THE SECURITIES WE MAY OFFER
We may offer shares of our common stock or preferred stock, various series of debt securities, rightsand/or warrants to you by referring youpurchase any of such securities, either individually or in units, in one or more offerings, with a total value of up to those documents. The information incorporated by reference is an important part of$300,000,000 from time to time under this prospectus at prices and informationon terms to be determined by market conditions at the time of any offering. We may also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock, or common stock, preferred stock or debt securities upon the exercise of warrants or rights. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that we file later withwill describe the SEC will automatically updatespecific amounts, prices and supersedeother important terms of the information contained in this prospectus. We are incorporating by referencesecurities including, to the following documents.extent applicable:
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| | • | Our Annual Report on Form 10-K for the year ended August 31, 2005, filed with the SEC on November 4, 2005;designation or classification; |
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| | • | Our Quarterly Report on Form 10-Q for the quarter ended November 30, 2005, filed with the SEC on January 5, 2006;aggregate principal amount or aggregate offering price; |
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| | • | Our Quarterly Report on Form 10-Q for the quarter ended February 28, 2006, filed with the SEC on April 5, 2006;maturity; |
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| | • | Our Quarterly Report on Form 10-Q for the quarter ended May 31, 2006, filed with the SEC on June 29, 2006;original issue discount; |
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| | • | Our Current Report on Form 8-K filed with the SEC on November 10, 2005;rates and times of payment of interest or dividends; |
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| | • | Our Current Report on Form 8-K/ A filed with the SEC on November 16, 2005;redemption, conversion, exercise, exchange or sinking fund terms; |
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| | • | Our Current Report on Form 8-K filed with the SEC on December 1, 2005;ranking; |
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| | • | Our Current Report on Form 8-K filed with the SEC on January 12, 2006;restrictive covenants; |
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| | • | Our Current Report on Form 8-K filed with the SEC on January 26, 2006;voting or other rights; |
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| | • | Our Current Report on Form 8-K filed with the SEC on March 2, 2006 (SEC Accession No. 0000950124-06-000942);events of default; |
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| | • | Our Current Reportrestriction on Form 8-K filed with the SEC on March 2, 2006 (SEC Accession No. 0000950124-06-000944);transfer, sale or other assignment; |
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| | • | Our Current Report on Form 8-K filed with the SEC on April 13, 2006;security and subordination; |
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| | • | Our Current Report on Form 8-K filed with the SEC on May 12, 2006;terms of modification; |
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| | • | Our Current Report on Form 8-K filed with the SEC on May 15, 2006; |
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| • | Our Current Report on Form 8-K filed with the SEC on May 18, 2006; |
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| • | Our Current Report on Form 8-K filed with the SEC on May 25, 2006;conversion prices; and |
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| | • | All documents filed by us with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to the completion of the offering made pursuant to this prospectus.important United States federal income tax considerations. |
Any statement
The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add or update information contained in a document incorporated by reference in this prospectus shall be deemed to be modified or superseded for the purposes of this prospectus to the extent that a statement contained in this
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prospectus or in any other subsequently filed documentdocuments we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security that is also incorporated by referencenot registered and described in this prospectus modifiesat the time of the effectiveness of the registration statement of which this prospectus is a part.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We may sell the securities directly to investors or supersedes such statement. Any such statement so modifiedto or superseded shall not be deemed, except as so modifiedthrough agents, underwriters or superseded,dealers. We, and our agents or underwriters, reserve the right to constitute aaccept or reject all or part of this prospectus. Information thatany proposed purchase of securities. If we file with the SEC after the date of this prospectusdo offer securities to or through agents or underwriters, we will automatically modify and supersede the information included or incorporated by reference in this prospectus to the extent that the subsequently filed information modifies or supersedes the existing information.
We will provide without charge, upon written or oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus, other than exhibits to such documents unless such exhibits are specifically incorporated by reference in such documents. You may request a copy of these filings at the following address and telephone:
The Greenbrier Companies, Inc.
One Centerpointe Drive, Suite 200
Lake Oswego, Oregon 97035
Attention: Investor Relations
Telephone: (503) 684-7000
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PROSPECTUS SUMMARY
This summary highlights selected information contained in or incorporated by reference into this prospectus. This summary does not contain all of the information that may be important to you. We urge you to read carefully this entire prospectus, all documents incorporated by reference, including the financial statements and the notes to the financial statements, and the “Risk Factors” section. Unless the context requires otherwise, references in this prospectus to “we,” “us” and “our” refer to The Greenbrier Companies, Inc. and its subsidiaries.
Our Business
We are one of the leading designers, manufacturers and marketers of railroad freight car equipment in North America and Europe and a leading provider of leasing and other services to the railroad and related transportation industries in North America. Our mission is to deliver complete freight car solutions to our customers through a comprehensive set of high quality freight car products and related services.
In North America, we operate an integrated business model that combines freight car manufacturing, repair and refurbishment, leasing and fleet management services to provide customers with a comprehensive set of freight car solutions. This model allows us to exploit synergies between our various business activities and to generate enhanced returns by providing creative solutions to a customer’s freight car needs, while capturing profits at multiple points during the transaction.
For the years ended August 31, 2005 and 2004, we generated total revenue of $1.0 billion and $729.5 million and earnings from continuing operations of $29.8 million and $20.0 million, respectively. For the nine months ended May 31, 2006 and 2005, we generated revenue of $688.7 million and $759.0 million and earnings from continuing operations of $27.3 million and $19.2 million, respectively.
Through our integrated business model, we offer our customers the following products and services:
Railcar Manufacturing
We are the leading North American manufacturer of intermodal railcars with an average market share of 63% over the five years ended December 31, 2005. In addition to our strength in intermodal railcars, we build a broad array of other railcar types in North America and have demonstrated an ability to capture high market sharesinclude in the car types we build. We have commanded an average market share of 41% in flat cars and 27% in boxcars over the five years ended December 31, 2005.applicable prospectus supplement:
Our European manufacturing operation produces a variety of railcar types, including a comprehensive line of pressurized tank cars, non-pressurized tank cars, flat cars, coil cars, coal cars, gondolas, sliding wall cars and rolling highway cars. Although no formal statistics are available for the European market, we believe we are the second largest new freight car manufacturer, with an estimated 20% market share.
Railcar deliveries for the nine months ended May 31, 2006 were approximately 8,200 units, compared to 9,900 units for the nine months ended May 31, 2005. Our new railcar manufacturing backlog stands at approximately 16,900 units valued at approximately $1.14 billion at May 31, 2006. This backlog includes approximately 13,000 units that will be delivered to a customer over a five-year period, with approximately 7,700 units that are scheduled for delivery after 2007 being subject to our fulfillment of certain competitive conditions.
Railcar Repair and Refurbishing
We believe we operate one of the largest repair and refurbishment networks in North America with 17 facilities nationwide. Our network of railcar repair and maintenance shops competes in three primary markets: heavy railcar repair and refurbishment, routine railcar maintenance, and railcar wheel and axle servicing.
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Marine Vessel Fabrication
We fabricate a variety of marine barges, including conventional deck barges, double-hull tank barges, railcar/deck barges, barges for aggregates and ocean-going dump barges.
Railcar Leasing and Services
Our leasing and services business owns approximately 9,000 railcars and provides a comprehensive range of fleet management services for approximately 135,000 additional railcars owned by railroads, other leasing companies and shippers. We also originate leases with railroads and shippers and may subsequently sell a portion of these leases to financial institutions to which we then provide management services. Our fleet management services include revenue collection, maintenance management, administration of car hire receivables and payables, remarketing and other services.
Attractive Industry Market Trends
Our largest business is the production of new railcars for North America. Demand for new railcars is strong and deliveries are projected to average over 61,000 railcars per year from 2006 through 2010, according to Global Insight. An average of almost 40,000 railcars was delivered per year from 2001 through 2005, according to data from Global Insight and the Railway Supply Institute. Industry backlog was 85,692 railcars as of June 30, 2006, according to the Railway Supply Institute. We believe the key trends affecting demand for new railcars in North America are:
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| | • | Long-term demand for new railcars is supported by continued growth in demand for rail freight that offers cost efficiencies when used over long distances;the names of those agents or underwriters; |
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| | • | Intermodal loadings will continueapplicable fees, discounts and commissions to grow at a faster pace than overall freight car loadings duebe paid to increased international trade and growth in domestic containerization;them; |
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| | • | Long-term replacement demand for railcars is underpinned by an aging fleet;details regarding over-allotment options, if any; and |
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| | • | Railroads are shifting ownership of railcarsthe net proceeds to shippers and leasing companies and are outsourcing services.us. |
Leading market positions in intermodal and non-intermodal railcars.
We are the leading manufacturer of intermodal railcars in North America. In addition, we are one of the leading manufacturers of non-intermodal freight cars with an extensive portfolio of proven product designs. We currently have strong competitive positions in flat cars, boxcars and covered hopper cars in North America, and we believe we also hold a leading market position in the manufacturing of railcars in Europe.
Integrated business model providing competitive advantage.
In North America, we operate an integrated business model that combines freight car manufacturing, repair and refurbishment, leasing and fleet management services to provide customers with a comprehensive set of freight car solutions. We believe that the quality of our products, in conjunction with our marketing and lease origination capabilities, enhances demand for our products. We can also take advantage of opportunities, especially during economic downturns, by adding new and used railcars to our own lease fleet at attractive asset valuations.
Outstanding product quality, on-time delivery and product reliability.
We are the only manufacturer of new railcars in North America to have earned the prestigious “TTX Excellent Supplier” award every year since it was introduced 15 years ago. Each of our wheel shops servicing
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TTX Company
Common Stock. We may issue shares of our common stock from time to time. The holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of shareholders and do not have cumulative voting rights. Subject to preferences that may be applicable to any outstanding shares of preferred stock, the holders of common stock are entitled to receive ratably only those dividends as may be declared by our board of directors out of legally available funds. Upon our liquidation, dissolution or winding up, holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences of any outstanding shares of preferred stock.
Preferred Stock. We may issue shares of our preferred stock from time to time, in one or more series. Under our certificate of incorporation there are 25,000,000 shares of preferred stock authorized. Our board of directors has earned the award every year for 14 years. We believe our customers value our qualityauthority, without further action by shareholders, to designate the shares of preferred stock in one or more series and serviceto fix the rights, preferences, privileges, qualifications and have demonstrated a willingnessrestrictions granted to make purchasing decisions based in part on these factors.
Track recordor imposed upon the preferred stock, including dividend rights, conversion rights, voting rights, rights and terms of product innovation.
redemption, liquidation preference and sinking fund terms, any or all of which may be greater than the rights of the common stock. We have been a leading innovatornot issued any preferred stock, but in connection with stockholder rights agreement, have designated 200,000 shares of preferred stock as Series A participating preferred stock.
If we sell any series of preferred stock under this prospectus, we will fix the designations, powers, preferences and rights of such series of preferred stock, as well as the qualifications, limitations or restrictions thereon, in the freight car industry for over two decades, as evidenced by our numerous innovations in both intermodal and non-intermodal railcar designs. We devote substantial effortcertificate of designation relating to developing and testing freight cars that improve the operating economics of rail transportseries. Convertible preferred stock will be convertible into or exchangeable for our customers.
Flexible supply chain and low-cost manufacturing network.
Our networkcommon stock or our other securities at predetermined conversion rates. We may prescribe that conversion of domestic and foreign sourcing agreements provides ussuch securities shall be mandatory or at your option. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with dependable access to low-cost parts, sub-assemblies, castings and fabrications. Our supply chain includes a numberthe SEC, the form of important relationshipsany certificate of designation that provide us with multiple cost competitive sourcing options. In addition, we believe our usedescribes the terms of outsourced sub-assemblies and fabricated components allows us to maintain higher levelsthe series of output at our manufacturing plants.
We are the only builder of new railcars serving the North American market with production facilities in all three NAFTA countries, which allows us to allocate production among our facilities after taking into account the costs of production and capacity at each facility.
Seasoned management team and experienced workforce.
Our senior management team is highly experienced with an average of approximately 24 years experience in the railcar manufacturing and leasing industries. Supervisors in our manufacturing operations have an average of approximately 25 years of railcar manufacturing experience. We believe our management and workforce have the experience and knowledge to successfully grow our business by leveraging the existing business platform and by identifying and pursuing new growth opportunities.
Our Strategy
Leverage our integrated business model to deliver superior returns.
We intend to continue to leverage our unique combination of integrated railcar manufacturing, repair, refurbishment, leasing and management services businesses to increase the volume of business transacted with our customers. Through our extensive product and comprehensive service offerings, we believepreferred stock we are well-positioned to capitalize on changing industry trends, reduce our exposure to any single product line or customer and better serveoffering before the diverse needs of our customers in any economic environment.
Maintain our leadership in intermodal freight cars.
We intend to maintain our leadership position in the North American intermodal marketplace. Our double-stack units currently constitute approximately 60%issuance of the entire installed baserelated series of double-stack units in the North American fleet.preferred stock. We believe we have the broadest intermodal product portfolio and intend to continue our innovative design efforts to support our leadership position.
Build on our strong market position in non-intermodal cars.
We also intend to build on our historically strong market position in certain non-intermodal railcars. We expect to continue to develop and introduce new generations of flat cars including center partitions, bulkhead flatcars, flatcars for automotive transportation and solid waste service flatcars, boxcars, covered hopper cars and other conventional railcars through new designs and product offerings with load capacities and configurations designed to improve operating economics of rail transport for our customers.
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Expand our leasing and services business.
We intend to accelerate the growth of our leasing and services business. We have demonstrated an ability to originate attractive lease transactions for both used and new railcars produced by us and other manufacturers. Our management services business offers a broad range of services that complement our lease origination activities. Our objective is to become one of the leading providers of these services in North America and to take advantage of economies of scale as our leasing business grows.
Reduce manufacturing costs while maintaining our reputation for quality.
We intend to continue to develop our domestic and international supply chain to reduce our manufacturing costs and selectively expand our manufacturing capacity through investment in existing facilities or through the addition of new capacity. We intend to maintain our focus on product quality, on-time delivery and product reliability through the application of “Total Quality” processes. Our goal is to improve our quality, cost competitiveness and manufacturing margins through the application of “Lean Manufacturing” practices.
Pursue opportunities to supplement growth.
We believe that there are opportunities within the railcar industry for us to expand our product portfolio, add manufacturing capacity, grow our fleet of leased railcars, enhance our global supply chain and add to our repair and refurbishment network. We also believe there are opportunities to grow our marine vessel business. We will continue to identify and pursue strategic transactions that create value for our shareholders and offer returns in excess of our cost of capital.
Exploit international growth opportunities in core railcar manufacturing business.
The European railcar fleet is old and the replacement rate is below required levels to maintain fleet efficiency. We believe our European operations are well-positioned to capitalize on any increased demand due to our reputation as a high-quality manufacturer with an extensive portfolio of designs, a modernized facility, favorable geographic location and access to low-cost labor.
Our strategic alliance with Zhuzhou Rolling Stock Works in China includes a collaboration agreement for the co-operative development of global commercial opportunities combining the technology, engineering and designs of both companies in the North American, European and Chinese markets.
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The Notes
The following summary contains basic information about the notes. It may not contain all the information that is important to you. For a more complete understanding of the notes, we encourageurge you to read this entirethe applicable prospectus andsupplement (and any free writing prospectus that we may authorize to be provided to you) related to the documentsseries of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt Securities. We may issue debt securities from time to which we have referred you.
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Issuer | | The Greenbrier Companies, Inc. |
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Securities Offered | | $100.0 million aggregate principal amount of 2.375% Convertible Senior Notes due 2026time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt and the common stock issuable upon conversion of the notes. |
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Maturity Date | | May 15, 2026, unless earlier repurchased, redeemed, or converted. |
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Subsidiary Guarantees | | The notes are jointly and severally guaranteed on a senior unsecured basis by all of our existing and future restricted material domestic subsidiaries. The aggregate revenue, Adjusted EBITDA and assets for and as of the nine months ended May 31, 2006 of our subsidiaries that will not guarantee the notes represented approximately 26.1%, 10.5% and 6.3%, respectively, of our total revenue, Adjusted EBITDA and assets for and as of the nine months ended May 31, 2006. |
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Ranking | | The notes and the related subsidiary guarantees rank: |
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| | • Equally in right of payment with all of our and the guarantors’ existing and future unsubordinated unsecured indebtedness, including trade payables and our 83/8% senior notes; |
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| | • Effectively junior in right of payment to all of our and the guarantors’ existing and future secured indebtedness, including any borrowings under our and their credit facilities, to the extent of the assets securing such indebtedness; |
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| | • Effectively junior to all of the liabilities of our subsidiaries that have not guaranteed the notes; and |
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| | • Senior in right of payment to any future subordinated indebtedness of ours and the guarantors. |
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| | At May 31, 2006, the notes and the subsidiary guarantees ranked junior to: |
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| | • $12.6 million of secured indebtedness of entities guaranteeing the notes; and |
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| | • $138.4 million of liabilities, including trade payables but excluding intercompany obligations, of our non-guarantor subsidiaries. |
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Interest | | The notes bear interest at an annual rate of 2.375% from May 22, 2006, or from the most recent date to which interest has been paid or provided for, until, but not including, May 15, 2026. Interest (including contingent interest and additional interest, if any) will be payable semi-annually in arrears on May 15 and November 15, beginning November 15, 2006, of each year to holders of record at the close of business on the May 1 or November 1 immediately preceding such interest payment date. |
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| | Interest generally will be computed on the basis of a360-day year comprised of twelve30-day months. |
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Contingent Interest | | We also will pay contingent interest to holders of the notes during any six-month period from May 15 to November 14, and from November 15 to May 14, commencing with the six-month period beginning on May 15, 2013, if the trading price of a note for each of the five trading days ending on the third trading day immediately preceding the first day of the relevant six-month period equals 120% or more of the principal amount of the note. The amount of the contingent interest payable per note with respect to any six-month period will be equal to 0.375% per annum of the average trading price of such note for the five trading days referred to above. |
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Conversion Rights | | The notes may be converted by the holder into cash and shares, if any, of our common stock (as described below), initially at a conversion rate of 20.8125 shares per $1,000 principal amount of notes (equal to an initial conversion price of approximately $48.05 per share), subject to adjustment in certain events, under the following circumstances: |
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| | • During any calendar quarter commencing after June 30, 2006, if the last reported sale price of our common stock for at least 20 trading days in the period of 30 consecutive trading days ending on the last trading day of the preceding calendar quarter is greater than or equal to 130% of the applicable conversion price on such last trading day; |
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| | • During the five consecutive business-day period following any five consecutive trading-day period in which the average trading price for the notes was less than 98% of the average of the closing sale price of our common stock during such five trading-day period multiplied by the then-current conversion rate; |
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| | • On or after May 15, 2021; |
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| | • If we have called the notes for redemption, until the close of business on the business day prior to the redemption date; or |
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| | • Upon the occurrence of specified corporate transactions. |
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| | As described under “Description of Notes — Conversion Rate Adjustments,” the conversion rate may be adjusted upon the occurrence of certain events, including for any quarterly cash dividend that exceeds $0.08 per share of common stock, but will not be adjusted for accrued and unpaid interest. By delivering to the holder cash and shares of our common stock, if any, we will satisfy our obligations with respect to the notes subject to the conversion. |
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| | Upon any conversion, you will not receive any cash payment representing accrued and unpaid interest (including contingent interest and additional interest, if any), except in certain limited circumstances. Instead, interest will be deemed paid by the cash and shares, if any, of common stock issued to you upon |
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| | conversion. Notes called for redemption may be surrendered for conversion prior to 5:00 p.m., New York City time, on the second business trading day immediately preceding the redemption date. |
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Conversion Settlement | | Upon any conversion, we will deliver cash and shares of our common stock, if any, in an amount equal to the daily settlement amounts during the 30 trading-day period commencing after the third trading day following the date the notes are tendered for conversion. |
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| | The daily settlement amount will consist of: |
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| | • Cash equal to the lesser of (i) $33.3333 and (ii) the “daily conversion value,” which is1/30th of the product of (A) the applicable conversion rate and (B) the volume weighted average price per share of our common stock for such day; and |
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| | • To the extent the daily conversion value exceeds $33.3333, a number of shares of our common stock equal to (i) the difference between the daily conversion value and $33.3333, divided by (ii) the volume weighted average price of our common stock. |
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| | We may elect to pay cash in lieu of all or a portion of the shares of our common stock, if any, deliverable as described in the preceding paragraph. |
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| | See “Description of Notes — Payment Upon Conversion.” |
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Adjustment to Conversion Rate Upon Certain Corporate Transactions | | Prior to May 15, 2013, as described in “Description of Notes — Adjustment to Conversion Rate Upon Certain Corporate Transactions,” if and only to the extent a holder elects to convert its notes in connection with a “make-whole transaction,” we will increase the conversion rate for the notes surrendered for conversion by a number of additional shares, based on the effective date of and the price paid per share of our common stock in such fundamental change. |
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| | If holders of our common stock receive only cash in such fundamental change transaction, the stock price will be the cash amount paid per share. Otherwise, the stock price will be the average of the closing sale prices of our common stock on the five trading days prior to but not including the effective date of such fundamental change transaction. |
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Conversion After a Public Acquirer Change of Control | | In the event of a public acquirer change of control, as described in “Description of Notes — Conversion Rights — Adjustment to Conversion Rate Upon Certain Corporate Transactions — Conversion After a Public Acquirer Change of Control,” we may, in lieu of issuing additional shares upon conversion, elect to adjust the conversion rate and the related conversion obligation such that from and after the effective time of such public acquirer change of control, holders of notes will be entitled to convert their notes (subject to satisfaction of the certain conditions) into cash and, to the extent the conversion value exceeds the principal amount of |
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| | the notes converted, shares of the public acquirer’s common stock, and the conversion rate in effect immediately before the public acquirer change of control will be adjusted by multiplying it by a fraction: |
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| | • The numerator of which will be: |
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| | • in the case of a share exchange, consolidation, merger or binding share exchange pursuant to which our common stock is converted into cash, securities or other property, the average value of all cash and any other consideration as determined by our board of directors paid or payable per share of common stock, or |
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| | • in the case of any other public acquirer change of control, the average of the closing sale prices of our common stock for the five consecutive trading days prior to but excluding the effective date of such public acquirer change of control, and |
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| | • The denominator of which will be the average of the closing sale prices of the public acquirer common stock for the five consecutive trading days commencing on the trading day next succeeding the effective date of such public acquirer change of control. |
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Optional Redemption | | On or after May 15, 2013, we may redeem for cash all or a portion of the notes at a redemption price of 100% of the principal amount of the notes to be redeemed plus accrued and unpaid interest (including contingent interest and additional interest, if any) to, but not including, the redemption date. |
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Purchase of Notes at a Holder’s Option | | Holders have the right to require us to purchase all or a portion of their notes for cash on May 15, 2013, 2016 and 2021, each of which we refer to as a “purchase date.” In each case, upon at least five business days’ prior notice we will pay a purchase price equal to 100% of the principal amount of the notes plus accrued and unpaid interest (including contingent interest and additional interest, if any) to but not including the purchase date. |
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Purchase of Notes at a Holder’s Option Upon a Fundamental Change | | Upon the occurrence of a fundamental change, and before the maturity or redemption of the notes, holders have the right to require us to purchase all or a portion of their notes for cash at a purchase price equal to 100% of the principal amount plus accrued and unpaid interest (including contingent interest and additional interest, if any) to but not including, the fundamental change purchase date. |
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Sinking Fund | | None. |
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Registration Rights | | We and the guarantors agreed to use our reasonable best efforts to file with the SEC within 90 calendar days after the original issuance of the notes, and to use our reasonable best efforts to cause to become effective within 180 calendar days after the original issuance of the notes, a shelf registration statement, of which this prospectus is a part, with respect to the resale of the |
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| | notes and the common stock issuable upon conversion of the notes. See “Description of Notes — Registration Rights.” |
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| | We and the guarantors have agreed to: |
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| | • use their reasonable best efforts to keep each such shelf registration statement effective until the earliest of: |
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| | • two years after the last date of original issuance of any of the notes; |
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| | • the date on which the holders of the notes and common stock issuable upon conversion of the notes that are not affiliates of ours are able to sell all such securities immediately without restriction in accordance with the provisions of Rule 144(k) under the Securities Act; |
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| | • the date on which all of the notes and common stock issuable upon conversion of the notes have been registered under the shelf registration statement and disposed of in accordance with such shelf registration statement; and |
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| | • the date on which all of the notes and common stock issuable upon conversion of the notes have ceased to be outstanding (whether as a result of repurchase and cancellation, conversion or otherwise) or been disposed of in accordance with the shelf registration statement. |
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| | If we fail to maintain our obligation with respect to registration, we will be required to pay you additional interest on your notes as described in this prospectus. |
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Book-Entry Form | | The notes are issued in book-entry form and are represented by permanent global certificates deposited with, or on behalf of, The Depository Trust Company, or DTC, and registered in the name of a nominee of DTC. Beneficial interests in any of the notes are shown on and transfers may be effected only through, records maintained by DTC or its nominee and any such interest may not be exchanged for certificated securities, except in limited circumstances. |
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Absence of a Public Market | | There is currently no established market for the notes. We have not applied and do not intend to apply for the listing of the notes on any securities exchange. An active or liquid market may not develop for the notes. See “Plan of Distribution.” |
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Symbol for Common Stock | | Our common stock is listed on the New York Stock Exchange under the symbol “GBX.” |
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U.S. Federal Income Tax Considerations | | The notes and the common stock issuable upon conversion of the notes are subject to special and complex United States federal income tax rules. Holders are urged to consult their own tax advisors with respect to the federal, state, local and foreign tax consequences of purchasing, owning and disposing of the notes and common stock issuable upon conversion of the notes. See “United States Federal Income Tax Considerations.” |
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Use of Proceeds | | We will not receive any proceeds from the resale by the selling securityholders of the notes or the common stock issuable upon conversion of the notes. |
Risk Factors
Prospective investors are urged to read the information set forth under the caption “Risk Factors” in this prospectus for a discussion of certain risks associated with an investment in the notes.
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RISK FACTORS
You should carefully consider the risks described below and all other information contained in or incorporated by reference into this prospectus before purchasing the notes. There also may be additional risks and uncertainties not presently known to us,secured or risks that we currently consider immaterial, which could impair our operations or results. Ifunsecured. The senior debt securities will rank equally with any of these risks actually materialize, we may not be able to conduct our business as currently planned, and our financial condition and operating results could be seriously affected. In that case, you could lose all or part of your investment.
Risks Related to Our Business
During economic downturns, the cyclical nature of our business results in lower demand for our products and reduced revenue.
unsubordinated debt. The railcar business is cyclical. Overall economic conditions and the purchasing habits of railcar buyers have a significant effect upon our railcar manufacturing and leasing businesses due to the impact on demand for new, refurbished, used and leased products. As a result, during downturns, we operatesubordinated debt securities will rank equally with a lower level of backlog and may temporarily shut down production at some or all of our facilities. Economic conditionsother subordinated debts. Convertible debt securities will be convertible into or exchangeable for our common stock or our other securities at predetermined conversion rates. We may prescribe that result in higher interest rates increase the costconversion of new leasing arrangements, which could cause some of our leasing customers to lease fewer of our railcarssuch securities shall be mandatory or demand shorter terms. An economic downturn or increase in interest rates may reduce demand for railcars, resulting in lower sales volumes, lower prices, lower lease utilization rates and decreased profits or losses.
The failure of the railcar business to grow as forecasted by industry analysts may have an adverse effect on our financial condition and results of operations.at your option.
Our future success depends in part upon continued growth in the railcar industry. If growth rates do not materialize as forecasted by industry analysts, railcar replacement rates do not increase or industry demand for railcar products does not continue at current levels due to price increases or other reasons, our financial condition and results of operations could
The debt securities will be adversely affected.
We compete in a highly competitive and concentrated industry, and this competition or industry consolidation may adversely impact our financial results.
We face aggressive competition by a concentrated group of competitors in all geographic markets and each industry sector in which we operate. Some of these companies have significantly greater resources than we have. The effect of this competition could reduce our revenues and margins, limit our ability to grow, increase pricing pressure on our products, and otherwise affect our financial results. In addition, because of the concentrated nature of our competitors, customers and suppliers, we face a heightened risk that further consolidation in the industry among or between our competitors, customers and suppliers could adversely affect our revenues, cost of revenues and profitability.
We derive a significant amount of our revenue from a limited number of customers, the loss ofissued under one or more ofindentures, which could have an adverse effect on our business.
A significant portion of our revenue is generated from two major customers. In 2005, revenues from one of these customers, TTX Company, accounted for approximately 44% of our total revenues and for 48% of our manufacturing revenue. Revenues from another customer, Burlington Northern and Santa Fe Railway Company, accounted for less than 10% of our total revenues, but for approximately 31% of our leasing and services revenue in 2005. Although we have some long-term contractual relationships with our major customers, we cannot assure you that our customers will continue to use our products or services or that they will continue to do so at historical levels. In addition, due to our production schedule, any customer may account for a significantly higher percentage of our total manufacturing or leasing revenue in any given period. A reduction in the purchase or leasing of our products or a termination of our services by one or more of our major customers could have an adverse effect on our business and operating results.
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Fluctuations in the availability and price of steel and other raw materials could have an adverse effect on our ability to manufacture and sell our products on a cost-effective basis.
A significant portion of our business depends upon the adequate supply of steel at competitive pricesare contracts between us and a small number of suppliers provide a substantial amount of our requirements. The cost of steel and all other materials (including scrap metal) used in the production of our railcars represented over 70% of our direct manufacturing costs per railcar in 2005.
Our businesses depend upon the adequate supply of other raw materials, including castings and specialty components, at competitive prices. Although we believe we have multiple sources for these raw materials, the number of suppliers has generally declined while global demand has increased. We cannot assure you that we will continue to have access to suppliers of necessary components for manufacturing railcars. Our ability to meet demand for our products could be adversely affected by the loss of access to any of these suppliers, the inability to arrange alternative access to any materials, or suppliers limiting allocation of materials to us. In addition, raw material shortages and allocations may result in inefficient operations and an inventory build-up, which could negatively affect our working capital position.
If the price of steelnational banking association or other raw materials were to increase and we were unable to increase our selling prices or reduce operating costs to offset the price increases, our margins would be adversely affected. The loss of suppliers or their inability to meet our price, quality, quantity and delivery requirements could have an adverse effect on our ability to manufacture and sell our products on a cost-effective basis.
Our backlog may not be necessarily indicative of the level of our future revenues.
eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities. We have filed these indentures as exhibits to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
Guarantees. Our debt securities may be guaranteed by any of the Subsidiary Guarantors listed on this prospectus. The specific terms and provisions of each guarantee will be described our new railcar backlog, which isin the numberapplicable prospectus supplement.
Warrants. We may issue warrants for the purchase of railcars for whichcommon stock, preferred stock, debt securities or other securities in one or more series. We may issue warrants together with common stock, preferred stockand/or debt securities, and the warrants may be attached to or separate from these securities. In this prospectus, we have written orders from our customers in various periods, and estimated potential revenue attributablesummarized certain general features of the warrants. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the backlog. Although we believe backlog is an indicatorparticular series of our future revenues, our reported backlog may not be converted to sales in any particular periodwarrants being offered, as well as the complete warrant agreements and actual sales from such contracts may not equal our backlog estimates. As of May 31, 2006, our backlog included approximately 13,000 unitswarrant certificates that will be delivered to a customer over a five-year period, but approximately 7,700 units that are scheduled for delivery after 2007 are subject to our fulfillment of certain competitive conditions, which we may not be able to achieve. Therefore, our backlog may not necessarily be indicative ofcontain the level of our future revenues.
The timing of our lease remarketing and railcar sales may cause significant differences in our quarterly results and liquidity.
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We may build railcars in anticipation of a customer order or that are leased to a customer and ultimately sold to a third party. The difference in timing of production and sale of the railcars could cause a fluctuation in our quarterly results and liquidity. As a result, comparisons of our quarterly revenues, income and liquidity between quarterly periods within one year and between comparable periods in different years may not be meaningful and should not be relied upon as indicators of our future performance.
A change in our product mix, failure of our new products or technologies to achieve market acceptance, or introduction of products by our competitors could have an adverse effect on our profitability and competitive position.
We manufacture and repair a variety of railcars, and the demand for specific types of railcars varies from time to time. These shifts in demand may affect our margins and could have an adverse effect on our profitability.
We continue to introduce new railcar products and technologies. We cannot ensure that new products or technologies will achieve sustained market acceptance or that the railcars can be profitability manufactured and sold. In addition, new technologies, changes in product mix or the introduction of new railcars and product offerings by our competitors could render our products obsolete or less competitive. As a result, our ability to compete effectively could be harmed.
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terms of the warrants. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered.
We will evidence each series of warrants by warrant certificates that we will issue. Warrants may be issued under an applicable warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series of warrants being offered.
Rights.We may issue rights for the purchase of common stock, preferred stock, debt securities or other securities in one or more series. These rights may be unableissued independently or together with any other security offered hereby and may or may not be transferable by the stockholder receiving the rights in such offering. In this prospectus, we have summarized certain general features of the rights. We urge you, however, to remarket leased railcars on favorableread the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the particular series of rights being offered, as well as the complete rights agreements that contain the terms upon lease terminationof the rights. We will file as exhibits to the registration statement of which this prospectus is a part, or realizewill incorporate by reference from reports that we file with the expected residual values,SEC, the form of rights agreements that describes the terms of the rights we are offering, and any supplemental agreements, before the issuance of the related series of rights.
Units. We may issue, in one or more series, units consisting of common stock, preferred stock, debt securitiesand/or warrants for the purchase of common stock, preferred stockand/or debt securities in any combination. In this prospectus, we have summarized certain general features of the units. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of units being offered, as well as the complete unit agreement that contains the terms of the units. We will file as exhibits to the registration statement of which could reduce our revenuethis prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement and decrease our overall return.any supplemental agreements that describe the terms of the series of units it is offering before the issuance of the related series of units.
DESCRIPTION OF OUR CAPITAL STOCK
We re-lease or sell railcars we own upon the expiration of existing lease terms.
The total rental payments we receive under our operating leases do not fully amortize the acquisition costsfollowing description is a general summary of the leased equipment,terms of our common stock and preferred stock. The description below does not include all of the terms of the common stock and preferred stock and should be read together with our Articles of Incorporation, Bylaws, as amended, the rights agreement governing our stockholder rights plan, as amended, and our investor rights and restrictions agreement, copies of which exposes us to risks associated with remarketing the railcars. Our ability to remarket leased railcars profitably is dependent upon several factors, including, among others, market and industry conditions, cost of and demand for newer models, costs associatedhave been filed with the refurbishment of the railcars and interest rates. Our inability to re-lease or sell leased railcars on favorable terms could result in reduced revenues and decrease our overall return.SEC.
A reduction in negotiated or arbitrated car hire rates could reduce future car hire revenue.General
Under our Articles of Incorporation, we are authorized to issue 75,000,000 shares, of which 50,000,000 have been designated shares of common stock, without par value, and 25,000,000 have been designated shares of preferred stock, without par value. Further, in connection with the stockholders rights agreement described below, the board of directors has designated 200,000 shares of preferred stock as Series A significant portionparticipating preferred stock. As of April 6, 2010, 17,382,560 shares of common stock were issued and outstanding. We have not issued any shares of our leasingpreferred stock.
Common Stock
Holders of common stock are entitled to one vote per share on all matters to be voted upon by the shareholders. There are no cumulative voting rights. Holders of common stock have no preemptive or conversion rights and services revenue is derived from “car hire,” which is a fee that a railroad paysare entitled to receive ratable dividends when and if declared by the board of directors out of funds legally available for the usepayment of railcars owned by other railroadsdividends, subject to any preferential rights of any then-outstanding preferred stock. There are no redemption or third parties. Until 1992,sinking fund provisions applicable to common stock. Subject to the Interstate Commerce Commission directly regulated car hire rates by prescribing a formula for calculating these rates. The systemrights of government-prescribed rates has been superseded by a system known as deprescription, whereby railcar owners and users have the rightholders of any preferred stock, holders of common stock are entitled to negotiate car hire rates. If the railcar owner and railcar user cannot come to an agreement on a car hire rate, then either party has the right to call for arbitration, in which either the owner’s or user’s rate is selected by the arbitrator to be effective for a one-year period. Substantially all railcarsshare ratably in our fleet are subjectassets legally available for distribution to deprescription. There is a risk that car hire rates could be negotiated or arbitrated to lower levelsshareholders in the future. A reduction in car hire rates could reduce future car hire revenue and adversely affect our financial results.
Risks related to our operations outside of the United States could adversely impact our operating results.
Our operations outside of the United States are subject to the risks associated with cross-border business transactions and activities. Political, legal, trade or economic changes or instability could limit or curtail our foreign business activities and operations. Some foreign countries in which we operate have regulatory authorities that regulate railroad safety, railcar design and railcar component part design, performance and manufacturing. If we fail to obtain and maintain certificationsevent of our railcars and railcar parts within the various foreign countries where we operate, we may be unable to market and sell our railcars in those countries. In addition, unexpected changes in regulatory requirements, tariffs and other trade barriers, more stringent rules relating to laborliquidation, dissolution or the environment, adverse tax consequences and price exchange controls could limit operations and make the manufacture and distributionwinding up after payment of our products difficult. The uncertainty of the legal environment in these and other areas could limit our ability to enforce our rights effectively. Any international expansion or acquisition that we undertake could amplify these risks related to operating outside of the United States.
Fluctuations in foreign currency exchange rates may lead to increased costs and lower profitability.
Outside of the United States, we operate in Canada, Mexico, Germany and Poland, and ournon-U.S. businesses conduct their operations in local currencies and other regional currencies. We also source materials worldwide. Fluctuation in exchange rates may affect demandadequate provision for our products in foreign markets or our cost competitiveness and may adversely affect our profitability. Although we attempt to mitigate a portion of our exposure to changes in currency rates through currency rate hedges, similar financial instruments and other activities, these efforts cannot fully eliminate the risks associated with the foreign currencies. In addition, some of our borrowings are in foreign currency, giving rise to risk from fluctuations in exchange rates. A material or adverse change in exchange rates could result in significant deterioration of profits or in losses for us.all
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We have potential exposure to environmental liabilities, which may increase costs or have an adverse effectour known debts and liabilities. Our common stock is listed on results of operations.the New York Stock Exchange under the symbol “GBX.”
Preferred Stock
We are subject to extensive national, state, provincial
The board of directors may, without further action by the shareholders, issue preferred stock in one or more series and local environmental lawsfix the rights and regulations concerning, among other things, air emissions, water discharge, solidpreferences of the preferred stock, including voting rights, dividend rates, conversion rights, terms of redemption (including sinking fund provisions) and hazardous substances handling and disposal and employee health and safety. These laws and regulations are complex and frequently change. We may incur unexpected costs, penaltiesliquidation preferences. The issuance of preferred stock by action of the board of directors could adversely affect the voting power, dividend rights and other civil and criminal liability if we fail to comply with environmental laws. Werights of holders of common stock. Issuance of a series of preferred stock also may incur costscould, depending upon the terms of series, impede the completion of a merger, tender offer or liabilities related to off-site waste disposal or cleaning up soil or groundwater contamination at our properties. In addition, future environmental laws and regulations may require significant capital expenditures or changes to our operations.
Our Portland facility is located adjacent to a portion of the Willamette River that has been designated as a federal “National Priority List” or “Superfund” site due to sediment contamination. We, and more than 60 other parties, have received a “General Notice” of potential liability related to the Portland facility. The letter advised that we may be liable for the cost of investigation and remediation (which liability may be joint and several with other potential responsible parties) as well as natural resource damages resulting from the release of hazardous substances to the site. As a result of the above-described matters, we have incurred, and expect to incur in the future, costs associated with an EPA-mandated remedial investigation/feasibility study and the State of Oregon’s mandate to control groundwater discharges and the release of hazardous substances to the environment. Because this work is still underway, we are unable to determine the amount of our ultimate liability relating to these matters. However, based on the results of the pending investigations and future assessments of natural resource damages, we may be required to incur costs associated with additional phases of investigation or remedial action, and we may be liable for damages to natural resources. In addition, we may be required to perform periodic maintenance dredging in order to continue to launch vessels from our launch ways on the river, and the river’s classification as a Superfund site could result in some limitations on future dredging and launch activities. The outcome of these matters could have an adverse effect upon our business, results of operations, current cash flows and on our ability to realize value from a potential sale of the land.
The Internal Revenue Service has conducted an audit of our federal income tax returns for the years ended 1999 through 2002, which will affect tax deductions that we have previously taken.
The Internal Revenue Service has conducted an audit of our federal income tax returns for the years ended 1999 to 2002.takeover attempt. In connection with the audit,stockholders rights plan described below, the Internal Revenue Serviceboard has reviewed our decision to take a tax deduction in the amountdesignated 200,000 shares of $52.6 million on our 2002 federal tax return relating to European operations. Wepreferred stock as Series A participating preferred stock, without par value. None of these shares of preferred stock have been in settlement discussions withissued or are outstanding. The number of shares of Series A participating preferred stock may be increased or decreased by the staffboard without shareholder approval provided that the number of shares of Series A participating preferred stock is at least equal to the Internal Revenue Service and have reachednumber of shares outstanding plus the number of shares issuable upon exercise of outstanding rights, options or warrants or upon conversion of outstanding securities.
When the Series A participating preferred stock is issued, each holder of one one-hundredth of a tentative settlement regarding the amount and timingshare of the tax deductionsSeries A participating preferred stock will be entitled to one vote on all matters to be taken.voted upon by the shareholders. Except as otherwise provided, holders of Series A participating preferred stock and common stock will vote together as a single class. The net amount disallowed under this settlement along with accrued interest is $7.1 million pre-tax. The amount disallowed in 2002 remains deductible after 2005 if and when sufficient evidence existsSeries A participating preferred stock will rank junior to demonstrate no reasonable hopeall other series of recoveryour preferred stock as to the payment of any of the investment with respect to which the deduction was taken. As a result of the tentative settlement, we took a $3.0 millionafter-tax charge in the consolidated statement of operations in the third quarter ended May 31, 2006, which consisted of accrued interest of $0.8 million and taxes of $2.2 million. The settlement remains subject to final documentationdividends and the final approvaldistribution of the Internal Revenue Service. It is also subject, as required by law, to the approval of the Congressional Joint Committeeassets on Taxation. We do not expect Joint Committee review to be completed before the fall of 2006 at the earliest.
Our manufacturer’s warranties expose us to potentially significant claims.
We offer our customers limited warranties for many of our products. Accordingly, we may be subject to significant warranty claims in the future, such as multiple claims based on one defect repeated throughout our production processliquidation, dissolution or claims for which the cost of repairing the defective part is highly disproportionate to the original cost of the part. These types of warranty claims could result in costly product recalls, customers seeking monetary damages, significant repair costs and damagewinding up, but senior to our reputation.
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If warranty claims are not recoverable from third-party component manufacturers due to their poor financial condition or other reasons, we may be subject to warranty claims and other risks for using these materials on our railcars. We and onecommon stock. Such shares of our European customers have raised concerns regarding a component we installed on 372 railcars produced in Europe with an aggregate value of $20.0 million. The supplier of the component filed for the United Kingdom equivalent of a bankruptcy protection. Our customer has initiated arbitration proceedings against us seeking an unspecified amount of damages, alleging that the cars are defective, and we have counterclaimed based upon the terms of the contract with the customer. Given the financial condition of the supplier, our recourse against the supplier may be limited or of no value.
We may be liable for physical damage or product liability claims that exceed our insurance coverage.
The nature of our business subjects us to physical damage and product liability claims, especially in connection with the repair and manufacture of products that carry hazardous or volatile materials. We maintain reserves and liability insurance coverage at commercially reasonable levels compared to similarly sized heavy equipment manufacturers. However, an unusually large physical damage or product liability claim or a series of claims based on a failure repeated throughout our production process may exceed our insurance coverage or result in damage to our reputation.
Some of our employees belong to labor unions and strikes or work stoppage could adversely affect our operations.
We are a party to collective bargaining agreements with various labor unions in Canada and Poland, representing approximately 27% of our workforce, and the agreement with the labor union in Canada expires in October 2006. Disputes with regard to the terms of these agreements or our potential inability to negotiate acceptable contracts with these unions in the future could result in, among other things, strikes, work stoppages or other slowdowns by the affected workers. We cannot assure you that our relations with our workforce will remain positive or that union organizersSeries A participating preferred stock will not be successful in future attempts to organize at some of our other facilities. If our workers were to engage in a strike, work stoppage or other slowdown, or other employees were to become unionized or the terms and conditions in future labor agreements were renegotiated, we could experience a significant disruption of our operations and higher ongoing labor costs. In addition, we could face higher labor costs in the future as a result of severance or other charges associated with lay-offs, shutdowns or reductions in the size and scope of our operations.redeemable.
We depend on a third party to provide most of the labor services for our Mexico operations and if such third party fails to provide the labor, it could adversely effect our operations.Antitakeover Provisions
In Mexico, we depend on a third party to provide us with most of the labor services for our Mexico operations under a services agreement with a term of four years expiring on December 1, 2008, with two three-year options to renew. All of the labor provided is subject to collective bargaining agreements with the third party, over which we have no control. If the third party fails to provide us with the services required by our agreement for any reason, including labor stoppages or strikes or a sale of facilities owned by the third party, our operations could be adversely effected. In addition, we do not have significant experience in hiring labor in Mexico and, if required to provide our own labor, could face significantly higher labor costs, which also could have an adverse effect on our operations.
Our relationships with our alliance partners may not be successful, which could adversely affect our business.
In recent years, we have entered into several agreements with other companies to increase our sourcing alternatives, reduce costs, and pursue opportunities for growth through design improvements. We may seek to expand our relationships or enter into new agreements with other companies. If these relationships are not successful in the future, our manufacturing costs could increase, we could encounter production disruptions, or growth opportunities may not materialize, any of which could adversely affect our business.
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We may have difficulty integrating the operations of any companies that we acquire, which may adversely affect our results of operations.
The success of our acquisition strategy will depend upon our ability to successfully complete acquisitions and integrate any businesses that we acquire into our existing business. The integration of acquired business operations could disrupt our business by causing unforeseen operating difficulties, diverting management’s attention fromday-to-day operations and requiring significant financial resources that would otherwise be used for the ongoing development of our business. The difficulties of integration may be increased by the necessity of coordinating geographically dispersed organizations, integrating personnel with disparate business backgrounds and combining different corporate cultures. In addition, we may not be effective in retaining key employees or customers of the combined businesses. We may face integration issues pertaining to the internal controls and operational functions of the acquired companies and we also may not realize cost efficiencies or synergies that we anticipated when selecting our acquisition candidates. Any of these items could adversely affect our results of operations.
We may not be able to procure insurance on a cost-effective basis in the future.
The ability to insure our businesses, facilities and rail assets are important aspects of our ability to manage risk. As there is only one provider of this insurance to the railcar industry, there is no guarantee that such insurance will be available on a cost-effective basis in the future.
An adverse outcome in any pending or future litigation could negatively impact our business and results of operations.
We are a defendant of several pending cases in various jurisdictions. If we are unsuccessful in resolving these claims, our business and results of operations could be adversely affected. In addition, future claims that may arise relating to any pending or new matters could distract management’s attention from business operations and increase our legal and defense costs, which may also negatively impact our business and results of operations.
Our failure to comply with regulations imposed by federal and foreign agencies could negatively affect our financial results.
Our railcar operations are subject to extensive regulation by governmental regulatory and industry authorities and by federal and foreign agencies. These organizations establish rules and regulations for the railcar industry, including construction specifications and standards for the design and manufacture of railcars; mechanical, maintenance and related standards; and railroad safety. New regulatory rulings and regulations from these federal or foreign agencies may impact our financial results and the economic value of our assets. In addition, if we fail to comply with the requirements and regulations of these agencies, we could face sanctions and penalties that could negatively affect our financial results.
Our governing documents contain some provisions that may prevent or make more difficult an attempt to acquire us.
Our Articles of Incorporation and Bylaws, as currently in effect, contain some provisions that may be deemed to have antitakeover effects, including:the effect of delaying, deferring or preventing a change in control of our ownership or management. They provide for:
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| | • | a classified board of directors, with each class containing as nearly as possible one-third of the total number of members of the board of directors and the members of each class serving for staggered three-year terms; |
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| | • | a vote of at least 55% of our voting securities to amend some provisions of the Articles of Incorporation; |
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| | • | no less than 120 days’ advance notice with respect to nominations of directors or other matters to be voted on by shareholders other than by or at the direction of the board of directors; |
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| | • | removal of directors only with cause; and |
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| | • | the calling of special meetings of shareholders only by the president, a majority of the board of directors or the holders of not less than 25% of all votes entitled to be cast on the matters to be considered at such meeting. |
We also maintain a stockholder rights plan pursuant to which each shareholder has received a dividend distribution of one preferred stock purchase right per share of common stock owned. The stockholder rights plan and the other provisions discussed above may have antitakeover effects because they may delay, defer or prevent an unsolicited acquisition proposal that some, or a majority, or our shareholders might believe to be in their best interests or in which stockholders might receive a premium for their common stock over the then-prevailing market price.
Risks Related to the Notes and Our Common Stock
Our level of indebtedness could adversely affect our financial condition.
As of May 31, 2006, we had approximately $396.1 million of indebtedness, representing approximately 66% of our total capitalization, including $235 million principal amount of our 83/8% senior notes due 2015 and $100 million principal amount of these notes.
Our indebtedness level could have adverse consequences to us, including:
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| • | our ability to obtain additional financing for working capital, capital expenditures and strategic transactions may be reduced;meeting; |
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| | • | a substantial portionthe issuance of our cash flow from operations may have to be dedicated topreferred stock by the payment ofboard without further action by the principal of, and interest on, our indebtedness; |
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| • | our leverage may make us more vulnerable to economic downturns and may limit our ability to withstand competitive pressures; |
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| • | we may have a higher level of indebtedness than some of our competitors, which could put us at a competitive disadvantage and reduce our flexibility in planning for, or responding to, changing conditions in our industry, including increased competition or regulation;shareholders; and |
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| | • | our ability to refinance the indebtedness on favorable terms may be impaired. |
We cannot assure you that our business will generate sufficient cash flow from operations or that future borrowings will be available to us under our existing and future credit arrangements in an amount sufficient to enable us to make payments on our indebtedness, including the notes, or to fund our other liquidity needs.
Despite our level of indebtedness, we are able to incur more debt, which may intensify the risks associated with our increased leverage.
Our existing debt arrangements permit us, subject to certain conditions, to incur additional indebtedness. Certain of our revolving credit facilities were amended on April 10, 2006 to permit the issuance of the notes and to increase the permitted ratio of debt to total capitalization. As of May 31, 2006, we had the ability to borrow an additional $108.3 million. See “Description of Other Indebtedness.” Our existing indenture for our 83/8% senior notes and the indenture under which the notes were issued permit us to incur additional indebtedness. If we incur additional indebtedness, the risks associated with our increased leverage, including our ability to service our debt, could intensify.
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The notes and the guarantees are general unsecured unsubordinated obligations ranking equally with our and the guarantors’ other unsecured unsubordinated debt, but are effectively subordinated to all of our and the guarantors’ secured debt to the extent of the assets securing such debt.
In the event of our bankruptcy, liquidation or reorganization, or certain other events, our assets will be available to pay obligations on the notes only after all of our secured debt, to the extent of the value of the assets securing such debt, has been paid in full, and only then on an equal basis with other unsecured unsubordinated debt. Consequently, there may not be sufficient assets remaining to pay amounts due on any or all of the notes then outstanding. In addition, to the extent our assets cannot satisfy in full the secured indebtedness, the holders of the secured indebtedness would have a claim for any shortfall that would rank equally in right of payment with the notes.
The operating and financial restrictions imposed by our debt agreements, including our credit facilities, the indenture related to our 83/8% senior notes and the indenture relating to the notes, may limit our ability to finance operations and capital needs or engage in other business activities.
Our existing and future debt agreements may contain covenants that restrict our ability, among other things, to:
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| • | incur additional indebtedness (including guarantees); |
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| • | incur liens; |
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| • | dispose of assets; |
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| • | make certain acquisitions; |
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| • | pay dividends and make other restricted payments; |
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| • | enter into sale and leaseback transactions; |
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| • | make loans and investments; |
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| • | enter into new lines of business; and |
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| • | engage in transactions with affiliates. |
In addition, our credit facilities requires us to comply with specified financial ratios.
Our ability to comply with these covenants and requirements in the future may be affected by events beyond our control, including prevailing economic, financial and industry conditions. Our breach or failure to comply with any of these covenants could result in a default under our credit facilities, the indenture governing our 83/8% senior notes and the indenture governing the notes. If we default under our credit facilities, the lenders could cease to make further extensions of credit, cause all of our outstanding obligations under these credit facilities to become due and payable, require us to apply all of our available cash to repay the indebtedness under these credit facilities, prevent us from making debt service payments on, or cause an event of default under or acceleration of, any other indebtedness we owe and/or proceed against the collateral granted to them to secure repayment of those amounts. If a default under an indenture occurs, the holders of notes issued under that indenture could elect to declare such notes immediately due and payable. If our payment obligations in respect of our indebtedness are accelerated, we may not have sufficient assets to repay amounts due under our debt agreements, other debt securities then outstanding or the notes.
We are a holding company with no independent operations. Our ability to meet our obligations depends upon the performance of our subsidiaries and their ability to make distributions to us.
As a holding company, we are dependent on the earnings and cash flows of, and dividends, distributions, loans or advances from, our subsidiaries to generate the funds necessary to meet certain of our obligations, including the payment of principal, premium, if any, and interest on debt obligations, including the notes. Any payment of dividends, distributions, loans or advances to us by our subsidiaries could be subject to statutory restrictions on dividends or repatriation of earnings under applicable local law
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and monetary transfer restrictions in the jurisdictions in which our subsidiaries operate. In addition, many of our subsidiaries are parties to credit facilities that contain restrictions on the timing and amount of any payment of dividends, distributions, loans or advances that our subsidiaries may make to us. Under certain circumstances, some or all of our subsidiaries may be prohibited from making any such payments.
We may not be able to pay the settlement of any conversion of the notes by the holder, purchase the notes at the option of the holder or upon a fundamental change, or pay the holder upon the redemption or maturity of the notes, each as required by the indenture governing the notes.
The notes may be converted by the holders into cash and shares, if any, of our common stock as described under “Description of Notes — Payment Upon Conversion.” On May 15, 2013, May 15, 2016, and May 15, 2021, holders of the notes may require us to purchase all or any portion of their notes for cash as described under “Description of Notes — Purchase of Notes at a Holder’s Option,” and may also require us to purchase all or any portion of their notes in cash upon a fundamental change as described under “Description of Notes — Purchase of Notes at a Holder’s Option Upon a Fundamental Change.” We may also redeem for cash all or a portion of the notes at any time on or after May 15, 2013 as described under “Description of Notes — Optional Redemption by Greenbrier.” Unless earlier converted, purchased, or redeemed, the notes will be due on May 15, 2026, payable by us in cash as described under “Description of Notes — Payments on the Notes.” However, our ability to purchase or make payment upon the conversion, redemption or maturity of the notes as described above is restricted by the terms of our credit facilities, our ability to make restricted payments, which include any repurchase of notes at a holder’s option and may include repayment of the notes at maturity, to amounts equal to up to 50% of our net income from January 1, 2005, and may be restricted by our existing credit agreement, the loans under which have a maturity date of June 29, 2010. Furthermore, we may not have sufficient funds to redeem, purchase, pay the cash portion of the settlement of any conversion of, or make payment in cash upon maturity of, the notes. Our failure to redeem, purchase, pay the settlement amount of any conversion of, or make payment upon maturity of the notes at a time when redemption, purchase or payment is required by the indenture would constitute a default under the indenture and could lead to a default under existing and future agreements governing our indebtedness, including our existing credit facilities. If, due to a default, the repayment of related indebtedness were to be accelerated after any applicable notice or grace periods, we may not have sufficient funds to repay such indebtedness and the notes.
We cannot assure you that an active trading market will develop for the notes.
There is no established trading market for the notes and we do not intend to list the notes on any national securities exchange. We cannot assure you as to the development or liquidity of any markets for the notes, the ability of holders of the notes to sell their notes or the price at which holders would be able to sell their notes. If any active public market does not develop, the market price and liquidity of the notes may be adversely affected. We cannot assure you that registration of the notes under federal or state securities law will positively affect the trading market for the notes.
If you are able to resell your notes, many other factors may affect the price you receive, which may be lower than you believe to be appropriate.
If you are able to resell your notes, the price you receive will depend on many other factors that may vary over time, including: the number of potential buyers; the level of liquidity of the notes; our financial performance; the amount of indebtedness we have outstanding; the level, direction and volatility of market interest rates generally; the market for similar securities; the market price of our common stock; the redemption and repayment features of the notes to be sold; and the time remaining to the maturity of the notes. As a result of these factors, you may only be able to sell your notes at prices below those you believe to be appropriate, including prices below the price you paid for them.
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Not all of our subsidiaries guarantee our obligations under the notes, and the assets of the non-guarantor subsidiaries may not be available to make payments on the notes.
Our present material domestic subsidiaries guarantee the notes and our future material domestic subsidiaries also will guarantee the notes, except material domestic subsidiaries that may be designated as unrestricted with respect to the indenture. Our present foreign subsidiaries are not, and our future foreign subsidiaries will not be, guarantors of the notes. Payments on the notes are required to be made only by us and the guarantors. The historical consolidated financial statements incorporated by reference into this prospectus are presented on a consolidated basis, including our domestic and foreign subsidiaries. The aggregate revenue, Adjusted EBITDA and assets for and as of the nine months ended May 31, 2006 of our subsidiaries that will not guarantee the notes represented approximately 26.1%, 10.5% and 6.3%, respectively, of our total revenue, Adjusted EBITDA and assets for and as of the nine months ended May 31, 2006. The aggregate revenue, Adjusted EBITDA and assets for and as of the year ended August 31, 2005 of our subsidiaries that do not and will not guarantee the notes represented approximately 31.8%, 15.4% and 7.5%, respectively, of our total revenue, Adjusted EBITDA and assets for and as of the year ended August 31, 2005.
In the event of a bankruptcy, liquidation or reorganization of any of the non-guarantor subsidiaries, holders of their indebtedness, including their trade creditors, will generally be entitled to payment of their claims from the assets of those subsidiaries before any assets are made available for distribution to us. As a result, the notes are effectively subordinated to the indebtedness of our non-guarantor subsidiaries.
Upon conversion of the notes, we will pay cash and, depending upon the price of shares of our common stock at that time, we may issue shares of our common stock, such that you might not receive shares of our common stock upon conversion of the notes.
We will satisfy our conversion obligation to holders generally by paying cash and shares (if any) having a conversion value based upon volume weighted average prices of our common stock during a30-day trading period following the surrender of notes for conversion. We will deliver cash and may issue shares of our common stock in settlement of our conversion obligations if the conversion value so calculated exceeds a computed dollar amount as described in “Description of Notes — Conversion Rights — Payment Upon Conversion.” Accordingly, upon conversion of a note, holders might not receive any shares of our common stock. In addition, because the settlement is based on the volume weighted average price of our common stock during a30-day trading period following the surrender of notes for conversion, settlement upon conversion of the notes will be delayed for approximately 36 trading days following our receipt of the holder’s conversion notice. See “Description of Notes — Conversion Rights — Payment Upon Conversion.” Upon conversion of the notes, you may receive proceeds in an amount that is less than expected because the value of our common stock may decline (or may not appreciate as much as you may expect) between the day that you exercise your conversion right and the day the conversion value of your notes is determined.
Some significant restructuring transactions may not constitute a fundamental change, in which case we would not be obligated to offer to repurchase the notes.
The fundamental change provisions in the indenture will afford protection to holders of notes only in the event of certain transactions. For example, certain transactions, such as leveraged recapitalizations, refinancings, restructurings or acquisitions initiated by us, would not constitute a fundamental change requiring us to repurchase the notes. Certain other transactions may not constitute a fundamental change because they do not involve a change in voting power or beneficial ownership of the magnitude required under the definition of fundamental change. Further, the definition of fundamental change includes the conveyance, transfer, sale, lease or disposition of “all or substantially all” of our assets. There is no precise, established definition of “substantially all” under applicable law. In the event of any such transaction, holders of the notes would not have the right to require us to repurchase the notes, even though each of these transactions could increase the amount of our indebtedness, or otherwise adversely affect our capital structure or credit ratings, thus adversely affecting the holders of the notes.
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The additional shares of common stock issuable upon conversion of notes converted in connection with specified corporate transactions may not adequately compensate you for the lost value of your notes as a result of such transactions.
If a specified corporate transaction that constitutes a “make-whole transaction” occurs on or prior to May 15, 2013, we will under certain circumstances increase the conversion rate on notes converted in connection with such specified corporate transaction. The revised conversion rate will be determined based on the date on which the specified corporate transaction becomes effective and the price paid per share of our common stock in such transaction, as described below under “Description of Notes — Adjustment to Conversion Rate Upon Certain Corporate Transactions.” The additional shares of common stock issuable upon conversion of notes converted in connection with a specified corporate transaction may not adequately compensate you for the lost value of your notes as a result of such transaction. In addition, if the specified corporate transaction occurs after May 15, 2013 or if the price of our common stock in the transaction is greater than $125.00 per share or less than $36.96 per share (in each case, subject to adjustment), there will be no increase in the conversion rate.
Holders of the notes will not be entitled to any rights with respect to our common stock, but will be subject to all changes made with respect to our common stock.
Holders of the notes will not be entitled to any rights with respect to our common stock (including, without limitation, voting rights and rights to receive any dividends or other distributions on our common stock), but the shares of common stock, if any, issuable upon conversion of the notes will be subject to all changes affecting our common stock. Holders of the notes will only be entitled to rights with respect to the common stock if and when we deliver shares of common stock upon conversion of their notes. For example, if an amendment is proposed to our articles of incorporation or by-laws requiring stockholder approval and the record date for determining the stockholders of record entitled to vote on the amendment occurs before delivery of the common stock upon conversion of the notes, holders of the notes will not be entitled to vote on the amendment, although they will nevertheless be subject to any changes in the powers, preferences or special rights of our common stock.
If quarterly cash dividends paid on our common stock exceed $0.08 per share, you will be deemed to have received a taxable dividend without the receipt of any cash.
If we increase the quarterly cash dividends that we pay on our common stock to more than $0.08 per share, we are required under the indenture to adjust the conversion rate. As a result of the adjustment to the conversion rate, you will be deemed to have received a distribution for United States federal income tax purposes without the receipt of any cash. This result also may occur if we adjust the conversion rate upon a fundamental change or public acquiror change of control. See “United States Federal Income Tax Considerations — Consequences to U.S. Holders — Constructive Distributions” and “— Consequences toNon-U.S. Holders — Dividends and Constructive Distributions.”
The conversion rate of the notes may not be adjusted for all dilutive events, including third-party tender or exchange offers, that may adversely affect the trading price of the notes or the common stock, if any, issuable upon conversion of the notes.
The conversion rate of the notes is subject to adjustment upon certain events, including the issuance of stock dividends on our common stock, the issuance of rights or warrants, subdivisions, combinations, distributions on capital stock, indebtedness or assets, cash dividends and issuer tender or exchange offers as described under “Description of Notes — Conversion Rights — Conversion Upon Specified Corporate Transactions.” The conversion rate will not be adjusted for certain other events, such as third-party tender or exchange offers, that may adversely affect the trading price of the notes or the common stock issuable upon conversion of the notes.
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U.S. Holders will recognize income for U.S. federal income tax purposes significantly in excess of interest payments on the notes, and gains, if any, recognized on a disposition of notes will generally be taxed as ordinary income.
We and each holder of the convertible notes have agreed in the indenture to treat the notes, for U.S. federal income tax purposes, as “contingent payment debt instruments.” As a result of such treatment, U.S. Holders (as defined under “United States Federal Income Tax Considerations”) of the notes will be required to include interest in gross income in an amount significantly in excess of the stated interest on the convertible notes. In addition, any gain recognized by a U.S. Holder on the sale, exchange, repurchase, redemption, retirement or conversion of a note will generally be ordinary interest income and any loss will generally be ordinary loss to the extent of the interest previously included in income by the U.S. Holder and, thereafter, capital loss. There is some uncertainty as to the proper application of the Treasury regulations governing contingent payment debt instruments and, if our agreed treatment is successfully challenged by the Internal Revenue Service, it might be determined that, among other things, you should have accrued interest income at a lower or higher rate, or should have recognized capital gain or loss, rather than ordinary income or loss, upon the conversion or taxable disposition of the notes. See “United States Federal Income Tax Considerations.”
We may issue securities that could dilute common stock ownership.
We may decide to raise additional funds through public or private debt or equity financing to fund our operations and may issue equity securities as consideration for acquisitions we may make. If we issue additional equity securities, the percentage ownership of our stockholders will be reduced and the new equity securities may have rights prior to those of the common stock issuable upon conversion of the notes.
The rating assigned to the notes may be reduced in the future, which could adversely affect the market price of the notes and our stock.
If one or more rating agencies reduces any rating in the future, the trading volume and market price of the notes and our stock may be adversely affected.
Our stock price may be volatile, which may adversely affect the value of any stock you acquire upon conversion of the notes.
The price of our common stock may fluctuate widely, depending upon many factors, including:
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| • | differences between our actual financial and operating results and those expected by investors and analysts; |
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| • | the liquidity of our stock; |
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| • | changes in analysts’ recommendations or projections; |
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| • | the operating results of other companies in the railcar industry; and |
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| • | changes in general economic or market conditions. |
In addition, renewed terrorist attacks, or threats of attacks, may contribute to global unrest, an economic slowdown and to instability in the U.S. and other global equity markets. All of these factors may increase the volatility of our stock price and could have an adverse effect on your investment if you choose to convert your notes to shares of our common stock.
Certain events may delay payment on, lead to the subordination of or void our and our subsidiaries’ obligations under the notes.
In the event of a bankruptcy, liquidation or reorganization, you would likely not receive any payment of principal or interest due under the notes so long as such cases were pending. In addition, the notes and the
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subsidiary guarantees may be subject to review under federal, state and similar foreign fraudulent conveyance laws if a bankruptcy, reorganization, liquidation or rehabilitation case or a lawsuit, including circumstances in which bankruptcy is not involved, were commenced by, or on behalf of, our unpaid creditors or unpaid creditors of our guarantors at some future date. Courts, under specific circumstances, may void the notes and the subsidiary guarantees and require holders of the notes to return payments received from us or the guarantors.
An unpaid creditor or representative of creditors could file a lawsuit claiming that the issuance of the notes or the making of the subsidiary guarantees constituted a “fraudulent conveyance.” To make such a determination, a court would have to find that we or the relevant guarantor did not receive fair consideration or reasonably equivalent value for the notes or the giving of the subsidiary guarantees, and that, at the time the notes or the subsidiary guarantees were issued, we or the relevant guarantors:
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| • | were insolvent; |
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| • | were rendered insolvent by the issuance of the notes or subsidiary guarantee; |
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| • | were engaged or were about to engage in a business or transaction for which our or the guarantor’s remaining assets constituted unreasonably small capital; or |
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| • | intended to incur, or believed that we or the guarantor would incur, debts (including contingent obligations) beyond our or its ability to repay those debts as they mature. |
If a court were to make such a finding, it could void all or a portion of our and our subsidiaries’ obligations under the notes or the subsidiary guarantees, subordinate the claim in respect of the notes or the subsidiary guarantees to our other existing and future indebtedness or take other actions detrimental to you as a holder of the notes, including in credit circumstances, invalidating the notes and permitting recovery of prior payments received with respect to the notes and the subsidiary guarantees. Moreover, regardless of solvency, a court could void an incurrence of indebtedness, including the notes or the subsidiary guarantees, if it determined that the transaction was made with intent to hinder, delay or defraud creditors, or a court could subordinate the indebtedness, including the notes or the subsidiary guarantees, to the claims of all existing and future creditors on similar ground.
Furthermore, although the subsidiary guarantees provide the holders of the notes with a direct claim against the assets of the guarantors, enforcement of the subsidiary guarantees against any guarantor would be subject to “suretyship” defenses available to guarantors generally. Enforcement could also be subject to other defenses available to the guarantors. To the extent that the subsidiary guarantees are not enforceable, the notes would be effectively subordinated to all liabilities of the guarantors, including trade payables.
Our financial failure or the financial failure of any of our subsidiaries may result in our assets and the assets of any or all of our subsidiaries becoming subject to the claims of our creditors and the creditors of all of our subsidiaries.
A financial failure by us or our subsidiaries could affect payment of the notes if a bankruptcy court were to “substantively consolidate” us and our subsidiaries. If a bankruptcy court substantively consolidated us and our subsidiaries, the assets of each entity would be subject to the claims of creditors of all consolidated entities. This would expose holders of the notes not only to the usual impairments arising from bankruptcy, but also to potential dilution of the amount ultimately recoverable because of the larger creditor base. Furthermore, forced restructuring of the notes could occur through the “cram-down” provision of the bankruptcy code. Under this provision, the notes could be restructured over the objections of the holders of the notes as to their general terms, including interest rate and maturity.
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USE OF PROCEEDS
All of the notes and shares of common stock issuable upon conversion of the notes being offered pursuant to this prospectus are being offered for resale by the selling securityholders. We will not receive any proceeds from any resale by the selling securityholders of the notes or the common stock issuable upon conversion of the notes.
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PRICE RANGE OF COMMON STOCK
Our common stock trades on the New York Stock Exchange under the symbol “GBX.” As of June 30, 2006, there were approximately 508 record holders of our common stock. The following table shows the reported high and low sales prices of our common stock on the New York Stock Exchange for the periods indicated.
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| | | High | | | Low | |
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2006 | | | | | | | | |
| | Fourth quarter (through July 21, 2006) | | $ | 34.90 | | | $ | 26.28 | |
| | Third quarter | | | 46.63 | | | | 32.80 | |
| | Second quarter | | | 40.00 | | | | 26.75 | |
| | First quarter | | | 33.56 | | | | 24.67 | |
2005 | | | | | | | | |
| | Fourth quarter | | $ | 30.70 | | | $ | 25.80 | |
| | Third quarter | | | 37.15 | | | | 25.40 | |
| | Second quarter | | | 36.99 | | | | 25.56 | |
| | First quarter | | | 29.85 | | | | 19.69 | |
2004 | | | | | | | | |
| | Fourth quarter | | $ | 24.12 | | | $ | 16.25 | |
| | Third quarter | | | 18.55 | | | | 14.01 | |
| | Second quarter | | | 20.25 | | | | 14.40 | |
| | First quarter | | | 15.85 | | | | 12.25 | |
DIVIDEND POLICY AND INFORMATION
Payment of dividends is made at the discretion of our board of directors and depends upon our operating results, capital requirements, financial condition and other factors our board of directors deems relevant. We declared dividends of $0.08 per share in each of the four quarters of our fiscal year 2006 and in the fourth quarter of fiscal year 2005. We declared dividends of $0.06 per share in each of the first three quarters of fiscal year 2005 and in the fourth quarter of fiscal year 2004. We did not declare any dividends during the first three quarters of fiscal year 2004. The revolving and operating lines of credit, along with notes payable, contain covenants with respect to us and our subsidiaries, which, among other things, may limit our ability to pay dividends.
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RATIO OF EARNINGS TO FIXED CHARGES
Set forth below is information concerning our ratio of earnings to fixed charges on a consolidated basis for the periods indicated. This ratio shows the extent to which our business generates enough earnings after the payment of all expenses other than interest to make the required interest payments on the notes.
The ratio of earnings to fixed charges is computed by dividing earnings before fixed charges by fixed charges. Earnings before fixed charges consist of earnings (loss) before income tax, minority interest and equity in unconsolidated subsidiaries, plus fixed charges. Fixed charges consist of interest expense, including amortization of debt issuance costs, and the portion of rental expense that we believe is representative of the interest component of lease expense.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | Nine Months | |
| | | Years Ended August 31, | | | Ended May 31, | |
| | | | | | | |
| | | 2001 | | | 2002 | | | 2003 | | | 2004 | | | 2005 | | | 2005 | | | 2006 | |
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| | | (In thousands, except for ratios) | |
| Earnings (loss) before income tax, minority interest and equity in unconsolidated subsidiaries | | $ | 8,523 | | | $ | (47,230 | )(1) | | $ | 10,758 | | | $ | 31,194 | | | $ | 50,000 | | | $ | 32,391 | | | $ | 49,117 | |
| Interest expense | | | 22,264 | | | | 19,055 | | | | 14,489 | | | | 11,553 | | | | 14,000 | | | | 8,909 | | | | 19,310 | |
| Estimated interest portion of net rent expense | | | 7,181 | | | | 6,287 | | | | 6,136 | | | | 5,388 | | | | 5,591 | | | | 4,154 | | | | 4,526 | |
| | | | | | | | | | | | | | | | | | | | | | |
| | | $ | 37,968 | | | $ | (21,888 | ) | | $ | 31,383 | | | $ | 48,135 | | | $ | 69,591 | | | $ | 43,454 | | | $ | 72,953 | |
| | | | | | | | | | | | | | | | | | | | | | |
| Fixed charges | | $ | 29,445 | | | $ | 25,342 | | | $ | 20,625 | | | $ | 16,941 | | | $ | 19,591 | | | $ | 13,063 | | | $ | 23,836 | |
Ratio of earnings to fixed charges | | | 1.29 | x | | | (0.86 | )x | | | 1.52 | x | | | 2.84 | x | | | 3.55 | x | | | 3.48 | x | | | 3.06 | x |
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(1) | For the fiscal year ended August 31, 2002, there was a deficiency of earnings to fixed charges of $47.2 million. |
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MANAGEMENT
The following table identifies our executive officers and directors and indicates their ages and current positions:
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Name | | Age | | | Position |
| | | | | |
William A. Furman | | | 62 | | | President, Chief Executive Officer and Director |
Robin D. Bisson | | | 52 | | | Senior Vice President Marketing and Sales and President of Greenbrier Railcar LLC |
Linda M. Olinger | | | 44 | | | Vice President and Corporate Controller |
Mark J. Rittenbaum | | | 48 | | | Senior Vice President and Treasurer |
James T. Sharp | | | 51 | | | President of Greenbrier Leasing Company LLC |
Timothy A. Stuckey | | | 55 | | | President of Gunderson Rail Services LLC |
Norriss M. Webb | | | 66 | | | Executive Vice President and General Counsel |
Joseph K. Wilsted | | | 51 | | | Senior Vice President and Chief Financial Officer |
L. Clark Wood | | | 64 | | | President of Manufacturing Operations |
Victor G. Atiyeh | | | 83 | | | Director |
Duane C. McDougall | | | 54 | | | Director |
A. Daniel O’Neal, Jr. | | | 70 | | | Director |
Charles J. Swindells | | | 63 | | | Director |
C. Bruce Ward | | | 75 | | | Director |
Donald A. Washburn | | | 61 | | | Director |
Benjamin R. Whiteley | | | 77 | | | Chairman of the Board of Directors |
Set forth below is biographical information for our executive officers and directors.
William A. Furman, President, Chief Executive Officer and Director. Mr. Furman has held these positions since 1994. Mr. Furman is also Managing Director of TrentonWorks Limited, a manufacturing subsidiary, and has held this position since March 1995. Mr. Furman was Chief Executive Officer of Gunderson LLC, a manufacturing subsidiary, from 1990 to 2000 and was Vice President of Greenbrier, or its predecessor company, from 1974 to 1994. Prior to 1974, Mr. Furman was Group Vice President for the Leasing Group of TransPacific Financial Corporation, and earlier he was General Manager of the Finance Division of FMC Corporation. Mr. Furman serves as a director of Schnitzer Steel Industries, Inc., a steel recycling and manufacturing company.
Robin D. Bisson, Senior Vice President Marketing and Sales. Mr. Bisson has held this position since 1996 and has been President of Greenbrier Railcar LLC, a subsidiary that engages in railcar leasing, since 1991. Mr. Bisson was Vice President of Greenbrier Railcar LLC from 1987 to 1991 and has been Vice President of Greenbrier Leasing Company LLC, a subsidiary that engages in railcar leasing, since 1987.
Linda M. Olinger, Vice President and Corporate Controller. Ms. Olinger has held this position since January 2004. Prior to becoming Vice President, she was Corporate Controller since 2000.
Mark J. Rittenbaum, Senior Vice President and Treasurer of the Company. Mr. Rittenbaum has held this position since 2001. Prior to becoming Senior Vice President, he was Vice President and Treasurer since 1994. Mr. Rittenbaum is also Vice President of Greenbrier Leasing Company LLC and Greenbrier Railcar LLC, positions he has held since 1993 and 1994.
James T. Sharp, President of Greenbrier Leasing Company LLC. Mr. Sharp has held this position since February 2004, prior to which he served as Vice President of Marketing and Operations of the Company since 1999 and was Vice President of Sales from 1996 to 1999.
Timothy A. Stuckey, President of Gunderson Rail Services LLC. Mr. Stuckey has held this position with our repair and refurbishment subsidiary since May 1999, prior to which he served as Assistant Vice President of Greenbrier Leasing Company LLC since 1987.
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Norriss M. Webb, Executive Vice President and General Counsel. Mr. Webb has held this position since 1994. He has also been Vice President and Secretary of Gunderson LLC since 1985. Mr. Webb was Vice President of the Company from 1981 to 1994.
Joseph K. Wilsted, Senior Vice President and Chief Financial Officer. Mr. Wilsted was appointed to this position in January 2006. Prior to becoming Chief Financial Officer, he was Senior Vice President, Operations and Corporate Development beginning in 2005. From 2003 until 2005, he was Vice President, Finance of a division of Ingersoll Rand and from 1994 to 2003 held the position of President of several operating divisions of Invensys Corporation.
L. Clark Wood, President of Manufacturing Operations. Mr. Wood has held this position since April 1998, and he has also been Chief Executive Officer of Gunderson LLC from 2000 to 2005, and Chief Executive Officer of TrentonWorks Limited since June 1995. Mr. Wood was President of Gunderson LLC from 1990 to 1999.
Victor G. Atiyeh, Director. Mr. Atiyeh has served as a member of the Board since 1994. He has been a principal in Victor Atiyeh & Co., international trade consultants, since 1987. He was Governor of the State of Oregon from January 1979 to January 1987. Prior to being elected Governor, Mr. Atiyeh was President of Atiyeh Brothers, a private retail company. He also serves as a director and Vice Chairman of Cedars Bank, located in Los Angeles, California.
Duane C. McDougall, Director. Mr. McDougall has served as a member of the Board since 2003. He served as President and Chief Executive Officer of Willamette Industries, Inc., an international forest products company, from 1998 to 2002. Prior to becoming President and Chief Executive Officer, he served as Chief Operating Officer and also Chief Accounting Officer during his21-year tenure with Willamette Industries, Inc. He also serves as a Director of West Coast Bancorp, InFocus Corporation and Cascade Corporation.
A. Daniel O’Neal, Jr., Director. Mr. O’Neal has been a member of the Board since 1994. From 1973 until 1980, Mr. O’Neal served as a Commissioner of the Interstate Commerce Commission and, from 1977 until 1980, served as its Chairman. From 1989 until 1996 he was Chief Executive Officer and owner of a freight transportation services company. He was Chairman of Washington State’s Freight Mobility Board from its inception in 1998 until July, 2005. Mr. O’Neal is the current Chairman of the Washington State Transportation Commission.
Charles J. Swindells, Director. Mr. Swindells was appointed as a director in September 2005. Mr. Swindells served as United States Ambassador to New Zealand and Samoa from 2001 to 2005. Before becoming Ambassador, Mr. Swindells was Vice Chairman of US Trust Company, N.A. from 1993 until 2001; Chairman and Chief Executive Officer of Capital Trust Management Corporation from 1985 until 1993; and Managing Director/Founder of Capital Trust Company from 1981 until 1993. He also served as Chairman of World Wide Value Fund, a closed-end investment company listed on the New York Stock Exchange, from 1985 until 1996. Mr. Swindells was one of five members on the Oregon Investment Council overseeing the $20 billion Public Employee Retirement Fund Investment Portfolio from 1984 until 1990 and was a member of numerous non-profit boards of trustees, including serving as Chairman of the Board for Lewis & Clark College in Portland, Oregon from 1998 until 2001.
C. Bruce Ward, Director. Mr. Ward has served as a member of the Board since 1994. He served as President and Chief Executive Officer of Gunderson LLC from 1985 to 1989. Mr. Ward is a former director of Stimson Lumber Company, a privately held forest products company.
Donald A. Washburn, Director. Mr. Washburn was appointed as a director in August 2004. Mr. Washburn served as Executive Vice President of Northwest Airlines, Inc., an international airline, from 1995 to 1998. Prior to becoming Executive Vice President, he served as Senior Vice President for Northwest Airlines, Inc. from 1990 to 1995. Mr. Washburn served in several positions from 1980 to 1990, including Executive Vice President for Marriott Corporation, an international hospitality operation. He also serves as a director of LaSalle Hotel Properties, Key Technology, Inc., Amedisys, Inc., as well as several privately held companies and non-profit corporations.
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Benjamin R. Whiteley, Chairman of the Board of Directors. Mr. Whiteley has served as a member of the Board since 1994. He is retired Chairman and Chief Executive Officer of Standard Insurance Company, an Oregon-based life insurance company, where he served in a number of capacities over 44 years ending in 2000. Mr. Whiteley has served previously as a director of several publicly held companies and currently serves as Chairman of the Oregon Community Foundation.
Executive officers are designated by the board of directors. There are no family relationships among any of our executive officers or directors. One of our wholly owned subsidiaries, Gunderson LLC, employs Ms. Julie Ward, the daughter of Mr. C. Bruce Ward, who is one of our directors. During fiscal year 2005, Ms. Ward earned approximately $72,720 in salary and bonus.
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
James-Furman & Company Partnership. Mr. Alan James, a former Director, and Mr. Furman were partners in a general partnership, James-Furman & Company (the “Partnership”), that, among other things, engaged in the ownership, leasing and marketing of railcars and programs for refurbishing and marketing of used railcars. As a result of Mr. James’ death, the Partnership dissolved as of January 28, 2005. In 1989, we entered into presently existing agreements with the Partnership pursuant to which we manage and maintain railcars owned by the Partnership in exchange for a fixed monthly fee that is no less favorable to us than the fee we could obtain for similar services rendered to unrelated parties. The maintenance and management fees paid to us under such agreements in 2005 aggregated $109,112. In addition, the Partnership paid us fees of $60,000 in 2005 for administrative and other services. The management and maintenance agreements presently in effect between us and the Partnership provide that in remarketing railcars owned by the Partnership and us, as well as by unaffiliated lessors, we will, subject to the business requirements of prospective lessees and regulatory requirements, grant priority to that equipment which has been off-lease and available for the longest period of time. Additions to the lease fleet of new or used equipment are deemed to be off-lease and available from the date of addition to the fleet.
Such agreements also provide that the Partnership will grant to us a right of first refusal with respect to any opportunity originated by the Partnership in which we may be interested involving the manufacture, purchase, sale, lease, management, refurbishing or repair of railcars. The right of first refusal provides that prior to undertaking any such transaction the Partnership must offer the opportunity to us and must provide the disinterested, independent members of our board of directors a period of not less than 30 days in which to determine whether we desire to pursue the opportunity. The right of first refusal in favor of us continues for a period of 12 months after the date that both of Messrs. James and Furman cease to be our officers or directors. Prior to Mr. James’ death, the Partnership advised us that it does not currently expect to pursue acquisitions of additional railcars. As of the date of this prospectus, it has not been determined how the agreements between us and the Partnership will be affected by the Partnership’s dissolution.
Indebtedness of Management. Since the beginning of our last fiscal year, none of our directors or executive officers has been indebted to us in excess of $60,000 except that L. Clark Wood, President of our manufacturing operations, is indebted to, and has executed a promissory note in favor of, Greenbrier Leasing Company LLC. The largest aggregate amount outstanding during fiscal year 2005 under such promissory note was $200,000. As of May 31, 2006, $100,000 remained outstanding under such note. The promissory note is payable upon demand and is secured by a mortgage on Mr. Wood’s residence. The note does not bear interest and has not been amended since its issuance in 1994.
Policy. We follow a policy that all proposed transactions by us with directors, officers, five percent stockholders and their affiliates be entered into only if such transactions are on terms no less favorable to us than could be obtained from unaffiliated parties, are reasonably expected to benefit us and are approved by a majority of the disinterested, independent members of our board of directors.
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PRINCIPAL STOCKHOLDERS
The following table sets forth information, as of June 30, 2006, with respect to beneficial ownership of our common stock (our only class of shares of outstanding voting securities) by each director, by our five most highly compensated executive officers as of the end of our last fiscal year, by all directors and executive officers as a group, and by each person who is known by us to be the beneficial owner of more than five percent of our outstanding common stock. Unless otherwise indicated, each person has sole voting power and sole investment power.
Unless otherwise indicated, the address of each person listed is One Centerpointe Drive, Suite 200, Lake Oswego, Oregon 97035.
| | | | | | | | | | |
| | | Amount and Nature | | | |
| | | of Beneficial | | | Percent of | |
| Name of Beneficial Owner | | Ownership | | | Class(1) | |
| | | | | | | |
| William A. Furman | | | 1,000,000 | | | | 6.3 | % |
| Victor G. Atiyeh | | | 3,611 | | | | (3 | ) |
| A. Daniel O’Neal, Jr. | | | 7,796 | | | | (3 | ) |
| Duane C. McDougall | | | 5,311 | | | | (3 | ) |
| Charles J. Swindells | | | 1,970 | | | | (3 | ) |
| C. Bruce Ward | | | 1,970 | | | | (3 | ) |
| Donald A. Washburn | | | 3,311 | | | | (3 | ) |
| Benjamin R. Whiteley | | | 23,811 | | | | (3 | ) |
| Robin D. Bisson | | | 30,001 | | | | (3 | ) |
| James T. Sharp | | | 10,000 | | | | (3 | ) |
| Mark J. Rittenbaum | | | 41,300 | (2) | | | (3 | ) |
| L. Clark Wood | | | 16,416 | (2) | | | (3 | ) |
| All directors and executive officers as a group (16 persons) | | | 1,185,598 | (2) | | | 7.4 | % |
| Tontine Capital Partners, L.P. | | | 1,375,300 | (4) | | | 8.6 | % |
| | 55 Railroad Avenue, 3rd Floor
Greenwich, Connecticut 06830 | | | | | | | | |
| FMR Corporation | | | 1,163,700 | (5) | | | 7.3 | % |
| | 82 Devonshire Street
Boston, Massachusetts 02109 | | | | | | | | |
| Westfield Capital Management Co. LLC | | | 834,950 | (6) | | | 5.2 | % |
| | One Financial Center, 24th Floor
Boston, Massachusetts 02111-2690 | | | | | | | | |
| |
(1) | Calculated based on the number of outstanding shares as of June 30, 2006, which is 15,953,535, plus the total number of shares as to which the respective reporting person has the right to acquire beneficial ownership within 60 days following June 30, 2006. |
|
(2) | The shares shown as beneficially owned included 10,000 shares for Mr. Rittenbaum, 6,116 shares for Mr. Wood, and 18,216 shares for the group, which such persons and the group have the right to acquire by exercise of stock options within 60 days after June 30, 2006. |
|
(3) | Less than one percent. |
|
(4) | As reported in Amendment No. 1 to a Schedule 13G dated December 31, 2005, and filed with the SEC on February 14, 2006, by Tontine Capital Partners, L.P. (“TCP”), Tontine Capital Management, L.L.C. (“TCM”), the general partner of TCP, and Jeffrey L. Gendell, the managing member of TCM. The Schedule 13G discloses that TCP, TCM and Mr. Gendell share the power to vote and dispose of the shares. |
|
(5) | As reported in a Schedule 13G filed jointly on February 14, 2006 by FMR Corp., Edward C. Johnson 3d, Fidelity Management & Research Company (“Fidelity”) and Fidelity Low Priced Stock Fund. Fidelity, |
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| |
| 82 Devonshire Street, Boston, Massachusetts 02109, a wholly-owned subsidiary of FMR Corp. and an investment adviser registered under the Investment Advisers Act of 1940, is the beneficial owner of 985,000 shares or 6.352% of the common stock outstanding, as a result of acting as investment adviser to various investment companies registered under the Investment Company Act of 1940. The ownership of Fidelity Low Priced Stock Fund amounted to 832,200 shares or 5.367% of the common stock outstanding. Fidelity Low Priced Stock Fund has its principal business office at 82 Devonshire Street, Boston, Massachusetts 02109. Edward C. Johnson 3d and FMR Corp., through its control of Fidelity, and the Fidelity Funds each has sole power to dispose of the 985,000 shares owned by the Fidelity Funds. Neither FMR Corp. nor Edward C. Johnson 3d, Chairman of FMR Corp., has the sole power to vote or direct the voting of the shares owned directly by the Fidelity Funds, which power resides with the Funds’ Boards of Trustees. Fidelity carries out the voting of the shares under written guidelines established by the Funds’ Boards of Trustees. Members of the Edward C. Johnson 3d family are the predominant owners of Class B shares of common stock of FMR Corp., representing approximately 49% of the voting power of FMR Corp. The Johnson family group and all other Class B shareholders have entered into a shareholders’ voting agreement under which all Class B shares will be voted in accordance with the majority vote of Class B shares. Accordingly, through their ownership of voting common stock and the execution of the shareholders’ voting agreement, members of the Johnson family may be deemed, under the Investment Company Act of 1940, to form a controlling group with respect to FMR Corp. Fidelity Management Trust Company, a wholly-owned subsidiary of FMR Corp. having its principal business office at 82 Devonshire Street, Boston, Massachusetts 02109, is the beneficial owner of 178,700 shares, or 1.152% of the common stock outstanding, as a result of its serving as investment manager of institutional accounts. Edward C. Johnson 3d and FMR Corp., through its control of Fidelity Management Trust Company, each has sole dispositive power over 178,700 shares and sole power to vote or direct the voting of 178,700 shares owned by the institutional accounts as reported above |
|
(6) | As reported in a Schedule 13G dated December 31, 2005 and filed with the SEC on February 13, 2006, by Westfield Capital Management Co., LLC (“Westfield Capital”). The shares reported are owned of record by various mutual funds, institutional accounts and/or separate accounts managed by Westfield Capital, an investment adviser registered under the Investment Advisers Act of 1940. Westfield Capital has sole voting power with respect to 520,650 of the shares reported and sole dispositive power with respect to all 834,950 shares reported. |
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SELLING SECURITYHOLDERS
We originally issued $100.0 million aggregate principal amount of the notes to the initial purchasers in a private placement on May 22, 2006. The initial purchasers resold the notes in transactions exempt from the registration requirements of the Securities Act to persons reasonably believed by the initial purchasers to be qualified institutional buyers within the meaning of Rule 144A under the Securities Act. Selling securityholders, including their transferees, pledges or donees or their successors, may from time to time offer and sell pursuant to this prospectus any or all of the notes, including the common stock into which the notes are convertible.
The following table sets forth certain information with respect to the principal amounts of the notes owned by selling securityholders, together with the shares of common stock issuable upon conversion of those notes, that may be offered using this prospectus. The information is based on information provided to us by or on behalf of the selling securityholders in selling securityholder questionnaires and is as of the respective dates specified by the selling securityholders in such questionnaires. The selling securityholders identified below may have sold, transferred or otherwise disposed of, in transactions exempt from the registration requirements under the Securities Act, all or a portion of their notes since the time they provided us information regarding their holdings. Information concerning the selling securityholders may change from time to time and any changed information will be set forth in supplements to this prospectus, if necessary.
Since the selling securityholders may offer from time to time all or a portion of their notes (and the common stock into which the notes are convertible), we cannot estimate the amount of the notes (or common stock issuable upon conversion of the notes) that will be held by the selling securityholders upon consummation of any particular offering. See “Plan of Distribution.”
| | | | | | | | | | | | | | | | | |
| | | | | | | Number of | | | |
| | | | | | | Shares of | | | |
| | | | | | | Common Stock | | | Percentage of | |
| | | Principal | | | Percentage | | | Issuable upon | | | Common | |
| | | Amount of | | | of Notes | | | Conversion of | | | Stock | |
| Name of Selling Securityholder | | Notes Owned | | | Outstanding | | | Notes (1) | | | Outstanding(2) | |
| | | | | | | | | | | | | |
| CQS Convertible and Quantitative Strategies Master Fund | | $ | 1,000,000 | | | | 1.00 | % | | | 20,812.50 | | | | * | |
| Amaranth LLC(3)** | | | 16,250,000 | | | | 16.25 | % | | | 338,203.13 | | | | 2.08 | % |
| CNH CA Master Account, L.P.(4) | | | 3,000,000 | | | | 3.00 | % | | | 62,437.50 | | | | * | |
| VanKampen Harbor Fund(5)*** | | | 1,950,000 | | | | 1.95 | % | | | 40,584.38 | | | | * | |
| Morgan Stanley Convertible Securities Trust(6)*** | | | 1,050,000 | | | | 1.05 | % | | | 21,853.13 | | | | * | |
| Vicis Capital Master Fund(7) | | | 7,000,000 | | | | 7.00 | % | | | 145,687.50 | | | | * | |
| Radcliffe SPC, Ltd for and on behalf of the Class A Convertible Crossover Segregated Portfolio(8) | | | 6,500,000 | | | | 6.50 | % | | | 135,281.25 | | | | * | |
| Calamos Market Neutral Income Fund-Calamos Investment Trust(9) | | | 5,000,000 | | | | 5.00 | % | | | 104,062.50 | | | | * | |
| DBAG London** | | | 8,000,000 | | | | 8.00 | % | | | 166,500.00 | | | | 1.03 | % |
| RBC Capital Markets Corp(10)** | | | 6,400,000 | | | | 6.40 | % | | | 133,200.00 | | | | * | |
| Boilermakers Blacksmith Pension Trust(11) | | | 1,025,000 | | | | 1.03 | % | | | 21,332.81 | | | | * | |
| Delta Airlines Master Trust(11) | | | 205,000 | | | | * | | | | 4,266.56 | | | | * | |
| Attorneys Title Insurance Fund (11) | | | 40,000 | | | | * | | | | 832.50 | | | | * | |
| FPL Group Employees Pension Plan(11) | | | 200,000 | | | | * | | | | 4,162.50 | | | | * | |
| Aloha Airlines Non Pilots Pension Trust(11) | | | 30,000 | | | | * | | | | 624.38 | | | | * | |
| Inflective Convertible Opportunity Fund I, Ltd.(12)** | | | 1,500,000 | | | | 1.50 | % | | | 31,218.75 | | | | * | |
| Institutional Benchmarks Series Ivan Segregated Account(12)** | | | 500,000 | | | | * | | | | 10,406.25 | | | | * | |
| Lyxor/ Inflective Convertible Opportunity Fund(12)** | | | 500,000 | | | | * | | | | 10,406.25 | | | | * | |
| Inflective Convertible Opportunity Fund I L.P.(12)** | | | 550,000 | | | | * | | | | 11,446.88 | | | | * | |
| American Investors Life Insurance Company(12)** | | | 400,000 | | | | * | | | | 8,325.00 | | | | * | |
| Thrivent Financial for Lutherans(13)** | | | 2,000,000 | | | | 2.00 | % | | | 41,625.00 | | | | * | |
| TQA Master Fund | | | 1,000,000 | | | | 1.00 | % | | | 20,812.50 | | | | * | |
| Bear, Stearns & Co. Inc.(14)*** | | | 5,565,000 | | | | 5.57 | % | | | 115,821.56 | | | | * | |
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| | | | | | | | | | | | | | | | | | |
| | | | | | | Number of | | | |
| | | | | | | Shares of | | | |
| | | | | | | Common Stock | | | Percentage of | |
| | | Principal | | | Percentage | | | Issuable upon | | | Common | |
| | | Amount of | | | of Notes | | | Conversion of | | | Stock | |
| Name of Selling Securityholder | | Notes Owned | | | Outstanding | | | Notes (1) | | | Outstanding(2) | |
| | | | | | | | | | | | | |
| Highbridge International LLC(15) | | $ | 4,000,000 | | | | 4.00 | % | | | 83,250.00 | | | | * | |
| Kayne Anderson Income Partners, LP** | | | 50,000 | | | | * | | | | 1,040.63 | | | | * | |
| Kayne Anderson Capital Income Partners (QP), LP** | | | 700,000 | | | | * | | | | 14,568.75 | | | | * | |
| Kayne Anderson Capital Income Fund Ltd.** | | | 200,000 | | | | * | | | | 4,162.50 | | | | * | |
| HFR RU Performance Master Trust(16) | | | 50,000 | | | | * | | | | 1,040.63 | | | | * | |
| Aristeia International Limited(17) | | | 7,040,000 | | | | 7.04 | % | | | 146,520.00 | | | | * | |
| Aristeia Partners LP (17) | | | 960,000 | | | | * | | | | 19,980.00 | | | | * | |
| Other holders of notes (18) | | | 17,335,000 | | | | 17.34 | % | | | 360,784.68 | | | | 2.26 | % |
| | | | | | | | | | | | | |
| | Total | | $ | 100,000,000 | | | | 100 | % | | | 2,081,250.00 | | | | | |
| | |
| ** | This selling securityholder is an affiliate of a broker-dealer. This selling securityholder has represented to us that it purchased the notes in the ordinary course of business, and at the time it purchased the notes, it had no agreements or understandings, directly or indirectly, with any person to distribute the notes or the shares of common stock issuable upon conversion of the notes. |
| |
*** | This selling securityholder is a broker-dealer registered under Section 15 of the Exchange Act. This selling securityholder has represented to us that it purchased the notes in the ordinary course of business, and at the time it purchased the notes, it had no agreements or understandings, directly or indirectly, with any person to distribute the notes or the shares of common stock issuable upon conversion of the notes. |
| | |
| (1) | Assumes a conversion rate of 20.8125 shares of common stock per $1,000 principal amount of the notes and a cash payment in lieu of any fractional interest. This initial conversion rate is subject to adjustment as described elsewhere in this prospectus, such that the number of shares of common stock issuable upon conversion of the notes may increase or decrease in the future. |
|
| (2) | We calculated the percentage of common stock outstanding for each securityholder pursuant to Rule 13d-3(d)(i) of the Exchange Act using 15,953,535 shares of common stock outstanding as of June 30, 2006 and the number of shares of common stock issuable upon conversion of only that particular securityholder’s notes and not any other securityholder’s notes. |
|
| (3) | Amaranth Advisors L.L.C., the trading advisor for Amaranth LLC, exercises dispositive power with respect to these securities. As of May 22, 2006, Amaranth LLC also beneficially owned 21,200 shares of our common stock and Amaranth Global Equities Master Fund Limited, an affiliate of Amaranth LLC, beneficially owned 3,800 shares of our common stock. |
|
| (4) | CNH Partners, LLC is the investment advisor to CNH CA Master Account, L.P. and has sole voting and dispositive power with respect to these securities. |
|
| (5) | VanKampen Asset Management is the investment advisor to VanKampen Harbor Fund and has voting and dispositive power with respect to these securities. |
|
| (6) | Morgan Stanley Investment Management has voting and dispositive power with respect to these securities. |
|
| (7) | Vicis Capital LLC has voting and dispositive power with respect to these securities. |
|
| (8) | Pursuant to an investment management agreement, RG Capital Management, L.P. (“RG Capital”) serves as the investment manager of Radcliffe SPC, Ltd.’s Class A Convertible Crossover Segregated Portfolio. RGC Management Company, LLC (“Management”) is the general partner of RG Capital. Steve Katznelson and Gerald Stahlecker serve as the managing members of Management. Each of RG Capital, Management |
34
| | |
| | and Messrs. Katznelson and Stahlecker disclaims beneficial ownership of the securities owned by Radcliffe SPC, Ltd. for and on behalf of the Class A Convertible Crossover Segregated Portfolio. |
|
| (9) | Calamos Advisors LLC is the investment advisor to Calamos Market Neutral Income Fund-Calamos Investment Trust and has voting and dispositive power with respect to these securities. |
| |
(10) | Royal Bank of Canada has voting and dispositive power with respect to these securities. |
|
(11) | Froley Revy Investment Company Inc. is the investment advisor to the listed selling securityholder and has voting and dispositive power with respect to these securities. |
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(12) | Inflective Asset Management is the investment advisor to the listed selling securityholder and has voting and dispositive power with respect to these securities. |
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(13) | Thrivent Investment Management Inc. is the investment advisor to Thrivent Financial for Lutherans and has sole voting and dispositive power with respect to these securities. |
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(14) | Bear, Stearns & Co served as a joint book-running manager in connection with the sale of the notes. In addition, they have engaged in, and may in the future engage in, other investment banking and commercial dealings with us in the ordinary course of business. As of June 26, 2006, Bear, Stearns & Co. had a short position of 94,720 shares of our common stock. |
|
(15) | Highbridge Capital Management, LLC (“Highbridge”) is the trading manager of Highbridge International LLC (“HIC”) and consequently has voting control and investment discretion over securities held by HIC. Glenn Dubin and Henry Swieca control Highbridge. Each of Highbridge, Glenn Dubin and Henry Swieca disclaims beneficial ownership of the securities held by HIC. |
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(16) | Kayne Anderson Investment Mgmt, Inc. is the investment advisor to HFR RV Performance Master Trust and has voting and dispositive power with respect to these securities. |
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(17) | Aristeia Capital LLC is the investment manager to Aristeia International Limited and has voting and dispositive power with respect to these securities. Aristeia Advisors LLC is the general partner for Aristeia Partners LP. Aristeia Capital LLC and Aristeia Advisors LLC are jointly owned by Kevin Jones, Robert H. Lynch Jr., Anthony Frascella and William R. Techar. |
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(18) | These holders of notes have not notified us of their intention to offer for resale their notes and have not provided us with information in a selling securityholder questionnaire. Information regarding such other selling securityholders will be set forth in supplements to this prospectus, if necessary. |
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DESCRIPTION OF OTHER INDEBTEDNESS
The following description briefly summarizes material terms of certain of our credit arrangements, including credit arrangements of our subsidiaries. The description is only a brief summary and does not purport to describe all of the terms of the credit arrangements that may be important. Unless the context requires otherwise, all amounts originating in foreign currency have been translated at the May 31, 2006 exchange rate for purposes of the following discussion.
Revolving Credit Facilities
Our revolving credit facilities related to our North American operations aggregate $151.4 million. On April 10, 2006, we amended these credit facilities to permit the issuance of the notes, by increasing the amount of unsecured indebtedness that we can incur and by increasing thedebt-to-capitalization ratio that is permitted under the credit facilities. The credit facilities include a $125.0 million, five-year revolving credit facility, including up to $25.0 million for letters of credit and up to $25.0 million for multi-currency borrowings for United States and Mexican operations. The credit facility is guaranteed by all of our material domestic subsidiaries. The arrangement also includes a five-year revolving credit facility for our principal Canadian manufacturing operations in an amount of approximately $26.4 million, which we have guaranteed. Lines of credit totaling $22.8 million are available for working capital for our European manufacturing operations. Advances bear interest at rates that depend on the type of borrowing and the ratio of debt to total capitalization. At May 31, 2006, there were no borrowings outstanding under the North American credit facilities. The European manufacturing credit line had $21.3 million outstanding at May 31, 2006 at interest rates ranging from 5.1% to 5.2%.
83/8% Senior Notes Due 2015
On May 11, 2005, we issued through a private placement $175.0 million aggregate principal amount of 83/8% senior notes due 2015. In August 2005 we filed a registration statement with respect to an offer to exchange the 83/8% senior notes for a new issue of identical notes registered with the SEC. In September 2005, the exchange was completed. Payment of the 83/8% senior notes is guaranteed by certain of our domestic subsidiaries. Interest is paid semiannually in arrears on November 15 and May 15.
On November 21, 2005, we issued through a private placement an additional $60.0 million aggregate principal amount of 83/8% senior notes due 2015. In January 2006, we filed a registration statement with respect to an offer to exchange these 83/8% senior notes for a new issue of identical notes registered with the SEC. In March 2006, the exchange was completed. Payment of the 83/8% senior notes is guaranteed by certain of our domestic subsidiaries. Interest is paid semiannually in arrears on November 15 and May 15.
Term Loans
As of May 31, 2006, the total amount of our term loans outstanding was $34.8 million. The following summarizes key provisions of our term loans.
| | | | | | | | | | | | | |
| | | Amount | | | | | |
| | | Outstanding as of | | | | | Effective Interest | |
| Lender | | May 31, 2006 | | | Maturity Date | | | Rate (%) | |
| | | | | | | | | | |
| | | ($ in thousands) | | | | | |
| Bank of America, N.A. | | | 7,997 | | | | August 31, 2017 | | | | 5.82 | |
| Kreditanstalt fur Wiedraufbau | | | 7,224 | | | | March 31, 2011 | | | | 7.41 | |
| KeyCorp Leasing | | | 6,627 | | | | August 31, 2006 | | | | 7.31 | |
| Bombardier Transportation | | | 6,000 | | | | December 1, 2009 | | | | 4.36 | |
| Kreditanstalt fur Wiedraufbau | | | 5,950 | | | | March 31, 2011 | | | | 5.61 | |
| KeyCorp Leasing | | | 960 | | | | June 2007 | | | | 5.79 | |
| Noncompete agreements (3 persons) | | | 32 | | | | July 1, 2006 | | | | — | |
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Subordinated Debt
In 1990, we entered into an agreement to purchase, refurbish and lease over 10,000 used railcars between 1990 and 1997. In connection with that agreement, we issued subordinated notes that amounted to approximately $5.0 million as of May 31, 2006 to the seller of these railcars. The subordinated notes bear interest at 9.0%, with the principal due ten years from the date of issuance of the notes. The agreement includes an option that, under certain conditions, provides for the seller to repurchase the railcars, at the date the underlying subordinated notes are due, in an amount equal to our original acquisition cost. We have received notice that the seller intends to exercise its purchase options, and amounts due under the subordinated notes will be paid off from the repurchase proceeds.
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DESCRIPTION OF NOTES
The notes were issued under an indenture dated as of May 22, 2006 among The Greenbrier Companies, Inc., as issuer, the guarantors named therein, and U.S. Bank National Association, as trustee (the“indenture”). The notes and any shares of common stock issuable upon conversion of the notes also are covered by a registration rights agreement among us, the Guarantors and the initial purchasers. Initially, the trustee will also be the paying agent and conversion agent. You may request a copy of the notes, the indenture and the registration rights agreement from us.
The following description is a summary of the material provisions of the notes, the indenture and the registration rights agreement. It does not purport to be complete. This summary is subject to and is qualified by reference to all the provisions of the indenture and the registration rights agreement, including the definitions of certain terms used in the indenture and the registration rights agreement. The terms of the notes and the guarantees include those provided in the indenture and those made a part of the indenture by reference to the Trust Indenture Act of 1939, as amended, and those provided in the registration rights agreement. You should read the notes, the indenture and the registration rights agreement because they, and not this description, will define your rights as a holder of the notes.
As used in this “Description of Notes,” references to “Greenbrier,” “we,” “us,” and “our” refer solely to The Greenbrier Companies, Inc. and not to any of our current or future Subsidiaries.
Brief Description of the Notes
The notes:
| | |
| • | are limited to $100.0 million in aggregate principal amount; |
|
| • | bear interest at an annual rate of 2.375% of the principal amount from May 22, 2006, or from the most recent date to which interest has been paid or duly provided for. We will pay interest, including contingent interest and additional interest, if any (as set forth under “— Contingent Interest” and “— Registration Rights,” respectively), on May 15 and November 15 of each year, commencing on November 15, 2006, to holders of record on May 1 and November 1, respectively; |
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| • | will bear additional interest if we fail to comply with certain obligations as set forth below under “— Registration Rights;” |
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| • | are general unsecured obligations of Greenbrier and |
| | |
| • | are pari passu in right of payment with all other unsubordinated indebtedness and other obligations of Greenbrier (including our trade payables and 8.375% Senior Notes due 2015 (the “8.375% Notes”)); |
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| • | are effectively subordinated to any secured indebtedness of Greenbrier (including obligations under the Credit Agreement); |
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| • | are senior in right of payment to all subordinated indebtedness of Greenbrier; and |
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| • | are unconditionally guaranteed by each of our existing and future Domestic Subsidiaries (other than any Domestic Subsidiary that is an Immaterial Subsidiary) (the“Guarantors”); |
| | |
| • | may be converted by the holders into cash and shares, if any, of our common stock (as provided below) initially at a conversion rate of 20.8125 shares per $1,000 principal amount of notes (equivalent to an initial conversion price of approximately $48.05 per share) only under the following circumstances: |
| | |
| • | during any calendar quarter (and only during such calendar quarter) commencing after June 30, 2006 if the closing sale price of our common stock for at least 20 trading days in the period of 30 consecutive trading days ending on the last trading day of the preceding calendar quarter is greater than or equal to 130% of the applicable conversion price on the last trading day of such calendar quarter; |
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| | |
| • | during the five consecutive business-day period following any five consecutive trading-day period in which the trading price for the notes (as determined following a request by a holder of the notes in accordance with the procedures described below) on each such trading day was less than 98% of the closing sale price of our common stock multiplied by the applicable conversion rate on such trading day; |
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| • | at any time on or after May 15, 2021; |
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| • | if such notes have been called for redemption by us; or |
|
| • | upon the occurrence of specified corporate transactions; |
| |
| provided that upon the occurrence of certain events described under “— Conversion Rights — Adjustment to Conversion Rights Upon Certain Fundamental Changes — General,” “— Conversion Rights — Adjustment to Conversion Rights Upon Certain Fundamental Changes — Conversion After Public Acquiror Change of Control” or “— Conversion Rights — Conversion Rate Adjustments,” such initial conversion rate may be adjusted as described in each such section; |
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| • | are convertible into cash and shares of our common stock, if any, or, at our option, cash, in an amount equal to the sum of the daily settlement amounts (as described herein) for each day of the 30 trading-day cash settlement averaging period; |
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| • | are redeemable by us in whole or in part at any time on or after May 15, 2013, upon at least 30 days notice but not more than 60 days notice, at a redemption price equal to 100% of the principal amount of the notes to be redeemed, plus accrued and unpaid interest (including contingent interest and additional interest, if any) to, but not including, the redemption date, unless the redemption date falls after a regular record date and on or prior to the related interest payment date, in which case we will pay such interest to the holder of record on the regular record date; |
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| • | are subject to a holder’s option to require us to purchase all or a portion of its notes, as described under “— Purchase of Notes at a Holder’s Option,” on May 15, 2013, May 15, 2016 and May 15, 2021, at a cash purchase price equal to 100% of the principal amount of the notes plus accrued and unpaid interest (including contingent interest and additional interest, if any) to, but not including, the purchase date; |
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| • | are subject to a holder’s option to require us to purchase all or a portion of its notes upon a fundamental change, as described under “— Purchase of Notes at a Holder’s Option Upon a Fundamental Change,” at a cash purchase price equal to 100% of the principal amount of the notes plus accrued and unpaid interest (including contingent interest and additional interest, if any) to, but not including, the purchase date; and |
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| • | are due on May 15, 2026 (the“maturity date”), payable in cash in an amount equal to the principal amount of each note, plus accrued and unpaid interest (including contingent interest and additional interest, if any) to, but not including, the maturity date, unless earlier purchased, redeemed or converted. |
Each Guarantee of a Guarantor:
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| • | is a general unsecured obligation of that Guarantor; |
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| • | is pari passu in right of payment with any existing and future unsubordinated indebtedness and other obligations of that Guarantor; and |
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| • | is effectively subordinated to any secured indebtedness of that Guarantor (including the applicable Guarantor’s guarantee under the Credit Agreement) to the extent of the assets securing such indebtedness. |
We may, without the consent of the holders, issue additional notes under the indenture with the same terms and with the same CUSIP numbers in an unlimited aggregate principal amount as these notes, provided that no such additional notes may be issued unless they are fungible with these notes for U.S. federal income
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tax purposes. We may also, from time to time, repurchase the notes in open market purchases or negotiated transactions without prior notice to holders.
The indenture does not contain any financial covenants and does not restrict Greenbrier or our Subsidiaries from paying dividends, incurring additional indebtedness or issuing or repurchasing other securities. The indenture also does not protect a holder of notes in the event of a highly leveraged transaction or a fundamental change, as defined below, of Greenbrier, except to the extent described below under “— Purchase of Notes at a Holder’s Option Upon a Fundamental Change” and “— Conversion Rights — Adjustment to Conversion Rate Upon Certain Corporate Transactions.”
No sinking fund is provided for the notes.
The notes are issued in book-entry form only in denominations of $1,000 principal amount at issuance and integral multiples thereof. Beneficial interests in the notes are shown on, and transfers may be effected only through, records maintained by the Depository Trust Company(“DTC”), or its nominee, and any such interests may not be exchanged for certificated securities except in limited circumstances.
There is currently no established market for the notes. The notes will not be listed on any securities exchange or automated quotation system. Accordingly, we cannot assure the liquidity of, or a trading market for, the notes.
“Credit Agreement” means the Credit Agreement, dated June 29, 2005, as amended from time to time, among Greenbrier, TrentonWorks Limited, each lender from time to time party thereto, Bank of America, N.A., as administrative agent, and Bank of America, National Association, acting through its Canada branch, and any agreement or agreements evidencing any refunding, replacement, refinancing or renewal, in whole or in part, of the Credit Agreement; provided that such refunding, replacement, refinancing or renewal shall be effected in the commercial bank or institutional lending market, and not in the capital markets.
“Domestic Subsidiary” means any Subsidiary of Greenbrier that was formed under the laws of the United States or any state thereof or the District of Columbia that guarantees or otherwise provides direct credit support for any indebtedness of Greenbrier or any other Subsidiary that guarantees or otherwise provides direct credit support for any indebtedness of Greenbrier.
“Immaterial Subsidiary” means, as of any date, any Domestic Subsidiary whose total assets, as of that date, are less than $1.0 million and whose total revenues for the most recent12-month period does not exceed $1.0 million; provided that a Domestic Subsidiary will not be considered an Immaterial Subsidiary if it, as of any date, together with all other Immaterial Subsidiaries, has net assets as of such date in excess of $5.0 million or has total revenues for the most recent12-month period in excess of $5.0 million; provided further that a Domestic Subsidiary will not be considered to be an Immaterial Subsidiary if it, directly or indirectly provides a guarantee or is otherwise an obligor in respect of any indebtedness of Greenbrier.
The term“indebtedness” means, with respect to any specified person, any indebtedness of such person, whether or not contingent: (1) in respect of borrowed money; (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (3) in respect of banker’s acceptances; (4) representing capital lease obligations; (5) representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or (6) representing any hedging obligations, if and to the extent any of the preceding items (other than letters of credit and hedging obligations) would appear as a liability upon a balance sheet of the specified person prepared in accordance with generally accepted accounting principles. In addition, the term“indebtedness” includes all indebtedness of others secured by a lien on any asset of the specified person (whether or not such indebtedness is assumed by the specified person) and, to the extent not otherwise included, the guarantee by the specified person of any indebtedness of any other person.
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided, however, that at the time any Joint Venture becomes, directly or indirectly, majority-owned by Greenbrier and its Subsidiaries, Greenbrier shall designate whether such Joint Venture shall be deemed a Subsidiary for purposes of the indenture and any such designation of a Joint
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Venture as a Subsidiary shall be irrevocable and made by a resolution of the board of directors of Greenbrier set forth in an officers’ certificate delivered to the trustee contemporaneously with such designation; provided, further that if, at any time, Greenbrier and its Subsidiaries acquire all of the outstanding capital stock and all warrants, options or other rights to acquire capital stock (but excluding any debt security that is convertible into, or exchangeable for, capital stock) of any such Joint Venture, such Joint Venture shall become, without further action by Greenbrier or any other person, a Subsidiary in accordance with the terms of the indenture.
“Subsidiary” means, in respect of any person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such person, (ii) such person and one or more Subsidiaries of such person or (iii) one or more Subsidiaries of such person; provided, however, that a Joint Venture that is majority-owned by Greenbrier and its Subsidiaries shall not be deemed a Subsidiary for purposes of the indenture unless Greenbrier shall designate such Joint Venture as a Subsidiary for purposes of the indenture, which designation shall be irrevocable and made by resolution of the board of directors of Greenbrier set forth in an officers’ certificate delivered to the trustee contemporaneously with such designation; provided, further that if, at any time, Greenbrier and its Subsidiaries acquire all of the outstanding capital stock and all warrants, options or other rights to acquire capital stock (but excluding any debt security that is convertible into, or exchangeable for, capital stock) of any such Joint Venture, such Joint Venture shall become, without further action by Greenbrier or any other person, a Subsidiary for purposes of the indenture.
As used herein,“trading day” means a day during which (i) trading in our common stock generally occurs, (ii) there is no market disruption event and (iii) a closing sale price for our common stock is provided on New York Stock Exchange or, if our common stock is not listed on the New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which our common stock is then listed or, if our common stock is not listed on a U.S. national or regional securities exchange, on the principal other market on which our common stock is then traded or, if our common stock is not traded on any market, then trading day shall mean a day on which the applicable price can be obtained (as determined by our board of directors).
“Market disruption event” means the occurrence or existence on any trading day for our common stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in our common stock or in any options, contracts or future contracts relating to our common stock.
Payments on the Notes
We maintain an office or agency in The City of New York, where we will pay the principal on the notes and you may present the notes for conversion, registration of transfer or exchange for other denominations, which initially is the principal corporate trust office of the trustee presently located at U.S. Bank, National Association, Corporate Trust Office, 100 Wall Street, Suite 1600, New York, NY 10005.
Except as provided below, we will pay interest on:
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| • | global notes to DTC in immediately available funds; |
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| • | any certificated notes having an aggregate principal amount of $5.0 million or less by check mailed to the holders of those notes; and |
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| • | any certificated notes having an aggregate principal amount of more than $5.0 million by wire transfer in immediately available funds if requested in writing by the holders of those notes at least 10 days prior to the relevant interest payment date and otherwise by check mailed to the holders of those notes. |
On the maturity date, each holder will be entitled to receive the principal amount of each note and accrued and unpaid interest (including contingent interest and additional interest, if any) to, but not
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including, the maturity date. With respect to global notes, principal and interest will be paid to DTC in immediately available funds. With respect to any certificated notes, principal and interest (including contingent interest and additional interest, if any) will be payable at our office or agency in New York City, which shall initially be the principal corporate trust office of the trustee at the address set forth above.
Interest
The notes bear interest at an annual rate of 2.375% per annum from May 22, 2006, or from the most recent date to which interest has been paid or provided for. In addition, we will pay contingent interest on the notes in the circumstances described under “— Contingent Interest” and we will pay additional interest on the notes in the circumstances described under “— Registration Rights.” Interest will be payable semi-annually in arrears on May 15 and November 15 of each year, commencing on November 15, 2006, to the holders of record at the close of business on the May 1 or November 1 immediately preceding such interest payment date. As used in this prospectus, the term“close of business” means 5:00 p.m., New York City time.
Except as described below, we will not make any separate payment or other adjustment for accrued and unpaid interest (including contingent interest and additional interest, if any) on any notes when they are converted. Our delivery to the holder of the cash payment and any shares of our common stock deliverable in respect of the conversion of a note will be deemed to satisfy our obligation to pay (i) the principal amount of the note and (ii) accrued but unpaid interest attributable to the period from the most recent interest payment date to the conversion date. As a result, accrued but unpaid interest to the conversion date is deemed to be paid in full rather than cancelled, extinguished or forfeited.
If a holder of notes converts after the close of business on a regular record date for an interest payment but prior to the corresponding interest payment date, the holder on the regular record date will receive accrued interest (including contingent interest and additional interest, if any) on those notes on that interest payment date, notwithstanding the conversion of those notes prior to that interest payment date. However, at the time that the holder surrenders those notes for conversion, the holder must pay to us an amount equal to the interest (including contingent interest and additional interest, if any) that has accrued and that will be paid on the interest payment date. The preceding sentence does not apply to (1) a holder that converts notes that have been called by us for redemption and in respect of which we have specified a redemption date that is after a record date and on or prior to the related interest payment date, (2) a holder that converts notes in respect of which we have specified a fundamental change purchase date that is after a regular record date and on or prior to the corresponding interest payment date, and (3) any overdue interest existing at the time of conversion with respect to the notes converted, but only to the extent of the amount of such overdue interest. Accordingly, under the circumstances described in clauses (1) and (2), if a holder of notes chooses to convert those notes on a date that is after a regular record date but prior to the corresponding interest payment date, the holder will not be required to pay us, at the time the holder surrenders those notes for conversion, the amount of interest (including contingent interest and additional interest, if any) the holder of those notes on the record date will receive on the interest payment date.
If any interest payment date (other than an interest payment date coinciding with the maturity date or earlier redemption date) of a note falls on a day that is not a business day, such interest payment date will be postponed to the next succeeding business day. If the maturity date or a redemption date of a note falls on a day that is not a business day, the required payment of interest, if any, and principal will be made on the next succeeding business day and no interest on such payment will accrue for the period from and after the maturity date or redemption date to such next succeeding business day.
The term“business day” means, with respect to any note, any day other than a Saturday, a Sunday or a day on which banking institutions in the City of New York are authorized or required by law, regulation or executive order to close.
Each payment of interest due on the notes will include interest accrued through the day before the applicable interest payment date. Interest will be computed on the basis of a360-day year comprised of twelve30-day months.
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Interest will cease to accrue on a note upon its maturity, conversion, redemption, or purchase, including upon a fundamental change.
Contingent Interest
Subject to the accrual and record date provisions described above, we will pay contingent interest to the holders of notes during any six-month period from May 15 to November 14 and from November 15 to May 14, commencing with the six-month period beginning on May 15, 2013, if the trading price of a note for each of the five trading days ending on the third trading day immediately preceding the first day of the relevant six-month period equals 120% or more of the principal amount of the note.
The amount of contingent interest payable per note with respect to any six-month period will equal 0.375% per annum of the average trading price of such note for the five trading days referred to above.
The“trading price”of a note on any date of determination means the average of the secondary market bid quotations per note obtained by the bid solicitation agent for $5.0 million principal amount of notes at approximately 3:30 p.m., New York City time, on such determination date from two independent nationally-recognized securities dealers we select, but if only one such bid can reasonably be obtained by the bid solicitation agent, this one bid shall be used. If the bid solicitation agent cannot reasonably obtain at least one bid for $5.0 million principal amount of the notes from a nationally-recognized securities dealer or if, in our reasonable judgment, the bid quotations are not indicative of the secondary market value of the notes, then the market price of a note will be determined by our board of directors based on a good faith estimate of fair value of the notes.
The bid solicitation agent will initially be the trustee. We may change the bid solicitation agent, but the bid solicitation agent will not be our affiliate. The bid solicitation agent will solicit bids from securities dealers that are believed by us to be willing to bid for the notes.
Upon determination that holders of notes will be entitled to receive contingent interest that will become payable during a relevant six-month period, on or prior to the start of such six-month period, we will provide notice to the trustee setting forth the amount of contingent interest per $1,000 principal amount of notes and disseminate a press release through a public medium that is customary for such press releases.
We may unilaterally increase the amount of contingent interest we may pay or pay interest or other amounts we are not obligated to pay, but we will have no obligation to do so.
Under the indenture, we and each holder agreed, for U.S. federal income tax purposes, to treat the notes as indebtedness that is subject to Treasury regulations governing contingent payment debt instruments.
Subsidiary Guarantees
The notes are unconditionally guaranteed (the“Subsidiary Guarantees”) by each existing or future Domestic Subsidiary (other than any Domestic Subsidiary that is an Immaterial Subsidiary). These Subsidiary Guarantees are joint and several obligations of the Guarantors. The obligations of each Guarantor under its Subsidiary Guarantee are limited as necessary to prevent that Subsidiary Guarantee from constituting a fraudulent transfer under applicable law. See “Risk Factors — Certain events may delay payment on, lead to the subordination of, or void our and our subsidiaries’ obligations under the notes.”
The Subsidiary Guarantee of a Guarantor will be released:
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| (1) prior to the satisfaction and discharge of the indenture governing the 8.375% Notes (the “8.375% Note Indenture”), (A) upon consummation of any sale or other disposition of all of the capital stock of that Guarantor to a person that is not (either before or after giving effect to such transaction) Greenbrier or a Restricted Subsidiary (as defined in the 8.375% Note Indenture) of Greenbrier if the sale or other disposition does not violate the “Asset Sale” provisions in the 8.375% Note Indenture or (B) if Greenbrier designates any such Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of the 8.375% Note Indenture; |
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| (2) after the satisfaction and discharge of the 8.375% Note Indenture, upon consummation of any sale or other disposition of all of the capital stock of that Guarantor to a person that is not (either before or after giving effect to such transaction) Greenbrier or a subsidiary of Greenbrier if the sale or other disposition does not violate the terms of any other indebtedness of Greenbrier guaranteed by that Guarantor; |
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| (3) if that Guarantor ceases to directly or indirectly guarantee any indebtedness of Greenbrier; or |
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| (4) upon satisfaction and discharge of the indenture as provided below under the caption “— Satisfaction and Discharge.” |
Ranking of Notes
The notes are our senior unsecured obligations and the Subsidiary Guarantees are the senior unsecured obligations of the Guarantors and rank equally in right of payment with all of our and the Guarantors’ existing and future unsecured and unsubordinated indebtedness and other obligations (including trade payables and the 8.375% Notes) and senior in right of payment to all of our existing and future subordinated indebtedness. The notes are effectively subordinated to any of our and the Guarantors’ existing and future secured indebtedness (including any borrowings under the Credit Agreement) to the extent of the value of the assets securing such indebtedness. In addition, the notes are effectively subordinated to all liabilities of our Subsidiaries that have not guaranteed the notes.
Conversion Rights
Subject to the satisfaction of the conditions and during the periods described below under “— Conversion Upon Satisfaction of Sale Price Condition,” “— Conversion Upon Satisfaction of Trading Price Condition,” “— Conversion Upon Notice of Redemption,” and “— Conversion Upon Specified Corporate Transactions” or on or after May 15, 2021, a holder may convert each of its notes prior to the close of business on the business day immediately preceding the stated maturity of the notes into cash and shares of our common stock, if any, initially at a conversion rate of 20.8125 shares of common stock per $1,000 principal amount of notes (equivalent to an initial conversion price of approximately $48.05 per share). The conversion rate and the conversion price in effect at any given time are referred to as the“applicable conversion rate” and the“applicable conversion price,” respectively, and will be subject to adjustment as described below.
A holder may convert fewer than all of its notes so long as the notes converted are in a principal amount that is an integral multiple of $1,000. Upon surrender of a note for conversion, we will deliver cash and shares of our common stock, if any, as described below under “— Payment Upon Conversion.”
Holders may surrender notes for conversion under the following circumstances:
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| • | during any calendar quarter commencing after June 30, 2006, if the closing sale price per share of our common stock for at least 20 trading days in the period of 30 consecutive trading days ending on the last trading day of the preceding calendar quarter is greater than or equal to 130% of the applicable conversion price on such last trading day (the“sale price condition”); |
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| • | on or after May 15, 2021; |
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| • | if we have called the notes for redemption, until the close of business on the second trading day immediately preceding the redemption date; |
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| • | during the five consecutive business-day period following any five consecutive trading-day period in which the trading price for the notes on each such trading day was less than 98% of the closing sale price of our common stock multiplied by the applicable conversion rate on such trading day; and |
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| • | during prescribed periods, upon the occurrence of specified corporate transactions. |
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Each of these circumstances (other than the ability to convert on or after May 15, 2021) is more fully described below.
We will promptly notify holders by press release once the notes have become convertible upon any of the foregoing circumstances; provided that if the event resulting in the notes becoming convertible is the satisfaction of the sale price condition and such condition has been satisfied in two or more consecutive quarters, we may notify holders of the continued convertibility of the notes by including a notice on our corporate website.
If we call a holder’s notes for redemption, the holder may convert the notes only until the close of business on the second trading day immediately preceding the redemption date unless we fail to pay the redemption price. If a holder has already delivered a purchase election with respect to a note as described under either “— Purchase of Notes at a Holder’s Option” or “— Purchase of Notes at a Holder’s Option Upon a Fundamental Change,” it may not surrender that note for conversion until it has withdrawn the purchase election in accordance with the indenture. If a holder converts its notes, we will pay any documentary, stamp or similar issue or transfer tax due on the issue of shares of our common stock upon the conversion, unless the tax is due because a holder requests the shares to be issued or delivered to another person, in which case that holder will pay that tax.
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| Conversion Upon Satisfaction of Sale Price Condition |
A holder may surrender its notes for conversion during any calendar quarter (and only during such calendar quarter) commencing after June 30, 2006, if the closing sale price per share of our common stock for at least 20 trading days during the period of 30 consecutive trading days ending on the last trading day of the preceding calendar quarter is greater than or equal to 130% of the applicable conversion price per share of our common stock on such last trading day. Upon surrender by a holder of its notes for conversion, we will deliver cash and shares of common stock, if any, as described below under “— Payment Upon Conversion.”
The“closing sale price” of our common stock on any date means the closing sale price per share (or, if no closing sale price is reported, the average of the bid and asked prices or, if there is more than one bid or ask price, the average of the average bid and the average asked prices) on such date as quoted on the New York Stock Exchange or, if our common stock is not quoted on the New York Stock Exchange, in composite transactions for the principal U.S. national securities exchange on which our common stock is traded. If our common stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “closing sale price” will be the last quoted bid price for our common stock in theover-the-counter market on the relevant date as reported by Pink Sheets, LLC or a similar organization. If our common stock is not so quoted, the “closing sale price” will be the average of the mid-point of the last bid and ask prices for our common stock on the relevant date from each of at least two independent nationally recognized investment banking firms selected by us for this purpose. If at least two independent quotes cannot be obtained, the “closing sale price” will be determined in good faith by our board of directors. The closing sale price will be determined without reference to extended or after-hours trading.
If at any time prior to May 15, 2021, the sale price condition described herein is satisfied in respect of a calendar quarter, we will publish a notice advising that the common stock price condition has been satisfied in respect of such calendar quarter in a press release through PR Newswire, Dow Jones & Co., Inc., Business Wire, or Bloomberg Business News Company, or, if any such organization is not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to disseminate broadly the relevant information to the public, and will make this information available on our website or through another public medium as we may use at that time.
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| Conversion Upon Satisfaction of Trading Price Condition |
A holder may surrender the notes for conversion into cash and, if applicable, shares of our common stock or, at the option of the Company, cash prior to the stated maturity of the notes during the five consecutive business-day period immediately following any five consecutive trading-day period in which the
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trading price per $1,000 principal amount of notes (as determined following a request by a holder of the notes in accordance with the procedures described below) for each trading day of such measurement period was less than 98% of the conversion value on such trading day.
The“conversion value” of the notes on any date of determination means the product of the closing sale price per share of our common stock on such day and the applicable conversion rate in effect on such day.
For this purpose, the“trading price” of the notes on any date of determination means the average of the secondary market bid quotations per $1,000 principal amount of notes obtained by the trustee for $5.0 million principal amount of the notes at approximately 3:30 p.m., New York City time, on such determination date from two independent nationally recognized securities dealers we select, but if only one such bid can reasonably be obtained by the trustee, this one bid shall be used. If the trustee cannot reasonably obtain at least one bid for $5.0 million principal amount of the notes from a nationally recognized securities dealer, then, for purposes of the trading price condition only, the trading price per $1,000 principal amount of the notes will be deemed to be less than 98% of the conversion value of the notes on such determination date, as applicable.
The trustee shall have no obligation to determine the trading price of the notes unless we have requested such determination, and we shall have no obligation to make such request unless a holder provides us with reasonable evidence that the trading price per $1,000 principal amount of the notes would be less than 98% of the conversion value on such determination date. Upon receipt of such reasonable evidence, we shall instruct the trustee to determine the trading price of the notes beginning on the next trading day and on each successive trading day until the trading price is greater than or equal to 98% of the conversion value, as applicable. If, however, within five business days after providing us such reasonable evidence, we fail to instruct the trustee to determine the trading price of the notes, the “trading price” on each day after such fifth business day will be deemed to be less than 98% of the conversion value, as applicable, until we so instruct the trustee to determine the trading price.
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| Conversion Upon Notice of Redemption |
If we call any or all of the notes for redemption, a holder may convert any of its notes at any time prior to the close of business on the second trading day immediately prior to the redemption date. Upon surrender by a holder of its notes for conversion, we will deliver cash and shares of common stock, if any, as described below under “— Payment Upon Conversion.”
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| Conversion Upon Specified Corporate Transactions |
If we elect to:
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| • | distribute to all or substantially all holders of our common stock certain rights or warrants entitling them to purchase, for a period expiring within 60 days after the record date of the distribution, shares of our common stock at a price less than the closing sale price of a share of our common stock on the trading day immediately preceding the announcement date of the distribution; or |
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| • | distribute to all or substantially all holders of our common stock assets (including cash), debt securities or rights or warrants to purchase our securities, which distribution has a per share value as determined by our board of directors exceeding 10% of the closing sale price of our common stock on the trading day immediately preceding the announcement date for such distribution, |
we must notify holders of the notes at least 35 trading days prior to the ex-dividend date for such distribution. Once we have given such notice, holders may surrender their notes for conversion at any time until the earlier of the close of business on the trading day immediately prior to the ex-dividend date or any announcement that such distribution will not take place. No holder may exercise this right to convert if the holder otherwise could participate in the distribution without conversion. The“ex-dividend” date is the first date upon which a sale of the common stock does not automatically transfer the right to receive the relevant
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distribution from the seller of the common stock to its buyer. Upon surrender by a holder of its notes for conversion, we will deliver cash and shares of common stock, if any, as described below under “— Payment Upon Conversion.”
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| Certain Corporate Transactions |
If:
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| • | a transaction described in clause (1) of the definition of “fundamental change” as set forth under “— Purchase of Notes at a Holder’s Option Upon a Fundamental Change” below (regardless of whether such transaction constitutes a fundamental change) occurs; |
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| • | a transaction or series of transactions described in clause (3) of the definition of “fundamental change” as set forth under “— Purchase of Notes at a Holder’s Option Upon a Fundamental Change” below (regardless of whether such transaction constitutes a fundamental change) occurs where our common stock would be converted into cash, securities and/or other property; or |
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| • | a “fundamental change” occurs pursuant to clause (5) of the definition thereof, |
then in each case a holder may surrender notes for conversion at any time from and after the effective date of such transaction until and including the date which is 25 trading days after the effective date of such transaction (or, if such transaction also results in holders having a right to require us to purchase their notes, until the fundamental change purchase date). At the effective date of any such transaction, if applicable, a holder’s right to convert its notes into cash and shares of our common stock, if any, will be changed into a right to convert the notes into the kind and amount of reference property as described in “— Change in the Conversion Right Upon Certain Reclassifications, Business Combinations and Asset Sales,” except to the extent provided otherwise as described in “— Adjustment to Conversion Rate Upon Certain Corporate Transactions — Conversion After a Public Acquirer Change of Control.” We will notify holders and the trustee at the same time we publicly announce any transaction described in the second and third bullet points above (but in no event less than 10 days prior to the effective date of such transaction). We will notify holders and the trustee of any transaction described in the first bullet point above within three business days of the date of the filing announcing the consummation of such transaction.
If a holder elects to convert its notes in connection with a transaction set forth above and such transaction is a make-whole transaction (as defined herein) we will increase the conversion rate by additional shares of our common stock as described in “— Adjustments to Conversion Rate Upon Certain Corporate Transactions — General” or, in lieu thereof, we may in certain circumstances elect to adjust the conversion rate and related conversion obligation so that the notes are convertible into shares of common stock of the acquiring or surviving entity as described in “— Adjustment to Conversion Rate Upon Certain Corporate Transactions — Conversion After a Public Acquirer Change of Control.”
Conversion Procedures
To convert a certificated note, a holder must do each of the following:
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| • | complete and manually sign the conversion notice on the back of the note, or a facsimile of the conversion notice, and deliver this irrevocable notice to the conversion agent; |
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| • | surrender the note to the conversion agent; |
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| • | if required, furnish appropriate endorsements and transfer documents; |
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| • | if required, pay all transfer or similar taxes; and |
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| • | if required, pay funds equal to interest payable on the next interest payment date. |
If a holder’s interest is a beneficial interest in a global note, to convert a holder must comply with the last three requirements listed above and comply with the depositary’s procedures for converting a beneficial interest in a global note. The date a holder complies with the applicable requirements is referred to as the
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“conversion date.” The notes will be deemed to have been converted immediately prior to the close of business on the conversion date.
The conversion agent will initially be the trustee. The conversion agent will, on a holder’s behalf, convert the notes into cash and shares of common stock, if any. A holder may obtain copies of the required form of the conversion notice from the conversion agent. Payments of cash and, if shares of common stock are to be delivered, a stock certificate or certificates will be delivered to the holder, or a book-entry transfer through DTC will be made, by the conversion agent for the number of shares of common stock as set forth below under “— Payment Upon Conversion.”
Payment Upon Conversion
Each $1,000 principal amount of notes will be converted into cash and shares of our common stock, if any, as described below.
In connection with any conversion, we will satisfy our obligation to convert the notes (the“conversion obligation”) by delivering to holders, on the third business day following the last day of the related cash settlement averaging period, in respect of each $1,000 aggregate principal amount of notes being converted, a“settlement amount” equal to the sum of the“daily settlement amount” for each of the 30 trading days during the cash settlement averaging period.
The“daily settlement amount,” for each of the 30 trading days during the cash settlement averaging period, shall consist of:
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| • | cash equal to the lesser of $33.3333 and the daily conversion value; and |
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| • | to the extent the daily conversion value exceeds $33.3333, a number of shares (the“daily share amount”) equal to (A) the difference between the daily conversion value and $33.3333, divided by (B) the volume weighted average price of our common stock (or the consideration into which our common stock has been converted in connection with certain corporate transactions) for such day. The sum of the daily share amounts for each of the 30 trading days during the cash settlement averaging period will equal the“residual value shares.” |
We may elect to pay cash to holders of notes surrendered for conversion in lieu of all or a portion of the residual value shares of common stock issuable upon conversion of such notes. If we do so elect to pay cash, we will notify you through the trustee of the dollar amount to be satisfied in cash (expressed as a percentage of the residual value shares that will be paid in cash in lieu of our common stock) at any time on or before the date that is three business days following receipt of your notice of conversion(“cash settlement notice period”). If we timely elect to pay cash for any portion of the residual value shares otherwise issuable to you, you may retract the conversion notice at any time during the two business-day period immediately following the cash settlement notice period (the“conversion retraction period”). If we do not make such an election, no retraction can be made (and a conversion notice shall be irrevocable).
The amount of cash payable in such event in respect of each residual value share otherwise issuable upon conversion shall equal the sum of the residual cash value for such share calculated for each day of the conversion reference period. The“residual cash value” for each date shall be the product of (1) the percentage of each residual value share otherwise issuable upon conversion which we elect to pay in cash and (2) the cash value of the daily share amount for such date. The cash value of the daily share amount shall be determined by multiplying the daily share amount for such date by the volume weighted average price of our common stock for such date.
“Daily conversion value” means, for each of the 30 consecutive trading days during the cash settlement averaging period, one-thirtieth (1/30) of the product of (1) the applicable conversion rate and (2) the volume weighted average price of our common stock (or the consideration into which our common stock has been converted in connection with certain corporate transactions) on such day.
We will not issue fractional shares of common stock upon conversion of the notes. Instead, we will pay the cash value of such fractional shares based upon the volume weighted average price of our common stock
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(or the consideration into which our common stock has been converted in connection with certain corporate transactions) on the last day of the cash settlement averaging period. Upon conversion of a note, a holder will not receive any separate cash payment of interest (including contingent interest and additional interest, if any) unless such conversion occurs between a record date and the interest payment date to which that record date relates.
For purposes of this section “— Payment Upon Conversion,”“volume weighted average price” per share of our common stock on any trading day means the volume weighted average price on the principal exchange orover-the-counter market on which our common stock (or other security) is then listed or traded, from 9:30 a.m. to 4:00 p.m. (New York City time) on that trading day as displayed under the heading “Bloomberg VWAP” on Bloomberg Page GBX N Equity AQR (or the Bloomberg Page for any security into which our common stock has been converted in connection with a fundamental change), or if such volume weighted average price is not available, our board of director’s reasonable, good faith estimate of the volume weighted average price of the shares of our common stock, or other security, on such trading day.
The“cash settlement averaging period” with respect to any note means (a) if the relevant conversion date occurs prior to the earlier of (i) the date on which we issue notice of redemption or (ii) the 36th trading day prior to the maturity date, the 30 consecutive trading days beginning on the third trading day after the related conversion date, (b) if the relevant conversion date occurs after we issue a notice of redemption, the cash settlement averaging period means the 30 consecutive trading days beginning on and including the 30th trading day immediately preceding the applicable redemption date and (c) for any notice of conversion given after the 36th trading day prior to the maturity date, the 30 consecutive trading days commencing on the trading day immediately following the maturity date.
If a holder tenders notes for conversion and the conversion value is being determined at a time when the notes are convertible into other property in addition to or in lieu of our common stock, the conversion value of each note will be determined based on the kind and amount of shares of stock, securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of our common stock equal to the conversion rate would have owned or been entitled to receive in the transaction, the result of which is that the notes are convertible into such other property, and the value thereof during the cash settlement averaging period.
Conversion Rate Adjustments
The conversion rate will be adjusted as described below, except that we will not make any adjustments to the conversion rate if holders of the notes participate, as a result of holding notes, in any of the transactions described below without having to convert their notes.
(1) If we issue shares of our common stock as a dividend or distribution on shares of our common stock, or if we effect a share split or share combination, the conversion rate will be adjusted based on the following formula:
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CR | | 0 = | | the conversion rate in effect immediately prior to such event |
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CR1 | | = | | the conversion rate in effect immediately after such event |
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OS | | 0 = | | the number of shares of our common stock outstanding immediately prior to such event |
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OS1 | | = | | the number of shares of our common stock outstanding immediately after such event. |
(2) If we issue to all or substantially all holders of our common stock, other than affiliates, any rights, warrants or other convertible securities entitling them for a period of not more than 60 days to subscribe for or purchase shares of our common stock, or securities convertible into shares of our common stock at a price per share or a conversion price per share less than the closing sale price of shares of our common stock on
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the trading day immediately preceding the date of announcement of such issuance, the conversion rate will be adjusted based on the following formula (provided that the conversion rate will be readjusted to the extent that such rights, warrants or other convertible securities are not exercised prior to their expiration):
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CR1 = CR | | ×
0 | | OS 0 + X
OS0 + Y |
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CR | | 0 = | | the conversion rate in effect immediately prior to such event |
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CR1 | | = | | the conversion rate in effect immediately after such event |
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OS | | 0 = | | the number of shares of our common stock outstanding immediately prior to such event |
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X | | = | | the total number of shares of our common stock issuable pursuant to such rights, warrants or other convertible securities |
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Y | | = | | the number of shares of our common stock equal to the aggregate price payable to exercise such rights, warrants or other convertible securities divided by the average of the closing sale prices of our common stock for the 10 consecutive trading-day period ending on the trading day immediately preceding the announcement date of such issuance. |
(3) If we distribute shares of our capital stock, evidences of our indebtedness or other assets or property of ours to all or substantially all holders of our common stock, excluding:
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| • | dividends, distributions and rights or warrants referred to in clause (1) or clause (2) above; and |
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| • | dividends or distributions paid exclusively in cash, |
then the conversion rate will be adjusted based on the following formula:
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CR | | 0 = | | the conversion rate in effect immediately prior to such distribution |
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CR1 | | = | | the conversion rate in effect immediately after such distribution |
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SP | | 0 = | | the average of the closing sale prices of our common stock over the 10 consecutive trading-day period ending on the trading day immediately preceding the ex-dividend date for such distribution |
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FMV | | = | | the fair market value (as determined by our board of directors) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of our common stock on the record date for such distribution. |
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| With respect to an adjustment pursuant to this clause (3) where there has been a payment of a dividend or other distribution on our common stock or shares of capital stock of any class or series, or similar |
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| |
| equity interest, of or relating to a Subsidiary or other business unit, which we refer to as a “spin-off,” the conversion rate will be increased based on the following formula: |
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CR | | 0 = | | the conversion rate in effect immediately prior to such distribution |
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CR1 | | = | | the conversion rate in effect immediately after such distribution |
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FMV | | 0 = | | the average of the closing sale prices of the capital stock or similar equity interest distributed to holders of our common stock applicable to one share of our common stock over the first 10 consecutive trading-day period after the effective date of the spin-off |
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MP | | 0 = | | the average of the closing sale prices of our common stock over the first 10 consecutive trading-day period after the effective date of the spin-off. |
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| The adjustment to the conversion rate under the preceding paragraph will occur on the tenth trading day after the effective date of the spin-off. |
(4) If any cash dividend or distribution made to all or substantially all holders of our common stock during any quarterly fiscal period is in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period (the“current dividend rate”), exceeds $0.08 per share (appropriately adjusted from time to time for an share dividends on, or subdivisions of, our common stock) (the“initial dividend rate”), the conversion rate will be adjusted based on the following formula:
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CR | | 0 = | | the conversion rate in effect immediately prior to the ex-dividend date for such distribution |
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CR1 | | = | | the conversion rate in effect immediately after the ex-dividend date for such distribution |
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SP | | 0 = | | the closing sale prices of our common stock on the trading day immediately preceding the ex-dividend date for such distribution; |
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C | | = | | the amount in cash per share we distribute to holders of our common stock in excess of the initial dividend rate. |
(5) If we make or if our Subsidiaries make a payment in respect of a tender offer or exchange offer for our common stock, to the extent that the per share consideration paid in such offer exceeds the average of the closing sale price of our common stock over the 10 consecutive trading-day period after the expiration of such tender or exchange offer, the conversion rate will be increased based on the following formula:
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CR1 = CR | | ×
0 | | AC + (SP1 × OS1)
OS0 × SP1 |
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| | | | |
CR | | 0 = | | the conversion rate in effect on the date such tender or exchange offer expires |
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CR1 | | = | | the conversion rate in effect on the day next succeeding the date such tender or exchange offer expires |
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AC | | = | | the aggregate value of all cash and any other consideration (as determined by our board of directors) paid or payable for shares purchased in such tender or exchange offer |
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OS | | 0 = | | the number of shares of common stock outstanding immediately prior to the date such tender or exchange offer expires |
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OS1 | | = | | the number of shares of common stock outstanding immediately after the date such tender or exchange offer expires |
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SP1 | | = | | the average of the closing sale prices of our common stock over the 10 consecutive trading-day period commencing on the trading day next succeeding the date such tender or exchange offer expires. |
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| If, however, the application of the foregoing formula would result in a decrease in the conversion rate, no adjustment to the conversion rate will be made. |
To the extent we have a rights plan in effect upon conversion of the notes into common stock, the holder will receive (except to the extent we settle our conversion obligations in cash), in addition to shares of common stock, if any, the rights under the rights plan with respect to such shares unless the rights have separated from our common stock prior to the time of conversion, in which case the conversion rate will be adjusted at the time of separation as if we made a distribution referred to in clause (3) above, subject to readjustment in the event of the expiration, termination or redemption of such rights.
To the extent permitted by law, we may, from time to time, increase the conversion rate for a period of at least 20 business days if our board of directors determines that such an increase would be in our best interests. Any such determination by our board of directors will be conclusive. We will give holders at least 15 business days notice of any increase in the conversion rate. In addition, we may increase the conversion rate if our board of directors deems it advisable to avoid or diminish any income tax to holders of common stock resulting from any distribution of common stock or similar event.
We will not be required to make an adjustment in the conversion rate unless the adjustment would require a change of at least one percent in the conversion rate. However, any adjustments that are not required to be made because they would have required an increase or decrease of less than one percent will be carried forward and taken into account in any subsequent adjustment of the conversion rate or in connection with any conversion of the notes following a call for redemption, occurrence of a fundamental change or at maturity, as applicable. Except as described above in this section, we will not adjust the conversion rate for any issuance of our common stock or any securities convertible into or exchangeable or exercisable for our common stock or rights to purchase our common stock or such convertible, exchangeable or exercisable securities.
A holder may, in some circumstances, including the distribution of cash dividends to stockholders, be deemed to have received a distribution or dividend subject to U.S. federal income tax as a result of an adjustment or the nonoccurrence of an adjustment to the conversion rate. See “United States Federal Income Tax Considerations — U.S. Holders — Constructive Distributions” and “— Consequences toNon-U.S. Holders — Dividends and Constructive Dividends.”
Change in the Conversion Right Upon Certain Reclassifications, Business Combinations and Asset Sales
If we reclassify or change our common stock (other than a change only in par value or a change as a result of a subdivision or combination of our common stock) or we are a party to a consolidation, merger or binding share exchange, or if we sell, transfer, lease, convey or otherwise dispose of all or substantially all of our property or assets, in each case, in a transaction in which holders of our common stock receive stock, other securities, other property, assets or cash for their common stock(“reference property”), then, as of the
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effective time of such transaction, and unless we have elected to follow the provisions described under “— Adjustment to Conversion Rate Upon Certain Corporate Transactions — Conversion After a Public Acquirer Change of Control,” the right to convert notes into cash and shares of our common stock, if any, will be changed into a right to convert notes into cash and reference property based on the 30 trading-day daily settlement amounts of the reference property and the applicable conversion rate, as described under “— Payment Upon Conversion.” In such a case, any increase in the applicable conversion rate by additional shares as described in “— Adjustment to Conversion Rate Upon Certain Corporate Transactions — General” will not be payable in shares of our common stock, but will represent a right to receive additional reference property. However, if such a transaction also constitutes a “public acquirer change of control,” then we may in certain circumstances elect to change the conversion rate in the manner described under “— Adjustment to Conversion Rate Upon Certain Corporate Transactions — Public Acquiror Change of Control” in lieu of changing the conversion rate in the manner described in this section. The conversion value and the amounts received in settlement of our conversion obligation will be computed as set forth under “— Payment Upon Conversion.”
In the event holders of our common stock have the opportunity to elect the form of consideration to be received in such transaction, we will make adequate provision whereby the holders of the notes shall have a reasonable opportunity to determine the form of consideration into which the notes shall be convertible from and after the effective date of such transaction, in each case, for purposes of all outstanding notes, treated as a single class. The determination (i) will be made by holders representing a plurality of notes participating in such determination, (ii) will be subject to any limitations to which all of the holders of our common stock are subject, including, but not limited to, pro rata reductions applicable to any portion of the consideration payable in such transaction and (iii) will be conducted in such a manner as to be completed by the date which is the earlier of (a) the deadline for elections to be made by holders of our common stock, and (b) two trading days prior to the anticipated effective date of such transaction.
A change in the conversion right described in this section could substantially lessen or eliminate the value of the conversion right of the notes. For example, if a third party acquires us in a cash merger, any amount previously payable upon conversion of the notes in shares of our common stock would thereafter be payable in cash and would no longer be payable in securities whose value could increase depending on our future financial performance, prospects and other factors.
There is no precise, established definition of the phrase “substantially all” of our properties and assets under the laws of the State of New York, which governs the indenture and the notes, or under the laws of the State of Oregon, our state of incorporation. Accordingly, the effectiveness of the above provisions in the event of a conveyance, transfer, sale, lease or other disposition of less than all of our properties and assets may be uncertain.
Adjustment to Conversion Rate Upon Certain Corporate Transactions
If the effective date or anticipated effective date of a make-whole transaction occurs on or prior to May 15, 2013 and a holder elects to convert its notes during the time periods specified under “— Conversion Rights — Conversion Upon Specified Corporate Transactions — Certain Corporate Transactions” (regardless of whether the notes are otherwise convertible during such time), we will increase the conversion rate for the notes surrendered for conversion by a number of additional shares (the“additional shares”) as described below.
A“make-whole transaction” is any transaction or event described under “— Conversion Rights — Conversion Upon Specified Corporate Transactions — Certain Corporate Transactions” pursuant to which 10% or more of the consideration for our common stock (other than cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights) in such transaction or event consists of cash, securities or other property that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange.
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The number of additional shares will be determined by reference to the table below, based on the date on which such make-whole transaction becomes effective (the“effective date”) and the price (the“stock price”) paid per share for our common stock in such make-whole transaction. If holders of our common stock receive only cash in such make-whole transaction, the stock price shall be the cash amount paid per share. Otherwise, the stock price shall be the average of the closing sale prices of our common stock on the five trading days prior to but not including the effective date of such make-whole transaction.
The stock prices set forth in the first row of the table below (i.e., the column headers) will be adjusted as of any date on which the conversion rate of the notes is adjusted, as described above under “— Conversion Rate Adjustments.” The adjusted stock prices will equal the product of the stock prices applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the conversion rate immediately prior to the adjustment giving rise to the stock price adjustment and the denominator of which is the conversion rate as so adjusted. The number of additional shares will be adjusted in the same manner as the conversion rate as set forth under “— Conversion Rate Adjustments.”
The following table sets forth the stock price and number of additional shares to be added to the conversion rate per $1,000 principal amount of notes:
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| | | Stock Price | |
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| Effective Date | | $36.96 | | | $40.00 | | | $42.50 | | | $45.00 | | | $50.00 | | | $55.00 | | | $60.00 | | | $65.00 | | | $70.00 | | | $75.00 | | | $100.00 | | | $125.00 | |
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| May 22, 2006 | | | 6.2438 | | | | 5.3616 | | | | 4.7613 | | | | 4.2506 | | | | 3.4355 | | | | 2.8220 | | | | 2.3500 | | | | 1.9801 | | | | 1.6853 | | | | 1.4472 | | | | 0.7448 | | | | 0.4248 | |
| May 15, 2007 | | | 6.2438 | | | | 5.3514 | | | | 4.7234 | | | | 4.1913 | | | | 3.3480 | | | | 2.7193 | | | | 2.2405 | | | | 1.8690 | | | | 1.5759 | | | | 1.3414 | | | | 0.6662 | | | | 0.3702 | |
| May 15, 2008 | | | 6.2438 | | | | 5.3193 | | | | 4.6588 | | | | 4.1023 | | | | 3.2275 | | | | 2.5833 | | | | 2.0988 | | | | 1.7279 | | | | 1.4391 | | | | 1.2110 | | | | 0.5747 | | | | 0.3096 | |
| May 15, 2009 | | | 6.2438 | | | | 5.2525 | | | | 4.5533 | | | | 3.9681 | | | | 3.0580 | | | | 2.3986 | | | | 1.9113 | | | | 1.5448 | | | | 1.2646 | | | | 1.0473 | | | | 0.4675 | | | | 0.2424 | |
| May 15, 2010 | | | 6.2438 | | | | 5.1401 | | | | 4.3915 | | | | 3.7705 | | | | 2.8190 | | | | 2.1454 | | | | 1.6602 | | | | 1.3051 | | | | 1.0410 | | | | 0.8420 | | | | 0.3454 | | | | 0.1718 | |
| May 15, 2011 | | | 6.1930 | | | | 4.9469 | | | | 4.1297 | | | | 3.4606 | | | | 2.4592 | | | | 1.7768 | | | | 1.3064 | | | | 0.9782 | | | | 0.7463 | | | | 0.5801 | | | | 0.2118 | | | | 0.1028 | |
| May 15, 2012 | | | 6.0342 | | | | 4.5847 | | | | 3.6505 | | | | 2.9037 | | | | 1.8382 | | | | 1.1726 | | | | 0.7606 | | | | 0.5064 | | | | 0.3490 | | | | 0.2505 | | | | 0.0841 | | | | 0.0442 | |
| May 15, 2013 | | | 0.0000 | | | | 0.0000 | | | | 0.0000 | | | | 0.0000 | | | | 0.0000 | | | | 0.0000 | | | | 0.0000 | | | | 0.0000 | | | | 0.0000 | | | | 0.0000 | | | | 0.0000 | | | | 0.0000 | |
The exact stock prices and effective dates may not be set forth in the table above, in which case:
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| • | If the stock price is between two stock price amounts in the table or the effective date is between two effective dates in the table, the number of additional shares will be determined by a straight-line interpolation between the number of additional shares set forth for the higher and lower stock price amounts and the two dates, as applicable, based on a365-day year. |
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| • | If the stock price is in excess of $125.00 per share (subject to adjustment), no additional shares will be added to the conversion rate upon conversion. |
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| • | If the stock price is less than $36.96 per share (subject to adjustment), no additional shares will be added to the conversion rate upon conversion. |
Notwithstanding the foregoing, the conversion rate shall not exceed 27.0563 per $1,000 principal amount of notes on account of adjustments described in this section, subject to the adjustments set forth in clauses (1) through (5) of “— Conversion Rate Adjustments.” Further, notwithstanding anything in “— Conversion Rate Adjustments” to the contrary, the conversion rate shall not exceed 200.000 per $1,000 principal amount of notes, equivalent to a conversion price of $5.00 per share of common stock, other than as a result of proportional adjustments to the conversion rate in the manner set forth in clauses (1) through (3) of such section.
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| Conversion After a Public Acquirer Change of Control |
Notwithstanding the foregoing, in the event of a public acquirer change of control, we may, in lieu of issuing additional shares as described above, in our sole discretion, elect to adjust the conversion rate and the related conversion obligation such that from and after the effective time of such public acquirer change of control, holders of notes will be entitled to convert their notes (subject to satisfaction of the conditions to conversion described under “— Conversion Rights — General” above) into a number of shares of public
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acquirer common stock (as defined below) by multiplying the applicable conversion rate in effect immediately before the effective time of the public acquirer change of control by a fraction:
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| • | the numerator of which will be (i) in the case of a share exchange, consolidation, merger or binding share exchange, pursuant to which our common stock is converted into cash, securities or other property, the value of all cash, securities and other property (as determined by our board of directors) paid or payable per share of common stock or (ii) in the case of any other public acquirer change of control, the average of the closing sale price of our common stock for the five consecutive trading days prior to but excluding the effective date of such public acquirer change of control; and |
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| • | the denominator of which will be the average of the closing sale prices of the public acquirer common stock for the five consecutive trading days commencing on the trading day next succeeding the effective date of such public acquirer change of control. |
A“public acquirer change of control” means any make-whole transaction that would otherwise obligate us to increase the conversion rate as described above under “— Adjustment to Conversion Rate Upon Certain Corporate Transactions — General” where the acquirer (or any entity that directly or indirectly owns a majority of the voting stock of the acquirer and fully and unconditionally guarantees the notes) has a class of common stock traded on a national securities exchange or which will be so traded or quoted when issued or exchanged in connection with such fundamental change (the“public acquirer common stock”).
Upon a public acquirer change of control, if we so elect, holders may convert their notes (subject to satisfaction of the conditions to conversion described under “— Conversion Rights — General” above) at the adjusted conversion rate described in the second preceding paragraph but will not be entitled to the increased conversion rate described under “— Adjustment to Conversion Rate Upon Certain Corporate Transactions — General.” We are required to notify the trustee and holders of such election in the notice to holders of such transaction. As described under “— Conversion Upon Specified Corporate Transactions,” holders may convert their notes upon a public acquirer change of control during the period specified therein. In addition, a holder can also, subject to certain conditions, require us to purchase all or a portion of its notes as described under “— Purchase of Notes at a Holder’s Option Upon a Fundamental Change.”
Optional Redemption by Greenbrier
We may not redeem any of the notes prior to May 15, 2013. We may redeem for cash all or a portion of the notes at any time on or after May 15, 2013 at a redemption price equal to 100% of the principal amount of the notes to be redeemed, plus accrued and unpaid interest (including contingent interest and additional interest, if any) to, but not including, the redemption date. However, if the redemption date occurs after a regular record date for the payment of interest and on or prior to the corresponding interest payment date, we will pay interest to holders of record on the regular record date and the redemption price will be 100% of the principal amount of the notes to be redeemed.
We will provide not less than 30 nor more than 60 calendar days notice mailed to each holder of the notes to be redeemed. When the redemption notice is given and funds deposited as required, interest will cease to accrue on and after the redemption date on the notes or portions of such notes called for redemption. If we decide to redeem fewer than all of the outstanding notes, the trustee will select the notes to be redeemed by lot, or on a pro rata basis or by another method the trustee considers fair and appropriate. If the trustee selects a portion of a holder’s notes for partial redemption and such holder converts a portion of its notes, the converted portion will be deemed to be from the portion selected for redemption.
Purchase of Notes at a Holder’s Option
Holders have the right to require us to purchase all or a portion of their notes on May 15, 2013, May 15, 2016 and May 15, 2021 (each, a“purchase date”). Any note purchased by us on a purchase date will be paid for in cash. We will be required to purchase any outstanding notes for which a holder delivers a written purchase notice to the paying agent. This notice must be delivered during the period beginning at any time from the opening of business on the date that is 22 business days prior to the relevant purchase date
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until the close of business on the date that is two business days prior to the purchase date. If the purchase notice is given and properly withdrawn prior to the relevant purchase date, we will not be obligated to purchase the related notes. Also, as described in “Risk Factors — We may not be able to purchase the notes at the option of the holder or upon a fundamental change as required by the indenture governing the notes,” we may not have funds sufficient to purchase notes when we are required to do so or we may be prohibited from doing so by our agreements governing our outstanding indebtedness, including the Credit Agreement.
The purchase price payable will be equal to 100% of the principal amount of the notes to be purchased, plus accrued and unpaid interest (including contingent interest and additional interest, if any) to, but not including, the purchase date; provided however, we will pay interest to the holder of record on the regular record date.
On or before the 22nd business day prior to each purchase date, we will provide to the trustee, the paying agent and to all holders of the notes at their addresses shown in the register of the registrar, and to beneficial owners as required by applicable law, a notice stating, among other things:
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| • | the purchase price; |
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| • | the name and address of the paying agent and the conversion agent; and |
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| • | the procedures that holders must follow to require us to purchase their notes. |
Simultaneously with providing such notice, we will issue a press release through PR Newswire, Dow Jones & Company, Inc., Business Wire or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public) containing the relevant information and will publish such information on our corporate web site or through another public medium as we may use at that time.
A notice electing to require us to purchase a holder’s notes must state:
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| • | the relevant purchase date; |
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| • | if certificated notes have been issued, the certificate numbers of the notes; |
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| • | the portion of the principal amount at issuance of notes to be purchased, in integral multiples of $1,000; and |
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| • | that the notes are to be purchased by us pursuant to the applicable provisions of the notes and the indenture. |
If the notes are not in certificated form, a holder’s notice must comply with applicable DTC procedures.
No notes may be purchased at the option of holders if there has occurred and is continuing an event of default other than an event of default that is cured by the payment of the purchase price of the notes.
A holder may withdraw any purchase notice in whole or in part by a written notice of withdrawal delivered to the paying agent prior to the close of business on the business day prior to the purchase date. The notice of withdrawal must state:
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| • | the principal amount of the withdrawn notes; |
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| • | if certificated notes have been issued, the certificate numbers of the withdrawn notes; and |
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| • | the principal amount at issuance, if any, which remains subject to the purchase notice. |
If the notes are not in certificated form, a holder’s notice must comply with applicable DTC procedures.
A holder must either deliver or effect book-entry transfer of the notes, together with necessary endorsements, to the office of the paying agent after delivery of the notice to receive payment of the purchase price. A holder will receive payment promptly following the later of the purchase date or the time of book-
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entry transfer or the delivery of the notes. If the paying agent holds money sufficient to pay the purchase price of the notes on the business day following the purchase date, then:
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| • | the notes will cease to be outstanding and interest (including contingent interest and additional interest, if any) will cease to accrue (whether or not book-entry transfer of the notes is made or whether or not the notes are delivered to the paying agent); and |
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| • | all other rights of the holder will terminate (other than the right to receive the purchase price upon delivery or transfer of the notes). |
Purchase of Notes at a Holder’s Option Upon a Fundamental Change
In the event of a fundamental change, a holder will have the right to require us to purchase for cash all or any part of such holder’s notes at a purchase price equal to 100% of the principal amount of the notes to be purchased, plus accrued and unpaid interest (including contingent interest and additional interest, if any) to, but not including, the“fundamental change purchase date”, which will be a date selected by us no later than the 20th business day following our notice of a fundamental change as described below. Notes submitted for purchase must be principal amounts of $1,000 or integral multiples thereof.
On or before the 30th day after the occurrence of a fundamental change, we will provide to all holders of notes and the trustee and paying agent a notice of the occurrence of the fundamental change and of the resulting purchase right. Such notice shall state (among other things):
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| • | the events constituting the fundamental change; |
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| • | the date of the fundamental change; |
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| • | the last date on which a holder may exercise the purchase right; |
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| • | the fundamental change purchase price; |
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| • | the fundamental change purchase date; |
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| • | the name and address of the paying agent and the conversion agent; |
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| • | the conversion rate and any adjustment to the conversion rate that will result from the fundamental change; |
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| • | that notes with respect to which a purchase notice is given by the holder may be converted, if otherwise convertible, only if the purchase notice has been withdrawn in accordance with the provisions of the indenture; and |
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| • | the procedures that a holder must follow to exercise the purchase rights. |
Simultaneously with providing such notice, we will issue a press release through PR Newswire, Dow Jones & Company, Inc., Business Wire or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public) containing the relevant information and will publish such information on our corporate web site or through another public medium as we may use at that time.
To exercise the purchase right, a holder must deliver, on or before the fundamental change purchase date (subject to extension to comply with applicable law), a written fundamental change purchase notice and the
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form entitled “Form of Fundamental Change Purchase Notice” on the reverse side of the notes, duly completed, to the paying agent. The fundamental change purchase notice must state:
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| • | if certificated notes have been issued, the certificate numbers of the notes; |
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| • | the portion of the principal amount at issuance of notes to be purchased, in integral multiples of $1,000; and |
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| • | that the notes are to be purchased by us pursuant to the applicable provisions of the notes and the indenture. |
If the notes are not in certificated form, a holder’s fundamental change purchase notice must comply with applicable DTC procedures.
A holder may withdraw any purchase notice (in whole or in part) by a written notice of withdrawal delivered to the paying agent prior to the close of business on the business day prior to the fundamental change purchase date. The notice of withdrawal shall state:
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| • | the principal amount of the withdrawn notes; |
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| • | if certificated notes have been issued, the certificate numbers of the withdrawn notes; and |
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| • | the principal amount, if any, which remains subject to the purchase notice. |
If the notes are not in certificated form, a holder’s notice of withdrawal must comply with applicable DTC procedures.
A holder must either deliver or effect book-entry transfer of the notes, together with necessary endorsements, to the office of the paying agent on or within a period to be specified after the fundamental change purchase date to receive payment of the purchase price. We will be required to purchase the notes on the fundamental change purchase date, subject to extension to comply with applicable law. A holder will receive payment of the fundamental change purchase price promptly following the later of the fundamental change purchase date or the time of book-entry transfer or delivery of the notes. If the paying agent holds cash sufficient to pay the fundamental change purchase price of the notes on the fundamental change purchase date, then:
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| • | the notes will cease to be outstanding and interest (including contingent interest and additional interest, if any) will cease to accrue (whether or not such notes are delivered to the paying agent or whether or not the note is delivered to the paying agent); and |
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| • | all other rights of the holder will terminate (other than the right to receive the fundamental change purchase price upon delivery or transfer of the notes). |
A fundamental change will be deemed to have occurred if any of the following occurs:
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| (1) the consummation of a transaction pursuant to which a “person” or “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended (the“Exchange Act”), other than us, our Subsidiaries or our or their employee benefit plans, has become the ultimate “beneficial owner,” as defined in Rules 13d-3 and13d-5 under the Exchange Act of our capital stock representing more than 50% of our total outstanding voting stock that is entitled to vote in the election of our board of directors, as reflected in Schedule TO or any schedule or report filed under the Exchange Act disclosing the consummation of such transaction; |
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| (2) the first day on which a majority of the members of our board of directors are not continuing directors; |
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| (3) we consolidate with or merge with or into any person or convey, transfer, sell or otherwise dispose of or lease all or substantially all of our assets to any person, or any corporation consolidates with or merges into or with us, in any such event pursuant to a transaction in which our outstanding voting stock is changed into or exchanged for cash, securities or other property, other than (i) any such transaction where our outstanding voting stock is not changed or exchanged at all (except to the extent |
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| necessary to reflect a change in Greenbrier’s jurisdiction of incorporation), (ii) where (A) our outstanding voting stock is changed into or exchanged for cash, securities and other property (other than equity interests of the surviving corporation) and (B) our shareholders immediately before such transaction own, directly or indirectly, immediately following such transaction, more than 50% of the total outstanding voting stock of the surviving corporation in the same proportion amongst themselves as such ownership immediately prior to such transaction or (iii) lease transactions by a Leasing Subsidiary in the ordinary course of business; |
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| (4) we are liquidated or dissolved or adopt a plan of liquidation or dissolution other than in a transaction which complies with the provisions described under “— Consolidation, Merger and Sales of Assets;” or |
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| (5) our common stock, or any other common stock into which the notes become convertible pursuant to the terms of the indenture, ceases to be traded on a U.S. national securities exchange or traded on an established automatedover-the-counter trading market in the United States. |
However, notwithstanding the foregoing, a fundamental change will not be deemed to have occurred if, in the case of clauses (1) or (3) above, at least 90% of the consideration, excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights, in the merger or consolidation constituting the fundamental change consists of capital stock traded on a U.S. national securities exchange (or which will be so traded when issued or exchanged in connection with such fundamental change) and as a result of such transaction or transactions the notes become convertible into such capital stock, excluding cash payments for fractional shares.
“Leasing Assets” means, with respect to any person, such person’s interests (1) in railcars, marine barges, surface transportation equipment and any accessions or other tangible assets related to the foregoing that are owned or leased by such person in the ordinary course of business of such person and (2) in the lease agreements entered into by such person, as lessor, in the ordinary course of business.
“Leasing Subsidiary” means Greenbrier Leasing Company LLC or any of its Subsidiaries in each case so long as the business of such person is limited to management, marketing, remarketing, leasing and/or selling railcars, marine barges, surface transportation equipment and any accessions or other tangible assets related to the foregoing and/or Leasing Assets owned by such person or any other person, and such person does not own any manufacturing assets or conduct a manufacturing business (provided that neither Greenbrier Leasing Company LLC nor any of its Subsidiaries shall be deemed to own manufacturing assets or to be conducting a manufacturing business solely as a result of its ownership of capital stock and all warrants, options or other rights to acquire capital stock (but excluding any debt security that is convertible into, or exchangeable for, capital stock) of Gunderson LLC, an Oregon limited liability company, owned on the date that notes first are issued under the indenture).
“Voting stock” means stock of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of an entity (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
“Continuing directors” means, as of any date of determination, any member of our board of directors:
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| • | who was a member of our board of directors on the issue date of the notes; or |
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| • | who was nominated for election or elected to our board of directors with the approval of a majority of the continuing directors who were members of our board at the time of new director’s nomination or election; or |
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| • | whose election was ratified, or who is nominated for re-election, by a majority of the continuing directors who were members of our board at the time of the new director’s initial election to our board of directors. |
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The definition of fundamental change includes a phrase relating to the conveyance, transfer, sale, lease or other disposition of “all or substantially all” of our assets. There is no precise, established definition of the phrase “substantially all” under the laws of the State of New York, which governs the indenture and the notes, or under the laws of the State of Oregon, our state of incorporation. Accordingly, a holder’s ability to require us to purchase its notes as a result of a conveyance, transfer, sale, lease or other disposition of less than all of our assets may be uncertain.
Pursuant to the indenture, in connection with a fundamental change purchase, we will comply with all U.S. federal and state securities laws in connection with any offer by us to purchase the notes upon a fundamental change.
This fundamental change purchase feature may make more difficult or discourage a takeover of Greenbrier and the removal of incumbent management. However, we are not aware of any specific effort to accumulate shares of our capital stock with the intent to obtain control of Greenbrier by means of a merger, tender offer, solicitation or otherwise. In addition, the fundamental change purchase feature is not part of a plan by management to adopt a series of anti-takeover provisions. Instead, the fundamental change purchase feature is a result of negotiations between Greenbrier and the initial purchasers.
We could, in the future, enter into certain transactions, including recapitalizations, that would not constitute a fundamental change but would increase the amount of debt outstanding or otherwise adversely affect a holder of notes. Neither we nor our Subsidiaries are prohibited under the indenture from incurring additional debt, including secured debt. The incurrence of significant amounts of additional debt could adversely affect our ability to service our debt, including the notes, and to satisfy our obligation to purchase the notes upon a fundamental change. See “Risk Factors — Despite our increased leverage, we will be able to incur more debt, which may intensify the risks associated with our increased leverage.”
Our ability to purchase notes upon the occurrence of a fundamental change is subject to important limitations. If a fundamental change were to occur, we may not have sufficient funds, or be able to arrange financing, to pay the fundamental change purchase price for the notes tendered by holders. In addition, we may in the future incur debt that has similar fundamental change provisions that permit holders of such debt to accelerate or require us to purchase such debt upon the occurrence of events similar to a fundamental change. Any failure by us to purchase the notes when required following a fundamental change would result in an event of default under the indenture. Any such event of default may, in turn, cause a default under our other indebtedness.
We will not be required to make an offer to purchase the notes upon a fundamental change if a third party (1) makes an offer to purchase the notes in the manner, at the times and otherwise in compliance with the requirements applicable to an offer made by us to purchase notes upon a fundamental change and (2) purchases all of the notes validly delivered and not withdrawn under such offer to purchase notes.
Additional Guarantees
If we or any Guarantor acquires or creates another Domestic Subsidiary after the date of the indenture, then that newly acquired or created Domestic Subsidiary will become a Guarantor and execute a supplemental indenture and deliver an opinion of counsel satisfactory to the trustee within ten business days of the date on which it was acquired or created; provided that any Domestic Subsidiary that constitutes an Immaterial Subsidiary need not become a Guarantor until such time as it ceases to be an Immaterial Subsidiary.
In addition to the Guarantors named in the indenture, the indenture provides that any of our existing or future Subsidiaries shall become a Guarantor if and for so long as such Subsidiary provides a guarantee or otherwise becomes an obligor in respect of our indebtedness.
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Consolidation, Merger and Sales of Assets
The indenture provides that we may not consolidate with or merge into any other person or convey, transfer, sell, lease or otherwise dispose of all or substantially all of our properties and assets to another person unless, among other things:
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| • | the resulting, surviving or transferee person is a person organized and validly existing under the laws of the United States, any state thereof or the District of Columbia; |
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| • | such person assumes all of our obligations under the notes, the indenture and the registration rights agreement in each case in a form reasonably satisfactory to the trustee; |
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| • | immediately after giving effect to such transaction, no event of default under the indenture (an“event of default”) shall have occurred and be continuing; |
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| • | we have delivered to the trustee an officers’ certificate and an opinion of counsel with respect thereto as provided for in the indenture; and |
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| • | each Guarantor shall have by amendment to its Subsidiary Guarantee confirmed in writing that its Subsidiary Guarantee shall continue to apply to the obligations of Greenbrier or the surviving person in accordance with the notes and the indenture. |
The indenture also provides that no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving person), another person, other than Greenbrier or another Guarantor unless:
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| • | immediately after giving effect to that transaction, no default or event of default shall have occurred and be continuing; and |
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| • | either |
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| • | the person acquiring the property in any such sale or disposition or the person formed by or surviving any such consolidation or merger is a person organized or existing under the laws of the United States, any state thereof or the District of Columbia and assumes all the obligations of that Guarantor under the indenture, its Subsidiary Guarantee and the registration rights agreement pursuant to a supplemental indenture satisfactory to the trustee; or |
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| • | (1) prior to the satisfaction and discharge of the 8.375% Note Indenture, such sale or other disposition complies with the “Asset Sale” provisions of the 8.375% Note Indenture, including the application of the net proceeds therefrom in accordance with the terms thereof, or (2) after the satisfaction and discharge of the 8.375% Note Indenture, such sale or other disposition complies with the terms of any other indebtedness of Greenbrier guaranteed by that Guarantor. |
Upon any such consolidation, merger or disposition in accordance with the foregoing, the successor corporation formed by such consolidation or into which we or a Guarantor are merged or the successor person to which such conveyance, sale, lease, transfer or other disposition is made will succeed to, and be substituted for, and may exercise our right and power, under the indenture with the same effect as if such successor had been originally named therein, and thereafter (except in the case of a lease) the predecessor corporation will be relieved of all further obligations and covenants under the indenture, the notes and the registration rights agreement, as applicable.
This covenant includes a phrase relating to the conveyance, transfer, sale, lease or other disposition of “all or substantially all” of our properties and assets. There is no precise, established definition of the phrase “substantially all” under the laws of the State of New York, which governs the indenture and the notes, or under the laws of the State of Oregon, our state of incorporation. Accordingly, the effectiveness of this covenant in the event of a conveyance, transfer, sale, lease or other disposition of less than all of our properties and assets may be uncertain.
An assumption by any person of our obligations under the notes and the indenture might be deemed for U.S. federal income tax purposes to be an exchange of the notes for new notes by the holders thereof,
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resulting in recognition of gain or loss for such purposes and possibly other adverse tax consequences to the holders. Holders should consult their own tax advisors regarding the tax consequences of such an assumption.
Events of Default
Each of the following constitutes an event of default under the indenture:
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| (1) default for 30 days in the payment when due of interest (including contingent interest and additional interest, if any) on the notes; |
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| (2) default in the payment when due (at maturity, upon redemption or acceleration or otherwise) of the principal of the notes; |
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| (3) our failure to convert notes into cash or a combination of cash and common stock upon exercise of a holder’s conversion right in accordance with the provisions of the indenture; |
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| (4) our failure to redeem notes after we have exercised our redemption option; |
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| (5) our failure to provide notice in the event of a fundamental change or with respect to a fundamental change purchase right within 5 days of the date required by the indenture; |
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| (6) other than as set forth in clause (5) above, our failure or a Guarantor’s failure to comply with the provisions described under the captions “— Purchase of Notes at a Holder’s Option,” “— Purchase of Notes at a Holder’s Option Upon a Fundamental Change” or “— Consolidation, Merger and Sales of Assets;” |
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| (7) our failure for 30 days after notice to comply with any of the other agreements in the indenture; |
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| (8) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any of our or our Guarantors’ indebtedness (or the payment of which is guaranteed by us or any Guarantor) whether such indebtedness or guarantee now exists, or is created after the date on which notes are first issued under the indenture, if that default: |
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| (a) is caused by a failure to pay principal of, or interest or premium, if any on, such indebtedness prior to the expiration of the grace period provided in such indebtedness on the date of such default (a“Payment Default”); or |
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| (b) results in the acceleration of such indebtedness prior to its stated maturity, and, in each case, the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness under which there has been a Payment Default or the stated maturity of which has been so accelerated, aggregates $10.0 million or more; |
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| (9) failure by us or any Guarantor to pay final judgments entered by a court or courts of competent jurisdiction, aggregating in excess of $10.0 million, which judgments are not paid, discharged or stayed for a period of 60 days after such judgments have become final and non-appealable; |
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| (10) except as permitted by the indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee; or |
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| (11) certain events of bankruptcy or insolvency described in the indenture with respect to Greenbrier or any Guarantor that is a Significant Subsidiary or a group of Guarantors that, taken together (as of the latest audited consolidated financial statements for Greenbrier and its Subsidiaries) would constitute a Significant Subsidiary. |
In the case of an event of default arising from certain events of bankruptcy or insolvency, with respect to Greenbrier, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together,
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would constitute a Significant Subsidiary, all outstanding notes will become due and payable immediately without further action or notice. If any other event of default occurs and is continuing, the trustee or the holders of at least 25% in aggregate principal amount of the then outstanding notes may declare all the notes to be due and payable immediately by notice in writing to Greenbrier (and to the trustee if given by holders).
Subject to certain limitations, holders of a majority in aggregate principal amount of the then outstanding notes may direct the trustee in its exercise of any trust or power. The trustee may withhold from holders of the notes notice of any continuing default or event of default if it determines that withholding notice is in their interest, except a default or event of default relating to the payment of principal or interest (including contingent interest and additional interest, if any). Subject to the provisions of the indenture relating to the duties of the trustee, in case an event of default occurs and is continuing, the trustee will be under no obligation to exercise any of the rights or powers under the indenture at the request or direction of any holders of notes unless such holders have offered to the trustee reasonable indemnity or security against any loss, liability or expense. Except to enforce the right to receive payment of principal or interest (including contingent interest and additional interest, if any) when due, no holder of a note may pursue any remedy with respect to the indenture or the notes unless,
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| (1) such holder has previously given the trustee notice that an event of default is continuing; |
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| (2) holders of at least 25% in aggregate principal amount of the then outstanding notes have requested the trustee to pursue the remedy; |
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| (3) such holders have offered the trustee reasonable security or indemnity against any loss, liability or expense; |
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| (4) the trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and |
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| (5) the holders of a majority in aggregate principal amount of the then outstanding notes have not given the trustee a direction inconsistent with such request within such 60 day period. |
The holders of a majority in aggregate principal amount of the notes then outstanding by notice to the trustee may, on behalf of the holders of all of the notes, waive any existing default or event of default and its consequences under the indenture except a continuing default or event of default in the payment of interest (including contingent interest and additional interest, if any) on, or the principal of, the notes.
Greenbrier is required to deliver to the trustee annually a statement regarding compliance with the indenture. Upon becoming aware of any default or event of default, Greenbrier is required to deliver to the trustee a statement specifying such default or event of default.
“Default” means, in respect of the notes, any event which is, or with the passage of time or the giving of notice or both would be, an event of default.
“Significant Subsidiary” means, with respect to any person, any subsidiary of such person that satisfies the criteria of a “significant subsidiary” set forth in Rule 1-02(w) of Regulation S-X.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or stockholder of Greenbrier or any Guarantor, as such, will have any liability for any obligation of Greenbrier or the Guarantors under the notes, the indenture, the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of notes by accepting a note waives and releases all such liability. The waiver may not be effective to waive liabilities under the federal securities laws.
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Modification and Waiver
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| Changes Requiring Approval of Each Affected Holder |
The indenture (including the terms and conditions of the notes) cannot be modified or amended without the written consent or the affirmative vote of the holder of each note affected by such change (in addition to the written consent or the affirmative vote of the holders of at least a majority in aggregate principal amount of the notes at the time outstanding) to:
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| • | reduce the principal amount of notes the holders of which must consent to an amendment, supplement or waiver; |
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| • | reduce the principal, redemption price, purchase price, fundamental change purchase price or change the fixed maturity of any note or alter the provisions, or waive any payment, with respect to the redemption of the notes; |
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| • | reduce the rate, of or change the time for payment of interest (including rate of contingent interest or additional interest, if any) on, any note; |
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| • | waive a default or event of default in the payment of principal of, or interest (including contingent interest or additional interest, if any) or premium, if any, on the notes (except a rescission of acceleration of the notes by the holders of at least a majority in aggregate principal amount of the notes and a waiver of the payment default that resulted from such acceleration); |
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| • | make any payment in respect of any note, including principal, redemption price, purchase price, fundamental change purchase price or interest (including contingent interest and additional interest, if any) payable in money other than U.S. dollars; |
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| • | make any change in the provisions of the indenture relating to waivers of past defaults; |
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| • | make any change in the rights of holders of notes to receive payments of principal of, or interest (including contingent interest or additional interest, if any) or premium, if any, on, the notes; |
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| • | release any Guarantor from any of its obligations under its Subsidiary Guarantee or the indenture, except in accordance with the terms of the indenture; |
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| • | impair the right to institute suit for the enforcement of any payment on or with respect to the notes or the Subsidiary Guarantees; |
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| • | amend, change or modify the obligation of Greenbrier to make and consummate a purchase of notes in the event of a fundamental change in accordance with the provisions set forth under “Purchase of Notes at the Holder’s Option Upon a Fundamental Change,” including, in each case, amending, changing or modifying any definition relating thereto; |
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| • | except as otherwise permitted under the caption “— Consolidation, Merger and Sales of Assets”, consent to the assignment or transfer by Greenbrier or any Guarantor of any of their rights or obligations under the indenture; |
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| • | amend or modify any of the provisions of the indenture or the related definitions affecting the subordination or ranking of the notes or any Subsidiary Guarantee in any manner adverse to the holders of the notes or any Subsidiary Guarantee; |
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| • | make any change in the preceding amendment and waiver provisions; |
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| • | impair or adversely affect the conversion rights or purchase rights of any holders of notes; or |
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| • | impair or adversely affect the manner of calculation or rate of accrual of interest (including contingent interest and additional interest, if any) on any note. |
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| Changes Requiring Majority Approval |
The indenture (including the terms and conditions of the notes) may be modified or amended, subject to the provisions described above, with the written consent of the holders of at least a majority in aggregate principal amount of the notes at the time outstanding; provided that certain modifications or amendments to the indenture (including the terms and conditions of the notes) may be made by us and the trustee without the consent of any holder as described below.
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| Changes Requiring No Approval |
The indenture (including the terms and conditions of the notes) may be modified or amended by us, the Guarantors and the trustee, without the consent of the holder of any note, to:
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| • | cure any ambiguity, defect or inconsistency; |
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| • | provide for uncertificated notes in addition to or in place of certificated notes; |
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| • | provide for the assumption of Greenbrier’s or a Guarantor’s obligations to holders of notes and Subsidiary Guarantees in the case of a merger or consolidation or sale of all or substantially all of Greenbrier’s or such Guarantor’s assets, as applicable; |
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| • | make any change that would provide any additional rights or benefits to the holders of notes or that does not adversely affect the legal rights under the indenture of any such holder; |
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| • | comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended; |
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| • | conform the text of the indenture or the notes to any provision of this description of notes to the extent that such provision in this description of notes was intended to be a verbatim recitation of a provision of the indenture or the notes; |
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| • | provide for the issuance of additional notes in accordance with the limitations set forth in the indenture as of the date of the indenture; |
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| • | allow any Guarantor to execute a supplemental indenture and/or a Subsidiary Guarantee with respect to the notes or to reflect the release of a Guarantor in accordance with the provisions of the indenture; |
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| • | surrender any right or power conferred upon us; |
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| • | provide for conversion rights of holders of notes if any reclassification or change of our common stock or any consolidation, merger, conveyance, transfer, sale, lease or disposition of all or substantially all of our assets occurs, or in connection with any public acquirer change of control, in each case in compliance with the provisions of the indenture; |
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| • | increase the conversion rate, provided that the increase will not adversely affect the interests of the holders of notes; or |
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| • | evidence and provide the acceptance of the appointment of a successor trustee under the indenture. |
The holders of a majority in aggregate principal amount of notes outstanding may waive compliance with certain provisions of the indenture relating to the notes, unless (1) we fail to pay principal of or interest (including contingent interest and additional interest, if any) on any note when due, (2) we fail to convert any note into cash or, at our election, a combination of cash and common stock as required by the indenture or (3) we fail to comply with any of the provisions of the indenture that would require the consent of the holder of each outstanding note to modify or amend.
Any notes held by us or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with us shall be disregarded (from both the numerator and denominator) for
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purposes of determining whether the holders of a majority in aggregate principal amount of the outstanding notes have consented to a modification, amendment or waiver of the terms of the indenture.
Form, Denomination and Registration
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| Denomination and Registration |
The notes are issued in fully registered form, without coupons, in denominations of $1,000 principal amount at issuance and integral multiples thereof.
Notes are evidenced by one or more global notes deposited with the trustee as custodian for DTC, and registered in the name of Cede & Co. as DTC’s nominee.
Record ownership of the global notes may be transferred, in whole or in part, only to another nominee of DTC or to a successor of DTC or its nominee, except as set forth below. A holder may hold its interests in the global notes directly through DTC if such holder is a participant in DTC, or indirectly through organizations which are direct DTC participants if such holder is not a participant in DTC. Transfers between direct DTC participants will be effected in the ordinary way in accordance with DTC’s rules and will be settled in same-day funds. Holders may also beneficially own interests in the global notes held by DTC through certain banks, brokers, dealers, trust companies and other parties that clear through or maintain a custodial relationship with a direct DTC participant, either directly or indirectly.
So long as Cede & Co., as nominee of DTC, is the registered owner of the global notes, Cede & Co. for all purposes will be considered the sole holder of the global notes. Except as provided below, owners of beneficial interests in the global notes:
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| • | will not be entitled to have certificates registered in their names; |
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| • | will not receive or be entitled to receive physical delivery of certificates in definitive form; and |
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| • | will not be considered holders of the global notes. |
The laws of some states require that certain persons take physical delivery of securities in definitive form. Consequently, the ability of an owner of a beneficial interest in a global security to transfer the beneficial interest in the global security to such persons may be limited.
Certificates for the notes will be issued in exchange for interests in global notes only if:
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| • | DTC notifies us that it is unwilling or unable to continue as depositary for the global notes and we fail to appoint a successor depositary within 90 calendar days; |
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| • | DTC ceases to be a “clearing agency” registered under the Exchange Act and we fail to appoint a successor depositary within 90 calendar days; |
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| • | we, at our option, notify the trustee in writing that we elect to cause the issuance of certificates for the notes; or |
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| • | an event of default has occurred and is continuing and the registrar has received a request from DTC that the notes be reissued as certificated notes. |
Certificated notes delivered in exchange for any global note or beneficial interests in a global note will be registered in the names, and issued in any approved denominations, requested by or on behalf of the depositary (in accordance with its customary procedures) and will bear the applicable restrictive legend referred to in “Transfer Restrictions,” unless that legend is not required by applicable law.
We will wire, through the facilities of the trustee, payments of principal, accrued interest (including contingent interest and additional interest, if any) on the global notes to Cede & Co., the nominee of DTC, as the registered owner of the global notes. None of Greenbrier, the trustee or any paying agent will have any
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responsibility or be liable for paying amounts due on the global notes to owners of beneficial interests in the global notes.
It is DTC’s current practice, upon receipt of any payment of principal or accrued interest (including contingent interest and additional interest, if any) on the global notes, to credit participants’ accounts on the payment date in amounts proportionate to their respective beneficial interests in the notes represented by the global notes, as shown on the records of DTC, unless DTC believes that it will not receive payment on the payment date. Payments by DTC participants to owners of beneficial interests in notes represented by the global notes held through DTC participants will be the responsibility of DTC participants, as is now the case with securities held for the accounts of customers registered in“street name.”
If a holder would like to convert its notes pursuant to the terms of the notes, the holder should contact its broker or other direct or indirect DTC participant to obtain information on procedures, including proper forms and cut-off times, for submitting those requests.
Because DTC can only act on behalf of DTC participants, who in turn act on behalf of indirect DTC participants and other banks, a holder’s ability to pledge its interest in the notes represented by global notes to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interest, may be affected by the lack of a physical certificate.
DTC has advised us that it will take any action permitted to be taken by a holder of notes, including, without limitation, the presentation of notes for conversion as described below, only at the direction of one or more direct DTC participants to whose account with DTC interests in the global notes are credited and only for the principal amount of the notes for which directions have been given.
DTC has advised that DTC is:
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| • | a limited purpose trust company organized under the laws of the State of New York; |
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| • | a member of the Federal Reserve System; |
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| • | a “clearing corporation” within the meaning of the Uniform Commercial Code; and |
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| • | a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. |
DTC was created to hold securities for DTC participants and to facilitate the clearance and settlement of securities transactions between DTC participants through electronic book-entry changes to the accounts of its participants, thereby eliminating the need for physical movement of certificates. DTC participants include securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other organizations, such as the initial purchasers of the notes. Certain DTC participants or their representatives, together with other entities, own DTC. Indirect access to the DTC system is available to others such as banks, brokers, dealers and trust companies that clear through, or maintain a custodial relationship with, a participant, either directly or indirectly.
Although DTC has agreed to the foregoing procedures in order to facilitate transfers of interests in the global notes among DTC participants, it is under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. None of Greenbrier, the trustee or any of their respective agents will have any responsibility for the performance by DTC or direct or indirect DTC participants of their obligations under the rules and procedures governing their operations, including maintaining, supervising or reviewing the records relating to or payments made on account of beneficial ownership interests in global notes.
According to DTC, the foregoing information with respect to DTC has been provided to its participants and other members of the financial community for information purposes only and is not intended to serve as a representation, warranty or contract modification of any kind.
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A holder may transfer or exchange the notes only in accordance with the indenture. No service charge will be made for any registration of transfer or exchange of notes, but we may require payment of a sum sufficient to cover any tax, assessment or other governmental charge payable in connection therewith. We are not required to transfer or exchange any note (1) selected for redemption, (2) in respect of which a purchase notice or fundamental change purchase notice has been given and not withdrawn by the holder thereof or (3) any note surrendered for conversion.
Rule 144A Information
At any time prior to the expiration of the Rule 144(k) holding period applicable to the notes and the shares of common stock issued upon conversion thereof, if we are not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a holder or any beneficial owner of notes or holder or beneficial owner of common stock issued upon conversion thereof, we will promptly furnish or cause to be furnished the information required pursuant to Rule 144A(d)(4) under the Securities Act to such holder or any beneficial owner of notes or holder or beneficial owner of our common stock issued upon conversion thereof, or to a prospective purchaser of any such security designated by any such holder, as the case may be, to the extent required to permit compliance by such holder with Rule 144A under the Securities Act in connection with the resale of any such security.
Satisfaction and Discharge
We may satisfy and discharge our obligations under the indenture by delivering to the trustee for cancellation all outstanding notes or by depositing with the paying agent or the conversion agent, as the case may be, after the notes have become due and payable, whether at maturity, any redemption date, any purchase date, or upon conversion or otherwise, cash and, as applicable, common stock or other property (as applicable under the terms of the indenture) sufficient to pay all of the outstanding notes and paying all other sums payable under the indenture. Such discharge is subject to terms contained in the indenture.
Governing Law
The indenture and the notes are governed by, and construed in accordance with, the laws of the State of New York.
Trustee, Transfer Agent and Registrar
U.S. Bank National Association(“U.S. Bank”), as trustee, has been appointed by us as paying agent, conversion agent, registrar and custodian with regard to the notes. U.S. Bank or its affiliates, may from time to time in the future provide banking and other services to us and our Subsidiaries in exchange for a fee. U.S. Bank serves as the clearing agent for a significant number of our securities transactions. We pay U.S. Bank customary fees for these services.
Computershare Limited (formerly known as Equiserve) is the transfer agent and registrar for our common stock.
Calculations in Respect of Notes
Except as otherwise provided herein, we or our agents will be responsible for making all calculations called for in connection with the conversion of the notes. These calculations include, but are not limited to, determination of the market price of the common stock. We or our agents will make all these calculations in good faith and, absent manifest error, these calculations will be final and binding on holders of notes. We or our agents will provide a schedule of these calculations to the trustee, and the trustee is entitled to conclusively rely upon the accuracy of these calculations without independent verification.
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Repurchase and Cancellation of Notes
We and our Subsidiaries may, to the extent permitted by law, repurchase notes in the open market or by tender offer at any price or by private agreement. Any notes repurchased by us or our Subsidiaries may not be reissued or resold and must be surrendered to the trustee for cancellation.
All notes surrendered for payment, redemption, registration of transfer or exchange or conversion shall, if surrendered to any person other than the trustee, be delivered to the trustee. All notes delivered to the trustee shall be cancelled promptly by the trustee. No notes shall be authenticated in exchange for any notes cancelled except as provided in the indenture.
Replacement of Notes
We will replace mutilated, destroyed, stolen or lost notes at the expense of the holder upon delivery to the trustee of the mutilated notes, or evidence of the loss, theft or destruction of the notes satisfactory to us and the trustee. In the case of a lost, stolen or destroyed note, indemnity satisfactory to us and the trustee may be required at the expense of the holder of such note before a replacement note will be issued.
Registration Rights
On May 22, 2006, Greenbrier and the Guarantors entered into a registration rights agreement with the initial purchasers for the benefit of the holders of notes. Pursuant to the registration rights agreement, Greenbrier and the Guarantors agreed, at their expense, to:
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| • | use their reasonable best efforts to file with the SEC not later than the date 90 calendar days after the first date of original issuance of the notes a shelf registration statement, of which this prospectus is a part, covering resales by the holders of all notes and the common stock issuable upon conversion of all notes that timely complete and deliver a selling securityholder notice and questionnaire distributed by Greenbrier prior to filing the registration statement; |
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| • | use their reasonable best efforts to cause such shelf registration statement to be declared effective by the SEC as promptly as is practicable, but in no event later than 180 calendar days after the first date of original issuance of the notes, in the case of the initial shelf registration statement, or within 45 days of the filing date, in the case of any other shelf registration statement; and |
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| • | use their reasonable best efforts to keep each such shelf registration statement effective until the earliest of: |
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| • | two years after the last date of original issuance of any of the notes; |
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| • | the date on which the holders of the notes and common stock issuable upon conversion of the notes that are not affiliates of ours are able to sell all such securities immediately without restriction in accordance with the provisions of Rule 144(k) under the Securities Act; |
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| • | the date on which all of the notes and common stock issuable upon conversion of the notes have been registered under the shelf registration statement and disposed of in accordance with such shelf registration statement; and |
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| • | the date on which all of the notes and common stock issuable upon conversion of the notes have ceased to be outstanding (whether as a result of repurchase and cancellation, conversion or otherwise) or been disposed of in accordance with the shelf registration statement. |
After effectiveness of the initial shelf registration statement, upon our receipt of a completed and signed notice and questionnaire from a holder, we will prepare and file (a) a prospectus supplement as soon as practicable and, in any event, within ten business days, or (b) if required, a post-effective amendment to the shelf registration statement or an additional shelf registration statement as soon as practicable and, in any event, within 30 calendar days, provided that we will not be required to file more than once per month, a post-effective amendment or prospectus supplement pursuant to Rule 424(b) under the Securities Act for such purpose. Accordingly, each holder that submits a completed and signed notice and questionnaire after
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the initial deadline for inclusion in the initial registration statement may experience delay in being named as a selling securityholder in the registration statement and being able to deliver a prospectus in connection with the resale of such holder’s notes or common stock issued upon conversion of the notes.
We cannot assure you that we will be able to maintain an effective and current registration statement as required. The absence of such a registration statement may limit a holder’s ability to sell notes and/or the common stock issuable upon conversion of such notes or adversely affect the price at which such securities can be sold.
We will:
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| • | provide to each holder for whom a shelf registration statement was filed, upon request and without charge, copies of the prospectus that is a part of such shelf registration statement; |
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| • | notify each such holder when a shelf registration statement has become effective; |
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| • | notify each such holder of the commencement of any suspension period; and |
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| • | take certain other actions as are required to permit unrestricted resales of the notes and the common stock issuable upon conversion of the notes. |
Each holder who sells securities pursuant to the shelf registration statement generally will be:
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| • | required to be named as a selling securityholder in the related prospectus; |
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| • | required to deliver a prospectus to its purchaser; |
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| • | subject to certain of the civil liability provisions under the Securities Act in connection with such holder’s sales; and |
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| • | bound by the provisions of the registration rights agreement that are applicable to such holder (including certain indemnification rights and obligations). |
We may suspend the holders’ use of the prospectus for a period not to exceed 45 calendar days in any 90 calendar-day period, and not to exceed an aggregate of 120 calendar days in any12-month period, if our board of directors shall have determined in good faith that because of valid business reasons, including the acquisition or divestiture of assets, pending corporate developments and similar events or because of filings with the SEC, it is in our best interests to suspend such use, and prior to suspending such use we provide the holders with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. If the disclosure relates to a previously undisclosed proposed or pending material business transaction, the disclosure of which would impede our ability to consummate such transaction, we may extend the 45 calendar day suspension period to 60 calendar days.
The registration rights agreement provides that if:
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| • | the shelf registration statement had not been filed with the SEC on or prior to 90 calendar days after the first date of original issuance of the notes; |
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| • | the shelf registration statement had not been declared effective by the SEC on or prior to 180 calendar days after the first date of original issuance of the notes; |
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| • | an effective shelf registration statement ceases to be effective or usable in connection with resales of notes and the common stock issuable upon conversion of the notes (other than due to a suspension period or without a replacement shelf registration statement being effective) and we do not cause the shelf registration statement to become effective or usable within five business days by filing a post-effective amendment, prospectus supplement or report pursuant to the Exchange Act; |
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| • | any suspension period, if applicable, exceeds 45 days (or 60, if applicable), whether or not consecutive, in any 90-day period, or 120 days, whether or not consecutive, in any12-month period, during the period in which we are obligated to maintain an effective shelf registration statement; or |
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| • | subsequent to the effectiveness of the initial registration statement, we shall fail to comply with our obligation to name in the prospectus, as a selling securityholder, a holder of notes and the common stock issuable upon conversion of the notes that has returned a completed and signed notice and questionnaire, |
each such event referred to in the bullet points above being referred to as a“registration default,” then additional interest will accrue on the notes from and including the calendar day following the registration default to but excluding the earlier of (1) the calendar day on which all registration defaults have been cured and (2) the date that the shelf registration statement is no longer required to be kept effective. Additional interest will be paid in cash semi-annually in arrears, with the first semi-annual payment due on the first interest payment date following the date on which such additional interest begins to accrue, and will accrue on the notes at a rate per year equal to 0.25% for the first90-day calendar period. The amount of additional interest will increase by an additional per annum rate of 0.25% with respect to each subsequent90-day period until all registration defaults have been cured, up to a maximum amount of additional interest for all registration defaults of 1.00% per annum on the principal amount of notes. Additional interest, if any, shall be payable only to holders who have duly returned a completed and signed notice and questionnaire and, in respect of a registration default described in the final bullet point above, additional interest, if any, shall be payable only to the holders to whom such registration default relates. We will have no other liability for monetary damages with respect to any of our registration obligations.
We will not pay any additional interest on any note after it has been converted into cash and, if applicable, shares of our common stock.
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DESCRIPTION OF CAPITAL STOCK
The following description is a general summary of the terms of our common stock and preferred stock. The description below does not include all of the terms of the common stock and preferred stock and should be read together with our Articles of Incorporation, Bylaws and the rights agreement governing our stockholder rights plan, copies of which have been filed with the SEC.
General
Under our Articles of Incorporation, we are authorized to issue 75,000,000 shares, of which 50,000,000 shall be shares of common stock, without par value, and 25,000,000 shall be shares of preferred stock, without par value. As of June 30, 2006, 15,953,535 shares of common stock were issued and outstanding. In addition, as of June 30, 2006, 69,396 shares of common stock were issuable under outstanding stock options granted under our stock option plans. We have not issued any shares of our preferred stock. However, in connection with the stockholders rights plan described below, the board of directors has designated 200,000 shares of preferred stock as Series A participating preferred stock.
Common Stock
Holders of common stock are entitled to one vote per share on all matters to be voted upon by the stockholders. There are no cumulative voting rights. Holders of common stock have no preemptive or conversion rights and are entitled to receive ratable dividends when and if declared by the board of directors out of funds legally available for the payment of dividends, subject to any preferential rights of any then-outstanding preferred stock. There are no redemption or sinking fund provisions applicable to common stock. Subject to the rights of holders of any preferred stock, holders of common stock are entitled to share ratably in our assets legally available for distribution to stockholders in the event of our liquidation, dissolution or winding up after payment of or adequate provision for all our known debts and liabilities.
Our common stock is listed on the New York Stock Exchange under the symbol “GBX.”
Preferred Stock
The board of directors may, without further action by the shareholders, subject to the New York Stock Exchange rules, issue preferred stock in one or more series and fix the rights and preferences of the preferred stock, including voting rights, dividend rates, conversion rights, terms of redemption (including sinking fund provisions) and liquidation preferences. The issuance of preferred stock by action of the board of directors could adversely affect the voting power, dividend rights and other rights of holders of common stock. Issuance of a series of preferred stock also could, depending upon the terms of series, impede the completion of a merger, tender offer or other takeover attempt.
In connection with the stockholders rights plan described below, the board has designated 200,000 shares of preferred stock as Series A participating preferred stock, without par value. None of these shares of preferred stock have been issued or are outstanding. The number of shares of Series A participating preferred stock may be increased or decreased by the board without shareholder approval provided that the number of shares of Series A participating preferred stock is at least equal to the number of shares outstanding plus the number of shares issuable upon exercise of outstanding rights, options or warrants or upon conversion of outstanding securities.
When the Series A participating preferred stock is issued, each holder of one one-hundredth of a share of Series A participating preferred stock will be entitled to one vote on all matters to be voted upon by the shareholders. Except as otherwise provided, holders of Series A participating preferred stock and common stock will vote together as a single class. The Series A participating preferred stock will rank junior to all other series of our preferred stock as to the payment of dividends and the distribution of assets on liquidation, dissolution or winding up, but senior to our common stock. Shares of Series A participating preferred stock will not be redeemable.
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Antitakeover Provisions
Our Articles of Incorporation and Bylaws, as currently in effect, contain provisions that may have the effect of delaying, deferring or preventing a change in control of our ownership or management. They provide for:
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| • | A classified board of directors, with each class containing as nearly as possible one-third of the total number of members of the board of directors and the members of each class serving for staggered three-year terms; |
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| • | A vote of at least 55% of our voting securities to amend some provisions of the Articles of Incorporation; |
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| • | No less than 120 days’ advance notice with respect to nominations of directors or other matters to be voted on by shareholders other than by or at the direction of the board of directors; |
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| • | Removal of directors only with cause; and |
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| • | the calling of special meetings of shareholders only by the president, a majority of the board of directors or the holders of not less than 25% of all votes entitled to be cast on the matters to be considered at such meeting. |
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| • | The designation of the terms of preferred stock issuable pursuant to a stockholder rights plan,agreement, as described below. |
Antitakeover Effects of Provisions of Oregon Law
Oregon Takeover Statute; Hostile Takeovers. The Oregon Control Share Act, (“OCSA”)or OCSA, regulates the process by which a person may acquire control of certain Oregon-based corporations without the consent and cooperation of the board of directors. The OCSA provisions restrict a shareholder’s ability to vote shares of stock acquired in certain transactions not approved by the board that cause the acquiring person to gain control of a voting position exceeding one-fifth, one-third, or one-half of the votes entitled to be cast in an election of directors. Shares acquired in a control share acquisition have no voting rights except as authorized by a vote of the shareholders. A corporation
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may opt out of the OCSA by provision in the corporation’s articles of incorporation or bylaws. We have not opted out of the coverage of the OCSA.
Interested Shareholder Transactions. Except under certain circumstances, the Oregon Business Corporation Act, (the “OBCA”)or OBCA, prohibits a “business combination” between a corporation and an “interested shareholder” within three years of the shareholder becoming an “interested shareholder.” Generally, an “interested shareholder” is a person or group that directly or indirectly owns, controls, or has the right to acquire or control, the voting or disposition of 15% or more of the outstanding voting stock or is an affiliate or associate of the corporation and was the owner of 15% or more of such voting stock at any time within the previous three years. A “business combination” is defined broadly to include, among others, (i) mergers and sales or other dispositions of 10% or more of the assets of a corporation with or to an interested shareholder, (ii) certain transactions resulting in the issuance or transfer to the interested shareholder of any stock of the corporation or its subsidiaries, (iii) certain transactions which would result in increasing the proportionate share of the stock of a corporation or its subsidiaries owned by the interested shareholder, and (iv) receipt by the interested shareholder of the benefit (except proportionately as a shareholder) of any loans, advances, guarantees, pledges, or other financial benefits.
A business combination between a corporation and an interested shareholder is prohibited for three years following the date that the shareholder became an “interested shareholder” unless (i) prior to the date the person became an interested shareholder, the board of directors approved either the business combination or the transaction which resulted in the person becoming an interested shareholder, (ii) upon consummation of the transaction that resulted in the person becoming an interested shareholder, that person owns at least 85% of the corporation’s voting stock outstanding at the time the transaction is commenced (excluding shares owned by persons who are both directors and officers and shares owned by employee stock plans in which participants do not have the right to determine confidentially whether shares will be tendered in a tender or
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exchange offer), or (iii) the business combination is approved by the board of directors and authorized by the affirmative vote (at an annual or special meeting and not by written consent) of at least 662/3%two-thirds of the outstanding voting stock not owned by the interested shareholder.
These restrictions placed on interested shareholders by the OBCA do not apply under certain circumstances, including, but not limited to, the following: (i) if the corporation’s original articles of incorporation contain a provision expressly electing not to be governed by the applicable section of the OBCA; or (ii) if the corporation, by action of its shareholders, adopts an amendment to its bylaws or articles of incorporation expressly electing not to be governed by the applicable section of the OBCA, provided that such an amendment is approved by the affirmative vote of not less than a majority of the outstanding shares entitled to vote. Such an amendment, however, generally will not be effective until 12 months after its adoption and will not apply to any business combination with a person who became an interested shareholder at or prior to such adoption. We have not elected to be outside the coverage of the applicable sections of the OBCA.
Board Of Directors’ Criteria For Evaluating Business Combinations. Under the OBCA, members of the board of directors of a corporation are authorized to consider certain factors in determining the best interests of the corporation when evaluating any (i) offer of another party to make a tender or exchange offer, (ii) merger or consolidation proposal, or (iii) offer of another party to purchase or otherwise acquire all or substantially all of the assets of the corporation. These factors include the social, legal and economic effects on employees, customers and suppliers of the corporation and on the communities and geographical areas in which the corporation and its subsidiaries operate, the economy and the state of the nation, the long-term and short-term interests of the corporation and its shareholders, including the possibility that these interests may be best served by the continued independence of the corporation, and other relevant factors.
StockholderInvestor Rights Planand Restrictions Agreement
On July 13, 2004,June 10, 2009, we entered into (i) a credit agreement with WLR Recovery Fund IV, L.P., WLR IV Parallel ESC, L.P., WL Ross & Co. LLC, and certain other parties thereto providing us a $75 million secured term loan; and (ii) a warrant agreement with Recovery Fund IV, L.P., WLR IV Parallel ESC, L.P., and other holders from time to time party thereto, the Warrant Agreement, whereby we issued warrants to purchase an aggregate of 3,377,903 shares of our common stock, referred to herein as, WLR Warrants. The initial exercise price of the WLR Warrants is $6.00 per share, and the exercise price and the number of shares of common stock issuable upon exercise of the WLR Warrants are subject to adjustment as provided for in the Warrant Agreement. In connection
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with the WLR Credit Agreement and the Warrant Agreement, we entered into the Investor Rights and Restrictions Agreement, dated as of June 10, 2009, with WL Ross & Co. LLC and certain affiliates, referred to herein as the WLR Funds, and the holders of the WLR Warrants from time to time party thereto.
Among other things, the Investor Rights Agreement provides that we will cause two designees of Recovery Fund IV, L.P., to be appointed to our board of directors, adoptedeach of whom shall be appointed to a separate class. In addition, the Investor Rights Agreement also provides that subject to certain exceptions, we may not issue common stock or securities convertible into, or exercisable or exchangeable for, common stock, without consideration or for consideration per share (or having a conversion or exercise price per share) that is less than $6.00 per share (as adjusted for stock splits, dividends, combinations, etc.), without the prior consent, not to be unreasonably withheld, of a majority of the holders of the WLR Warrants.
The Investor Rights Agreement also provides, if permitted by law and the rules and regulations of the applicable stock exchange, if we conduct a primary, public offering of our common stock (other than one where we reasonably believe that the price per share to the public will be in excess of $6.00), certain holders of the WLR Warrants the right to participate in proportion to their ownership of our common stock (calculated as if the warrants were exercised). The Investor Rights Agreement also grants the holders of the WLR Warrants certain registration rights. The terms and conditions of such participation rights and registration rights are set forth in the Investor Rights Agreement.
Stockholder Rights Agreement
We entered into a stockholder rights plan pursuantagreement, dated July 13, 2004, as amended on November 9, 2004, February 5, 2005, and June 10, 2009, between us and a rights agent. Pursuant to whichthe rights agreement, each stockholder of record as of July 26, 2004 received a dividend distribution of one preferred stock purchase right per share of common stock. The terms of the stock purchase rights are set forth in a rights agreement, as amended on November 9, 2004 and February 5, 2005, between us and a rights agent designated for this purpose. Each right initially entitles the registered holder to purchase one one-hundredth of a share of Series A participating preferred stock, without par value, at a price of $100 per right, subject to adjustment. The rights are not presently exercisable. Until they become exercisable, the rights will automatically trade with the underlying common stock and no separate preferred stock purchase rights certificates will be distributed at this time. The rights can be exercised on a cashless basis at the discretion of the board of directors. The rights will expire at the earlier of July 26, 2014 or the redemption or exchange of the rights. The board may amend or terminate the rights plan at any time or redeem the rights for $0.01 per right at anytime until ten days after a person or group meets a triggering threshold as described below.
The
Subject to certain exceptions, the rights become exercisable ten days following the date aany person or group becomes an Acquiring Person, as defined in the agreement. The agreement provides that an “Acquiring Person” is, subject to certain exceptions, any person who first acquires 12% or more of our common stock or ten business days following the commencement ofany person or group, commencing a tender offer, the consummation of which would result in athat person or group beneficially owning 12% or more of our outstanding common stock. In connection with the Investor Rights and Restrictions Agreement, we amended the stockholder rights agreement to provide the WLR Funds shall not be deemed to be an Acquiring Person unless their beneficial ownership exceeds 19.9% of our common stock.
If the rights become exercisable as described in the preceding paragraph, each holder of rights will be entitled to exercise such rights in order to receive that number of shares of our common stock equal to twice the exercise price of the rights. In addition, in the event of a business combination or certain sale transactions, the rights permit their holders to receive, upon the exercise at the then-current exercisable price, that number of shares of the acquirer’s or surviving corporation’s common stock having a market value of two times the exercise riceprice of the right. In each case, the rights associated with the shares of our common stock owned by the Acquiring Person become null and void.
At any time after a person or group acquires 12% or more of our common stockbecomes an Acquiring Person and before the person or group acquires 50% or more of our common stock, we may exchange all of the then-outstanding rights, other than rights held by the Acquiring Person, for common stock at an exchange rationratio of one share of common stock per rights, subject to readjustment. In each case,The agreement also provides that in accordance with certain provisions we may, by action of our board of directors, at any time until 10 days after a person meets the triggering threshold under the plan redeem the rights associated withfor $0.01 per right and terminate the shares of our common stock owned by the triggering person or group are not exercisable.rights agreement.
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Number of Directors; Filling Vacancies
Our Bylaws, as currently in effect, provide that the number of directors shall be eight.eleven. The shareholders and the board of directors have the authority to adopt, repeal or amend the bylaws. The affirmative vote of a majority of the total number of votes of the then-outstanding shares of our capital stock entitled to vote generally in the election of directors, voting together as a single class, may remove any director only with cause. Unless previously filled by the holders of at least a majority of the shares of capital stock entitled to vote for the election of directors, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority vote of the directors then in office, even if less than a quorum, or by a sole remaining director.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material features, terms and provisions of any debt securities that we may offer under this prospectus. This summary does not purport to be exhaustive and may not contain all the information that is important to you. Therefore, you should read the applicable prospectus supplement relating to those debt securities and any other offering materials that we may provide. We may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. Unless otherwise stated in the applicable prospectus supplement, we will not be limited in the amount of debt securities that we may issue, and neither the senior debt securities nor the subordinated debt securities will be secured by any of our property or assets. As of the date of this prospectus, substantially all of our assets are pledged to secure indebtedness under our existing credit facilities. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. For any debt securities that we may offer, an indenture (and any relevant supplemental indenture) will contain additional important terms and provisions and will be incorporated by reference as an exhibit to the registration statement that includes this prospectus, or as an exhibit to a current report onForm 8-K, incorporated by reference in this prospectus. Unless the context requires otherwise, whenever we refer to the indentures, we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We conduct substantially all of our operations though subsidiaries. As a result, claims of holders of debt securities will generally have a junior position to claims of creditors of our subsidiaries, except to the extent that we may be recognized as a creditor of those subsidiaries. In addition, our right to participate as a shareholder in any distribution of assets of any subsidiary (and thus the ability of holders of debt securities to benefit from such distribution as our creditors) is junior to creditors of each subsidiary.
We may issue senior debt securities or subordinated debt securities under one or separate indentures, which may be supplemented or amended from time to time. Senior debt securities will be issued under one or more senior indentures that we will enter into with the trustees named in such senior indentures and subordinated debt securities will be issued under one or more subordinated indentures that we will enter into with the trustees named in such subordinated indentures. Any senior debt indentures and subordinated debt indentures are referred to individually in this prospectus as the “indenture” and collectively as the “indentures.” The particular terms of a series of debt securities will be described in a prospectus supplement relating to such series of debt securities. Any indentures will be subject to, governed by and qualified under, the Trust Indenture Act of 1939, as amended, and may be supplemented or amended from time to time following their execution. We use the term “debenture trustee” to refer to either a trustee under a senior indenture or a trustee under a subordinated indenture, as applicable. We have filed forms of indentures to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
Any indentures will contain the full legal text of the matters described in this section of the prospectus, as applicable. Because this section is a summary, it does not describe every aspect of the debt securities or any applicable indentures. This summary is therefore subject to and is qualified in its entirety by reference to all the
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UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
Introductionprovisions of any applicable indenture, including any definitions of terms used in such indenture. Your rights will be defined by the terms of any applicable indenture, not the summary provided herein or in any prospectus supplement or supplements. This summary is also subject to and qualified by reference to the description of the particular terms of a particular series of debt securities described in the applicable prospectus supplement or supplements.
The following isdebt securities may be denominated and payable in U.S. dollars. We may also issue debt securities, from time to time, with the principal amount, interest or other amounts payable on any relevant payment date to be determined by reference to one or more currency exchange rates, securities or baskets of securities, commodity prices, indices or any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance. In addition, we may issue debt securities as part of any units issued by us. All references in this prospectus or any prospectus supplement to other amounts will include premiums, if any, other cash amounts payable under the applicable indenture, and the delivery of securities or baskets of securities under the terms of the debt securities. Debt securities may bear interest at a summaryfixed rate, which may be zero, or a floating rate.
Some of certain U.S.the debt securities may be issued as original issue discount debt securities. Original issue discount securities bear no interest or bear interest at below market rates and will be sold at a discount below their stated principal amount. A prospectus supplement relating to an issue of original issue discount securities will contain information relating to United States federal income tax, consequencesaccounting, and other special considerations applicable to original issue discount securities.
We will set forth in the applicable prospectus supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our preferred stock, common stock or other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the purchase, ownership and disposition of notes andholder or at our option. We may include provisions pursuant to which the ownershipnumber of shares of our preferred stock, common stock into which the notes may be converted, asor other securities that holders of the date hereof. This summary does not deal with personsseries of debt securities receive would be subject to special treatment underadjustment.
We will generally have no obligation to repurchase, redeem, or change the U.S. federal income tax laws, including dealersterms of debt securities upon any event (including a merger, consolidation, change in securitiescontrol or currencies, financial institutions, regulated investment companies, real estate investment trusts, tax exempt organizations, insurance companies, persons holding the notes as partdisposition of a hedging, integrated, conversion or constructive sale transaction or a straddle, traders in securitiessubstantially all of our assets) that might have elected themark-to-market method of accounting for their securities, persons liable for alternative minimum tax, persons who are investors in a pass-through entity, or U.S. persons whose “functional currency” is not the U.S. dollar.an adverse effect on our credit quality.
This summary is based upon
The following summaries of material provisions of the Internal Revenue Code of 1986, as amended (the “Code”),senior debt securities, the subordinated debt securities and regulations, rulings and judicial decisions as of the date hereof. Those authorities may be changed, perhaps retroactively, so as to result in U.S. federal income tax consequences different from those summarized below. This summary does not represent a detailed description of the U.S. federal income tax consequences to a holder in light of such holder’s particular circumstances. We cannot assure you that a change in law will not alter significantly the tax considerations that we describe in this summary.
As used herein, the term “U.S. Holder” means a beneficial owner of notes or shares of common stock that is for U.S. federal income tax purposes:
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| • | a citizen or resident of the U.S. (including certain former citizens and former long-term residents); |
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| • | a corporation (or other entity taxable as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the U.S. or any political subdivision of the U.S.; |
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| • | an estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
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| • | a trust if it (i) is subject to the primary supervision of a court within the U.S. and one or more U.S. persons have the authority to control all substantial decisions of the trust or (ii) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. |
A “Non-U.S. Holder” is a beneficial owner of notes or shares of common stock that is not a U.S. Holder or partnership. Non-U.S. Holdersindentures are subject to, special U.S. federal income tax considerations, some of which are discussed below. Special rules may applyand qualified in their entirety by reference to, certainnon-U.S. Holders such as “controlled foreign corporations,” “passive foreign investment companies,” corporations that accumulate earnings to avoid federal income tax or, in certain circumstances, United States expatriates. Suchnon-U.S. Holders should consult their own tax advisors to determine the U.S. federal, state, local and other tax consequences that may be relevant to them.
If a partnership holds our notes or shares of common stock, the tax treatment of a partner will generally depend upon the statusall of the partner and the activitiesprovisions of the partnership. Ifindenture applicable to a holder is a partnerparticular series of a partnership holding our notes or shares of common stock, such holder should consult his, her or its tax advisors.
This discussion is for general information purposes onlydebt securities. We urge you to read the applicable prospectus supplements and does not constitute legal advice. Persons consideringany related free writing prospectuses related to the purchase of notes should consult their own tax advisors concerning the particular U.S. federal Income tax consequences to such persons of the ownership of the notes,debt securities that we may offer under this prospectus, as well as the federal estate, gift, or excise tax rules or consequences arising under the laws of any other taxing jurisdiction.
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Classification of the Notes
Pursuant tocomplete indentures that contains the terms of the indenture,debt securities. Except as we and each holdermay otherwise indicate, the terms of the notes agreed, for U.S. federal income tax purposes, to treat the notes as indebtedness that is subject to the regulations governing contingent payment debt instrumentssenior indenture and the remainder of this discussion assumes thatsubordinated indenture are identical.
General
We will describe in the notes will be so treated.
No authority directly addresses the treatment of all aspects of the notes for U.S. federal income tax purposes. The Internal Revenue Service (“IRS”) has issued Revenue Ruling 2002-31 and Notice 2002-36, in which the IRS addressed the U.S. federal income tax classification and treatment of a debt instrument similar, although not identical, to the notes, and the IRS concluded that the debt instrument addressed in that published guidance was subject to the contingent payment debt instrument regulations. In addition, the IRS clarified various aspects of the applicability of certain other provisions of the Code to the debt instrument addressed in that published guidance. The applicability of Revenue Ruling 2002-31 and Notice 2002-36 to any particular debt instrument, however, such as the notes, is uncertain. In addition, no rulings are expected to be sought from the IRSapplicable prospectus supplement, documents incorporated by reference, or free writing prospectus with respect to any debt securities, the terms of the U.S. federal income tax consequences discussed below, and no assurance can be given that the IRS willdebt securities being offered, including, but not take contrary positions. As a result, no assurance can be given that the IRS will agree with the tax characterizations and the tax consequences described below. A different treatment of the notes for U.S. federal income tax purposes could significantly alter the amount, timing, character, and treatment of income, gain or loss recognized in respect of the notes from that which is described below and could require a U.S. Holder to accrue interest income at rate different from the “comparable yield” rate described below.
Consequences to U.S. Holderslimited to:
Interest Income on the Notes. Under the rules governing contingent payment debt obligations, you generally will be required to accrue interest income on the notes, in the amounts described below, regardless of whether you use the cash or accrual method of tax accounting. Accordingly, you generally will be required to include interest in taxable income in each year in excess of the payments actually received on the notes in that year.
Under the rules governing contingent payment debt obligations, you must accrue an amount of ordinary interest income for U.S. federal income tax purposes, for each accrual period prior to and including the maturity date of a note that equals:
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| | • | the producttitle and series of (i) the adjusted issue price of the note as of the beginning of the accrual period; and (ii) the comparable yield to maturity (as defined below) of the note, adjusted for the length of the accrual period;debt securities; |
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| | • | divided by the number of days inprincipal amount being offered, and if a series, the accrual period;total amount authorized and the total amount outstanding; |
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| | • | multipliedany limit on the amount that may be issued; |
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| • | whether or not we will issue the series of debt securities in global form, the terms and who the depositary will be; |
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| • | the date or dates and method or methods by which principal and any premium on such debt securities is payable; |
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| • | the number of days during the accrual period that you held the note.principal amount due at maturity; |
The issue price of a note is the first price at which a substantial amount of the notes were sold to investors, excluding bond houses, brokers or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers. The adjusted issue price of a note is generally equal to its issue price increased by any interest income previously accrued, determined without regard to any adjustments to interest accruals described below and decreased by the projected amounts of any payments (in accordance with the projected payment schedule described below) previously made with respect to the note.
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The term “comparable yield” means the annual yield that an issuer of a contingent payment debt obligation would pay, as of the initial issue date, on a fixed rate, non-convertible debt security with no contingent payments, but with terms and conditions otherwise comparable to those of the instrument. We have determined that the comparable yield for the notes is 7.75%, compounded semi-annually.
We are required to provide you, solely for U.S. federal income tax purposes, a schedule of the projected amounts of payments on the notes. This schedule must produce the comparable yield. The projected payment schedule includes estimates for payments of contingent interest and an estimate for a payment at maturity taking into account the conversion feature. The comparable yield and projected payment schedule are
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available from us by telephoning Investor Relations at (503) 684-7000 or submitting a written request to The Greenbrier Companies, Inc., One Centerpointe Drive, Suite 200, Lake Oswego, OR 97035, Attention: Investor Relations.
You have agreed to (and, for U.S. federal income tax purposes, must) use the comparable yield and projected payment schedule in determining your interest accruals, and the adjustments thereto described below, in respect of the notes. Although under U.S. federal income tax law you would generally be permitted to determine your own comparable yield or projected payment schedule if you were to timely disclose and justify the use of those other estimates to the IRS and establish that our comparable yield or schedule of projected payments is unreasonable, you have agreed in the indenture to be bound by our projected payment schedule and our determination of the rate at which interest will be deemed to accrue for U.S. federal income tax purposes.
The comparable yield and projected payment schedule are not determined for any purpose other than for the determination of your interest accruals and adjustments thereof in respect of the notes for U.S. federal income tax purposes and do not constitute a projection or representation regarding the actual amounts payable to the notes.
Adjustments to Interest Accruals on the Notes. If you were to receive actual payments with respect to a note in a taxable year that in the aggregate exceed the total amount of projected payments for that taxable year, you would incur a “net positive adjustment” equal to the amount of such excess. You would treat the “net positive adjustment” as additional interest income for the taxable year. For this purpose, the payments in a taxable year include the fair market value of property received in that year.
If you were to receive actual payments with respect to a note in a taxable year that in the aggregate were less than the amount of the projected payments for that taxable year, you would incur a “net negative adjustment” equal to the amount of such deficit. This adjustment will (1) reduce your interest income on the notes for that taxable year, and (2) to the extent of any excess after the application of (1), give rise to an ordinary loss to the extent of your interest income on the note during prior taxable years, reduced to the extent such interest was offset by prior net negative adjustments.
Any negative adjustment in excess of the amounts described in (1) and (2) will be carried forward to offset future interest income in respect of the note or to reduce the amount realized upon a sale, exchange, conversion, repurchase or redemption of the note.
Special rules will apply if the amount of a contingent payment on a debenture becomes fixed more than six months prior to the due date of the payment. Generally, in this case you would be required to make adjustments to account for the difference between the present value of the amount so treated as fixed and the present value of the projected payment. Your tax basis in the debenture would also be affected. You are urged to consult your tax advisor concerning the application of these special rules.
Sale, Exchange, Conversion, Repurchase or Redemption. Generally, the sale, exchange, conversion, repurchase or redemption of a note will result in taxable gain or loss to you. As described above, our calculations of the comparable yield and the projected payment schedule for the notes include the receipt of stock upon conversion as a contingent payment with respect to the notes. Accordingly, we intend to treat the receipt of cash and our common stock by you upon a conversion of a note as a contingent payment. As described above, you will agree in the indenture to be bound by our determination of the comparable yield and projected payment schedule. Under this treatment, conversion of a note will also result in taxable gain or loss to you. The amount of gain or loss on a taxable sale, exchange, conversion, repurchase or redemption will be equal to the difference between (1) the amount of cash plus the fair market value of any other property received by you, including the fair market value of any common stock received upon a conversion, reduced by any negative adjustment carryforward as described above, and (2) your adjusted tax basis in the note. Your adjusted tax basis in a note will generally be equal to your original purchase price for the note, increased by any interest income previously accrued by you (determined without regard to any adjustments to interest accruals described above) and decreased by the amount of any projected payments that previously have been scheduled to be made on the note without regard to the actual amount paid. Gain recognized
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upon a sale, exchange, conversion, repurchase or redemption of a note will generally be treated as ordinary interest income; any loss will be ordinary loss to the extent of the excess of previous interest inclusions over the total negative adjustment previously taken into account as ordinary loss, and thereafter, as capital loss (which will be long-term if the note is held for more than one year). The deductibility of net capital losses by individuals and corporations is subject to limitations. A U.S. Holder who sells a debenture at a loss, or who converts a debenture into our common stock at a loss, that meets certain thresholds may be required to report the sale to the Internal Revenue Service as a “reportable transaction.”
Your tax basis in our common stock received upon a conversion of a note will equal the then current fair market value of such common stock. Your holding period for the common stock received will commence on the day immediately following the date of conversion.
Constructive Distributions. The conversion rate of the notes will be adjusted in certain circumstances. See “Description of Notes — Conversion Rate Adjustments; Adjustment to Conversion Rate Upon Certain Corporate Transactions.” Under Section 305(c) of the Code, adjustments (or failures to make adjustments) that have the effect of increasing a U.S. Holder’s proportionate interest in our assets or earnings may in some circumstances result in a deemed distribution to such holder. Adjustments to the conversion rate made pursuant to a bona fide reasonable adjustment formula that has the effect of preventing the dilution of the interest of the holders of the notes, however, will generally not be considered to result in a deemed distribution to a U.S. Holder. Certain of the possible conversion rate adjustments provided in the notes (including, without limitation, adjustments in respect of taxable dividends to holders of our common stock) may not qualify as being pursuant to a bona fide reasonable adjustment formula. If such adjustments are made, the U.S. Holder of notes will be deemed to have received a distribution even though they have not received any cash or property as a result of such adjustments. Any deemed distributions will be taxable as a dividend, return of capital, or capital gain in accordance with the earnings and profits rules under the Code. It is not clear whether a constructive dividend deemed paid to a non-corporate U.S. Holder would be eligible for the preferential rates of U.S. federal income tax applicable in respect of certain dividends received. It is also unclear whether corporate U.S. Holders would be entitled to claim the dividends received deduction with respect to any such constructive dividends.
Distributions on Shares of our Common Stock. Distributions paid on our common stock, other than certain pro rata distributions of shares of our common stock, will be treated as dividends to the extent paid out of current or accumulated earnings and profits (as determined under U.S. federal income tax principles) and will be includible in income by a U.S. Holder and taxable as ordinary income when received. Dividends paid to a U.S. Holder that is a corporation may qualify for the dividends received deduction. Dividends received in years beginning prior to 2011 by a non-corporate U.S. Holder may be subject to U.S. federal income tax at a reduced maximum rate of 15% if such U.S. Holder held the shares for at least 61 days during the121-day period beginning on the date that is 60 days before the shares become ex-dividend with respect to such dividend and certain other conditions are met. U.S. Holders should consult their own tax advisors regarding the implications of these rules to their particular circumstances. If a distribution exceeds our current and accumulated earnings and profits, the excess will be treated as a tax-free return of a U.S. Holder’s investment, up to and in reduction of the U.S. Holder’s tax basis in shares of our common stock issued upon conversion of the notes. Any remaining excess will be treated as capital gain.
Sale or Other Disposition of Shares of our Common Stock. A U.S. Holder will generally recognize capital gain or loss on the sale or other taxable disposition of shares of common stock, if any, received upon conversion of the notes for U.S. federal income tax purposes, which will be long-term capital gain or loss if such holder held shares of our common stock for more than one year. The amount of gain or loss will be equal to the difference between (i) a U.S. Holder’s tax basis in the shares of common stock disposed of and (ii) the amount such holder realizes on the disposition. A U.S. Holder’s basis and holding period in common stock received upon conversion of a note are determined as discussed above. Long-term capital gains recognized by certain non-corporate U.S. Holders, including individuals, are generally subject to a maximum regular U.S. federal income tax rate of 15%. The deductibility of capital losses is subject to limitations.
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Information Reporting and Backup Withholding. Information reporting requirements generally will apply to payments of interest on the notes and dividends on shares of common stock and to the proceeds of a sale of a note or share of common stock paid to a U.S. Holder unless such holder is an exempt recipient such as a corporation. Backup withholding tax (currently at a rate of 28%) will apply to those payments if a U.S. Holder fails to furnish his, her or its taxpayer identification number (“TIN”), or furnishes an incorrect TIN, or is notified by the IRS that such U.S. Holder has failed to report in full interest and dividend income.
Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a U.S. Holder’s U.S. federal income tax liability provided the required information is furnished to the IRS.
Consequences toNon-U.S. Holders
Payments with Respect to the Notes. All payments on the notes made to you, including a payment in our common stock pursuant to a conversion, and any gain realized on a sale or exchange of the notes, will be exempt from United States income and withholding tax, provided that: (i) you do not own, actually or constructively, 10% or more of the total combined voting power of all classes of our stock entitled to vote, (ii) you are not a controlled foreign corporation related, directly or indirectly, to us through stock ownership, (iii) you certify, under penalties of perjury, to us or our paying agent on IRS Form W-8BEN that you are not a U.S. person and certain other requirements are satisfied, (iv) such payments and gain are not effectively connected with the conduct by you of a trade or business in the United States or, if a treaty applies (and the holder complies with the applicable certification and other requirements to claim treaty benefits) is attributable to a permanent establishment maintained by thenon-U.S. Holder within the United States, and (v) with respect only to gain realized on a sale, exchange or conversion of the notes, our common stock continues to be actively traded within the meaning of section 871(h)(4)(C)(v)(I) of the Code and we have not been a U.S. real property holding corporation, as defined in the Code, at any time within the five-year period preceding the disposition or your holding period, whichever is shorter. We believe that we have not been during the past five years, are not, and do not anticipate becoming, a U.S. real property holding corporation; however no assurance can be given in this regard.
If all of these conditions are not met, a 30% U.S. withholding tax will apply to interest income on the notes, which will be withheld from scheduled interest payments, contingent interest payments or principal payments on the notes, to the extent thereof, unless either (i) an applicable income tax treaty reduces or eliminates such tax or (ii) the interest is effectively connected with a U.S. trade or business and, in each case, the non-U.S. Holder complies with applicable certification requirements. If clause (ii) applies, a non-U.S. Holder will generally be subject to U.S. federal income tax on the net gain derived from the sale in the same manner described under “Income Effectively Connected with a United States Trade or Business.” We urge non-U.S. Holders to consult their tax advisors for information on the impact of these withholding regulations.
Constructive Dividends on the Notes. If you were deemed to have received a constructive dividend (see “— U.S. Holders — Constructive Distributions” above), however, you would generally be subject to U.S. withholding tax at a 30% rate on the amount of such dividend, thereby potentially reducing the amount of interest payable to you, subject to reduction (i) by an applicable treaty if you provide an IRS Form W-8BEN certifying that you are entitled to such treaty benefits or (ii) upon the receipt of an IRS Form W-8ECI from you claiming that the constructive dividend on the notes is effectively connected with the conduct of a United States trade or business.
Payments on Common Stock. Dividends paid to aNon-U.S. Holder of common stock will generally be subject to withholding tax at a 30% rate subject to reduction (a) by an applicable treaty if you provide an IRS Form W-8BEN certifying that you are entitled to such treaty benefits or (b) upon the receipt of an IRS Form W-8ECI from you claiming that the payments are effectively connected with the conduct of a United States trade or business.
You will generally not be subject to U.S. federal income tax on gain realized on the sale or exchange of the common stock received upon a conversion of notes unless (a) the gain is effectively connected with the conduct by you of a United States trade or business (or, if a treaty applies, is attributable to a permanent
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establishment maintained by you in the United States) or (b) in the case that you are a nonresident alien individual, you have been present in the United States for 183 or more days in the taxable year of the disposition and certain other conditions are met, or (c) we will have been a U.S. real property holding corporation at any time within the shorter of the five-year period preceding such sale or exchange and your holding period in the common stock. We believe that we have not been during the past five years, are not and do not anticipate becoming, a U.S. real property holding corporation; however, no assurance can be given in this regard.
If clause (a) applies, a non-U.S. Holder will generally be subject to U.S. federal income tax on the net gain derived from the sale in the same manner described under “Income Effectively Connected with a United States Trade or Business”. An individual non-U.S. Holder described in clause (b) will be subject to U.S. federal income tax at a 30% rate, or at a lower rate specified in an applicable income tax treaty, on the gain derived from the sale or exchange, which gain may be offset by U.S. source capital losses, even though the holder is not considered a resident of the United States.
Income Effectively Connected with a United States Trade or Business. If you are engaged in a trade or business in the United States, and if interest on the notes, dividends on our common stock, or gain realized on the sale, exchange, conversion or other disposition of the notes and gain realized on the sale or exchange of our common stock is effectively connected with the conduct of such trade or business or, if a treaty applies, is attributable to a permanent establishment maintained by you within the United States, then you, although exempt from the withholding tax discussed in the preceding paragraphs, will generally be subject to regular U.S. federal income tax on such interest, dividends or gain in the same manner as if you were a U.S. Holder. In addition, if you are a foreign corporation, you may be subject to a branch profits tax equal to 30% (or such lower rate provided by an applicable treaty) of your effectively connected earnings and profits for the taxable year, subject to certain adjustments.
Information Reporting and Backup Withholding. Generally, we must report to the IRS and to aNon-U.S. Holder the amount of interest and dividends paid to such holder and the amount of tax, if any, withheld with respect to those payments. Copies of the information returns reporting such interest payments and any withholding may also be made available to the tax authorities in the country in which aNon-U.S. Holder resides under the provisions of an applicable income tax treaty.
In general, aNon-U.S. Holder will not be subject to backup withholding with respect to payments of interest or dividends that we make to such holder provided that we do not have actual knowledge or reason to know that such holder is a U.S. person, as defined under the Code, and we have received from aNon-U.S. Holder the appropriate certifications that it is not a U.S. person.
In addition, no information reporting or backup withholding will be required regarding the proceeds of the sale of notes and common stock made within the U.S. or conducted through certainU.S.-related financial intermediaries, if the payor receives the statement described above and does not have actual knowledge or reason to know that aNon-U.S. Holder is a U.S. person, as defined under the Code, or aNon-U.S. Holder otherwise establishes an exemption.
Payments of the proceeds from a disposition by aNon-U.S. Holder of a note or common stock made to or through a foreign office of a broker will not be subject to information reporting or backup withholding, except that information reporting (but generally not backup withholding) may apply to those payments if the broker is:
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| | • | whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a U.S. person;person who is not a United States person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts; |
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| | • | a controlled foreign corporationthe interest rate, which may be fixed or variable, or the method for U.S. federal income tax purposes;determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
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| | • | a foreign person 50%whether or morenot the debt securities will be convertible into shares of whose gross income is effectively connected with a U.S. tradecommon stock, preferred stock or business for a specified three-year period;other securities or a foreign partnership,property and, if atso, the terms of such conversion; |
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| • | whether or not the debt securities will be secured or unsecured, and the terms of any time during its tax year, one or more of its partners are U.S. persons, as defined in Treasury regulations, who in secured debt; |
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| • | the aggregate hold more than 50%terms of the incomesubordination of any series of subordinated debt; |
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| • | the terms of any guarantee of the payment of principal, interest and premium, if any, with respect to debt securities of the series and any corresponding changes to the provisions of the applicable indenture; |
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| • | the place where payments will be payable; |
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| • | restrictions on transfer, sale or capitalother assignment, if any; |
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| • | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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| • | the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions; |
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| • | the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unit in which the partnershipdebt securities are payable; |
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| • | whether and under what circumstances any additional amounts are payable with respect to such debt securities; |
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| • | the notice, if any, to holders of such debt securities regarding the determination of interest on a floating rate debt security; |
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| • | the denominations of such debt securities, if other than $1,000 and integral multiples thereof; |
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| • | the terms, if any, by which the amount of payments of principal or any premium, interest or additional amounts on such debt securities may be determined by reference to an index, formula, financial or economic measure or other methods; |
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| • | if at other than the principal amount hereof, the portion of the principal amount of such debt securities that will be payable upon declaration of acceleration of the maturity thereof or provable in bankruptcy; |
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| • | any time during its tax year, events of default or covenants in addition to or in lieu of those described herein and remedies therefor; |
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| • | whether such debt securities will be subject to defeasance or covenant defeasance; |
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| • | the foreign partnership is engagedterms, if any, upon which such debt securities are to be issuable upon the exercise of warrants, units or rights; |
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| • | whether such debt securities will be guaranteed and the terms thereof; and |
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| • | any other terms of the series of debt securities (which shall not be inconsistent with the provisions of the indentures, except as permitted by a supplemental indenture, but which may modify or delete any provisions of the indentures insofar as it applies to such series), including any terms which may be required by or advisable under the laws of the U.S. or regulations thereunder or advisable (as determined by us) in a U.S. trade or business.connection with the marketing of the debt securities of the series. |
Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against aNon-U.S. Holder’s U.S. federal income tax liability provided the required information is furnished to the IRS.
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PLAN OF DISTRIBUTIONGuarantee
Our debt securities may be guaranteed by any of the Subsidiary Guarantors listed on this prospectus. The notesspecific terms and provisions of each guarantee will be described in the applicable prospectus supplement.
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock, preferred stock, debt securities or other securities, in one or more series. We may issue warrants independently or together with common stock, preferred stockand/or debt securities, and the common stock intowarrants may be attached to or separate from these securities. While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the notesSEC, the form of warrant agreement that describes the terms of the particular series of warrants we are convertibleoffering. The following summaries of material provisions of the warrants and the warrant agreements are being registeredsubject to, permit public secondary tradingand qualified in their entirety by reference to, all the provisions of these securities from timethe warrant agreement and warrant certificate applicable to time after the dateparticular series of warrants that we may offer under this prospectus. We will not receiveurge you to read the applicable prospectus supplements related to the particular series of warrants that it may offer under this prospectus, as well as any related free writing prospectuses, and the complete warrant agreements that contain the terms of the proceedswarrants.
General
We will describe in the applicable prospectus supplement, documents incorporated by reference, or free writing prospectus with respect to any warrants, the terms of the sale by the selling securityholders of the notes or the common stock issuable upon conversion of the notes. The aggregate proceeds to the selling securityholders from the sale of the notes or common stock issuable upon conversion of the notes will be the purchase price of such securities less any discounts and commissions. A selling securityholder reserves the right to accept and, together with its agents, to reject, any proposed purchase of notes or common stock to be made directly or through agents.warrants being offered, including, but not limited to:
The notes and the common stock issuable upon conversion of the notes may be sold from time to time to purchasers:
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| | • | directly by the selling securityholdersoffering price of securities that include such warrants and their successors; oraggregate number of warrants offered; |
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| | • | through underwriters, broker-dealersif applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or agents who may receive compensation each principal amount of such security; |
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| • | in the formcase of discounts, concessions or commissions fromwarrants to purchase debt securities, the selling securityholders or the purchasersprincipal amount of the notesdebt securities purchasable upon exercise of one warrant and the common stock issuable upon conversionprice at, and currency in which, this principal amount of the notes. These discounts, concessions or commissionsdebt securities may be in excess of those customary in the types of transactions involved.purchased upon such exercise; |
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The selling securityholders and any underwriters, broker-dealers or agents who participate in the distribution of the notes and the common stock issuable upon conversion of the notes may be deemed to be “underwriters” within the meaning of Section 2(11) the Securities Act. As a result, any profits on the sale of such securities by selling securityholders and any discounts, commission or concessions received by any such broker-dealer or agents may be deemed to be underwriting discounts and commissions within the meaning of the Securities Act. Selling securityholders who are deemed to be underwriters may be subject to certain statutory liabilities, including, but not limited to, those under Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Exchange Act. Selling securityholders who are deemed to be underwriters will also be subject to the prospectus delivery requirements of the Securities Act.
If the notes and the common stock issuable upon conversion of the notes are sold through underwriters, broker-dealers or agents, the selling securityholders will be responsible for underwriting discounts or commissions or agent’s commissions.
The notes and the common stock issuable upon conversion of the notes may be sold in one or more transactions at:
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| | • | fixed prices;in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
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| | • | prevailingthe effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
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| • | the terms of any rights to redeem or call the warrants; |
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| • | any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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| • | the dates on which the right to exercise the warrants will commence and expire; |
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| • | the manner in which the warrant agreements may be modified; |
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| • | a discussion of any material or special United States federal income tax consequences of holding or exercising the warrants; |
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| • | the terms of the securities issuable upon exercise of the warrants; and |
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| • | any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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| • | in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
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| • | in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any. |
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price or prices that we describe in the applicable prospectus supplement. Holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant agreement representing the warrants to be exercised together with specified information, and paying the required amount to us in immediately available funds, as provided in the applicable prospectus supplement.
Upon receipt of the required payment and the warrant agreement properly completed and duly executed at our or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants represented by the warrant agreement are exercised, then we will issue a new warrant agreement for the remaining amount of warrants. Holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
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DESCRIPTION OF RIGHTS
We may issue rights to purchase our common stock, preferred stock, debt securities or other securities in one or more series. These rights may be issued independently or together with any other security offered hereby and may or may not be transferable by the stockholder receiving the rights in such offering. In connection with any offering of such rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of rights agreements that describes the terms of the rights we are offering, and any supplemental agreements, before the issuance of the related series of rights. The following summaries of material terms and provisions the rights are subject to, and qualified in their entirety by reference to, all the provisions of the rights agreement and any supplemental agreements applicable to a particular series of rights. We urge you to read the applicable prospectus supplements related to the particular series of rights that we may offer under this prospectus, as well as any related free writing prospectuses and the complete rights agreement and any supplemental agreements that contain the terms of the rights.
General
We will describe in the applicable prospectus supplement, documents incorporated by reference, or free writing prospectus with respect to any rights, the terms of the rights being offered, including, but not limited to:
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| • | in the case of a distribution of rights to our stockholders, the date of determining the stockholders entitled to the rights distribution; |
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| • | in the case of a distribution of rights to our stockholders, the number of rights issued or to be issued to each stockholder; |
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| • | the exercise price payable for the underlying debt securities, common stock, preferred stock or other securities upon the exercise of the rights; |
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| • | the number and terms of the underlying debt securities, common stock, preferred stock or other securities which may be purchased per each right; |
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| • | the extent to which the rights are transferable; |
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| • | the date on which the holder’s ability to exercise the rights shall commence, and the date on which the rights shall expire; |
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| • | the extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities; |
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| • | the effect of any merger, consolidation, sale or other disposition of our business on the rights agreements and the rights; |
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| • | the manner in which the rights agreements may be modified; |
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| • | a discussion of any material or special United States federal income tax consequences of holding or exercising the rights; |
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| • | if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of such rights; and |
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| • | any other terms of the rights, including, but not limited to, the terms, procedures, conditions and limitations relating to the exchange and exercise of the rights. |
Exercise of Rights
Each right will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price or prices that we describe in the applicable prospectus supplement. Holders of the
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rights may exercise the rights at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised rights will become void.
Holders of the rights may exercise the rights by delivering the rights agreement representing the rights to be exercised together with specified information, and paying the required amount to us in immediately available funds, as provided in the applicable prospectus supplement.
Upon receipt of the required payment and the rights agreement properly completed and duly executed at our or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the rights represented by the rights agreement are exercised, then we will issue a new rights agreement for the remaining amount of rights. Holders of the rights may surrender securities as all or part of the exercise price for rights.
DESCRIPTION OF UNITS
We may issue, in one or more series, units consisting of common stock, preferred stock, debt securitiesand/or warrants for the purchase of common stock, preferred stockand/or debt securities in any combination. While the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement, documents incorporated by reference, or free writing prospectus with respect to any series of units, the terms of the series of units being offered, including, but not limited to:
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| • | the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
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| • | any provisions of the governing unit agreement that differ from those described below; and |
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| • | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The provisions described in this section, as well as those described under “Description of Our Capital Stock,” “Description of Debt Securities” and “Description of Warrants” will apply to each unit to the extent comprised of any such security included in each unit, as well as the underlying, relevant securities, respectively.
Issuance in Series
We may issue units in such amounts and in such numerous distinct series as we determine.
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Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
Title
We, and any unit agent and any of their agents, may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary. See “Legal Ownership of Securities” below.
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USE OF PROCEEDS
Except as described in any prospectus supplement or in any related free writing prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the sale of the securities offered hereby for general corporate purposes, including, among other things, working capital, financing possible acquisitions, repayment of obligations that have matured, and reducing or refinancing indebtedness that may be outstanding at the time of any offering under this prospectus.
We have not specifically allocated the proceeds to those purposes as of the date of this prospectus. Pending these uses, we may invest the net proceeds in short-term, investment-grade securities. The precise amount and timing of the application of proceeds from the sale of securities will depend on our funding requirements and the availability and cost of other funds at the time of sale. Allocation of proceeds of a particular series of securities, or the principal reason for the offering if no allocation has been made, will be described in the applicable prospectus supplement or in any related free writing prospectus.
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LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form to “holders” and “indirect holders” or as global securities. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or depositary maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities. As discussed below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and will make all payments, if any, on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment, if any, or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event, we would seek approval only from the
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holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders.
Special Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution to find out:
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| • | how it handles securities payments and notices; |
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| • | whether it imposes fees or charges; |
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| • | how it would handle a request for the holders’ consent, if ever required; |
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| • | whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future; |
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| • | how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and |
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| • | if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global Securities
A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under “Special Situations When a Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations For Global Securities
The rights of an indirect holder relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities but instead deal only with the depositary that holds the global security.
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If securities are issued only in the form of a global security, an investor should be aware of the following:
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| • | an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations described below; |
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| • | an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as described above; |
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| • | an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; |
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| • | an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
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| • | the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security; |
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| • | we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security, nor do we or any applicable trustee supervise the depositary in any way; |
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| • | the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and |
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| • | financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities. |
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable prospectus supplement, the global security will terminate when the following special situations occur:
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| • | if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days; |
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| • | if we notify any applicable trustee that we wish to terminate that global security; or |
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| • | if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the applicable prospectus supplement. When a global security terminates, the depositary, and not us or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
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PLAN OF DISTRIBUTION
We may sell the securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell the securities to or through underwriters or dealers, with or without an underwriting syndicate, through agents, or directly to one or more purchasers through a specific bidding or auction process, a rights offering, or otherwise, or through a combination of these methods or through any other method described in a prospectus supplement. We may distribute securities from time to time in one or more transactions:
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| • | at a fixed price or prices, which may be changed; |
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| • | at market prices prevailing at the time of sale; |
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| | • | varyingat prices determined at the time of sale;related to such prevailing market prices; or |
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| | • | at negotiated prices.prices or in competitively bid transactions. |
These sales
A distribution of the securities offered by this prospectus may also be effected through the issuance of derivative securities, including without limitation, warrants, subscriptions, exchangeable securities, forward delivery contracts and the writing of options. In addition, the manner in transactions:which we may sell some or all of the securities covered by this prospectus includes, without limitation, through:
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| | • | on any national securities exchangea block trade in which a broker-dealer will attempt to sell as agent, but may position or quotation service on which the notes and common stock issuable upon conversionresell a portion of the notes may be listed or quoted atblock, as principal, in order to facilitate the time of the sale;transaction; |
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| | • | inpurchases by a broker-dealer, as principal, and resale by the over-the-counter market;broker-dealer for its account; |
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| | • | ordinary brokerage transactions and transactions in transactions otherwise than on such exchanges or services or in the over-the-counter market; |
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| • | through the writing and exercise of options, whether such options are listed on an options exchange or otherwise;which a broker solicits purchasers; or |
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| | • | any other transactions permitted under applicable law.privately negotiated transactions. |
These
We may also enter into hedging transactions. For example, we may:
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| • | enter into transactions with a broker-dealer or affiliate thereof in connection with which such broker-dealer or affiliate will engage in short sales of the common stock pursuant to this prospectus, in which case such broker-dealer or affiliate may use shares of common stock received from us to close out its short positions; |
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| • | sell securities short and redeliver such shares to close out our short positions; |
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| • | enter into option or other types of transactions that require us to deliver common stock to a broker-dealer or an affiliate thereof, who will then resell or transfer the common stock under this prospectus; or |
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| • | loan or pledge the common stock to a broker-dealer or an affiliate thereof, who may sell the loaned shares or, in an event of default in the case of a pledge, sell the pledged shares pursuant to this prospectus. |
In addition, we may enter into derivative or hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. In connection with such a transaction, the third parties may include block transactionssell securities covered by and pursuant to this prospectus and an applicable prospectus supplement or crosses. Crosses are transactionspricing supplement, as the case may be. If so, the third party may use securities borrowed from us or others to settle such sales and may use securities received from us to close out any related short positions. We may also loan or pledge securities covered by this prospectus and an applicable prospectus supplement to third parties, who may sell the loaned securities or, in whichan event of default in the same broker actscase of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement or pricing supplement, as an agent on both sidesthe case may be.
A prospectus supplement or supplements will describe the terms of the trade.offering of the securities, including:
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| • | the terms of the offering; |
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| • | the name or names of the underwriters, dealers or agents, if any, and the types and amounts of securities underwritten or purchased by each of them; |
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| • | the purchase price of the securities and the proceeds we will receive from the sale; |
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In connection | | |
| • | any over-allotment options under which underwriters may purchase additional securities from us; |
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| • | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; |
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| • | the terms of any rights; |
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| • | any public offering price; |
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| • | any delayed delivery arrangements; |
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| • | any discounts or concessions allowed or reallowed or paid to dealers; and |
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| • | any securities exchange or market on which the securities may be listed. |
Only underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
If we use dealers in the sale of notessecurities, we will sell securities to such dealers as principals. The dealers may then resell the securities to the public at varying prices to be determined by such dealers at the time of resale. We may solicit offers to purchase the securities directly, and we may sell the common stock issuable upon conversionsecurities directly to institutional or other investors, who may be deemed underwriters within the meaning of the notes, the selling securityholders may enter into hedging transactionsSecurities Act with broker-dealers or other financial institutions. These broker-dealers or other financial institutions may in turn engage in shortrespect to any resales of those securities. The terms of these sales of notes or the common stock issuable upon conversion of the noteswill be described in the course of hedging their positions. The selling securityholders may also sell the notes and common stock issuable upon conversion of the notes short and deliver such notes and common stock to close out short positions, or loan or pledge such securities to broker-dealers thatapplicable prospectus supplement. If we use agents in turn may sell such securities.
To our knowledge, there are currently no plans, arrangements or understandings between any selling securityholders and any underwriter, broker-dealer or agent regarding the sale of securities, unless otherwise indicated in the notesprospectus supplement, they will use their reasonable best efforts to solicit purchases for the period of their appointment. Unless otherwise indicated in a prospectus supplement, if we sell directly, no underwriters, dealers or agents would be involved. We will not make an offer of securities in any jurisdiction that does not permit such an offer.
We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may choose to sell the offered securities directly to multiple purchasers or a single purchaser. In this case, no underwriters or agents would be involved.
We may also make direct sales through rights distributed to our existing stockholders on a pro rata basis, which may or may not be transferable. In any distribution of rights to our stockholders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly to third parties or may engage the services of one or more underwriters, dealers or agents, including standby underwriters, to sell the unsubscribed securities to third parties. In addition, whether or not all of the underlying securities are subscribed for, we may concurrently offer additional securities to third parties directly or through underwriters or agents. If securities are to be sold through rights, the rights will be distributed as a dividend to the stockholders for which they will pay no separate consideration. The prospectus supplement, the documents incorporated by reference or the free writing prospectus with respect to the offer of securities under the rights will set forth the relevant terms of the rights.
We may authorize underwriters, dealers, or agents to solicit offers by certain types of institutional investors or other purchasers to purchase our securities from them at the public offering price set forth in the prospectus
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supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions or discounts we pay for solicitation of these contracts.
We may provide agents and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
Unless otherwise specified in an applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market, other than our common stock, issuable upon conversion of the notes.
Our common stockwhich is listed on the New York Stock Exchange under the symbol “GBX.” Any common stock sold pursuant to a prospectus supplement will be listed on the New York Stock Exchange, subject to official notice of issuance. We do not intendmay elect to apply for listinglist any other class or series of the notessecurities on any exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in a class or series of securities, exchange or for inclusion ofbut the notes inunderwriters will not be obligated to do so and may discontinue any automated quotation system. Accordingly, we can offer nomarket making at any time without notice. We cannot give any assurance as to the developmentliquidity of liquidity or anythe trading market for the notes.
There can be no assurance that any selling securityholder will sell any or all of the notessecurities. We cannot guarantee the liquidity of the trading markets for any securities.
In connection with any offering, the underwriters may purchase and sell securities in the open market. Any underwriter may engage in short sales, over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Short sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in an offering. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price and are made for the purpose of preventing or retarding a decline in the market price of the securities while an offering is in progress. Syndicate-covering or other short-covering transactions involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. These activities by the underwriters may stabilize, maintain or otherwise affect the market price of the securities. As a result, the price of the securities may be higher than the price that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by the underwriters at any time. These transactions may be effected on an exchange or automated quotation system, if the securities are listed on an exchange or admitted for trading on an automated quotation system, in theover-the-counter market, or otherwise.
Any underwriters that are qualified market makers on the New York Stock Exchange may engage in passive market making transactions in our common stock on the New York Stock Exchange in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock issuable upon conversionstock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the noteshighest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
In compliance with guidelines of the Financial Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus. Further, we cannot assure you thatprospectus and any such selling securityholder will not transfer, devise or gift such securities by other means not described in this prospectus. In addition, any notes or shares of common stock issuable upon conversionapplicable prospectus supplement.
If more than 10% of the notes covered bynet proceeds of any offering of securities made under this prospectus that qualify for sale pursuant to Rule 144 or Rule 144A of the Securities Act maywill be sold under Rule 144 or Rule 144A rather than under this prospectus. The notes and the common stock issuable upon conversion of the notes may be sold in some states only through registered or licensed brokers or dealers. In addition, in some states the notes and common stock issuable upon conversion of the notes may not be sold unless they have been registered or qualified for sale or an exemption from registration or qualification is available and complied with.
The selling securityholders and any other personreceived by FINRA members participating in the saleoffering or affiliates or associated persons of notes orsuch FINRA members, the common stock issuable upon conversion of the notesoffering will be subjectconducted in accordance with FINRA Conduct Rule 5110(h).
To the extent required, this prospectus may be amended or supplemented from time to the Exchange Act. The Exchange Act rules include (and any successor rules or regulations may include), without limitation, Regulation M, which may limit the timingtime to describe a specific plan of purchases and sales of any of the notes and the common stock issuable upon conversion of the notes by the selling securityholders and any other such person. In addition, Regulation M may restrict the ability of any person engaged in the distribution of such securities and the ability of any person or entity to engage in market-making activities with respect to such securities.distribution.
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EXPERTSLEGAL MATTERS
Tonkon Torp LLP, Portland, Oregon will pass upon the validity of the securities being offered by this prospectus. Any underwriter, dealer or agent may be advised about issues relating to any offering by its own legal counsel. The name of the law firm or law firms advising any underwriters, dealers or agents with respect to certain issues relating to any offering will be set forth in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements and management’s report on the effectiveness of internal control over financial reporting incorporated in this prospectus by reference from the Company’s Current Report onForm 8-K dated April 6, 2010, and the effectiveness of the Company’s internal control over financial reporting incorporated by reference from the Company’s Annual Report onForm 10-K for the year ended August 31, 2005 have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports (which reports (1) express an unqualified opinion on the consolidated financial statements and includes an explanatory paragraph relating to the adoption of accounting guidance related to convertible debt and noncontrolling interests and, (2) express an unqualified opinion on the effectiveness of internal control over financial reporting), which are incorporated herein by reference, andreference. Such consolidated financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
LEGAL MATTERSWHERE YOU CAN FIND ADDITIONAL INFORMATION
Certain legal matters in connection
We file annual, quarterly and current reports, proxy statements and other information with the notesSEC. You may read and copy any document we filed at the common stock issuable upon conversionSEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at1-800-SEC-0330 for further information on the Public Reference Room. Our SEC filings are also available to the public on the website maintained by the SEC athttp://www.sec.gov.
You may also obtain free copies of the notes willdocuments that we file with the SEC by going to the Investors Information section of our website,http://www.gbrx.com. The information provided on our website is not part of this prospectus.
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring you to another document that we have filed separately with the SEC. You should read the information incorporated by reference because it is an important part of this prospectus. Any information incorporated by reference into this prospectus is considered to be passed upon for uspart of this prospectus from the date we file that document. We incorporate by Squire, Sanders & Dempsey L.L.P.reference the following information or documents that we have filed with the SEC (Commission FileNo. 001-13146) which shall not include, in each case, documents, or information deemed to have been furnished and not filed in accordance with SEC rules:
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| • | Our Annual Report ofForm 10-K for the fiscal year ended August 31, 2009 filed with the SEC on November 12, 2009. |
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| • | Our Quarterly Reports onForm 10-Q for the fiscal quarter ended November 30, 2009 filed with the SEC on January 8, 2010, and for the fiscal quarter ended February 28, 2010 filed with the SEC on April 7, 2010. |
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| • | Our Current Reports onForm 8-K filed with the SEC on December 15, 2009, January 13, 2010, March 9, 2010, and April 7, 2010 concerning a disclosure pursuant to Item 8.01 Other Items; |
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| • | The description of our common stock set forth in our registration statement onForm S-1, as declared effective on July 11, 1994 (RegistrationNo. 33-78852), which description has been updated by our registration statement onForm S-3 filed with the SEC on July 25, 2006; and |
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| • | The description of our preferred share purchase rights set forth in our registration statement onForm 8-A filed with the SEC on July 16, 2004, which description has been updated by our registration statement onForm S-3 filed with the SEC on July 25, 2006. |
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Any information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information in this prospectus or in a later filed document or other report that is incorporated or deemed to be incorporated herein by reference modifies or replaces such information.
We also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 ofForm 8-K and exhibits filed on such form that are related to such items) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until we file a post-effective amendment that indicates the termination of the offering of the securities made by this prospectus. Information in such future filings updates and supplements the information provided in this prospectus. These documents include proxy statements and periodic reports, such as Annual Reports onForm 10-K, Quarterly Reports onForm 10-Q, and, to the extent they are considered filed and except as described above, Current Reports onForm 8-K. Any statements in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later filed document modify or replace such earlier statements.
We will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits which are specifically incorporated by reference into such documents. If you would like to request documents from us, please send a request in writing or by telephone to us at the following address:
The Greenbrier Companies, Inc.
One Centerpointe Drive, Suite 200
Lake Oswego, OR 97035
(503) 684-7000
Attn: Secretary
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PART II$300,000,000
Common Stock
Preferred Stock
Debt Securities
Guarantees
Warrants
Rights
Units
PROSPECTUS
, 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
| |
| Item 14. | Other Expenses of Issuance and Distribution |
The following table sets forth allthe estimated costs and expenses, other than underwriting discounts and commissions payable by The Greenbrier Companies, Inc. (the “Company”)us in connection with the offering of the securities being registered hereunder.registered. All of the amounts shown are estimates, except for the SEC registration fee.
| | | | | |
| SEC registration fee | | $ | 10,700 | |
| Trustee fees and expenses | | | 25,000 | |
| Legal fees and expenses | | | 50,000 | |
| Accounting fees and expenses | | | 10,000 | |
| Printing costs | | | 15,000 | |
| Miscellaneous expenses | | | 5,000 | |
| | | | |
| Total | | $ | 115,700 | |
| | | | |
Item 15. Indemnification of Directors and Officers.fee:
| | | | | |
| SEC Registration Fee | | $ | 21,390 | |
| Legal Fees and Expenses | | $ | 50,000 | * |
| Accounting Fees and Expenses | | $ | 10,000 | * |
| Miscellaneous | | $ | 5,000 | * |
| Total | | $ | 86,390 | * |
| |
| Item 15. | Indemnification of Directors and Officers |
The Oregon Business Corporation Act, (the “Act”)or the OBCA, authorizes the indemnification of a director or officer made party to a proceeding because the director or officer is or was a director or officer against liability (including amounts paid in settlement) incurred in the proceeding and against expenses with respect to the proceeding (including attorney fees) if: (a) the conduct of the director or officer was in good faith, (b) the director or officer reasonably believed that his conduct was in the best interests of the corporation or at least not opposed to its best interests, (c) in the case of a criminal proceeding, the director or officer had no reasonable cause to believe his conduct was unlawful, (d) in the case of any proceeding by or in the right of the corporation, if the director or officer was not adjudged liable, and (e) in connection with any other proceeding charging improper personal benefit to the director or officer, if the director or officer was not adjudged liable on the basis that personal benefit was improperly received by the director or officer. The ActOBCA also authorizes a court to order indemnification, whether or not the above standards of conduct have been met, if the court determines that the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances. The Company’s Articles of Incorporation permit, and the Company’s Bylaws require, the Company to indemnify directors and officers to the fullest extent permissible by law.
The ActOBCA further provides that the articles of incorporation of a corporation may provide that no director shall be personally liable to a corporation or its shareholders for monetary damages for conduct as a director, except that such provision does not eliminate the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) for any unlawful distribution as defined under the Act,OBCA, or (iv) for any transaction from which the director derived an improper personal benefit. The Company’s Articles of Incorporation provide that, to the fullest extent permissible by law, no director shall be personally liable to the Company or its shareholders for monetary damages.
In addition to the indemnification and exculpation provided by the Company’s Articles of Incorporation and Bylaws, the Company has entered into an indemnification agreement with each of its directors and certain officers. The indemnification agreements provide that no director or officer shall have a monetary liability of any kind in respect of the director’s or officer’s errors or omissions in serving the Company or any of its subsidiaries, stockholdersshareholders or related enterprises, so long as such errors are not shown by clear and convincing evidence to have involved: (i) any breach of the duty of loyalty to such entities; (ii) any act or omission not in good faith or which involved intentional misconduct or a knowing violation of the law; (iii) any transaction from which the director or officer derived an improper personal benefit; (iv) any unlawful corporate distribution; or (v) profits made from the purchase and sale by the director or officer of securities of the
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Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934. Furthermore, regardless of the theory of liability asserted and to the fullest extent permitted by law, no director or officer shall have personal liability for (i) punitive, exemplary or consequential damages;
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(ii) treble or other damages computed based upon any multiple of damages actually and directly proved to have been sustained; (iii) fees of attorneys, accountants, expert witnesses or professional consultants; or (iv) civil fines or penalties of any kind or nature whatsoever.
The indemnification agreements also require the Company to indemnify any director or officer who is a party to, or is threatened to be made a party to, any proceeding, against all expenses, judgments, fines and amounts paid in settlement, actually and reasonably incurred by the director or officer in connection with such proceeding, if the director or officer: (i) acted in good faith and in a manner the director or officer reasonably believed was in or not opposed to the best interests of the Company; and (ii) with respect to any criminal proceeding, the director or officer also had no reasonable cause to believe that his or her conduct was unlawful. In any proceeding charging a director or officer with improper personal benefit to the director or officer, the Company will indemnify the director or officer if the appropriate court determines that the director or officer is fairly and reasonably entitled to indemnification.
The indemnification agreements also provide indemnity to a director or officer in proceedings brought by or in the right of the Company, as long as the director or officer acted in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the Company. If a director or officer is adjudged liable to the Company, he or she will not be indemnified unless the appropriate court determines that the director or officer is fairly and reasonably entitled to indemnification.
The Company maintains directors’ and officers’ liability insurance under which the Company’s directors and officers are insured against claims for errors, neglect, breach of duty and other matters.
The Subsidiary Guarantors include a Delaware limited partnership, Delaware limited liability companies, a Washington corporation, Oregon corporations and Oregon limited liability companies. Delaware limited partnership and limited liability company law provide that, subject to any standards or restrictions set forth in a partnership agreement or limited liability company agreement, as the case may be, an entity may indemnify and hold harmless any partner, member, manager or other person from and against any and all claims and demands whatsoever. Oregon limited liability company law provides that the articles of organization or operating agreement may provide for indemnification of any person for any acts or omissions as a member, manager, employee or agent and may eliminate or limit liability of a member, manager, employee or agent for damages from such acts or omissions; provided, that indemnification and elimination or limitation of liability is not permitted for any breach of the duty of loyalty, acts or omissions not in good faith which involve intentional misconduct or knowing violation of the law, or any unlawful distribution or any transaction from which the member or manager derives an improper personal benefit. A description of the authorization for indemnity for directors and officers of an Oregon corporation under the OBCA is provided above.
The Washington Business Corporation Act, or the WBCA, in general, empowers Washington corporations to indemnify a person made a party to a threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, other than an action by or in the right of the corporation, by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another enterprise, against expenses, including attorney’s fees, judgments, amounts paid in settlements, penalties and fines actually and reasonably incurred in connection therewith if the person acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation or its shareholders and, with respect to a criminal action or proceeding, if the person had no reasonable cause to believe his or her conduct was unlawful. Washington corporations may not indemnify a person in connection with such proceedings if the person was adjudged to have received an improper personal benefit. The WBCA also empowers Washington corporations to provide similar indemnity to such a person in connection with actions or suits by or in the right of the corporation if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the interests of the corporation or its shareholders, unless the person was adjudged liable to the corporation. If authorized by the articles of incorporation of a Washington corporation or by its shareholders, a Washington corporation may indemnify and advance expenses to the persons described above without regard to the limitations described above, provided that such indemnity will not cover acts or omissions of the person finally adjudged to be intentional misconduct or a knowing violation of law, conduct finally adjudged to involve a violation of WBCA
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Section 310 (related to certain unlawful distributions), and any transaction with respect to which it was finally adjudged that the person received a benefit to which such person was not legally entitled.
The WBCA also permits a Washington corporation to purchase and maintain on behalf of such person insurance against liabilities incurred in such capacities. The WBCA further permits Washington corporations to eliminate or limit the personal liability of directors to the corporation or its shareholders for monetary damages for conduct as a director. However, the WBCA does not eliminate or limit the liability of a director for any of the following: (i) acts or omissions that involve intentional misconduct by a director or a knowing violation of law by a director; (ii) conduct violating WBCA Section 310; or (iii) any transaction from which the director will personally receive a benefit in money, property or services to which the director is not legally entitled.
Each of the Amended and Restated Limited Liability Company Agreement of Greenbrier-Concarril, LLC (a Delaware limited liability company) and the Limited Liability Company Agreements of each of Autostack LLC, Greenbrier Leasing Company LLC, Greenbrier Railcar LLC, Gunderson LLC, Gunderson Marine LLC, Gunderson Rail Services LLC and Brandon Railroad LLC (each an Oregon limited liability company) provides that each directorthe member and officermanager shall be indemnified and held harmless from and against any and all losses, claims, damages, costs liabilities and expenses other than those which are(including attorneys’ fees and disbursements), losses, liabilities, damages or claims incurred by reason of any act or omission performed or omitted by them in good faith and in a manner the resultindemnified persons in their business judgment reasonably believed to be in or not opposed to the best interests of negligence, fraud, bad faith or misconduct of, or a knowing violation of law by, such director or officer.the company. The Operating Agreement of Gunderson Specialty Products, LLC (a Delaware limited liability company) provides that no director of officerthe member shall be liable forindemnified and held harmless from and against any loss, liability, damagecosts and expenses (including attorneys’ fees and disbursements), losses, liabilities, damages or claimclaims incurred by reason of any act or omission of such directorperformed or officeromitted by the member in good faith on behalf of and in a manner the indemnified persons in their business judgment reasonably believed to be in or not opposed to the best interestinterests of the company. The organizational documents of Greenbrier Leasing, L.P. (a Delaware limited partnership) are silent as to the indemnification of directors and officers. The organizational documents of each of Meridian Rail Holdings Corp., Meridian Rail Acquisition Corp. and Meridian Rail Mexico City Corp. (each an Oregon corporation) provide that the Board of Directors may provide that the corporation shall indemnity the directors and officers to the fullest extent permitted by law. The organizational documents of all other Subsidiary Guarantors provide that directors and officer shall be indemnified to the full extent permitted by law.
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| |
| Item 16. | Exhibits and Financial Statement Schedules.Schedules |
(a) Exhibit Index —
| | | | | |
Exhibit
| | |
No. | | Exhibit Description |
| |
| | 1 | .1* | | Form of Underwriting Agreement |
| | 1 | .2* | | Form of Placement Agent Agreement |
| | 3 | .1 | | Registrant’s Articles of Incorporation are incorporated herein by reference by Exhibit 3.1 to the Registrant’sForm 10-Q filed April 5, 2006. |
| | 3 | .2 | | Articles of Merger amending the Registrant’s Articles of Incorporation are incorporated herein by reference to Exhibit 3.2 to the Registrant’sForm 10-Q filed April 5, 2006. |
| | 3 | .3 | | Registrant’s Bylaws, as amended January 11, 2006, are incorporated herein by reference to Exhibit 3.3 to the Registrant’sForm 10-Q filed April 5, 2006. |
| | 3 | .4 | | Amendment to the Registrant’s Bylaws dated October 31, 2006, is incorporated herein by reference to Exhibit 3.1 to the Registrant’sForm 8-K filed November 6, 2006. |
| | 3 | .5 | | Amendment to the Registrant’s Bylaws dated November 6, 2007, is incorporated herein by reference to Exhibit 3.1 to the Registrant’sForm 8-K filed November 8, 2007. |
| | 3 | .6 | | Amendment to the Registrant’s Bylaws dated April 8, 2008, is incorporated herein by reference to Exhibit 3.1 to the Registrant’sForm 8-K filed April 11, 2008. |
| | 3 | .7 | | Amendment to the Registrant’s Bylaws dated April 7, 2009, is incorporated herein by reference to Exhibit 3.1 to the Registrant’sForm 8-K filed April 13, 2009. |
| | 3 | .8 | | Amendment to the Registrant’s Bylaws dated June 8, 2009, is incorporated herein by reference to Exhibit 3.1 to the Registrant’sForm 8-K filed June 10, 2009. |
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| | | | | |
Exhibit
| | |
No. | | Exhibit Description |
| |
| | 3 | .9 | | Amendment to the Registrant’s Bylaws dated June 10, 2009, is incorporated herein by reference to Exhibit 3.1 to the Registrant’sForm 8-K filed June 12, 2009. |
| | 4 | .1 | | Specimen Common Stock Certificate of Registrant |
| | 4 | .2 | | Rights Agreement, dated as of July 13, 2004, as amended, by and between the Registrant and Computershare Trust Co., N.A. (formerly Equiserve Trust Company, N.A.), is incorporated herein by reference to Exhibit 4.1 to the Registrant’sForm 8-A filed September 16, 2004. |
| | 4 | .3 | | Form of Registrant’s Right Certificate (included in Exhibit 4.2) |
| | 4 | .4 | | Amendment No. 1, dated November 9, 2004, to the Rights Agreement, dated as of July 13, 2004, is incorporated herein by reference to Exhibit 4.2 to the Registrant’sForm 8-K filed November 15, 2004. |
| | 4 | .5 | | Amendment No. 2, dated February 5, 2005, to the Rights Agreement, dated as of July 13, 2004, is incorporated herein by reference to Exhibit 4.3 to the Registrant’sForm 8-K filed February 9, 2005. |
| | 4 | .6 | | Amendment No. 3, dated June 10, 2009, to the Rights Agreement, dated as of July 13, 2004, is incorporated herein by reference to Exhibit 4.1 to the Registrant’sForm 8-K filed June 12, 2009. |
| | 4 | .7 | | Warrant Agreement, dated June 10, 2009, among the Registrant, WLR Recovery Fund IV, L.P., WLR IV Parallel ESC, L.P. and each other holder from time to time party thereto, is incorporated herein by reference to Exhibit 4.2 to the Registrant’sForm 8-K filed June 12, 2009. |
| | 4 | .8 | | Credit Agreement dated June 10, 2009, among the Registrant, WLR Recovery Fund IV, L.P., WLR IV Parallel ESC, L.P., and the other holders from time to time party hereto, and WL Ross & Co. LLC, as Administrative Agent is incorporated herein by reference to Exhibit 10.1 to the Registrant’sForm 8-K filed June 12, 2009. |
| | 4 | .9 | | Investor Rights and Restrictions Agreement, dated June 10, 2009, among the Registrant, WLR Recovery Fund IV, L.P., WLR IV Parallel ESC, L.P., WL Ross & Co. LLC and the other holders from time to time party thereto, is incorporated herein by reference to Exhibit 4.3 to the Registrant’sForm 8-K filed June 12, 2009. |
| | 4 | .10* | | Certificate of Designation of Preferred Stock |
| | 4 | .11* | | Form of Specimen Preferred Stock Certificate |
| | 4 | .12* | | Form of Warrant Agreement (including form of Warrant Certificate) |
| | 4 | .13* | | Form of Rights Agreement (including form of Rights Certificate) |
| | 4 | .14* | | Form of Unit Agreement (including form of Unit Certificate) |
| | 4 | .15 | | Senior Debt Indenture |
| | 4 | .16 | | Subordinated Debt Indenture |
| | 4 | .17* | | Form of Senior Note |
| | 4 | .18* | | Form of Guarantee |
| | 4 | .19* | | Form of Subordinated Note |
| | 5 | .1 | | Opinion of Tonkon Torp LLP |
| | 12 | .1 | | Computation of Ratio of Earnings to Fixed Charges for the years ended August 31, 2005, 2006, 2007, 2008 and 2009 and for the six months ended February 28, 2009 and 2010. |
| | 23 | .1 | | Consent of Deloitte & Touche, LLP Independent Registered Public Accounting Firm to the Registrant |
| | 23 | .3 | | Consent of Tonkon Torp LLP (included in Exhibit 5.1) |
| | 24 | | | Power of Attorney (included on signature pages) |
| | 25 | .1* | | Statement of Eligibility of Trustee onForm T-1 under the Senior Debt Indenture |
| | 25 | .2* | | Statement of Eligibility of Trustee onForm T-1 under the Subordinated Debt Indenture |
| | | | |
Exhibit* | | |
Number | | DescriptionTo be filed by amendment or by a report field under the Securities Exchange Act of Document |
| | |
| 1 | | | Purchase Agreement among The Greenbrier Companies, Inc., Autostack Company LLC, Greenbrier-Concarril, LLC, Greenbrier Leasing Company LLC, Greenbrier Leasing Limited Partner, LLC, Greenbrier Management Services, LLC, Greenbrier Leasing, L.P., Greenbrier Railcar LLC, Gunderson LLC, Gunderson Marine LLC, Gunderson Rail Services LLC,1934, as amended, and Gunderson Specialty Products, LLC, and Bear, Stearns & Co. Inc. and Banc of America Securities LLC, as initial purchasers, dated May 17, 2006 (incorporatedincorporated herein by reference, to Exhibit 10.1 of Registrant’s Form 8-K filed May 18, 2006). |
| 4.1 | | | Indenture between The Greenbrier Companies, Inc., each of the guarantors party thereto, and U.S. Bank National Association as Trustee dated as of May 22, 2006 (incorporated herein by reference to Exhibit 4.1 of Registrant’s Form 8-K filed May 25, 2006). |
| 4.2 | | | Registration Rights Agreement among the Greenbrier Companies, Inc., each of the guarantors party thereto, and Bear, Stearns & Co. Inc. and Banc of America Securities LLC, dated May 22, 2006 (incorporated herein by reference to Exhibit 10.1 of Registrant’s Form 8-K filed May 25, 2006). |
| 5 | | | Opinion of Squire, Sanders & Dempsey L.L.P. |
| 12 | | | Computation of Ratio of Earnings to Fixed Charges for the years ended August 31, 2001, 2002, 2003, 2004 and 2005 and for the nine months ended May 31, 2004 and 2005. |
| 23.1 | | | Consent of Independent Registered Public Accounting Firm, Deloitte & Touche LLP. |
| 23.2 | | | Consent of Squire, Sanders & Dempsey L.L.P. (included in Exhibit 5). |
| 24 | | | Powers of Attorney. |
| 25 | | | Statement of Eligibility and Qualification on Form T-1 of U.S. Bank National Association.if applicable. |
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| |
| Item 17. | Undertakings.Undertakings |
(a) TheEach of the undersigned registrants hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant hereby undertakes:pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| |
| (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
| |
| (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
|
| (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
|
| (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
| |
| Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of |
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in
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| |
| 1934, as amended, that are incorporated by referencethe registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. (5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
|
| (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
| (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
|
| (4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| |
| (i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
|
| (ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(b) The undersigned registrant hereby undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of an undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to an offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about an undersigned registrant or its securities provided by or on behalf of an undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by an undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to sectionSection 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee
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benefit plan’s annual report pursuant to sectionSection 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof:
(7) That, for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(8) That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
(9) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, described in Item 15 or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Exchange Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on July 24, 2006.April 6, 2010.
| |
| THE GREENBRIER COMPANIES, INC. |
THE GREENBRIER COMPANIES, INC.
| |
| |
| William A. Furman |
| Chief Executive Officer and President |
William A. Furman
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statementregistration statement has been signed by the following persons on behalf of the registrant and in the capacities indicatedand on July 24, 2006:the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | | |
Signature/s/ William A. Furman
William A. Furman | | TitlePresident and Chief Executive
Officer, Director
(Principal Executive Officer) | | April 6, 2010 |
| | | |
| |
* /s//s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Executive Vice President And Chief Financial Officer
(Principal Financial Officer) | | April 6, 2010 |
| | | | |
/s/ James W. Cruckshank
James W. Cruckshank | | Senior Vice President And Chief Accounting Officer
(Principal Accounting Officer) | | April 6, 2010 |
| | | | |
/s/ Benjamin R. Whiteley
Benjamin R. Whiteley | | Chairman of the Board of Directors | | April 6, 2010 |
| |
* /s/William A. Furman
William A. Furman | | Chief Executive Officer, President and | |
/s/ Graeme A. Jack
Graeme A. Jack | | Director
(Principal Executive Officer) | | April 6, 2010 |
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| | | | | | |
Signature | | Title | | Date |
| |
/s/Joseph K. Wilsted
Joseph K. Wilsted | | Senior Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer) |
| |
* /s/Victor G. Atiyeh
Victor G. Atiyeh | | Director |
|
* /s//s/ Duane C. McDougall
Duane C. McDougall | | Director | | April 6, 2010 |
| | | | |
* /s//s/ Victoria McManus
Victoria McManus | | Director | | April 6, 2010 |
| | | | |
/s/ A. Daniel O’Neal Jr.
A. Daniel O’Neal Jr. | | Director | | April 6, 2010 |
| | | | |
* /s//s/ Wilbur L. Ross, Jr.
Wilbur L. Ross, Jr. | | Director | | April 6, 2010 |
| | | | |
/s/ Charles J. Swindells
Charles J. Swindells | | Director | | April 6, 2010 |
| | | | |
/s/ Wendy L. Teramoto
Wendy L. Teramoto | | Director | | April 6, 2010 |
| | | | |
/s/ C. Bruce Ward
C. Bruce Ward | | Director | | April 6, 2010 |
| | | | |
* /s//s/ Donald A. Washburn
Donald A. Washburn | | Director |
|
* /s/Charles J. Swindells
Charles J. Swindells | | Director |
|
*By: /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | April 6, 2010 |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on July 24, 2006.April 6, 2010.
AUTOSTACK COMPANY LLC,
an Oregon limited liability company.
| |
| |
| Joseph K. Wilsted |
| Vice President Mark J. Rittenbaum |
Mark J. Rittenbaum
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statementregistration statement has been signed by the following persons on behalf of the registrant and in the capacities indicatedand on July 24, 2006:the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | | |
Signature | | Title |
| | |
|
* /s//s/ William A. Furman
William A. Furman | | Chief Executive Officer and Manager
(Principal (Principal Executive Officer) | | April 6, 2010 |
| | | | | |
/s/Joseph K. Wilsted/s/ Mark J. Rittenbaum
Joseph K. WilstedMark J. Rittenbaum | | Vice President
( And Principal Financial
and Accounting Officer) |
|
*By: /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-FactOfficer | | April 6, 2010 |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on July 24, 2006.April 6, 2010.
| |
| GREENBRIER-CONCARRIL, LLC |
GREENBRIER-CONCARRIL, LLC,
a Delaware limited liability company
| |
| |
| Joseph K. Wilsted |
| Vice President Mark J. Rittenbaum |
Mark J. Rittenbaum
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statementregistration statement has been signed by the following persons on behalf of the registrant and in the capacities indicatedand on July 24, 2006:the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | | |
Signature | | Title |
| | |
|
* /s//s/ William A. Furman
William A. Furman | | Principal Executive Officer Chairman of the Board and DirectorManager | | April 6, 2010 |
| | | | | |
/s/Joseph K. Wilsted/s/ Mark J. Rittenbaum
Joseph K. WilstedMark J. Rittenbaum | | Vice President
(Principal Financial and Accounting Officer) |
|
*By: /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | April 6, 2010 |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on July 24, 2006.April 6, 2010.
GREENBRIER LEASING COMPANY LLC,
an Oregon limited liability company
| |
| GREENBRIER LEASING COMPANY LLC |
| |
| |
| Joseph K. Wilsted |
| Vice President Mark J. Rittenbaum |
Mark J. Rittenbaum
Executive Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statementregistration statement has been signed by the following persons on behalf of the registrant and in the capacities indicatedand on July 24, 2006:the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | | |
Signature | | Title |
| | |
|
* /s//s/ William A. Furman
William A. Furman | | Chief Executive Officer, Principal
Executive Officer and Manager
(Principal Executive Officer) | | April 6, 2010 |
| |
/s/Joseph K. Wilsted
Joseph K. Wilsted | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Executive Vice President
(Principal Financial and Accounting Officer) |
|
*By /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | April 6, 2010 |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on July 24, 2006.April 6, 2010.
GREENBRIER LEASING LIMITED PARTNER, LLC,
a Delaware limited liability company
| | |
| | BY:By: | Greenbrier Management Services,Leasing Company LLC
Sole Member |
| |
| | General PartnerBy: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Executive Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Principal Executive Officer | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Principal Financial and Accounting Officer | | April 6, 2010 |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
GREENBRIER MANAGEMENT SERVICES, LLC,
a Delaware limited liability company
| | |
| | By: | Greenbrier Leasing Company LLC |
Sole Member
| |
| |
| Joseph K. Wilsted |
| Vice President Mark J. Rittenbaum |
Mark J. Rittenbaum
Executive Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statementregistration statement has been signed by the following persons on behalf of the registrant and in the capacities indicatedand on July 24, 2006:the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | | |
Signature | | Title |
| | |
|
* /s//s/ William A. Furman
William A. Furman | | Principal Executive Officer | | April 6, 2010 |
| | | | |
/s/Joseph K. Wilsted/s/ Mark J. Rittenbaum
Joseph K. WilstedMark J. Rittenbaum | �� | Principal Financial and Accounting Officer |
|
*By /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | April 6, 2010 |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on July 24, 2006.April 6, 2010.
GREENBRIER LEASING, L.P.,
a Delaware limited partnership
| | |
| | GREENBRIER LEASING LIMITED |
| By: | PARTNER,Greenbrier Management Services, LLC |
General Partner
| | |
| | By: | Greenbrier Leasing Company LLC |
Sole Member
| |
| |
| Joseph K. Wilsted |
| Vice President Mark J. Rittenbaum |
Mark J. Rittenbaum
Executive Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statementregistration statement has been signed by the following persons on behalf of the registrant and in the capacities indicatedand on July 24, 2006:the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | | |
Signature | | Title |
| | |
|
* /s//s/ William A. Furman
William A. Furman | | Principal Executive Officer | | April 6, 2010 |
| | | | |
/s/Joseph K. Wilsted/s/ Mark J. Rittenbaum
Joseph K. WilstedMark J. Rittenbaum | | Principal Financial and Accounting Officer |
|
*By /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | April 6, 2010 |
II-14
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on July 24, 2006.April 6, 2010.
GREENBRIER RAILCAR LLC,
an Oregon limited liability company.
| | |
| | GREENBRIER MANAGEMENTBy: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Manager and Principal Executive Officer | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Vice President
(Principal Financial and Accounting Officer) | | April 6, 2010 |
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
GUNDERSON LLC,
an Oregon limited liability company
| | |
| By: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Executive Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Manager and Principal Executive Officer | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Executive Vice President
(Principal Financial and Accounting Officer) | | April 6, 2010 |
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
GUNDERSON MARINE LLC,
an Oregon limited liability company
| | |
| By: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Manager and Principal Executive Officer | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Vice President and Principal Financial and Accounting Officer | | April 6, 2010 |
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
GUNDERSON RAIL SERVICES LLC,
an Oregon limited liability company
| | |
| By: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Manager and Principal Executive Officer | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Vice President and Principal Financial and Accounting Officer | | April 6, 2010 |
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
GREENBRIER RAILCAR LEASING, INC.,
a Washington corporation
| | |
| By: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Executive Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Sole Director | | April 6, 2010 |
| | | | |
/s/ James T. Sharp
James T. Sharp | | President
(Principal Executive Officer) | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Vice President and Principal Financial and Accounting Officer | | April 6, 2010 |
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
GUNDERSON SPECIALTY PRODUCTS, LLC,
a Delaware limited liability company
Sole Member
| | |
| By: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Executive Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Principal Executive Officer | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Principal Financial and Accounting Officer | | April 6, 2010 |
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
BRANDON RAILROAD LLC,
an Oregon limited liability company
| | |
| By: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Manager | | April 6, 2010 |
| | | | |
/s/ Timothy A. Stuckey
Timothy A. Stuckey | | President
(Principal Executive Officer) | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Vice President
(Principal Financial and Accounting Officer) | | April 6, 2010 |
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
MERIDIAN RAIL HOLDINGS CORP.,
an Oregon corporation
| | |
| By: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Sole Director | | April 6, 2010 |
| | | | |
/s/ Timothy A. Stuckey
Timothy A. Stuckey | | President
(Principal Executive Officer) | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Vice President
(Principal Financial and Accounting Officer) | | April 6, 2010 |
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
MERIDIAN RAIL ACQUISITION CORP.,
an Oregon corporation
| | |
| By: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Sole Director | | April 6, 2010 |
| | | | |
/s/ Timothy A. Stuckey
Timothy A. Stuckey | | President
(Principal Executive Officer) | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Vice President
(Principal Financial and Accounting Officer) | | April 6, 2010 |
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
MERIDIAN RAIL MEXICO CITY CORP.,
an Oregon corporation
| | |
| By: | /s/ Mark J. Rittenbaum |
Mark J. Rittenbaum
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Sole Director | | April 6, 2010 |
| | | | |
/s/ Timothy A. Stuckey
Timothy A. Stuckey | | President
(Principal Executive Officer) | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Vice President
(Principal Financial and Accounting Officer) | | April 6, 2010 |
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
GREENBRIER RAIL HOLDINGS I, LLC,
an Oregon limited liability company
| | |
| By: | The Greenbrier Companies, Inc. |
Sole Member
| | |
| By: | /s/ William A. Furman |
William A. Furman
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | |
/s/ William A. Furman
William A. Furman | | Manager and Principal Executive Officer | | April 6, 2010 |
| | | | |
/s/ Mark J. Rittenbaum
Mark J. Rittenbaum | | Principal Financial and Accounting Officer | | April 6, 2010 |
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on April 6, 2010.
GREENBRIER RAIL HOLDINGS II, LLC,
an Oregon limited liability company
| | |
| | By: | Greenbrier Leasing Company LLC |
Sole Member
| |
| |
| Joseph K. Wilsted |
| Vice President Mark J. Rittenbaum |
Mark J. Rittenbaum
Executive Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statementregistration statement has been signed by the following persons on behalf of the registrant and in the capacities indicatedand on July 24, 2006:the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | | |
Signature/s/ William A. Furman
William A. Furman | | TitleManager and Principal Executive Officer | | April 6, 2010 |
| | | |
| |
|
*/s/ William A. FurmanMark J. Rittenbaum
William A. Furman | | Principal Executive Officer and Manager |
|
/s/ Joseph K. Wilsted
Joseph K. WilstedMark J. Rittenbaum | | Principal Financial and Accounting Officer |
|
*By /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | April 6, 2010 |
II-26
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing onForm S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the city of City of Lake Oswego, State of Oregon, on July 24, 2006.April 6, 2010.
GREENBRIER RAIL HOLDINGS III, LLC,
an Oregon limited liability company
| | |
| | GREENBRIER RAILCARBy: | Gunderson Rail Services LLC |
Sole Member
| |
| |
| Joseph K. Wilsted |
| Vice President Mark J. Rittenbaum |
Mark J. Rittenbaum
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Furman and Mark J. Rittenbaum, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statementregistration statement has been signed by the following persons on behalf of the registrant and in the capacities indicatedand on July 24, 2006:the dates indicated.
| | | | | | |
Signature | | Title | | Date |
|
| | | | | |
Signature | | Title |
| | |
|
|
*/s/ William A. Furman
William A. Furman | | Manager
( and Principal Executive Officer) |
|
/s/ Joseph K. Wilsted
Joseph K. WilstedOfficer | | Vice President
(Principal Financial and Accounting Officer)April 6, 2010 |
|
*By /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | |
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lake Oswego, State of Oregon, on July 24, 2006.
| |
| |
| Joseph K. Wilsted |
| Vice President |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on July 24, 2006:
| | | | | |
Signature | | Title |
| | |
|
|
* /s/ William A. Furman
William A. Furman | | Manager (Principal Executive Officer) |
|
/s/ Joseph K. Wilsted
Joseph K. Wilsted | | Vice President
(Principal Financial and Accounting Officer) |
|
*By /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | |
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lake Oswego, State of Oregon, on July 24, 2006.
| |
| |
| Joseph K. Wilsted |
| Vice President |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on July 24, 2006:
| | | | |
Signature | | Title |
| | |
|
|
* /s/ William A. Furman
William A. Furman | | Manager
(Principal Executive Officer) |
|
/s/ Joseph K. Wilsted
Joseph K. Wilsted | | Vice President
(Principal Financial and Accounting Officer) |
|
*By /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | |
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lake Oswego, State of Oregon, on July 24, 2006.
| |
| GUNDERSON RAIL SERVICES LLC |
| |
| |
| Joseph K. Wilsted |
| Vice President |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on July 24, 2006:
| | | | |
Signature | | Title |
| | |
|
|
*/s/ William A. FurmanMark J. Rittenbaum
William A. Furman | | Manager
(Principal Executive Officer) |
|
/s/ Joseph K. Wilsted
Joseph K. Wilsted | | Vice President
(Principal Financial and Accounting Officer) |
|
*By /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | |
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lake Oswego, State of Oregon, on July 24, 2006.
| |
| GUNDERSON SPECIALTY PRODUCTS, LLC |
|
| BY: Gunderson LLC, Sole Member and Manager |
| |
| |
| Joseph K. Wilsted |
| Vice President |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on July 24, 2006:
| | | | |
Signature | | Title |
| | |
|
|
*/s/ William A. Furman
William A. Furman | | Manager (Principal Executive Officer) |
|
/s/ Joseph K. Wilsted
Joseph K. WilstedMark J. Rittenbaum | | Principal Financial and Accounting Officer |
|
*By /s/Joseph K. Wilsted
Joseph K. Wilsted, Attorney-in-Fact | | April 6, 2010 |
II-27
II-17
EXHIBIT INDEX
| | | | |
Exhibit | | |
Number | | Description of Document |
| | |
| 1 | | | Purchase Agreement among The Greenbrier Companies, Inc., Autostack Company LLC, Greenbrier-Concarril, LLC, Greenbrier Leasing Company LLC, Greenbrier Leasing Limited Partner, LLC, Greenbrier Management Services, LLC, Greenbrier Leasing, L.P., Greenbrier Railcar LLC, Gunderson LLC, Gunderson Marine LLC, Gunderson Rail Services LLC, and Gunderson Specialty Products, LLC, and Bear, Stearns & Co. Inc. and Banc of America Securities LLC, as initial purchasers, dated May 17, 2006 (incorporated herein by reference to Exhibit 10.1 of Registrant’s Form 8-K filed May 18, 2006). |
| 4.1 | | | Indenture between The Greenbrier Companies, Inc., each of the guarantors party thereto, and U.S. Bank National Association as Trustee dated as of May 22, 2006 (incorporated herein by reference to Exhibit 4.1 of Registrant’s Form 8-K filed May 25, 2006). |
| 4.2 | | | Registration Rights Agreement among the Greenbrier Companies, Inc., each of the guarantors party thereto, and Bear, Stearns & Co. Inc. and Banc of America Securities LLC, dated May 22, 2006 (incorporated herein by reference to Exhibit 10.1 of Registrant’s Form 8-K filed May 25, 2006). |
| 5 | | | Opinion of Squire, Sanders & Dempsey L.L.P. |
| 12 | | | Computation of Ratio of Earnings to Fixed Charges for the years ended August 31, 2001, 2002, 2003, 2004 and 2005 and for the nine months ended May 31, 2004 and 2005. |
| 23.1 | | | Consent of Independent Registered Public Accounting Firm, Deloitte & Touche LLP. |
| 23.2 | | | Consent of Squire, Sanders & Dempsey L.L.P. (included in Exhibit 5). |
| 24 | | | Powers of Attorney. |
| 25 | | | Statement of Eligibility and Qualification on Form T-1 of U.S. Bank National Association. |
II-18
