UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________________________________
FORM 10-Q
________________________________________________
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(Mark One)
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x
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the quarterly period ended
June 30, 2014
OR
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the transition period from ________ to ________
Commission File No. 001-31456
_________________________________________________________________
GENESEE & WYOMING INC.
(Exact name of registrant as specified in its charter)
__________________________________________________________________
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Delaware
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06-0984624
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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20 West Avenue, Darien, Connecticut 06820
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(Address of principal executive offices)(Zip Code)
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(203) 202-8900
(Registrant's telephone number, including area code)
_____________________________________________________________________
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
x
YES
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NO
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
x
YES
o
NO
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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x
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Accelerated filer
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o
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Non-accelerated filer
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o
(Do not check if a smaller reporting company)
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Smaller reporting company
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o
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
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YES
x
NO
Shares of common stock outstanding as of the close of business on
August 1, 2014
:
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Class
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Number of Shares Outstanding
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Class A Common Stock
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52,719,471
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Class B Common Stock
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1,062,985
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INDEX
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Page
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Part I
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Item 1.
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Item 2.
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Management's Discussion and Analysis of Financial Condition and Results of Operations
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Item 3.
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Item 4.
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Part II
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Item 1.
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Item 1A.
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Item 2.
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Item 3.
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Item 4.
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Item 5.
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Item 6.
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Unless the context otherwise requires, when used in this Quarterly Report on Form 10-Q, the terms "Genesee & Wyoming," "G&W," the "Company," "we," "our" and "us" refer to Genesee & Wyoming Inc. and its subsidiaries. All references to currency amounts included in this Quarterly Report on Form 10-Q, including the financial statements, are in United States dollars unless specifically noted otherwise.
Forward-Looking Statements
This report and other documents referred to in this report contain forward-looking statements regarding future events and the future performance of Genesee & Wyoming Inc. that are based on current expectations, estimates and projections about our industry, our business and our performance, management's beliefs and assumptions made by management. Words such as "anticipates," "intends," "plans," "believes," "should," "seeks," "expects," "estimates," "trends," "outlook," variations of these words and similar expressions are intended to identify these forward-looking statements. These statements are not guarantees of future performance and are subject to certain risks, uncertainties and assumptions that are difficult to forecast, including the following risks: risks related to the operation of our railroads; severe weather conditions and other natural occurrences, which could result in shutdowns, derailments or other substantial disruption of operations; consummation and integration of acquisitions; economic, political and industry conditions (including employee strikes or work stoppages); customer demand and changes in our operations, retention and contract continuation; legislative and regulatory developments, including changes in environmental and other laws and regulations to which we are subject; increased competition in relevant markets; funding needs and financing sources, including our ability to obtain government funding for capital projects; international complexities of operations, currency fluctuations, finance, tax and decentralized management; challenges of managing rapid growth including retention and development of senior leadership; unpredictability of fuel costs; susceptibility to various legal claims and lawsuits; increase in, or volatility associated with, expenses related to estimated claims, self-insured retention amounts and insurance coverage limits; consummation of new business opportunities; exposure to the credit risk of customers or counterparties; our ability to realize the expected synergies associated with acquisitions; susceptibility to the risks of doing business in foreign countries; and others including, but not limited to, those set forth in Part II, Item 1A of this Quarterly Report on Form 10-Q, if any, and those noted in our
2013
Annual Report on Form 10-K under "Risk Factors." Therefore, actual results may differ materially from those expressed or forecasted in any such forward-looking statements. Forward-looking statements speak only as of the date of this report or as of the date they were made. We undertake no obligation to update the current expectations or forward-looking statements contained in this report.
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
GENESEE & WYOMING INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
AS OF
JUNE 30, 2014
and
DECEMBER 31, 2013
(Unaudited)
(dollars in thousands, except share amounts)
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June 30,
2014
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December 31,
2013
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ASSETS
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CURRENT ASSETS:
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Cash and cash equivalents
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$
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33,032
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$
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62,876
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Accounts receivable, net
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352,283
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325,453
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Materials and supplies
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36,214
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31,295
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Prepaid expenses and other
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45,113
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52,584
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Deferred income tax assets, net
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68,031
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76,122
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Total current assets
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534,673
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548,330
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PROPERTY AND EQUIPMENT, net
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3,778,487
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3,440,744
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GOODWILL
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632,905
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630,462
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INTANGIBLE ASSETS, net
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602,805
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613,933
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DEFERRED INCOME TAX ASSETS, net
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3,007
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2,405
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OTHER ASSETS, net
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58,491
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83,947
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Total assets
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$
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5,610,368
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$
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5,319,821
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LIABILITIES AND EQUITY
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CURRENT LIABILITIES:
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Current portion of long-term debt
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$
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31,099
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$
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84,366
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Accounts payable
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249,426
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242,010
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Accrued expenses
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123,272
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130,132
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Total current liabilities
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403,797
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456,508
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LONG-TERM DEBT, less current portion
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1,731,939
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1,540,346
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DEFERRED INCOME TAX LIABILITIES, net
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882,616
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863,051
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DEFERRED ITEMS - grants from outside parties
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283,537
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267,098
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OTHER LONG-TERM LIABILITIES
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40,797
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43,748
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COMMITMENTS AND CONTINGENCIES
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EQUITY:
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Class A common stock, $0.01 par value, one vote per share; 180,000,000 shares authorized at June 30, 2014 and December 31, 2013; 65,403,360 and 64,584,102 shares issued and 52,716,419 and 51,934,137 shares outstanding (net of 12,686,941 and 12,649,965 shares in treasury) on June 30, 2014 and December 31, 2013, respectively
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654
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646
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Class B common stock, $0.01 par value, ten votes per share; 30,000,000 shares authorized at June 30, 2014 and December 31, 2013; 1,062,985 and 1,608,989 shares issued and outstanding on June 30, 2014 and December 31, 2013, respectively
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11
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16
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Additional paid-in capital
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1,319,645
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1,302,521
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Retained earnings
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1,159,616
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1,058,884
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Accumulated other comprehensive income
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10,982
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6,089
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Treasury stock, at cost
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(223,887
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(220,361
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Total Genesee & Wyoming Inc. stockholders' equity
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2,267,021
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2,147,795
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Noncontrolling interest
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661
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1,275
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Total equity
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2,267,682
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2,149,070
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Total liabilities and equity
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$
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5,610,368
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$
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5,319,821
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The accompanying notes are an integral part of these consolidated financial statements.
GENESEE & WYOMING INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE
THREE AND SIX
MONTHS ENDED
JUNE 30, 2014
and
2013
(Unaudited)
(in thousands, except per share amounts)
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Three Months Ended
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Six Months Ended
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June 30,
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June 30,
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2014
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2013
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2014
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2013
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OPERATING REVENUES
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$
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414,563
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$
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400,648
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$
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790,842
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$
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775,598
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OPERATING EXPENSES:
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Labor and benefits
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116,556
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109,781
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233,303
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219,087
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Equipment rents
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19,874
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18,993
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38,932
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37,701
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Purchased services
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23,868
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30,598
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51,678
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59,993
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Depreciation and amortization
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38,212
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34,161
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75,853
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68,384
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Diesel fuel used in operations
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37,379
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34,694
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79,314
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73,879
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Casualties and insurance
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12,752
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10,043
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22,385
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17,994
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Materials
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19,325
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22,784
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35,444
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41,714
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Trackage rights
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14,021
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12,770
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26,287
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23,627
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Net gain on sale of assets
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(1,369
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(1,009
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(2,207
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(2,716
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Other expenses
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23,836
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20,416
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44,869
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52,318
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Total operating expenses
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304,454
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293,231
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605,858
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591,981
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INCOME FROM OPERATIONS
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110,109
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107,417
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184,984
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183,617
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Interest income
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241
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950
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1,275
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1,993
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Interest expense
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(17,814
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(17,203
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(31,455
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)
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(37,323
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)
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Other income/(loss), net
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920
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(896
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)
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1,186
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(223
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Income before income taxes
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93,456
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90,268
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155,990
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148,064
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Provision for income taxes
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(32,567
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)
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(25,218
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)
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(55,467
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(286
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)
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Net income
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60,889
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65,050
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100,523
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147,778
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Less: Net income/(loss) attributable to noncontrolling interest
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161
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280
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(209
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)
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446
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Less: Series A-1 Preferred Stock dividend
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—
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—
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—
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2,139
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Net income available to common stockholders
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$
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60,728
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$
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64,770
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$
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100,732
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$
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145,193
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Basic earnings per common share attributable to Genesee & Wyoming Inc. common stockholders
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$
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1.10
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$
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1.19
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$
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1.83
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$
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2.75
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Weighted average shares - Basic
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55,054
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54,434
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54,949
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52,891
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Diluted earnings per common share attributable to Genesee & Wyoming Inc. common stockholders
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$
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1.07
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$
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1.14
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$
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1.77
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$
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2.60
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Weighted average shares - Diluted
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56,948
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56,676
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56,910
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56,633
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The accompanying notes are an integral part of these consolidated financial statements.
GENESEE & WYOMING INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
FOR THE
THREE AND SIX
MONTHS ENDED
JUNE 30, 2014
and
2013
(Unaudited)
(dollars in thousands)
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Three Months Ended
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Six Months Ended
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June 30,
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June 30,
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2014
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2013
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2014
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2013
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NET INCOME
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$
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60,889
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$
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65,050
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$
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100,523
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$
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147,778
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OTHER COMPREHENSIVE INCOME/(LOSS):
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Foreign currency translation adjustment
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14,423
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(47,824
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)
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18,177
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(53,171
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)
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Net unrealized (loss)/gain on qualifying cash flow hedges, net of tax benefit/(provision) of $4,307, ($8,182), $8,946 and ($11,141), respectively
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(6,460
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)
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12,274
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(13,419
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)
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16,712
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Changes in pension and other postretirement benefits, net of tax (provision) of ($38), ($56), ($76) and ($113), respectively
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67
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|
98
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|
135
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|
196
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Other comprehensive income/(loss)
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8,030
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(35,452
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)
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4,893
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(36,263
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)
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COMPREHENSIVE INCOME
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68,919
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29,598
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105,416
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|
111,515
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Less: Comprehensive income/(loss) attributable to noncontrolling interest
|
161
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|
280
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(209
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)
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|
446
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COMPREHENSIVE INCOME ATTRIBUTABLE TO GENESEE & WYOMING INC.
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$
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68,758
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$
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29,318
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$
|
105,625
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$
|
111,069
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The accompanying notes are an integral part of these consolidated financial statements.
GENESEE & WYOMING INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE
SIX MONTHS ENDED
JUNE 30, 2014
and
2013
(Unaudited)
(dollars in thousands)
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Six Months Ended
|
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June 30,
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|
2014
|
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2013
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CASH FLOWS FROM OPERATING ACTIVITIES:
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Net income
|
$
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100,523
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$
|
147,778
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Adjustments to reconcile net income to net cash provided by operating activities:
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Depreciation and amortization
|
75,853
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68,384
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Compensation cost related to equity awards
|
6,011
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10,749
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Excess tax benefit from share-based compensation
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(4,182
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)
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(5,666
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)
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Deferred income taxes
|
36,453
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(18,802
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)
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Net gain on sale of assets
|
(2,207
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)
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(2,716
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)
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Insurance proceeds received
|
—
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10,353
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Changes in assets and liabilities which provided/(used) cash, net of effect of acquisitions:
|
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Accounts receivable, net
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(26,616
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)
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(45,254
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)
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Materials and supplies
|
(1,288
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)
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(1,842
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)
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Prepaid expenses and other
|
7,620
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(2,111
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)
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Accounts payable and accrued expenses
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6,454
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(13,412
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)
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Other assets and liabilities, net
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1,442
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|
|
5,242
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Net cash provided by operating activities
|
200,063
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152,703
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CASH FLOWS FROM INVESTING ACTIVITIES:
|
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Purchase of property and equipment
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(174,921
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)
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(112,334
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)
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Grant proceeds from outside parties
|
27,644
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|
|
6,008
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Cash paid for acquisitions, net of cash acquired
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(220,542
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)
|
|
—
|
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Insurance proceeds for the replacement of assets
|
1,172
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|
|
—
|
|
|
Proceeds from disposition of property and equipment
|
3,365
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|
|
3,198
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|
Net cash used in investing activities
|
(363,282
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)
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|
(103,128
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)
|
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CASH FLOWS FROM FINANCING ACTIVITIES:
|
|
|
|
|
Principal payments on long-term borrowings, including capital leases
|
(187,945
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)
|
|
(267,961
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)
|
|
Proceeds from issuance of long-term debt
|
318,171
|
|
|
168,998
|
|
|
Debt amendment costs
|
(3,880
|
)
|
|
(1,880
|
)
|
|
Proceeds from employee stock purchases
|
6,928
|
|
|
9,177
|
|
|
Treasury stock purchases
|
(3,526
|
)
|
|
(7,735
|
)
|
|
Dividends paid on Series A-1 Preferred Stock
|
—
|
|
|
(2,139
|
)
|
|
Excess tax benefit from share-based compensation
|
4,182
|
|
|
5,666
|
|
|
Net cash provided by/(used in) financing activities
|
133,930
|
|
|
(95,874
|
)
|
|
EFFECT OF EXCHANGE RATE CHANGES ON CASH AND CASH EQUIVALENTS
|
(555
|
)
|
|
64
|
|
|
DECREASE IN CASH AND CASH EQUIVALENTS
|
(29,844
|
)
|
|
(46,235
|
)
|
|
CASH AND CASH EQUIVALENTS, beginning of period
|
62,876
|
|
|
64,772
|
|
|
CASH AND CASH EQUIVALENTS, end of period
|
$
|
33,032
|
|
|
$
|
18,537
|
|
The accompanying notes are an integral part of these consolidated financial statements.
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
1. PRINCIPLES OF CONSOLIDATION AND BASIS OF PRESENTATION:
The interim consolidated financial statements presented herein include the accounts of Genesee & Wyoming Inc. and its subsidiaries. All significant intercompany transactions and accounts have been eliminated in consolidation. These interim consolidated financial statements have been prepared by the Company pursuant to the rules and regulations of the Securities and Exchange Commission (SEC) and are unaudited. They do not contain all disclosures which would be required in a full set of financial statements prepared in accordance with accounting principles generally accepted in the United States of America (U.S. GAAP). In the opinion of management, the unaudited financial statements for the
three and six
months ended
June 30, 2014
and
2013
are presented on a basis consistent with the audited financial statements and contain all adjustments, consisting only of normal recurring adjustments, necessary to provide a fair statement of the results for the interim periods presented. The results of operations for interim periods are not necessarily indicative of results of operations for the full year. The consolidated balance sheet data for
2013
was derived from the audited financial statements in the Company's
2013
Annual Report on Form 10-K but does not include all disclosures required by U.S. GAAP.
The interim consolidated financial statements should be read in conjunction with the audited financial statements and notes thereto for the year ended
December 31, 2013
included in the Company's
2013
Annual Report on Form 10-K.
2. CHANGES IN OPERATIONS:
United States
Rapid City, Pierre & Eastern Railroad:
On May 30, 2014, the Company's new subsidiary, Rapid City, Pierre & Eastern Railroad, Inc. (RCP&E), purchased the assets comprising the western end of Canadian Pacific Railway Limited's (CP) Dakota, Minnesota & Eastern Railroad Corporation (DM&E) rail line for a cash purchase price of
$217.7 million
, including the purchase of materials and supplies, railcars, equipment and vehicles. RCP&E commenced freight service on the line on June 1, 2014. The results of operations from RCP&E have been included in the Company's statement of operations since the acquisition date within the Company's North American & European Operations segment.
RCP&E operates approximately
670
miles of rail line between Tracy, Minnesota and Rapid City, South Dakota; north of Rapid City to Colony, Wyoming; south of Rapid City to Dakota Junction, Nebraska; and connecting branch lines as well as trackage from Dakota Junction to Crawford, Nebraska, currently leased to the Nebraska Northwestern Railroad Inc. (NNW). Customers on the RCP&E ship approximately
52,000
carloads annually of grain, bentonite clay, ethanol, fertilizer and other products. RCP&E has the ability to interchange with CP, Union Pacific Railroad, BNSF Railway Company and NNW. RCP&E has approximately
180
employees, most of whom were hired from the DM&E operations.
The Company accounted for the acquisition as a business combination using the acquisition method of accounting under U.S. GAAP. The following preliminary acquisition-date fair values assigned to the acquired net assets will be finalized upon the completion of the Company's fair value analysis (dollars in thousands):
|
|
|
|
|
|
|
|
|
Materials and supplies
|
|
$
|
2,572
|
|
|
Prepaid expenses and other
|
|
116
|
|
|
Property and equipment
|
|
215,116
|
|
|
Total assets
|
|
217,804
|
|
|
Accounts payable and accrued expenses
|
|
108
|
|
|
Net assets
|
|
$
|
217,696
|
|
RailAmerica, Inc.:
As further described in the Company's 2013 Annual Report on Form 10-K,
on October 1, 2012, the Company acquired
100%
of RailAmerica, Inc.'s (RailAmerica) outstanding shares for cash at a price of
$27.50
per share, or total consideration of
$2.0 billion
(equity purchase price of
$1.4 billion
plus net debt of
$659.2 million
). Headquartered in Jacksonville, Florida with approximately
2,000
employees,
RailAmerica owned and operated
45
short line freight railroads in North America with approximately
7,100
miles of track in
28
U.S. states and
three
Canadian provinces as of the
October 1, 2012
acquisition date. The Company incurred
$1.2 million
and
$14.0 million
of RailAmerica integration and acquisition costs during the
three and six
months ended
June 30, 2013
, respectively.
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
Canada
Tata Steel Minerals Canada Ltd.:
In August 2012, the Company announced that its newly formed subsidiary, KeRail Inc. (KeRail), entered into a long-term agreement with Tata Steel Minerals Canada Ltd. (TSMC), for KeRail to provide rail transportation services to the direct shipping iron ore mine TSMC is developing near Schefferville, Quebec in the Labrador Trough (the Mine). In June 2014, KeRail completed construction of an approximately
25
-kilometer rail line that connects the Mine to the Tshiuetin Rail Transportation interchange point in Schefferville. Operated as part of the Company's Canada Region, KeRail is expected to haul unit trains of iron ore from its rail connection with the Mine, which will then travel over three privately owned railways to the Port of Sept-Îles for export primarily to Tata Steel Limited's European operations. Upon receipt of the necessary permits from the Canadian and provincial governments, the Company expects to commence shipments in the third quarter of 2014.
Results from Operations
When comparing the Company's results from operations from one reporting period to another, it is important to consider that the Company has historically experienced fluctuations in revenues and expenses due to acquisitions, changing economic conditions, competitive forces, changes in foreign currency exchange rates, one-time freight moves, fuel price fluctuations, customer plant expansions and shut-downs, sales of property and equipment, derailments and weather-related conditions, such as hurricanes, cyclones, tornadoes, droughts, heavy snowfall, unseasonably hot or cold weather, freezing and flooding. In periods when these events occur, the Company's results of operations are not easily comparable from one period to another. Finally, certain of the Company's railroads have shipments that are sensitive to general economic conditions, such as steel products, paper products and lumber and forest products, as well as product specific market conditions, such as the availability of lower priced alternative sources of power generation (coal) or energy commodity price differentials (crude oil). Other shipments are relatively less affected by economic conditions and are more closely affected by other factors, such as winter weather (salt) and seasonal rainfall (agricultural products). As a result of these and other factors, the Company's results of operations in any reporting period may not be directly comparable to its results of operations in other reporting periods.
3. EARNINGS PER COMMON SHARE:
The following table sets forth the computation of basic and diluted earnings per common share for the
three and six
months ended
June 30, 2014
and
2013
(in thousands, except per share amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
Six Months Ended
|
|
|
June 30,
|
|
June 30,
|
|
|
2014
|
|
2013
|
|
2014
|
|
2013
|
|
Numerators:
|
|
|
|
|
|
|
|
|
Net income attributable to Genesee & Wyoming Inc. common stockholders
|
$
|
60,728
|
|
|
$
|
64,770
|
|
|
$
|
100,732
|
|
|
$
|
147,332
|
|
|
Less: Series A-1 Preferred Stock dividend
|
—
|
|
|
—
|
|
|
—
|
|
|
2,139
|
|
|
Net income available to common stockholders
|
$
|
60,728
|
|
|
$
|
64,770
|
|
|
$
|
100,732
|
|
|
$
|
145,193
|
|
|
Denominators:
|
|
|
|
|
|
|
|
|
Weighted average Class A common shares outstanding - Basic
|
55,054
|
|
|
54,434
|
|
|
54,949
|
|
|
52,891
|
|
|
Weighted average Class B common shares outstanding
|
1,519
|
|
|
1,700
|
|
|
1,564
|
|
|
1,713
|
|
|
Dilutive effect of employee stock-based awards
|
375
|
|
|
542
|
|
|
397
|
|
|
574
|
|
|
Dilutive effect of Series A-1 Preferred Stock
|
—
|
|
|
—
|
|
|
—
|
|
|
1,455
|
|
|
Weighted average shares - Diluted
|
56,948
|
|
|
56,676
|
|
|
56,910
|
|
|
56,633
|
|
|
Earnings per common share attributable to Genesee & Wyoming Inc. common stockholders:
|
|
|
|
|
|
|
|
|
Basic earnings per common share
|
$
|
1.10
|
|
|
$
|
1.19
|
|
|
$
|
1.83
|
|
|
$
|
2.75
|
|
|
Diluted earnings per common share
|
$
|
1.07
|
|
|
$
|
1.14
|
|
|
$
|
1.77
|
|
|
$
|
2.60
|
|
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
The Company's basic and diluted earnings per common share calculations reflect the weighted average shares issuable upon settlement of the prepaid stock purchase contract component of the Company's Tangible Equity Units (TEUs). For purposes of determining the number of shares included in the calculation, the Company used the market price of its Class A common stock at the period end date.
The following total number of Class A common stock issuable under the assumed exercise of stock options computed based on the treasury stock method were excluded from the calculation of diluted earnings per common share, as the effect of including these shares would have been antidilutive (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
Six Months Ended
|
|
|
June 30,
|
|
June 30,
|
|
|
2014
|
|
2013
|
|
2014
|
|
2013
|
|
Antidilutive shares
|
256
|
|
|
98
|
|
|
215
|
|
|
87
|
|
Series A-1 Preferred Stock Converted into Common Stock on February 13, 2013
On February 13, 2013, the Company converted all of its outstanding Series A-1 Preferred Stock into
5,984,232
shares of the Company's Class A common stock. The conversion resulted in an increase in the Company's weighted average basic shares outstanding of
5,984,232
and
4,529,502
for the
six
months ended
June 30, 2014
and
2013
, respectively.
For basic earnings per common share for the
six
months ended
June 30, 2013
, the Company deducted the cumulative dividends on the Series A-1 Preferred Stock in calculating net income available to common stockholders (i.e., the numerator in the calculation of basic earnings per common share) divided by the weighted average number of common shares outstanding during each period. For diluted earnings per common share, the Company used the if-converted method when calculating diluted earnings per common share prescribed under U.S. GAAP.
4. ACCOUNTS RECEIVABLE:
Accounts receivable consisted of the following as of
June 30, 2014
and
December 31, 2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30,
2014
|
|
December 31,
2013
|
|
Accounts receivable - trade
|
$
|
294,717
|
|
|
$
|
264,562
|
|
|
Accounts receivable - grants from outside parties
|
25,928
|
|
|
33,003
|
|
|
Accounts receivable - insurance and other third-party claims
|
36,473
|
|
|
31,643
|
|
|
Total accounts receivable
|
357,118
|
|
|
329,208
|
|
|
Less: Allowance for doubtful accounts
|
(4,835
|
)
|
|
(3,755
|
)
|
|
Accounts receivable, net
|
$
|
352,283
|
|
|
$
|
325,453
|
|
Grants from Outside Parties
The Company periodically receives grants for the upgrade and construction of rail lines and the upgrade of locomotives from federal, provincial, state and local agencies and other outside parties in the United States, Canada and Australia. These grants typically reimburse the Company for 50% to 100% of the actual cost of specific projects. In total, the Company received grant proceeds of
$27.6 million
and
$6.0 million
in the
six
months ended
June 30, 2014
and
2013
, respectively, from such grant programs. The proceeds were presented as cash inflows from investing activities within each of the applicable periods.
None of the Company's grants represent a future liability of the Company unless the Company abandons the rehabilitated or new track structure within a specified period of time, fails to maintain the upgraded or new track to certain standards and to make certain minimum capital improvements or ceases use of the locomotives within the specified geographic area and time period, as defined in the respective agreements. As the Company intends to comply with these agreements, the Company has recorded additions to track property and locomotives and has deferred the amount of the grants. The amortization of deferred grants is a non-cash offset to depreciation expense over the useful lives of the related assets. The Company recorded offsets to depreciation expense from grant amortization of
$2.8 million
and
$2.2 million
during the
three
months ended
June 30, 2014
and
2013
, respectively, and
$5.4 million
and
$4.4 million
during the
six
months ended
June 30, 2014
and
2013
, respectively.
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
Insurance and Third-Party Claims
Accounts receivable from insurance and other third-party claims at
June 30, 2014
included
$21.4 million
from the Company's North American & European Operations and
$15.1 million
from the Company's Australian Operations. The balance from the Company's North American & European Operations resulted predominately from the Company's anticipated insurance recoveries associated with a derailment in Alabama (the Aliceville Derailment in November 2013). The balance from the Company's Australian Operations resulted predominately from the Company's anticipated insurance recoveries associated with two derailments in Australia's Northern Territory (the Muckaty Derailment in June 2012 and the Edith River Derailment in December 2011). The Company received proceeds from insurance totaling
$1.2 million
and
$10.4 million
for the
six
months ended
June 30, 2014
and
2013
, respectively.
5. LONG-TERM DEBT:
Credit Facilities
On May 27, 2014, the Company entered into Amendment No. 2 to the Senior Secured Syndicated Credit Facility Agreement (Amendment No. 2), dated October 1, 2012, as amended by Amendment No. 1, dated March 28, 2013, pursuant to which the Company's Senior Secured Syndicated Credit Facility Agreement was amended and restated (Amended and Restated Credit Agreement). The credit facilities under the Amended and Restated Credit Agreement are comprised of a
$1,520.0 million
United States term loan, an
A$216.8 million
(or
$200.3 million
at the exchange rate on May 27, 2014) Australian term loan and a
$625.0 million
revolving credit facility. Amendment No. 2 also extended the maturity date of each of the Company's credit facilities to
May 31, 2019
. The revolving credit facility includes borrowing capacity for letters of credit and swingline loans.
The Amended and Restated Credit Agreement provides that borrowings under the revolving credit facility may be denominated in United States dollars, Australian dollars, Canadian dollars and Euros. At the Company's election, at the time of entering into specific borrowings, interest on borrowings is calculated under a "Base Rate" or "LIBOR/BBSW Rate." LIBOR is the London Interbank Offered Rate. BBSW is the Bank Bill Swap Reference Rate within Australia, which the Company believes is generally considered the Australian equivalent to LIBOR. The applicable borrowing spread for the Base Rate loans will initially be
0.75%
over the base rate, and, following the Company's first quarterly compliance certificate will range from
0.0%
to
1.0%
depending upon the Company's total leverage ratio. The applicable borrowing spread for LIBOR/BBSW Rate loans, will initially be
1.75%
over the LIBOR or BBSW, and, following the Company's first quarterly compliance certificate will range from
1.0%
to
2.0%
depending upon the Company's total leverage ratio.
In addition to paying interest on any outstanding borrowings under the Amended and Restated Credit Agreement, the Company is required to pay a commitment fee related to the unutilized portion of the commitments under the revolving credit facility. The commitment fee rate will initially be
0.3%
, and, following the Company's first quarterly compliance certificate will range from
0.2%
to
0.3%
depending upon the Company's total leverage ratio.
In connection with the Amended and Restated Credit Agreement, the Company wrote-off
$4.7 million
of unamortized deferred financing fees and capitalized an additional
$3.6 million
of new fees. Deferred financing costs are amortized as additional interest expense over the terms of the related debt using the effective-interest method for the term loan debt and the straight-line method for the revolving credit facility.
During the
three
months ended
June 30, 2014
, the Company made prepayments on its United States term loan of
$30.0 million
and prepayments on the Australian term loan of
A$12.0 million
(or
$11.3 million
at the exchange rate on
June 30, 2014
). As of
June 30, 2014
, the Company had outstanding term loans of
$1,490.0 million
with an interest rate of
1.90%
and
A$204.8 million
(or
$193.0 million
at the exchange rate on
June 30, 2014
) with an interest rate of
4.46%
.
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
The United States dollar-denominated and Australian dollar-denominated term loans will amortize in quarterly installments commencing with the quarter ending September 30, 2015, with the remaining principal balance payable upon maturity, as set forth below (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarterly Payment Date
|
|
Principal Amount of Each Quarterly Installment
|
|
United States:
|
|
September 30, 2015 through June 30, 2017
|
|
$
|
19,000
|
|
|
|
|
September 30, 2017 through March 31, 2019
|
|
$
|
38,000
|
|
|
|
|
Maturity date - May 31, 2019
|
|
$
|
1,072,000
|
|
|
|
|
|
|
|
|
Australia:
|
|
September 30, 2015 through June 30, 2017
|
|
A$
|
2,710
|
|
|
|
|
September 30, 2017 through March 31, 2019
|
|
A$
|
5,420
|
|
|
|
|
Maturity date - May 31, 2019
|
|
A$
|
145,180
|
|
The revolving credit facility under the Amended and Restated Credit Agreement includes sub-limits for revolving loans denominated in various currencies, including as of June 30, 2014 (a) up to
$275.0 million
under the United States dollar-denominated portion of the revolving credit facility, (b) up to
$200.0 million
under the Australian dollar-denominated portion of the revolving credit facility, (c) up to
$100.0 million
under the Canadian dollar-denominated portion of the revolving credit facility and (d) up to
$50.0 million
under the Euro-denominated portion of the revolving credit facility, with the ability to reallocate commitments among the sub-limits, provided that the total amount of all Australian dollar, Canadian dollar and Euro sub-limits cannot exceed
US$400.0 million
. In addition, the existing swingline credit facility portion of the revolving credit facility available under the United States dollar-denominated revolving credit facility increased from
$30.0 million
to
$50.0 million
.
The Amended and Restated Credit Agreement contains a number of customary affirmative and negative covenants, which are substantially consistent with the terms of the credit agreement prior to giving effect to Amendment No. 2 under the Amended and Restated Credit Agreement with respect to which the Company must maintain compliance. Those covenants, among other things, limit or prohibit the Company's ability, subject to certain exceptions, to incur additional indebtedness; create liens; make investments; pay dividends on capital stock or redeem, repurchase or retire capital stock; consolidate or merge or make acquisitions or dispose of assets; enter into sale and leaseback transactions; engage in any business unrelated to the business currently conducted by the Company; sell or issue capital stock of any of the Company's restricted subsidiaries; change the Company's fiscal year; enter into certain agreements containing negative pledges and upstream limitations and engage in certain transactions with affiliates. Under the Amended and Restated Credit Agreement, the Company may not have an interest coverage ratio less than
3.50 to 1.00
as of the last day of any fiscal quarter. Amendment No. 2 modified the leverage ratios. Under the Amended and Restated Credit Agreement, the Company may not exceed specified maximum total leverage ratios as described in the following table:
|
|
|
|
|
|
|
Period
|
|
Maximum Total Leverage Ratio
|
|
May 27, 2014 through June 30, 2015
|
|
4.25 to 1.00
|
|
July 1, 2015 through June 30, 2016
|
|
3.75 to 1.00
|
|
July 1, 2016 through May 31, 2019
|
|
3.50 to 1.00
|
As of
June 30, 2014
,
the Company was in compliance with the covenants under the Amended and Restated Credit Agreement
, including the maximum total leverage covenant noted above. As of
June 30, 2014
, the Company's usage under its
$625.0 million
revolving credit facility consisted of
$44.4 million
in borrowings,
$3.0 million
in letter of credit guarantees and
$577.5 million
of unused borrowing capacity. As of
June 30, 2014
, the Company had outstanding revolving loans of
$11.0 million
in United States dollar-denominated borrowings with an interest rate of
1.90%
,
A$15.0 million
in Australian dollar-denominated borrowings (or
$14.1 million
at the exchange rate on
June 30, 2014
) with an interest rate of
6.47%
,
C$14.0 million
in Canadian dollar-denominated borrowings (or
$13.1 million
at the exchange rate on
June 30, 2014
) with an interest rate of
2.99%
and
€4.5 million
in Euro-denominated borrowings (or
$6.2 million
at the exchange rate on
June 30, 2014
) with an interest rate of
1.83%
.
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
6. DERIVATIVE FINANCIAL INSTRUMENTS:
The Company actively monitors its exposure to interest rate and foreign currency exchange rate risks and uses derivative financial instruments to manage the impact of these risks. The Company uses derivatives only for purposes of managing risk associated with underlying exposures. The Company does not trade or use derivative instruments with the objective of earning financial gains on the interest rate or exchange rate fluctuations alone, nor does the Company use derivative instruments where it does not have underlying exposures. Complex instruments involving leverage or multipliers are not used. The Company manages its hedging position and monitors the credit ratings of counterparties and does not anticipate losses due to counterparty nonperformance. Management believes its use of derivative instruments to manage risk is in the Company's best interest. However, the Company's use of derivative financial instruments may result in short-term gains or losses and increased earnings volatility. The Company's instruments are recorded in the consolidated balance sheets at fair value in prepaid expenses and other, other assets, net, accrued expenses or other long-term liabilities.
The Company may designate derivatives as a hedge of a forecasted transaction or a hedge of the variability of the cash flows to be received or paid in the future related to a recognized asset or liability (cash flow hedge). The portion of the changes in the fair value of the derivative used as a cash flow hedge that is offset by changes in the expected cash flows related to a recognized asset or liability (the effective portion) is recorded in other comprehensive income/(loss). As the hedged item is realized, the gain or loss included in accumulated other comprehensive income is reported in the consolidated statements of operations on the same line item as the hedged item. The portion of the changes in the fair value of derivatives used as cash flow hedges that is not offset by changes in the expected cash flows related to a recognized asset or liability (the ineffective portion) is immediately recognized in earnings on the same line item as the hedged item.
The Company matches the hedge instrument to the underlying hedged item (assets, liabilities, firm commitments or forecasted transactions). At inception of the hedge and at least quarterly thereafter, the Company assesses whether the derivatives used to hedge transactions are highly effective in offsetting changes in either the fair value or cash flows of the hedged item. When it is determined that a derivative ceases to be a highly effective hedge, the Company discontinues hedge accounting, and any gains or losses on the derivative instrument thereafter are recognized in earnings during the period it no longer qualifies for hedge accounting.
From time to time, the Company may enter into certain derivative instruments that may not be designated as hedges for accounting purposes. For example, to mitigate currency exposures related to intercompany debt, cross-currency swap contracts may be entered into for periods consistent with the underlying debt. The Company believes such instruments are closely correlated with the underlying exposure, thus reducing the associated risk. The gains or losses from the changes in the fair value of derivative instruments not accounted for using hedge accounting are recognized in current period earnings within other income/(loss), net.
Interest Rate Risk Management
The Company uses interest rate swap agreements to manage its exposure to the changes in interest rates on the Company's variable rate debt. These swap agreements are recorded in the consolidated balance sheets at fair value. Changes in the fair value of the swap agreements are recorded in net income or other comprehensive income/(loss), based on whether the agreements are designated as part of a hedge transaction and whether the agreements are effective in offsetting the change in the value of the future interest payments attributable to the underlying portion of the Company's variable rate debt. Interest payments accrued each reporting period for these interest rate swaps are recognized in interest expense. The Company formally documents its hedge relationships, including identifying the hedge instruments and hedged items, as well as its risk management objectives and strategies for entering into the hedge transaction.
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
The following table summarizes the terms of the Company's outstanding interest rate swap agreements entered into to manage the Company's exposure to changes in interest rates on its variable rate debt (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notional Amount
|
|
|
|
|
|
Effective Date
|
|
Expiration Date
|
|
Date
|
|
Amount
|
|
Pay Fixed Rate
|
|
Receive Variable Rate
|
|
9/30/2013
|
|
9/30/2014
|
|
9/30/2013
|
|
$
|
1,350,000
|
|
|
0.35%
|
|
1-month LIBOR
|
|
|
|
|
|
12/31/2013
|
|
$
|
1,300,000
|
|
|
0.35%
|
|
1-month LIBOR
|
|
|
|
|
|
3/31/2014
|
|
$
|
1,250,000
|
|
|
0.35%
|
|
1-month LIBOR
|
|
|
|
|
|
6/30/2014
|
|
$
|
1,200,000
|
|
|
0.35%
|
|
1-month LIBOR
|
|
9/30/2014
|
|
9/30/2015
|
|
9/30/2014
|
|
$
|
1,150,000
|
|
|
0.54%
|
|
1-month LIBOR
|
|
|
|
|
|
12/31/2014
|
|
$
|
1,100,000
|
|
|
0.54%
|
|
1-month LIBOR
|
|
|
|
|
|
3/31/2015
|
|
$
|
1,050,000
|
|
|
0.54%
|
|
1-month LIBOR
|
|
|
|
|
|
6/30/2015
|
|
$
|
1,000,000
|
|
|
0.54%
|
|
1-month LIBOR
|
|
9/30/2015
|
|
9/30/2016
|
|
9/30/2015
|
|
$
|
350,000
|
|
|
0.93%
|
|
1-month LIBOR
|
|
9/30/2016
|
|
9/30/2026
|
|
9/30/2026
|
|
$
|
100,000
|
|
|
2.79%
|
|
3-month LIBOR
|
|
9/30/2016
|
|
9/30/2026
|
|
9/30/2026
|
|
$
|
100,000
|
|
|
2.79%
|
|
3-month LIBOR
|
|
9/30/2016
|
|
9/30/2026
|
|
9/30/2026
|
|
$
|
100,000
|
|
|
2.80%
|
|
3-month LIBOR
|
On November 9, 2012, the Company entered into multiple 10-year forward starting interest rate swap agreements to manage the exposure to changes in interest rates on the Company's variable rate debt. It remains probable that the Company will either issue
$300.0 million
of fixed-rate debt or have
$300.0 million
of variable-rate debt under the Company's commercial banking lines. The forward starting interest rate swap agreements are expected to settle in cash on
September 30, 2016
. The Company expects any gains or losses on settlement will be amortized over the life of the respective swaps.
The following table summarizes the Company's interest rate swap agreements that expired during 2013 (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notional Amount
|
|
|
|
|
|
Effective Date
|
|
Expiration Date
|
|
Date
|
|
Amount
|
|
Paid Fixed Rate
|
|
Receive Variable Rate
|
|
10/6/2008
|
|
9/30/2013
|
|
10/6/2008
|
|
$
|
120,000
|
|
|
3.88%
|
|
1-month LIBOR
|
|
10/4/2012
|
|
9/30/2013
|
|
10/4/2012
|
|
$
|
1,450,000
|
|
|
0.25%
|
|
1-month LIBOR
|
|
|
|
|
|
1/1/2013
|
|
$
|
1,350,000
|
|
|
0.25%
|
|
1-month LIBOR
|
|
|
|
|
|
4/1/2013
|
|
$
|
1,300,000
|
|
|
0.25%
|
|
1-month LIBOR
|
|
|
|
|
|
7/1/2013
|
|
$
|
1,250,000
|
|
|
0.25%
|
|
1-month LIBOR
|
The fair values of the Company's interest rate swap agreements were estimated based on Level 2 inputs. The Company's effectiveness testing during the
three and six
months ended
June 30, 2014
resulted in
no
amount of gain or loss reclassified from accumulated other comprehensive income into earnings due to ineffectiveness. During the
three and six
months ended
June 30, 2014
,
$0.6 million
and
$1.0 million
, respectively, of existing net losses were realized and recorded as interest expense in the consolidated statements of operations. During the three and six months ended
June 30, 2013
,
$1.2 million
and
$1.9 million
, respectively, of existing net losses were realized and recorded as interest expense in the consolidated statements of operations. Based on the Company's fair value assumptions as of
June 30, 2014
, it expects to realize
$2.8 million
of existing net losses that are reported in accumulated other comprehensive income into earnings within the next 12 months. See Note
10
,
Accumulated Other Comprehensive Income
, for additional information regarding the Company's cash flow hedges.
Foreign Currency Exchange Rate Risk
As of
June 30, 2014
, the Company's foreign subsidiaries had
$228.9 million
of third-party debt denominated in the local currencies in which the Company's foreign subsidiaries operate, including the Australian dollar, Canadian dollar and the Euro. The debt service obligations associated with this foreign currency debt are generally funded directly from those foreign operations. As a result, foreign currency risk related to this portion of the Company's debt service payments is limited. However, in the event the foreign currency debt service is not paid by the Company's foreign subsidiaries and is paid by United States subsidiaries, the Company may face exchange rate risk if the Australian dollar, Canadian dollar or Euro were to appreciate relative to the United States dollar and require higher United States dollar equivalent cash.
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
The Company is also exposed to foreign currency exchange rate risk related to its foreign subsidiaries, including non-functional currency intercompany debt, typically associated with intercompany debt from the Company's United States subsidiaries to its foreign subsidiaries associated with acquisitions and any timing difference between announcement and closing of an acquisition of a foreign business. To mitigate currency exposures related to non-functional currency denominated intercompany debt, cross-currency swap contracts may be entered into for periods consistent with the underlying debt. In determining the fair value of the derivative contract, the significant inputs to valuation models are quoted market prices of similar instruments in active markets. To mitigate currency exposures of non-United States dollar-denominated acquisitions, the Company may enter into foreign exchange forward contracts. Although cross-currency swap and foreign exchange forward derivative contracts used to mitigate exposures on foreign currency intercompany debt do not qualify for hedge accounting, the Company believes that such instruments are closely correlated with the underlying exposure, thus reducing the associated risk. The gains or losses from changes in the fair value of derivative instruments that do not qualify for hedge accounting are recognized in current period earnings within other income/(loss), net.
To mitigate the foreign currency exchange rate risk related to a non-functional currency intercompany loan between the United States and Australian entities, the Company entered into two Australian dollar/United States dollar floating to floating cross-currency swap agreements (the Swaps), effective as of December 3, 2012 and originally set to expire on December 1, 2014. On May 23, 2014, the intercompany loan was repaid and the Company terminated the Swaps. In connection with the termination, the Company paid
A$105 million
and received
$108.9 million
, net of the Company's quarterly settlement payments of
$0.6 million
. The Swaps required the Company to pay Australian dollar BBSW plus 3.25% based on a notional amount of
A$105.0 million
and allowed the Company to receive United States LIBOR plus 2.82% based on a notional amount of
$109.6 million
on a quarterly basis. As a result of the quarterly net settlement payments, the Company realized a net expense of
$0.6 million
and
$1.2 million
within interest expense for the
three and six
months ended
June 30, 2014
, respectively and
$0.7 million
and
$1.5 million
for the
three and six
months ended
June 30, 2013
, respectively. In addition, the Company recognized a net expense of
$0.3 million
and
$0.1 million
within other income/(loss), net related to the settlement of the derivative agreement and the mark-to-market of the underlying intercompany debt instrument to the exchange rate for the
three and six
months ended
June 30, 2014
, respectively.
The following table summarizes the fair value of the Company's derivative instruments recorded in the consolidated balance sheets as of
June 30, 2014
and
December 31, 2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value
|
|
|
Balance Sheet Location
|
|
June 30, 2014
|
|
December 31, 2013
|
|
Asset Derivatives:
|
|
|
|
|
|
|
Derivatives designated as hedges:
|
|
|
|
|
|
|
Interest rate swap agreements
|
Other assets, net
|
|
$
|
15,686
|
|
|
$
|
36,987
|
|
|
Derivatives not designated as hedges:
|
|
|
|
|
|
|
Cross-currency swap agreement
|
Prepaid expenses and other
|
|
$
|
—
|
|
|
$
|
16,056
|
|
|
|
|
|
|
|
|
|
Liability Derivatives:
|
|
|
|
|
|
|
Derivatives designated as hedges:
|
|
|
|
|
|
|
Interest rate swap agreements
|
Accrued expenses
|
|
$
|
2,781
|
|
|
$
|
1,601
|
|
|
Interest rate swap agreements
|
Other long-term liabilities
|
|
724
|
|
|
838
|
|
|
Total liability derivatives designated as hedges
|
|
|
$
|
3,505
|
|
|
$
|
2,439
|
|
The following table shows the effect of the Company's derivative instruments designated as cash flow hedges for the
three and six
months ended
June 30, 2014
and
2013
in other comprehensive income/(loss) (OCI) (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Cash Flow Hedge OCI Activity, Net of Tax
|
|
|
|
Three Months Ended
|
|
Six Months Ended
|
|
|
|
June 30,
|
|
June 30,
|
|
|
|
2014
|
|
2013
|
|
2014
|
|
2013
|
|
Derivatives Designated as Cash Flow Hedges:
|
|
|
|
|
|
|
|
|
|
Effective portion of changes in fair value recognized in OCI:
|
|
|
|
|
|
|
|
|
|
Interest rate swap agreements
|
|
$
|
(6,460
|
)
|
|
$
|
12,274
|
|
|
$
|
(13,419
|
)
|
|
$
|
16,712
|
|
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
The following table shows the effect of the Company's derivative instruments not designated as hedges for the
three and six
months ended
June 30, 2014
and
2013
in the consolidated statements of operations (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount Recognized in Earnings
|
|
|
|
|
|
Three Months Ended
|
|
Six Months Ended
|
|
|
|
Location of Amount Recognized in Earnings
|
|
June 30,
|
|
June 30,
|
|
|
|
2014
|
|
2013
|
|
2014
|
|
2013
|
|
Derivative Instruments Not Designated as Hedges:
|
|
|
|
|
|
|
|
|
|
|
|
Cross-currency swap agreement
|
|
Interest (expense)/income
|
|
$
|
(630
|
)
|
|
$
|
(717
|
)
|
|
$
|
(1,184
|
)
|
|
$
|
(1,532
|
)
|
|
Cross-currency swap agreement
|
|
Other income/(loss), net
|
|
(262
|
)
|
|
26
|
|
|
(86
|
)
|
|
22
|
|
|
|
|
|
|
$
|
(892
|
)
|
|
$
|
(691
|
)
|
|
$
|
(1,270
|
)
|
|
$
|
(1,510
|
)
|
7. FAIR VALUE OF FINANCIAL INSTRUMENTS:
The following methods and assumptions were used to estimate the fair value of each class of financial instruments held by the Company:
|
|
|
|
•
|
Financial Instruments Carried at Fair Value:
Derivative instruments are recorded on the balance sheet as either assets or liabilities measured at fair value. During the reporting period, the Company's derivative financial instruments consisted of interest rate swap agreements and cross-currency swap agreements. The Company estimated the fair value of its interest rate swap agreements based on Level 2 valuation inputs, including fixed interest rates, LIBOR implied forward interest rates and the remaining time to maturity. The Company estimated the fair value of its cross-currency swap agreements based on Level 2 valuation inputs, including LIBOR implied forward interest rates, Australian dollar BBSW implied forward interest rates and the remaining time to maturity.
|
|
|
|
|
•
|
Financial Instruments Carried at Historical Cost:
The fair value of the Company's long-term debt was estimated using a discounted cash flow analysis based on Level 2 valuation inputs, including borrowing rates the Company believes are currently available to it for loans with similar terms and maturities.
|
The following table presents the Company's financial instruments that are carried at fair value using Level 2 inputs at
June 30, 2014
and
December 31, 2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30,
2014
|
|
December 31,
2013
|
|
Financial instruments carried at fair value using Level 2 inputs:
|
|
|
|
|
Financial assets carried at fair value:
|
|
|
|
|
Interest rate swap agreements
|
$
|
15,686
|
|
|
$
|
36,987
|
|
|
Cross-currency swap agreement
|
—
|
|
|
16,056
|
|
|
Total financial assets carried at fair value
|
$
|
15,686
|
|
|
$
|
53,043
|
|
|
Financial liabilities carried at fair value:
|
|
|
|
|
Interest rate swap agreements
|
$
|
3,505
|
|
|
$
|
2,439
|
|
|
Total financial liabilities carried at fair value
|
$
|
3,505
|
|
|
$
|
2,439
|
|
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
The following table presents the carrying value and fair value using Level 2 inputs of the Company's financial instruments carried at historical cost at
June 30, 2014
and
December 31, 2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2014
|
|
December 31, 2013
|
|
|
|
Carrying Value
|
|
Fair Value
|
|
Carrying Value
|
|
Fair Value
|
|
Financial liabilities carried at historical cost:
|
|
|
|
|
|
|
|
|
|
United States term loan
|
|
$
|
1,490,000
|
|
|
$
|
1,477,987
|
|
|
$
|
1,433,414
|
|
|
$
|
1,429,204
|
|
|
Australian term loan
|
|
193,004
|
|
|
191,128
|
|
|
134,436
|
|
|
135,491
|
|
|
Revolving credit facility
|
|
44,422
|
|
|
44,658
|
|
|
15,949
|
|
|
15,956
|
|
|
Amortizing notes component of tangible equity units
|
|
16,591
|
|
|
16,562
|
|
|
21,878
|
|
|
21,698
|
|
|
Other debt
|
|
19,021
|
|
|
18,872
|
|
|
19,035
|
|
|
18,996
|
|
|
Total
|
|
$
|
1,763,038
|
|
|
$
|
1,749,207
|
|
|
$
|
1,624,712
|
|
|
$
|
1,621,345
|
|
8. INCOME TAXES:
The United States Short Line Tax Credit is an income tax track maintenance credit for Class II and Class III railroads to reduce their federal income tax based on qualified railroad track maintenance expenditures. Qualified expenditures include amounts incurred for maintaining track, including roadbed, bridges and related track structures owned or leased by a Class II or Class III railroad. The credit is equal to
50%
of the qualified expenditures, subject to an annual limitation of
$3,500
multiplied by the number of miles of railroad track owned or leased by the Class II or Class III railroads as of the end of their tax year. The United States Short Line Tax Credit was in existence from 2005 through 2011. On January 2, 2013, the United States Short Line Tax Credit was extended for 2012 and 2013. The extension of the United States Short Line Tax Credit produced book income tax benefits of
$7.5 million
and
$52.4 million
for the
three and six
months ended
June 30, 2013
, respectively. The total tax credit impact in the
six
months ended
June 30, 2013
included
$41.0 million
for the retroactive fiscal year 2012 tax benefit and
$11.5 million
associated with the
six
months ended
June 30, 2013
. Since the extension became law in 2013, the 2012 impact was recorded in the first quarter of 2013.
The Company's effective income tax rate in the
three
months ended
June 30, 2014
was
34.8%
, compared with
27.9%
in the
three
months ended
June 30, 2013
. The Company's provision for income tax for the
six
months ended
June 30, 2014
was
$55.5 million
, which represented
35.6%
of income before income taxes and included a benefit of
$1.0 million
as a result of adjusting the Company's deferred income taxes to reflect the impact of the RCP&E acquisition. Excluding the
$41.0 million
retroactive income tax benefit from the United States Short Line Tax Credit, the Company's provision for income tax for the
six
months ended
June 30, 2013
was
$41.2 million
, which represented
27.9%
of income before income taxes other than the retroactive benefit from the United States Short Line Tax Credit. The increase in the effective income tax rates for the
three
and
six
months ended
June 30, 2014
was primarily attributable to the expiration of the Short Line Tax Credit on December 31, 2013.
9. COMMITMENTS AND CONTINGENCIES:
From time to time, the Company is a defendant in certain lawsuits resulting from the Company's operations in the ordinary course. Management believes there are adequate provisions in the financial statements for any probable liabilities that may result from disposition of the pending lawsuits. Based upon currently available information, the Company does not believe it is reasonably possible that any such lawsuit or related lawsuits would be material to the Company's results of operations or have a material adverse effect on the Company's financial position or liquidity.
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
10. ACCUMULATED OTHER COMPREHENSIVE INCOME:
The following tables set forth accumulated other comprehensive income included in the consolidated balance sheets (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign Currency Translation Adjustment
|
|
Defined Benefit Plans
|
|
Net Unrealized Gain/(Loss) on Cash Flow Hedges
|
|
Accumulated Other Comprehensive Income/(Loss)
|
|
Balance, December 31, 2013
|
$
|
(14,687
|
)
|
|
$
|
214
|
|
|
$
|
20,562
|
|
|
$
|
6,089
|
|
|
Other comprehensive income/(loss) before reclassifications
|
18,177
|
|
|
135
|
|
|
(12,810
|
)
|
|
5,502
|
|
|
Amounts reclassified from accumulated other comprehensive income, net of tax benefit of $406
|
—
|
|
|
—
|
|
|
(609
|
)
|
(a)
|
(609
|
)
|
|
Current period change
|
18,177
|
|
|
135
|
|
|
(13,419
|
)
|
|
4,893
|
|
|
Balance, June 30, 2014
|
$
|
3,490
|
|
|
$
|
349
|
|
|
$
|
7,143
|
|
|
$
|
10,982
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign Currency Translation Adjustment
|
|
Defined Benefit Plans
|
|
Net Unrealized Gain/(Loss) on Cash Flow Hedges
|
|
Accumulated Other Comprehensive Income/(Loss)
|
|
Balance, December 31, 2012
|
$
|
47,845
|
|
|
$
|
(148
|
)
|
|
$
|
(426
|
)
|
|
$
|
47,271
|
|
|
Other comprehensive income/(loss) before reclassifications
|
(53,171
|
)
|
|
196
|
|
|
17,851
|
|
|
(35,124
|
)
|
|
Amounts reclassified from accumulated other comprehensive income, net of tax benefit of $759
|
—
|
|
|
—
|
|
|
(1,139
|
)
|
(a)
|
(1,139
|
)
|
|
Current period change
|
(53,171
|
)
|
|
196
|
|
|
16,712
|
|
|
(36,263
|
)
|
|
Balance, June 30, 2013
|
$
|
(5,326
|
)
|
|
$
|
48
|
|
|
$
|
16,286
|
|
|
$
|
11,008
|
|
(a) Existing net losses realized and recorded in interest expense on the consolidated statements of operations (see Note
6
,
Derivative Financial Instruments
).
11. SIGNIFICANT NON-CASH INVESTING AND FINANCING ACTIVITIES:
As of
June 30, 2014
and
2013
, the Company had outstanding receivables from outside parties for the funding of capital expenditures of
$25.9 million
and
$34.1 million
, respectively. At
June 30, 2014
and
2013
, the Company also had
$27.8 million
and
$26.7 million
, respectively, of purchases of property and equipment that were not paid and, accordingly, were accrued in accounts payable in the normal course of business.
12. SEGMENT INFORMATION:
The Company's various railroad lines are divided into
11
operating regions. All of the regions have similar characteristics; however, the Company presents its financial information as two reportable segments, North American & European Operations and Australian Operations.
The results of operations of the foreign entities are maintained in the respective local currency (the Australian dollar, the Canadian dollar and the Euro) and then translated into United States dollars at the applicable exchange rates for inclusion in the consolidated financial statements. As a result, any appreciation or depreciation of these currencies against the United States dollar will impact the Company's results of operations.
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
The following tables set forth the Company's North American & European Operations and Australian Operations for the
three and six
months ended
June 30, 2014
and
2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, 2014
|
|
Three Months Ended June 30, 2013
|
|
|
North American & European Operations
|
|
Australian Operations
|
|
Total Operations
|
|
North American & European Operations
|
|
Australian Operations
|
|
Total Operations
|
|
Operating revenues
|
$
|
331,444
|
|
|
$
|
83,119
|
|
|
$
|
414,563
|
|
|
$
|
317,216
|
|
|
$
|
83,432
|
|
|
$
|
400,648
|
|
|
Income from operations
|
$
|
84,528
|
|
|
$
|
25,581
|
|
|
$
|
110,109
|
|
|
$
|
82,122
|
|
|
$
|
25,295
|
|
|
$
|
107,417
|
|
|
Depreciation and amortization
|
$
|
31,040
|
|
|
$
|
7,172
|
|
|
$
|
38,212
|
|
|
$
|
27,388
|
|
|
$
|
6,773
|
|
|
$
|
34,161
|
|
|
Interest expense
|
$
|
14,280
|
|
|
$
|
3,534
|
|
|
$
|
17,814
|
|
|
$
|
13,282
|
|
|
$
|
3,921
|
|
|
$
|
17,203
|
|
|
Interest income
|
$
|
192
|
|
|
$
|
49
|
|
|
$
|
241
|
|
|
$
|
915
|
|
|
$
|
35
|
|
|
$
|
950
|
|
|
Provision for income taxes
|
$
|
(26,007
|
)
|
|
$
|
(6,560
|
)
|
|
$
|
(32,567
|
)
|
|
$
|
(19,379
|
)
|
|
$
|
(5,839
|
)
|
|
$
|
(25,218
|
)
|
|
Expenditures for additions to property & equipment, net of grants from outside parties
|
$
|
85,412
|
|
|
$
|
3,047
|
|
|
$
|
88,459
|
|
|
$
|
59,215
|
|
|
$
|
13,558
|
|
|
$
|
72,773
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30, 2014
|
|
Six Months Ended June 30, 2013
|
|
|
North American & European Operations
|
|
Australian Operations
|
|
Total Operations
|
|
North American & European Operations
|
|
Australian Operations
|
|
Total Operations
|
|
Operating revenues
|
$
|
631,431
|
|
|
$
|
159,411
|
|
|
$
|
790,842
|
|
|
$
|
616,311
|
|
|
$
|
159,287
|
|
|
$
|
775,598
|
|
|
Income from operations
|
$
|
140,218
|
|
|
$
|
44,766
|
|
|
$
|
184,984
|
|
|
$
|
136,916
|
|
|
$
|
46,701
|
|
|
$
|
183,617
|
|
|
Depreciation and amortization
|
$
|
61,619
|
|
|
$
|
14,234
|
|
|
$
|
75,853
|
|
|
$
|
54,799
|
|
|
$
|
13,585
|
|
|
$
|
68,384
|
|
|
Interest expense
|
$
|
23,725
|
|
|
$
|
7,730
|
|
|
$
|
31,455
|
|
|
$
|
29,093
|
|
|
$
|
8,230
|
|
|
$
|
37,323
|
|
|
Interest income
|
$
|
1,094
|
|
|
$
|
181
|
|
|
$
|
1,275
|
|
|
$
|
1,804
|
|
|
$
|
189
|
|
|
$
|
1,993
|
|
|
(Provision for)/benefit from income taxes
|
$
|
(44,464
|
)
|
|
$
|
(11,003
|
)
|
|
$
|
(55,467
|
)
|
|
$
|
10,670
|
|
|
$
|
(10,956
|
)
|
|
$
|
(286
|
)
|
|
Expenditures for additions to property & equipment, net of grants from outside parties
|
$
|
139,397
|
|
|
$
|
7,880
|
|
|
$
|
147,277
|
|
|
$
|
73,926
|
|
|
$
|
32,400
|
|
|
$
|
106,326
|
|
The following table sets forth the property and equipment recorded in the consolidated balance sheets for the Company's North American & European Operations and Australian Operations as of
June 30, 2014
and
December 31, 2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 30, 2014
|
|
December 31, 2013
|
|
|
North American & European Operations
|
|
Australian Operations
|
|
Total Operations
|
|
North American & European Operations
|
|
Australian Operations
|
|
Total Operations
|
|
Property & equipment, net
|
$
|
3,200,523
|
|
|
$
|
577,964
|
|
|
$
|
3,778,487
|
|
|
$
|
2,883,452
|
|
|
$
|
557,292
|
|
|
$
|
3,440,744
|
|
13. RECENTLY ISSUED ACCOUNTING STANDARDS:
In February 2013, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) 2013-04,
Liabilities (Topic 405): Obligations Resulting from Joint and Several Liability Arrangements for Which the Total Amount of the Obligation is Fixed at the Reporting Date,
which specifies how an entity should measure obligations resulting from joint and several liability arrangements for which the total amount of the obligation within the scope of the guidance is fixed at the reporting date and requires entities to disclose the nature and amount of the obligation as well as other information about those obligations. This guidance is effective for and was adopted by the Company in the first quarter of 2014 and did not have a material impact on the Company's consolidated financial statements.
GENESEE & WYOMING INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
In March 2013, the FASB issued ASU 2013-05,
Foreign Currency Matters (Topic 830): Parent's Accounting for the Cumulative Translation Adjustment Upon Derecognition of Certain Subsidiaries or Groups of Assets within a Foreign Entity or of an Investment in a Foreign Entity,
which provides clarification of when to release the cumulative translation adjustment into net income when a parent either sells a part or all of its investment in a foreign entity or no longer holds a controlling financial interest in a subsidiary or group of assets within a foreign entity. This guidance is effective for and was adopted by the Company in the first quarter of 2014 and did not have a material impact on the Company's consolidated financial statements. However, it could impact the accounting for potential future sales of investments or changes in control of foreign entities.
In April 2013, the FASB issued ASU 2013-07,
Presentation of Financial Statements (Topic 205): The Liquidation Basis of Accounting,
which clarifies when an entity should apply the liquidation basis of accounting and provides principles for the recognition and measurement of assets and liabilities using the liquidation basis of accounting. This guidance is effective for and was adopted by the Company in the first quarter of 2014 and did not have an impact on the Company's consolidated financial statements.
Accounting Standards Not Yet Effective
In January 2014, the FASB issued ASU 2014-05,
Service Concession Arrangements (Topic 853),
which specifies that an operating entity should not account for a service concession arrangement that is within the scope of this guidance as a lease in accordance with Topic 840. This guidance will be effective for annual reporting periods beginning on or after December 15, 2014, and the interim periods within those annual periods. The Company does not expect the adoption of this guidance to have a material impact on its consolidated financial statements.
In April 2014, the FASB issued ASU 2014-08,
Presentation of Financial Statements (Topic 205) and Property, Plant and Equipment (Topic 360): Reporting Discontinued Operations and Disclosures of Disposals of Components of an Entity,
which changes the requirements for reporting discontinued operations by limiting discontinued operations reporting to disposals of components of an entity that represent strategic shifts that have (or will have) a major effect on the entity's operations and financial results. This guidance should be applied prospectively and will be effective for all disposals (or classifications as held for sale) of components of an entity that occur within annual periods beginning on or after December 15, 2014, and interim periods within those years, and for all businesses that, on acquisition, are classified as held for sale that occur within annual periods beginning on or after December 15, 2014, and interim periods within those years. Early adoption is permitted, but only for disposals (or classifications as held for sale) that have not been reported in financial statements previously issued or available for issuance. The Company does not expect the adoption of this guidance to have a material impact on its consolidated financial statements.
In May 2014, the FASB issued ASU 2014-09,
Revenue from Contracts with Customers (Topic 606),
which outlines a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers and includes the specific steps for recognizing revenue and disclosure requirements. This guidance should be applied retrospectively and will be effective for annual reporting periods beginning after December 15, 2016, including interim periods within those annual periods. The Company is currently assessing the impact of adopting this guidance on its consolidated financial statements.
In June 2014, the FASB issued ASU 2014-12,
Compensation — Stock Compensation (Topic 718): Accounting for Share-Based Payments When the Terms of an Award Provide That a Performance Target Could Be Achieved after the Requisite Service Period
, which requires that a performance target that affects vesting and that could be achieved after the requisite service period be treated as a performance condition. This guidance should be applied either prospectively to all awards granted or modified after the effective date or retrospectively to all awards with performance targets that are outstanding as of the beginning of the earliest annual period presented in the financial statements and to all new or modified awards thereafter. The amendments in this guidance are effective for annual reporting periods and interim periods within those annual periods beginning after December 15, 2015. Earlier adoption is permitted. The Company does not expect the adoption of this guidance to have an impact on its consolidated financial statements.
|
|
|
|
ITEM 2.
|
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
|
The following discussion should be read in conjunction with our consolidated financial statements, related notes and other financial information included elsewhere in this Quarterly Report on Form 10-Q and our
2013
Annual Report on Form 10-K.
Recent Developments
On May 30, 2014, our new subsidiary, Rapid City, Pierre & Eastern Railroad, Inc. (RCP&E), purchased the assets comprising the western end of Canadian Pacific Railway Limited's (CP) Dakota, Minnesota & Eastern Railroad Corporation (DM&E) rail line for a cash purchase price of
$217.7 million
, including the purchase of materials and supplies, railcars, equipment and vehicles. The RCP&E commenced operations on June 1, 2014. For additional information regarding this purchase, see "Changes in Operations—United States—Rapid City, Pierre & Eastern Railroad" below. The acquisition was financed with borrowings under our Amended and Restated Senior Secured Syndicated Credit Facility Agreement (Amended and Restated Credit Agreement). For additional information regarding the amendment, see "Liquidity and Capital Resources—Credit Facilities" below.
In Australia, we were recently informed that a small iron ore mine that ships over our rail line has exhausted its resources and that a larger iron ore mine customer plans to close temporarily due permitting delays associated with a planned expansion. Based on discussions with the customer, the latter mine is expected to reopen in mid to late 2015, although we believe the re-opening will be dependent on the global price of iron ore. Combined annual revenues from these mines are approximately $20 million. Based on the timing of these developments, we expect a revenue loss of approximately $5 million over the second half of 2014 and a revenue loss of approximately $15 million in 2015. The revenue impact in 2015 could be moderated if the larger mine customer resumes operations. Following these closures, G&W’s annual iron ore-related revenues are expected to be approximately $120 million, generally split equally between freight and non-freight revenue.
Overview
We own and operate short line and regional freight railroads and provide railcar switching and other rail-related services in the United States, Australia, Canada, the Netherlands and Belgium. In addition, we operate the Tarcoola to Darwin rail line, which links the Port of Darwin to the Australian interstate rail network in South Australia. Our operations currently include
112
railroads organized into
11
regions, with approximately
15,500
miles of owned and leased track and approximately
3,300
additional miles under track access arrangements. In addition, we provide rail service at
37
ports in North America, Australia and Europe and perform contract coal loading and railcar switching for industrial customers.
Net income in the
three
months ended
June 30, 2014
was
$60.9 million
, compared with net income of
$65.1 million
in the
three
months ended
June 30, 2013
. Our diluted earnings per common share (EPS) in the
three
months ended
June 30, 2014
were
$1.07
with
56.9 million
weighted average shares outstanding, compared with diluted EPS of
$1.14
with
56.7 million
weighted average shares outstanding in the
three
months ended
June 30, 2013
. The net depreciation of foreign currencies relative to the United States dollar reduced diluted EPS in the
three
months ended
June 30, 2014
by approximately
$0.03
, compared with the
three
months ended
June 30, 2013
.
Our effective income tax rate in the
three
months ended
June 30, 2014
was
34.8%
, compared with
27.9%
in the
three
months ended
June 30, 2013
. The higher effective income tax rate for the
three
months ended
June 30, 2014
was primarily attributable to the expiration of the United States Short Line Tax Credit on December 31, 2013.
Our results for the
three
months ended
June 30, 2014
and
2013
included certain significant items that are set forth below (dollars in millions, except per share amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(Loss) Before Taxes Impact
|
|
After-Tax Net Income/(Loss) Impact
|
|
Diluted Earnings/(Loss) Per Common Share Impact
|
|
Three Months Ended June 30, 2014
|
|
|
|
|
|
|
|
Credit Facility refinancing-related costs
|
|
$
|
(4.7
|
)
|
|
$
|
(2.9
|
)
|
|
$
|
(0.05
|
)
|
|
Business development and related costs
|
|
$
|
(1.7
|
)
|
|
$
|
(1.0
|
)
|
|
$
|
(0.02
|
)
|
|
Net gain on sale of assets
|
|
$
|
1.4
|
|
|
$
|
1.0
|
|
|
$
|
0.02
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, 2013
|
|
|
|
|
|
|
|
Business development and related costs
|
|
$
|
(1.2
|
)
|
|
$
|
(0.7
|
)
|
|
$
|
(0.01
|
)
|
|
Net gain on sale of assets
|
|
$
|
1.0
|
|
|
$
|
0.7
|
|
|
$
|
0.01
|
|
|
Short line tax credit
|
|
$
|
—
|
|
|
$
|
7.5
|
|
|
$
|
0.13
|
|
Our results for the
three
months ended
June 30, 2014
included a non-cash write-off of deferred financing fees of
$4.7 million
associated with the refinancing of our Credit Agreement, business development and related costs of
$1.7 million
, including RCP&E acquisition and integration related costs and reorganization costs associated with our railroad construction subsidiary, Atlas Railroad Construction, LLC (Atlas), and net gain on sale of assets of
$1.4 million
.
Our results for the
three
months ended
June 30, 2013
included
$1.2 million
of business development and related costs, including RailAmerica integration and acquisition costs, and net gain on sale of assets of
$1.0 million
. The
three
months ended
June 30, 2013
also included a benefit of
$7.5 million
associated with the Short Line Tax Credit.
Our operating revenues increased
$13.9 million
, or
3.5%
, to
$414.6 million
in the
three
months ended
June 30, 2014
, compared with
$400.6 million
in the
three
months ended
June 30, 2013
. The increase included
$5.5 million
in revenues from the RCP&E. The increase in our operating revenues was partially offset by a
$6.5 million
decrease from the net depreciation of foreign currencies relative to the United States dollar. Excluding the net impact from foreign currency depreciation, same railroad operating revenues, which exclude the RCP&E, increased
$15.0 million
, or
3.8%
. When we discuss either revenues from existing operations or same railroad revenues, we are referring to the change in our revenues, period-over-period, associated with operations that we managed in both periods (i.e., excluding the impact of acquisitions).
Same railroad freight revenues in the
three
months ended
June 30, 2014
were
$311.8 million
, compared with
$299.8 million
in the
three
months ended
June 30, 2013
. Excluding a
$5.1 million
decrease from the impact of foreign currency depreciation, same railroad freight revenues increased by
$17.1 million
, or
5.8%
.
Same railroad non-freight revenues in the
three
months ended
June 30, 2014
were
$97.3 million
, compared with
$100.8 million
in the
three
months ended
June 30, 2013
. Excluding a
$1.4 million
decrease from the net impact of foreign currency depreciation, same railroad non-freight revenues decreased by
$2.1 million
, or
2.2%
, primarily due to less construction revenues.
Our traffic in the
three
months ended
June 30, 2014
was
509,631
carloads, an increase of
28,652
carloads, or
6.0%
, compared with the
three
months ended
June 30, 2013
. The traffic increase consisted of
23,944
carloads, or
5.0%
, from existing operations and
4,708
carloads from new operations. The increase from existing operations was principally due to increases of 9,056 carloads of coal and coke traffic (primarily in the Midwest and Ohio Valley regions), 7,286 carloads of traffic from our other commodity group (primarily overhead Class I shipments), 4,927 carloads of agricultural products traffic (primarily in the Pacific Region) and 3,601 carloads of metals traffic (primarily in the Northeast and Canada regions), partially offset by a 3,302 carload decrease in petroleum products traffic (primarily in the Southern and Pacific regions). All remaining traffic increased by a net 2,376 carloads.
Income from operations in the
three
months ended
June 30, 2014
was
$110.1 million
, compared with
$107.4 million
in the
three
months ended
June 30, 2013
, an increase of
$2.7 million
, or
2.5%
. Our operating ratio, defined as operating expenses divided by operating revenues, was
73.4%
in the
three
months ended
June 30, 2014
, compared with
73.2%
in the
three
months ended
June 30, 2013
. Income from operations in the
three
months ended
June 30, 2014
included
$1.7 million
of business development and related costs, partially offset by net gain on sale of assets of
$1.4 million
. Income from operations in the
three
months ended
June 30, 2013
included
$1.2 million
of business development and related costs, partially offset by net gain on sale of assets of
$1.0 million
.
Our operating revenues increased
$15.2 million
, or
2.0%
, to
$790.8 million
in the
six
months ended
June 30, 2014
, compared with
$775.6 million
in the
six
months ended
June 30, 2013
. Income from operations in the
six
months ended
June 30, 2014
was
$185.0 million
, compared with
$183.6 million
in the
six
months ended
June 30, 2013
, an increase of
$1.4 million
, or
0.7%
.
Net income in the
six
months ended
June 30, 2014
was
$100.5 million
, compared with net income of
$147.8 million
in the
six
months ended
June 30, 2013
. Our diluted EPS in the
six
months ended
June 30, 2014
were
$1.77
with
56.9 million
weighted average shares outstanding, compared with diluted EPS of
$2.60
with
56.6 million
weighted average shares outstanding in the
six
months ended
June 30, 2013
.
Our results for the
six
months ended
June 30, 2014
and
2013
included certain significant items that are set forth below (dollars in millions, except per share amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(Loss) Before Taxes Impact
|
|
After-Tax Net Income/(Loss) Impact
|
|
Diluted Earnings/(Loss) Per Common Share Impact
|
|
Six Months Ended June 30, 2014
|
|
|
|
|
|
|
|
Credit Facility refinancing-related costs
|
|
$
|
(4.7
|
)
|
|
$
|
(2.9
|
)
|
|
$
|
(0.05
|
)
|
|
Business development and related costs
|
|
$
|
(2.8
|
)
|
|
$
|
(1.8
|
)
|
|
$
|
(0.03
|
)
|
|
Net gain on sale of assets
|
|
$
|
2.2
|
|
|
$
|
1.5
|
|
|
$
|
0.03
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30, 2013
|
|
|
|
|
|
|
|
Retroactive 2012 short line tax credit
|
|
$
|
—
|
|
|
$
|
41.0
|
|
|
$
|
0.72
|
|
|
2013 short line tax credit
|
|
$
|
—
|
|
|
$
|
11.5
|
|
|
$
|
0.20
|
|
|
Credit Facility refinancing-related costs
|
|
$
|
(0.6
|
)
|
|
$
|
(0.4
|
)
|
|
$
|
(0.01
|
)
|
|
Business development and related costs
|
|
$
|
(14.0
|
)
|
|
$
|
(8.7
|
)
|
|
$
|
(0.15
|
)
|
|
Net gain on sale of assets
|
|
$
|
2.7
|
|
|
$
|
1.9
|
|
|
$
|
0.03
|
|
During the
six
months ended
June 30, 2014
, we generated
$200.1 million
in cash flows from operating activities. During the same period, we purchased
$174.9 million
of property and equipment, including
$61.0 million
for new business investments, partially offset by
$27.6 million
in cash received from government grants and other outside parties for capital spending and
$3.4 million
in cash proceeds from the sale of property and equipment. We also paid
$220.5 million
for acquisitions and received
$126.3 million
of net proceeds primarily from the refinancing of our Credit Agreement during the
six
months ended
June 30, 2014
.
Changes in Operations
United States
Rapid City, Pierre & Eastern Railroad:
On May 30, 2014, our new subsidiary, RCP&E, purchased the assets comprising the western end of CP's DM&E rail line for a cash purchase price of
$217.7 million
, including the purchase of materials and supplies, railcars, equipment and vehicles. RCP&E commenced freight service on the line on June 1, 2014. The results of operations from RCP&E have been included in our statement of operations since the acquisition date within our North American & European Operations segment.
RCP&E operates approximately
670
miles of rail line between Tracy, Minnesota and Rapid City, South Dakota; north of Rapid City to Colony, Wyoming; south of Rapid City to Dakota Junction, Nebraska; and connecting branch lines as well as trackage from Dakota Junction to Crawford, Nebraska, currently leased to the Nebraska Northwestern Railroad Inc. (NNW). Customers on the RCP&E ship approximately
52,000
carloads annually of grain, bentonite clay, ethanol, fertilizer and other products. RCP&E has the ability to interchange with CP, Union Pacific Railroad, BNSF Railway Company and NNW. RCP&E has approximately
180
employees, most of whom were hired from the DM&E operations.
We accounted for the acquisition as a business combination using the acquisition method of accounting under U.S. GAAP. The following preliminary acquisition-date fair values assigned to the acquired net assets will be finalized upon the completion of our fair value analysis (dollars in thousands):
|
|
|
|
|
|
|
|
|
Materials and supplies
|
|
$
|
2,572
|
|
|
Prepaid expenses and other
|
|
116
|
|
|
Property and equipment
|
|
215,116
|
|
|
Total assets
|
|
217,804
|
|
|
Accounts payable and accrued expenses
|
|
108
|
|
|
Net assets
|
|
$
|
217,696
|
|
RailAmerica, Inc.:
As further described in our 2013 Annual Report on Form 10-K,
on October 1, 2012, we acquired
100%
of RailAmerica, Inc.'s (RailAmerica) outstanding shares for cash at a price of
$27.50
per share, or total consideration of
$2.0 billion
(equity purchase price of
$1.4 billion
plus net debt of
$659.2 million
). Headquartered in Jacksonville, Florida with approximately
2,000
employees,
RailAmerica owned and operated
45
short line freight railroads in North America with approximately
7,100
miles of track in
28
U.S. states and
three
Canadian provinces as of the
October 1, 2012
acquisition date. We incurred
$1.2 million
and
$14.0 million
of RailAmerica integration and acquisition costs during the
three and six
months ended
June 30, 2013
, respectively.
Canada
Tata Steel Minerals Canada Ltd.:
In August 2012, we announced that our newly formed subsidiary, KeRail Inc. (KeRail), entered into a long-term agreement with Tata Steel Minerals Canada Ltd. (TSMC), for KeRail to provide rail transportation services to the direct shipping iron ore mine TSMC is developing near Schefferville, Quebec in the Labrador Trough (the Mine). In June 2014, KeRail completed construction of an approximately
25
-kilometer rail line that connects the Mine to the Tshiuetin Rail Transportation interchange point in Schefferville. Operated as part of our Canada Region, KeRail is expected to haul unit trains of iron ore from its rail connection with the Mine, which will then travel over three privately owned railways to the Port of Sept-Îles for export primarily to Tata Steel Limited's European operations. Upon receipt of the necessary permits from the Canadian and provincial governments, we expect to commence shipments in the third quarter of 2014.
Results from Operations
When comparing our results from operations from one reporting period to another, it is important to consider that we have historically experienced fluctuations in revenues and expenses due to acquisitions, changing economic conditions, competitive forces, changes in foreign currency exchange rates, one-time freight moves, fuel price fluctuations, customer plant expansions and shut-downs, sales of property and equipment, derailments and weather-related conditions, such as hurricanes, cyclones, tornadoes, droughts, heavy snowfall, unseasonably hot or cold weather, freezing and flooding. In periods when these events occur, our results of operations are not easily comparable from one period to another. Finally, certain of our railroads have shipments that are sensitive to general economic conditions, such as steel products, paper products and lumber and forest products, as well as product specific market conditions, such as the availability of lower priced alternative sources of power generation (coal) or energy commodity price differentials (crude oil). Other shipments are relatively less affected by economic conditions and are more closely affected by other factors, such as winter weather (salt) and seasonal rainfall (agricultural products). As a result of these and other factors, our results of operations in any reporting period may not be directly comparable to our results of operations in other reporting periods.
Three Months Ended
June 30, 2014
Compared with
Three Months Ended
June 30, 2013
Operating Revenues
The following table sets forth operating revenues and carloads by new operations and existing operations for the
three
months ended
June 30, 2014
and
2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30,
|
|
Increase/(Decrease) in Total Operations
|
|
Increase/(Decrease) in Existing
Operations
|
|
|
|
|
2014
|
|
2013
|
|
|
|
|
|
|
Total Operations
|
|
New
Operations
|
|
Existing
Operations
|
|
Total Operations
|
|
Amount
|
|
%
|
|
Amount
|
|
%
|
|
Currency Impact
|
|
Freight revenues
|
$
|
316,750
|
|
|
$
|
4,932
|
|
|
$
|
311,818
|
|
|
$
|
299,849
|
|
|
$
|
16,901
|
|
|
5.6
|
%
|
|
$
|
11,969
|
|
|
4.0
|
%
|
|
$
|
(5,128
|
)
|
|
Non-freight revenues
|
97,813
|
|
|
547
|
|
|
97,266
|
|
|
100,799
|
|
|
(2,986
|
)
|
|
(3.0
|
)%
|
|
(3,533
|
)
|
|
(3.5
|
)%
|
|
(1,392
|
)
|
|
Total operating revenues
|
$
|
414,563
|
|
|
$
|
5,479
|
|
|
$
|
409,084
|
|
|
$
|
400,648
|
|
|
$
|
13,915
|
|
|
3.5
|
%
|
|
$
|
8,436
|
|
|
2.1
|
%
|
|
$
|
(6,520
|
)
|
|
Carloads
|
509,631
|
|
|
4,708
|
|
|
504,923
|
|
|
480,979
|
|
|
28,652
|
|
|
6.0
|
%
|
|
23,944
|
|
|
5.0
|
%
|
|
|
Freight Revenues
The following table sets forth freight revenues, carloads and average freight revenues per carload for the
three
months ended
June 30, 2014
and
2013
(dollars in thousands, except average freight revenues per carload):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Freight Revenues
|
|
Carloads
|
|
Average Freight
Revenues Per
Carload
|
|
|
|
Three Months Ended June 30,
|
|
Three Months Ended June 30,
|
|
Three Months Ended June 30,
|
|
|
|
2014
|
|
2013
|
|
2014
|
|
2013
|
|
|
Commodity Group
|
Amount
|
|
% of
Total
|
|
Amount
|
|
% of
Total
|
|
Amount
|
|
% of
Total
|
|
Amount
|
|
% of
Total
|
|
2014
|
|
2013
|
|
Agricultural Products
|
$
|
38,102
|
|
|
12.0
|
%
|
|
$
|
33,238
|
|
|
11.1
|
%
|
|
68,986
|
|
|
13.6
|
%
|
|
61,487
|
|
|
12.8
|
%
|
|
$
|
552
|
|
|
$
|
541
|
|
|
Chemicals & Plastics
|
34,393
|
|
|
10.9
|
%
|
|
33,269
|
|
|
11.1
|
%
|
|
42,443
|
|
|
8.3
|
%
|
|
42,331
|
|
|
8.8
|
%
|
|
810
|
|
|
786
|
|
|
Coal & Coke
|
31,887
|
|
|
10.1
|
%
|
|
26,731
|
|
|
8.9
|
%
|
|
89,401
|
|
|
17.5
|
%
|
|
80,345
|
|
|
16.7
|
%
|
|
357
|
|
|
333
|
|
|
Metallic Ores*
|
32,720
|
|
|
10.3
|
%
|
|
31,802
|
|
|
10.6
|
%
|
|
19,840
|
|
|
3.9
|
%
|
|
17,379
|
|
|
3.6
|
%
|
|
1,649
|
|
|
1,830
|
|
|
Metals
|
34,445
|
|
|
10.9
|
%
|
|
33,101
|
|
|
11.0
|
%
|
|
48,484
|
|
|
9.5
|
%
|
|
44,815
|
|
|
9.3
|
%
|
|
710
|
|
|
739
|
|
|
Pulp & Paper
|
29,144
|
|
|
9.2
|
%
|
|
27,275
|
|
|
9.1
|
%
|
|
42,916
|
|
|
8.4
|
%
|
|
41,372
|
|
|
8.6
|
%
|
|
679
|
|
|
659
|
|
|
Minerals & Stone
|
30,195
|
|
|
9.5
|
%
|
|
26,431
|
|
|
8.8
|
%
|
|
62,466
|
|
|
12.3
|
%
|
|
60,719
|
|
|
12.6
|
%
|
|
483
|
|
|
435
|
|
|
Intermodal**
|
24,231
|
|
|
7.6
|
%
|
|
24,571
|
|
|
8.2
|
%
|
|
16,758
|
|
|
3.3
|
%
|
|
17,830
|
|
|
3.7
|
%
|
|
1,446
|
|
|
1,378
|
|
|
Lumber & Forest Products
|
21,313
|
|
|
6.7
|
%
|
|
20,435
|
|
|
6.8
|
%
|
|
35,296
|
|
|
6.9
|
%
|
|
34,506
|
|
|
7.2
|
%
|
|
604
|
|
|
592
|
|
|
Petroleum Products
|
15,746
|
|
|
5.0
|
%
|
|
16,427
|
|
|
5.5
|
%
|
|
24,988
|
|
|
4.9
|
%
|
|
28,290
|
|
|
5.9
|
%
|
|
630
|
|
|
581
|
|
|
Food & Kindred Products
|
8,981
|
|
|
2.8
|
%
|
|
7,696
|
|
|
2.6
|
%
|
|
15,463
|
|
|
3.0
|
%
|
|
13,098
|
|
|
2.7
|
%
|
|
581
|
|
|
588
|
|
|
Autos & Auto Parts
|
5,889
|
|
|
1.9
|
%
|
|
7,329
|
|
|
2.4
|
%
|
|
7,969
|
|
|
1.6
|
%
|
|
10,018
|
|
|
2.1
|
%
|
|
739
|
|
|
732
|
|
|
Waste
|
4,069
|
|
|
1.3
|
%
|
|
5,886
|
|
|
2.0
|
%
|
|
9,633
|
|
|
1.9
|
%
|
|
11,104
|
|
|
2.3
|
%
|
|
422
|
|
|
530
|
|
|
Other
|
5,635
|
|
|
1.8
|
%
|
|
5,658
|
|
|
1.9
|
%
|
|
24,988
|
|
|
4.9
|
%
|
|
17,685
|
|
|
3.7
|
%
|
|
226
|
|
|
320
|
|
|
Total
|
$
|
316,750
|
|
|
100.0
|
%
|
|
$
|
299,849
|
|
|
100.0
|
%
|
|
509,631
|
|
|
100.0
|
%
|
|
480,979
|
|
|
100.0
|
%
|
|
$
|
622
|
|
|
$
|
623
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
Carload amounts include carloads and intermodal units
|
|
**
|
Carload amounts represent intermodal units
|
Total freight traffic increased
28,652
carloads, or
6.0%
, in the
three
months ended
June 30, 2014
, compared with the same period in
2013
. Carloads from existing operations increased
23,944
carloads, or
5.0%
, and new operations contributed
4,708
carloads. The same railroad traffic increase was principally due to increases of 9,056 carloads of coal and coke traffic, 7,286 carloads of other commodity group traffic, 4,927 carloads of agricultural products traffic
and 3,601 carloads of metals traffic, partially offset by a 3,302 carload decrease in petroleum products traffic. All remaining traffic increased by a net 2,376 carloads.
Average freight revenues per carload decreased
0.2%
to
$622
in the
three
months ended
June 30, 2014
, compared with the same period in
2013
. Average freight revenues per carload from existing operations decreased
0.8%
to
$618
. The depreciation of the Australian and Canadian dollars relative to the United States dollar and changes in commodity mix decreased average freight revenues per carload from existing operations by 1.6% and 1.3%, respectively, while changes in fuel surcharges increased average freight revenues per carload from existing operations by 0.2%. Other than these factors, average freight revenues per carload from existing operations increased by 1.9%. Average freight revenues per carload were also negatively impacted by the changes in the mix of customers within certain commodity groups, primarily metallic ores traffic, waste traffic and other commodity traffic.
The following table sets forth the changes in freight revenues by commodity group segregated into new operations and existing operations for the
three
months ended
June 30, 2014
compared with the
three
months ended
June 30, 2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30,
|
|
Increase/(Decrease) in Total Operations
|
|
Increase/(Decrease) in Existing
Operations
|
|
Currency
Impact
|
|
|
2014
|
|
2013
|
|
|
|
|
Commodity Group
|
Total Operations
|
|
New
Operations
|
|
Existing
Operations
|
|
Total Operations
|
|
Amount
|
|
%
|
|
Amount
|
|
%
|
|
|
Agricultural Products
|
$
|
38,102
|
|
|
$
|
2,057
|
|
|
$
|
36,045
|
|
|
$
|
33,238
|
|
|
$
|
4,864
|
|
|
14.6
|
%
|
|
$
|
2,807
|
|
|
8.4
|
%
|
|
$
|
(739
|
)
|
|
Chemicals & Plastics
|
34,393
|
|
|
385
|
|
|
34,008
|
|
|
33,269
|
|
|
1,124
|
|
|
3.4
|
%
|
|
739
|
|
|
2.2
|
%
|
|
(236
|
)
|
|
Coal & Coke
|
31,887
|
|
|
—
|
|
|
31,887
|
|
|
26,731
|
|
|
5,156
|
|
|
19.3
|
%
|
|
5,156
|
|
|
19.3
|
%
|
|
(48
|
)
|
|
Metallic Ores
|
32,720
|
|
|
—
|
|
|
32,720
|
|
|
31,802
|
|
|
918
|
|
|
2.9
|
%
|
|
918
|
|
|
2.9
|
%
|
|
(1,599
|
)
|
|
Metals
|
34,445
|
|
|
75
|
|
|
34,370
|
|
|
33,101
|
|
|
1,344
|
|
|
4.1
|
%
|
|
1,269
|
|
|
3.8
|
%
|
|
(194
|
)
|
|
Pulp & Paper
|
29,144
|
|
|
—
|
|
|
29,144
|
|
|
27,275
|
|
|
1,869
|
|
|
6.9
|
%
|
|
1,869
|
|
|
6.9
|
%
|
|
(286
|
)
|
|
Minerals & Stone
|
30,195
|
|
|
2,302
|
|
|
27,893
|
|
|
26,431
|
|
|
3,764
|
|
|
14.2
|
%
|
|
1,462
|
|
|
5.5
|
%
|
|
(217
|
)
|
|
Intermodal
|
24,231
|
|
|
—
|
|
|
24,231
|
|
|
24,571
|
|
|
(340
|
)
|
|
(1.4
|
)%
|
|
(340
|
)
|
|
(1.4
|
)%
|
|
(1,379
|
)
|
|
Lumber & Forest Products
|
21,313
|
|
|
23
|
|
|
21,290
|
|
|
20,435
|
|
|
878
|
|
|
4.3
|
%
|
|
855
|
|
|
4.2
|
%
|
|
(70
|
)
|
|
Petroleum Products
|
15,746
|
|
|
—
|
|
|
15,746
|
|
|
16,427
|
|
|
(681
|
)
|
|
(4.1
|
)%
|
|
(681
|
)
|
|
(4.1
|
)%
|
|
(162
|
)
|
|
Food & Kindred Products
|
8,981
|
|
|
90
|
|
|
8,891
|
|
|
7,696
|
|
|
1,285
|
|
|
16.7
|
%
|
|
1,195
|
|
|
15.5
|
%
|
|
(23
|
)
|
|
Autos & Auto Parts
|
5,889
|
|
|
—
|
|
|
5,889
|
|
|
7,329
|
|
|
(1,440
|
)
|
|
(19.6
|
)%
|
|
(1,440
|
)
|
|
(19.6
|
)%
|
|
(120
|
)
|
|
Waste
|
4,069
|
|
|
—
|
|
|
4,069
|
|
|
5,886
|
|
|
(1,817
|
)
|
|
(30.9
|
)%
|
|
(1,817
|
)
|
|
(30.9
|
)%
|
|
(5
|
)
|
|
Other
|
5,635
|
|
|
—
|
|
|
5,635
|
|
|
5,658
|
|
|
(23
|
)
|
|
(0.4
|
)%
|
|
(23
|
)
|
|
(0.4
|
)%
|
|
(50
|
)
|
|
Total freight revenues
|
$
|
316,750
|
|
|
$
|
4,932
|
|
|
$
|
311,818
|
|
|
$
|
299,849
|
|
|
$
|
16,901
|
|
|
5.6
|
%
|
|
$
|
11,969
|
|
|
4.0
|
%
|
|
$
|
(5,128
|
)
|
The following information discusses the significant changes in freight revenues from existing operations by commodity group. Changes in average freight revenues per carload in a commodity group can be impacted by changes in customer rates, fuel surcharges and changes in foreign currency exchange rates, as well as changes in the mix of customer traffic within a commodity group.
Agricultural products revenues increased
$2.8 million
, or
8.4%
. Agricultural products traffic volume increased 4,927 carloads, or 8.0%, which increased revenues by $2.7 million. Average freight revenues per carload increased 0.4%, which increased revenues by $0.1 million. The carload increase was primarily due to increased shipments in North America, partially offset by decreased shipments of grain in Australia. The increase in average freight revenues per carload included a 2.2%, or
$0.7 million
, negative impact due to the depreciation of the Australian and Canadian dollars relative to the United States dollar.
Coal and coke revenues increased
$5.2 million
, or
19.3%
. Coal and coke traffic volume increased 9,056 carloads, or 11.3%, which increased revenues by $3.2 million, and average freight revenues per carload increased 7.2%, which increased revenues by $1.9 million. The carload increase was primarily due to increased demand for steam coal in the midwestern United States, partially offset by decreased export coal shipments in the western and northeastern United States.
Metals revenues increased
$1.3 million
, or
3.8%
. Metals traffic volume increased 3,601 carloads, or 8.0%, which increased revenues by $2.6 million, while average freight revenues per carload decreased 3.9% primarily driven by a change in mix of business. The carload increase was primarily due to increased demand in North America for energy and automotive related products.
Pulp and paper revenues increased
$1.9 million
, or
6.9%
. Pulp and paper traffic volume increased 1,544 carloads, or 3.7%, which increased revenues by $1.0 million, and average freight revenues per carload increased 3.0%, which increased revenues by $0.8 million. The carload increase was primarily due to increased shipments of container board in the United States as a result of an improving economy.
Minerals and stone revenues increased
$1.5 million
, or
5.5%
. Minerals and stone average freight revenues per carload increased 4.8%, which increased revenues by $1.3 million, and traffic volume increased 402 carloads, or 0.7%, which increased revenues by $0.2 million. The increase in carloads was primarily due to an increase in shipments of sand, rock salt, cement and industrial minerals in North America, partially offset by a decrease in shipments of gypsum and marble in Australia.
Petroleum products revenues decreased
$0.7 million
, or
4.1%
. Petroleum products traffic volume decreased 3,302 carloads, or 11.7%, which decreased revenues by $2.1 million, while average freight revenues per carload increased 8.4%, which increased revenues by $1.4 million. The carload decrease was primarily due to weaker crude oil traffic, partially offset by shipments of liquid petroleum gas from a new customer.
Food and kindred products revenues increased
$1.2 million
, or
15.5%
. The increase was primarily due to a traffic volume increase of 2,247 carloads, or 17.2%, resulting primarily from increased shipments in the western and midwestern United States.
Autos and auto parts revenues decreased
$1.4 million
, or
19.6%
. The decrease was primarily due to a traffic volume decrease of 2,049 carloads, or 20.5%, resulting primarily from reduced railcar supply in the midwestern United States and Canadian rail networks and the loss of a customer contract in Canada.
Waste revenues decreased
$1.8 million
, or
30.9%
, primarily due to the closure of a waste facility we served in the midwestern United States.
Other commodity group traffic volume increased 7,286 carloads, or 41.2%, which increased revenues by $1.6 million, while average revenues per carload decreased 29.4%. The carload increase was primarily due to increased Class I overhead shipments in the central United States and a new haulage move in the northeastern United States. The decrease in average freight revenues per carload was primarily due to the increased Class I overhead shipments.
Freight revenues from all remaining commodities combined increased by
$2.2 million
.
Non-Freight Revenues
The following table sets forth non-freight revenues for the
three
months ended
June 30, 2014
and
2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30,
|
|
|
2014
|
|
2013
|
|
|
Amount
|
|
% of Total
|
|
Amount
|
|
% of Total
|
|
Railcar switching
|
$
|
43,246
|
|
|
44.2
|
%
|
|
$
|
39,419
|
|
|
39.1
|
%
|
|
Car hire and rental income
|
10,210
|
|
|
10.5
|
%
|
|
8,548
|
|
|
8.5
|
%
|
|
Demurrage and storage
|
13,929
|
|
|
14.2
|
%
|
|
14,007
|
|
|
13.9
|
%
|
|
Car repair services
|
7,491
|
|
|
7.7
|
%
|
|
6,154
|
|
|
6.1
|
%
|
|
Construction revenues
|
6,303
|
|
|
6.4
|
%
|
|
13,575
|
|
|
13.5
|
%
|
|
Other non-freight revenues
|
16,634
|
|
|
17.0
|
%
|
|
19,096
|
|
|
18.9
|
%
|
|
Total non-freight revenues
|
$
|
97,813
|
|
|
100.0
|
%
|
|
$
|
100,799
|
|
|
100.0
|
%
|
The following table sets forth the changes in non-freight revenues segregated into new operations and existing operations for the
three
months ended
June 30, 2014
compared with the
three
months ended
June 30, 2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30,
|
|
Increase/(Decrease) in Total Operations
|
|
Increase/ (Decrease) in Existing
Operations
|
|
Currency
Impact
|
|
|
2014
|
|
2013
|
|
|
|
|
|
Total Operations
|
|
New Operations
|
|
Existing Operations
|
|
Total Operations
|
|
Amount
|
|
%
|
|
Amount
|
|
%
|
|
|
Railcar switching
|
$
|
43,246
|
|
|
$
|
16
|
|
|
$
|
43,230
|
|
|
$
|
39,419
|
|
|
$
|
3,827
|
|
|
9.7
|
%
|
|
$
|
3,811
|
|
|
9.7
|
%
|
|
$
|
(523
|
)
|
|
Car hire and rental income
|
10,210
|
|
|
333
|
|
|
9,877
|
|
|
8,548
|
|
|
1,662
|
|
|
19.4
|
%
|
|
1,329
|
|
|
15.5
|
%
|
|
(111
|
)
|
|
Demurrage and storage
|
13,929
|
|
|
—
|
|
|
13,929
|
|
|
14,007
|
|
|
(78
|
)
|
|
(0.6
|
)%
|
|
(78
|
)
|
|
(0.6
|
)%
|
|
(139
|
)
|
|
Car repair services
|
7,491
|
|
|
44
|
|
|
7,447
|
|
|
6,154
|
|
|
1,337
|
|
|
21.7
|
%
|
|
1,293
|
|
|
21.0
|
%
|
|
(38
|
)
|
|
Construction revenues
|
6,303
|
|
|
—
|
|
|
6,303
|
|
|
13,575
|
|
|
(7,272
|
)
|
|
(53.6
|
)%
|
|
(7,272
|
)
|
|
(53.6
|
)%
|
|
—
|
|
|
Other non-freight revenues
|
16,634
|
|
|
154
|
|
|
16,480
|
|
|
19,096
|
|
|
(2,462
|
)
|
|
(12.9
|
)%
|
|
(2,616
|
)
|
|
(13.7
|
)%
|
|
(581
|
)
|
|
Total non-freight revenues
|
$
|
97,813
|
|
|
$
|
547
|
|
|
$
|
97,266
|
|
|
$
|
100,799
|
|
|
$
|
(2,986
|
)
|
|
(3.0
|
)%
|
|
$
|
(3,533
|
)
|
|
(3.5
|
)%
|
|
$
|
(1,392
|
)
|
Total non-freight revenues decreased
$3.0 million
, or
3.0%
, to
$97.8 million
in the
three
months ended
June 30, 2014
, compared with
$100.8 million
in the
three
months ended
June 30, 2013
. The decrease in non-freight revenues was attributable to a decrease of
$3.5 million
from existing operations, partially offset by an increase of
$0.5 million
from new operations. The decrease in non-freight revenues from existing operations was primarily due to a
$7.3 million
decrease in low margin construction revenues and a
$1.4 million
decrease from the net impact of foreign currency depreciation, partially offset by a
$4.3 million
increase in railcar switching primarily due to a new customer in Europe and higher narrow gauge iron ore shipments in Australia.
Operating Expenses
Overview
Operating expenses were
$304.5 million
in the
three
months ended
June 30, 2014
, compared with
$293.2 million
in the
three
months ended
June 30, 2013
, an increase of
$11.2 million
, or
3.8%
. The increase in operating expenses was attributable to an increase of
$6.6 million
from existing operations and
$4.6 million
from new operations. When we discuss expenses from existing operations, we are referring to the change in our expenses, period-over-period, associated with operations that we managed in both periods (i.e., excluding the impact of acquisitions). The increase from existing operations was primarily due to increases of
$6.9 million
in labor and benefits,
$4.1 million
in depreciation and amortization,
$3.3 million
in other expenses,
$2.9 million
in casualties and insurance and
$2.0 million
in diesel fuel used in operations, partially offset by decreases of
$6.5 million
in purchased services and
$3.8 million
in materials. In addition, the depreciation of the Australian and Canadian dollars relative to the United States dollar resulted in a
$4.1 million
decrease in operating expenses from existing operations.
Our operating ratio, defined as total operating expenses divided by total operating revenues, was
73.4%
in the
three
months ended
June 30, 2014
, compared with
73.2%
in the
three
months ended
June 30, 2013
. Income from operations in the
three
months ended
June 30, 2014
included business development and related costs of
$1.7 million
, including RCP&E acquisition and integration related costs and reorganization costs associated with Atlas, partially offset by a
$1.4 million
net gain on sale of assets. Income from operations in the
three
months ended
June 30, 2013
included
$1.2 million
of business development and related costs, including RailAmerica integration and acquisition costs, partially offset by a
$1.0 million
net gain on sale of assets. Changes in foreign currency exchange rates can have a material impact on our operating revenues and operating expenses. However, the net impact of these foreign currency translation effects should not have a material impact on our operating ratio.
The following table sets forth our operating expenses for the
three
months ended
June 30, 2014
and
2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30,
|
|
|
|
|
2014
|
|
2013
|
|
Currency
Impact
|
|
|
Amount
|
|
% of
Operating
Revenues
|
|
Amount
|
|
% of
Operating
Revenues
|
|
|
Labor and benefits
|
$
|
116,556
|
|
|
28.1
|
%
|
|
$
|
109,781
|
|
|
27.4
|
%
|
|
$
|
(1,620
|
)
|
|
Equipment rents
|
19,874
|
|
|
4.7
|
%
|
|
18,993
|
|
|
4.8
|
%
|
|
(219
|
)
|
|
Purchased services
|
23,868
|
|
|
5.8
|
%
|
|
30,598
|
|
|
7.6
|
%
|
|
(798
|
)
|
|
Depreciation and amortization
|
38,212
|
|
|
9.2
|
%
|
|
34,161
|
|
|
8.5
|
%
|
|
(630
|
)
|
|
Diesel fuel used in operations
|
37,379
|
|
|
9.0
|
%
|
|
34,694
|
|
|
8.7
|
%
|
|
—
|
|
|
Casualties and insurance
|
12,752
|
|
|
3.1
|
%
|
|
10,043
|
|
|
2.5
|
%
|
|
(191
|
)
|
|
Materials
|
19,325
|
|
|
4.7
|
%
|
|
22,784
|
|
|
5.7
|
%
|
|
(122
|
)
|
|
Trackage rights
|
14,021
|
|
|
3.4
|
%
|
|
12,770
|
|
|
3.2
|
%
|
|
(318
|
)
|
|
Net gain on sale of assets
|
(1,369
|
)
|
|
(0.3
|
)%
|
|
(1,009
|
)
|
|
(0.3
|
)%
|
|
33
|
|
|
Other expenses
|
23,836
|
|
|
5.7
|
%
|
|
20,416
|
|
|
5.1
|
%
|
|
(222
|
)
|
|
Total operating expenses
|
$
|
304,454
|
|
|
73.4
|
%
|
|
$
|
293,231
|
|
|
73.2
|
%
|
|
$
|
(4,087
|
)
|
The following information discusses the significant changes in operating expenses.
Labor and benefits expense was
$116.6 million
in the
three
months ended
June 30, 2014
, compared with
$109.8 million
in the
three
months ended
June 30, 2013
, an increase of
$6.8 million
, or
6.2%
. The increase in labor and benefits expense was attributable to an increase of
$6.9 million
from existing operations and
$1.5 million
from new operations. The increase from existing operations was primarily due to an increase in the average number of employees, as well as an increase in benefits expense, partially offset by a
$1.6 million
decrease due to the depreciation of the Australian and Canadian dollars relative to the United States dollar. Our average number of employees increased for our existing operations primarily as a result of insourcing our equipment maintenance activities in Australia and the midwestern United States and due to an increase in transportation employees as a result of higher traffic levels.
Purchased services expense, which consists primarily of the costs of services provided by outside contractors for repairs and maintenance of track property, locomotives, railcars and other equipment, as well as contract labor costs for crewing services, was
$23.9 million
in the
three
months ended
June 30, 2014
, compared with
$30.6 million
in the
three
months ended
June 30, 2013
, a decrease of
$6.7 million
, or
22.0%
. The decrease was primarily attributable to the insourcing of equipment maintenance activities in Australia.
Depreciation and amortization expense was
$38.2 million
in the
three
months ended
June 30, 2014
, compared with
$34.2 million
in the
three
months ended
June 30, 2013
, an increase of
$4.1 million
, or
11.9%
. The increase in depreciation and amortization was attributable to an increase of
$4.1 million
from existing operations and
$0.5 million
from new operations, partially offset by a
$0.6 million
decrease due to the depreciation of the Australian and Canadian dollars relative to the United States dollar. The increase from existing operations was primarily attributable to capital expenditures in 2013 including new business development projects.
The cost of diesel fuel used in operations was
$37.4 million
in the
three
months ended
June 30, 2014
, compared with
$34.7 million
in the
three
months ended
June 30, 2013
, an increase of
$2.7 million
, or
7.7%
. The increase was attributable to an increase of
$2.0 million
from existing operations and
$0.7 million
from new operations. The increase from existing operations was composed of $1.5 million due to a 4.2% increase in diesel fuel consumption and $0.5 million from a 1.5% increase in average fuel cost per gallon.
Casualties and insurance expense was
$12.8 million
in the
three
months ended
June 30, 2014
, compared with
$10.0 million
in the
three
months ended
June 30, 2013
, an increase of
$2.7 million
, or
27.0%
. The increase was primarily due to two severe washouts, one in Canada during the spring thaw and one in the southeastern United States.
Materials expense, which consists primarily of the costs of materials purchased for use in repairing and maintaining our track property, locomotives, railcars and other equipment as well as costs for general tools and supplies used in our business, was
$19.3 million
in the
three
months ended
June 30, 2014
, compared with
$22.8 million
in the
three
months ended
June 30, 2013
, a decrease of
$3.5 million
, or
15.2%
. The decrease was primarily due to a reduction in the level of construction projects at Atlas.
Trackage rights expense was
$14.0 million
in the
three
months ended
June 30, 2014
, compared with
$12.8 million
in the
three
months ended
June 30, 2013
, an increase of
$1.3 million
, or
9.8%
. The increase was primarily due to an increase in coal traffic in the midwestern United States, a new customer in Europe and expanded services for an iron ore customer in South Australia that moves over a segment of track owned by a third party.
Other expenses were
$23.8 million
in the
three
months ended
June 30, 2014
, compared with
$20.4 million
in the
three
months ended
June 30, 2013
, an increase of
$3.4 million
, or
16.8%
.
Interest Expense
Interest expense was
$17.8 million
in the
three
months ended
June 30, 2014
, compared with
$17.2 million
in the
three
months ended
June 30, 2013
. Interest expense in the
three
months ended
June 30, 2014
included the write-off of deferred financing fees of
$4.7 million
associated with the refinancing of our Credit Agreement. Excluding the write-off of deferred financing fees, the decrease in interest expense was primarily due to lower weighted average outstanding term debt during the
three
months ended
June 30, 2014
, compared with the
three
months ended
June 30, 2013
.
Provision for Income Taxes
The United States Short Line Tax Credit is an income tax track maintenance credit for Class II and Class III railroads to reduce their federal income tax based on qualified railroad track maintenance expenditures. Qualified expenditures include amounts incurred for maintaining track, including roadbed, bridges and related track structures owned or leased by a Class II or Class III railroad. The credit is equal to
50%
of the qualified expenditures, subject to an annual limitation of
$3,500
multiplied by the number of miles of railroad track owned or leased by the Class II or Class III railroads as of the end of their tax year. The United States Short Line Tax Credit was in existence from 2005 through 2011. On January 2, 2013, the United States Short Line Tax Credit was extended for 2012 and 2013. The extension of the United States Short Line Tax Credit produced book income tax benefits of
$7.5 million
for the three months ended
June 30, 2013
.
Our effective income tax rate in the
three
months ended
June 30, 2014
was
34.8%
, compared with
27.9%
in the
three
months ended
June 30, 2013
. The increase in the effective income tax rate for the
three
months ended
June 30, 2014
was primarily attributable to the expiration of the Short Line Tax Credit on December 31, 2013. In addition, our provision for income taxes for the
three
months ended
June 30, 2014
included a benefit of
$1.0 million
as a result of adjusting our deferred taxes to reflect the impact of the RCP&E acquisition.
Net Income and Earnings Per Share Attributable to G&W Common Stockholders
Net income in the
three
months ended
June 30, 2014
was
$60.9 million
, compared with net income in the
three
months ended
June 30, 2013
of
$65.1 million
. Our basic EPS were
$1.10
with
55.1 million
weighted average shares outstanding in the
three
months ended
June 30, 2014
, compared with basic EPS of
$1.19
with
54.4 million
weighted average shares outstanding in the
three
months ended
June 30, 2013
. Our diluted EPS in the
three
months ended
June 30, 2014
were
$1.07
with
56.9 million
weighted average shares outstanding, compared with diluted EPS of
$1.14
with
56.7 million
weighted average shares outstanding in the
three
months ended
June 30, 2013
. Our results for the
three
months ended
June 30, 2014
and
2013
included certain significant items as previously presented in the "Overview."
Six Months Ended
June 30, 2014
Compared with
Six Months Ended
June 30, 2013
Operating Revenues
The following table sets forth operating revenues and carloads by new operations and existing operations for the
six
months ended
June 30, 2014
and
2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30,
|
|
Increase/(Decrease) in Total
Operations
|
|
Increase/(Decrease) in Existing
Operations
|
|
Currency Impact
|
|
|
2014
|
|
2013
|
|
|
|
|
|
Total
Operations
|
|
New
Operations
|
|
Existing
Operations
|
|
Total
Operations
|
|
Amount
|
|
%
|
|
Amount
|
|
%
|
|
|
Freight revenues
|
$
|
604,484
|
|
|
$
|
4,932
|
|
|
$
|
599,552
|
|
|
$
|
580,953
|
|
|
$
|
23,531
|
|
|
4.1
|
%
|
|
$
|
18,599
|
|
|
3.2
|
%
|
|
$
|
(15,253
|
)
|
|
Non-freight revenues
|
186,358
|
|
|
547
|
|
|
185,811
|
|
|
194,645
|
|
|
(8,287
|
)
|
|
(4.3
|
)%
|
|
(8,834
|
)
|
|
(4.5
|
)%
|
|
(4,267
|
)
|
|
Total operating revenues
|
$
|
790,842
|
|
|
$
|
5,479
|
|
|
$
|
785,363
|
|
|
$
|
775,598
|
|
|
$
|
15,244
|
|
|
2.0
|
%
|
|
$
|
9,765
|
|
|
1.3
|
%
|
|
$
|
(19,520
|
)
|
|
Carloads
|
977,010
|
|
|
4,708
|
|
|
972,302
|
|
|
931,283
|
|
|
45,727
|
|
|
4.9
|
%
|
|
41,019
|
|
|
4.4
|
%
|
|
|
Freight Revenues
The following table sets forth freight revenues, carloads and average freight revenues per carload for the
six
months ended
June 30, 2014
and
2013
(dollars in thousands, except average freight revenues per carload):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Freight Revenues
|
|
Carloads
|
|
Average Freight
Revenues Per
Carload
|
|
|
|
Six Months Ended June 30,
|
|
Six Months Ended June 30,
|
|
Six Months Ended June 30,
|
|
|
|
2014
|
|
2013
|
|
2014
|
|
2013
|
|
|
Commodity Group
|
Amount
|
|
% of
Total
|
|
Amount
|
|
% of
Total
|
|
Amount
|
|
% of
Total
|
|
Amount
|
|
% of
Total
|
|
2014
|
|
2013
|
|
Agricultural Products
|
$
|
73,769
|
|
|
12.2
|
%
|
|
$
|
68,264
|
|
|
11.7
|
%
|
|
134,020
|
|
|
13.7
|
%
|
|
124,928
|
|
|
13.4
|
%
|
|
$
|
550
|
|
|
$
|
546
|
|
|
Chemicals & Plastics
|
67,142
|
|
|
11.1
|
%
|
|
65,349
|
|
|
11.2
|
%
|
|
82,715
|
|
|
8.5
|
%
|
|
83,239
|
|
|
8.9
|
%
|
|
812
|
|
|
785
|
|
|
Coal & Coke
|
63,137
|
|
|
10.4
|
%
|
|
53,223
|
|
|
9.2
|
%
|
|
175,704
|
|
|
18.0
|
%
|
|
155,905
|
|
|
16.7
|
%
|
|
359
|
|
|
341
|
|
|
Metallic Ores*
|
62,393
|
|
|
10.3
|
%
|
|
59,081
|
|
|
10.2
|
%
|
|
38,714
|
|
|
4.0
|
%
|
|
32,191
|
|
|
3.4
|
%
|
|
1,612
|
|
|
1,835
|
|
|
Metals
|
64,027
|
|
|
10.6
|
%
|
|
62,347
|
|
|
10.7
|
%
|
|
89,813
|
|
|
9.2
|
%
|
|
86,438
|
|
|
9.3
|
%
|
|
713
|
|
|
721
|
|
|
Pulp & Paper
|
56,806
|
|
|
9.4
|
%
|
|
53,736
|
|
|
9.2
|
%
|
|
85,127
|
|
|
8.7
|
%
|
|
82,150
|
|
|
8.8
|
%
|
|
667
|
|
|
654
|
|
|
Minerals & Stone
|
51,855
|
|
|
8.6
|
%
|
|
48,750
|
|
|
8.4
|
%
|
|
111,503
|
|
|
11.4
|
%
|
|
110,944
|
|
|
11.9
|
%
|
|
465
|
|
|
439
|
|
|
Intermodal**
|
45,704
|
|
|
7.6
|
%
|
|
47,016
|
|
|
8.1
|
%
|
|
32,349
|
|
|
3.3
|
%
|
|
34,006
|
|
|
3.7
|
%
|
|
1,413
|
|
|
1,383
|
|
|
Lumber & Forest Products
|
40,492
|
|
|
6.7
|
%
|
|
40,181
|
|
|
6.9
|
%
|
|
67,843
|
|
|
6.9
|
%
|
|
68,131
|
|
|
7.3
|
%
|
|
597
|
|
|
590
|
|
|
Petroleum Products
|
32,332
|
|
|
5.3
|
%
|
|
33,591
|
|
|
5.8
|
%
|
|
52,823
|
|
|
5.4
|
%
|
|
55,503
|
|
|
6.0
|
%
|
|
612
|
|
|
605
|
|
|
Food & Kindred Products
|
17,042
|
|
|
2.8
|
%
|
|
15,521
|
|
|
2.7
|
%
|
|
29,310
|
|
|
3.0
|
%
|
|
26,692
|
|
|
2.9
|
%
|
|
581
|
|
|
581
|
|
|
Autos & Auto Parts
|
11,347
|
|
|
1.9
|
%
|
|
13,183
|
|
|
2.3
|
%
|
|
15,705
|
|
|
1.6
|
%
|
|
17,974
|
|
|
1.9
|
%
|
|
723
|
|
|
733
|
|
|
Waste
|
8,402
|
|
|
1.4
|
%
|
|
10,901
|
|
|
1.9
|
%
|
|
19,079
|
|
|
2.0
|
%
|
|
20,119
|
|
|
2.2
|
%
|
|
440
|
|
|
542
|
|
|
Other
|
10,036
|
|
|
1.7
|
%
|
|
9,810
|
|
|
1.7
|
%
|
|
42,305
|
|
|
4.3
|
%
|
|
33,063
|
|
|
3.6
|
%
|
|
237
|
|
|
297
|
|
|
Total
|
$
|
604,484
|
|
|
100.0
|
%
|
|
$
|
580,953
|
|
|
100.0
|
%
|
|
977,010
|
|
|
100.0
|
%
|
|
931,283
|
|
|
100.0
|
%
|
|
$
|
619
|
|
|
$
|
624
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
Carload amounts include carloads and intermodal units
|
|
**
|
Carload amounts represent intermodal units
|
Total freight traffic increased
45,727
carloads, or
4.9%
, in the
six
months ended
June 30, 2014
, compared with the same period in
2013
. Carloads from existing operations increased
41,019
carloads, or
4.4%
, and new operations contributed
4,708
carloads. The same railroad traffic increase was principally due to increases of 19,799 carloads of coal and coke traffic, 9,225 carloads of other commodity group traffic, 6,523 carloads of metallic ores traffic and 6,520 carloads of agricultural products traffic. All remaining traffic from existing operations decreased by a net 1,048 carloads.
Average freight revenues per carload decreased
0.8%
to
$619
in the
six
months ended
June 30, 2014
, compared with the same period in
2013
. Average freight revenues per carload from existing operations decreased
1.1%
to
$617
. The depreciation of the Australian and Canadian dollars relative to the United States dollar and changes in commodity mix decreased average freight revenues per carload from existing operations by 2.7% and 0.6%, respectively, while changes in fuel surcharges increased average freight revenues per carload from existing operations by 0.2%. Other than these factors, average freight revenues per carload from existing operations increased by 2.0%. Average freight revenues per carload were also negatively impacted by the changes in the mix of customers within certain commodity groups, primarily metallic ores traffic, waste traffic and other commodity traffic.
The following table sets forth freight revenues by commodity group segregated into new operations and existing operations for the
six
months ended
June 30, 2014
compared with the
six
months ended
June 30, 2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30,
|
|
Increase/(Decrease) in Total
Operations
|
|
Increase/(Decrease) in Existing
Operations
|
|
Currency
Impact
|
|
|
2014
|
|
2013
|
|
|
|
|
Commodity Group
|
Total
Operations
|
|
New
Operations
|
|
Existing
Operations
|
|
Total
Operations
|
|
Amount
|
|
%
|
|
Amount
|
|
%
|
|
|
Agricultural Products
|
$
|
73,769
|
|
|
$
|
2,057
|
|
|
$
|
71,712
|
|
|
$
|
68,264
|
|
|
$
|
5,505
|
|
|
8.1
|
%
|
|
$
|
3,448
|
|
|
5.1
|
%
|
|
$
|
(2,456
|
)
|
|
Chemicals & Plastics
|
67,142
|
|
|
385
|
|
|
66,757
|
|
|
65,349
|
|
|
1,793
|
|
|
2.7
|
%
|
|
1,408
|
|
|
2.2
|
%
|
|
(545
|
)
|
|
Coal & Coke
|
63,137
|
|
|
—
|
|
|
63,137
|
|
|
53,223
|
|
|
9,914
|
|
|
18.6
|
%
|
|
9,914
|
|
|
18.6
|
%
|
|
(117
|
)
|
|
Metallic Ores
|
62,393
|
|
|
—
|
|
|
62,393
|
|
|
59,081
|
|
|
3,312
|
|
|
5.6
|
%
|
|
3,312
|
|
|
5.6
|
%
|
|
(4,848
|
)
|
|
Metals
|
64,027
|
|
|
75
|
|
|
63,952
|
|
|
62,347
|
|
|
1,680
|
|
|
2.7
|
%
|
|
1,605
|
|
|
2.6
|
%
|
|
(476
|
)
|
|
Pulp & Paper
|
56,806
|
|
|
—
|
|
|
56,806
|
|
|
53,736
|
|
|
3,070
|
|
|
5.7
|
%
|
|
3,070
|
|
|
5.7
|
%
|
|
(669
|
)
|
|
Minerals & Stone
|
51,855
|
|
|
2,302
|
|
|
49,553
|
|
|
48,750
|
|
|
3,105
|
|
|
6.4
|
%
|
|
803
|
|
|
1.6
|
%
|
|
(683
|
)
|
|
Intermodal
|
45,704
|
|
|
—
|
|
|
45,704
|
|
|
47,016
|
|
|
(1,312
|
)
|
|
(2.8
|
)%
|
|
(1,312
|
)
|
|
(2.8
|
)%
|
|
(4,405
|
)
|
|
Lumber & Forest Products
|
40,492
|
|
|
23
|
|
|
40,469
|
|
|
40,181
|
|
|
311
|
|
|
0.8
|
%
|
|
288
|
|
|
0.7
|
%
|
|
(183
|
)
|
|
Petroleum Products
|
32,332
|
|
|
—
|
|
|
32,332
|
|
|
33,591
|
|
|
(1,259
|
)
|
|
(3.7
|
)%
|
|
(1,259
|
)
|
|
(3.7
|
)%
|
|
(457
|
)
|
|
Food & Kindred Products
|
17,042
|
|
|
90
|
|
|
16,952
|
|
|
15,521
|
|
|
1,521
|
|
|
9.8
|
%
|
|
1,431
|
|
|
9.2
|
%
|
|
(56
|
)
|
|
Autos & Auto Parts
|
11,347
|
|
|
—
|
|
|
11,347
|
|
|
13,183
|
|
|
(1,836
|
)
|
|
(13.9
|
)%
|
|
(1,836
|
)
|
|
(13.9
|
)%
|
|
(276
|
)
|
|
Waste
|
8,402
|
|
|
—
|
|
|
8,402
|
|
|
10,901
|
|
|
(2,499
|
)
|
|
(22.9
|
)%
|
|
(2,499
|
)
|
|
(22.9
|
)%
|
|
(11
|
)
|
|
Other
|
10,036
|
|
|
—
|
|
|
10,036
|
|
|
9,810
|
|
|
226
|
|
|
2.3
|
%
|
|
226
|
|
|
2.3
|
%
|
|
(71
|
)
|
|
Total freight revenues
|
$
|
604,484
|
|
|
$
|
4,932
|
|
|
$
|
599,552
|
|
|
$
|
580,953
|
|
|
$
|
23,531
|
|
|
4.1
|
%
|
|
$
|
18,599
|
|
|
3.2
|
%
|
|
$
|
(15,253
|
)
|
The following information discusses the significant changes in freight revenues from existing operations by commodity group. Changes in average freight revenues per carload in a commodity group can be impacted by changes in customer rates, fuel surcharges and changes in foreign currency exchange rates, as well as changes in the mix of customer traffic within a commodity group.
Agricultural products revenues increased
$3.4 million
, or
5.1%
. The increase was primarily due to an increase in traffic volume of 6,520 carloads, or 5.2%, which increased revenues by $3.6 million, while average freight revenues per carload decreased $0.1 million. The carload increase was primarily due to increased shipments in North America, partially offset by decreased shipments of grain in Australia. The decrease in average freight revenues per carload included a 3.6%, or
$2.5 million
, negative impact due to the depreciation of the Australian and Canadian dollars relative to the United States dollar.
Coal and coke revenues increased
$9.9 million
, or
18.6%
. Coal and coke traffic volume increased 19,799 carloads, or 12.7%, which increased revenues by $7.1 million, and average freight revenues per carload increased 5.3%, which increased revenues by $2.8 million. The carload increase was primarily due to increased demand for steam coal in the midwestern United States, partially offset by decreased coal shipments in the western United States.
Metallic ores revenues increased
$3.3 million
, or
5.6%
. Metallic ores traffic volume increased 6,523 carloads, or 20.3%, which increased revenues by $10.5 million, while average freight revenues per carload decreased 12.2% and included a 7.9%, or
$4.8 million
, negative impact due to the depreciation of the Australian and Canadian dollars relative to the United States dollar. The carload increase was primarily due to increased iron ore and manganese shipments in Australia. The decrease in average freight revenues per carload other than the impact from foreign currency was primarily due to a change in mix of business.
Pulp and paper revenues increased
$3.1 million
, or
5.7%
. Pulp and paper traffic volume increased 2,977 carloads, or 3.6%, which increased revenues by $2.0 million, and average freight revenues per carload increased 2.0%, which increased revenues by $1.1 million. The carload increase was primarily due to increased shipments of container board in the United States as a result of an improving economy. The increase in average freight revenues per carload included a 1.3%, or
$0.7 million
, negative impact due to the depreciation of the Australian and Canadian dollars relative to the United States dollar.
Intermodal revenues decreased
$1.3 million
, or
2.8%
. Effective December 1, 2013, the classification of a North American customer's traffic changed from intermodal to other commodity groups, resulting in a 1,637 carload decrease. Otherwise, intermodal traffic volume decreased 20 carloads, or 0.1%, and revenues decreased $1.2 million, or 2.5%. Further, excluding a
$4.4 million
negative impact due to the depreciation of the Australian and Canadian dollars relative to the United States dollar, intermodal revenues increased by $3.2 million due to a 7.7% increase in average freight revenues per carload in Australia.
Petroleum products revenues decreased
$1.3 million
, or
3.7%
. Petroleum products traffic volume decreased 2,680 carloads, or 4.8%, which decreased revenues by $1.6 million, while average freight revenues per carload increased 1.2%, which increased revenues by $0.4 million. The carload decrease was primarily due to weaker crude oil traffic, partially offset by shipments of liquid petroleum gas from a new customer.
Autos and auto parts revenues decreased
$1.8 million
, or
13.9%
. The decrease was primarily due to a traffic volume decrease of 2,269 carloads, or 12.6%, resulting primarily from reduced railcar supply in the midwestern United States and Canadian rail networks and the loss of a customer contract in Canada.
Waste revenues decreased
$2.5 million
, or
22.9%
, primarily due to the closure of a waste facility we served in the midwestern United States.
Other commodity group traffic volume increased 9,225 carloads, or 27.9%, which increased revenues by $2.2 million, while average freight revenues per carload decreased 20.2%. The carload increase was primarily due to increased Class I overhead shipments in the central United States and a new haulage move in the northeastern United States. The decrease in average freight revenues per carload was primarily due to the increased Class I overhead shipments.
Freight revenues from all remaining commodities increased
$5.5 million
.
Non-Freight Revenues
The following table sets forth non-freight revenues for the
six
months ended
June 30, 2014
and
2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30,
|
|
|
2014
|
|
2013
|
|
|
Amount
|
|
% of Total
|
|
Amount
|
|
% of Total
|
|
Railcar switching
|
$
|
82,581
|
|
|
44.3
|
%
|
|
$
|
78,455
|
|
|
40.3
|
%
|
|
Car hire and rental income
|
19,652
|
|
|
10.5
|
%
|
|
17,579
|
|
|
9.0
|
%
|
|
Demurrage and storage
|
27,791
|
|
|
14.9
|
%
|
|
28,217
|
|
|
14.5
|
%
|
|
Car repair services
|
13,194
|
|
|
7.1
|
%
|
|
11,636
|
|
|
6.0
|
%
|
|
Construction revenues
|
10,170
|
|
|
5.5
|
%
|
|
21,423
|
|
|
11.0
|
%
|
|
Other non-freight revenues
|
32,970
|
|
|
17.7
|
%
|
|
37,335
|
|
|
19.2
|
%
|
|
Total non-freight revenues
|
$
|
186,358
|
|
|
100.0
|
%
|
|
$
|
194,645
|
|
|
100.0
|
%
|
The following table sets forth changes in non-freight revenues segregated into new operations and existing operations for the
six
months ended
June 30, 2014
compared with the
six
months ended
June 30, 2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30,
|
|
Increase/(Decrease) in Total
Operations
|
|
Increase/ (Decrease) in Existing
Operations
|
|
Currency
Impact
|
|
|
2014
|
|
2013
|
|
|
|
|
|
Total
Operations
|
|
New
Operations
|
|
Existing
Operations
|
|
Total
Operations
|
|
Amount
|
|
%
|
|
Amount
|
|
%
|
|
|
Railcar switching
|
$
|
82,581
|
|
|
$
|
16
|
|
|
$
|
82,565
|
|
|
$
|
78,455
|
|
|
$
|
4,126
|
|
|
5.3
|
%
|
|
$
|
4,110
|
|
|
5.2
|
%
|
|
$
|
(1,734
|
)
|
|
Car hire and rental income
|
19,652
|
|
|
333
|
|
|
19,319
|
|
|
17,579
|
|
|
2,073
|
|
|
11.8
|
%
|
|
1,740
|
|
|
9.9
|
%
|
|
(323
|
)
|
|
Demurrage and storage
|
27,791
|
|
|
—
|
|
|
27,791
|
|
|
28,217
|
|
|
(426
|
)
|
|
(1.5
|
)%
|
|
(426
|
)
|
|
(1.5
|
)%
|
|
(359
|
)
|
|
Car repair services
|
13,194
|
|
|
44
|
|
|
13,150
|
|
|
11,636
|
|
|
1,558
|
|
|
13.4
|
%
|
|
1,514
|
|
|
13.0
|
%
|
|
(71
|
)
|
|
Construction revenues
|
10,170
|
|
|
—
|
|
|
10,170
|
|
|
21,423
|
|
|
(11,253
|
)
|
|
(52.5
|
)%
|
|
(11,253
|
)
|
|
(52.5
|
)%
|
|
—
|
|
|
Other non-freight revenues
|
32,970
|
|
|
154
|
|
|
32,816
|
|
|
37,335
|
|
|
(4,365
|
)
|
|
(11.7
|
)%
|
|
(4,519
|
)
|
|
(12.1
|
)%
|
|
(1,780
|
)
|
|
Total non-freight revenues
|
$
|
186,358
|
|
|
$
|
547
|
|
|
$
|
185,811
|
|
|
$
|
194,645
|
|
|
$
|
(8,287
|
)
|
|
(4.3
|
)%
|
|
$
|
(8,834
|
)
|
|
(4.5
|
)%
|
|
$
|
(4,267
|
)
|
Total non-freight revenues decreased
$8.3 million
, or
4.3%
, to
$186.4 million
in the
six
months ended
June 30, 2014
, compared with
$194.6 million
in the
six
months ended
June 30, 2013
. The decrease in non-freight revenues was attributable to
$8.8 million
from existing operations, partially offset by
$0.5 million
from new operations. The decrease in non-freight revenues from existing operations was primarily due to an
$11.3 million
decrease in low margin construction revenues and a
$4.3 million
decrease from the net impact of foreign currency depreciation, partially offset by a
$5.8 million
increase in railcar switching primarily in Australia and Europe.
Operating Expenses
Overview
Operating expenses were
$605.9 million
in the
six
months ended
June 30, 2014
, compared with
$592.0 million
in the
six
months ended
June 30, 2013
, an increase of
$13.9 million
, or
2.3%
. The increase in operating expenses was attributable to an increase of
$9.2 million
from existing operations and
$4.6 million
from new operations. The increase from existing operations was primarily due to a
$17.5 million
increase from labor and benefits and an
$8.8 million
increase in depreciation and amortization, partially offset by a
$7.2 million
decrease in other expenses. In addition, the depreciation of the Australian and Canadian dollars relative to the United States dollar resulted in a
$12.2 million
decrease in operating expenses from existing operations.
Our operating ratio, defined as total operating expenses divided by total operating revenues, was
76.6%
in the
six
months ended
June 30, 2014
compared with
76.3%
in the
six
months ended
June 30, 2013
. Income from operations in the
six
months ended
June 30, 2014
included business development and related costs of
$2.8 million
, including RCP&E acquisition and integration related costs and reorganization costs associated with Atlas, partially offset by a
$2.2 million
net gain on the sale of assets. Income from operations in the
six
months ended
June 30, 2013
included
$14.0 million
of business development and related costs, including RailAmerica integration and acquisition costs, partially offset by a
$2.7 million
net gain on the sale of assets.
The following table sets forth our operating expenses for the
six
months ended
June 30, 2014
and
2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30,
|
|
Currency
Impact
|
|
|
2014
|
|
2013
|
|
|
|
Amount
|
|
% of
Operating
Revenues
|
|
Amount
|
|
% of
Operating
Revenues
|
|
|
Labor and benefits
|
$
|
233,303
|
|
|
29.5
|
%
|
|
$
|
219,087
|
|
|
28.3
|
%
|
|
$
|
(4,708
|
)
|
|
Equipment rents
|
38,932
|
|
|
4.9
|
%
|
|
37,701
|
|
|
4.9
|
%
|
|
(678
|
)
|
|
Purchased services
|
51,678
|
|
|
6.6
|
%
|
|
59,993
|
|
|
7.8
|
%
|
|
(2,561
|
)
|
|
Depreciation and amortization
|
75,853
|
|
|
9.6
|
%
|
|
68,384
|
|
|
8.8
|
%
|
|
(1,908
|
)
|
|
Diesel fuel used in operations
|
79,314
|
|
|
10.0
|
%
|
|
73,879
|
|
|
9.5
|
%
|
|
3
|
|
|
Casualties and insurance
|
22,385
|
|
|
2.8
|
%
|
|
17,994
|
|
|
2.3
|
%
|
|
(539
|
)
|
|
Materials
|
35,444
|
|
|
4.5
|
%
|
|
41,714
|
|
|
5.4
|
%
|
|
(333
|
)
|
|
Trackage rights
|
26,287
|
|
|
3.3
|
%
|
|
23,627
|
|
|
3.0
|
%
|
|
(896
|
)
|
|
Net gain on sale of assets
|
(2,207
|
)
|
|
(0.3
|
)%
|
|
(2,716
|
)
|
|
(0.4
|
)%
|
|
39
|
|
|
Other expenses
|
44,869
|
|
|
5.7
|
%
|
|
52,318
|
|
|
6.7
|
%
|
|
(592
|
)
|
|
Total operating expenses
|
$
|
605,858
|
|
|
76.6
|
%
|
|
$
|
591,981
|
|
|
76.3
|
%
|
|
$
|
(12,173
|
)
|
The following information discusses the significant changes in operating expenses.
Labor and benefits expense was
$233.3 million
in the
six
months ended
June 30, 2014
, compared with
$219.1 million
in the
six
months ended
June 30, 2013
, an increase of
$14.2 million
, or
6.5%
, of which
$12.8 million
was from existing operations and
$1.5 million
was from new operations. The increase from existing operations was primarily due to an increase in the average number of employees, as well as an increase in overtime expense due to severe winter weather and an increase in benefits expense, partially offset by a decrease of
$4.7 million
due to the depreciation of the Australian and Canadian dollars relative to the United States dollar. Our average number of employees increased for our existing operations primarily as a result of insourcing our equipment maintenance activities in Australia and the midwestern United States and due to an increase in transportation employees as a result of higher traffic levels.
Purchased services expense, which consists primarily of the costs of services provided by outside contractors for repairs and maintenance of track property, locomotives, railcars and other equipment as well as contract labor costs for crewing services, was
$51.7 million
in the
six
months ended
June 30, 2014
, compared with
$60.0 million
in the
six
months ended
June 30, 2013
, a decrease of
$8.3 million
, or
13.9%
. The decrease was primarily attributable to the insourcing of equipment maintenance activities in Australia.
Depreciation and amortization expense was
$75.9 million
in the
six
months ended
June 30, 2014
, compared with
$68.4 million
in the
six
months ended
June 30, 2013
, an increase of
$7.5 million
, or
10.9%
. The increase was attributable to a
$6.9 million
increase from existing operations and
$0.5 million
from new operations. The increase from existing operations was primarily due to additional capital expenditures in 2013 including new business development projects, partially offset by a decrease of
$1.9 million
due to the depreciation of the Australian and Canadian dollars relative to the United States dollar.
The cost of diesel fuel used in operations was
$79.3 million
in the
six
months ended
June 30, 2014
, compared with
$73.9 million
in the
six
months ended
June 30, 2013
, an increase of
$5.4 million
, or
7.4%
. The increase was attributable to an increase of
$4.7 million
from existing operations and
$0.7 million
from new operations. The increase from existing operations was composed of $5.0 million due to a 7.0% increase in diesel fuel consumption, partially offset by a $0.3 million decrease from a 0.5% increase in average fuel cost per gallon.
Casualties and insurance expense was
$22.4 million
in the
six
months ended
June 30, 2014
, compared with
$18.0 million
in the
six
months ended
June 30, 2013
, an increase of
$4.4 million
, or
24.4%
. The increase was primarily due to three severe weather related incidents, including a washout in Canada during the spring thaw, a bridge failure due to ice damage during the first quarter of 2014 and a washout in the southeastern United States due to heavy rain from a severe thunderstorm in the second quarter of 2014.
Materials expense, which primarily consists of the costs of materials purchased for use in repairing and maintaining our track property, locomotives, railcars and other equipment as well as costs for general tools and supplies used in our business, was
$35.4 million
in the
six
months ended
June 30, 2014
, compared with
$41.7 million
in the
six
months ended
June 30, 2013
, a decrease of
$6.3 million
. The decrease was primarily due to a reduction in the level of construction projects at Atlas.
Trackage rights expense was
$26.3 million
in the
six
months ended
June 30, 2014
, compared with
$23.6 million
in the
six
months ended
June 30, 2013
, an increase of
$2.7 million
, or
11.3%
. The increase was primarily due to a new customer in Europe and expanded services for an iron ore customer in South Australia that moves over a segment of track owned by a third party.
Other expenses were
$44.9 million
in the
six
months ended
June 30, 2014
, compared with
$52.3 million
in the
six
months ended
June 30, 2013
, a decrease of
$7.4 million
, or
14.2%
. The decrease was primarily due to RailAmerica integration and acquisition costs included in 2013.
Interest Expense
Total interest expense was
$31.5 million
in the
six
months ended
June 30, 2014
, compared with
$37.3 million
in the
six
months ended
June 30, 2013
. Interest expense in the
six
months ended
June 30, 2014
included the write-off of deferred financing fees of
$4.7 million
associated with the refinancing of our Credit Agreement in May 2014. The decrease in interest expense was primarily due to lower weighted average outstanding term debt during the
six
months ended
June 30, 2014
, compared with the
six
months ended
June 30, 2013
.
Provision for Income Taxes
On January 2, 2013, the United States Short Line Tax Credit was extended for 2012 and 2013. The extension of the United States Short Line Tax Credit produced book income tax benefits of
$52.4 million
for the
six
months ended
June 30, 2013
. The total tax credit impact in the
six
months ended
June 30, 2013
included
$41.0 million
for the retroactive fiscal year 2012 tax benefit and
$11.5 million
associated with the
six
months ended
June 30, 2013
. Since the extension became law in 2013, the 2012 impact was recorded in the first quarter of 2013.
Our provision for income tax for the
six
months ended
June 30, 2014
was
$55.5 million
, which represented
35.6%
of income before income taxes and included a benefit of
$1.0 million
as a result of adjusting our deferred income taxes to reflect the impact of the RCP&E acquisition. Excluding a
$41.0 million
retroactive income tax benefit from the United States Short Line Tax Credit, our provision for income tax for the
six
months ended
June 30, 2013
was
$41.2 million
, which represented
27.9%
of income before income taxes other than the retroactive benefit from the United States Short Line Tax Credit. The increase in the effective income tax rate for the
six
months ended
June 30, 2014
was primarily attributable to the expiration of the Short Line Tax Credit on December 31, 2013.
Net Income and Earnings Per Share Attributable to G&W Common Stockholders
Net income in the
six
months ended
June 30, 2014
was
$100.5 million
, compared with net income in the
six
months ended
June 30, 2013
of
$147.8 million
. Our basic EPS were
$1.83
with
54.9 million
weighted average shares outstanding in the
six
months ended
June 30, 2014
, compared with basic EPS of
$2.75
with
52.9 million
weighted average shares outstanding in the
six
months ended
June 30, 2013
. Our diluted EPS in the
six
months ended
June 30, 2014
were
$1.77
with
56.9 million
weighted average shares outstanding, compared with diluted EPS of
$2.60
with
56.6 million
weighted average shares outstanding in the
six
months ended
June 30, 2013
. On February 13, 2013, we converted all of our outstanding Series A-1 Preferred Stock into
5,984,232
shares of our Class A common stock. The conversion resulted in an increase in our weighted average basic shares outstanding of
5,984,232
and
4,529,502
for the
six
months ended
June 30, 2014
and
2013
, respectively. Our results for the
six
months ended
June 30, 2014
and
2013
included certain significant items as previously presented in the "Overview."
Segment Information
Our various railroad lines are organized into
11
operating regions. All of the regions have similar economic and other characteristics; however, we present our financial information as two reportable segments, North American & European Operations and Australian Operations.
The results of operations of our foreign entities are maintained in the respective local currency (the Australian dollar, the Canadian dollar and the Euro) and then translated into United States dollars at the applicable exchange rates for inclusion in our consolidated financial statements. As a result, any appreciation or depreciation of these currencies against the United States dollar can impact our results of operations.
The following table sets forth our North American & European Operations and Australian Operations for the
three
months ended
June 30, 2014
and
2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, 2014
|
|
Three Months Ended June 30, 2013
|
|
|
North
American &
European
Operations
|
|
Australian
Operations
|
|
Total
Operations
|
|
North
American &
European
Operations
|
|
Australian
Operations
|
|
Total
Operations
|
|
Operating revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
Freight
|
$
|
252,320
|
|
|
$
|
64,430
|
|
|
$
|
316,750
|
|
|
$
|
232,996
|
|
|
$
|
66,853
|
|
|
$
|
299,849
|
|
|
Non-freight
|
79,124
|
|
|
18,689
|
|
|
97,813
|
|
|
84,220
|
|
|
16,579
|
|
|
100,799
|
|
|
Total operating revenues
|
331,444
|
|
|
83,119
|
|
|
414,563
|
|
|
317,216
|
|
|
83,432
|
|
|
400,648
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
Labor and benefits
|
97,625
|
|
|
18,931
|
|
|
116,556
|
|
|
92,088
|
|
|
17,693
|
|
|
109,781
|
|
|
Equipment rents
|
17,140
|
|
|
2,734
|
|
|
19,874
|
|
|
16,375
|
|
|
2,618
|
|
|
18,993
|
|
|
Purchased services
|
15,909
|
|
|
7,959
|
|
|
23,868
|
|
|
17,238
|
|
|
13,360
|
|
|
30,598
|
|
|
Depreciation and amortization
|
31,040
|
|
|
7,172
|
|
|
38,212
|
|
|
27,388
|
|
|
6,773
|
|
|
34,161
|
|
|
Diesel fuel used in operations
|
29,856
|
|
|
7,523
|
|
|
37,379
|
|
|
26,953
|
|
|
7,741
|
|
|
34,694
|
|
|
Casualties and insurance
|
10,512
|
|
|
2,240
|
|
|
12,752
|
|
|
7,774
|
|
|
2,269
|
|
|
10,043
|
|
|
Materials
|
17,927
|
|
|
1,398
|
|
|
19,325
|
|
|
22,151
|
|
|
633
|
|
|
22,784
|
|
|
Trackage rights
|
8,572
|
|
|
5,449
|
|
|
14,021
|
|
|
7,278
|
|
|
5,492
|
|
|
12,770
|
|
|
Net gain on sale of assets
|
(1,325
|
)
|
|
(44
|
)
|
|
(1,369
|
)
|
|
(661
|
)
|
|
(348
|
)
|
|
(1,009
|
)
|
|
Other expenses
|
19,660
|
|
|
4,176
|
|
|
23,836
|
|
|
18,510
|
|
|
1,906
|
|
|
20,416
|
|
|
Total operating expenses
|
246,916
|
|
|
57,538
|
|
|
304,454
|
|
|
235,094
|
|
|
58,137
|
|
|
293,231
|
|
|
Income from operations
|
$
|
84,528
|
|
|
$
|
25,581
|
|
|
$
|
110,109
|
|
|
$
|
82,122
|
|
|
$
|
25,295
|
|
|
$
|
107,417
|
|
|
Operating ratio
|
74.5
|
%
|
|
69.2
|
%
|
|
73.4
|
%
|
|
74.1
|
%
|
|
69.7
|
%
|
|
73.2
|
%
|
|
Interest expense
|
$
|
14,280
|
|
|
$
|
3,534
|
|
|
$
|
17,814
|
|
|
$
|
13,282
|
|
|
$
|
3,921
|
|
|
$
|
17,203
|
|
|
Interest income
|
$
|
192
|
|
|
$
|
49
|
|
|
$
|
241
|
|
|
$
|
915
|
|
|
$
|
35
|
|
|
$
|
950
|
|
|
Provision for income taxes
|
$
|
(26,007
|
)
|
|
$
|
(6,560
|
)
|
|
$
|
(32,567
|
)
|
|
$
|
(19,379
|
)
|
|
$
|
(5,839
|
)
|
|
$
|
(25,218
|
)
|
|
Carloads
|
451,493
|
|
|
58,138
|
|
|
509,631
|
|
|
417,106
|
|
|
63,873
|
|
|
480,979
|
|
|
Expenditures for additions to property & equipment, net of grants from outside parties
|
$
|
85,412
|
|
|
$
|
3,047
|
|
|
$
|
88,459
|
|
|
$
|
59,215
|
|
|
$
|
13,558
|
|
|
$
|
72,773
|
|
Revenues from our North American & European Operations were
$331.4 million
in the
three
months ended
June 30, 2014
, compared with
$317.2 million
in the
three
months ended
June 30, 2013
, an increase of
$14.2 million
, or
4.5%
. The
$14.2 million
increase in revenues from our North American & European Operations consisted of a
$19.3 million
increase in freight revenues, partially offset by a
$5.1 million
decrease in non-freight revenues. The
$19.3 million
increase in freight revenues consisted of an increase of $14.4 million from existing operations and
$4.9 million
from new operations. The $14.4 million increase from existing operations was primarily related to increased demand for steam coal and increased agricultural products shipments in the United States. The
$5.1 million
decrease in non-freight revenues consisted of a $5.6 million decrease from existing operations, partially offset by a
$0.5 million
increase from new operations. The $5.6 million decrease from existing operations was primarily due to a decrease in low margin construction revenues at Atlas, partially offset by an increase in railcar switching resulting from a new customer in Europe.
Operating expenses from our North American & European Operations were
$246.9 million
in the
three
months ended
June 30, 2014
, compared with
$235.1 million
in the
three
months ended
June 30, 2013
, an increase of
$11.8 million
, or
5.0%
. The increase in operating expenses included $7.2 million from existing operations and
$4.6 million
from new operations. The $7.2 million increase in operating expenses from existing operations was primarily related to $4.7 million from labor and benefits expense, primarily as a result of an increase in the average number of employees and benefit increases for existing employees; a $3.4 million increase in depreciation and amortization expense, primarily related to capital expenditures in 2013 including new business development projects; a $2.2 million increase in the cost of diesel fuel used in operations, primarily resulting from increased average fuel prices and increased carloads; and an increase of $2.8 million in casualties and insurance expense, primarily resulting from two severe washouts, one in Canada during the spring thaw and one in the southeastern United States. These increases were partially offset by a $4.6 million decrease in materials expense, primarily due to a reduction in the level of construction projects at Atlas, and a decrease of $1.2 million primarily due to the depreciation of the Canadian dollar relative to the United States dollar. Our average number of employees increased for existing North American & European Operations primarily as a result of insourcing of our equipment maintenance activities in the midwestern United States and due to an increase in transportation employees as a result of higher traffic levels.
Revenues from our Australian Operations were
$83.1 million
in the
three
months ended
June 30, 2014
, compared with
$83.4 million
in the
three
months ended
June 30, 2013
, a decrease of
$0.3 million
, or
0.4%
. The
$0.3 million
decrease in revenues consisted of a
$2.4 million
decrease in freight revenues, partially offset by a
$2.1 million
increase in non-freight revenues. The
$2.4 million
decrease in freight revenues consisted of $3.8 million due to the depreciation of the Australian dollar relative to the United States dollar and $6.4 million due to a 5,735, or 9.0%, carload decrease, partially offset by a $7.7 million increase due to a 12.2% increase in average freight revenues per carload. The decrease in carloads was primarily due to decreased shipments of gypsum, marble and grain. The increase in average freight revenues per carload was primarily driven by a change in mix of business. The increase in non-freight revenues was primarily attributable to an increase in railcar switching revenues due to higher narrow gauge iron ore shipments.
Operating expenses from our Australian Operations were
$57.5 million
in the
three
months ended
June 30, 2014
, compared with
$58.1 million
in the
three
months ended
June 30, 2013
, a decrease of
$0.6 million
, or
1.0%
. The decrease in operating expenses included decreases of $4.7 million in purchased services expense due to the insourcing of equipment maintenance activities and $2.3 million due to the depreciation of the Australian dollar relative to the United States dollar, partially offset by an increase in labor and benefits, materials and other expenses all due to the insourcing of equipment maintenance activities.
The following table sets forth our North American & European Operations and Australian Operations for the
six
months ended
June 30, 2014
and
2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30, 2014
|
|
Six Months Ended June 30, 2013
|
|
|
North
American &
European
Operations
|
|
Australian
Operations
|
|
Total
Operations
|
|
North
American &
European
Operations
|
|
Australian
Operations
|
|
Total
Operations
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
Freight
|
$
|
481,307
|
|
|
$
|
123,177
|
|
|
$
|
604,484
|
|
|
$
|
453,842
|
|
|
$
|
127,111
|
|
|
$
|
580,953
|
|
|
Non-freight
|
150,124
|
|
|
36,234
|
|
|
186,358
|
|
|
162,469
|
|
|
32,176
|
|
|
194,645
|
|
|
Total revenues
|
631,431
|
|
|
159,411
|
|
|
790,842
|
|
|
616,311
|
|
|
159,287
|
|
|
775,598
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
Labor and benefits
|
198,163
|
|
|
35,140
|
|
|
233,303
|
|
|
184,785
|
|
|
34,302
|
|
|
219,087
|
|
|
Equipment rents
|
33,910
|
|
|
5,022
|
|
|
38,932
|
|
|
32,468
|
|
|
5,233
|
|
|
37,701
|
|
|
Purchased services
|
31,537
|
|
|
20,141
|
|
|
51,678
|
|
|
34,343
|
|
|
25,650
|
|
|
59,993
|
|
|
Depreciation and amortization
|
61,619
|
|
|
14,234
|
|
|
75,853
|
|
|
54,799
|
|
|
13,585
|
|
|
68,384
|
|
|
Diesel fuel used in operations
|
64,590
|
|
|
14,724
|
|
|
79,314
|
|
|
58,561
|
|
|
15,318
|
|
|
73,879
|
|
|
Casualties and insurance
|
17,644
|
|
|
4,741
|
|
|
22,385
|
|
|
13,575
|
|
|
4,419
|
|
|
17,994
|
|
|
Materials
|
33,438
|
|
|
2,006
|
|
|
35,444
|
|
|
40,521
|
|
|
1,193
|
|
|
41,714
|
|
|
Trackage rights
|
15,329
|
|
|
10,958
|
|
|
26,287
|
|
|
13,996
|
|
|
9,631
|
|
|
23,627
|
|
|
Net gain on sale of assets
|
(2,045
|
)
|
|
(162
|
)
|
|
(2,207
|
)
|
|
(2,368
|
)
|
|
(348
|
)
|
|
(2,716
|
)
|
|
Other expenses
|
37,028
|
|
|
7,841
|
|
|
44,869
|
|
|
48,715
|
|
|
3,603
|
|
|
52,318
|
|
|
Total operating expenses
|
491,213
|
|
|
114,645
|
|
|
605,858
|
|
|
479,395
|
|
|
112,586
|
|
|
591,981
|
|
|
Income from operations
|
$
|
140,218
|
|
|
$
|
44,766
|
|
|
$
|
184,984
|
|
|
$
|
136,916
|
|
|
$
|
46,701
|
|
|
$
|
183,617
|
|
|
Operating ratio
|
77.8
|
%
|
|
71.9
|
%
|
|
76.6
|
%
|
|
77.8
|
%
|
|
70.7
|
%
|
|
76.3
|
%
|
|
Interest expense
|
$
|
23,725
|
|
|
$
|
7,730
|
|
|
$
|
31,455
|
|
|
$
|
29,093
|
|
|
$
|
8,230
|
|
|
$
|
37,323
|
|
|
Interest income
|
$
|
1,094
|
|
|
$
|
181
|
|
|
$
|
1,275
|
|
|
$
|
1,804
|
|
|
$
|
189
|
|
|
$
|
1,993
|
|
|
(Provision for)/benefit from income taxes
|
$
|
(44,464
|
)
|
|
$
|
(11,003
|
)
|
|
$
|
(55,467
|
)
|
|
$
|
10,670
|
|
|
$
|
(10,956
|
)
|
|
$
|
(286
|
)
|
|
Carloads
|
861,030
|
|
|
115,980
|
|
|
977,010
|
|
|
812,077
|
|
|
119,206
|
|
|
931,283
|
|
|
Expenditures for additions to property & equipment, net of grants from outside parties
|
$
|
139,397
|
|
|
$
|
7,880
|
|
|
147,277
|
|
|
$
|
73,926
|
|
|
$
|
32,400
|
|
|
$
|
106,326
|
|
Revenues from our North American & European Operations were
$631.4 million
in the
six
months ended
June 30, 2014
, compared with
$616.3 million
in the
six
months ended
June 30, 2013
, an increase of
$15.1 million
, or
2.5%
. The
$15.1 million
increase in revenues from our North American & European Operations consisted of a
$27.5 million
increase in freight revenues, partially offset by a
$12.3 million
decrease in non-freight revenues. The
$27.5 million
increase in freight revenues consisted of an increase of $22.5 million from existing operations and
$4.9 million
from new operations. The $22.5 million increase from existing operations was primarily related to increased demand for steam coal in the midwestern United States and increased agricultural products shipments in North America. The
$12.3 million
decrease in non-freight revenues consisted of a $12.9 million decrease from existing operations, partially offset by a
$0.5 million
increase from new operations. The decrease from existing operations was primarily related to an $11.3 million decrease in low margin construction revenues at Atlas, partially offset by an increase in railcar switching resulting from a new customer in Europe.
Operating expenses from our North American & European Operations were
$491.2 million
in the
six
months ended
June 30, 2014
, compared with
$479.4 million
in the
six
months ended
June 30, 2013
, an increase of
$11.8 million
, or
2.5%
. The increase in operating expenses included $7.2 million from existing operations and
$4.6 million
from new operations. The $7.2 million increase in operating expenses from existing operations was primarily related to $13.3 million from labor and benefits expense, primarily as a result of an increase in the average number of employees, overtime expense and benefit increases for existing employees; a $6.9 million increase in depreciation and amortization expense, primarily related to capital expenditures in 2013 including new business development projects; a $5.3 million increase in the cost of diesel fuel used in operations primarily resulting from locomotives idling longer due to the colder winter weather and increased average fuel prices as well as an increase of $4.2 million in casualties and insurance expense, primarily resulting from three severe weather related incidents in North America. These increases were partially offset by an $11.8 million decrease in other expenses, a $7.4 million decrease in materials expense, primarily related to a reduction in the level of construction projects at Atlas, and a decrease of $2.9 million primarily due to the depreciation of the Canadian dollar relative to the United States dollar. Our average number of employees increased for existing North American & European Operations primarily as a result of insourcing our equipment maintenance activities in the midwestern United States and due to an increase in transportation employees as a result of higher traffic levels.
Revenues from our Australian Operations were
$159.4 million
in the
six
months ended
June 30, 2014
, compared with
$159.3 million
in the
six
months ended
June 30, 2013
, an increase of
$0.1 million
, or
0.1%
. The slight increase in revenues included a
$4.1 million
increase in non-freight revenues, partially offset by a
$3.9 million
decrease in freight revenues. The
$4.1 million
increase in non-freight revenues was primarily attributable to an increase in railcar switching revenues due to higher narrow gauge iron ore shipments. The
$3.9 million
decrease in freight revenues consisted of $12.0 million due to the depreciation of the Australian dollar relative to the United States dollar and $3.4 million due to a 3,226, or 2.7%, carload decrease, partially offset by $11.5 million due to a 9.9% increase in average freight revenues per carload. The decrease in carloads was primarily due to decreased shipments of gypsum and marble, partially offset by an increase in shipments of iron ore and manganese. The increase in average freight revenues per carload was primarily due to a change in mix of business.
Operating expenses from our Australian Operations were
$114.6 million
in the
six
months ended
June 30, 2014
, compared with
$112.6 million
in the
six
months ended
June 30, 2013
, an increase of
$2.1 million
, or
1.8%
. The increase in operating expenses included an increase in labor and benefits, due to the insourcing of equipment maintenance activities, an increase in trackage rights expense and an increase in depreciation and amortization expense primarily resulting from capital expenditures in 2013 including new business development projects. The increase was partially offset by a $9.3 million decrease in operating expenses resulting from the depreciation of the Australian dollar relative to the United States dollar and a decrease in purchased services due to the insourcing of equipment maintenance activities.
Liquidity and Capital Resources
During the
six
months ended
June 30, 2014
and
2013
, our cash flows from operating activities were
$200.1 million
and
$152.7 million
, respectively. For the
six
months ended
June 30, 2014
and
2013
, changes in working capital decreased net cash flows by
$12.4 million
and
$57.4 million
, respectively. The 2013 period included
$9.6 million
in cash paid for expenses related to the integration of RailAmerica.
During the
six
months ended
June 30, 2014
and
2013
, our cash flows used in investing activities were
$363.3 million
and
$103.1 million
, respectively. For the
six
months ended
June 30, 2014
, primary drivers of cash used in investing activities were
$220.5 million
of cash paid for acquisitions, predominately for RCP&E's acquisition,
$174.9 million
of cash used for capital expenditures, including
$61.0 million
for new business investments, partially offset by
$27.6 million
in cash received from grants from outside parties for capital spending,
$3.4 million
in cash proceeds from the sale of property and equipment and
$1.2 million
of insurance proceeds for the replacement of assets. For the
six
months ended
June 30, 2013
, primary drivers of cash used in investing activities were
$112.3 million
of cash used for capital expenditures, including new business investments of
$25.1 million
, partially offset by
$6.0 million
in cash received from grants from outside parties for capital spending and
$3.2 million
in cash proceeds from the sale of property and equipment.
During the
six
months ended
June 30, 2014
, our cash flows provided by financing activities were
$133.9 million
. During the
six
months ended
June 30, 2013
, our cash flows used in financing activities were
$95.9 million
. For the
six
months ended
June 30, 2014
, primary drivers of cash flows provided by financing activities were net proceeds of
$126.3 million
primarily related to the amendment to our Credit Agreement in May 2014 and net cash inflows of
$7.6 million
from exercises of stock-based awards. For the
six
months ended
June 30, 2013
, primary drivers of cash flows used in financing activities were a net decrease in outstanding debt of
$99.0 million
,
$2.1 million
of dividends paid to Series A-1 Preferred Stockholders and
$1.9 million
of fees paid to amend our Credit Agreement, partially offset by
$7.1 million
in net cash received from exercises of stock-based awards.
At
June 30, 2014
, we had long-term debt, including current portion, totaling
$1.8 billion
, which was
43.7%
of our total capitalization, and
$577.5 million
of unused borrowing capacity under our Credit Agreement. At
December 31, 2013
, we had long-term debt, including current portion, totaling
$1.6 billion
, which was
43.1%
of our total capitalization.
Based on current expectations, we believe our cash and other liquid assets, anticipated future cash flows, availability under our Credit Agreement, access to debt and equity capital markets and sources of available financing will be sufficient to fund expected operating, capital and debt service requirements and other financial commitments for the foreseeable future.
Credit Facilities
On May 27, 2014, we entered into Amendment No. 2 to the Senior Secured Syndicated Credit Facility Agreement (Amendment No. 2), dated October 1, 2012, as amended by Amendment No. 1, dated March 28, 2013, pursuant to which our Senior Secured Syndicated Credit Facility Agreement was amended and restated (Amended and Restated Credit Agreement). The credit facilities under the Amended and Restated Credit Agreement are comprised of a
$1,520.0 million
United States term loan, an
A$216.8 million
(or
$200.3 million
at the exchange rate on May 27, 2014) Australian term loan and a
$625.0 million
revolving credit facility. Amendment No. 2 also extended the maturity date of each of our credit facilities to
May 31, 2019
. The revolving credit facility includes borrowing capacity for letters of credit and swingline loans.
The Amended and Restated Credit Agreement provides that borrowings under our revolving credit facility may be denominated in United States dollars, Australian dollars, Canadian dollars and Euros. At our election, at the time of entering into specific borrowings, interest on borrowings is calculated under a "Base Rate" or "LIBOR/BBSW Rate." LIBOR is the London Interbank Offered Rate. BBSW is the Bank Bill Swap Reference Rate within Australia, which we believe is generally considered the Australian equivalent to LIBOR. The applicable borrowing spread for the Base Rate loans will initially be
0.75%
over the base rate, and, following our first quarterly compliance certificate will range from
0.0%
to
1.0%
depending upon our total leverage ratio. The applicable borrowing spread for LIBOR/BBSW Rate loans, will initially be
1.75%
over the LIBOR or BBSW, and, following our first quarterly compliance certificate will range from
1.0%
to
2.0%
depending upon our total leverage ratio.
In addition to paying interest on any outstanding borrowings under the Amended and Restated Credit Agreement, we are required to pay a commitment fee related to the unutilized portion of the commitments under the revolving credit facility. The commitment fee rate will initially be
0.3%
, and, following our first quarterly compliance certificate will range from
0.2%
to
0.3%
depending upon our total leverage ratio.
In connection with the Amended and Restated Credit Agreement, we wrote-off
$4.7 million
of unamortized deferred financing fees and capitalized an additional
$3.6 million
of new fees. Deferred financing costs are amortized as additional interest expense over the terms of the related debt using the effective-interest method for the term loan debt and the straight-line method for the revolving credit facility.
During the
three
months ended
June 30, 2014
, we made prepayments on our United States term loan of
$30.0 million
and prepayments on our Australian term loan of
A$12.0 million
(or
$11.3 million
at the exchange rate on
June 30, 2014
). As of
June 30, 2014
, we had outstanding term loans of
$1,490.0 million
with an interest rate of
1.90%
and
A$204.8 million
(or
$193.0 million
at the exchange rate on
June 30, 2014
) with an interest rate of
4.46%
.
The United States dollar-denominated and Australian dollar-denominated term loans will amortize in quarterly installments commencing with the quarter ending September 30, 2015, with the remaining principal balance payable upon maturity, as set forth below (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarterly Payment Date
|
|
Principal Amount of Each Quarterly Installment
|
|
United States:
|
|
September 30, 2015 through June 30, 2017
|
|
$
|
19,000
|
|
|
|
|
September 30, 2017 through March 31, 2019
|
|
$
|
38,000
|
|
|
|
|
Maturity date - May 31, 2019
|
|
$
|
1,072,000
|
|
|
|
|
|
|
|
|
Australia:
|
|
September 30, 2015 through June 30, 2017
|
|
A$
|
2,710
|
|
|
|
|
September 30, 2017 through March 31, 2019
|
|
A$
|
5,420
|
|
|
|
|
Maturity date - May 31, 2019
|
|
A$
|
145,180
|
|
The revolving credit facility under the Amended and Restated Credit Agreement includes sub-limits for revolving loans denominated in various currencies, including as of June 30, 2014 (a) up to
$275.0 million
under the United States dollar-denominated portion of our revolving credit facility, (b) up to
$200.0 million
under the Australian dollar-denominated portion of our revolving credit facility, (c) up to
$100.0 million
under the Canadian dollar-denominated portion of our revolving credit facility and (d) up to
$50.0 million
under the Euro-denominated portion of our revolving credit facility, with the ability to reallocate commitments among the sub-limits, provided that the total amount of all Australian dollar, Canadian dollar and Euro sub-limits cannot exceed
US$400.0 million
. In addition, the existing swingline credit facility portion of our revolving credit facility available under the United States dollar-denominated revolving credit facility increased from
$30.0 million
to
$50.0 million
.
The Amended and Restated Credit Agreement contains a number of customary affirmative and negative covenants, which are substantially consistent with the terms of the credit agreement prior to giving effect to Amendment No. 2 under the Amended and Restated Credit Agreement with respect to which we must maintain compliance. Those covenants, among other things, limit or prohibit our ability, subject to certain exceptions, to incur additional indebtedness; create liens; make investments; pay dividends on capital stock or redeem, repurchase or retire capital stock; consolidate or merge or make acquisitions or dispose of assets; enter into sale and leaseback transactions; engage in any business unrelated to the business currently conducted by us; sell or issue capital stock of any of our restricted subsidiaries; change our fiscal year; enter into certain agreements containing negative pledges and upstream limitations and engage in certain transactions with affiliates. Under the Amended and Restated Credit Agreement, we may not have an interest coverage ratio less than 3.50 to 1.00 as of the last day of any fiscal quarter. Amendment No. 2 modified the leverage ratios. Under the Amended and Restated Credit Agreement, we may not exceed specified maximum total leverage ratios as described in the following table:
|
|
|
|
|
|
|
Period
|
|
Maximum Total Leverage Ratio
|
|
May 27, 2014 through June 30, 2015
|
|
4.25 to 1.00
|
|
July 1, 2015 through June 30, 2016
|
|
3.75 to 1.00
|
|
July 1, 2016 and May 31, 2019
|
|
3.50 to 1.00
|
As of
June 30, 2014
, we were in compliance with the covenants under our Amended and Restated Credit Agreement, including the maximum total leverage covenant noted above. As of
June 30, 2014
, our usage under our
$625.0 million
revolving credit facility consisted of
$44.4 million
in borrowings,
$3.0 million
in letter of credit guarantees and
$577.5 million
of unused borrowing capacity. As of
June 30, 2014
, we had outstanding revolving loans of
$11.0 million
in United States dollar-denominated borrowings with an interest rate of
1.90%
,
A$15.0 million
in Australian dollar-denominated borrowings (or
$14.1 million
at the exchange rate on
June 30, 2014
) with an interest rate of
6.47%
,
C$14.0 million
in Canadian dollar-denominated borrowings (or
$13.1 million
at the exchange rate on
June 30, 2014
) with an interest rate of
2.99%
and
€4.5 million
in Euro-denominated borrowings (or
$6.2 million
at the exchange rate on
June 30, 2014
) with an interest rate of
1.83%
.
Series A-1 Preferred Stock Converted into Common Stock on February 13, 2013
Pursuant to an investment agreement governing the sale of the Series A-1 Preferred Stock to affiliates of Carlyle Partners V, L.P. (Carlyle) in connection with the funding of the RailAmerica acquisition, on October 1, 2012, we completed the issuance of
350,000
shares of Series A-1 Preferred Stock at an issuance price of
$1,000.00
per share for
$349.4 million
, net of issuance costs, to Carlyle. Dividends on the Series A-1 Preferred Stock were cumulative and payable quarterly in arrears in an amount equal to
5.00%
per annum of the issuance price per share. Each share of the Series A-1 Preferred Stock was convertible at any time, at the option of the holder, into approximately
17.1
shares of Class A common stock, subject to customary conversion adjustments. The Series A-1 Preferred Stock was also mandatorily convertible into the relevant number of shares of Class A common stock on the second anniversary of the date of issuance, subject to the satisfaction of certain conditions. Furthermore, we had the ability to convert some or all of the Series A-1 Preferred Stock prior to the second anniversary of the date of issue of the Series A-1 Preferred Stock if the closing price of our Class A common stock on the New York Stock Exchange exceeded 130% of the conversion price (or
$76.03
) for 30 consecutive trading days, subject to the satisfaction of certain conditions. The conversion price of the Series A-1 Preferred Stock was set at approximately
$58.49
, which was a
4.5%
premium to our stock price prior to the announcement of the RailAmerica acquisition.
As of February 12, 2013, the closing price of our Class A common stock had exceeded
$76.03
for 30 consecutive trading days. On February 13, 2013, we converted all of the outstanding Series A-1 Preferred Stock issued to Carlyle in conjunction with the RailAmerica acquisition into
5,984,232
shares of our Class A common stock. On the conversion date, we also paid to Carlyle cash in lieu of fractional shares and all accrued and unpaid dividends on the Series A-1 Preferred Stock totaling
$2.1 million
.
2014
Budgeted Capital Expenditures
During the
six
months ended
June 30, 2014
, we incurred
$163.2 million
in aggregate capital expenditures, of which we paid
$135.4 million
in cash and accrued
$27.8 million
in accounts payable as of
June 30, 2014
. We expect to receive
$19.7 million
in grants from outside parties related to this year-to-date activity, which was included in outstanding grant receivables from outside parties as of
June 30, 2014
.
Cash of
$174.9 million
paid for purchases of property and equipment during the
six
months ended
June 30, 2014
consisted of
$135.4 million
for
2014
capital projects and
$39.5 million
related to capital expenditures accrued in
2013
. Grant proceeds during the
six
months ended
June 30, 2014
consisted of
$15.2 million
for grants related to
2014
capital expenditures and
$12.5 million
for grants related to our capital expenditures from prior years.
Accordingly, capital expenditures for the
six
months ended
June 30, 2014
, as compared with our
2014
full year budgeted capital expenditures can be summarized as follows (dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2014 Budgeted
|
|
Actual for the
|
|
|
|
Capital
|
|
Six Months Ended
|
|
|
|
Expenditures
|
|
June 30, 2014
|
|
Track and equipment improvements, self-funded
|
|
$
|
199,000
|
|
|
$
|
79,452
|
|
|
Track and equipment improvements, subject to third party funding
|
|
73,000
|
|
|
22,799
|
|
|
New business development
|
|
53,000
|
|
|
60,984
|
|
|
Grants from outside parties
|
|
(58,000
|
)
|
|
(19,667
|
)
|
|
Net capital expenditures
|
|
$
|
267,000
|
|
|
$
|
143,568
|
|
We periodically receive grants for the upgrade and construction of rail lines and the upgrade of locomotives from federal, provincial, state and local agencies and other outside parties in the United States, Canada and Australia. These grants typically reimburse us for 50% to 100% of the actual cost of specific projects.
Off-Balance Sheet Arrangements
An off-balance sheet arrangement includes any contractual obligation, agreement or transaction involving an unconsolidated entity under which we (1) have made guarantees, (2) have a retained or contingent interest in transferred assets, or a similar arrangement, that serves as credit, liquidity or market risk support to that entity for such assets, (3) have an obligation under certain derivative instruments or (4) have any obligation arising out of a material variable interest in such an entity that provides financing, liquidity, market risk or credit risk support to us, or that engages in leasing or hedging services with us. Our off-balance sheet arrangements as of
December 31, 2013
consisted of operating lease obligations. There were no material changes in our off-balance sheet arrangements during the
six
months ended
June 30, 2014
.
Impact of Foreign Currencies on Operating Revenues and Expenses
When comparing the effects of average foreign currency exchange rates on operating revenues during the
three and six
months ended
June 30, 2014
with the
three and six
months ended
June 30, 2013
, foreign currency translation had a negative impact on our consolidated operating revenues due to the weakening of the Australian and Canadian dollars relative to the United States dollar in the
three and six
months ended
June 30, 2014
. Currency effects related to operating revenues and expenses are presented within the discussion of these respective items included within this Item 2, Management's Discussion and Analysis of Financial Condition and Results of Operations.
|
|
|
|
ITEM 3.
|
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
|
Except as disclosed below, during the
six
months ended
June 30, 2014
, there were no material changes to the Quantitative and Qualitative Disclosures About Market Risk previously disclosed in our
2013
Annual Report on Form 10-K.
On May 23, 2014, the non-functional currency intercompany loan between the United States and Australian entities was repaid and we terminated the two outstanding two-year Australian dollar/United States dollar floating to floating cross-currency swap agreements (Swaps) which were effective December 3, 2012. In connection with the termination, we paid
A$105 million
and received
$108.9 million
, net of our quarterly settlement payments of
$0.6 million
. The Swaps required us to pay
Australian dollar Bank Bill Swap Reference Rate (BBSW) plus 3.25%
based on a notional amount of
A$105 million
and allowed us to receive United States
London Interbank Offered Rate (LIBOR) plus 2.82%
based on a notional amount of
$109.6 million
on a quarterly basis. BBSW is the wholesale interbank reference rate within Australia, which we believe is generally considered the Australian equivalent to LIBOR. As a result of the quarterly net settlement payments, we realized a net expense of
$0.6 million
and
$1.2 million
within interest expense for the
three and six
months ended
June 30, 2014
, respectively and
$0.7 million
and
$1.5 million
for the
three and six
months ended
June 30, 2013
, respectively. In addition, we recognized a net expense of
$0.3 million
and
$0.1 million
within other income/(loss), net related to the settlement of the derivative agreement and the underlying intercompany debt instrument to the exchange rate for the
three and six
months ended
June 30, 2014
, respectively.
The following table summarizes the fair value of our derivative instruments recorded in the consolidated balance sheets as of
June 30, 2014
and
December 31, 2013
(dollars in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value
|
|
|
Balance Sheet Location
|
|
June 30, 2014
|
|
December 31, 2013
|
|
Asset Derivatives:
|
|
|
|
|
|
|
Derivatives designated as hedges:
|
|
|
|
|
|
|
Interest rate swap agreements
|
Other assets, net
|
|
$
|
15,686
|
|
|
$
|
36,987
|
|
|
Derivatives not designated as hedges:
|
|
|
|
|
|
|
Cross-currency swap agreement
|
Prepaid expenses and other
|
|
$
|
—
|
|
|
$
|
16,056
|
|
|
|
|
|
|
|
|
|
Liability Derivatives:
|
|
|
|
|
|
|
Derivatives designated as hedges:
|
|
|
|
|
|
|
Interest rate swap agreements
|
Accrued expenses
|
|
$
|
2,781
|
|
|
$
|
1,601
|
|
|
Interest rate swap agreements
|
Other long-term liabilities
|
|
724
|
|
|
838
|
|
|
Total liability derivatives designated as hedges
|
|
|
$
|
3,505
|
|
|
$
|
2,439
|
|
|
|
|
|
ITEM 4.
|
CONTROLS AND PROCEDURES.
|
Disclosure Controls and Procedures
— We maintain disclosure controls and procedures (as that term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (Exchange Act)) that are designed to ensure that information required to be disclosed in our reports under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission's rules and forms and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosures. Any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives. Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of the design and operation of our disclosure controls and procedures as of
June 30, 2014
. Based upon that evaluation and subject to the foregoing, our Chief Executive Officer and Chief Financial Officer concluded that, as of
June 30, 2014
, the disclosure controls and procedures were effective to accomplish their objectives at the reasonable assurance level.
Internal Control Over Financial Reporting
— During the three months ended
June 30, 2014
, there were no changes in our internal control over financial reporting (as the term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
PART II - OTHER INFORMATION
|
|
|
|
ITEM 1.
|
LEGAL PROCEEDINGS.
|
From time to time, we are a defendant in certain lawsuits resulting from our operations in the ordinary course. Management believes there are adequate provisions in the financial statements for any probable liabilities that may result from disposition of the pending lawsuits. Based upon currently available information, we do not believe it is reasonably possible that any such lawsuit or related lawsuits would be material to our results of operations or have a material adverse effect on our financial position or liquidity.
For a discussion of our potential risks or uncertainties, please see Risk Factors in Part I, Item 1A of the Company's
2013
Annual Report on Form 10-K filed with the Securities and Exchange Commission. There have been no material changes to the risk factors disclosed in Part I, Item 1A of our
2013
Annual Report on Form 10-K.
|
|
|
|
ITEM 2.
|
UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS.
|
There were no unregistered sales of equity securities for the period covered by this Quarterly Report on Form 10-Q.
Issuer Purchases of Equity Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Period in 2014
|
(a) Total Number of
Shares (or Units)
Purchased (1)
|
|
(b) Average
Price Paid
per Share
(or Unit)
|
|
(c) Total Number of
Shares (or Units)
Purchased as Part of
Publicly Announced
Plans or Programs
|
|
(d) Maximum Number
of Shares (or Units)
that May Yet Be
Purchased Under the
Plans or Programs
|
|
April 1 to April 30
|
331
|
|
|
$
|
95.16
|
|
|
—
|
|
|
—
|
|
|
May 1 to May 31
|
229
|
|
|
$
|
94.80
|
|
|
—
|
|
|
—
|
|
|
June 1 to June 30
|
1,302
|
|
|
$
|
97.35
|
|
|
—
|
|
|
—
|
|
|
Total
|
1,862
|
|
|
$
|
96.65
|
|
|
—
|
|
|
—
|
|
|
|
|
|
(1)
|
The
1,862
shares acquired in the three months ended
June 30, 2014
represent common stock acquired by us from our employees who surrendered shares in lieu of cash either to fund their exercise of stock options or to pay taxes on equity awards granted under our Second Amended and Restated 2004 Omnibus Plan.
|
|
|
|
|
ITEM 3.
|
DEFAULTS UPON SENIOR SECURITIES.
|
NONE
|
|
|
|
ITEM 4.
|
MINE SAFETY DISCLOSURES.
|
Not applicable.
|
|
|
|
ITEM 5.
|
OTHER INFORMATION.
|
NONE
For a list of exhibits, see INDEX TO EXHIBITS following the signature page to this Quarterly Report on Form 10-Q, which is incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
|
|
|
|
|
|
|
|
|
|
GENESEE & WYOMING INC.
|
|
|
|
|
|
|
Date:
|
August 6, 2014
|
By:
|
/
S
/ T
IMOTHY
J. G
ALLAGHER
|
|
|
|
Name:
|
Timothy J. Gallagher
|
|
|
|
Title:
|
Chief Financial Officer
(Principal Financial Officer)
|
|
|
|
|
|
|
Date:
|
August 6, 2014
|
By:
|
/
S
/ C
HRISTOPHER
F. L
IUCCI
|
|
|
|
Name:
|
Christopher F. Liucci
|
|
|
|
Title:
|
Chief Accounting Officer
(Principal Accounting Officer)
|
INDEX TO EXHIBITS
The agreements and other documents filed as exhibits to this report are not intended to provide factual information or other disclosure, other than with respect to the terms of the agreements or other documents themselves, and you should not rely on them for that purpose. In particular, any representations and warranties made by us in these agreements or other documents were made solely within the specific context of the relevant agreement or document and may not describe the actual state of affairs as of the date they were made or at any other time.
|
|
|
|
|
|
|
|
Exhibit
No.
|
|
Description of Exhibits
|
|
3.1
|
|
|
Certificate of Elimination of Mandatorily Convertible Perpetual Preferred Stock, Series A-1 of Genesee & Wyoming Inc., dated as of May 27, 2014, is incorporated herein by reference to Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed on May 30, 2014 (File No. 001-31456)
|
|
|
|
|
|
10.1
|
|
|
Amendment No. 2, dated as of May 27, 2014, to the Senior Secured Syndicated Facility Agreement, dated as of October 1, 2012, among Genesee & Wyoming Inc., RP Acquisition Company Two, Quebec Gatineau Railway Inc., Genesee & Wyoming Australia Pty Ltd, Rotterdam Rail Feeding B.V., Bank of America, N.A., as administrative agent, and the agents, lenders and guarantors party thereto from time to time, is incorporated herein by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed on May 30, 2014 (File No. 001-31456)
|
|
|
|
|
|
*10.2
|
|
|
Form of Restricted Stock Award Notice for Directors under the Second Amended and Restated Omnibus Plan
|
|
|
|
|
|
*10.3
|
|
|
Form of Restricted Stock Unit Award Notice for Directors under the Second Amended and Restated Omnibus Plan
|
|
|
|
|
|
*10.4
|
|
|
Form of Restricted Stock Award Notice under the Second Amended and Restated Omnibus Plan
|
|
|
|
|
|
*10.5
|
|
|
Form of Option Award Notice under the Second Amended and Restated Omnibus Plan
|
|
|
|
|
|
*10.6
|
|
|
Form of Performance-Based Restricted Stock Unit Award Notice under the Second Amended and Restated Omnibus Plan
|
|
|
|
|
|
*10.7
|
|
|
Form of Restricted Stock Award Notice for CEO under the Second Amended and Restated Omnibus Plan
|
|
|
|
|
|
*10.8
|
|
|
Form of Option Award Notice for CEO under the Second Amended and Restated Omnibus Plan
|
|
|
|
|
|
*10.9
|
|
|
Form of Performance-Based Restricted Stock Unit Award Notice for CEO under the Second Amended and Restated Omnibus Plan
|
|
|
|
|
|
*31.1
|
|
|
Rule 13a-14(a)/15d-14(a) Certification of Principal Executive Officer
|
|
|
|
|
|
*31.2
|
|
|
Rule 13a-14(a)/15d-14(a) Certification of Principal Financial Officer
|
|
|
|
|
|
*32.1
|
|
|
Section 1350 Certification
|
|
|
|
|
|
*101
|
|
|
The following financial information from Genesee & Wyoming Inc.'s Quarterly Report on Form 10-Q for the quarter ended June 30, 2014, formatted in XBRL includes: (i) Consolidated Balance Sheets at June 30, 2014 and December 31, 2013, (ii) Consolidated Statements of Operations for the three and six months ended June 30, 2014 and 2013, (iii) Consolidated Statements of Comprehensive Income for the three and six months ended June 30, 2014 and 2013, (iv) Consolidated Statements of Cash Flows for the six months ended June 30, 2014 and 2013 and (v) the Notes to Consolidated Financial Statements.
|
* Exhibits filed or furnished with this Report, as applicable.
GENESEE & WYOMING INC.
SECOND AMENDED AND RESTATED 2004 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK AWARD NOTICE
|
|
|
|
|
|
Grantee:
|
|
|
Type of Award:
|
Restricted Stock Award
|
|
Number of Shares:
|
|
|
Date of Grant:
|
|
|
Anniversary Date:
|
|
1.
Grant of Restricted Stock
. This Award Notice serves to notify you that the Compensation Committee (the “Committee”) of the Board of Directors of Genesee & Wyoming Inc. (“G&W”) hereby grants to you, under G&W’s Second Amended and Restated 2004 Omnibus Incentive Plan (the “Plan”), a restricted stock award (the “Award”), on the terms and conditions set forth in this Award Notice and the Plan, of the number of shares of G&W’s Class A Common Stock, par value $.01 per share (the “Common Stock”) set forth above. The Plan is incorporated herein by reference and made a part of this Award Notice. A copy of the Plan is available on G&W’s Intranet under Corporate Policies then Human Resources or from G&W’s Human Resources Department upon request. You should review the terms of this Award Notice and the Plan carefully. The capitalized terms used in this Award Notice that are not defined herein have the meanings as defined in the Plan.
2.
Restrictions and Vesting
. Subject to the terms set forth in this Award Notice and the Plan, provided you are still in the service of G&W or any Subsidiary at that time, the Common Stock represented by the Award will vest ratably in [#] annual installments on the date of the next [#] annual meeting[s] of shareholders, respectively. In the event of your death prior to the complete vesting of the Award, any unvested portion of the Award shall be accelerated as of the date of your death. In the event of termination of your service to G&W or any Subsidiary prior to the complete vesting of the Award, the unvested portion of the Award shall be forfeited as of the date of such termination.
3.
Issuance and Taxation of Shares
.
(a)
Issuance of Shares
. Upon satisfaction of the vesting requirements detailed in Section 2, and upon further determining that compliance with this Award Notice has occurred, including compliance with such reasonable requirements as G&W may impose pursuant to the Plan or Section 10 of this Award Notice, and payment of any relevant taxes, G&W shall issue to you a certificate for the previously restricted shares of Common Stock on the earliest practicable date (as determined by G&W) thereafter, or execute an electronic transfer if so requested. The shares of Common Stock may be issued during your lifetime only to you, or after your death to your designated beneficiary, or, in the absence of such beneficiary, to your duly qualified personal representative.
(b)
Tax Withholdings
. The issuance of the Common Stock underlying the Award is conditioned upon your making arrangements satisfactory to G&W for the payment to G&W, or its designated agent, of the amount of all taxes required by any governmental authority to be withheld and paid over by G&W to the governmental authority on account of the issuance. The payment of such withholding taxes to G&W, or its designated agent, may be made by one or any combination of the following methods: (i) in cash or by check; (ii) by G&W withholding such taxes from any other compensation owed to you by G&W or any Subsidiary; (iii) an irrevocable election by you to surrender to G&W, or its designated agent, a number of shares of Common Stock underlying the Award sufficient to satisfy the withholding tax obligation; or (iv) any other method approved or accepted by the Committee in its sole discretion, subject to any and all limitations imposed by the Committee from time to time (which may not be uniform). You shall promptly notify G&W of any election made pursuant to Section 83(b) of the Internal Revenue Code, as amended, if applicable in your tax jurisdiction.
4.
RESERVED
5.
Effect of Change in Control
.
(a) Upon the occurrence of a “Change in Control” of G&W, the unvested portion of the Award shall immediately vest as of the date of the occurrence of such event.
(b) The term “Change in Control” shall be deemed to have occurred when:
(i) Any “person” as defined in Section 3(a)(9) of the Exchange Act, and as used in Section 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act (but excluding G&W and any Subsidiary and any employee benefit plan sponsored or maintained by G&W or any Subsidiary (including any trustee of such plan acting as trustee)), directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), of securities of G&W representing 35% or more of the combined voting power of G&W’s then outstanding securities (other than indirectly as a result of G&W’s redemption of its securities);
provided
,
however
, that in no event shall a Change in Control be deemed to have occurred under this Section 5(b)(i) so long as (x) the combined voting power of shares beneficially owned by (A) G&W’s executive officers (as defined in Rule 16a-1(f) under the Exchange Act) then in office (the “Executive Officer Shares”), (B) Mortimer B. Fuller and/or Sue Fuller and their lineal descendents (the “Founder Shares”), and (C) the shares beneficially owned by any other members of a “group” that includes the Founder Shares and/or a majority of the Executive Officer shares, exceeds 35% of the combined voting power of G&W’s current outstanding securities and remains the person or group with beneficial ownership of the largest percentage of combined voting power of G&W’s outstanding securities and (y) G&W remains subject to the reporting requirements of the Exchange Act; or
(ii) The consummation of any merger or other business combination of G&W, a sale of 51% or more of G&W’s assets, liquidation or dissolution of G&W or a combination of the foregoing transactions (the “Transactions”) other than a Transaction immediately following which either (x) the shareholders of G&W and any trustee or fiduciary of any G&W employee benefit plan immediately prior to the Transaction own at least 51% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger or other business combination; (B) the purchaser of or successor to G&W’s assets; (C) both the surviving corporation and the purchaser in the event of any combination of Transactions; or (D) the parent company owning 100% of such surviving corporation, purchaser or both the surviving corporation and the purchaser, as the case may be ((A), (B), (C) or (D), as applicable, the “Surviving Entity”) or (y) the Incumbent Directors, as defined below, shall continue to serve as a majority of the board of directors of the Surviving Entity without an agreement or understanding that such Incumbent Directors will later surrender such majority; or
(iii) Within any twelve-month period, the persons who were directors immediately before the beginning of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of any successor to G&W, including any Surviving Entity. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of, or with the approval of, at least two‑thirds of the directors who then qualified as Incumbent Directors (so long as such director was not nominated by a person who commenced or threatened to commence an election contest or proxy solicitation by or on behalf of a person (other than the Board) or who has entered into an agreement to effect a Change in Control or expressed an intention to cause such a Change in Control).
6.
Book-Entry Registration
. The Award initially will be evidenced by book-entry registration only, without the issuance of a certificate representing the shares of Common Stock underlying the Award.
7.
Nonassignability
. The shares of Common Stock underlying the Award and the right to vote such shares and to receive dividends thereon, may not, except as otherwise provided in the Plan, be sold, alienated, assigned, transferred, pledged or encumbered in any way prior to the vesting of such shares, whether by operation of law or otherwise, except by will or the laws of descent and distribution. After vesting, the sale or other transfer of the shares of Common Stock shall be subject to applicable laws and regulations under the Exchange Act and the Securities Act of 1933, as amended.
8.
Rights as a Stockholder
. Unless the Award is forfeited or cancelled, prior to the vesting of the shares of Common Stock awarded under this Award Notice, you will have all of the other rights of a stockholder with respect to the shares of Common Stock underlying the Award, including, but not limited to, the right to receive such cash dividends, if any, as may be declared on such shares from time to time and the right to vote (in person or by proxy) such shares at any meeting of stockholders of G&W.
9.
Rights of G&W and Subsidiaries
. This Award Notice does not affect the right of G&W or any Subsidiary to take any corporate action whatsoever, including without limitation its right to recapitalize, reorganize or make other changes in its capital structure or business, merge or consolidate, issue bonds, notes, shares of Common Stock or other securities, including preferred stock, or options therefor, dissolve or liquidate, or sell or transfer any part of its assets or business.
10.
Restrictions on Issuance of Shares
. If at any time G&W determines that the listing, registration or qualification of the shares of Common Stock underlying the Award upon any securities exchange or under any federal, state or local law, or the approval of any governmental agency, is necessary or advisable as a condition to the issuance of a certificate representing any vested shares of Common Stock under this Award Notice, such issuance may not be made in whole or in part unless and until such listing, registration, qualification or approval shall have been effected or obtained free of any conditions not acceptable to G&W.
11.
Plan Controls
. The Award is subject to all of the provisions of the Plan, which is hereby incorporated by reference, and is further subject to all the interpretations, amendments, rules and regulations that may from time to time be promulgated and adopted by the Committee pursuant to the Plan. In the event of any conflict among the provisions of the Plan and this Award Notice, the provisions of the Plan will be controlling and determinative.
12.
Amendment
. Except as otherwise provided by the Plan, G&W may only alter, amend or terminate the Award with your consent.
13.
Governing Law
. The Award and this Award Notice shall be governed by and construed in accordance with the laws of the State of New York, except as superseded by applicable federal law.
14.
Language
. If you have received this Award Notice or any other document related to the Plan in a language other than English and if the translated version bears a meaning that is different from that of the English version, the English version will control, to the extent permitted by law.
15.
Notices
. All notices and other communications to G&W, or its designated agent, required or permitted under this Award Notice shall be written, and shall be either delivered personally or sent by registered or certified first-class mail, postage prepaid and return receipt requested, by facsimile or electronically. If such notice or other communication is to G&W then it should be addressed to G&W’s office at 200 Meridian Centre, Suite 300, Rochester, New York 14618, Attention: Equity Plan Administrator; Telephone: (585) 328-8601; Facsimile: (585) 328-8622; Email:
EquityPlanAdmin@gwrr.com
. If such notice or other communication is to G&W’s designated agent, then it should be addressed and sent in accordance with established procedures. Each such notice and other communication delivered personally shall be deemed to have been given when received. Each such notice and other communication delivered by United States mail shall be deemed to have been given when it is received, and each such notice and other communication delivered by facsimile or electronically shall be deemed to have been given when it is so transmitted and the appropriate answerback is received.
16.
Data Privacy
.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by and among, as applicable, the Employer, and G&W and its Subsidiaries and affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan, to the extent permitted by law.
You understand that G&W and the Employer may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in G&W, details of all restricted stock awards or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan (“Data”). You understand that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of stock acquired upon issuance of the Common Stock underlying the Award, to the extent permitted by law. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand, however, that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
17.
Electronic Delivery
. G&W may, in its sole discretion, decide to deliver any documents related to the Award granted under the Plan (or related to future restricted stock awards that may be granted under the Plan) by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, hereby agree to participate in the Plan through an on-line or electronic system established and maintained by G&W or another third party designated by G&W.
18.
Severability
. The provisions of this Award Notice are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
ACKNOWLEDGEMENT
The undersigned acknowledges receipt of, and understands and agrees to be bound by, this Award Notice and the Plan. The undersigned further acknowledges that this Award Notice and the Plan set forth the entire understanding between him or her and G&W regarding the restricted stock granted by this Award Notice and that this Award Notice and the Plan supersede all prior oral and written agreements on that subject.
Dated: __________________
___________________________
Genesee & Wyoming Inc.
By: /s/ Mary Ellen Russell
Mary Ellen Russell
Chief Human Resource Officer
GENESEE & WYOMING INC.
SECOND AMENDED AND RESTATED 2004 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD NOTICE
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Grantee:
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Type of Award:
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Restricted Stock Unit Award
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Number of Units:
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Date of Grant:
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1.
Grant of Restricted Stock Units
. This Award Notice serves to notify you that the Compensation Committee (the “Committee”) of the Board of Directors of Genesee & Wyoming Inc. (“G&W”) hereby grants to you, under G&W’s Second Amended and Restated 2004 Omnibus Incentive Plan (the “Plan”), a restricted stock unit award (the “Award”), on the terms and conditions set forth in this Award Notice and the Plan, of the number of units (the “Units”) set forth above. The Plan is incorporated herein by reference and made a part of this Award Notice. A copy of the Plan is available on G&W’s Intranet under Corporate Policies then Human Resources or from G&W’s Human Resources Department upon request. You should review the terms of this Award Notice and the Plan carefully. The capitalized terms used in this Award Notice that are not defined herein have the meanings as defined in the Plan.
2.
Restrictions and Vesting
. Subject to the terms set forth in this Award Notice and the Plan, provided you are still in the service of G&W or any Subsidiary at that time, the Units represented by the Award will vest ratably in [#] annual installments on the date of the next [x] annual meeting[s] of shareholders, respectively, and each Unit will upon such vesting entitle you to one share of G&W’s Class A Common Stock, par value $.01 per share (the “Common Stock”), subject to the requirements of Section 3 of this Award Notice. In the event of your death prior to the complete vesting of the Award, any unvested portion of the Award shall be accelerated as of the date of your death. In the event of termination of your service to G&W or any Subsidiary prior to the complete vesting of the Award, the unvested portion of the Award shall be forfeited as of the date of such termination.
3.
Issuance and Taxation of Shares
.
(a)
Issuance of Shares
. Upon satisfaction of the vesting requirements detailed in Section 2, and upon further determining that compliance with this Award Notice has occurred, including compliance with such reasonable requirements as G&W may impose pursuant to the Plan or Section 9 of this Award Notice, and payment of any relevant taxes, G&W shall issue to you a certificate for the number of shares of Common Stock equal to the number of vested Units on the earliest practicable date (as determined by G&W) thereafter, or execute an electronic transfer if so requested. The shares of Common Stock may be issued during your lifetime only to you, or after your death to your designated beneficiary, or, in the absence of such beneficiary, to your duly qualified personal representative.
(b)
Responsibility for Taxes
. Regardless of any action G&W, its designated agent, or your employer (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items legally due by you is and remains your responsibility and that G&W and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including the grant or vesting of the Units, or issuance of the shares of Common Stock equal to the number of vested Units underlying the Award, or the subsequent sale of shares of Common Stock acquired pursuant to such issuance and the receipt of any dividends on shares of Common Stock acquired pursuant to such issuance; and (ii) do not commit, other than in accordance with the Plan, to structure the terms of the award or any aspect of the Award to reduce or eliminate your liability for Tax-Related Items.
Prior to issuance of shares of Common Stock upon the vesting of Units, you shall pay cash or make adequate arrangements satisfactory to G&W and/or the Employer to satisfy all withholding and payment on account of obligations of G&W and/or the Employer. In this regard, you authorize G&W and/or the Employer to withhold all applicable Tax-Related Items legally payable by you from your wages or other cash compensation paid to you by G&W and/or the Employer. Alternatively, or in addition, if permissible under local law, G&W, or its designated agent, may withhold in shares of Common Stock from the issuance of the Common Stock upon the vesting of Units, provided that G&W, or its designated agent, only withholds the amount of shares of Common Stock necessary to satisfy the minimum withholding amount. Finally, you shall pay to G&W, its designated agent, or the Employer any amount of Tax-Related Items that G&W or the Employer may be required to withhold as a result of your
participation in the Plan or receipt of shares of Common Stock that cannot be satisfied by the means previously described. G&W, or its designated agent, may refuse to honor the issuance and refuse to deliver the shares of Common Stock if you fail to comply with your obligations in connection with the Tax-Related Items as described in this section.
The payment of such withholding taxes to G&W, or its designated agent, may also be made pursuant to any method approved or accepted by the Committee in its sole discretion, subject to any and all limitations imposed by the Committee from time to time (which may not be uniform).
4.
RESERVED
5.
Effect of Change in Control
.
(a) Upon the occurrence of a “Change in Control” of G&W, the unvested portion of the Award shall immediately vest as of the date of the occurrence of such event.
(b) The term “Change in Control” shall be deemed to have occurred when:
(i) Any “person” as defined in Section 3(a)(9) of the Exchange Act, and as used in Section 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act (but excluding G&W and any Subsidiary and any employee benefit plan sponsored or maintained by G&W or any Subsidiary (including any trustee of such plan acting as trustee)), directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), of securities of G&W representing 35% or more of the combined voting power of G&W’s then outstanding securities (other than indirectly as a result of G&W’s redemption of its securities);
provided
,
however
, that in no event shall a Change in Control be deemed to have occurred under this Section 5(b)(i) so long as (x) the combined voting power of shares beneficially owned by (A) G&W’s executive officers (as defined in Rule 16a-1(f) under the Exchange Act) then in office (the “Executive Officer Shares”), (B) Mortimer B. Fuller and/or Sue Fuller and their lineal descendents (the “Founder Shares”), and (C) the shares beneficially owned by any other members of a “group” that includes the Founder Shares and/or a majority of the Executive Officer shares, exceeds 35% of the combined voting power of G&W’s current outstanding securities and remains the person or group with beneficial ownership of the largest percentage of combined voting power of G&W’s outstanding securities and (y) G&W remains subject to the reporting requirements of the Exchange Act; or
(ii) The consummation of any merger or other business combination of G&W, a sale of 51% or more of G&W’s assets, liquidation or dissolution of G&W or a combination of the foregoing transactions (the “Transactions”) other than a Transaction immediately following which either (x) the shareholders of G&W and any trustee or fiduciary of any G&W employee benefit plan immediately prior to the Transaction own at least 51% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger or other business combination; (B) the purchaser of or successor to G&W’s assets; (C) both the surviving corporation and the purchaser in the event of any combination of Transactions; or (D) the parent company owning 100% of such surviving corporation, purchaser or both the surviving corporation and the purchaser, as the case may be ((A), (B), (C) or (D), as applicable, the “Surviving Entity”) or (y) the Incumbent Directors, as defined below, shall continue to serve as a majority of the board of directors of the Surviving Entity without an agreement or understanding that such Incumbent Directors will later surrender such majority; or
(iii) Within any twelve-month period, the persons who were directors immediately before the beginning of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of any successor to G&W, including any Surviving Entity. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of, or with the approval of, at least two‑thirds of the directors who then qualified as Incumbent Directors (so long as such director was not nominated by a person who commenced or threatened to commence an election contest or proxy solicitation by or on behalf of a person (other than the Board) or who has entered into an agreement to effect a Change in Control or expressed an intention to cause such a Change in Control).
6.
Nonassignability
. The Units underlying the Award and, prior to their issuance, the shares of Common Stock that may be issued upon the vesting of Units may not, except as otherwise provided in the Plan, be sold, alienated, assigned, transferred, pledged or encumbered in any way prior to the vesting of such Units, whether by operation of law or otherwise. After vesting of the Units, the sale or other transfer of the issued shares of Common Stock shall be subject to applicable laws and regulations under the Exchange Act and the Securities Act of 1933, as amended.
7.
Rights as a Stockholder
. Until the Units have vested and the underlying shares of Common Stock have been delivered to you, you will have no rights as a stockholder with respect to the shares of Common Stock to be issued upon the vesting of the Units underlying the Award, including, but not limited to, the right to receive such cash dividends, if any, as may be declared on such shares from time to time or the right to vote (in person or by proxy) such shares at any meeting of stockholders of G&W.
8.
Rights of G&W and Subsidiaries
. This Award Notice does not affect the right of G&W or any Subsidiary to take any corporate action whatsoever, including without limitation its right to recapitalize, reorganize or make other changes in its capital structure or business, merge or consolidate, issue bonds, notes, shares of Common Stock or other securities, including preferred stock, or options therefor, dissolve or liquidate, or sell or transfer any part of its assets or business.
9.
Restrictions on Issuance of Shares
. If at any time G&W determines that the listing, registration or qualification of the shares of Common Stock issuable upon the vesting of the Units upon any securities exchange or under any federal, state or local law, or the approval of any governmental agency, is necessary or advisable as a condition to the issuance of a certificate representing any shares of Common Stock to be issued upon the vesting of Units under this Award Notice, such issuance may not be made in whole or in part unless and until such listing, registration, qualification or approval shall have been effected or obtained free of any conditions not acceptable to G&W.
10.
Plan Controls
. The Award is subject to all of the provisions of the Plan, which is hereby incorporated by reference, and is further subject to all the interpretations, amendments, rules and regulations that may from time to time be promulgated and adopted by the Committee pursuant to the Plan. In the event of any conflict among the provisions of the Plan and this Award Notice, the provisions of the Plan will be controlling and determinative.
11.
Amendment
. Except as otherwise provided by the Plan, G&W may only alter, amend or terminate the Award with your consent.
12.
Governing Law
. The Award and this Award Notice shall be governed by and construed in accordance with the laws of the State of New York, except as superseded by applicable federal law.
13.
Language
. If you have received this Award Notice or any other document related to the Plan in a language other than English and if the translated version bears a meaning that is different from that of the English version, the English version will control, to the extent permitted by law.
14.
Notices
. All notices and other communications to G&W, or its designated agent, required or permitted under this Award Notice shall be written, and shall be either delivered personally or sent by registered or certified first-class mail, postage prepaid and return receipt requested, by facsimile, or electronically. If such notice or other communication is to G&W then it should be addressed to G&W’s office at 200 Meridian Centre, Suite 300, Rochester, New York 14618, Attention: Equity Plan Administrator; Telephone: (585) 328-8601; Facsimile: (585) 328-8622; Email:
EquityPlanAdmin@gwrr.com
. If such notice or other communication is to G&W’s designated agent, then it should be addressed and sent in accordance with established procedures. Each such notice and other communication delivered personally shall be deemed to have been given when received. Each such notice and other communication delivered by United States mail shall be deemed to have been given when it is received, and each such notice and other communication delivered by facsimile or electronically shall be deemed to have been given when it is so transmitted and the appropriate answerback is received.
15.
Data Privacy
.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by and among, as applicable, the Employer, and G&W and its Subsidiaries and affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan, to the extent permitted by law.
You understand that G&W and the Employer may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in G&W, details of all restricted stock unit awards or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan (“Data”). You understand that Data may be transferred to any third parties
assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of stock acquired upon issuance of the Common Stock following the vesting of Units, to the extent permitted by law. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand, however, that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
16.
Electronic Delivery
. G&W may, in its sole discretion, decide to deliver any documents related to the Award granted under the Plan (or related to future restricted stock unit awards that may be granted under the Plan) by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, hereby agree to participate in the Plan through an on-line or electronic system established and maintained by G&W or another third party designated by G&W.
17.
Severability
. The provisions of this Award Notice are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
ACKNOWLEDGEMENT
The undersigned acknowledges receipt of, and understands and agrees to be bound by, this Award Notice and the Plan. The undersigned further acknowledges that this Award Notice and the Plan set forth the entire understanding between him or her and G&W regarding the restricted stock unit award granted by this Award Notice and that this Award Notice and the Plan supersede all prior oral and written agreements on that subject.
Dated: ______________________
_______________________________
Genesee & Wyoming Inc.
By: /s/ Mary Ellen Russell
Mary Ellen Russell
Chief Human Resource Officer
GENESEE & WYOMING INC.
SECOND AMENDED AND RESTATED 2004 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK AWARD NOTICE
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Grantee:
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[Name]
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Type of Award:
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Restricted Stock Award
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Number of Shares:
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[Number]
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Date of Grant:
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[Date]
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Anniversary Date:
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[Date of First Grant for the Year of the Award]
[NOTE: Anniversary Date definition only applicable for awards to non-directors]
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1.
Grant of Restricted Stock
. This Award Notice serves to notify you that the Compensation Committee (the “Committee”) of the Board of Directors of Genesee & Wyoming Inc. (“G&W”) hereby grants to you, under G&W’s Second Amended and Restated 2004 Omnibus Incentive Plan (the “Plan”), a restricted stock award (the “Award”), on the terms and conditions set forth in this Award Notice and the Plan, of the number of shares of G&W’s Class A Common Stock, par value $.01 per share (the “Common Stock”) set forth above. The Plan is incorporated herein by reference and made a part of this Award Notice. A copy of the Plan is available on G&W’s Intranet under Corporate Policies then Human Resources or from G&W’s Human Resources Department upon request. You should review the terms of this Award Notice and the Plan carefully. The capitalized terms used in this Award Notice that are not defined herein have the meanings as defined in the Plan.
2.
Restrictions and Vesting
. Subject to the terms set forth in this Award Notice and the Plan, provided you are still in the employment or service of G&W or any Subsidiary at that time, the Common Stock represented by the Award will vest ratably in three annual installments (34%-33%-33%), of shares of Common Stock on the first, second and third anniversaries of the Anniversary Date, respectively. In the event of your death or “Disability” prior to the complete vesting of the Award, any unvested portion of the Award shall be accelerated as of the date of your death or Disability. In the event of termination of your employment or service to G&W or any Subsidiary prior to the complete vesting of the Award, the unvested portion of the Award shall be forfeited as of the date of such termination. The term “Disability” means you are permanently and totally disabled within the meaning of Section 22(e)(3) of the Code.
3.
Issuance and Taxation of Shares
.
(a)
Issuance of Shares
. Upon satisfaction of the vesting requirements detailed in Section 2, and upon further determining that compliance with this Award Notice has occurred, including compliance with such reasonable requirements as G&W may impose pursuant to the Plan or Section 10 of this Award Notice, and payment of any relevant taxes, G&W shall issue to you a certificate for the previously restricted shares of Common Stock on the earliest practicable date (as determined by G&W) thereafter, or execute an electronic transfer if so requested. The shares of Common Stock may be issued during your lifetime only to you, or after your death to your designated beneficiary, or, in the absence of such beneficiary, to your duly qualified personal representative.
(b)
Tax Withholdings
. The issuance of the Common Stock underlying the Award is conditioned upon your making arrangements satisfactory to G&W for the payment to G&W, or its designated agent, of the amount of all taxes required by any governmental authority to be withheld and paid over by G&W to the governmental authority on account of the issuance. The payment of such withholding taxes to G&W, or its designated agent, may be made by one or any combination of the following methods: (i) in cash or by check; (ii) by G&W withholding such taxes from any other compensation owed to you by G&W or any Subsidiary; (iii) an irrevocable election by you to surrender to G&W, or its designated agent, a number of shares of Common Stock underlying the Award sufficient to satisfy the withholding tax obligation; or (iv) any other method approved or accepted by the Committee in its sole discretion, subject to any and all limitations imposed by the Committee from time to time (which may not be uniform). You shall promptly notify G&W of any election made pursuant to Section 83(b) of the Internal Revenue Code, as amended, if applicable in your tax jurisdiction.
4.
Effect of Breach of Certain Covenants
.
(a)
In General
. If you engage in the conduct described in subsection (c) of this Section 4, then, unless the Committee determines otherwise (i) you immediately forfeit, effective as of the date you engage in such conduct, the unvested portion of the Award and (ii) you must return to G&W the shares of Common Stock that vested within the six-month period immediately preceding the date you engage in such conduct or, at the option of G&W, pay to G&W the net after tax Fair Market Value, as of the date you engage in such conduct, of the shares of Common Stock that vested within such six-month period.
(b)
Set-Off
. By accepting the Award, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (a) of this Section 4. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(c)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your work as an employee or consultant of G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary, and for a period of six months after the termination of such employment or service, you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary. (For purposes of this Section 4, you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amount to not more than five percent of the outstanding capital stock of any such company.) The non-competition covenant of this Section 4 applies separately in the United States and in other countries. Your breach of the covenant of this subsection (c) shall result in the consequences described in this Section 4.
5.
Effect of Change in Control
.
(a) Upon the occurrence of a “Change in Control” of G&W, the unvested portion of the Award shall immediately vest as of the date of the occurrence of such event.
(b) The term “Change in Control” shall be deemed to have occurred when:
(i) Any “person” as defined in Section 3(a)(9) of the Exchange Act, and as used in Section 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act (but excluding G&W and any Subsidiary and any employee benefit plan sponsored or maintained by G&W or any Subsidiary (including any trustee of such plan acting as trustee)), directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), of securities of G&W representing 35% or more of the combined voting power of G&W’s then outstanding securities (other than indirectly as a result of G&W’s redemption of its securities);
provided
,
however
, that in no event shall a Change in Control be deemed to have occurred under this Section 5(b)(i) so long as (x) the combined voting power of shares beneficially owned by (A) G&W’s executive officers (as defined in Rule 16a-1(f) under the Exchange Act) then in office (the “Executive Officer Shares”), (B) Mortimer B. Fuller and/or Sue Fuller and their lineal descendents (the “Founder Shares”), and (C) the shares beneficially owned by any other members of a “group” that includes the Founder Shares and/or a majority of the Executive Officer shares, exceeds 35% of the combined voting power of G&W’s current outstanding securities and remains the person or group with beneficial ownership of the largest percentage of combined voting power of G&W’s outstanding securities and (y) G&W remains subject to the reporting requirements of the Exchange Act; or
(ii) The consummation of any merger or other business combination of G&W, a sale of 51% or more of G&W’s assets, liquidation or dissolution of G&W or a combination of the foregoing transactions (the “Transactions”) other than a Transaction immediately following which either (x) the shareholders of G&W and any trustee or fiduciary of any G&W employee benefit plan immediately prior to the Transaction own at least 51% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger or other business combination; (B) the purchaser of or successor to G&W’s assets; (C) both the surviving corporation and the purchaser in the event of any combination of Transactions; or (D) the parent company owning 100% of such surviving corporation, purchaser or both the surviving corporation and the purchaser, as the case may be ((A), (B), (C) or (D), as applicable, the “Surviving Entity”) or (y) the Incumbent Directors, as defined below, shall continue to serve as a
majority of the board of directors of the Surviving Entity without an agreement or understanding that such Incumbent Directors will later surrender such majority; or
(iii) Within any twelve-month period, the persons who were directors immediately before the beginning of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of any successor to G&W, including any Surviving Entity. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of, or with the approval of, at least two‑thirds of the directors who then qualified as Incumbent Directors (so long as such director was not nominated by a person who commenced or threatened to commence an election contest or proxy solicitation by or on behalf of a person (other than the Board) or who has entered into an agreement to effect a Change in Control or expressed an intention to cause such a Change in Control).
6.
Book-Entry Registration
. The Award initially will be evidenced by book-entry registration only, without the issuance of a certificate representing the shares of Common Stock underlying the Award.
7.
Nonassignability
. The shares of Common Stock underlying the Award and the right to vote such shares and to receive dividends thereon, may not, except as otherwise provided in the Plan, be sold, alienated, assigned, transferred, pledged or encumbered in any way prior to the vesting of such shares, whether by operation of law or otherwise, except by will or the laws of descent and distribution. After vesting, the sale or other transfer of the shares of Common Stock shall be subject to applicable laws and regulations under the Exchange Act and the Securities Act of 1933, as amended.
8.
Rights as a Stockholder
. Unless the Award is forfeited or cancelled, prior to the vesting of the shares of Common Stock awarded under this Award Notice, you will have all of the other rights of a stockholder with respect to the shares of Common Stock underlying the Award, including, but not limited to, the right to receive such cash dividends, if any, as may be declared on such shares from time to time and the right to vote (in person or by proxy) such shares at any meeting of stockholders of G&W.
9.
Rights of G&W and Subsidiaries
. This Award Notice does not affect the right of G&W or any Subsidiary to take any corporate action whatsoever, including without limitation its right to recapitalize, reorganize or make other changes in its capital structure or business, merge or consolidate, issue bonds, notes, shares of Common Stock or other securities, including preferred stock, or options therefor, dissolve or liquidate, or sell or transfer any part of its assets or business.
10.
Restrictions on Issuance of Shares
. If at any time G&W determines that the listing, registration or qualification of the shares of Common Stock underlying the Award upon any securities exchange or under any federal, state or local law, or the approval of any governmental agency, is necessary or advisable as a condition to the issuance of a certificate representing any vested shares of Common Stock under this Award Notice, such issuance may not be made in whole or in part unless and until such listing, registration, qualification or approval shall have been effected or obtained free of any conditions not acceptable to G&W.
11.
Plan Controls
. The Award is subject to all of the provisions of the Plan, which is hereby incorporated by reference, and is further subject to all the interpretations, amendments, rules and regulations that may from time to time be promulgated and adopted by the Committee pursuant to the Plan. In the event of any conflict among the provisions of the Plan and this Award Notice, the provisions of the Plan will be controlling and determinative.
12.
Amendment
. Except as otherwise provided by the Plan, G&W may only alter, amend or terminate the Award with your consent.
13.
Governing Law
. The Award and this Award Notice shall be governed by and construed in accordance with the laws of the State of New York, except as superseded by applicable federal law.
14.
Language
. If you have received this Award Notice or any other document related to the Plan in a language other than English and if the translated version bears a meaning that is different from that of the English version, the English version will control, to the extent permitted by law.
15.
Notices
. All notices and other communications to G&W, or its designated agent, required or permitted under this Award Notice shall be written, and shall be either delivered personally or sent by registered or certified first-class mail, postage prepaid and return receipt requested, by facsimile or electronically. If such notice or other communication is to G&W then it should be addressed to G&W’s office at 200 Meridian Centre, Suite 300, Rochester, New York 14618, Attention: Equity Plan Administrator; Telephone: (585) 328-8601; Facsimile: (585) 328-8622; Email:
EquityPlanAdmin@gwrr.com
. If such notice or
other communication is to G&W’s designated agent, then it should be addressed and sent in accordance with established procedures. Each such notice and other communication delivered personally shall be deemed to have been given when received. Each such notice and other communication delivered by United States mail shall be deemed to have been given when it is received, and each such notice and other communication delivered by facsimile or electronically shall be deemed to have been given when it is so transmitted and the appropriate answerback is received.
16.
Data Privacy
.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by and among, as applicable, the Employer, and G&W and its Subsidiaries and affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan, to the extent permitted by law.
You understand that G&W and the Employer may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in G&W, details of all restricted stock awards or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan (“Data”). You understand that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of stock acquired upon issuance of the Common Stock underlying the Award, to the extent permitted by law. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand, however, that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
17.
Electronic Delivery
. G&W may, in its sole discretion, decide to deliver any documents related to the Award granted under the Plan (or related to future restricted stock awards that may be granted under the Plan) by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, hereby agree to participate in the Plan through an on-line or electronic system established and maintained by G&W or another third party designated by G&W.
18.
Severability
. The provisions of this Award Notice are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
19.
Entire Award
. The Award represents a portion of an annual equity award for [year] with an aggregate grant date fair value of $[amount of annual equity award for restricted stock], which annual equity award is being granted in installments in accordance with G&W’s Stock-Based Awards policy. In the event of your death or Disability that occurs before the grant of the final installment of such annual equity award, the remaining portion of such annual equity award that has not yet been granted shall be immediately paid out to you in cash (based on the intended fair value amount corresponding to such ungranted portion), subject to any required withholding or other taxes.
ACKNOWLEDGEMENT
The undersigned acknowledges receipt of, and understands and agrees to be bound by, this Award Notice and the Plan. The undersigned further acknowledges that this Award Notice and the Plan set forth the entire understanding between him or her and G&W regarding the restricted stock granted by this Award Notice and that this Award Notice and the Plan supersede all prior oral and written agreements on that subject.
Dated: ______________________
_______________________________
[Name]
Genesee & Wyoming Inc.
By: /s/ Mary Ellen Russell
Mary Ellen Russell
Chief Human Resource Officer
GENESEE & WYOMING INC.
SECOND AMENDED AND RESTATED 2004 OMNIBUS INCENTIVE PLAN
OPTION AWARD NOTICE
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Grantee:
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[Name]
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Type of Award:
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[Type]
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Number of Shares:
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[Number]
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Exercise Price Per Share:
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[Price]
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Date of Grant:
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[Date]
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Expiration Date:
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[Five Years from the Grant Date]
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Anniversary Date:
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[Date of First Grant for the Year of the Option]
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1.
Grant of Option
. This Award Notice serves to notify you that the Compensation Committee (the “Committee”) of the Board of Directors of Genesee & Wyoming Inc. (“G&W”) hereby grants to you, under G&W’s Second Amended and Restated 2004 Omnibus Incentive Plan (the “Plan”), a[n] [Type] stock option (the “Option”) to purchase, on the terms and conditions set forth in this Award Notice and the Plan, up to the number of shares of G&W’s Class A Common Stock, par value $.01 per share (the “Common Stock”), at the exercise price per share, in each case, as set forth above. The Plan is incorporated herein by reference and made a part of this Award Notice. A copy of the Plan is available on G&W’s Intranet under Corporate Policies then Human Resources or from G&W’s Human Resources Department upon request. You should review the terms of this Award Notice and the Plan carefully. The capitalized terms used in this Award Notice that are not defined herein have the meanings as defined in the Plan.
2.
Term
. Unless the Option is previously terminated pursuant to the terms of the Plan or this Award Notice, the Option will expire at the close of business on the Expiration Date.
3.
Vesting
. Subject to the terms set forth in this Award Notice and the Plan, unless vesting is accelerated in accordance with the Plan or this Award Notice, the Option shall vest and become exercisable ratably in three annual installments (34%-33%-33%), on the first, second and third anniversary of the Anniversary Date set forth above, provided you are still in the employment or service of G&W or any Subsidiary on such vesting date.
4.
Exercise
.
(a)
Method of Exercise
. To the extent exercisable under Section 3, the Option may be exercised in whole or in part, provided that the Option may not be exercised for less than one share of Common Stock in any single transaction. The Option shall be exercised by your giving appropriate notice of such exercise to G&W, or its designated agent in accordance with established procedures, specifying the number of shares of Common Stock that you elect to purchase and the Exercise Price to be paid. Upon determining that compliance with this Award Notice has occurred, including compliance with such reasonable requirements as G&W may impose pursuant to the Plan or Section 12 of this Award Notice and payment of the Exercise Price, G&W, or its designated agent, shall issue to you a certificate for the shares of Common Stock purchased on the earliest practicable date (as determined by G&W) thereafter, or execute an electronic transfer if so requested.
(b)
Payment of Exercise Price
. To the extent permissible under the Plan, the Exercise Price may be paid using any one or any combination of the following methods:
(i) in cash or by check, with such payment accompanying your written exercise notice;
(ii) by delivery of shares of Common Stock already owned by you, with such shares of Common Stock valued at their Fair Market Value on the date of the Option exercise;
(iii) subject to any and all limitations imposed by the Committee from time to time (which may not be uniform), a “cashless exercise,” whereby you would irrevocably instruct a broker or dealer to sell shares of Common Stock on your behalf and deliver cash sale proceeds to G&W, or its designated agent, in payment of the Exercise Price and, if applicable, direct G&W, or its designated agent, to deliver shares of Common Stock to be issued upon such exercise of this Option directly to such broker or dealer; or
(iv) any other method approved or accepted by the Committee in its sole discretion, subject to any and all limitations imposed by the Committee from time to time (which may not be uniform).
(c)
Withholdings
. The exercise of the Option is conditioned upon your making arrangements satisfactory to G&W for the payment to G&W, or its designated agent, of the amount of all taxes required by any governmental authority to be withheld and paid over by G&W to the governmental authority on account of the exercise. The payment of such withholding taxes to G&W, or its designated agent, may be made by one or any combination of the following methods: (i) in cash or by check; (ii) by G&W withholding such taxes from any other compensation owed to you by G&W or any Subsidiary; (iii) pursuant to a cashless exercise program as contemplated in Section 4(b)(iii) above; or (iv) any other method approved or accepted by the Committee in its sole discretion, subject, in the case of Section 4(c)(iii) and this Section 4(c)(iv), to any and all limitations imposed by the Committee from time to time (which may not be uniform) as contemplated in Section 4(b)(iii) and Section 4(b)(iv) above.
5.
Effect of Death
. In the event of your death prior to the complete exercise of the Option, the remaining unvested portion of the Option shall become fully vested and exercisable and, together with the previously vested but unexercised portion of the Option, may be exercised in whole or in part, subject to all of the conditions on exercise imposed by the Plan and this Award Notice, within one year
after the date of your death, but only (i) by the beneficiary designated on your beneficiary designation form filed with G&W, or in the absence of same, by your estate or by or on behalf of the person or persons to whom the Option passes under your will or the laws of descent and distribution, (ii) to the extent that the Option was not previously exercised prior to the date of your death, and (iii) prior to the close of business on the Expiration Date of the Option.
6.
Effect of Disability
. In the event of your “Disability” prior to the complete exercise of the Option, the remaining unvested portion of the Option shall become fully vested and exercisable and, together with the previously vested but unexercised portion of the Option, may be exercised in whole or in part, subject to all of the conditions on exercise imposed by the Plan and this Award Notice, within one year after the date of your Disability, but only: (i) to the extent that the Option was not previously exercised prior to the date of your Disability, and (ii) prior to the close of business on the Expiration Date of the Option. The term “Disability” means you are permanently and totally disabled within the meaning of Section 22(e)(3) of the Code.
7.
Effect of Other Termination
.
(a)
With “Cause.”
Upon your termination by G&W for Cause prior to the complete exercise of the Option, the remaining portion of the Option, whether or not then exercisable, shall be forfeited as of the date of such termination and no longer be exercisable on or after such date of termination.
(b)
Without “Cause.”
Upon your termination for a reason other than death, Disability or Cause prior to the complete exercise of the Option, the remaining portion of the Option may be exercised in whole or in part, subject to all of the conditions on exercise imposed by the Plan and this Award Notice, within three months after the date of such termination, but only: (i) to the extent that the Option was vested and exercisable on the date of such termination, and (ii) prior to the Expiration Date of the Option.
(c) The term “Cause” means (i) your willful and continued failure to substantially perform your duties with G&W or a Subsidiary after written warnings identifying the lack of substantial performance are delivered to you to specifically identify the manner in which G&W or a Subsidiary believes that you have not substantially performed your duties, (ii) your willful engaging in illegal conduct which is materially and demonstrably injurious to G&W or any Subsidiary, (iii) your commission of a felony, (iv) your material breach of a fiduciary duty owed by you to G&W or any Subsidiary, (v) your intentional unauthorized disclosure to any person of confidential information or trade secrets of a material nature relating to the business of G&W or any Subsidiary, or (vi) your engaging in any conduct that G&W’s or a Subsidiary’s written rules, regulations or policies specify as constituting grounds for discharge.
8.
Notice of Disposition of Shares
. You hereby agree that you shall promptly notify G&W of the disposition of any of the shares of Common Stock acquired upon exercise of the Option, including a disposition by sale, exchange, gift or transfer of legal title, if such disposition occurs within two years from the Date of Grant or within one year from the date that you exercise the Option and acquire such shares of Common Stock.
9.
Nonassignability
. The Option may not be sold, alienated, transferred, assigned, encumbered or pledged in any way prior to the vesting of the Option, whether by operation of law or otherwise, except by will or the laws of descent and distribution. Except as otherwise provided by Section 5 of this Award Notice, the Option is only exercisable by you during your lifetime. After exercising the Option, the sale or other transfer of the shares of Common Stock shall be subject to applicable laws and regulations under the Exchange Act and the Securities Act of 1933, as amended.
10.
Limitation of Rights
. You will not have any rights as a stockholder with respect to the shares of Common Stock covered by the Option until you become the holder of record of such shares by exercising the Option. Neither the Plan, the granting of the Option nor this Award Notice gives you any right to remain in the employment of G&W or any Subsidiary.
11.
Rights of G&W and Subsidiaries
. This Award Notice does not affect the right of G&W or any Subsidiary to take any corporate action whatsoever, including without limitation its right to recapitalize, reorganize or make other changes in its capital structure or business, merge or consolidate, issue bonds, notes, shares of Common Stock or other securities, including preferred stock, or options therefor, dissolve or liquidate, or sell or transfer any part of its assets or business.
12.
Restrictions on Issuance of Shares
. If at any time G&W determines that the listing, registration or qualification of the shares covered by the Option upon any securities exchange or under any federal, state or local law, or the approval of any governmental agency, is necessary or advisable as a condition to the exercise of the Option, the Option may not be exercised in whole or in part unless and until such listing, registration, qualification or approval shall have been effected or obtained free of any conditions not acceptable to G&W.
13.
Plan Controls
. The Option is subject to all of the provisions of the Plan, which is hereby incorporated by reference, and is further subject to all the interpretations, amendments, rules and regulations that may from time to time be promulgated and adopted by the Committee pursuant to the Plan. In the event of any conflict among the provisions of the Plan and this Award Notice, the provisions of the Plan will be controlling and determinative.
14.
Amendment
. Except as otherwise provided by the Plan, G&W may only alter, amend or terminate the Option with your consent.
15.
Governing Law
. This Option grant and Award Notice shall be governed by and construed in accordance with the laws of the State of New York, except as superseded by applicable federal law.
16.
Notices
. All notices and other communications to G&W, or its designated agent, required or permitted under this Award Notice shall be written, and shall be either delivered personally or sent by registered or certified first-class mail, postage prepaid and return receipt requested, by facsimile or electronically. If such notice or other communication is to G&W then it should be addressed to G&W’s office at 200 Meridian Centre, Suite 300, Rochester, New York 14618, Attention: Equity Plan Administrator; Telephone: (585) 328-8601; Facsimile: (585) 328-8622; Email:
EquityPlanAdmin@gwrr.com
. If such notice or other communication is to G&W’s designated agent, then it should be addressed and sent in accordance with established procedures. Each such notice and other communication delivered personally shall be deemed to have been given when received. Each such notice and other communication delivered by United States mail shall be deemed to have been given when it is received, and each such notice and other communication delivered by facsimile or electronically shall be deemed to have been given when it is so transmitted and the appropriate answerback is received.
17.
Language
. If you have received this Award Notice or any other document related to the Plan in a language other than English and if the translated version bears a meaning that is different from that of the English version, the English version will control, to the extent permitted by law.
18.
Data Privacy
.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by and among, as applicable, the Employer, and G&W and its Subsidiaries and affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan, to the extent permitted by law.
You understand that G&W and the Employer may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in G&W, details of all options or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan (“Data”). You understand that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of stock acquired upon exercise of the Option, to the extent permitted by law. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand, however, that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
19.
Electronic Delivery
. G&W may, in its sole discretion, decide to deliver any documents related to the Option granted under the Plan (or related to future options that may be granted under the Plan) by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, hereby agree to participate in the Plan through an on-line or electronic system established and maintained by G&W or another third party designated by G&W.
20.
Severability
. The provisions of this Award Notice are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
21.
Effect of Breach of Certain Covenants
.
(a)
In General
. If you engage in the conduct described in subsection (c) of this Section 21, then, unless the Committee determines otherwise: (i) you immediately forfeit, effective as of the date you engage in such conduct, the unexercised portion of the Option; and (ii) you must pay to G&W the amount of any net after tax gain realized or payment received as a result of the exercise of the Option within the six-month period immediately preceding the date you engage in such conduct.
(b)
Set-Off
. By accepting the Option, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (a) of this Section 21. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(c)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your work as an employee or consultant of G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary, and for a period of six months after the termination of such employment or service, you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary. (For purposes of this Section 21, you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amount to not more than five percent of the outstanding capital stock of any such company.) The non-competition covenant of this Section 21 applies separately in the United States and in other countries. Your breach of the covenant of this subsection (c) shall result in the consequences described in this Section 21.
22.
Effect of Change in Control
.
(a) Upon the occurrence of a “Change in Control” of G&W, the unvested portion of the Option shall immediately vest as of the date of the occurrence of such event.
(b) The term “Change in Control” shall be deemed to have occurred when:
(i) Any “person” as defined in Section 3(a)(9) of the Exchange Act, and as used in Section 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act (but excluding G&W and any Subsidiary and any employee benefit plan sponsored or maintained by G&W or any Subsidiary (including any trustee of such plan acting as trustee)), directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), of securities of G&W representing 35% or more of the combined voting power of G&W’s then outstanding securities (other than indirectly as a result of G&W’s redemption of its securities);
provided
,
however
, that in no event shall a Change in Control be deemed to have occurred under this Section 22(b)(i) so long as (x) the combined voting power of shares beneficially owned by (A) G&W’s executive officers (as defined in Rule 16a-1(f) under the Exchange Act) then in office (the “Executive Officer Shares”), (B) Mortimer B. Fuller and/or Sue Fuller and their lineal descendents (the “Founder Shares”), and (C) the shares beneficially owned by any other members of a “group” that includes the Founder Shares and/or a majority of the Executive Officer shares, exceeds 35% of the combined voting power of G&W’s current outstanding securities and remains the person or group with beneficial ownership of the largest percentage of combined voting power of G&W’s outstanding securities and (y) G&W remains subject to the reporting requirements of the Exchange Act; or
(ii) The consummation of any merger or other business combination of G&W, a sale of 51% or more of G&W’s assets, liquidation or dissolution of G&W or a combination of the foregoing transactions (the “Transactions”) other than a Transaction immediately following which either (x) the shareholders of G&W and any trustee or fiduciary of any G&W employee benefit plan immediately prior to the Transaction own at least 51% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger or other business combination; (B) the purchaser of or successor to G&W’s assets; (C) both the surviving corporation and the purchaser in the event of any combination of Transactions; or (D) the parent company owning 100% of such surviving corporation, purchaser or both the surviving corporation and the purchaser, as the case may be ((A), (B), (C) or (D), as applicable, the “Surviving Entity”) or (y) the Incumbent Directors, as defined below, shall continue to serve as a majority of the board of directors of the Surviving Entity without an agreement or understanding that such Incumbent Directors will later surrender such majority; or
(iii) Within any twelve-month period, the persons who were directors immediately before the beginning of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of any successor to G&W, including any Surviving Entity. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of, or with the approval of, at least two‑thirds of the directors who then qualified as Incumbent Directors (so long as such director was not nominated by a person who commenced or threatened to commence an election contest or proxy solicitation by or on behalf of a person (other than the Board) or who has entered into an agreement to effect a Change in Control or expressed an intention to cause such a Change in Control).
23.
Interpretation.
It is the intent of the parties hereto that the Option qualifies for incentive stock option treatment pursuant to, and to the extent permitted by Section 422 of the Code. All provisions hereof are intended to have, and shall be construed to have, such meanings as are set forth in applicable provisions of the Code and Treasury Regulations to allow the Option to so qualify. To the extent that any portion of the Option fails to qualify for incentive stock option treatment pursuant to Section 422 of the Code, such non-qualifying portion of the Option shall be a Non-Qualified Stock Option.
24.
Entire Award
. The Option represents a portion of an annual equity award for [year] with an aggregate grant date fair value of $[amount of annual equity award for options], which annual equity award is being granted in installments in accordance with G&W’s Stock-Based Awards Policy. In the event of your death or Disability that occurs before the grant of the final installment of such annual equity award, the remaining portion of such annual equity award that has not yet been granted shall be immediately paid out to you in cash (based on the intended fair value amount corresponding to such ungranted portion), subject to any required withholding or other taxes.
ACKNOWLEDGEMENT
The undersigned acknowledges receipt of, and understands and agrees to be bound by, this Award Notice and the Plan. The undersigned further acknowledges that this Award Notice and the Plan set forth the entire understanding between him and G&W regarding the [Type] stock options granted by this Award Notice and that this Award Notice and the Plan supersede all prior oral and written agreements on that subject.
Dated: ________________________
___________________________
[Name]
Genesee & Wyoming Inc.
By: /s/ Mary Ellen Russell
Mary Ellen Russell
Chief Human Resource Officer
GENESEE & WYOMING, INC.
SECOND AMENDED AND RESTATED 2004 OMNIBUS INCENTIVE PLAN
PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD NOTICE
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Grantee:
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XXXXXXXXX
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Type of Award:
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Performance-Based Restricted Stock Unit Award
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Number of Units:
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__________
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Date of Grant:
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[MONTH] [DATE], 20XX
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Performance Vesting Period:
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[MONTH] [DATE], 20XX through [MONTH] [DATE], 20XX
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1.
Grant of Performance-Vesting Restricted Stock Unit
. This Award Notice serves to notify you that the Compensation Committee (the “Committee”) of the Board of Directors of Genesee & Wyoming Inc. (“G&W”) hereby grants to you, under G&W’s Second Amended and Restated 2004 Omnibus Incentive Plan (the “Plan”), a performance-based restricted stock unit award (the “Award”), on the terms and conditions set forth in this Award Notice and the Plan, representing the contingent right to earn up to the number of shares of G&W’s Class A Common Stock, par value $.01 per share (the “Units”), as described in more detail herein. The Plan is incorporated herein by reference and made part of this Award Notice. A copy of the Plan is available on G&W’s Intranet under Corporate Policies, then Human Resources, or from G&W’s Human Resources Department upon request. You should review the terms of this Award Notice and the Plan carefully. The capitalized terms used in this Award Notice that are not defined herein have the meanings as defined in the Plan.
2.
General Award Description
. The Award consists of a grant of restricted stock units subject to both performance, time and other vesting restrictions as described below in Sections 3, 5 and 6 of this Award Notice.
3.
Restrictions and Performance Vesting
. Subject to the terms set forth in this Award Notice and the Plan, provided you are still in the employment or service of G&W or any Subsidiary at that time, the right to vest in the Units described in this Award Notice is based on and subject to the performance of G&W’s Class A Common Stock, par value $.01 per share (“G&W’s Common Stock”), measured based on G&W’s Common Stock Total Shareholder Return (“TSR”) performance over the period beginning [MONTH] [DATE], 20XX and ending [MONTH] [DATE], 20XX (the “Performance Vesting Period”) relative to the TSR of (a) the individual components of the S&P 500, and (b) the Peer Group (as defined below), each weighted equally as a separate component and independently measured. For purposes of the Award, the Peer Group consists of the following XX companies:
[INSERT PEER GROUP COMPANIES]
For purposes of the Award, TSR over the Performance Vesting Period will be measured by the percentage change in the average daily closing price of G&W’s Common Stock, with an initial measurement price of $XX.XX, which is the average daily closing price of G&W’s Common Stock from [MONTH] [DATE], 20XX to [MONTH] [DATE], 20XX (the first 30 trading days of the Performance Vesting Period) to the average daily closing price of G&W’s Common Stock for the last 30 trading days of the Performance Vesting Period, assuming dividends declared during the Performance Vesting Period are reinvested on the ex-dividend date.
The percentage of the Units available for vesting at the end of the Performance Vesting Period will be based 50% on the Peer Group and 50% on the S&P 500, with each discrete half of the Award measured independently, and the percentage of the Units available for vesting will vary from 0% to 100% depending on G&W’s relative TSR performance over the Performance Vesting Period as compared to each of the Peer Group and the S&P 500 as follows:
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G&W Relative TSR Performance
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Percentile Rank
(1)
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% of Award Units Available
(2)
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50
th
or Below
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0%
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55
th
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40%
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60
th
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40%
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65
th
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60%
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70
th
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80%
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75
th
or Above
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100%
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(1)
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Percentile Rank represents average of G&W rankings against S&P 500 and Peer Group (to be measured separately for each S&P 500 and Peer Group component).
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(2)
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For TSR performance between the discrete percentile ranks in this table, Units will be interpolated.
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4.
Changes to S&P 500 and Peer Group Composition
. In the event that a company in the S&P 500 or the Peer Group ceases to be publicly traded for any reason during the Performance Vesting Period, the following process will apply: (i) if such company has been publicly traded for at least half of the Performance Vesting Period, it will continue to be counted as a member of the S&P 500 or the Peer Group in calculating G&W’s Common Stock relative TSR ranking vis-à-vis the S&P 500 and the Peer Group, and TSR performance for such company will be based on the average closing stock price for its final 30 days of trading during the Performance Vesting Period; (ii) conversely, if such company has been publicly traded for less than half of the Performance Vesting Period, it will be excluded from the S&P 500 or Peer Group for relative TSR measurement.
5.
Time Vesting Restrictions
. Except as otherwise provided in Section 6 hereof, the Units available due to performance-based vesting based on G&W’s Common Stock relative TSR performance as defined above will vest at the end of the Performance Vesting Period (i.e., [MONTH] [DATE], 20XX) provided you are still in the employment or service of G&W or any Subsidiary at that time.
6.
Special Vesting Provisions
. In the event of your death or “Disability” during the Performance Vesting Period, any further time vesting restrictions related to employment or service to G&W or any Subsidiary applicable to the Award will lapse. The term “Disability” means you are permanently and totally disabled within the meaning of Section 22(e)(3) of the Code.
7.
Cessation of Public Trading of G&W’s Common Stock
. In the event that G&W’s Common Stock ceases to be traded on a United States public securities exchange (either the NYSE or NASDAQ) during the Performance Vesting Period, except as otherwise provided in Section 10 below, TSR for G&W’s Common Stock and the common stock of the members of the S&P 500 and the Peer Group, as applicable, shall be determined by the percentage difference between the average daily closing price of each company’s common stock for the first 30 trading days of the Performance Vesting Period and the average daily closing price of its common stock for the 30 trading days immediately prior to the cessation of the public trading of G&W’s Common Stock, adjusted to reflect the reinvestment of any dividends declared during this period as of the ex-dividend date.
In such an event, the number of shares made available for time-based vesting resulting from G&W’s Common Stock relative TSR performance shall be prorated based on the number of days G&W’s Common Stock was publicly traded during the Performance Vesting Period divided by the number of days in the original Performance Vesting Period.
8.
Issuance and Taxation of Shares
.
(a)
Issuance of Shares.
Upon satisfaction of the performance vesting and time vesting restrictions described in Sections 3, 5 and 6 above, and upon further determining that compliance with this Award Notice has occurred, including compliance with such reasonable requirements as G&W may impose pursuant to the Plan or Section 15 of this Award Notice, and payment of any relevant taxes, G&W shall issue to you a certificate for the number of shares of G&W’s Common Stock equal to the number of vested Units to which you are entitled on the earliest practicable date (as determined by G&W) thereafter, or execute an electronic transfer if so requested. The shares of G&W’s Common Stock may be issued during your lifetime only to you, or after your death to your designated beneficiary, or in absence of such beneficiary, to your duly qualified personal representative.
(b)
Responsibility for Taxes
. Regardless of any action G&W, its designated agent, or your employer (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items legally due by you is and remains your responsibility and that G&W and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including the grant or vesting of the Units, or issuance of the shares of G&W’s Common Stock equal to the number of vested Units underlying the Award, or the subsequent sale of shares of G&W’s Common Stock acquired pursuant to such issuance and the receipt of any dividends on shares of G&W’s Common Stock acquired pursuant to such issuance; and (ii) do not commit, other than in accordance with the Plan, to structure the terms of the award or any aspect of the Award to reduce or eliminate your liability for Tax-Related Items.
Prior to issuance of shares of G&W’s Common Stock upon the vesting of Units, you shall pay cash or make adequate arrangements satisfactory to G&W and/or the Employer to satisfy all withholding and payment on account of obligations of G&W and/or the Employer. In this regard, you authorize G&W and/or the Employer to withhold all applicable Tax-Related Items legally payable by you from your wages or other cash compensation paid to you by G&W and/or the Employer. Alternatively, or in addition, if permissible under local law, G&W, or its designated agent, may withhold in shares of G&W’s Common Stock from the issuance of G&W’s Common Stock upon the vesting of Units, provided that G&W, or its designated agent, only withholds the amount of shares of G&W’s Common Stock necessary to satisfy the minimum withholding amount. Finally, you shall pay to G&W, its designated agent, or the Employer any amount of Tax-Related Items that G&W or the Employer may be required to withhold as a result of your participation in the Plan or receipt of shares of G&W’s Common Stock that cannot be satisfied by the means previously described. G&W, or its designated agent, may refuse to honor the issuance and refuse to deliver the shares of G&W’s Common Stock if you fail to comply with your obligations in connection with the Tax-Related Items as described in this section.
The payment of such withholding taxes to G&W, or its designated agent, may also be made pursuant to any method approved or accepted by the Committee in its sole discretion, subject to any and all limitations imposed by the Committee from time to time (which may not be uniform).
9.
Effect of Breach of Certain Covenants
.
(a)
In General.
If you engage in the conduct described in subsection (c) of this Section 9, then, unless the Committee determines otherwise: (i) you immediately forfeit, effective as of the date you engage in such conduct, your right to vest in any portion of the Award described in this Award Notice; and (ii) you must return to G&W any shares of G&W’s Common Stock issued pursuant to the Award upon the vesting of Units within the six-month period immediately preceding the date you engage in such conduct or, at the option of G&W, pay to G&W the net after tax Fair Market Value, as of the date you engage in such conduct, of the shares of G&W’s Common Stock that were issued pursuant to the Award upon the vesting of Units within such six-month period.
(b)
Set-Off.
By accepting the Award, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (a) of this Section 9. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(c)
Conduct.
You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your work as an employee or consultant of G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary, and for a period of six months after the
termination of such employment or service, you will not, either as a principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary. (For purposes of this Section 9, you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amount to not more than five percent of the outstanding capital stock of any such company.) The non-competition covenant in this Section 9 applies separately in the United States and in other countries. Your breach of the covenant of this subsection (c) shall result in the consequences described in this Section 9.
10.
Effect of a Change in Control
.
(a) Upon the occurrence of a “Change in Control” of G&W during the Performance Vesting Period, G&W’s relative TSR performance for the Performance Vesting Period will be determined based on the average daily closing price of G&W’s Common Stock for its last thirty (30) days of trading immediately prior to the effective date of the “Change in Control,” and all remaining performance, time and other vesting restrictions will lapse.
(b) A “Change in Control” shall be deemed to have occurred when:
(i) Any “person” as defined in Section 3(a)(9) of the Exchange Act, and as used in Section 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act (but excluding G&W and any Subsidiary and any employee benefit plan sponsored or maintained by G&W or any Subsidiary, including any trustee of such plan acting as trustee, directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), of securities of G&W representing more than 35% or more of the combined voting power of G&W’s then outstanding securities (other than directly as a result of G&W’s redemption of its securities);
provided
,
however
, that in no event shall a Change in Control be deemed to have occurred under this Section 10(b)(i) so long as (x) the combined voting power of shares beneficially owned by (A) G&W’s executive officers (as defined in Rule 16a-1(f) under the Exchange Act) then in office (the “Executive Officer Shares”), (B) Mortimer B. Fuller and/or Sue Fuller and their lineal descendents (the “Founder Shares”), and (C) the shares beneficially owned by any other members of a “group” that includes the Founder Shares and/or a majority of the Executive Officer Shares, exceeds 35% of the combined voting power of G&W’s current outstanding securities and remains the person or group with beneficial ownership of the largest percentage of combined voting power of G&W’s outstanding securities and (y) G&W remains subject to the reporting requirements of the Exchange Act; or
(ii) The consummation of any merger or other business combination of G&W, a sale of 51% or more of G&W’s assets, liquidation or dissolution of G&W or a combination of the foregoing transactions (the “Transactions”) other than a Transaction immediately following which either (x) the shareholders of G&W and any trustee or fiduciary of any G&W employee benefit plan immediately prior to the Transaction own at least 51% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger or business combination; (B) the purchaser of or successor to G&W’s assets; (C) both the surviving corporation and the purchaser in the event of any combination of Transactions; or (D) the parent company owning 100% of such surviving corporation, purchaser or both the surviving corporation and the purchaser, as the case may be ((A), (B), (C) or (D)), as applicable, the “Surviving Entity” or (y) the Incumbent Directors, as defined below, shall continue to serve as a majority of the board of directors of the Surviving Entity without an agreement or understanding that such Incumbent Directors will later surrender such majority; or
(iii) Within any twelve-month period, the persons who were directors immediately before the beginning of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of any successor to G&W, including any Surviving Entity. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of, or with the approval of, at least two-thirds of the directors who then qualified as Independent Directors ((so long as such director was not nominated by a person who commenced or threatened to commence an election contest or proxy solicitation by or on behalf of a person (other than the Board) or who has entered into an agreement to effect a Change in Control or expressed an intention to cause such a Change in Control)).
11.
Book Entry Registration
. Any shares of G&W’s Common Stock issued upon settlement of the Award may be evidenced by book registration only, without the issuance of a certificate representing the shares of G&W’s Common Stock that may be issued pursuant to the Award.
12.
Nonassignability
. The Units underlying the Award and, prior to their issuance, the shares of G&W’s Common Stock that may be issued upon the vesting of Units may not, except as otherwise provided in the Plan, be sold, alienated, assigned, transferred, pledged or encumbered in any way prior to the vesting of the Units, whether by operation of law or otherwise. After vesting of the Units, the sale or other transfer of the issued shares of G&W’s Common Stock shall be subject to applicable laws and regulations under the Exchange Act and the Securities Act of 1933, as amended.
13.
Rights as a Stockholder
. Until the Units have vested and the underlying shares of G&W’s Common Stock have been delivered to you, you will have no rights as a stockholder with respect to the shares of G&W’s Common Stock to be issued upon the vesting of the Units underlying the Award, including, but not limited to, the right to receive such cash dividends, if any, as may be declared on such shares from time to time or the right to vote (in person or by proxy) such shares at any meeting of stockholders of G&W.
14.
Rights of G&W and Subsidiaries
. This Award Notice does not affect the right of G&W or any Subsidiary to take any corporate action whatsoever, including without limitation, its right to recapitalize, reorganize or make other changes in its capital structure or business, merge or consolidate, issue bonds, notes, shares of G&W’s Common Stock or other securities, including preferred stock, or options therefor, dissolve or liquidate, or sell or transfer any part of its assets or business.
15.
Restrictions on Issuance of Shares
. If at any time G&W determines that the listing, registration or qualification of the shares of G&W’s Common Stock underlying the Award upon any securities exchange or under any federal, state or local law, or the approval of any governmental agency, is necessary or advisable as a condition to the issuance of any shares of G&W’s Common Stock underlying the Award, such issuance may not be made in whole or in part unless such listing, registration, qualification or approval shall have been effected or obtained free of any conditions not acceptable to G&W.
16.
Plan Controls
. The Award is subject to all of the provisions of the Plan, which is hereby incorporated by reference, and is further subject to all of the interpretations, amendments, rules and regulations that may from time to time be promulgated and adopted by the Committee pursuant to the Plan. In the event of any conflict among the provisions of the Plan and this Award Notice, the provisions of the Plan will be controlling and determinative.
17.
Amendment
. Except as otherwise provided in the Plan, G&W may only alter, amend or terminate the Award with your consent.
18.
Governing Law
. The Award and this Award Notice shall be governed by and construed in accordance with the laws of the State of New York, except as superseded by applicable federal law.
19.
Language
. If you have received this Award Notice or any other document related to the Plan in a language other than English, and if the translated version bears a meaning that is different from that of the English version, the English version will control, to the extent permitted by law.
20.
Notices
. All notices and other communications to G&W, or its designated agent, required or permitted under this Award Notice shall be written, and shall either be delivered personally or sent by registered or certified first-call mail, postage prepaid and return receipt requested, by facsimile or electronically. If such notice or other communication is to G&W, then it should be addressed to G&W’s office at 200 Meridian Centre, Suite 300, Rochester, New York 14618, Attention: Equity Plan Administrator; Telephone: (585) 328-8601; Facsimile: (585) 328-8622; Email:
EquityPlanAdmin@gwrr.com
. If such notice or other communication is to G&W’s designated agent, then it should be addressed and sent in accordance with established procedures. Each such notice and other communication delivered personally shall be deemed to have been given when received. Each such notice and other communication delivered by United States mail shall be deemed to have been given when received, and each such notice and other communication delivered by facsimile or electronically shall be deemed to have been given when it is so transmitted and the appropriate answerback is received.
21.
Data Privacy
. You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by and among, as applicable, the Employer, and G&W and its Subsidiaries and affiliates for the exclusive purpose of implementing, administering and managing your participation in the plan, to the extent permitted by law.
You understand that G&W and the Employer may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in G&W, details of all restricted stock or unit awards or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan (“Data”). You understand that Data may be transferred
to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of stock acquired upon issuance of G&W’s Common Stock underlying the Award, to the extent permitted by law. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand, however, that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
22.
Electronic Delivery
. G&W may, in its sole discretion, decide to deliver any documents related to the Award granted under the Plan (or related to future awards that may be granted under the Plan) by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, hereby agree to participate in the Plan through an on-line or electronic system established and maintained by G&W or another third party designated by G&W.
23.
Severability
. The provisions of this Award Notice are severable, and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
ACKNOWLEDGEMENT
The undersigned acknowledges receipt of, and understands and agrees to be bound by, this Award Notice and the Plan. The undersigned further acknowledges that this Award Notice and the Plan set forth the entire understanding between him or her and G&W regarding the restricted stock units granted by this Award Notice and that this Award Notice and the Plan supersede all prior oral and written agreements on that subject.
Dated: _______________________
_______________________________
Name:
Genesee & Wyoming Inc.
By:_______________________________
Name:
Its:
GENESEE & WYOMING INC.
SECOND AMENDED AND RESTATED 2004 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK AWARD NOTICE
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Grantee:
|
[Name]
|
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Type of Award:
|
Restricted Stock Award
|
|
Number of Shares:
|
[Number]
|
|
Date of Grant:
|
[Date]
|
|
Anniversary Date:
|
[Date of First Grant for the Year of the Award]
[NOTE: Anniversary Date definition only applicable for awards to non-directors]
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1.
Grant of Restricted Stock
. This Award Notice serves to notify you that the Compensation Committee (the “Committee”) of the Board of Directors of Genesee & Wyoming Inc. (“G&W”) hereby grants to you, under G&W’s Second Amended and Restated 2004 Omnibus Incentive Plan (the “Plan”), a restricted stock award (the “Award”), on the terms and conditions set forth in this Award Notice and the Plan, of the number of shares of G&W’s Class A Common Stock, par value $.01 per share (the “Common Stock”) set forth above. The Plan is incorporated herein by reference and made a part of this Award Notice. A copy of the Plan is available on G&W’s Intranet under Corporate Policies then Human Resources or from G&W’s Human Resources Department upon request. You should review the terms of this Award Notice and the Plan carefully. The capitalized terms used in this Award Notice that are not defined herein have the meanings as defined in the Plan.
2.
Restrictions and Vesting
. Subject to the terms set forth in this Award Notice and the Plan, provided you are still in the employment or service of G&W or any Subsidiary at that time, the Common Stock represented by the Award will vest ratably in three annual installments (34%-33%-33%) on the first, second and third anniversaries of the Anniversary Date, respectively, provided you are still in the employment of G&W or any Subsidiary or remain in the service of G&W by serving on the G&W Board of Directors or in such other mutually agreed service capacity to G&W (“Services”) at such time.
(a)
Effect of Death.
In the event of your death prior to the complete vesting of the Award, any unvested portion of the Award shall be accelerated as of the date of your death.
(b)
Effect of Disability.
In the event of your “Disability” prior to the complete vesting of the Award, any unvested portion of the Award shall be accelerated as of the date of your Disability. The term “Disability” means you are permanently and totally disabled within the meaning of Section 22(e)(3) of the Code.
3.
Effect of Certain Other Events
.
(a)
Termination
With Cause.
Upon your termination of Services by G&W for Cause prior to the complete vesting of the Award, the remaining portion of the Award shall be forfeited as of the date of such termination.
(b)
Termination
Without Cause.
Upon your involuntary termination of Services by G&W (for any reason other than death, Disability or Cause) or your voluntary termination of employment for Good Reason prior to the complete vesting of the Award, the remaining unvested portion of the Award shall accelerate as of the date of such termination.
(c)
Qualified Resignation.
Notwithstanding anything to the contrary contained in this Award Notice, following your Qualified Resignation prior to the complete vesting of the Award, the remaining unvested portion of the Award shall continue to vest in accordance with the scheduled vesting dates set forth in Section 2 hereof, with such period following the Qualified Resignation and prior to the complete vesting of the Award deemed the “Permissive Vesting Period.” During the Permissive Vesting Period, the remaining portion of the Award shall continue to vest, provided you remain in the service of G&W by providing Services and remain in compliance with the provisions of Section 5(c) hereof. In the event you have communicated in writing to the G&W Board of Directors a willingness to provide Services, and either before or during the Permissive Vesting Period you are not nominated or elected to the G&W Board of Directors or are not offered the opportunity to act in some other mutually agreed service capacity to G&W following your Qualified Resignation (a “Rejected Qualified Resignation”), the remaining unvested portion of the Award shall accelerate on such date.
(d)
Other Resignations.
Upon your voluntary resignation as Chief Executive Officer of G&W or, during the Permissive Vesting Period, as a member of G&W’s Board of Directors or from such other mutually agreed service capacity in which you provided Services, except for a resignation for Good Reason or a Qualified Resignation, prior to the complete vesting of the Award, the remaining portion of the Award shall be forfeited as of the date of such resignation.
(e)
Certain Definitions
.
(i) The term “Cause” means (i) your willful and continued failure to substantially perform your duties with G&W or a Subsidiary after written warnings identifying the lack of substantial performance are delivered to you to specifically identify the manner in which G&W or a Subsidiary believes that you have not substantially performed your duties, (ii) your willful engaging in illegal conduct which is materially and demonstrably injurious to G&W or any Subsidiary, (iii) your commission of a felony, (iv) your material breach of a fiduciary duty owed by you to G&W or any Subsidiary, (v) your intentional unauthorized disclosure to any person of confidential information or trade secrets of a material nature relating to the business of G&W or any Subsidiary, or (vi) your engaging in any conduct that G&W’s or a Subsidiary’s written rules, regulations or policies specify as constituting grounds for discharge.
(ii) The term “Qualified Resignation” means your resignation as Chief Executive Officer of G&W if (i) you have provided at least six (6) months’ advance notice to the G&W Board of Directors regarding your intended resignation (“Sufficient Notice”), (ii) on or prior to the date you provide the Board of Directors with such notice of resignation, the Board of Directors has received an actionable succession plan which it deems to be acceptable (which acceptance may not be unreasonably withheld) and (iii) you have communicated in writing to the G&W Board of Directors a willingness to provide Services.
(iii) The term “Good Reason” means the occurrence during your employment with G&W or its Subsidiaries, prior to the complete vesting of the Award, of any of the following without your express written consent:
(x) Any material and adverse diminution in your duties, titles or responsibilities with G&W from those in effect immediately prior to the Date of Grant;
provided
,
however
, that no such diminution shall be deemed to exist because of changes in your duties, titles or responsibilities as a consequence of G&W ceasing to be subject to the reporting requirements of the Exchange Act;
(y) Any material reduction in your annual target compensation from your annual target compensation for the prior fiscal year (excluding the impact of any one-time, special or discretionary awards or bonuses and any change due to changes in G&W’s peer group composition or compensation study, as reflected by the independent compensation consultants to the Committee); or
(z) Any requirement that you be based at a location more than thirty-five (35) miles from the location at which you were based on the Date of Grant.
Notwithstanding the foregoing, your resignation shall not be deemed to have occurred for “Good Reason” unless you provide G&W with a written notice of Good Reason termination referencing this Section 3(e) within fifteen (15) days after the occurrence of an event giving rise to a claim of Good Reason, and G&W shall have fifteen (15) days thereafter in which to cure or resolve the behavior otherwise constituting Good Reason, or to dispute such resignation for Good Reason.
4.
Issuance and Taxation of Shares
.
(a)
Issuance of Shares
. Upon satisfaction of the vesting requirements detailed in Section 2, and upon further determining that compliance with this Award Notice has occurred, including compliance with such reasonable requirements as G&W may impose pursuant to the Plan or Section 11 of this Award Notice, and payment of any relevant taxes, G&W shall issue to you a certificate for the previously restricted shares of Common Stock on the earliest practicable date (as determined by G&W) thereafter, or execute an electronic transfer if so requested. The shares of Common Stock may be issued during your lifetime only to you, or after your death to your designated beneficiary, or, in the absence of such beneficiary, to your duly qualified personal representative.
(b)
Tax Withholdings
. The issuance of the Common Stock underlying the Award is conditioned upon your making arrangements satisfactory to G&W for the payment to G&W, or its designated agent, of the amount of all taxes required by any governmental authority to be withheld and paid over by G&W to the governmental authority on account of the issuance. The payment of such withholding taxes to G&W, or its designated agent, may be made by one or any combination of the following
methods: (i) in cash or by check; (ii) by G&W withholding such taxes from any other compensation owed to you by G&W or any Subsidiary; (iii) an irrevocable election by you to surrender to G&W, or its designated agent, a number of shares of Common Stock underlying the Award sufficient to satisfy the withholding tax obligation; or (iv) any other method approved or accepted by the Committee in its sole discretion, subject to any and all limitations imposed by the Committee from time to time (which may not be uniform). You shall promptly notify G&W of any election made pursuant to Section 83(b) of the Internal Revenue Code, as amended, if applicable in your tax jurisdiction.
5.
Effect of Breach of Certain Covenants
.
(a) During your employment by or service to G&W as Chief Executive Officer and any period in which you are providing Services, and following any termination or resignation in accordance with Section 3(a) hereof or Section 3(d) hereof:
(i)
In General
. If you engage in the conduct described in subsection (iii) of this Section 5(a), then, unless the Committee determines otherwise (x) you immediately forfeit, effective as of the date you engage in such conduct, the unvested portion of the Award and (y) you must return to G&W the shares of Common Stock that vested within the twelve (12) month period immediately preceding the date you engage in such conduct or, at the option of G&W, pay to G&W the net after tax Fair Market Value, as of the date you engage in such conduct, of the shares of Common Stock that vested within such twelve (12) month period.
(ii)
Set-Off
. By accepting the Award, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (a)(i) of this Section 5. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(iii)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your employment by or service to G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary and for a period of twelve (12) months after the termination of such employment or service as set forth in Section 5(a) above, you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary, which shall without limitation preclude service to a railroad or other entity (or its affiliate) that competes for railroad acquisition or railroad investment opportunities with G&W. (For purposes of this Section 5(a), you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amounts to not more than five percent of the capital stock of any such company.) The restrictive covenants contained in this Section 5(a) apply separately in the United States and in other countries. Your breach of the restrictive covenants contained in this subsection (iii) shall result in the consequences described in this Section 5(a).
(b) Following any termination or resignation in accordance with Section 3(b) hereof or any Rejected Qualified Resignation in accordance with Section 3(c) hereof, including any period when you are performing Services:
(i)
In General
. If you engage in the conduct described in subsection (iii) of this Section 5(b), then, unless the Committee determines otherwise you must return to G&W the shares of Common Stock that vested on an accelerated basis in accordance with Section 3(b) hereof or that vested during the Permissive Vesting Period or, at the option of G&W, pay to G&W the net after tax Fair Market Value, as of the date you engage in such conduct, of such vested shares.
(ii)
Set-Off
. By accepting the Award, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (b)(i) of this Section 5. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(iii)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary and during the Permissive Vesting Period or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service
relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your employment by or service to G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary and for a period of twenty-four (24) months following your termination or resignation as Chief Executive Officer of G&W in accordance with Section 3(b) hereof or a Rejected Qualified Resignation in accordance with Section 3(c), you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary, which shall without limitation preclude service to a railroad or other entity (or its affiliate) that competes for railroad acquisition or railroad investment opportunities with G&W. (For purposes of this Section 5(b), you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amount to not more than five percent of the capital stock of any such company.) The restrictive covenants contained in this Section 5(b) apply separately in the United States and in other countries. Your breach of the restrictive covenants contained in this subsection (iii) shall result in the consequences described in this Section 5(b).
(c) Following any Qualified Resignation in accordance with Section 3(c) hereof, including any period when you are performing Services:
(i)
In General
. If you engage in the conduct described in subsection (iii) of this Section 5(c), then, unless the Committee determines otherwise you must return to G&W the shares of Common Stock that vested on an accelerated basis in accordance with Section 3(c) hereof or, at the option of G&W, pay to G&W the net after tax Fair Market Value, as of the date you engage in such conduct, of such vested shares.
(ii)
Set-Off
. By accepting the Award, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (c)(i) of this Section 5. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(iii)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary and during the Permissive Vesting Period or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your employment by or service to G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary and for a period of thirty-six (36) months following your Qualified Resignation in accordance with Section 3(c), you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary, which shall without limitation preclude service to a railroad or other entity (or its affiliate) that competes for railroad acquisition or railroad investment opportunities with G&W. (For purposes of this Section 3(c), you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amount to not more than five percent of the capital stock of any such company.) The restrictive covenants contained in this Section 3(c) apply separately in the United States and in other countries. Your breach of the restrictive covenants contained in this subsection (iii) shall result in the consequences described in this Section 3(c).
(d) You expressly acknowledge that any breach or threatened breach of any of the restrictive covenants set forth in Sections 3(a)(iii), 3(b)(iii) or 3(c)(iii), as applicable, may result in substantial, continuing, and irreparable injury to the Company and its affiliates. Therefore, you hereby agree that, in addition to any other remedy that may be available to the Company and its affiliates, the Company and its affiliates shall be entitled to seek injunctive relief, specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of such restrictive covenants without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.
6.
Effect of Change in Control
.
(a) Upon the occurrence of a “Change in Control” of G&W during your employment by or service to G&W as Chief Executive Officer and any period in which you are providing Services, the unvested portion of the Award shall immediately vest as of the date of the occurrence of such event.
(b) The term “Change in Control” shall be deemed to have occurred when:
(i) Any “person” as defined in Section 3(a)(9) of the Exchange Act, and as used in Section 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act (but excluding G&W and any Subsidiary and any employee benefit plan sponsored or maintained by G&W or any Subsidiary (including any trustee of such plan acting as trustee)), directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), of securities of G&W representing 35% or more of the combined voting power of G&W’s then outstanding securities (other than indirectly as a result of G&W’s redemption of its securities);
provided
,
however
, that in no event shall a Change in Control be deemed to have occurred under this Section 6(b)(i) so long as (x) the combined voting power of shares beneficially owned by (A) G&W’s executive officers (as defined in Rule 16a-1(f) under the Exchange Act) then in office (the “Executive Officer Shares”), (B) Mortimer B. Fuller and/or Sue Fuller and their lineal descendents (the “Founder Shares”), and (C) the shares beneficially owned by any other members of a “group” that includes the Founder Shares and/or a majority of the Executive Officer shares, exceeds 35% of the combined voting power of G&W’s current outstanding securities and remains the person or group with beneficial ownership of the largest percentage of combined voting power of G&W’s outstanding securities and (y) G&W remains subject to the reporting requirements of the Exchange Act; or
(ii) The consummation of any merger or other business combination of G&W, a sale of 51% or more of G&W’s assets, liquidation or dissolution of G&W or a combination of the foregoing transactions (the “Transactions”) other than a Transaction immediately following which either (x) the shareholders of G&W and any trustee or fiduciary of any G&W employee benefit plan immediately prior to the Transaction own at least 51% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger or other business combination; (B) the purchaser of or successor to G&W’s assets; (C) both the surviving corporation and the purchaser in the event of any combination of Transactions; or (D) the parent company owning 100% of such surviving corporation, purchaser or both the surviving corporation and the purchaser, as the case may be ((A), (B), (C) or (D), as applicable, the “Surviving Entity”) or (y) the Incumbent Directors, as defined below, shall continue to serve as a majority of the board of directors of the Surviving Entity without an agreement or understanding that such Incumbent Directors will later surrender such majority; or
(iii) Within any twelve-month period, the persons who were directors immediately before the beginning of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of any successor to G&W, including any Surviving Entity. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of, or with the approval of, at least two‑thirds of the directors who then qualified as Incumbent Directors (so long as such director was not nominated by a person who commenced or threatened to commence an election contest or proxy solicitation by or on behalf of a person (other than the Board) or who has entered into an agreement to effect a Change in Control or expressed an intention to cause such a Change in Control).
7.
Book-Entry Registration
. The Award initially will be evidenced by book-entry registration only, without the issuance of a certificate representing the shares of Common Stock underlying the Award.
8.
Nonassignability
. The shares of Common Stock underlying the Award and the right to vote such shares and to receive dividends thereon, may not, except as otherwise provided in the Plan, be sold, alienated, assigned, transferred, pledged or encumbered in any way prior to the vesting of such shares, whether by operation of law or otherwise, except by will or the laws of descent and distribution. After vesting, the sale or other transfer of the shares of Common Stock shall be subject to applicable laws and regulations under the Exchange Act and the Securities Act of 1933, as amended.
9.
Rights as a Stockholder
. Unless the Award is forfeited or cancelled, prior to the vesting of the shares of Common Stock awarded under this Award Notice, you will have all of the other rights of a stockholder with respect to the shares of Common Stock underlying the Award, including, but not limited to, the right to receive such cash dividends, if any, as may be declared on such shares from time to time and the right to vote (in person or by proxy) such shares at any meeting of stockholders of G&W.
10.
Rights of G&W and Subsidiaries
. This Award Notice does not affect the right of G&W or any Subsidiary to take any corporate action whatsoever, including without limitation its right to recapitalize, reorganize or make other changes in its capital structure or business, merge or consolidate, issue bonds, notes, shares of Common Stock or other securities, including preferred stock, or options therefor, dissolve or liquidate, or sell or transfer any part of its assets or business.
11.
Restrictions on Issuance of Shares
. If at any time G&W determines that the listing, registration or qualification of the shares of Common Stock underlying the Award upon any securities exchange or under any federal, state or local law, or the approval of any governmental agency, is necessary or advisable as a condition to the issuance of a certificate representing any vested shares of Common Stock under this Award Notice, such issuance may not be made in whole or in part unless and until such listing, registration, qualification or approval shall have been effected or obtained free of any conditions not acceptable to G&W.
12.
Plan Controls
. The Award is subject to all of the provisions of the Plan, which is hereby incorporated by reference, and is further subject to all the interpretations, amendments, rules and regulations that may from time to time be promulgated and adopted by the Committee pursuant to the Plan. In the event of any conflict among the provisions of the Plan and this Award Notice, the provisions of the Plan will be controlling and determinative.
13.
Amendment
. Except as otherwise provided by the Plan, G&W may only alter, amend or terminate the Award with your consent.
14.
Governing Law
. The Award and this Award Notice shall be governed by and construed in accordance with the laws of the State of New York, except as superseded by applicable federal law.
15.
Language
. If you have received this Award Notice or any other document related to the Plan in a language other than English and if the translated version bears a meaning that is different from that of the English version, the English version will control, to the extent permitted by law.
16.
Notices
. All notices and other communications to G&W, or its designated agent, required or permitted under this Award Notice shall be written, and shall be either delivered personally or sent by registered or certified first-class mail, postage prepaid and return receipt requested, by facsimile or electronically. If such notice or other communication is to G&W then it should be addressed to G&W’s office at 200 Meridian Centre, Suite 300, Rochester, New York 14618, Attention: Equity Plan Administrator; Telephone: (585) 328-8601; Facsimile: (585) 328-8622; Email:
EquityPlanAdmin@gwrr.com
. If such notice or other communication is to G&W’s designated agent, then it should be addressed and sent in accordance with established procedures. Each such notice and other communication delivered personally shall be deemed to have been given when received. Each such notice and other communication delivered by United States mail shall be deemed to have been given when it is received, and each such notice and other communication delivered by facsimile or electronically shall be deemed to have been given when it is so transmitted and the appropriate answerback is received.
17.
Data Privacy
.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by and among, as applicable, the Employer, and G&W and its Subsidiaries and affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan, to the extent permitted by law.
You understand that G&W and the Employer may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in G&W, details of all restricted stock awards or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan (“Data”). You understand that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of stock acquired upon issuance of the Common Stock underlying the Award, to the extent permitted by law. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand, however, that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
18.
Electronic Delivery
. G&W may, in its sole discretion, decide to deliver any documents related to the Award granted under the Plan (or related to future restricted stock awards that may be granted under the Plan) by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, hereby agree to participate in the Plan through an on-line or electronic system established and maintained by G&W or another third party designated by G&W.
19.
Severability
. The provisions of this Award Notice are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
20.
Entire Award
. The Award represents a portion of an annual equity award for [year] with an aggregate grant date fair value of $[amount of annual equity award for restricted stock], which annual equity award is being granted in installments in accordance with G&W’s Stock-Based Awards policy. In the event of your death or Disability or any termination or resignation in accordance with Section 3(b) hereof or any Rejected Qualified Resignation in accordance with Section 3(c) hereof, in each case, that occurs before the grant of the final installment of such annual equity award, the remaining portion of such annual equity award that has not yet been granted shall be immediately paid out to you in cash (based on the intended fair value amount corresponding to such ungranted portion), subject to any required withholding or other taxes.
ACKNOWLEDGEMENT
The undersigned acknowledges receipt of, and understands and agrees to be bound by, this Award Notice and the Plan. The undersigned further acknowledges that this Award Notice and the Plan set forth the entire understanding between him or her and G&W regarding the restricted stock granted by this Award Notice and that this Award Notice and the Plan supersede all prior oral and written agreements on that subject.
Dated: _____________________
___________________________
[Name]
Genesee & Wyoming Inc.
By: /s/ Mary Ellen Russell
Mary Ellen Russell
Chief Human Resource Officer
GENESEE & WYOMING INC.
SECOND AMENDED AND RESTATED 2004 OMNIBUS INCENTIVE PLAN
OPTION AWARD NOTICE
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Grantee:
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[Name]
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Type of Award:
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[Type]
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Number of Shares:
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[Number]
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Exercise Price Per Share:
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[Price]
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Date of Grant:
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[Date]
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Expiration Date:
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[Five Years from the Grant Date]
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Anniversary Date:
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[Date of First Grant for the Year of the Option]
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1.
Grant of Option
. This Award Notice serves to notify you that the Compensation Committee (the “Committee”) of the Board of Directors of Genesee & Wyoming Inc. (“G&W”) hereby grants to you, under G&W’s Second Amended and Restated 2004 Omnibus Incentive Plan (the “Plan”), a[n] [Type] stock option (the “Option”) to purchase, on the terms and conditions set forth in this Award Notice and the Plan, up to the number of shares of G&W’s Class A Common Stock, par value $.01 per share (the “Common Stock”), at the exercise price per share, in each case, as set forth above. The Plan is incorporated herein by reference and made a part of this Award Notice. A copy of the Plan is available on G&W’s Intranet under Corporate Policies then Human Resources or from G&W’s Human Resources Department upon request. You should review the terms of this Award Notice and the Plan carefully. The capitalized terms used in this Award Notice that are not defined herein have the meanings as defined in the Plan.
2.
Term
. Unless the Option is previously terminated pursuant to the terms of the Plan or this Award Notice, the Option will expire at the close of business on the Expiration Date.
3.
Vesting
. Subject to the terms set forth in this Award Notice and the Plan, unless vesting is accelerated in accordance with the Plan or this Award Notice, the Option shall vest and become exercisable ratably in three annual installments (34%-33%-33%) on the first, second and third anniversary of the Anniversary Date set forth above, provided you are still in the employment of G&W or any Subsidiary or providing Services, as hereinafter defined, at such time.
4.
Exercise
.
(a)
Method of Exercise
. To the extent exercisable under Section 3, the Option may be exercised in whole or in part, provided that the Option may not be exercised for less than one share of Common Stock in any single transaction. The Option shall be exercised by your giving appropriate notice of such exercise to G&W, or its designated agent in accordance with established procedures, specifying the number of shares of Common Stock that you elect to purchase and the Exercise Price to be paid. Upon determining that compliance with this Award Notice has occurred, including compliance with such reasonable requirements as G&W may impose pursuant to the Plan or Section 12 of this Award Notice and payment of the Exercise Price, G&W, or its designated agent, shall issue to you a certificate for the shares of Common Stock purchased on the earliest practicable date (as determined by G&W) thereafter, or execute an electronic transfer if so requested.
(b)
Payment of Exercise Price
. To the extent permissible under the Plan, the Exercise Price may be paid using any one or any combination of the following methods:
(i) in cash or by check, with such payment accompanying your written exercise notice;
(ii) by delivery of shares of Common Stock already owned by you, with such shares of Common Stock valued at their Fair Market Value on the date of the Option exercise;
(iii) subject to any and all limitations imposed by the Committee from time to time (which may not be uniform), a “cashless exercise,” whereby you would irrevocably instruct a broker or dealer to sell shares of Common Stock on your behalf and deliver cash sale proceeds to G&W, or its designated agent, in payment of the Exercise Price and, if applicable, direct G&W, or its designated agent, to deliver shares of Common Stock to be issued upon such exercise of this Option directly to such broker or dealer; or
(iv) any other method approved or accepted by the Committee in its sole discretion, subject to any and all limitations imposed by the Committee from time to time (which may not be uniform).
(c)
Withholdings
. The exercise of the Option is conditioned upon your making arrangements satisfactory to G&W for the payment to G&W, or its designated agent, of the amount of all taxes required by any governmental authority to be withheld and paid over by G&W to the governmental authority on account of the exercise. The payment of such withholding taxes to G&W, or its designated agent, may be made by one or any combination of the following methods: (i) in cash or by check; (ii) by G&W withholding such taxes from any other compensation owed to you by G&W or any Subsidiary; (iii) pursuant to a cashless exercise program as contemplated in Section 4(b)(iii) above; or (iv) any other method approved or accepted by the Committee in its sole discretion, subject, in the case of Section 4(c)(iii) and this Section 4(c)(iv), to any and all limitations imposed by the Committee from time to time (which may not be uniform) as contemplated in Section 4(b)(iii) and Section 4(b)(iv) above.
5.
Effect of Death
. In the event of your death prior to the complete exercise of the Option, the remaining unvested portion of the Option shall become fully vested and exercisable and, together with the previously vested but unexercised portion of the Option, may be exercised in whole or in part, subject to all of the conditions on exercise imposed by the Plan and this Award Notice, within one year
after the date of your death, but only (i) by the beneficiary designated on your beneficiary designation form filed with G&W, or in the absence of same, by your estate or by or on behalf of the person or persons to whom the Option passes under your will or the laws of descent and distribution and (ii) prior to the close of business on the Expiration Date of the Option.
6.
Effect of Disability
. In the event of your “Disability” prior to the complete exercise of the Option, the remaining unvested portion of the Option shall become fully vested and exercisable and, together with the previously vested but unexercised portion of the Option, may be exercised in whole or in part, subject to all of the conditions on exercise imposed by the Plan and this Award Notice, within one year after the date of your Disability, but only prior to the close of business on the Expiration Date of the Option. The term “Disability” means you are permanently and totally disabled within the meaning of Section 22(e)(3) of the Code.
7.
Effect of Certain Other Events
.
(a)
Termination With Cause.
Upon your termination of Services by G&W for Cause prior to the complete exercise of the Option, the remaining portion of the Option, whether or not then exercisable, shall be forfeited as of the date of such termination and no longer be exercisable on or after such date of termination.
(b)
Termination Without Cause.
Upon your involuntary termination of Services by G&W (for any reason other than death, Disability or Cause) or your voluntary termination of employment for Good Reason prior to the complete exercise of the Option, the remaining unvested portion of the Option shall accelerate and become fully vested and exercisable and, together with the previously vested but unexercised portion of the Option, may be exercised in whole or in part, subject to all of the conditions on exercise imposed by the Plan and this Award Notice, within three months after the date of such termination, but only prior to the close of business on the Expiration Date of the Option.
(c)
Qualified Resignation.
Notwithstanding anything to the contrary contained in this Award Notice, following your Qualified Resignation prior to the complete exercise of the Option, the remaining unvested portion of the Option shall continue to vest in accordance with the scheduled vesting dates set forth in Section 3 hereof, with such period following the Qualified Resignation and prior to the close of business on the Expiration Date of the Option deemed the “Permissive Vesting Period.” During the Permissive Vesting Period, the remaining portion of the Option may be exercised after vesting, in whole or in part, provided you remain in the service of G&W by serving on the G&W Board of Directors or in such other mutually agreed service capacity to G&W (“Services”) and remain in compliance with the provisions of Section 21(b) hereof, but only prior to the close of business on the Expiration Date of the Option. In the event you have communicated in writing to the G&W Board of Directors a willingness to provide Services, and either before or during the Permissive Vesting Period you are not nominated or elected to the G&W Board of Directors or are not offered the opportunity to act in some other mutually agreed service capacity to G&W following your Qualified Resignation (a “Rejected Qualified Resignation”), the remaining unvested portion of the Option shall accelerate and become fully vested and exercisable on such date and may, together with the previously vested but unexercised portion of the Option, be exercised in whole or in part, subject to all of the conditions on exercise imposed by the Plan and this Award Notice, within three months after the date on which you are not elected to the G&W Board of Directors or the date on which the G&W Board of Directors has communicated to you in writing that it has determined not to nominate you for election to the G&W Board of Directors or otherwise request Services from you, but only prior to the close of business on the Expiration Date of the Option.
(d)
Other Resignations.
Upon your voluntary resignation as Chief Executive Officer of G&W or, during the Permissive Vesting Period, as a member of G&W’s Board of Directors or from such other mutually agreed service capacity in which you provided Services, except for a resignation for Good Reason or a Qualified Resignation, prior to the complete exercise of the Option, the then vested portion of the Option may be exercised in whole or in part, subject to all conditions of exercise imposed by the Plan and this Award Notice, within three months after the date of such resignation, but only prior to the close of business on the Expiration Date of the Option. Any remaining unvested portion of the Option on the date of your resignation as described in this Section 7(d) shall be forfeited as of such date.
(e)
Certain Definitions
.
(i) The term “Cause” means (i) your willful and continued failure to substantially perform your duties with G&W or a Subsidiary after written warnings identifying the lack of substantial performance are delivered to you to specifically identify the manner in which G&W or a Subsidiary believes that you have not substantially performed your duties, (ii) your willful engaging in illegal conduct which is materially and demonstrably injurious to G&W or any Subsidiary, (iii) your commission of a felony, (iv) your material breach of a fiduciary duty owed by you to G&W or any Subsidiary, (v) your intentional unauthorized disclosure to any person of confidential information or trade secrets of a material nature relating to the business of G&W or any Subsidiary, or (vi) your engaging in any conduct that G&W’s or a Subsidiary’s written rules, regulations or policies specify as constituting grounds for discharge.
(ii) The term “Qualified Resignation” means your resignation as Chief Executive Officer of G&W if (i) you have provided at least six (6) months’ advance notice to the G&W Board of Directors regarding your intended resignation (“Sufficient Notice”), (ii) on or prior to the date you provide the Board of Directors with such notice of resignation, the Board of Directors has received an actionable succession plan which it deems to be acceptable (which acceptance may not be unreasonably withheld) and (iii) you have communicated in writing to the G&W Board of Directors a willingness to provide Services.
(iii) The term “Good Reason” means the occurrence during your employment with G&W or its Subsidiaries, prior to the Expiration Date of the Option, of any of the following without your express written consent:
(x) Any material and adverse diminution in your duties, titles or responsibilities with G&W from those in effect immediately prior to the Date of Grant;
provided
,
however
, that no such diminution shall be deemed to exist because of changes in your duties, titles or responsibilities as a consequence of G&W ceasing to be subject to the reporting requirements of the Exchange Act;
(y) Any material reduction in your annual target compensation from your annual target compensation for the prior fiscal year (excluding the impact of any one-time, special or discretionary awards or bonuses and any change due to changes in G&W’s peer group composition or compensation study, as reflected by the independent compensation consultants to the Committee); or
(z) Any requirement that you be based at a location more than thirty-five (35) miles from the location at which you were based on the Date of Grant.
Notwithstanding the foregoing, your resignation shall not be deemed to have occurred for “Good Reason” unless you provide G&W with a written notice of Good Reason termination referencing this Section 7(e) within fifteen (15) days after the occurrence of an event giving rise to a claim of Good Reason, and G&W shall have fifteen (15) days thereafter in which to cure or resolve the behavior otherwise constituting Good Reason, or to dispute such resignation for Good Reason.
8.
Notice of Disposition of Shares
. You hereby agree that you shall promptly notify G&W of the disposition of any of the shares of Common Stock acquired upon exercise of the Option, including a disposition by sale, exchange, gift or transfer of legal title, if such disposition occurs within two years from the Date of Grant or within one year from the date that you exercise the Option and acquire such shares of Common Stock.
9.
Nonassignability
. The Option may not be sold, alienated, transferred, assigned, encumbered or pledged in any way prior to the vesting of the Option, whether by operation of law or otherwise, except by will or the laws of descent and distribution. Except as otherwise provided by Section 5 of this Award Notice, the Option is only exercisable by you during your lifetime. After exercising the Option, the sale or other transfer of the shares of Common Stock shall be subject to applicable laws and regulations under the Exchange Act and the Securities Act of 1933, as amended.
10.
Limitation of Rights
. You will not have any rights as a stockholder with respect to the shares of Common Stock covered by the Option until you become the holder of record of such shares by exercising the Option. Neither the Plan, the granting of the Option nor this Award Notice gives you any right to remain in the employment of G&W or any Subsidiary.
11.
Rights of G&W and Subsidiaries
. This Award Notice does not affect the right of G&W or any Subsidiary to take any corporate action whatsoever, including without limitation its right to recapitalize, reorganize or make other changes in its capital structure or business, merge or consolidate, issue bonds, notes, shares of Common Stock or other securities, including preferred stock, or options therefor, dissolve or liquidate, or sell or transfer any part of its assets or business.
12.
Restrictions on Issuance of Shares
. If at any time G&W determines that the listing, registration or qualification of the shares covered by the Option upon any securities exchange or under any federal, state or local law, or the approval of any governmental agency, is necessary or advisable as a condition to the exercise of the Option, the Option may not be exercised in whole or in part unless and until such listing, registration, qualification or approval shall have been effected or obtained free of any conditions not acceptable to G&W.
13.
Plan Controls
. The Option is subject to all of the provisions of the Plan, which is hereby incorporated by reference, and is further subject to all the interpretations, amendments, rules and regulations that may from time to time be promulgated and adopted by the Committee pursuant to the Plan. In the event of any conflict among the provisions of the Plan and this Award Notice, the provisions of the Plan will be controlling and determinative.
14.
Amendment
. Except as otherwise provided by the Plan, G&W may only alter, amend or terminate the Option with your consent.
15.
Governing Law
. This Option grant and Award Notice shall be governed by and construed in accordance with the laws of the State of New York, except as superseded by applicable federal law.
16.
Notices
. All notices and other communications to G&W, or its designated agent, required or permitted under this Award Notice shall be written, and shall be either delivered personally or sent by registered or certified first-class mail, postage prepaid and return receipt requested, by facsimile or electronically. If such notice or other communication is to G&W then it should be addressed to G&W’s office at 200 Meridian Centre, Suite 300, Rochester, New York 14618, Attention: Equity Plan Administrator; Telephone: (585) 328-8601; Facsimile: (585) 328-8622; Email:
EquityPlanAdmin@gwrr.com
. If such notice or other communication is to G&W’s designated agent, then it should be addressed and sent in accordance with established procedures. Each such notice and other communication delivered personally shall be deemed to have been given when received. Each such notice and other communication delivered by United States mail shall be deemed to have been given when it is received, and each such notice and other communication delivered by facsimile or electronically shall be deemed to have been given when it is so transmitted and the appropriate answerback is received.
17.
Language
. If you have received this Award Notice or any other document related to the Plan in a language other than English and if the translated version bears a meaning that is different from that of the English version, the English version will control, to the extent permitted by law.
18.
Data Privacy
.
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by and among, as applicable, the Employer, and G&W and its Subsidiaries and affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan, to the extent permitted by law.
You understand that G&W and the Employer may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in G&W, details of all options or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan (“Data”). You understand that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of stock acquired upon exercise of the Option, to the extent permitted by law. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that you may, at any time, view Data, request additional information
about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand, however, that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
19.
Electronic Delivery
. G&W may, in its sole discretion, decide to deliver any documents related to the Option granted under the Plan (or related to future options that may be granted under the Plan) by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, hereby agree to participate in the Plan through an on-line or electronic system established and maintained by G&W or another third party designated by G&W.
20.
Severability
. The provisions of this Award Notice are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
21.
Covenants and Effect of Covenant Breach
.
(a) During your employment by or service to G&W as Chief Executive Officer and any period in which you are providing Services, and following any termination or resignation in accordance with Section 7(a) hereof or Section 7(d) hereof:
(i)
In General
. If you engage in the conduct described in subsection (iii) of this Section 21(a), then, unless the Committee determines otherwise (x) you immediately forfeit, effective as of the date you engage in such conduct, the unexercised portion of the Option and (y) you must pay to G&W the amount of any net after tax gain realized or payment received as a result of the exercise of the Option within the twelve-month period immediately preceding the date you engage in such conduct.
(ii)
Set-Off
. By accepting the Option, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (a)(i) of this Section 21. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(iii)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your employment by or service to G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary, and for a period of twelve (12) months after the termination of such employment or service as set forth in Section 21(a) above, you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary, which shall without limitation preclude service to a railroad or other entity (or its affiliate) that competes for railroad acquisition or railroad investment opportunities with G&W. (For purposes of this Section 21(a), you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amount to not more than five percent of the capital stock of any such company.) The restrictive covenants contained in this Section 21(a) apply separately in the United States and in other countries. Your breach of the restrictive covenants contained in this subsection (iii) shall result in the consequences described in this Section 21(a).
(b) Following any termination or resignation in accordance with Section 7(b) hereof or any Rejected Qualified Resignation in accordance with Section 7(c) hereof, including any period when you are performing Services:
(i)
In General
. If you engage in the conduct described in subsection (iii) of this Section 21(b), then, unless the Committee determines otherwise (x) you immediately forfeit, effective as of the date you engage in such conduct, the unexercised portion of the Option and (y) you must pay to G&W the amount of any net after tax gain realized or payment received during the twenty-four (24) month period following your termination or resignation in accordance with Section 7(b) or any Rejected Qualified Resignation in accordance with Section 7(c) hereof as a result of the exercise of any portion of the Option that is accelerated in accordance with Section 7(b) or Section 7(c) hereof or which vests during the Permissive Vesting Period.
(ii)
Set-Off
. By accepting the Option, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (b)(i) of this Section 21. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(iii)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary and during the Permissive Vesting Period or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your employment by or service to G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary and for a period of twenty-four (24) months following your termination or resignation as Chief Executive Officer of G&W in accordance with Section 7(b) hereof or a Rejected Qualified Resignation in accordance with Section 7(c), you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary, which shall without limitation preclude service to a railroad or other entity (or its affiliate) that competes for railroad acquisition or railroad investment opportunities with G&W. (For purposes of this Section 21(b), you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amount to not more than five percent of the capital stock of any such company.) The restrictive covenants contained in this Section 21(b) apply separately in the United States and in other countries. Your breach of the restrictive covenants contained in this subsection (iii) shall result in the consequences described in this Section 21(b).
(c) Following any Qualified Resignation in accordance with Section 7(c) hereof, including any period when you are performing Services:
(i)
In General
. If you engage in the conduct described in subsection (iii) of this Section 21(c), then, unless the Committee determines otherwise (x) you immediately forfeit, effective as of the date you engage in such conduct, the unexercised portion of the Option and (y) you must pay to G&W the amount of any net after tax gain realized or payment received during the thirty-six (36) month period following your Qualified Resignation in accordance with Section 7(c) hereof as a result of the exercise of any portion of the Option that vests during the Permissive Vesting Period.
(ii)
Set-Off
. By accepting the Option, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (c)(i) of this Section 21. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(iii)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary and during the Permissive Vesting Period or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your employment by or service to G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary and for a period of thirty-six (36) months following your Qualified Resignation in accordance with Section 7(c), you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary, which shall without limitation preclude service to a railroad or other entity (or its affiliate) that competes for railroad acquisition or railroad investment opportunities with G&W. (For purposes of this Section 21(c), you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amount to not more than five percent of the capital stock of any such company.) The restrictive covenants contained in this Section 21(c) apply separately in the United States and in other countries. Your breach of the restrictive covenants contained in this subsection (iii) shall result in the consequences described in this Section 21(c).
(d) You expressly acknowledge that any breach or threatened breach of any of the restrictive covenants set forth in Sections 21(a)(iii), 21(b)(iii) or 21(c)(iii), as applicable, may result in substantial, continuing, and irreparable injury to the Company and its affiliates. Therefore, you hereby agree that, in addition to any other remedy that may be available to the Company and its affiliates, the Company and its affiliates shall be entitled to seek injunctive relief, specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of such restrictive covenants without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.
22.
Effect of Change in Control
.
(a) Upon the occurrence of a “Change in Control” of G&W during
your employment by or service to G&W as Chief Executive Officer and any period in which you are providing Services, the unvested portion of the Option shall immediately vest as of the date of the occurrence of such event.
(b) The term “Change in Control” shall be deemed to have occurred when:
(i) Any “person” as defined in Section 3(a)(9) of the Exchange Act, and as used in Section 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act (but excluding G&W and any Subsidiary and any employee benefit plan sponsored or maintained by G&W or any Subsidiary (including any trustee of such plan acting as trustee)), directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), of securities of G&W representing 35% or more of the combined voting power of G&W’s then outstanding securities (other than indirectly as a result of G&W’s redemption of its securities);
provided
,
however
, that in no event shall a Change in Control be deemed to have occurred under this Section 22(b)(i) so long as (x) the combined voting power of shares beneficially owned by (A) G&W’s executive officers (as defined in Rule 16a-1(f) under the Exchange Act) then in office (the “Executive Officer Shares”), (B) Mortimer B. Fuller and/or Sue Fuller and their lineal descendents (the “Founder Shares”), and (C) the shares beneficially owned by any other members of a “group” that includes the Founder Shares and/or a majority of the Executive Officer shares, exceeds 35% of the combined voting power of G&W’s current outstanding securities and remains the person or group with beneficial ownership of the largest percentage of combined voting power of G&W’s outstanding securities and (y) G&W remains subject to the reporting requirements of the Exchange Act; or
(ii) The consummation of any merger or other business combination of G&W, a sale of 51% or more of G&W’s assets, liquidation or dissolution of G&W or a combination of the foregoing transactions (the “Transactions”) other than a Transaction immediately following which either (x) the shareholders of G&W and any trustee or fiduciary of any G&W employee benefit plan immediately prior to the Transaction own at least 51% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger or other business combination; (B) the purchaser of or successor to G&W’s assets; (C) both the surviving corporation and the purchaser in the event of any combination of Transactions; or (D) the parent company owning 100% of such surviving corporation, purchaser or both the surviving corporation and the purchaser, as the case may be ((A), (B), (C) or (D), as applicable, the “Surviving Entity”) or (y) the Incumbent Directors, as defined below, shall continue to serve as a majority of the board of directors of the Surviving Entity without an agreement or understanding that such Incumbent Directors will later surrender such majority; or
(iii) Within any twelve-month period, the persons who were directors immediately before the beginning of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of any successor to G&W, including any Surviving Entity. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of, or with the approval of, at least two‑thirds of the directors who then qualified as Incumbent Directors (so long as such director was not nominated by a person who commenced or threatened to commence an election contest or proxy solicitation by or on behalf of a person (other than the Board) or who has entered into an agreement to effect a Change in Control or expressed an intention to cause such a Change in Control).
23.
Entire Award
. The Option represents a portion of an annual equity award for [year] with an aggregate grant date fair value of $[amount of annual equity award for options], which annual equity award is being granted in installments in accordance with G&W’s Stock-Based Awards Policy. In the event of your death or Disability or any termination or resignation in accordance with Section 7(b) hereof or any Rejected Qualified Resignation in accordance with Section 7(c) hereof, in each case, that occurs before the grant of the final installment of such annual equity award, the remaining portion of such annual equity award that has not yet been granted shall be immediately paid out to you in cash (based on the intended fair value amount corresponding to such ungranted portion), subject to any required withholding or other taxes.
24.
Interpretation
. It is the intent of the parties hereto that the Option qualifies for incentive stock option treatment pursuant to, and to the extent permitted by, Section 422 of the Code. All provisions hereof are intended to have, and shall be construed to have, such meanings as are set forth in applicable provisions of the Code and Treasury Regulations to allow the Option to so qualify. To the extent that any portion of the Option fails to qualify for incentive stock option treatment pursuant to Section 422 of the Code, such non-qualifying portion of the Option shall be a Non-Qualified Stock Option.
ACKNOWLEDGEMENT
The undersigned acknowledges receipt of, and understands and agrees to be bound by, this Award Notice and the Plan. The undersigned further acknowledges that this Award Notice and the Plan set forth the entire understanding between him and G&W regarding the [Type] stock options granted by this Award Notice and that this Award Notice and the Plan supersede all prior oral and written agreements on that subject.
Dated: ________________________
____________________________
[Name]
Genesee & Wyoming Inc.
By: /s/ Mary Ellen Russell
Mary Ellen Russell
Chief Human Resource Officer
GENESEE & WYOMING, INC.
SECOND AMENDED AND RESTATED 2004 OMNIBUS INCENTIVE PLAN
PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD NOTICE
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Grantee:
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XXXXXXXXX
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Type of Award:
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Performance-Based Restricted Stock Unit Award
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Number of Units:
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__________
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Date of Grant:
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[MONTH] [DATE], 20XX
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Performance Vesting Period:
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[MONTH] [DATE], 20XX through [MONTH] [DATE], 20XX
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1.
Grant of Performance-Vesting Restricted Stock Unit
. This Award Notice serves to notify you that the Compensation Committee (the “Committee”) of the Board of Directors of Genesee & Wyoming Inc. (“G&W”) hereby grants to you, under G&W’s Second Amended and Restated 2004 Omnibus Incentive Plan (the “Plan”), a performance-based restricted stock unit award (the “Award”), on the terms and conditions set forth in this Award Notice and the Plan, representing the contingent right to earn up to the number of shares of G&W’s Class A Common Stock, par value $.01 per share (the “Units”), as described in more detail herein. The Plan is incorporated herein by reference and made part of this Award Notice. A copy of the Plan is available on G&W’s Intranet under Corporate Policies, then Human Resources, or from G&W’s Human Resources Department upon request. You should review the terms of this Award Notice and the Plan carefully. The capitalized terms used in this Award Notice that are not defined herein have the meanings as defined in the Plan.
2.
General Award Description
. The Award consists of a grant of restricted stock units subject to both performance, time and other vesting restrictions as described below in Sections 3, 5 and 6 of this Award Notice.
3.
Restrictions and Performance Vesting
. Subject to the terms set forth in this Award Notice and the Plan, provided you are still in the employment or service of G&W or any Subsidiary or remain in the service of G&W by serving on the G&W Board of Directors or in such other mutually agreed service capacity to G&W (“Services”) at such time, the right to vest in the Units described in this Award Notice is based on and subject to the performance of G&W’s Class A Common Stock, par value $.01 per share (“G&W’s Common Stock”), measured based on G&W’s Common Stock Total Shareholder Return (“TSR”) performance over the period beginning [MONTH] [DATE], 20XX and ending [MONTH] [DATE], 20XX (the “Performance Vesting Period”) relative to the TSR of (a) the individual components of the S&P 500, and (b) the Peer Group (as defined below), each weighted equally as a separate component and independently measured. For purposes of the Award, the Peer Group consists of the following XX companies:
[INSERT PEER GROUP COMPANIES]
For purposes of the Award, TSR over the Performance Vesting Period will be measured by the percentage change in the average daily closing price of G&W’s Common Stock, with an initial measurement price of $XX.XX, which is the average daily closing price of G&W’s Common Stock from [MONTH] [DATE], 20XX to [MONTH] [DATE], 20XX (the first 30 trading days of the Performance Vesting Period) to the average daily closing price of G&W’s Common Stock for the last 30 trading days of the Performance Vesting Period, assuming dividends declared during the Performance Vesting Period are reinvested on the ex-dividend date.
The percentage of the Units available for vesting at the end of the Performance Vesting Period will be based 50% on the Peer Group and 50% on the S&P 500, with each discrete half of the Award measured independently, and the percentage of the Units available for vesting will vary from 0% to 100% depending on G&W’s relative TSR performance over the Performance Vesting Period as compared to each of the Peer Group and the S&P 500 as follows:
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G&W Relative TSR Performance
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Percentile Rank
(1)
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% of Award Units Available
(2)
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50
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or Below
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0%
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55
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40%
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60
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40%
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65
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60%
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70
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80%
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75
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or Above
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100%
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(1)
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Percentile Rank represents average of G&W rankings against S&P 500 and Peer Group (to be measured separately for each S&P 500 and Peer Group component).
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(2)
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For TSR performance between the discrete percentile ranks in this table, Units will be interpolated.
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4.
Changes to S&P 500 and Peer Group Composition
. In the event that a company in the S&P 500 or the Peer Group ceases to be publicly traded for any reason during the Performance Vesting Period, the following process will apply: (i) if such company has been publicly traded for at least half of the Performance Vesting Period, it will continue to be counted as a member of the S&P 500 or the Peer Group in calculating G&W’s Common Stock relative TSR ranking vis-à-vis the S&P 500 and the Peer Group, and TSR performance for such company will be based on the average closing stock price for its final 30 days of trading during the Performance Vesting Period; (ii) conversely, if such company has been publicly traded for less than half of the Performance Vesting Period, it will be excluded from the S&P 500 or Peer Group for relative TSR measurement.
5.
Time Vesting Restrictions
. Except as otherwise provided in Section 6 hereof, the Units available due to performance-based vesting based on G&W’s Common Stock relative TSR performance as defined above will vest at the end of the Performance Vesting Period (i.e., [MONTH] [DATE], 20XX) provided you are still in the employment or service of G&W or any Subsidiary at that time.
6.
Special Vesting Provisions
.
(a)
Effect of Death or Disability
. In the event of your death or “Disability” during the Performance Vesting Period, any further time vesting restrictions related to employment or service to G&W or any Subsidiary applicable to the Award will lapse and the Units will vest to the extent earned at the end of the Performance Vesting Period. The term “Disability” means you are permanently and totally disabled within the meaning of Section 22(e)(3) of the Code.
(b)
Effect of Certain Other Events
.
(i)
Termination
With Cause.
Upon your termination of Services by G&W for Cause prior to the vesting of the Units, the Units shall be forfeited as of the date of such termination.
(ii)
Termination
Without Cause.
Upon your involuntary termination of Services by G&W (for any reason other than death, Disability or Cause) or your voluntary termination of employment for Good Reason prior to the vesting of the Units, you will continue to be eligible to vest in the Units in accordance with Section 3 hereof, to the extent earned at the end of the Performance Vesting Period.
(iii)
Qualified Resignation.
Notwithstanding anything to the contrary contained in this Award Notice, following your Qualified Resignation prior to the vesting of the Units, you will continue to be eligible to vest in the Units in accordance with Section 3 hereof, to the extent earned at the end of the Performance Vesting Period, with such period following the Qualified Resignation and prior to the end of the Performance Vesting Period deemed the “Permissive Vesting Period.” During the Permissive Vesting Period, you shall continue to be eligible to Vest in the Units in accordance with Section 3 hereof, to the extent earned at the end of the Performance Vesting Period, provided you remain in the service of G&W by providing Services and remain in compliance with the provisions of Section 9(c). In the event you have communicated in writing to the G&W Board of Directors a willingness to provide Services, and either before or during the Permissive Vesting Period you are not nominated or elected to the G&W Board of Directors or are not offered the opportunity to act in some other mutually agreed service capacity to G&W following your Qualified Resignation (a “Rejected Qualified Resignation”), you will continue to be eligible to vest in the Units in accordance with Section 3 hereof, to the extent earned at the end of the Performance Vesting Period.
(iv)
Other Resignations.
Upon your voluntary resignation as Chief Executive Officer of G&W or, during the Permissive Vesting Period, as a member of G&W’s Board of Directors or from such other mutually agreed service capacity in which you provided Services, except for a resignation for Good Reason or a Qualified Resignation, prior to the vesting of the Units, the Units shall be forfeited as of the date of such resignation.
(v)
Certain Definitions
.
(1) The term “Cause” means (i) your willful and continued failure to substantially perform your duties with G&W or a Subsidiary after written warnings identifying the lack of substantial performance are delivered to you to specifically identify the manner in which G&W or a Subsidiary believes that you have not substantially performed your duties, (ii) your willful engaging in illegal conduct which is materially and demonstrably injurious to G&W or any Subsidiary, (iii) your commission of a felony, (iv) your material breach of a fiduciary duty owed by you to G&W or any Subsidiary, (v) your intentional unauthorized disclosure to any person of confidential information or trade secrets of a material nature relating to the business of G&W or any Subsidiary, or (vi) your engaging in any conduct that G&W’s or a Subsidiary’s written rules, regulations or policies specify as constituting grounds for discharge.
(2) The term “Qualified Resignation” means your resignation as Chief Executive Officer of G&W if (i) you have provided at least six (6) months’ advance notice to the G&W Board of Directors regarding your intended resignation (“Sufficient Notice”), (ii) on or prior to the date you provide the Board of Directors with such notice of resignation, the Board of Directors has received an actionable succession plan which it deems to be acceptable (which acceptance may not be unreasonably withheld) and (iii) you have communicated in writing to the G&W Board of Directors a willingness to provide Services.
(3) The term “Good Reason” means the occurrence during your employment with G&W or its Subsidiaries, prior to the vesting of the Award, of any of the following without your express written consent:
(4) Any material and adverse diminution in your duties, titles or responsibilities with G&W from those in effect immediately prior to the Date of Grant;
provided
,
however
, that no such diminution shall be deemed to exist because of changes in your duties, titles or responsibilities as a consequence of G&W ceasing to be subject to the reporting requirements of the Exchange Act;
(5) Any material reduction in your annual target compensation from your annual target compensation for the prior fiscal year (excluding the impact of any one-time, special or discretionary awards or bonuses and any change due to changes in G&W’s peer group composition or compensation study, as reflected by the independent compensation consultants to the Committee); or
(6) Any requirement that you be based at a location more than thirty-five (35) miles from the location at which you were based on the Date of Grant.
Notwithstanding the foregoing, your resignation shall not be deemed to have occurred for “Good Reason” unless you provide G&W with a written notice of Good Reason termination referencing this Section 6(b)(v) within fifteen (15) days after the occurrence of an event giving rise to a claim of Good Reason, and G&W shall have fifteen (15) days thereafter in which to cure or resolve the behavior otherwise constituting Good Reason, or to dispute such resignation for Good Reason.
7.
Cessation of Public Trading of G&W’s Common Stock
. In the event that G&W’s Common Stock ceases to be traded on a United States public securities exchange (either the NYSE or NASDAQ) during the Performance Vesting Period, except as otherwise provided in Section 10 below, TSR for G&W’s Common Stock and the common stock of the members of the S&P 500 and the Peer Group, as applicable, shall be determined by the percentage difference between the average daily closing price of each company’s common stock for the first 30 trading days of the Performance Vesting Period and the average daily closing price of its common stock for the 30 trading days immediately prior to the cessation of the public trading of G&W’s Common Stock, adjusted to reflect the reinvestment of any dividends declared during this period as of the ex-dividend date.
In such an event, the number of shares made available for time-based vesting resulting from G&W’s Common Stock relative TSR performance shall be prorated based on the number of days G&W’s Common Stock was publicly traded during the Performance Vesting Period divided by the number of days in the original Performance Vesting Period.
8.
Issuance and Taxation of Shares
.
(a)
Issuance of Shares.
Upon satisfaction of the performance vesting and time vesting restrictions described in Sections 3, 5 and 6 above, and upon further determining that compliance with this Award Notice has occurred, including compliance with such reasonable requirements as G&W may impose pursuant to the Plan or Section 15 of this Award Notice, and payment of any relevant taxes, G&W shall issue to you a certificate for the number of shares of G&W’s Common Stock equal to the number of vested Units to which you are entitled on the earliest practicable date (as determined by G&W) thereafter, or execute an electronic transfer if so requested. The shares of G&W’s Common Stock may be issued during your lifetime only to you, or after your death to your designated beneficiary, or in absence of such beneficiary, to your duly qualified personal representative.
(b)
Responsibility for Taxes
. Regardless of any action G&W, its designated agent, or your employer (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items legally due by you is and remains your responsibility and that G&W and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including the grant or vesting of the Units, or issuance of the shares of G&W’s Common Stock equal to the number of vested Units underlying the Award, or the subsequent sale of shares of G&W’s Common Stock acquired pursuant to such issuance and the receipt of any dividends on shares of G&W’s Common Stock acquired pursuant to such issuance; and (ii) do not commit, other than in accordance with the Plan, to structure the terms of the award or any aspect of the Award to reduce or eliminate your liability for Tax-Related Items.
Prior to issuance of shares of G&W’s Common Stock upon the vesting of Units, you shall pay cash or make adequate arrangements satisfactory to G&W and/or the Employer to satisfy all withholding and payment on account of obligations of G&W and/or the Employer. In this regard, you authorize G&W and/or the Employer to withhold all applicable Tax-Related Items legally payable by you from your wages or other cash compensation paid to you by G&W and/or the Employer. Alternatively, or in addition, if permissible under local law, G&W, or its designated agent, may withhold in shares of G&W’s Common Stock from the issuance of G&W’s Common Stock upon the vesting of Units, provided that G&W, or its designated agent, only withholds the amount of shares of G&W’s Common Stock necessary to satisfy the minimum withholding amount. Finally, you shall pay to G&W, its designated agent, or the Employer any amount of Tax-Related Items that G&W or the Employer may be required to withhold as a result of your participation in the Plan or receipt of shares of G&W’s Common Stock that cannot be satisfied by the means previously described. G&W, or its designated agent, may refuse to honor the issuance and refuse to deliver the shares of G&W’s Common Stock if you fail to comply with your obligations in connection with the Tax-Related Items as described in this section.
The payment of such withholding taxes to G&W, or its designated agent, may also be made pursuant to any method approved or accepted by the Committee in its sole discretion, subject to any and all limitations imposed by the Committee from time to time (which may not be uniform).
9.
Effect of Breach of Certain Covenants
.
(a) During your employment by or service to G&W as Chief Executive Officer and any period in which you are providing Services, and following any termination or resignation in accordance with Section 6(b)(i) hereof or Section 6(b)(iv) hereof:
(i)
In General
. If you engage in the conduct described in subsection (iii) of this Section 9(a), then, unless the Committee determines otherwise (x) you immediately forfeit, effective as of the date you engage in such conduct, the unvested Units and (y) you must return to G&W the shares of G&W’s Common Stock underlying the Units that vested within the twelve (12) month period immediately preceding the date you engage in such conduct or, at the option of G&W, pay to G&W the net after tax Fair Market Value, as of the date you engage in such conduct, of the shares of G&W’s Common Stock underlying the Units that vested within such twelve (12) month period.
(ii)
Set-Off
. By accepting the Award, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (a)(i) of this Section 9. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(iii)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your employment by or service to G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary and for a period of twelve (12) months after the termination of such employment or service as set forth in Section 9(a) above, you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary, which shall without limitation preclude service to a railroad or other entity (or its affiliate) that competes for railroad acquisition or railroad investment opportunities with G&W. (For purposes of this Section 9(a), you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amounts to not more than five percent of the capital stock of any such company.) The restrictive covenants contained in this Section 9(a) apply separately in the United States and in other countries. Your breach of the restrictive covenants contained in this subsection (iii) shall result in the consequences described in this Section 9(a).
(b) Following any termination or resignation in accordance with Section 6(b)(ii) hereof or any Rejected Qualified Resignation in accordance with Section 6(b)(iii) hereof, including any period when you are performing Services:
(i)
In General
. If you engage in the conduct described in subsection (iii) of this Section 9(b), then, unless the Committee determines otherwise you must return to G&W the shares of G&W’s Common Stock underlying the Units that vested in accordance with Section 6(b)(ii) hereof or Section 6(b)(iii) hereof within the twenty-four (24) month period immediately preceding the date you engage in such conduct or, at the option of G&W, pay to G&W the net after tax Fair Market Value, as of the date you engage in such conduct, of the shares of G&W’s Common Stock underlying the Units that vested within such twenty-four (24) month period.
(ii)
Set-Off
. By accepting the Award, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (b)(i) of this Section 9. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(iii)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary and during the Permissive Vesting Period or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your employment by or service to G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary and for a period of twenty-four (24) months following your termination or resignation as Chief Executive Officer of G&W in accordance with Section 6(b)(ii) hereof or a Rejected Qualified Resignation in accordance with Section 6(b)(iii), you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary, which shall without limitation preclude service to a railroad or other entity (or its affiliate) that competes for railroad acquisition or railroad investment opportunities with G&W. (For purposes of this Section 9(b), you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amount to not more than five percent of the capital stock of any such company.) The restrictive covenants contained in this Section 9(b) apply separately in the United States and in other countries. Your breach of the restrictive covenants contained in this subsection (iii) shall result in the consequences described in this Section 9(b).
(c) Following any Qualified Resignation in accordance with Section 6(b)(iii) hereof, including any period when you are performing Services:
(i)
In General
. If you engage in the conduct described in subsection (iii) of this Section 9(c), then, unless the Committee determines otherwise you must return to G&W the shares of G&W’s Common Stock underlying the Units that vested in accordance with Section 6(b)(iii) hereof within the thirty-six (36) month period immediately preceding the date you engage in such conduct or, at the option of G&W, pay to G&W the net after tax Fair Market Value, as of the date you engage in such conduct, of the shares of G&W’s Common Stock underlying the Units that vested within such thirty-six (36) month period.
(ii)
Set-Off
. By accepting the Award, you consent to a deduction from any amounts G&W or any Subsidiary owes you from time to time (including, but not limited to, amounts owed to you as wages or other compensation, fringe benefits, or vacation pay), to the extent of the amount that you owe G&W under subsection (c)(i) of this Section 9. G&W may elect to make any set-off in whole or in part. If G&W does not recover by means of a set-off the full amount that you owe G&W, you shall immediately pay the unpaid balance to G&W.
(iii)
Conduct
. You hereby agree that you will not, without the written consent of G&W, either during your employment by or service to G&W or any Subsidiary and during the Permissive Vesting Period or thereafter, disclose to anyone or make use of any confidential information which you acquired during your employment or service relating to any of the business of G&W or any Subsidiary, except as such disclosure or use may be required in connection with your employment by or service to G&W or any Subsidiary. During your employment by or service to G&W or any Subsidiary and for a period of thirty-six (36) months following your Qualified Resignation in accordance with Section 6(b)(iii), you will not, either as principal, agent, consultant, employee, stockholder or otherwise, engage in any work or other activity in direct competition with G&W or any Subsidiary, which shall without limitation preclude service to a railroad or other entity (or its affiliate) that competes for railroad acquisition or railroad investment opportunities with G&W. (For purposes of this Section 9(c), you shall not be deemed a stockholder of any company subject to the periodic and other reporting requirements of the Exchange Act, if your record and beneficial ownership of any such company amount to not more than five percent of the capital stock of any such company.) The restrictive covenants contained in this Section 9(c) apply separately in the United States and in other countries. Your breach of the restrictive covenants contained in this subsection (iii) shall result in the consequences described in this Section 9(c).
(d) You expressly acknowledge that any breach or threatened breach of any of the restrictive covenants set forth in Sections 9(a)(iii), 9(b)(iii) or 9(c)(iii), as applicable, may result in substantial, continuing, and irreparable injury to the Company and its affiliates. Therefore, you hereby agree that, in addition to any other remedy that may be available to the Company and its affiliates, the Company and its affiliates shall be entitled to seek injunctive relief, specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of such restrictive covenants without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.
10.
Effect of a Change in Control
.
(a) Upon the occurrence of a “Change in Control” of G&W during the Performance Vesting Period, G&W’s relative TSR performance for the Performance Vesting Period will be determined based on the average daily closing price of G&W’s Common Stock for its last thirty (30) days of trading immediately prior to the effective date of the “Change in Control,” and all remaining performance, time and other vesting restrictions will lapse.
(b) A “Change in Control” shall be deemed to have occurred when:
(i) Any “person” as defined in Section 3(a)(9) of the Exchange Act, and as used in Section 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) of the Exchange Act (but excluding G&W and any Subsidiary and any employee benefit plan sponsored or maintained by G&W or any Subsidiary, including any trustee of such plan acting as trustee, directly or indirectly, becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), of securities of G&W representing more than 35% or more of the combined voting power of G&W’s then outstanding securities (other than directly as a result of G&W’s redemption of its securities);
provided
,
however
, that in no event shall a Change in Control be deemed to have occurred under this Section 10(b)(i) so long as (x) the combined voting power of shares beneficially owned by (A) G&W’s executive officers (as defined in Rule 16a-1(f) under the Exchange Act) then in office (the “Executive Officer Shares”), (B) Mortimer B. Fuller and/or Sue Fuller and their lineal descendants (the “Founder Shares”), and (C) the shares beneficially owned by any other members of a “group” that includes the Founder Shares and/or a majority of the Executive Officer Shares, exceeds 35% of the combined voting power of G&W’s current outstanding securities and remains the person or group with beneficial ownership of the largest percentage of combined voting power of G&W’s outstanding securities and (y) G&W remains subject to the reporting requirements of the Exchange Act; or
(ii) The consummation of any merger or other business combination of G&W, a sale of 51% or more of G&W’s assets, liquidation or dissolution of G&W or a combination of the foregoing transactions (the “Transactions”) other than a Transaction immediately following which either (x) the shareholders of G&W and any trustee or fiduciary of any G&W employee benefit plan immediately prior to the Transaction own at least 51% of the voting power, directly or indirectly, of (A) the surviving corporation in any such merger or business combination; (B) the purchaser of or successor to G&W’s assets; (C) both the surviving corporation and the purchaser in the event of any combination of Transactions; or (D) the parent company owning 100% of such
surviving corporation, purchaser or both the surviving corporation and the purchaser, as the case may be ((A), (B), (C) or (D)), as applicable, the “Surviving Entity” or (y) the Incumbent Directors, as defined below, shall continue to serve as a majority of the board of directors of the Surviving Entity without an agreement or understanding that such Incumbent Directors will later surrender such majority; or
(iii) Within any twelve-month period, the persons who were directors immediately before the beginning of such period (the “Incumbent Directors”) shall cease (for any reason other than death) to constitute at least a majority of the Board or the board of directors of any successor to G&W, including any Surviving Entity. For this purpose, any director who was not a director at the beginning of such period shall be deemed to be an Incumbent Director if such director was elected to the Board by, or on the recommendation of, or with the approval of, at least two-thirds of the directors who then qualified as Independent Directors ((so long as such director was not nominated by a person who commenced or threatened to commence an election contest or proxy solicitation by or on behalf of a person (other than the Board) or who has entered into an agreement to effect a Change in Control or expressed an intention to cause such a Change in Control)).
11.
Book Entry Registration
. Any shares of G&W’s Common Stock issued upon settlement of the Award may be evidenced by book registration only, without the issuance of a certificate representing the shares of G&W’s Common Stock that may be issued pursuant to the Award.
12.
Nonassignability
. The Units underlying the Award and, prior to their issuance, the shares of G&W’s Common Stock that may be issued upon the vesting of Units may not, except as otherwise provided in the Plan, be sold, alienated, assigned, transferred, pledged or encumbered in any way prior to the vesting of the Units, whether by operation of law or otherwise. After vesting of the Units, the sale or other transfer of the issued shares of G&W’s Common Stock shall be subject to applicable laws and regulations under the Exchange Act and the Securities Act of 1933, as amended.
13.
Rights as a Stockholder
. Until the Units have vested and the underlying shares of G&W’s Common Stock have been delivered to you, you will have no rights as a stockholder with respect to the shares of G&W’s Common Stock to be issued upon the vesting of the Units underlying the Award, including, but not limited to, the right to receive such cash dividends, if any, as may be declared on such shares from time to time or the right to vote (in person or by proxy) such shares at any meeting of stockholders of G&W.
14.
Rights of G&W and Subsidiaries
. This Award Notice does not affect the right of G&W or any Subsidiary to take any corporate action whatsoever, including without limitation, its right to recapitalize, reorganize or make other changes in its capital structure or business, merge or consolidate, issue bonds, notes, shares of G&W’s Common Stock or other securities, including preferred stock, or options therefor, dissolve or liquidate, or sell or transfer any part of its assets or business.
15.
Restrictions on Issuance of Shares
. If at any time G&W determines that the listing, registration or qualification of the shares of G&W’s Common Stock underlying the Award upon any securities exchange or under any federal, state or local law, or the approval of any governmental agency, is necessary or advisable as a condition to the issuance of any shares of G&W’s Common Stock underlying the Award, such issuance may not be made in whole or in part unless such listing, registration, qualification or approval shall have been effected or obtained free of any conditions not acceptable to G&W.
16.
Plan Controls
. The Award is subject to all of the provisions of the Plan, which is hereby incorporated by reference, and is further subject to all of the interpretations, amendments, rules and regulations that may from time to time be promulgated and adopted by the Committee pursuant to the Plan. In the event of any conflict among the provisions of the Plan and this Award Notice, the provisions of the Plan will be controlling and determinative.
17.
Amendment
. Except as otherwise provided in the Plan, G&W may only alter, amend or terminate the Award with your consent.
18.
Governing Law
. The Award and this Award Notice shall be governed by and construed in accordance with the laws of the State of New York, except as superseded by applicable federal law.
19.
Language
. If you have received this Award Notice or any other document related to the Plan in a language other than English, and if the translated version bears a meaning that is different from that of the English version, the English version will control, to the extent permitted by law.
20.
Notices
. All notices and other communications to G&W, or its designated agent, required or permitted under this Award Notice shall be written, and shall either be delivered personally or sent by registered or certified first-call mail, postage prepaid and return receipt requested, by facsimile or electronically. If such notice or other communication is to G&W, then it should be addressed to G&W’s office at 200 Meridian Centre, Suite 300, Rochester, New York 14618, Attention: Equity Plan Administrator; Telephone: (585) 328-8601; Facsimile: (585) 328-8622; Email:
EquityPlanAdmin@gwrr.com
. If such notice or other communication is to G&W’s designated agent, then it should be addressed and sent in accordance with established procedures. Each such notice and other communication delivered personally shall be deemed to have been given when received. Each such notice and other communication delivered by United States mail shall be deemed to have been given when received, and each such notice and other communication delivered by facsimile or electronically shall be deemed to have been given when it is so transmitted and the appropriate answerback is received.
21.
Data Privacy
. You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by and among, as applicable, the Employer, and G&W and its Subsidiaries and affiliates for the exclusive purpose of implementing, administering and managing your participation in the plan, to the extent permitted by law.
You understand that G&W and the Employer may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in G&W, details of all restricted stock or unit awards or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan (“Data”). You understand that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of stock acquired upon issuance of G&W’s Common Stock underlying the Award, to the extent permitted by law. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. You understand, however, that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
22.
Electronic Delivery
. G&W may, in its sole discretion, decide to deliver any documents related to the Award granted under the Plan (or related to future awards that may be granted under the Plan) by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, hereby agree to participate in the Plan through an on-line or electronic system established and maintained by G&W or another third party designated by G&W.
23.
Severability
. The provisions of this Award Notice are severable, and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
ACKNOWLEDGEMENT
The undersigned acknowledges receipt of, and understands and agrees to be bound by, this Award Notice and the Plan. The undersigned further acknowledges that this Award Notice and the Plan set forth the entire understanding between him or her and G&W regarding the restricted stock units granted by this Award Notice and that this Award Notice and the Plan supersede all prior oral and written agreements on that subject.
Dated: _________________________
_______________________________
Name:
Genesee & Wyoming Inc.
By:_______________________________
Name:
Its:
Exhibit 31.1
Rule 13a-14(a)/15d-14(a) Certification of Principal Executive Officer
I, John C. Hellmann, certify that:
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1.
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I have reviewed this Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2014
, of Genesee & Wyoming Inc. (the "registrant");
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
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4.
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The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
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a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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c)
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Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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d)
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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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5.
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The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
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a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
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b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date:
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August 6, 2014
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/s/ JOHN C. HELLMANN
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John C. Hellmann,
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President and Chief Executive Officer
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Exhibit 31.2
Rule 13a-14(a)/15d-14(a) Certification of Principal Financial Officer
I, Timothy J. Gallagher, certify that:
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1.
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I have reviewed this Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2014
, of Genesee & Wyoming Inc. (the "registrant");
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
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4.
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The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
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a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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c)
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Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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d)
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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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5.
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The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
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a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
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b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date:
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August 6, 2014
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/s/ TIMOTHY J. GALLAGHER
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Timothy J. Gallagher,
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Chief Financial Officer
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Exhibit 32.1
Section 1350 Certification
Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (“Section 906”), John C. Hellmann and Timothy J. Gallagher, President and Chief Executive Officer and Chief Financial Officer, respectively, of Genesee & Wyoming Inc., certify that (i) the Quarterly Report on Form 10-Q for the three months ended
June 30, 2014
, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and (ii) the information contained in such report fairly presents, in all material respects, the financial condition and results of operations of Genesee & Wyoming Inc.
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/s/ JOHN C. HELLMANN
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John C. Hellmann
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President and Chief Executive Officer
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Date:
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August 6, 2014
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/s/ TIMOTHY J. GALLAGHER
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Timothy J. Gallagher
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Chief Financial Officer
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Date:
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August 6, 2014
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