opinion of management that the ultimate liability, if any, will not be material to the Company's results of operations or financial position. 11. SUBSEQUENT EVENT: Subsequent to year-end, on February 8, 1996, the common stock of Pawnee was sold to Stanford PRC Acquisition Corporation ("Stanford"), and Stanford and Pawnee were merged into the Company. Also on this date, substantially all of the assets of the Company, primarily road and track structure, were sold to Illinois & Midland Railroad, Inc. (an unrelated entity) for approximately $27.5 million, including related costs and the assumption of certain liabilities. The sale of assets represented a loss of approximately $16.1 million, as the book value of the assets sold exceeded the purchase price. The Company recognized a loss on the sale of assets in the 1995 financial statements to write down the property and equipment ($15,655,000) and the materials and supplies ($427,000) to net realizable value. The proceeds from this transaction were used to pay off the remaining debt instruments. The Company is in the process of liquidating its remaining assets and liabilities. Operations of the railroad by the Company have ceased. F-29 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To Genesee & Wyoming Inc.: We have audited the accompanying combined balance sheets of THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY (Pennsylvania corporations) as of December 31, 1994 and 1995, and the related combined statements of operations, shareholder's equity and cash flows for each of the three years in the period ended December 31, 1995. These financial statements are the responsibility of the Companies' management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of The Pittsburg & Shawmut Railroad Company, Mountain Laurel Railroad Company and Red Bank Railroad Company as of December 31, 1994 and 1995, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 1995, in conformity with generally accepted accounting principles. As explained in Note 4 to the financial statements, effective January 1, 1994, the Companies adopted the provisions of Statement of Financial Accounting Standards No. 115, "Accounting for Certain Investments in Debt and Equity Securities." Arthur Andersen LLP Chicago, Illinois March 8, 1996 (except with respect to matters discussed in Note 11 as to which the date is April 29, 1996) F-30 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY COMBINED BALANCE SHEETS (IN THOUSANDS)
DECEMBER 31, ----------------- MARCH 31, 1994 1995 1996 ------- ------- ----------- (UNAUDITED) ASSETS CURRENT ASSETS: Cash and cash equivalents..................... $ 1,421 $ 2,205 $ 2,697 Accounts receivable, net...................... 2,535 901 710 Materials and supplies........................ 322 192 183 Prepaid expenses and other.................... 240 254 298 Notes receivable from related parties......... 2,659 1,584 1,249 ------- ------- ------- Total current assets........................ 7,177 5,136 5,137 PROPERTY AND EQUIPMENT, net..................... 26,789 14,944 14,480 OTHER ASSETS.................................... 1,218 105 84 ------- ------- ------- Total assets........................... $35,184 $20,185 $19,701 ======= ======= ======= LIABILITIES AND SHAREHOLDER'S EQUITY CURRENT LIABILITIES: Current portion of long-term debt............. $ 1,675 $ -- $ 125 Accounts payable.............................. 1,549 971 784 Accrued expenses.............................. 583 530 433 ------- ------- ------- Total current liabilities................... 3,807 1,501 1,342 ------- ------- ------- LONG-TERM DEBT.................................. 5,584 4,025 3,900 ------- ------- ------- OTHER LIABILITIES............................... 474 336 333 ------- ------- ------- DEFERRED INCOME TAX LIABILITIES, net............ 6,491 1,991 1,921 ------- ------- ------- DEFERRED ITEMS--grants from governmental agen- cies........................................... 3,296 3,194 3,168 ------- ------- ------- COMMITMENTS AND CONTINGENCIES (Note 10) SHAREHOLDER'S EQUITY: Preferred stock, $1 par value; 215,000 shares authorized; 194,263 shares issued and 161,500 shares outstanding........................... 194 194 194 Common stock, $1 par value; 150,000 shares au- thorized; 150,000 shares issued and outstand- ing.......................................... 150 150 150 Additional paid-in capital.................... 7,653 7,653 7,653 Preferred stock held in treasury, 32,763 shares....................................... (33) (33) (33) Pension liability adjustment.................. (141) (84) (84) Unrealized gain on marketable securities...... 143 -- -- Retained earnings............................. 7,566 1,258 1,157 ------- ------- ------- Total shareholder's equity.................. 15,532 9,138 9,037 ------- ------- ------- Total liabilities and shareholder's eq- uity.................................. $35,184 $20,185 $19,701 ======= ======= =======
The accompanying notes are an integral part of these combined financial statements. F-31 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY COMBINED STATEMENTS OF OPERATIONS (IN THOUSANDS)
YEARS ENDED DECEMBER THREE MONTHS 31, ENDED MARCH 31, ----------------------- ---------------- 1993 1994 1995 1995 1996 ------ ------ ------- ------- ------- (UNAUDITED) OPERATING REVENUES.................. $9,558 $8,795 $ 5,922 $1,675 $1,420 OPERATING EXPENSES: Transportation.................... 1,747 1,561 1,027 377 261 Maintenance of ways and struc- tures............................ 928 950 806 296 210 Maintenance of equipment.......... 1,138 1,275 846 233 215 General and administrative........ 2,477 3,021 1,918 499 400 Depreciation and amortization..... 1,732 1,801 1,808 462 442 ------ ------ ------- ------- ------- Total operating expenses........ 8,022 8,608 6,405 1,867 1,528 ------ ------ ------- ------- ------- Income (loss) from operations... 1,536 187 (483) (192) (108) INTEREST EXPENSE.................... (725) (595) (481) (146) (78) OTHER INCOME, net................... 331 334 730 132 15 LOSS ON SALE OF PROPERTY AND EQUIPMENT (Note 11)................ -- -- (10,288) -- -- ------ ------ ------- ------- ------- Income (loss) before income tax- es............................. 1,142 (74) (10,522) (206) (171) PROVISION (BENEFIT) FOR INCOME TAX- ES................................. 457 -- (4,214) (84) (70) ------ ------ ------- ------- ------- NET INCOME (LOSS)................... $ 685 $ (74) $(6,308) $ (122) $ (101) ====== ====== ======= ======= =======
The accompanying notes are an integral part of these combined financial statements. F-32 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY COMBINED STATEMENTS OF SHAREHOLDER'S EQUITY (IN THOUSANDS)
COMMON PREFERRED PREFERRED STOCK STOCK ADDITIONAL TREASURY STOCK ------------------ ------------- PAID-IN ----------------- RETAINED SHARES AMOUNT SHARES AMOUNT CAPITAL SHARES AMOUNT EARNINGS ------- -------- ------ ------ ---------- ------- ------- -------- BALANCE AT JANUARY 1, 1993................... 194 $ 194 150 $150 $7,653 (33) $ (33) $ 7,157 Net income............ -- -- -- -- -- -- -- 685 Dividends............. -- -- -- -- -- -- -- (152) ------- -------- --- ---- ------ ------ ------- ------- BALANCE AT DECEMBER 31, 1993................... 194 194 150 150 7,653 (33) (33) 7,690 Net loss.............. -- -- -- -- -- -- -- (74) Dividends............. -- -- -- -- -- -- -- (50) ------- -------- --- ---- ------ ------ ------- ------- BALANCE AT DECEMBER 31, 1994................... 194 194 150 150 7,653 (33) (33) 7,566 Net loss.............. -- -- -- -- -- -- -- (6,308) ------- -------- --- ---- ------ ------ ------- ------- BALANCE AT DECEMBER 31, 1995................... 194 194 150 150 7,653 (33) (33) 1,258 Net loss (Unaudited).. -- -- -- -- -- -- -- (101) ------- -------- --- ---- ------ ------ ------- ------- BALANCE AT MARCH 31, 1996 (Unaudited)....... 194 $194 150 $150 $7,653 (33) $(33) $ 1,157 ======= ======== === ==== ====== ====== ======= =======
The accompanying notes are an integral part of these combined financial statements. F-33 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY COMBINED STATEMENTS OF CASH FLOWS (IN THOUSANDS)
THREE MONTHS ENDED MARCH YEARS ENDED DECEMBER31, 31, -------------------------- -------------- 1993 1994 1995 1995 1996 ------- -------- ------- ------ ------ (UNAUDITED) CASH FLOWS FROM OPERATING ACTIVITIES: Net income (loss)................. $ 685 $ (74) $(6,308) $ (122) $ (101) Adjustments to reconcile net income (loss) to net cash (used in) provided by operating activities-- Depreciation and amortization.... 1,732 1,801 1,808 462 442 Deferred income taxes............ (274) (169) (4,500) (84) (70) Gain on disposition of property and marketable securities....... (123) (131) (497) -- -- Write-off of note receivable..... 164 -- -- -- -- Loss on sale of property and equipment (Note 11)............. -- -- 10,288 -- -- Changes in assets and liabilities-- Account receivable, net........ (3,419) 2,014 1,634 823 191 Materials and supplies......... 94 53 130 9 9 Prepaid expenses and other..... (59) (50) (14) 3 (44) Accounts payable and accrued expenses...................... (1,453) 1,439 (632) (535) (284) Other assets and liabilities, net........................... (16) (15) (40) (2) 14 ------- -------- ------- ------ ------ Net cash (used in) provided by operating activities......... (2,669) 4,868 1,869 554 157 ------- -------- ------- ------ ------ CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of property and equipment........................ (1,524) (793) (407) (53) -- Proceeds from disposition of property and equipment........... 134 246 287 -- -- Issuance of notes receivable, from related parties.................. (188) (910) -- -- (575) Receipts on notes receivable, from related parties.................. 637 20 1,075 -- 910 Purchase of marketable securities. -- -- (548) -- -- Proceeds from sale of marketable securities....................... 332 -- 1,742 -- -- ------- -------- ------- ------ ------ Net cash (used in) provided by investing activities......... (609) (1,437) 2,149 (53) 335 ------- -------- ------- ------ ------ CASH FLOWS FROM FINANCING ACTIVITIES: Principal payments on long-term debt............................. (1,774) (3,168) (3,234) (108) -- Proceeds from grants.............. 3,500 -- -- -- -- Dividends paid.................... (152) (50) -- -- -- ------- -------- ------- ------ ------ Net cash provided by (used in) financing activities......... 1,574 (3,218) (3,234) (108) -- ------- -------- ------- ------ ------ (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS........................ (1,704) 213 784 393 492 CASH AND CASH EQUIVALENTS, beginning of period.......................... 2,912 1,208 1,421 1,421 2,205 ------- -------- ------- ------ ------ CASH AND CASH EQUIVALENTS, end of period............................. $ 1,208 $ 1,421 $ 2,205 $1,814 $2,697 ======= ======== ======= ====== ====== CASH PAID DURING THE PERIOD FOR: Interest.......................... $ 732 $ 602 $ 488 $ 107 $ 112 ======= ======== ======= ====== ====== Income taxes...................... $ 1,012 $ -- $ -- $ -- $ -- ======= ======== ======= ====== ======
The accompanying notes are an integral part of these combined financial statements. F-34 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY NOTES TO COMBINED FINANCIAL STATEMENTS (DATA WITH RESPECT TO THE THREE MONTHS ENDED MARCH 31, 1995 AND 1996 ARE UNAUDITED) 1. THE COMPANIES' BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES: The accompanying financial statements include the financial statements of The Pittsburg & Shawmut Railroad Company (P&S), Mountain Laurel Railroad Company (MNL) and Red Bank Railroad Company (RBK) (the Companies). The Companies are wholly owned subsidiaries of Arthur T. Walker Estate Corporation (ATWEC) which is wholly owned by Dumaines, a private trust. The Companies are short-line railroads that operate over approximately 237 miles of track in the Commonwealth of Pennsylvania. In the opinion of management, the unaudited financial statements for the three-month periods ended March 31, 1995 and 1996, are presented on a basis consistent with the audited financial statements and contain all adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation. The results of operations for interim periods are not necessarily indicative of results of operations for the full year. Principles of Combination The combined financial statements include the accounts of the Companies. All significant intercompany transactions and accounts have been eliminated in combination. Revenue Recognition Revenues are recognized based on the waybill, which, due to the relatively short length of haul, is not materially different from the recognition of revenues as shipments progress. Cash Equivalents The Companies consider all highly liquid instruments with a maturity of three months or less when purchased to be cash equivalents for purposes of classification in the combined balance sheets and combined statements of cash flows. Cash equivalents are stated at cost, which approximates fair market value. Materials and Supplies Materials and supplies consist of items for improvement and maintenance of road property and equipment, and are stated at the lower of average cost or market. Property and Equipment Property and equipment are carried at historical cost. Major renewals or betterments are capitalized while routine maintenance and repairs, which do not improve or extend asset lives, are charged to expense when incurred. Gains or losses on sales or other dispositions are credited or charged to other income. Depreciation is provided on the straight-line method over the useful lives of the property as follows: Road properties............................................... 10-35 years Equipment..................................................... 5-20 years
Income Taxes The Companies are members of a group that file a consolidated tax return. The consolidated amounts of current and deferred tax expense is allocated among the members of the group based on each entity's tax attributes using a separate return approach. Significant Customer Relationship A large portion of the Companies' operating revenue is generated from shipments of bituminous coal. The five largest coal shippers in 1993, 1994 and 1995 accounted for 65% or more of the Companies' revenue. F-35 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED) Revenue has decreased over the past two years primarily due to reductions in coal shipments. The Companies regularly grant trade credit to all their customers. In addition, the Companies grant trade credits to other railroads through the routine interchange of traffic. The collection of the Companies' accounts receivable is substantially dependent upon the economy of the region in which the Companies operate, the coal industry, and the railroad sector of the economy in general. Disclosures About Fair Value of Financial Instruments The following methods and assumptions were used to estimate the fair value of each class of financial instrument held by the Companies: Current assets and current liabilities: The carrying value approximates fair value due to the short maturity of these items. Long-term debt: Since the Companies' debt is not quoted, estimates are based on each obligation's characteristics, including remaining maturities, interest rate, credit rating, collateral, amortization schedule and liquidity. The carrying amount approximates fair value. Management Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. 2. NOTES RECEIVABLE FROM RELATED PARTIES: The Companies have notes receivable from the following related entities (amounts in thousands):
DECEMBER 31, ------------- MARCH 31, 1994 1995 1996 ------ ------ ----------- (UNAUDITED) ATWEC................................................ $1,581 $ 674 $1,249 Brookport Resources Company, an affiliate company.... 168 0 0 Shawmut Development Corporation, an affiliate compa- ny.................................................. 910 910 0 ------ ------ ------ $2,659 $1,584 $1,249 ====== ====== ======
3. PROPERTY AND EQUIPMENT: Major classifications of property and equipment are as follows (amounts in thousands):
DECEMBER 31, --------------- MARCH 31, 1994 1995 1996 ------- ------- ----------- (UNAUDITED) Road properties..................................... $30,026 $30,212 $30,212 Equipment and other................................. 19,230 18,973 18,973 ------- ------- ------- 49,256 49,185 49,185 Less--Accumulated depreciation...................... 22,467 34,241 34,705 ------- ------- ------- $26,789 $14,944 $14,480 ======= ======= =======
F-36 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED) The notes are non-interest-bearing and are payable upon demand. Subsequent to December 31, 1995, the note from Shawmut Development Corporation was paid in full. The Companies issued an additional $575,000 demand note to ATWEC in two separate distributions, in January and March of 1996. 4. OTHER ASSETS: Included in other assets are marketable securities of $1,074,000 in 1994. Effective January 1, 1994, the Companies adopted SFAS No. 115, "Accounting for Certain Investments in Debt and Equity Securities." The adoption of SFAS No. 115 requires that equity securities that have readily determinable fair values shall be classified as "available-for-sale" if not held for the objective of generating profits on short-term differences in price. Based on the Companies' intentions, the debt and equity securities are classified and treated as available-for-sale. At December 31, 1994, debt and equity securities were stated at lower of aggregate cost or market. SFAS No. 115 further requires that unrealized holding gains and losses related to available-for-sale securities shall be excluded from earnings and reported as a net amount in a separate component of shareholder's equity until realized. The following summarizes the effect of applying SFAS No. 115 (in thousands): Cost basis........................................................ $ 931 ------ Gross unrealized holding-- Gains........................................................... 171 Losses.......................................................... (28) ------ Net unrealized gain........................................... 143 ------ Market value at December 31, 1994................................. $1,074 ======
All of the marketable securities were sold in 1995 for a realized gain of approximately $264,000 that is included in other income. 5. EMPLOYEE BENEFIT PLANS: Pension ATWEC administers a noncontributory defined benefit plan and a deferred compensation arrangement for the employees of its subsidiaries. The specific attributes of the defined benefit plan and the deferred compensation arrangement are allocated to each subsidiary (including the Companies) based on the Projected Benefit Obligation per individual per entity. Benefits are determined based on years of service, compensation during the last five years of employment and participation in the profit sharing plan or the defined benefit plan. For the deferred compensation arrangement, benefits are based on a fixed amount per year. The Companies' funding policy is to make contributions for pension and deferred compensation benefits based on actuarial computations which reflect the long-term nature of the plans. The Companies have met the minimum funding requirements according to the Employee Retirement Income Security Act. F-37 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED) Pension cost for both plans combined for 1993, 1994 and 1995 was approximately $53,000, $50,000 and $31,000, respectively. The funded status at December 31, 1994 and 1995, was as follows (amounts in thousands):
1994 1995 ----- ----- Actuarial present value of benefit obligations................ Vested benefits............................................. $ 779 $ 656 Nonvested benefits.......................................... -- -- ----- ----- Accumulated benefit obligation and projected benefit obliga- tion......................................................... 779 656 Plan assets................................................... 266 294 ----- ----- Projected benefit obligation in excess of plan assets......... (513) (362) Unrecognized net transition obligation........................ 99 84 Unrecognized prior service costs.............................. 21 14 Unrecognized net loss......................................... 145 69 Adjustment to recognize minimum liability..................... (265) (167) ----- ----- Pension liability recognized in the combined balance sheet.... $(513) $(362) ===== =====
The projected benefit obligation was determined using a discount rate of 7%. The long-term rate of return on plan assets was 8%. Profit Sharing ATWEC has a profit sharing program for all non-collective bargaining employees. Benefits for profit sharing are determined based on earnings of ATWEC. Allocations to employees are based on eligible wages. Profit sharing contributions were approximately $14,000, $14,000 and $56,000 in 1993, 1994 and 1995, respectively. Contributions are subject to Board of Directors approval. 6. LONG-TERM DEBT: Long-term debt consists of the following (amounts in thousands):
DECEMBER 31, ------------- MARCH 31, 1994 1995 1996 ------ ------ ----------- (UNAUDITED) Note A payable to ATWEC bearing interest at 6%, payable in annual principal payments of $120,000 beginning in January of 1998 and interest payable semiannually, secured by all the property with the balance due January 1, 2017......................... $2,400 $2,400 $2,400 Note B payable to ATWEC bearing interest at 6%, payable in annual principal payments of $125,000 and interest payable semiannually, secured by all property, due in January of 1997.................... 250 125 125 Note payable to Dumaines bearing interest at prime plus 2% on the effective date of the note, interest payable quarterly, with principal and interest balance due December of 1997........................ 1,500 1,500 1,500 Loan payable bearing interest at prime and repaid in 1995................................................ 1,849 -- -- Term note bearing interest at prime and repaid in 1995................................................ 1,260 -- -- ------ ------ ------ 7,259 4,025 4,025 Less--Current portion................................ 1,675 -- 125 ------ ------ ------ Long-term debt................................... $5,584 $4,025 $3,900 ====== ====== ======
F-38 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED) The following is a summary of the maturities of long-term debt as of December 31, 1995 (amounts in thousands): 1996.............................................................. $ 0 1997.............................................................. 1,625 1998.............................................................. 120 1999.............................................................. 120 2000.............................................................. 120 Thereafter........................................................ 2,040 ------ $4,025 ======
At December 31, 1995, the prime interest rate was 8.5%. 7. TRANSACTIONS WITH RELATED PARTIES: Revenue Included within revenues are $891,000, $461,000 and $167,000 for 1993, 1994 and 1995, respectively, for shipments for ATWEC subsidiaries. Interest Expense Included within interest expense is approximately $296,000, $288,000 and $319,000 for 1993, 1994 and 1995, respectively, for notes payable to related parties. Management Fees Walker Management Company, a wholly owned subsidiary of ATWEC, allocates to the Companies compensation and benefits for executives to perform certain accounting, legal, communications, data processing, administrative and other services ("corporate services") that are not specifically attributable to the Companies. In addition, occupancy and other corporate office costs are allocated to the Companies. These fees are approximately $324,000, $350,000, $308,000 and $77,000 in the years ended December 31, 1993, 1994 and 1995 and the three months ended March 31, 1996, and are included in general and administrative expenses in the combined statements of operations. Management believes that the Walker Management Company corporate services allocated to the Companies represent the cost of the services provided and that the costs are reasonable. 8. INCOME TAXES: The components of the provision for income taxes are as follows (amounts in thousands):
YEARS ENDED THREE MONTHS DECEMBER 31, ENDED MARCH 31, ------------------- ---------------- 1993 1994 1995 1995 1996 ---- ----- ------- ------- ------- (UNAUDITED) Current-- Federal................................ $339 $ 145 $ 67 $ -- $ -- State.................................. 66 26 (7) -- -- Deferred................................. 52 (171) (4,274) (84) (70) ---- ----- ------- ------- ------- $457 $ -- $(4,214) $ (84) $ (70) ==== ===== ======= ======= =======
F-39 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED) The provision for taxes on income in each period differs from that which would be computed by applying the statutory U.S. federal income tax rate to the income before taxes. The following is a summary of the major items affecting the provision (in thousands):
YEARS ENDED THREE MONTHS DECEMBER 31, ENDED MARCH 31, -------------------- ---------------- 1993 1994 1995 1995 1996 ---- ----- ------- ------- ------- (UNAUDITED) Tax expense at statutory rate (34%). $388 $ (25) $(3,577) $((((70) $((((58) State income taxes, net of federal income tax benefit................. 101 7 (940) (18) (15) Effect of change in state tax rates on deferred taxes.................. -- 19 226 -- -- Other, net.......................... (32) (1) 77 4 3 ---- ----- ------- ------- ------- $457 $ -- $(4,214) $((((84) $((((70) ==== ===== ======= ======= =======
The following summarizes the estimated tax effect of significant cumulative temporary differences that are included in the net deferred income tax liability in the accompanying combined balance sheets (amounts in thousands):
DECEMBER 31, -------------- MARCH 31, 1994 1995 1996 ------ ------ ----------- (UNAUDITED) Deferred tax assets-- Accruals and reserves not deducted for tax purposes until paid.......................... $ (289) $ (173) $ (173) Alternative minimum tax credits............... (387) (463) (463) Net operating losses.......................... (302) (188) (143) Other......................................... (408) (548) (548) Deferred tax liability--differences in deprecia- tion........................................... 7,877 3,363 3,248 ------ ------ ------ Net deferred tax liability.................... $6,491 $1,991 $1,921 ====== ====== ======
The Companies' alternative minimum tax credits can be carried forward indefinitely; however, the Companies must achieve future regular taxable income in order to realize this credit. The Companies' net operating loss carryforwards (NOL) consist entirely of federal NOLs as state NOLs were used, and excesses lost, in 1995. The Companies' federal net operating loss carryforwards begin to expire in 2009. Management does not believe that a valuation allowance is required for the deferred tax assets based on anticipated tax gain from the sale of the assets (see Note 11) and the reversal of current temporary differences. 9. GRANTS FROM GOVERNMENTAL AGENCIES: During 1993, the MNL received a grant from the Commonwealth of Pennsylvania of $3.5 million for acquisition and initial start up costs as well as rail rehabilitation. The agreement required the Commonwealth of Pennsylvania to reimburse the MNL for 50% of the total costs of the project ($7 million). This project was completed as of December 31, 1993. The aforementioned grant does not represent a future liability of MNL unless MNL abandons the rehabilitated track structure within a specified period of time, as defined in the agreement. As MNL does not intend to abandon the track, MNL has recorded additions to road property and has deferred the amount of the grant as the rehabilitation expenditures have been incurred. The amortization of the deferred grant is a noncash offset to depreciation expense over the useful life of the related assets and is not included as taxable income. F-40 THE PITTSBURG & SHAWMUT RAILROAD COMPANY, MOUNTAIN LAUREL RAILROAD COMPANY AND RED BANK RAILROAD COMPANY NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED) 10. COMMITMENTS AND CONTINGENCIES: The Companies are defendants in certain lawsuits resulting from the railroad operations. Management believes that adequate provision has been made in the financial statements for any expected liabilities which may result from disposition of such lawsuits. While it is possible that the foregoing matters may be settled at a cost greater than that provided for, it is the opinion of management that the ultimate liability, if any, will not be material to the Companies' results of operations and financial position. The RBK operates under a lease and operating agreement which is renewable on a year-to-year basis beginning in 1996. The lease agreement requires payments to be made by MNL based on per ton of traffic moved on the RBK. Lease expense related to this agreement in 1993, 1994 and 1995 was $338,000, $244,000 and $121,000, respectively. 11. SUBSEQUENT EVENT: Subsequent to year-end, on April 29, 1996, substantially all of the assets of the Companies, primarily property and equipment, were sold to Pittsburg & Shawmut Railroad, Inc. (an unrelated entity) for approximately $11.7 million in cash, excluding related costs and the assumption of the grant from the Commonwealth of Pennsylvania. In addition, the purchase and sale agreement provides that ATWEC or the Companies may receive additional contingency payments of up to $2.5 million in the event coal revenues exceed certain agreed upon levels. The sale of road property represented a loss of approximately $10.3 million, as the book value of the assets sold exceeded the purchase price. The Companies recognized a loss on the sale of property and equipment in the 1995 financial statements to write down property and equipment to net realizable value. F-41 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMA- TION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PRO- SPECTUS IN CONNECTION WITH THE OFFERING MADE HEREBY AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AU- THORIZED BY THE COMPANY, THE SELLING STOCKHOLDER OR ANY UNDERWRITER. THIS PRO- SPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITY OTHER THAN THE SECURITIES COVERED BY THIS PROSPECTUS, NOR DOES IT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING SUCH AN OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PER- SON TO WHOM IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIR- CUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AF- FAIRS OF THE COMPANY SINCE THE DATE HEREOF OR SINCE THE DATES AS OF WHICH THE INFORMATION IS FURNISHED. --------------- TABLE OF CONTENTS
PAGE ---- Prospectus Summary........................................................ 3 Risk Factors.............................................................. 7 Recent Developments....................................................... 10 Use of Proceeds........................................................... 12 Dividend Policy........................................................... 12 Capitalization............................................................ 13 Dilution.................................................................. 14 Selected Consolidated Financial and Operating Data........................ 15 Pro Forma Financial Information........................................... 16 Management's Discussion and Analysis of Financial Condition and Results of Operations............................................................... 21 Business.................................................................. 30 Property.................................................................. 38 Management................................................................ 42 Certain Transactions...................................................... 46 Principal and Selling Stockholders........................................ 47 Description of Capital Stock.............................................. 48 Shares Eligible for Future Sale........................................... 50 Underwriting.............................................................. 51 Notice to Ontario Residents............................................... 52 Legal Matters............................................................. 52 Experts................................................................... 52 Additional Information.................................................... 53 Index to Financial Statements............................................. F-1
--------------- UNTIL , 1996, ALL DEALERS EFFECTING TRANSACTIONS IN THE CLASS A COMMON STOCK, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS DELIVERY REQUIREMENT IS IN ADDITION TO THE OBLIGA- TION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 2,648,000 SHARES LOGO GENESEE & WYOMING INC. CLASS A COMMON STOCK ($.01 PAR VALUE) --------------- SCHRODER WERTHEIM & CO. FURMAN SELZ , 1996 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The expenses in connection with the offering are estimated as follows:
ITEM AMOUNT ---- -------- Registration fee................................................ $ 16,802 NASD fee........................................................ 5,373 Nasdaq National Market application fee.......................... 29,243 Blue sky fees and expenses...................................... 22,000 Printing expenses............................................... 150,000 Legal fees and expenses......................................... 335,000 Accounting fees and expenses.................................... 300,000 Transfer agent and registrar fees............................... 2,500 Miscellaneous expenses.......................................... 14,082 -------- Total......................................................... $875,000 ========
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Paragraph 10 of the Registrant's Restated Certificate of Incorporation provides that the Registrant shall indemnify its directors and officers to the fullest extent authorized by the Delaware General Corporation Law (the "DGCL"). With respect to indemnification of directors and officers, Section 145 of the DGCL provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Under this provision of the DGCL, the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Furthermore, the DGCL provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall II-1 determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Paragraph 9 of the Registrant's Restated Certificate of Incorporation contains a provision, authorized by Section 102(b)(7) of the DGCL, which provides that a director of the Registrant shall not be personally liable to the Registrant 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 Registrant 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 DGCL, 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. ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES. Since January 1, 1993, the Registrant has sold the following shares of common stock which were not registered under the Securities Act of 1933, as amended (the "Act") (the following does not give effect to the stock split and reclassification of the Registrant's common stock referenced in the Prospectus forming a part of this Registration Statement):
NUMBER OF AGGREGATE DATE OF SALE NAME OF INVESTOR SHARES CONSIDERATION ------------ ---------------- --------- ------------- 10/22/93 John M. Randolph................................ 800 $20,000 11/5/93 Sandra B. Ringo................................. 200 $ 5,000 Mark W. Hastings and Susan M. Hastings, as joint 12/22/93 tenants......................................... 800 $20,000 10/25/94 Mortimer B. Fuller, III......................... 2,400 $30,000
The sale to Mr. Fuller was upon exercise by him of stock options granted in 1978. All of the other sales were made following the Registrant's repurchase of the shares from a stockholder. All of the shares listed on the table were sold for cash except those sold to Mr. and Mrs. Hastings, for which Mr. Hastings executed a promissory note which has since been paid. On February 8, 1996, the Registrant issued to The First National Bank of Boston, for a purchase price of $0, a warrant to purchase 2,262 shares of common stock at an exercise price of $.01 per share. See "Management's Discussion and Analysis of Financial Condition and Results of Operations-- Liquidity and Capital Resources." In May 1994, Willamette & Pacific Railroad, Inc., a subsidiary of the Registrant, issued $990,000 in aggregate principal amount of Subordinated Secured Promissory Notes, guaranteed by the Registrant, to ten accredited investors, including four related parties. See "Certain Transactions." Each of the issuances of securities described above was made by private offering in reliance on the exemption from the registration provisions of the Act provided by Section 4(2) of the Act. II-2 ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) Exhibits filed as part of this Registration Statement:
EXHIBIT NUMBER DESCRIPTION ------- ----------- ***1.1 Form of Underwriting Agreement 3.1 Certificate of Incorporation and Certificates of Amendment dated October 12, 1989, February 21, 1991 and May 18, 1995 **3.2 Form of Restated Certificate of Incorporation 3.3 By-laws 4 The exhibits referenced under "3" hereof are incorporated herein by reference. ***4.1 Specimen stock certificate representing shares of Class A Common Stock. **4.2 Form of Class B Stockholders' Agreement dated as of May 20, 1996, among the Registrant, its executive officers and its Class B stockholders 4.3 Promissory Note dated December 28, 1989 of GWI Leasing Corporation in favor of Deutsche Credit Corporation 4.4 Railcar Finance Notes dated July 8, 1991 and November 27, 1991 of GWI Leasing Corporation in favor of Deutsche Credit Corporation 4.5 Railcar Finance Notes, dated November 27, 1991 and December 31, 1991 of GWI Leasing Corporation in favor of Deutsche Credit Corporation 4.6 Promissory Note dated October 7, 1991 of Buffalo & Pittsburgh Railroad, Inc. in favor of CSX Transportation, Inc. 4.7 Amended and Restated Loan and Security Agreement dated December 28, 1989 between GWI Leasing Corporation and Deutsche Credit Corporation, and Amendment No. 1 dated December 28, 1989 4.8 Loan and Security Agreement dated December 27, 1990 between GWI Leasing Corporation and Deutsche Credit Corporation, and Amendments dated June 28, 1991 and November 22, 1991 4.9 Guaranty dated December 27, 1990 of the Registrant in favor of Deutsche Credit Corporation 4.10 Amended and Restated Revolving Credit and Term Loan Agreement dated as of February 8, 1996 among the Registrant and certain of its Subsidiaries, The First National Bank of Boston, as agent, and the Banks party thereto 4.11 Revolving Credit Note dated as of February 8, 1996 of the Registrant and certain of its subsidiaries in favor of The First National Bank of Boston 4.12 Term Note dated as of February 8, 1996 of the Registrant and certain of its Subsidiaries in favor of The First National Bank of Boston 4.13 Amended and Restated Security Agreement dated as of February 8, 1996 among the Registrant, certain of its Subsidiaries and The First National Bank of Boston 4.14 Amended and Restated Stock Pledge Agreement dated as of February 8, 1996 between the Registrant and The First National Bank of Boston 4.15 Amended and Restated Collateral Assignment of Partnership Interests dated as of February 8, 1996 of the Registrant and GWI Dayton, Inc. in favor of The First National Bank of Boston **4.16 Amendment No. 1 to Amended and Restated Revolving Credit and Term Loan Agreement dated as of April 26, 1996 among the Registrant and certain of its Subsidiaries, The First National Bank of Boston, as agent and the Banks' party thereto. ***5.1 Opinion of Harter, Secrest & Emery 9.1 Voting Agreement and Stock Purchase Option dated March 21, 1980 among Mortimer B. Fuller, III, Mortimer B. Fuller, Jr. and Frances A. Fuller, and amendments thereto dated May 7, 1988 and March 29, 1996 10 The exhibits referenced under "4" hereof are incorporated herein by reference. **10.1 Form of Genesee & Wyoming Inc. 1996 Stock Option Plan **10.2 Form of Genesee & Wyoming Inc. Stock Option Plan for Outside Directors 10.3 Form of Employment Agreement between the Registrant and each of its executive officers **10.4 Form of Genesee & Wyoming Inc. Employee Stock Purchase Plan 10.5 Agreement dated December 7, 1994 between Allegheny & Eastern Railroad, Inc. and its Engineering Department Employees
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EXHIBIT NUMBER DESCRIPTION ------- ----------- 10.6 Agreement dated March 29, 1995 between Allegheny & Eastern Railroad, Inc. and its Mechanical Department Employees 10.7 Agreement dated July 1, 1992 between Buffalo & Pittsburgh Railroad, Inc. and its Car Repair Department Employees, and the proposed changes thereto dated September 16, 1994 10.8 Agreement dated December 1, 1994 between Buffalo & Pittsburgh Railroad, Inc. and its Engineering Department Employees 10.9 Agreement dated April 30, 1991 between Buffalo & Pittsburgh Railroad, Inc. and the American Train Dispatchers Association 10.10 Agreement dated February 9, 1995 between Buffalo & Pittsburgh Railroad, Inc. and the International Association of Machinists 10.11 Agreement dated August 22, 1994 between Buffalo & Pittsburgh Railroad, Inc. and the United Transportation Union (Train and Engine Service Employees) 10.12 Agreement dated November 7, 1994 between Buffalo & Pittsburgh Railroad, Inc. and the United Transportation Union (Representing Clerks and Storekeepers) 10.13 Agreement dated November 1, 1994 between Buffalo & Pittsburgh Railroad, Inc. and the United Transportation Union (Representing Yardmasters) 10.14 Agreement dated September 1, 1990 between Genesee & Wyoming Railroad Company and the United Transportation Union, and Tentative Agreement dated February 21, 1995 between Genesee & Wyoming Railroad Company and United Transportation Union Local Union 982 10.15 United Transportation Union Agreement dated May 1, 1994 between Rochester & Southern Railroad, Inc. and its employees represented by United Transportation Union 10.16 Shared Use Agreement for Albany Yard dated February 20, 1993 between Southern Pacific Transportation Company and Willamette & Pacific Railroad, Inc. 10.17 Trackage Rights Agreement (Albany-Eugene Yard) dated February 20, 1993 between Southern Pacific Transportation Company and Willamette & Pacific Railroad, Inc. 10.18 Westside Oregon Lines Cooperative Marketing Agreement dated February 20, 1993 between Willamette & Pacific Railroad, Inc. and Southern Pacific Transportation Company 10.19 Trackage Rights Agreement dated March 11, 1987 between Southern Pacific Transportation Company and Louisiana & Delta Railroad, Inc. 10.20 Trackage Rights Agreement dated July 1, 1986 between Rochester & Southern Railroad, Inc. and Genesee and Wyoming Railroad Company, and undated Modification 10.21 Master Supplemental Agreement dated October 7, 1991 between CSX Transportation, Inc., Buffalo, Rochester and Pittsburgh Railway Company and Buffalo & Pittsburgh Railroad, Inc. 10.22 Assignment and Assumption Agreement for the Allegheny and Western Railway Company Lease dated October 7, 1991 among CSX Transportation, Inc., Buffalo, Rochester and Pittsburgh Railway Company and Buffalo & Pittsburgh Railroad, Inc. 10.23 Mortgage and Assignment of Leases, Rents, Issues and Profits (New York) dated as of October 7, 1991 by Buffalo & Pittsburgh Railroad, Inc. in favor of CSX Transportation, Inc. 10.24 Security Agreement (New York) dated as of October 7, 1991 between Buffalo & Pittsburgh Railroad, Inc. and CSX Transportation, Inc. 10.25 Mortgage and Assignment of Leases, Rents, Issues and Profits (Pennsylvania) dated as of October 7, 1991 by Buffalo & Pittsburgh Railroad, Inc. in favor of CSX Transportation, Inc. 10.26 Security Agreement (Pennsylvania) dated as of October 7, 1991 between Buffalo & Pittsburgh Railroad, Inc. and CSX Transportation, Inc. 10.27 Lease Agreement for Real Property between Butler, Pennsylvania and Eidenau, Pennsylvania dated as of October 7, 1991 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.28 Lease Agreement for Personal Property associated with Butler to Eidenau dated as of October 7, 1991 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.29 Memorandum of Lease dated October 7, 1991 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc.
II-4
EXHIBIT NUMBER DESCRIPTION ------- ----------- +10.30 Lease Agreement for Real Property on the Northern Subdivision dated as of October 7, 1991 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. +10.31 Lease Agreement for Personal Property on the Northern Subdivision dated as of October 7, 1991 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.32 Lease Agreement for Real Property at Buffalo Creek Yard dated as of October 7, 1991 among CSX Transportation, Inc., Buffalo, Rochester and Pittsburgh Railway Company, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.33 Memorandum of Lease dated October 7, 1991 among CSX Transportation, Inc., Buffalo, Rochester and Pittsburgh Railway Company, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.34 Agreement Relating to Interchange at Buffalo, NY dated as of July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.35 Agreement Relating to Interchange at New Castle, PA dated as of July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.36 Agreement Relating to Trackage Rights between New Castle, PA and Eidenau, PA dated as of July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.37 Agreement Relating to Fallback Trackage Rights between Eidenau and WS Tower, PA dated as of July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. +10.38 Lease Agreement dated December 30, 1992 between Southern Pacific Transportation Company and Willamette & Pacific Railroad, Inc. 10.39 Lease Agreement dated September 1, 1994 between Railcar, Ltd. and GWI Leasing Corporation 10.40 Locomotive Lease Agreement and Letter Agreement (Equipment Schedule 01) dated October 17, 1994 between Keycorp Leasing Ltd. and GWI Leasing Corporation 10.41 Lease Agreement dated May 3, 1994 between Greenbrier Railcar, Inc. and GWI Leasing Corporation +10.42 Allegheny-International Paper Transportation Service Agreement dated November 24, 1992 between Allegheny & Eastern Railroad, Inc. and International Paper Company +10.43 Conrail-Allegheny Operating Contract dated November 24, 1992 between Consolidated Rail Corporation and Allegheny & Eastern Railroad, Inc. 10.44 Lease recorded December 19, 1881 between The Seneca Nation of New York Indians and The Great Valley & Bradford Railroad Co. 10.45 Assignment and Agreement dated September 20, 1994 among CMC Railroad I, Ltd., GWI Switching Services, L.P. and Southern Pacific Transportation Company +10.46 Buffalo Terminal Operating Agreement dated July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.47 First Amendment to Buffalo Terminal Operating Agreement dated December , 1990 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. +10.48 Operating Agreement and Car Storage Yard Agreement Consent to Assignments dated as of September 20, 1994 between NCC Charlie Company and GWI Switching Services L.P. with Exhibit I (Amended and Restated Car Storage Yard Agreement dated September 20, 1994 between Southern Pacific Transportation Company and CMC Railroad I, Ltd.) and Exhibit II (Amended and Restated Car Storage Yard Agreement dated September 20, 1994 between Southern Pacific Transportation Company and CMC Railroad I, Ltd.) 10.49 Trackage Rights Agreement dated March 12, 1994 between Southern Pacific Transportation Company and GWI Switching Services L.P. 10.50 First Amendment to Trackage Rights Agreement dated September 20, 1994 between Southern Pacific Transportation Company and GWI Switching Services L.P. 10.51 Indenture of Lease and Option to Purchase Agreement dated January 17, 1992 between Southern Pacific Transportation Company and Louisiana and Delta Railroad, Inc. 10.52 Lease Agreement dated November 7, 1991 between CIS Corporation and Buffalo & Pittsburgh Railroad, Inc.
II-5
EXHIBIT NUMBER DESCRIPTION ------- ----------- 10.53 Notice and Acknowledgement of Assignment dated as of November 1, 1993 between James P. Hassett as Trustee for CIS Corporation, Buffalo & Pittsburgh Railroad, Inc. and ATEL Financial Corporation 10.54 Agreement relating to Trackage Rights dated July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.55 Commercial Agreement dated March 11, 1987 between Louisiana & Delta Railroad, Inc. and Southern Pacific Transportation Company 10.56 Assignment and Assumption Agreement dated March 11, 1987 between Louisiana & Delta Railroad, Inc. and Southern Pacific Transportation Company 10.57 Administrative Agreement dated as of February 19, 1985 between Consolidated Rail Corporation and Genesee & Wyoming Railroad Company 10.58 Interchange Agreement (Goodman Street Yard) dated December 13, 1984 between Consolidated Rail Corporation and Genesee & Wyoming Railroad Company 10.59 Revolver A Note dated June 2, 1995 of the Registrant in favor of The First National Bank of Boston, as Agent 10.60 Revolver B Note dated June 2, 1995 of the Registrant in favor of The First National Bank of Boston, as Agent 10.61 Asset Purchase Agreement dated as of February 8, 1996 between Illinois & Midland Railroad, Inc. and Stanford PRC Acquisition Corp. 10.62 Guaranty dated as of February 8, 1996 of the Registrant in favor of Stanford PRC Acquisition Corp. 10.63 Assignment and Assumption Agreements dated as of February 8, 1996 between Chicago & Illinois Midland Railway Company and Illinois & Midland Railroad, Inc. (six) 10.64 Warrant Purchase Agreement dated as of February 8, 1996 between the Registrant and The First National Bank of Boston 10.65 Agreement dated February 6, 1996 between Illinois & Midland Railroad, Inc. and the United Transportation Union +10.66 Lease Agreement dated as of August 18, 1995 between Southern Pacific Transportation Company and Portland & Western Railroad, Inc. +10.67 Lease Agreement dated September 15, 1995 between Burlington Northern Railroad Company and Portland & Western Railroad, Inc. 10.68 Lease Agreement dated as of October 1, 1982 between Livingston County Industrial Development Agency and Genesee and Wyoming Railroad 10.69 Lease Agreement dated as of February 1, 1995 between Livingston County Industrial Development Agency and Genesee and Wyoming Railroad Company **+10.70 Asset Purchase Agreement dated April 19, 1996 among Pittsburg & Shawmut Railroad, Inc., Genesee & Wyoming Inc., The Pittsburg & Shawmut Railroad Company, Red Bank Railroad Company, Mountain Laurel Railroad Company and Arthur T. Walker Estate Corporation, and Amendment No. 1 to Asset Purchase Agreement dated April 19, 1996 **10.71 Amendment No. 1 to Warrant Purchase Agreement dated as of May 31, 1996 between the Registrant and FSC Corp. **11.1 Statement re computation of per share earnings 12.1 Exhibit has been omitted because the required information is included in the financial statements or notes thereto forming part of this Registration Statement. **21.1 Subsidiaries of the Registrant ***23.1 Consent of Arthur Andersen LLP ***23.2 Consent of Harter, Secrest & Emery (contained in Exhibit 5.1) 24.1 Officers' and Directors' Power of Attorney **27 Financial Data Schedule (EDGAR filed only)
- -------- ***Filed with this Amendment. **Filed with Amendment No. 1. + Confidential treatment requested as to certain portions, which have been filed separately with the Commission pursuant to an application for such treatment. II-6 (b) Financial Statement Schedules: All schedules have been omitted either as inapplicable or because the required information is included in the financial statements or notes thereto forming part of this Registration Statement. ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes to provide to the Underwriters at the closing specified in the Underwriting Agreement, certificates in such denominations and registered in such names as required by the Underwriters to permit prompt delivery to each purchaser. Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. The undersigned Registrant hereby undertakes that: (1) For the purpose of determining any liability under the Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this Registration Statement as of the time that it was declared effective. (2) For the purpose of determining any liability under the Act, each post-effective amendment that contains a form of prospectus 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. II-7 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT HAS DULY CAUSED THIS AMENDMENT NO. 2 TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW YORK, ON THE 12TH DAY OF JUNE, 1996. Genesee & Wyoming Inc. /s/ Mark W. Hastings By: _________________________________ MARK W. HASTINGS SENIOR VICE PRESIDENT PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT NO. 2 TO REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED AND ON THE 12TH DAY OF JUNE, 1996. SIGNATURE TITLE Chairman of the Board, President and * Chief Executive Officer (Principal - ------------------------------------- Executive Officer) MORTIMER B. FULLER, III /s/ Mark W. Hastings Senior Vice President, Chief - ------------------------------------- Financial Officer and Treasurer MARK W. HASTINGS (Principal Financial Officer) Senior Vice President and Chief * Accounting Officer (Principal - ------------------------------------- Accounting Officer) ALAN R. HARRIS * Director - ------------------------------------- JAMES M. FULLER * Director - ------------------------------------- LOUIS S. FULLER * Director - ------------------------------------- JOHN M. RANDOLPH * Director - ------------------------------------- PHILIP J. RINGO /s/ Mark W. Hastings *By: ________________________________ MARK W. HASTINGS ATTORNEY-IN-FACT II-8 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION ------- ----------- ***1.1 Form of Underwriting Agreement 3.1 Certificate of Incorporation and Certificates of Amendment dated October 12, 1989, February 21, 1991 and May 18, 1995 **3.2 Form of Restated Certificate of Incorporation 3.3 By-laws 4 The exhibits referenced under "3" hereof are incorporated herein by reference. ***4.1 Specimen stock certificate representing shares of Class A Common Stock. **4.2 Form of Class B Stockholders' Agreement dated as of May 20, 1996, among the Registrant, its executive officers and its Class B stockholders 4.3 Promissory Note dated December 28, 1989 of GWI Leasing Corporation in favor of Deutsche Credit Corporation 4.4 Railcar Finance Notes dated July 8, 1991 and November 27, 1991 of GWI Leasing Corporation in favor of Deutsche Credit Corporation 4.5 Railcar Finance Notes, dated November 27, 1991 and December 31, 1991 of GWI Leasing Corporation in favor of Deutsche Credit Corporation 4.6 Promissory Note dated October 7, 1991 of Buffalo & Pittsburgh Railroad, Inc. in favor of CSX Transportation, Inc. 4.7 Amended and Restated Loan and Security Agreement dated December 28, 1989 between GWI Leasing Corporation and Deutsche Credit Corporation, and Amendment No. 1 dated December 28, 1989 4.8 Loan and Security Agreement dated December 27, 1990 between GWI Leasing Corporation and Deutsche Credit Corporation, and Amendments dated June 28, 1991 and November 22, 1991 4.9 Guaranty dated December 27, 1990 of the Registrant in favor of Deutsche Credit Corporation 4.10 Amended and Restated Revolving Credit and Term Loan Agreement dated as of February 8, 1996 among the Registrant and certain of its Subsidiaries, The First National Bank of Boston, as agent, and the Banks party thereto 4.11 Revolving Credit Note dated as of February 8, 1996 of the Registrant and certain of its subsidiaries in favor of The First National Bank of Boston 4.12 Term Note dated as of February 8, 1996 of the Registrant and certain of its Subsidiaries in favor of The First National Bank of Boston 4.13 Amended and Restated Security Agreement dated as of February 8, 1996 among the Registrant, certain of its Subsidiaries and The First National Bank of Boston 4.14 Amended and Restated Stock Pledge Agreement dated as of February 8, 1996 between the Registrant and The First National Bank of Boston 4.15 Amended and Restated Collateral Assignment of Partnership Interests dated as of February 8, 1996 of the Registrant and GWI Dayton, Inc. in favor of The First National Bank of Boston **4.16 Amendment No. 1 to Amended and Restated Revolving Credit and Term Loan Agreement dated as of April 26, 1996 among the Registrant and certain of its Subsidiaries, The First National Bank of Boston, as agent and the Banks' party thereto. ***5.1 Opinion of Harter, Secrest & Emery 9.1 Voting Agreement and Stock Purchase Option dated March 21, 1980 among Mortimer B. Fuller, III, Mortimer B. Fuller, Jr. and Frances A. Fuller, and amendments thereto dated May 7, 1988 and March 29, 1996 10 The exhibits referenced under "4" hereof are incorporated herein by reference. **10.1 Form of Genesee & Wyoming Inc. 1996 Stock Option Plan **10.2 Form of Genesee & Wyoming Inc. Stock Option Plan for Outside Directors 10.3 Form of Employment Agreement between the Registrant and each of its executive officers **10.4 Form of Genesee & Wyoming Inc. Employee Stock Purchase Plan 10.5 Agreement dated December 7, 1994 between Allegheny & Eastern Railroad, Inc. and its Engineering Department Employees
EXHIBIT NUMBER DESCRIPTION ------- ----------- 10.6 Agreement dated March 29, 1995 between Allegheny & Eastern Railroad, Inc. and its Mechanical Department Employees 10.7 Agreement dated July 1, 1992 between Buffalo & Pittsburgh Railroad, Inc. and its Car Repair Department Employees, and the proposed changes thereto dated September 16, 1994 10.8 Agreement dated December 1, 1994 between Buffalo & Pittsburgh Railroad, Inc. and its Engineering Department Employees 10.9 Agreement dated April 30, 1991 between Buffalo & Pittsburgh Railroad, Inc. and the American Train Dispatchers Association 10.10 Agreement dated February 9, 1995 between Buffalo & Pittsburgh Railroad, Inc. and the International Association of Machinists 10.11 Agreement dated August 22, 1994 between Buffalo & Pittsburgh Railroad, Inc. and the United Transportation Union (Train and Engine Service Employees) 10.12 Agreement dated November 7, 1994 between Buffalo & Pittsburgh Railroad, Inc. and the United Transportation Union (Representing Clerks and Storekeepers) 10.13 Agreement dated November 1, 1994 between Buffalo & Pittsburgh Railroad, Inc. and the United Transportation Union (Representing Yardmasters) 10.14 Agreement dated September 1, 1990 between Genesee & Wyoming Railroad Company and the United Transportation Union, and Tentative Agreement dated February 21, 1995 between Genesee & Wyoming Railroad Company and United Transportation Union Local Union 982 10.15 United Transportation Union Agreement dated May 1, 1994 between Rochester & Southern Railroad, Inc. and its employees represented by United Transportation Union 10.16 Shared Use Agreement for Albany Yard dated February 20, 1993 between Southern Pacific Transportation Company and Willamette & Pacific Railroad, Inc. 10.17 Trackage Rights Agreement (Albany-Eugene Yard) dated February 20, 1993 between Southern Pacific Transportation Company and Willamette & Pacific Railroad, Inc. 10.18 Westside Oregon Lines Cooperative Marketing Agreement dated February 20, 1993 between Willamette & Pacific Railroad, Inc. and Southern Pacific Transportation Company 10.19 Trackage Rights Agreement dated March 11, 1987 between Southern Pacific Transportation Company and Louisiana & Delta Railroad, Inc. 10.20 Trackage Rights Agreement dated July 1, 1986 between Rochester & Southern Railroad, Inc. and Genesee and Wyoming Railroad Company, and undated Modification 10.21 Master Supplemental Agreement dated October 7, 1991 between CSX Transportation, Inc., Buffalo, Rochester and Pittsburgh Railway Company and Buffalo & Pittsburgh Railroad, Inc. 10.22 Assignment and Assumption Agreement for the Allegheny and Western Railway Company Lease dated October 7, 1991 among CSX Transportation, Inc., Buffalo, Rochester and Pittsburgh Railway Company and Buffalo & Pittsburgh Railroad, Inc. 10.23 Mortgage and Assignment of Leases, Rents, Issues and Profits (New York) dated as of October 7, 1991 by Buffalo & Pittsburgh Railroad, Inc. in favor of CSX Transportation, Inc. 10.24 Security Agreement (New York) dated as of October 7, 1991 between Buffalo & Pittsburgh Railroad, Inc. and CSX Transportation, Inc. 10.25 Mortgage and Assignment of Leases, Rents, Issues and Profits (Pennsylvania) dated as of October 7, 1991 by Buffalo & Pittsburgh Railroad, Inc. in favor of CSX Transportation, Inc. 10.26 Security Agreement (Pennsylvania) dated as of October 7, 1991 between Buffalo & Pittsburgh Railroad, Inc. and CSX Transportation, Inc. 10.27 Lease Agreement for Real Property between Butler, Pennsylvania and Eidenau, Pennsylvania dated as of October 7, 1991 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.28 Lease Agreement for Personal Property associated with Butler to Eidenau dated as of October 7, 1991 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.29 Memorandum of Lease dated October 7, 1991 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc.
EXHIBIT NUMBER DESCRIPTION ------- ----------- +10.30 Lease Agreement for Real Property on the Northern Subdivision dated as of October 7, 1991 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. +10.31 Lease Agreement for Personal Property on the Northern Subdivision dated as of October 7, 1991 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.32 Lease Agreement for Real Property at Buffalo Creek Yard dated as of October 7, 1991 among CSX Transportation, Inc., Buffalo, Rochester and Pittsburgh Railway Company, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.33 Memorandum of Lease dated October 7, 1991 among CSX Transportation, Inc., Buffalo, Rochester and Pittsburgh Railway Company, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.34 Agreement Relating to Interchange at Buffalo, NY dated as of July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.35 Agreement Relating to Interchange at New Castle, PA dated as of July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.36 Agreement Relating to Trackage Rights between New Castle, PA and Eidenau, PA dated as of July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.37 Agreement Relating to Fallback Trackage Rights between Eidenau and WS Tower, PA dated as of July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. +10.38 Lease Agreement dated December 30, 1992 between Southern Pacific Transportation Company and Willamette & Pacific Railroad, Inc. 10.39 Lease Agreement dated September 1, 1994 between Railcar, Ltd. and GWI Leasing Corporation 10.40 Locomotive Lease Agreement and Letter Agreement (Equipment Schedule 01) dated October 17, 1994 between Keycorp Leasing Ltd. and GWI Leasing Corporation 10.41 Lease Agreement dated May 3, 1994 between Greenbrier Railcar, Inc. and GWI Leasing Corporation +10.42 Allegheny-International Paper Transportation Service Agreement dated November 24, 1992 between Allegheny & Eastern Railroad, Inc. and International Paper Company +10.43 Conrail-Allegheny Operating Contract dated November 24, 1992 between Consolidated Rail Corporation and Allegheny & Eastern Railroad, Inc. 10.44 Lease recorded December 19, 1881 between The Seneca Nation of New York Indians and The Great Valley & Bradford Railroad Co. 10.45 Assignment and Agreement dated September 20, 1994 among CMC Railroad I, Ltd., GWI Switching Services, L.P. and Southern Pacific Transportation Company +10.46 Buffalo Terminal Operating Agreement dated July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.47 First Amendment to Buffalo Terminal Operating Agreement dated December , 1990 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. +10.48 Operating Agreement and Car Storage Yard Agreement Consent to Assignments dated as of September 20, 1994 between NCC Charlie Company and GWI Switching Services L.P. with Exhibit I (Amended and Restated Car Storage Yard Agreement dated September 20, 1994 between Southern Pacific Transportation Company and CMC Railroad I, Ltd.) and Exhibit II (Amended and Restated Car Storage Yard Agreement dated September 20, 1994 between Southern Pacific Transportation Company and CMC Railroad I, Ltd.) 10.49 Trackage Rights Agreement dated March 12, 1994 between Southern Pacific Transportation Company and GWI Switching Services L.P. 10.50 First Amendment to Trackage Rights Agreement dated September 20, 1994 between Southern Pacific Transportation Company and GWI Switching Services L.P. 10.51 Indenture of Lease and Option to Purchase Agreement dated January 17, 1992 between Southern Pacific Transportation Company and Louisiana and Delta Railroad, Inc. 10.52 Lease Agreement dated November 7, 1991 between CIS Corporation and Buffalo & Pittsburgh Railroad, Inc.
EXHIBIT NUMBER DESCRIPTION ------- ----------- 10.53 Notice and Acknowledgement of Assignment dated as of November 1, 1993 between James P. Hassett as Trustee for CIS Corporation, Buffalo & Pittsburgh Railroad, Inc. and ATEL Financial Corporation 10.54 Agreement relating to Trackage Rights dated July 18, 1988 between CSX Transportation, Inc. and Buffalo & Pittsburgh Railroad, Inc. 10.55 Commercial Agreement dated March 11, 1987 between Louisiana & Delta Railroad, Inc. and Southern Pacific Transportation Company 10.56 Assignment and Assumption Agreement dated March 11, 1987 between Louisiana & Delta Railroad, Inc. and Southern Pacific Transportation Company 10.57 Administrative Agreement dated as of February 19, 1985 between Consolidated Rail Corporation and Genesee & Wyoming Railroad Company 10.58 Interchange Agreement (Goodman Street Yard) dated December 13, 1984 between Consolidated Rail Corporation and Genesee & Wyoming Railroad Company 10.59 Revolver A Note dated June 2, 1995 of the Registrant in favor of The First National Bank of Boston, as Agent 10.60 Revolver B Note dated June 2, 1995 of the Registrant in favor of The First National Bank of Boston, as Agent 10.61 Asset Purchase Agreement dated as of February 8, 1996 between Illinois & Midland Railroad, Inc. and Stanford PRC Acquisition Corp. 10.62 Guaranty dated as of February 8, 1996 of the Registrant in favor of Stanford PRC Acquisition Corp. 10.63 Assignment and Assumption Agreements dated as of February 8, 1996 between Chicago & Illinois Midland Railway Company and Illinois & Midland Railroad, Inc. (six) 10.64 Warrant Purchase Agreement dated as of February 8, 1996 between the Registrant and The First National Bank of Boston 10.65 Agreement dated February 6, 1996 between Illinois & Midland Railroad, Inc. and the United Transportation Union +10.66 Lease Agreement dated as of August 18, 1995 between Southern Pacific Transportation Company and Portland & Western Railroad, Inc. +10.67 Lease Agreement dated September 15, 1995 between Burlington Northern Railroad Company and Portland & Western Railroad, Inc. 10.68 Lease Agreement dated as of October 1, 1982 between Livingston County Industrial Development Agency and Genesee and Wyoming Railroad 10.69 Lease Agreement dated as of February 1, 1995 between Livingston County Industrial Development Agency and Genesee and Wyoming Railroad Company **+10.70 Asset Purchase Agreement dated April 19, 1996 among Pittsburg & Shawmut Railroad, Inc., Genesee & Wyoming Inc., The Pittsburg & Shawmut Railroad Company, Red Bank Railroad Company, Mountain Laurel Railroad Company and Arthur T. Walker Estate Corporation, and Amendment No. 1 to Asset Purchase Agreement dated April 19, 1996 **10.71 Amendment No. 1 to Warrant Purchase Agreement dated as of May 31, 1996 between the Registrant and FSC Corp. **11.1 Statement re computation of per share earnings 12.1 Exhibit has been omitted because the required information is included in the financial statements or notes thereto forming part of this Registration Statement. **21.1 Subsidiaries of the Registrant ***23.1 Consent of Arthur Andersen LLP ***23.2 Consent of Harter, Secrest & Emery (contained in Exhibit 5.1) 24.1 Officers' and Directors' Power of Attorney **27 Financial Data Schedule (EDGAR filed only)
- -------- ***Filed with this Amendment. **Filed with Amendment No. 1. + Confidential treatment requested as to certain portions, which have been filed separately with the Commission pursuant to an application for such treatment. EX-1.1 2 UNDERWRITING AGREEMENT EXHIBIT 1.1 GENESEE & WYOMING INC. 3,045,200 Shares Class A Common Stock (Par Value $.01 Per Share) ___________________________ UNDERWRITING AGREEMENT New York, New York June __, 1996 SCHRODER WERTHEIM & CO. INCORPORATED FURMAN SELZ LLC As Representatives of the several Underwriters named in Schedule I hereto c/o Schroder Wertheim & Co. Incorporated Equitable Center 797 Seventh Avenue New York, New York 10019-6016 Ladies and Gentlemen: Genesee & Wyoming Inc., a Delaware corporation (the "Company"), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters"), an aggregate of 2,500,000 shares of Class A Common Stock, par value $.01 per share (the "Class A Common Stock"), and Ryder/ATE, Inc., a Delaware corporation (the "Selling Stockholder"), proposes, subject to the terms and conditions stated herein, to sell to the Underwriters an aggregate of 148,000 shares of Class A Common Stock. The 2,648,000 shares of Class A Common Stock to be sold by the Company and the Selling Stockholder are herein referred to as the "Firm Securities." In addition, the Company proposes to grant to the Underwriters an option to purchase up to an additional 397,200 shares of Class A Common Stock (the "Option Securities"), on the terms and for the purposes set forth in Section 2 hereof. The Firm Securities and the Option Securities are herein collectively referred to as the "Securities." Except as may be expressly set forth below, any reference to you in this Agreement shall be solely in your capacity as the Representatives. 2 1A. The Company represents and warrants to, and agrees with, each of the Underwriters that: (a) A registration statement on Form S-1 (File No. 333-3972), and as a part thereof a preliminary prospectus, in respect of the Securities, has been filed with the Securities and Exchange Commission (the "Commission") in the form heretofore delivered to you and, with the exception of exhibits to the registration statement, to you for each of the other Underwriters; if such registration statement has not become effective, an amendment (the "Final Amendment") to such registration statement, including a form of final prospectus, necessary to permit such registration statement to become effective, will promptly be filed by the Company with the Commission; if such registration statement has become effective and any post-effective amendment to such registration statement has been filed with the Commission prior to the execution and delivery of this Agreement, which amendment or amendments shall be in form acceptable to you, the most recent such amendment has been declared effective by the Commission; if such registration statement has become effective, a final prospectus (the "Rule 430A Prospectus") relating to the Securities containing information permitted to be omitted at the time of effectiveness by Rule 430A of the rules and regulations of the Commission under the Securities Act of 1933, as amended (the "Act"), will promptly be filed by the Company pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act (any preliminary prospectus filed as part of such registration statement being herein called a "Preliminary Prospectus," such registration statement as amended at the time that it becomes or became effective, or, if applicable, as amended at the time the most recent post-effective amendment to such registration statement filed with the Commission prior to the execution and delivery of this Agreement became effective (the "Effective Date"), including all exhibits thereto and all information deemed to be a part thereof at such time pursuant to Rule 430A of the rules and regulations of the Commission under the Act, being herein called the "Registration Statement" and the final prospectus relating to the Securities in the form first filed pursuant to Rule 424(b)(1) or (4) of the rules and regulations of the Commission under the Act or, if no such filing is required, the form of final prospectus included in the Registration Statement, being herein called the "Prospectus"); (b) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made 3 in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through you expressly for use therein; (c) On the Effective Date and the date the Prospectus is filed with the Commission, and when any further amendment or supplements thereto become effective or are filed with the Commission, as the case may be, the Registration Statement, the Prospectus and such amendment or supplements did and will conform in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through you expressly for use therein; (d) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and to conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases property, or conducts any business, so as to require such qualification (except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the business affairs or prospects of the Company and its subsidiaries, taken as a whole); and each of the Company's subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with power and authority (corporate and other) to own its properties and to conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases property, or conducts any business, so as to require such qualification (except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the business affairs or prospects of the Company and its subsidiaries, taken as a whole); (e) All the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned by the Company free and clear of all liens, encumbrances, equities, security interests or claims, except for (i) liens, encumbrances and security interests in favor of The First National Bank of Boston, as agent for a syndicate of banks (the "Bank of Boston") and (ii) the effect of certain voting trusts with respect to the capital stock of Portland & Western Railroad, Inc. and Pittsburg & Shawmut Railroad, Inc. (the "Voting Trusts"); there are no outstanding options, warrants or other rights calling for the issuance of, and there are no commitments, plans or arrangements to 4 issue, any shares of capital stock of any subsidiary or any security convertible or exchangeable or exercisable for capital stock of any subsidiary; all the partnership interests in GWI Switching Services, L.P., a Texas limited partnership ("GWI Switching"), have been duly and validly authorized and issued, are fully paid and non-assessable and are owned by Genesee & Wyoming Investors, Inc. and GWI Dayton, Inc. free and clear of all liens, encumbrances, equities, security interests or claims, except for liens, encumbrances and security interests in favor of the Bank of Boston; there are no commitments, plans or arrangements to issue any further partnership interests in GWI Switching; except for (i) the shares of stock of each subsidiary owned by the Company, (ii) the partnership interests in GWI Switching owned by Genesee & Wyoming Investors, Inc. and GWI Dayton, Inc., and (iii) Finger Lakes Railway Corporation, neither the Company nor any subsidiary owns, directly or indirectly, any shares of capital stock of any corporation or have any equity interest in any firm, partnership, joint venture, association or other entity; and except for (i) Kittanning Equipment Leasing Company, a Pennsylvania corporation wholly owned by Pittsburg & Shawmut Railroad, Inc., which has no assets (other than certain permits) or liabilities in excess of $10,000, (ii) Breaux Bridge Railroad Inc., a Delaware corporation which was incorporated but never capitalized, the only subsidiaries of the Company are listed on Exhibit 21.1 to the Registration Statement. (f) The Company has all requisite power and authority to execute, deliver and perform its obligations under this Agreement; the execution, delivery and performance by the Company of its obligations under this Agreement have been duly and validly authorized by all requisite corporate action of the Company; and this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms; (g) Except as disclosed in the Registration Statement, neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, which loss or interference is material to the Company and its subsidiaries, taken as a whole; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been, and prior to the Time of Delivery (as defined in Section 4 hereof) there will not be, any change in the capital stock (other than shares issued pursuant to exercise of employee or director stock options that the Prospectus indicates are outstanding (the "Employee Option Shares"), exercise of the Warrant issued to the Bank of Boston (the "Bank Warrant") or conversion of shares of Class B Common Stock into shares of Class A Common Stock) or short-term debt or long-term debt of the Company or any of its subsidiaries, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, 5 stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; (h) The Company and its subsidiaries have good and marketable title to all real property owned in fee simple and good title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in or contemplated by the Prospectus, or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries, and any real property, buildings and personal property held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such real property, buildings and personal property by the Company and its subsidiaries; (i) The Company has an authorized, issued and outstanding capitalization as set forth in the Registration Statement, and all the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable, are free of any preemptive rights, rights of first refusal or similar rights (except as provided by the Bank Warrant or that certain Class B Stockholders' Agreement dated as of May 20, 1996), were issued and sold in compliance with the applicable federal and state securities laws and conform in all material respects to the description in the Prospectus; except as described in the Prospectus, there are no outstanding options, warrants or other rights calling for the issuance of, and there are no commitments, plans or arrangements to issue, any shares of capital stock of the Company or any security convertible or exchangeable or exercisable for capital stock of the Company; there are no holders of securities of the Company who, by reason of the filing of the Registration Statement, have the right (and have not waived such right) to request the Company to include in the Registration Statement securities owned by them; (j) The Securities to be sold by the Company and the Selling Stockholder to the Underwriters hereunder have been duly and validly authorized, the Securities to be sold by the Selling Stockholder are and, when issued and delivered against payment therefor as provided herein, the Securities to be sold by the Company will be, duly and validly issued, fully paid and non-assessable, and the Securities to be sold hereunder will conform in all material respects to the description thereof in the Prospectus and will be quoted on the Nasdaq National Market as of the Effective Date; (k) The performance of this Agreement, the consummation of the transactions herein contemplated and the issue and sale of the Securities and the compliance by the Company with all the provisions of this Agreement will not 6 conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge, claim, or encumbrance upon, any of the property or assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such action result in any violation of the provisions of the Certificate of Incorporation or the By-laws, in each case as amended to the date hereof, of the Company or any of its subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Securities or the consummation of the other transactions contemplated by this Agreement, except the registration under the Act of the Securities, and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters; (l) There are no legal or governmental proceedings pending to which the Company or any of its subsidiaries or any of their respective officers or directors is a party or of which any property of the Company or any of its subsidiaries is the subject, other than litigation or proceedings incident to the business conducted by the Company and its subsidiaries which will not individually or in the aggregate have a material adverse effect on the current or future financial position, stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened or contemplated by others; and neither the Company nor any of its subsidiaries is involved in any labor dispute, nor, to the Company's knowledge, is any labor dispute threatened; (m) The Company and its subsidiaries have such licenses, consents, orders, certificates, permits and other approvals or authorizations of and from governmental or regulatory authorities ("Permits") as are necessary under applicable law to own their respective properties and to conduct their respective businesses in the manner now being conducted and as described in the Prospectus; and the Company and its subsidiaries have fulfilled and performed in all material respects all of their respective obligations with respect to such Permits, including having made all declarations and filings with all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, and no event has occurred which allows, or after notice or lapse of time or both would allow, revocation or termination thereof or result in any other material impairment of the rights of the Company and its subsidiaries with respect to such Permits; 7 (n) Arthur Andersen LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included in the Registration Statement and the Prospectus, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder; (o) The consolidated financial statements and schedules of the Company and its subsidiaries included in the Registration Statement and the Prospectus present fairly the financial condition, the results of operations and the cash flows of the Company and its subsidiaries as of the dates and for the periods therein specified in conformity with generally accepted accounting principles consistently applied throughout the periods involved, except as otherwise stated therein; and the other financial and statistical information and data set forth in the Registration Statement and the Prospectus is accurately presented and, to the extent such information and data is derived from the financial statements and books and records of the Company and its subsidiaries, is prepared on a basis consistent with such financial statements and the books and records of the Company and its subsidiaries; the pro forma financial information included in the Registration Statement and the Prospectus have been properly compiled and comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X of the Commission; no other financial statements or schedules are required to be included in the Registration Statement and the Prospectus; (p) There are no statutes or governmental regulations, or any contracts or other documents that are required to be described in or filed as exhibits to the Registration Statement which are not described therein or filed as exhibits thereto; and all such contracts to which the Company or any subsidiary is a party have been duly authorized, executed and delivered by the Company or such subsidiary, constitute valid and binding agreements of the Company or such subsidiary and are enforceable against the Company or subsidiary in accordance with the terms thereof; (q) The Company and its subsidiaries own or possess adequate patent rights or licenses or other rights to use patent rights, inventions, trademarks, service marks, trade names, copyrights, technology and know-how necessary to conduct the general business now or proposed to be operated by them as described in the Prospectus; neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any patent, patent rights, inventions, trademarks, service marks, trade names, copyrights, technology or know-how which, singly or in the aggregate, could materially adversely affect the business, operations, financial condition, income or business prospects of the Company and its subsidiaries considered as a whole; 8 (r) Neither the Company nor any of its subsidiaries is in violation of (i) any term or provision of its Certificate of Incorporation or By-Laws (or similar corporate constituent documents), in each case as amended to the date hereof, or (ii) any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any of its subsidiaries, or of any decree of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries except, in the case of clause (ii), any such violation which individually or in the aggregate would not have any material adverse effect on the property, business or operations of the Company and its subsidiaries taken as a whole; (s) No default exists, and no event has occurred which with notice or lapse of time, or both, would constitute a default in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, bank loan or credit agreement, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which any of them or their respective properties is bound or may be affected, except any such default or event which individually or in the aggregate would not have any material adverse effect on the property, business or operations of the Company and its subsidiaries taken as a whole; (t) The Company and its subsidiaries have timely filed all necessary tax returns and notices and have paid all federal, state, county, local and foreign taxes of any nature whatsoever for all tax years through December 31, 1995, to the extent such taxes have become due. The Company has no knowledge, or any reasonable grounds to know, of any tax deficiencies which would have a material adverse effect on the Company or any of its subsidiaries; the Company and its subsidiaries have paid all taxes which have become due, whether pursuant to any assessments, or otherwise, and there is no further liability (whether or not disclosed on such returns) or assessments for any such taxes, and no interest or penalties accrued or accruing with respect thereto, except as may be set forth or adequately reserved for in the financial statements included in the Registration Statement; the amounts currently set up as provisions for taxes or otherwise by the Company and its subsidiaries on their books and records are sufficient for the payment of all their unpaid federal, foreign, state, county and local taxes accrued through the dates as of which they speak, and for which the Company and its subsidiaries may be liable in their own right, or as a transferee of the assets of, or as successor to any other corporation, association, partnership, joint venture or other entity; (u) Except for holders of the Bank Warrant, there are no holders of Class A Common Stock or of securities convertible into or exchangeable for Class A Common Stock who are, or within a period of 180 days after the date of the initial public offering of the Securities will be, entitled to demand that the Company register under the Act any shares of Class A Common Stock owned by them or include any 9 shares of Class A Common Stock owned by them in a registration under the Act made by Company on its own behalf. (v) The Company and its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; (w) The Company and its subsidiaries are (i) in compliance with any and all applicable federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), except to the extent that any non-compliance with such laws and regulations may be set forth in the Prospectus, (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; (x) Neither the Company nor any of its subsidiaries is in violation of any federal or state law relating to discrimination in the hiring, promotion or paying of employees nor any applicable federal or state wages and hours laws, nor any provisions of the Employee Retirement Income Security Act of 1974, as amended, or the rules and regulations promulgated thereunder, where such violation would have a material adverse effect on the Company and its subsidiaries, taken as a whole; (y) In the ordinary course of its business, the Company conducts pre- acquisition investigations of new railroad properties to identify potential violations of Environmental Laws, trains management personnel in the recognition of and proper response to incidents of noncompliance with Environmental Laws and establishes procedures for communicating such incidents to Company headquarters. On the basis of such activities, the Company has reasonably concluded that potential environmental costs and liabilities arising out of or relating to (i) any event which has occurred on or prior to the date hereof or (ii) any condition which exists on the date hereof would 10 not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; (z) Except for an inadvertent excess political contribution of $250 which has been refunded, none of the Company or its subsidiaries, or its officers, directors, employees or agents, has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, or made any unlawful payment of funds of the Company or any subsidiary or received or retained any funds in violation of any law, rule or regulation; (aa) None of the Company or its subsidiaries, or its officers, directors, employees or agents, have taken or will take, directly or indirectly, any action designed to or which has constituted or that might be reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities; (bb) The Company is not an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended; (cc) The Company has complied with all provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida); and (dd) Any certificate signed by any officer of the Company or any subsidiary and delivered to you or Shearman & Sterling as counsel for the Underwriters pursuant to this Agreement or transactions contemplated hereby shall be deemed a representation and warranty by the Company or such subsidiary, as the case may be, to the Underwriters as to the matters covered thereby. 1B. The Selling Stockholder represents and warrants to, and agrees with, each of the Underwriters that: (a) The Selling Stockholder has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware; and this Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder; (b) The execution and delivery by the Selling Stockholder of, and the performance by the Selling Stockholder of its obligations under, this Agreement, the Irrevocable Power of Attorney and Custody Agreement signed by the Selling Stockholder and the Company, as custodian, relating to the deposit of the Securities to be sold by the Selling Stockholder and the appointment of certain individuals as the Selling Stockholder's attorneys- in-fact to the extent set forth therein, relating to the 11 transactions contemplated hereby and by the Registration Statement (the "Power of Attorney and Custody Agreement") will not contravene any provision of applicable law, or the certificate of incorporation or by-laws of the Selling Stockholder, or any agreement or other instrument binding upon the Selling Stockholder or any judgement, order or decree of any governmental body, agency or court having jurisdiction over the Selling Stockholder, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Selling Stockholder of its obligations under this Agreement or the Power of Attorney and Custody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities; (c) The Selling Stockholder has, and at the Time of Delivery will have, valid marketable title to the Securities to be sold by it and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Power of Attorney and Custody Agreement and to sell, transfer and deliver the Securities to be sold by the Selling Stockholder; (d) The Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by the Selling Stockholder and is a legal, valid and binding obligation of the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms; (e) Delivery of the Securities to be sold by the Selling Stockholder pursuant to this Agreement will pass marketable title to such Securities free and clear of any security interests, claims, liens, equities and other encumbrances; and (f) All information furnished by or on behalf of the Selling Stockholder for use in the Registration Statement and Prospectus is, and at the Time of Delivery will be, true, correct, and complete, and does not, and at the Time of Delivery will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading. 2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate of 2,500,000 Firm Securities, the Selling Stockholder agrees to sell to the several Underwriters an aggregate of 148,000 Firm Securities, and each of the Underwriters agrees to purchase from the Company and the Selling Stockholder, at a purchase price of $_____ per share, the respective aggregate number of Firm Securities determined in the manner set forth below. The obligation of each Underwriter to the Company and the Selling Stockholder, respectively, shall be to purchase that portion of the number of shares of Class A Common Stock to be sold by the Company or the Selling Stockholder pursuant to this Agreement as the number of Firm Securities set forth opposite the name of such Underwriter on Schedule I bears to the 12 total number of Firm Securities to be purchased by the Underwriters pursuant to this Agreement, in each case adjusted by you such that no Underwriter shall be obligated to purchase Firm Securities other than in 100 share amounts. In making this Agreement, each Underwriter is contracting severally and not jointly. In addition, subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the Underwriters, as required (for the sole purpose of covering over-allotments in the sale of the Firm Securities), up to 397,200 Option Securities at the purchase price per share of the Firm Securities being sold by the Company as stated in the preceding paragraph. The right to purchase the Option Securities may be exercised by your giving 48 hours' prior written or telephonic notice (subsequently confirmed in writing) to the Company of your determination to purchase all or a portion of the Option Securities. Such notice may be given at any time within a period of 30 days following the date of this Agreement. Option Securities shall be purchased severally for the account of each Underwriter in proportion to the number of Firm Securities set forth opposite the name of such Underwriter in Schedule I hereto. No Option Securities shall be delivered to or for the accounts of the Underwriters unless the Firm Securities shall be simultaneously delivered or shall theretofore have been delivered as herein provided. The respective purchase obligations of each Underwriter shall be adjusted by you so that no Underwriter shall be obligated to purchase Option Securities other than in 100 share amounts. The Underwriters may cancel any purchase of Option Securities at any time prior to the Option Securities Delivery Date (as defined in Section 4 hereof) by giving written notice of such cancellation to the Company. 3. The Underwriters propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus. 4. Certificates in definitive form for the Firm Securities to be purchased by each Underwriter hereunder shall be delivered by or on behalf of the Company and the Selling Stockholder to you for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by certified or official bank check or checks, payable in New York Clearing House funds, to the order of the Company, for the purchase price of the Firm Securities being sold by the Company, and to the order of the Selling Stockholder for the purchase price of the Firm Securities being sold by the Selling Stockholder, at the office of Schroder Wertheim & Co. Incorporated, Equitable Center, 787 Seventh Avenue, New York, New York, at 9:30 A.M., New York City time, on _________ __, 1996, or at such other time, date and place as you and the Company may agree upon in writing, such time and date being herein called the "Time of Delivery." Certificates in definitive form for the Option Securities to be purchased by each Underwriter hereunder shall be delivered by or on behalf of the Company to you for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price thereof by certified or official bank check or checks, payable in New York 13 Clearing House funds, to the order of the Company, for the purchase price of the Option Securities, in New York, New York, at such time and on such date (not earlier than the Time of Delivery nor later than ten business days after giving of the notice delivered by you to the Company with reference thereto) and in such denominations and registered in such names as shall be specified in the notice delivered by you to the Company with respect to the purchase of such Option Securities. The date and time of such delivery and payment are herein sometimes referred to as the "Option Securities Delivery Date." The obligations of the Underwriters shall be subject, in their discretion, to the condition that there shall be delivered to the Underwriters on the Option Securities Delivery Date opinions and certificates, dated such Option Securities Delivery Date, referring to the Option Securities, instead of the Firm Securities, but otherwise to the same effect as those required to be delivered at the Time of Delivery pursuant to Sections 7(d), 7(e), 7(f), 7(g) and 7(j). Certificates for the Firm Securities and the Option Securities so to be delivered will be in good delivery form, and in such denominations and registered in such names as you may request not less than 48 hours prior to the Time of Delivery and the Option Securities Delivery Date, respectively. Such certificates will be made available for checking and packaging in New York, New York, at least 24 hours prior to the Time of Delivery and Option Securities Delivery Date. 5. (a) The Company covenants and agrees with each of the Underwriters: (i) If the Registration Statement has not become effective, to file promptly the Final Amendment with the Commission and use its best efforts to cause the Registration Statement to become effective; if the Registration Statement has become effective, to file promptly the Rule 430A Prospectus with the Commission; to make no further amendment or any supplement to the Registration Statement or Prospectus which shall be disapproved by you after reasonable notice thereof; to advise you, promptly after it receives notice thereof of the time when the Registration Statement, or any amendment thereto, or any amended Registration Statement has become effective or any supplement to the Prospectus or any amended Prospectus has been filed, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain withdrawal of such order; (ii) Promptly from time to time to take such action as you may request to qualify the Securities for offering and sale under the securities or Blue Sky laws of 14 such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (iii) To furnish each of the Representatives and counsel for the Underwriters, without change, signed copies of the Registration Statement originally filed with respect to the Securities and each amendment thereto (in each case including all exhibits thereto) and to each other Underwriter, without change, a conformed copy of such Registration Statement and each amendment thereto (in each case without exhibits thereto) and, so long as a prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Preliminary Prospectus, the Prospectus and all amendments or supplements thereto as you may from time to time reasonably request. If at any time when a prospectus is required to be delivered under the Act an event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Act, the Company will forthwith prepare and, subject to the provisions of Section 5(a) hereof, file with the Commission an appropriate supplement or amendment thereto, and will furnish to each Underwriter and to any dealer in securities, without charge, as many copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance in accordance with the requirements of Section 10 of the Act; (iv) To make generally available to its stockholders as soon as practicable, but in any event not later than 60 days after the close of the period covered thereby, an earnings statement in form complying with the provisions of Section 11(a) of the Act covering a period of 12 consecutive months beginning not later than the first day of the Company's fiscal quarter next following the Effective Date; (v) To file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to the Effective Date and during any period when the Prospectus is required to be delivered; (vi) For a period of five years from the Effective Date, to furnish to its stockholders after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, cash flow and stockholders' equity of the Company and its subsidiaries certified by independent public 15 accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the Effective Date), consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; (vii) During a period of five years from the Effective Date, to furnish to you copies of all reports or other communications (financial or other) furnished to its stockholders, and deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request in connection with your obligations hereunder; (viii) To apply the net proceeds from the sale of the Securities in the manner set forth in the Prospectus under the caption "Use of Proceeds"; (ix) That it will not, during the period of 180 days after the date hereof (other than pursuant to this Agreement), offer, sell, contract to sell or otherwise dispose of any capital stock of the Company (or securities convertible into, or exchangeable for, capital stock of the Company), directly or indirectly, without the prior written consent of Schroder Wertheim & Co. Incorporated, except for (i) grants or exercises of stock options under the Company's 1996 Stock Option Plan or Stock Option Plan for Outside Directors, (ii) sales of shares under the Company's Employee Stock Purchase Plan, (iii) exercise of the Bank Warrant or (iv) conversions of shares of Class B Common Stock into shares of Class A Common Stock; (x) That it has caused the Securities to be included for quotation on the Nasdaq National Market as of the Effective Date; and (xi) To file with the Commission such reports on Form SR as may be required pursuant to Rule 463 under the Act. (b) The Selling Stockholder covenants and agrees with each of the Underwriters that: (i) The Selling Stockholder will not, during the period of 180 days after the date hereof, except pursuant to this Agreement, offer, sell, contract to sell, or otherwise dispose of, any capital stock of the Company (or securities convertible into, or exchangeable for, capital stock of the Company), directly or indirectly, without the prior written consent of Schroder Wertheim & Co. Incorporated; and 16 (ii) The Selling Stockholder will not, directly or indirectly, take any action designed to cause or result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities. 6. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid: (i) the fees, disbursements and expenses of counsel and accountants for the Company, and all other expenses, in connection with the preparation, printing and filing of the Registration Statement and the Prospectus and amendments and supplements thereto and the furnishing of copies thereof, including charges for mailing, air freight and delivery and counting and packaging thereof and of any Preliminary Prospectus and related offering documents to the Underwriters and dealers; (ii) the cost of printing this Agreement, the Agreement Among Underwriters, the Selling Agreement, communications with the Underwriters and selling group and the Preliminary and Supplemental Blue Sky Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under securities laws as provided in Section 5(b) hereof, including filing and registration fees and the reasonable fees and disbursements for counsel for the Underwriters in connection with such qualification and in connection with Blue Sky surveys or similar advice with respect to sales; (iv) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, securing any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Securities; (v) all fees and expenses in connection with quotation of the Securities on the Nasdaq National Market; and (vi) all other costs and expenses incident to the performance of their obligations hereunder which are not otherwise specifically provided for in this Section 6, including the fees of the Company's Transfer Agent and Registrar, the cost of any stock issue or transfer taxes on sale of the Securities to the Underwriters, the cost of the Company's personnel and other internal costs, the cost of printing and engraving the certificates representing the Securities, all expenses and taxes incident to the sale and delivery of the Securities to be sold by the Company to the Underwriters hereunder and all reasonable expenses incident to the sale and delivery of the Securities to be sold by the Selling Stockholder to the Underwriters hereunder. The Selling Stockholder will pay any transfer taxes incident to the transfer to the Underwriters of the Securities being sold by the Selling Stockholder. It is understood, however, that, except as provided in this Section 6, Section 8 and Section 11 hereof, the Underwriters will pay all their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make. 7. The obligations of the Underwriters hereunder shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Selling Stockholder herein are, at and as of the Time of Delivery, true and correct, the condition that the Company and the Selling Stockholder shall have performed all 17 its obligations hereunder theretofore to be performed, and the following additional conditions: (a) The Registration Statement shall have become effective, and you shall have received notice thereof not later than 10:00 P.M., New York City time, on the date of execution of this Agreement, or at such other time as you and the Company may agree; if required, the Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; (b) All corporate proceedings and related legal and other matters in connection with the organization of the Company and the registration, authorization, issue, sale and delivery of the Securities shall have been reasonably satisfactory to Shearman & Sterling, counsel to the Underwriters, and Shearman & Sterling shall have been timely furnished with such papers and information as they may reasonably have requested to enable them to pass upon the matters referred to in this subsection; (c) You shall not have advised the Company or the Selling Stockholder that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact or omits to state a fact which in your judgment is in either case material and in the case of an omission is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (d) Harter, Secrest & Emery, counsel to the Company, shall have furnished to you their written opinion, dated the Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, and is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or leasing of properties requires such qualification or the conduct of its business requires such qualification (except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the business affairs of the Company and the Subsidiaries, taken as a whole); and the Company has all necessary corporate power and all material governmental authorizations, permits and approvals required to own, lease and operate its properties and conduct its business as described in the Prospectus; 18 (ii) Each of the Company's subsidiaries listed on Exhibit 21.1 to the Registration Statement (the "Subsidiaries") has been duly incorporated (or organized in the case of GWI Switching) and is validly existing as a corporation (or a limited partnership in the case of GWI Switching) in good standing under the laws of the jurisdiction of its incorporation (or organization in the case of GWI Switching), and is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or leasing of properties requires such qualification or the conduct of its business requires such qualification (except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the business affairs of the Company and the Subsidiaries, taken as a whole); each Subsidiary has all necessary corporate power (or power in the case of GWI Switching) and all material governmental authorizations, permits and approvals required to own, lease and operate its properties and to conduct its business as described in the Prospectus; and all certificates of limited partnership and any amendments thereto required to be filed by or in respect of GWI Switching have been duly filed; (iii) All the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and are validly issued and outstanding, are fully paid and non-assessable and are owned by the Company of record and to the best knowledge of such counsel, (A) beneficially and (B) free and clear of all liens, encumbrances, equities, security interests or claims of any nature whatsoever, except for liens, encumbrances and security interests in favor of the Bank of Boston and except for the effect of the Voting Trusts; and to the best knowledge of such counsel after due inquiry, neither the Company nor any of the Subsidiaries has granted any outstanding options, warrants or commitments with respect to any shares of its capital stock, whether issued or unissued, except as otherwise described in the Prospectus; all the partnership interests in GWI Switching Services, L.P., a Texas limited partnership, have been duly and validly authorized and issued, are fully paid and non-assessable and are owned by Genesee & Wyoming Investors, Inc. and GWI Dayton, Inc. of record and to the best knowledge of such counsel, (A) beneficially and (B) free and clear of all liens, encumbrances, equities, security interests or claims of any nature whatsoever, except for liens, encumbrances and security interests in favor of the Bank of Boston; (iv) The Company has an authorized capitalization as set forth in the Registration Statement and all the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and are free of any preemptive rights; except as described in the Prospectus, to the knowledge of such counsel, there are no outstanding options, warrants or other rights calling for the issuance of, and there are no 19 commitments, plans or arrangements to issue, any shares of capital stock of the Company; the Securities being sold by the Company have been duly and validly authorized and, when duly countersigned by the Company's Transfer Agent and Registrar and issued, delivered and paid for in accordance with the provisions of the Registration Statement and this Agreement, will be duly and validly issued, fully paid and non-assessable; the Securities conform to the description thereof in the Prospectus; the Securities have been duly authorized for quotation on the Nasdaq National Market, as of the Effective Date; and the certificates for the Securities are in valid and sufficient form; (v) To the best of such counsel's knowledge after due inquiry, there are no legal or governmental proceedings pending or threatened to which the Company or any of the Subsidiaries or any of their respective officers or directors in their capacities as such is a party or of which any property of the Company or any of the Subsidiaries is the subject which, if resolved against the Company or any of the Subsidiaries or any of their respective officers or directors in their capacities as such, singly, or to the extent involving related claims or issues, in the aggregate, is of a character required to be disclosed in the Prospectus which has not been properly disclosed therein; (vi) This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability of the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and except as enforceability of those provisions relating to indemnity may be limited by the federal securities laws and principles of public policy; (vii) The Company has full corporate power and authority to execute, deliver and perform this Agreement, and the Company's execution, delivery and performance of this Agreement, the Company's consummation of the transactions contemplated herein and the Company's issue and sale of the Securities and the compliance by the Company with all the provisions of this Agreement does not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge, claim or encumbrance upon, any of the property or assets of the Company or any of the Subsidiaries pursuant to, the terms of any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject, nor does such action result in any violation of the provisions of the Certificate of Incorporation or the 20 By-Laws, in each case as amended, of the Company or any of the Subsidiaries, or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries or any of their properties; (viii) No consent, approval, authorization, order, registration or qualification of or with any court or any regulatory authority or other governmental body is required for the issue and sale of the Securities by the Company or the consummation by the Company of the other transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters; (ix) Without any independent investigation, such counsel is not aware that either the Company or any of the Subsidiaries is currently in violation of its Certificate of Incorporation or By-Laws or in default under, any indenture, mortgage, deed of trust, lease, bank loan or credit agreement or any other agreement or instrument of which such counsel has knowledge to which the Company or any of the Subsidiaries is a party or by which any of them or any of their property is bound or affected (in any respect that is material in light of the financial condition of the Company and the Subsidiaries, taken as a whole); (x) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any Securities pursuant to the Company's Certificate of Incorporation or By-Laws, in each case as amended to the date hereof, or any agreement or other instrument to which the Company or any of the Subsidiaries is a party known to such counsel (except for preemptive rights of the holders of the Bank Warrant which shall terminate at the Time of Delivery); and to the best knowledge of such counsel, no holders of securities of the Company have rights to the registration thereof under the Registration Statement or, if any such holders have such rights, such holders have waived such rights; (xi) To the extent summarized therein, all contracts and agreements summarized in the Registration Statement and the Prospectus are fairly summarized therein, conform in all material respects to the descriptions thereof contained therein, and, to the extent such contracts or agreements or any other material agreements are required under the Act or the rules and regulations thereunder to be filed, as exhibits to the Registration Statement, they are so filed; and such counsel does not know of any contracts or other 21 documents required to be summarized or disclosed in the Prospectus or to be so filed as an exhibit to the Registration Statement, which have not been so summarized or disclosed, or so filed; (xii) All descriptions in the Prospectus of statutes, regulations or legal or governmental proceedings are fair summaries thereof and fairly present the information required to be shown with respect to such matters; (xiii) The Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended; and (xiv) The Registration Statement has become effective under the Act, the Prospectus has been filed in accordance with Rule 424(b) of the rules and regulations of the Commission under the Act, including the applicable time periods set forth therein, or such filing is not required and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act, and the Registration Statement, the Prospectus and each amendment or supplement thereto, as of their respective effective or issue dates, complied as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; it being understood that such counsel need express no opinion as to the financial statements and schedules or other financial or statistical data contained in the Registration Statement or the Prospectus. Such counsel shall also state that nothing has come to such counsel's attention that would lead such counsel to believe that either the Registration Statement or any amendment or supplement thereto, at the time such Registration Statement or amendment or supplement became effective and as of the Time of Delivery, or the Prospectus or any amendment or supplement thereto, as of its date and as of the Time of Delivery, contains or contained any untrue statement of material fact or omits or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In rendering their opinions set forth in Section 7(d) above, such counsel may rely, to the extent deemed advisable by such counsel, (a) as to factual matters, upon certificates of public officials and officers of the Company, and (b) as to the laws of any jurisdiction other than the State of Delaware and the United States and jurisdictions in which they are admitted, on opinions of counsel (provided, however, that you shall have -------- ------- received a copy of each of such opinions which shall be dated the Time of Delivery, addressed to you or otherwise authorizing you to rely thereon, and 22 Harter, Secrest & Emery in its opinion to you delivered pursuant to this subsection, shall state that such counsel are satisfactory to them and Harter, Secrest & Emery has no reason to believe that the Underwriters and they are not justified to so rely); (e) Steel, Hector & Davis LLP, counsel to the Selling Stockholder, shall have furnished to you their written opinion, dated the Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) the Selling Stockholder has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware; and this Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder; (ii) the execution and delivery by the Selling Stockholder of, and the performance by the Selling Stockholder of its obligations under, this Agreement and the Power of Attorney and Custody Agreement will not contravene any provision of applicable law, or the [certificate of incorporation] or by-laws of the Selling Stockholder, or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Selling Stockholder or, to the best of such counsel's knowledge, any judgement, order or decree of any governmental body, agency or court having jurisdiction over the Selling Stockholder, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Selling Stockholder of its obligations under this Agreement or the Power of Attorney and Custody Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with offer and sale of the Shares; (iii) the Selling Stockholder has valid marketable title to the Securities to be sold by the Selling Stockholder and has the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Power of Attorney and Custody Agreement and to sell, transfer and deliver the Securities to be sold by the Selling Stockholder; (iv) the Power of Attorney and Custody Agreement has been duly authorized, executed and delivered by the Selling Stockholder and is a legal, valid and binding obligation of the Selling Stockholder enforceable against the Selling Stockholder in accordance with its terms; and (v) delivery of the Securities to be sold by the Selling Stockholder pursuant to this Agreement will pass marketable title to such Securities free and clear of any security interests, claims, liens, equities and other encumbrances. 23 (f) Shearman & Sterling, counsel to the Underwriters, shall have furnished to you their written opinion or opinions, dated the Time of Delivery, in form and substance satisfactory to you, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (g) At the time this Agreement is executed and also at the Time of Delivery, Arthur Andersen LLP shall have furnished to you a letter or letters, dated the date of this Agreement and the Time of Delivery, in form and substance satisfactory to you, to the effect, that: (i) They are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Act and the applicable published rules and regulations thereunder; (ii) In their opinion the consolidated financial statements of the Company and its subsidiaries (including the related schedules and notes) included in the Registration Statement and Prospectus and covered by their reports included therein comply as to form in all material respects with the applicable accounting requirements of the Act and the published rules and regulations thereunder; (iii) On the basis of specified procedures as of a specified date not more than five days prior to the date of their letter (which procedures do not constitute an examination made in accordance with generally accepted auditing standards), consisting of a reading of the latest available unaudited interim consolidated financial statements of the Company and its subsidiaries, a reading of the latest available minutes of any meeting of the Board of Directors and stockholders of the Company and its subsidiaries since the date of the latest audited financial statements included in the Prospectus, inquiries of officials of the Company and its subsidiaries who have responsibility for financial and accounting matters, and such other procedures or inquiries as are specified in such letter, nothing came to their attention that caused them to believe that: (A) the unaudited consolidated financial statements of the Company and its subsidiaries included in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the rules and regulations promulgated thereunder or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with 24 that of the audited consolidated financial statements included in the Registration Statement and the Prospectus; (B) as of a specified date not more than five days prior to the date of their letter, there was any change in the capital stock, or the long-term debt or short-term debt of the Company and its subsidiaries on a consolidated basis, or any decrease in total assets, total current assets, net property and equipment or total shareholders' equity or other items specified by the Representatives, of the Company and its subsidiaries on a consolidated basis, each as compared with the amounts shown on the March 31, 1996 included in the Registration Statement and the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or such other changes, decreases or increases which are described in their letter and which do not, in the sole judgment of the Representatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Securities as contemplated by the Registration Statement; and (C) for the period from April 1, 1996 to a specified date not more than five days prior to the date of such letter, there was any decrease, as compared with the corresponding period of the preceding fiscal year, in the following consolidated amounts: total revenues, income before provision for income taxes, net income or net income per share of the Company and its subsidiaries [conform list of items to appropriate line items in financial statements and add other line items as appropriate; percentages may be appropriate in certain situations], except in all instances for decreases which the Registration Statement discloses have occurred or may occur; or such other decreases which are described in their letter and which do not, in the sole judgment of the Representatives, make it impractical or inadvisable to proceed with the purchase and delivery of the Securities as contemplated by the Registration Statement; (iv) in addition to the examination referred to in their reports included in the Registration Statement and the Prospectus and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information specified by the Representatives, which are derived from the general accounting records of the Company and its subsidiaries which appear in the Prospectus, or in Part II of, or in exhibits and schedules to, the Registration Statement, and have compared such amounts and financial information with the accounting records of the Company and its 25 subsidiaries, and have found them to be in agreement and have proved the mathematical accuracy of certain specified percentages; and (v) On the basis of a reading of the pro forma consolidated financial statements included in the Registration Statement and the Prospectus, carrying out certain specified procedures that would not necessarily reveal matters of significance with respect to the comments set forth in this clause (v), inquiries of certain officials of the Company and its consolidated subsidiaries and who have responsibility for financial and account matters and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma consolidated financial statements, nothing came to their attention that caused them to believe that the pro forma consolidated financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. (h) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; and since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock (other than shares issued pursuant to the exercise of Employee Option Shares, exercise of the Bank Warrant or conversion of shares of Class B Common Stock into shares of Class A Common Stock) or short-term debt or long-term debt of the Company or any of its subsidiaries nor any change or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus; (i) Between the date hereof and the Time of Delivery there shall have been no declaration of war by the Government of the United States; at the Time of Delivery, there shall not have occurred any material adverse change in the financial or securities markets in the United States or in political, financial or economic conditions in the United States or any outbreak or material escalation of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representatives, impracticable to market the Securities or to enforce contracts for the resale of Securities and no event shall have occurred resulting in (i) trading in securities generally on the New York Stock Exchange or the Nasdaq National Market 26 being suspended or limited or minimum or maximum prices being generally established on such exchange or market, or (ii) additional material governmental restrictions, not in force on the date of this Agreement, being imposed upon trading in securities generally by the New York Stock Exchange or the Nasdaq National Market or by order of the Commission or any court or other governmental authority, or (iii) a general banking moratorium being declared by either federal or New York authorities; (j) The Company and the Selling Stockholder shall have furnished or caused to be furnished to you at the Time of Delivery certificates signed by the chief executive officer and the chief financial officer, on behalf of the Company and by the Selling Stockholder, satisfactory to you as to such matters as you may reasonably request and as to (i) the accuracy of the Company's representations and warranties herein at and as of the Time of Delivery and (ii) the performance by the Company and the Selling Stockholder of all their respective obligations hereunder to be performed at or prior to the Time of Delivery; the Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates signed by the chief executive officer and the chief financial officer, on behalf of the Company, as to (i) the fact that they have carefully examined the Registration Statement and Prospectus and, (a) as of the Effective Date, the statements contained in the Registration Statement and the Prospectus were true and correct and neither the Registration Statement nor the Prospectus omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (b) since the Effective Date, no event has occurred that is required by the Act or the rules and regulations of the Commission thereunder to be set forth in an amendment of, or a supplement to, the Prospectus that has not been set forth in such an amendment or supplement and (ii) the matters set forth in subsection (a) of this Section 7; (k) Each director, executive officer and other stockholder of the Company referenced in the footnotes to the table under the caption "Principal Stockholders" in the Registration Statement shall have delivered to you an agreement not to offer, sell, contract to sell or otherwise dispose of any shares of capital stock of the Company (or securities convertible into, of exchangeable for, capital stock of the Company), directly or indirectly, for a period of 180 days after the date of this Agreement, without the prior written consent of Schroder Wertheim & Co. Incorporated; and (l) The Company shall have delivered to you evidence that the Securities have been authorized for quotation on the Nasdaq National Market as of the Effective Date. 8. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue 27 statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or in any Blue Sky application or other document executed by the Company specifically for that purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all the Securities under the security laws thereof or filed with the Commission or any securities association or securities exchange (each, an "Application"), or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein not misleading, or (ii) any untrue statement or alleged untrue statement made by the Company in Section 1 of this Agreement, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating, preparing to defend, defending or appearing as a third-party witness in connection with any such action or claim; provided, however, that the Company -------- ------- shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission relating to an Underwriter made in any Preliminary Prospectus, the Registration Statement, the Prospectus or such amendment or supplement or any Application in reliance upon and in conformity with written information furnished to the Company by such Underwriter through you expressly for use therein. (b) In addition to any obligations of the Company under Section 8(a), the Company agrees that it shall perform its indemnification obligations under Section 8(a) (as modified by the last paragraph of this Section 8(b)) with respect to counsel fees and expenses and other expenses reasonably incurred by making payments within 45 days to the Underwriter in the amount of the statements of the Underwriter's counsel or other statements which shall be forwarded by the Underwriter. The indemnity agreement in Section 8(a) shall be in addition to any liability which the Company may otherwise have and shall extend upon the same terms and conditions to each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act. (c) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or any Application, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement, the Prospectus or such amendment or supplement or any Application 28 in reliance upon and in conformity with written information furnished to the Company by such Underwriter relating to such Underwriter through you expressly for use therein, and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim. The indemnity agreement in this Section 8(c) shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act or the Exchange Act. (d) Promptly after receipt by an indemnified party under Section 8(a) or 8(c) of notice of the commencement of any action (including any governmental investigation), such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party under Section 8(a) or 8(c) except to the extent it was unaware of such action and has been prejudiced in any material respect by such failure or from any liability which it may have to any indemnified party otherwise than under such Section 8(a) or 8(c). In case any such action shall be brought against any indemnified party, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. If, however, (i) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party or (ii) an indemnified party shall have reasonably concluded that representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate under applicable standards of professional conduct due to actual or potential differing interests between them and the indemnified party so notifies the indemnifying party, then the indemnified party shall be entitled to employ counsel different from counsel for the indemnifying party at the expense of the indemnifying party and the indemnifying party shall not have the right to assume the defense of such indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to local counsel) for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same set of allegations or circumstances. The counsel with respect to which fees and expenses shall be so reimbursed shall be designated in writing by Schroder Wertheim & Co. Incorporated in the case of parties indemnified pursuant to Section 8(a) and by the Company in the case of parties indemnified pursuant to Section 8(c). 29 If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(b), the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement (unless such fees and expenses are disputed in good faith by the indemnifying party). No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. (e) In order to provide for just and equitable contribution under the Act in any case in which (i) any Underwriter (or any person who controls any Underwriter within the meaning of the Act or the Exchange Act) makes claim for indemnification pursuant to Section 8(a) hereof, but is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that Section 8(a) provides for indemnification in such case or (ii) contribution under the Act may be required on the part of any Underwriter or any such controlling person in circumstances for which indemnification is provided under Section 8(c), then, and in each such case, each indemnifying party shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject as an indemnifying party hereunder (after contribution from others) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 8(d) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities purchased under this Agreement (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters with respect to the Securities purchased under this Agreement, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates 30 to information supplied by the Company on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 8(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this Section 8(e) to contribute are several in proportion to their respective underwriting obligations and not joint. (f) Promptly after receipt by any party to this Agreement of notice of the commencement of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party (the "contributing party"), notify the contributing party of the commencement thereof; but the omission so to notify the contributing party will not relieve it from any liability which it may have to any other party for contribution under the Act except to the extent it was unaware of such action and has been prejudiced in any material respect by such failure or from any liability which it may have to any other party other than for contribution under the Act. In case any such action, suit or proceeding is brought against any party, the contributing party will be entitled to participate therein with the notifying party and any other contributing party similarly notified. 9. (a) If any Underwriter shall default in its obligation to purchase the Firm Securities which it has agreed to purchase hereunder, you may in your discretion arrange for you or another party or other parties to purchase such Firm Securities on the terms contained herein. If the aggregate number of Firm Securities as to which Underwriters default is more than one-eleventh of the aggregate number of all the Firm Securities and within 36 hours after such default by any Underwriter you do not arrange for the purchase of such Firm Securities, then the Company and the Selling Stockholder shall be entitled to a further period of 36 hours within which to procure another party or other parties satisfactory to you to purchase such Firm Securities on such terms. In the event that, within the respective prescribed periods, you notify the Company and the Selling Stockholder that you have so arranged for the purchase of such Firm Securities, or the Company and the Selling 31 Stockholder notify you that they have so arranged for the purchase of such Firm Securities, you or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Firm Securities. (b) If, after giving effect to any arrangements for the purchase of the Firm Securities of such defaulting Underwriter or Underwriters by you or the Company and the Selling Stockholder or both as provided in subsection (a) above, the aggregate number of such Firm Securities which remain unpurchased does not exceed one-eleventh of the aggregate number of all the Firm Securities, then the Company and the Selling Stockholder shall have the right to require each non- defaulting Underwriter to purchase the number of the Firm Securities which such Underwriter agreed to purchase hereunder and, in addition, to require each non- defaulting Underwriter to purchase its pro rata share (based on the number of Firm Securities which such Underwriter agreed to purchase hereunder) of the Firm Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Firm Securities of a defaulting Underwriter or Underwriters by you or the Company and the Selling Stockholder as provided in subsection (a) above, the aggregate number of such Firm Securities which remain unpurchased exceeds one- eleventh of the aggregate number of all the Firm Securities, or if the Company and the Selling Stockholder shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Firm Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate without liability on the part of any non-defaulting Underwriter, the Company or any Selling Stockholder, except for the expenses to be borne by the Company and the Selling Stockholder and the Underwriters as provided in Section 6 hereof and the indemnity agreement in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 10. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Selling Stockholder and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or an officer or director or 32 controlling person of the Company, or the Selling Stockholder, or any controlling person of the Selling Stockholder, and shall survive delivery of and payment for the Securities. 11. This Agreement shall become effective (a) if the Registration Statement has not heretofore become effective, at the earlier of 12:00 Noon, New York City time, on the first full business day after the Registration Statement becomes effective and at such time after the Registration Statement becomes effective as you may authorize the sale of the Securities to the public by Underwriters or other securities dealers or (b) if the Registration Statement has heretofore become effective, at the earlier of 24 hours after the filing of the Prospectus with the Commission and at such time as you may authorize the sale of the Securities to the public by Underwriters or securities dealers. If this Agreement shall be terminated pursuant to Section 9 hereof, the Company and the Selling Stockholder shall not then be under any liability to any Underwriter except as provided in Section 6 and Section 8 hereof, but if this Agreement becomes effective and is not so terminated but the Securities are not delivered by or on behalf of the Company or the Selling Stockholder as provided herein because the Company or the Selling Stockholder has been unable for any reason beyond its control and not due to any default by it to comply with the terms and conditions hereof, the Company will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Securities, but the Company and the Selling Stockholder shall then be under no further liability to any Underwriter except as provided in Section 6 and Section 8 hereof. 12. The statements set forth in the last paragraph on the front cover page of the Prospectus, the paragraph on the inside front cover of the Prospectus containing stabilization language and the statements under the caption "Underwriting" (to the extent such statements relate to the Underwriters) in the Prospectus constitute the only information furnished by any Underwriter through the Representatives to the Company for purposes of Sections 1(b), 1(c) and 8 hereof. 13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly or by Schroder Wertheim & Co. Incorporated on behalf of you as the Representatives, and in all dealings with the Selling Stockholder hereunder, you and the Company shall be entitled to act and rely upon any statement, request, notice or agreement furnished in writing by or on behalf of the Selling Stockholder. All statements, requests, notices and agreements hereunder, unless otherwise specified in this Agreement, shall be in writing and, if to the Underwriters, shall be delivered or sent by mail, telex or facsimile transmission (subsequently confirmed by delivery or by 33 letter sent by mail) to you as the Representatives in care of Schroder Wertheim & Co. Incorporated, Equitable Center, 787 Seventh Avenue, New York, New York, 10019, Attention: Syndicate Department; and if to the Company, shall be delivered or sent by mail, telex or facsimile transmission (subsequently confirmed by delivery or by letter sent by mail) to the address of the Company set forth in the Registration Statement, Attention: Mortimer B. Fuller, III, President; provided, however, that any notice to any Underwriter pursuant to -------- ------- Section 8(d) hereof shall be delivered or sent by mail, telex or facsimile transmission (subsequently confirmed by delivery or by letter sent by mail) to such Underwriter at its address set forth in its Underwriters' Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by you upon request. Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. 14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Selling Stockholder and, to the extent provided in Section 8 and Section 10 hereof, the officers and directors of the Company and each person who controls the Company, the Selling Stockholder or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 15. Time shall be of the essence for this Agreement. As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business. 16. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF. 17. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. If the foregoing is in accordance with your understanding, please sign and return to us two counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Company and the Selling Stockholder. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement Among Underwriters, manually or facsimile executed counterparts of which, to the extent practicable and upon request, shall be submitted to the Company for examination, but without warranty on your part as to the authority of the signers thereof. Very truly yours, 34 GENESEE & WYOMING INC. By: ------------------------------ Name: Title: RYDER/ATE, INC. By: ------------------------------ Attorney-in-fact Accepted as of the date hereof: Schroder Wertheim & CO. INCORPORATED Furman Selz LLC as Representatives of the several Underwriters By: Schroder Wertheim & CO. INCORPORATED By: ----------------------------------------- Managing Director SCHEDULE I Underwriter Number of Firm Securities ---------- ------------------------- Schroder Wertheim & Co. Incorporated Furman Selz LLC Total . . . . . . . . . . . . . . . _______________________ ======================= EX-4.1 3 SPECIMEN STOCK CERTIFICATE - CLASS A COMMON STOCK EXHIBIT 4.1 [LOGO] Class A COMMON STOCK Class A COMMON STOCK NUMBER SHARES BOX BOX INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR THE STATE OF DELAWARE CERTAIN DEFINITIONS CUSIP 371559 10 5 Genesee & Wyoming Inc Box This Certifies That is the owner of FULLY PAID AND NON-ASSESSABLE SHARES OF THE CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF Genesee & Wyoming Inc. - ------------------------------------------------------------------------------- (the "Corporation") transferable on the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this certificate properly endorsed. This certificate is not valid until countersigned by the Transfer Agent and registered by the Registrar. WITNESS the facsimile seal of the Corportion and the facsimile signatures of its duly authorized officers. Dated: Mark W. Hastings Mortimer B. Fuller,III Treasurer and Chief President and Chief Financial Officer Seal Executive Officer Countersigned and Registered By THE FIRST NATIONAL BANK OF BOSTON Transfer Agent and Registrar Authorized Signature Genesee & Wynoming Inc The Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional, or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT____________ (Cust) TEN ENT - as tenants by the entireties Custodian_____________________ (Minor) JT TEN - as joint tenants with Under Uniform Gifts to Minors right of survivorship and Act__________________________ not as tenants in common (State) UNIF TRF MIN ACT_______________________ (Cust) Custodian (until age___________________) _________________under Uniform Transfers (Minor) To Minors Act___________________________ (State) Additional abbreviations may also be used though not in the above list FOR VALUE RECEIVED,___________________________hereby sells, assigns and transfers unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE BOX - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------Shares of the Class A Common Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint - ------------------------------------------------------------------------Attorney to transfer the said shares of Class A Common Stock on the books of the within named Corporation with full power of substitution. Dated________________________________ X__________________________________________________ X__________________________________________________ NOTICE: THE SIGNATURES(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. SIGNATURE(S) GUARANTEED: BY - -------------------------------------------------------------- THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15 EX-5.1 4 OPINION OF HARTER, SECREST & EMERY EXHIBIT 5.1 [LETTERHEAD OF HARTER, SECREST & EMERY] June 12, 1996 Genesee & Wyoming Inc. 71 Lewis Street Greenwich, Connecticut 06830 Re: Genesee & Wyoming Inc. Registration Statement on Form S-1 Ladies and Gentlemen: You have requested our opinion in connection with your Registration Statement on Form S-1, as amended (Registration No. 333-3972), filed under the Securities Act of 1933, as amended (the "Registration Statement"), with the Securities and Exchange Commission in respect of (i) the proposed sale by Genesee & Wyoming Inc., a Delaware corporation (the "Corporation"), of 2,500,000 authorized and unissued shares (or 2,897,200 authorized and unissued shares if the underwriters' option as to over-allotments is exercised in full) of the Class A Common Stock, par value $.01 per share, of the Corporation (the "Class A Common Stock"), to be issued subject to effectiveness of the Registration Statement, and (ii) the proposed sale by a certain selling stockholder of the Corporation so identified in the Registration Statement (the "Selling Stockholder") of 148,000 authorized and issued shares of Class A Common Stock. 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, as filed by the Secretary of State of the State of Delaware on June 10, 1996; its By-laws, as in force and effect on this date; its minute books, containing minutes and records of other proceedings of its stockholders and its Board of Directors from the date of incorporation to the date hereof; the Registration Statement and related Prospectus which constitutes a part thereof; applicable provisions of the laws of the State of Delaware; and such other documents and matters as we have deemed necessary in the circumstances. 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: HARTER, SECREST & EMERY Genessee & Wyoming Inc. June 12, 1996 Page 2 1. The Corporation has been duly incorporated and is validly existing under the laws of the State of Delaware. 2. The Corporation has the authority to issue 2,897,200 shares of Class A Common Stock upon the effectiveness of the Registration Statement. 3. The shares of Class A Common Stock to be sold by the Corporation and by the Selling Stockholder upon the effectiveness of the Registration Statement will, when sold and paid for as described in the Registration Statement, be validly authorized and legally issued and outstanding, fully paid and non- assessable. We hereby consent to be named in the Registration Statement and to the use of our name under the caption "Legal Matters" set forth in the related Prospectus which constitutes a part of the Registration Statement, as attorneys who will pass upon the validity of the shares of Class A Common Stock offered 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 EX-23.1 5 CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the use of our reports (and to all references to our Firm) included in or made part of this Registration Statement on Amendment No. 2 to Form S-1. Arthur Andersen LLP Chicago, Illinois June 12, 1996 -----END PRIVACY-ENHANCED MESSAGE-----