As filed with the Securities and Exchange Commission on December 10, 2004
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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THE GREENBRIER COMPANIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 93-0816972
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
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ONE CENTERPOINTE DRIVE, SUITE 200
LAKE OSWEGO, OREGON 97035
TELEPHONE: (503) 684-7000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
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LARRY G. BRADY
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
THE GREENBRIER COMPANIES, INC.
ONE CENTERPOINTE DRIVE, SUITE 200
LAKE OSWEGO, OREGON 97035
TELEPHONE: (503) 684-7000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
DAVID A. ZAGORE, ESQ. NORRISS M. WEBB, ESQ.
SQUIRE, SANDERS & DEMPSEY L.L.P. THE GREENBRIER COMPANIES, INC.
4900 KEY TOWER ONE CENTERPOINTE DRIVE
127 PUBLIC SQUARE SUITE 200
CLEVELAND, OHIO 44114 LAKE OSWEGO, OREGON 97035
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT (1) PRICE (1) REGISTRATION FEE
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Common Stock, $0.001 par value per share (2). 6,000,000 $31.94 $191,640,000 $24,281
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(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) promulgated under the Securities Act of 1933.
(2) Each share of common stock includes a share purchase right to purchase
one-hundredth of a share of Series A Participating Preferred Stock at a price of
$100 per right, subject to adjustment.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement that is filed with
the Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 10, 2004
PROSPECTUS
THE GREENBRIER COMPANIES, INC.
[GBX LOGO]
6,000,000 Shares
Common Stock
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We may offer, from time to time, up to 6,000,000 shares of our common
stock. Our common stock is traded on the New York Stock Exchange under the
symbol "GBX."
Before you decide to invest in any common stock offered, you should
carefully read this prospectus, the documents that are incorporated by reference
in this prospectus, and the prospectus supplement that will be provided
containing specific information relating to an offering. This prospectus may not
be used to consummate sales of any offered common stock unless it is accompanied
by a prospectus supplement describing the terms of that offering.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is , 2004.
TABLE OF CONTENTS
About This Prospectus.......................................................i
Where You Can Obtain Additional Information................................ii
Incorporation of Documents by Reference....................................ii
Forward-Looking Statements................................................iii
About Greenbrier............................................................1
Use of Proceeds.............................................................1
Description of Capital Stock................................................1
Plan of Distribution........................................................4
Legal Matters...............................................................5
Experts.....................................................................5
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under this shelf registration process, we may, from time to time, offer and sell
our common stock in one or more offerings up to a maximum aggregate of 6,000,000
shares.
This prospectus provides you with a general description of the common
stock we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. Any prospectus supplement may also add, update or change information
contained in this prospectus. Any statement that we make in this prospectus will
be modified or superseded by an inconsistent statement made by us in a
prospectus supplement. The registration statement we filed with the SEC includes
exhibits that provide more detail regarding the matters discussed in this
prospectus. You should read this prospectus and the related exhibits filed with
the SEC and any prospectus supplement, together with additional information
described under the heading "Where You Can Obtain Additional Information."
NO PERSON HAS BEEN AUTHORIZED TO PROVIDE YOU WITH INFORMATION OR MAKE
ANY REPRESENTATION ABOUT US THAT IS DIFFERENT FROM OR IN ADDITION TO, THAT
CONTAINED IN THIS PROSPECTUS OR IN ANY OF THE MATERIALS THAT WE HAVE
INCORPORATED BY REFERENCE INTO THIS DOCUMENT. IF ANYONE PROVIDES YOU WITH
DIFFERENT OR INCONSISTENT INFORMATION, YOU SHOULD NOT RELY ON IT. NO OFFER TO
SELL THESE SECURITIES IS BEING MADE IN ANY JURISDICTION WHERE THE OFFER OR SALE
IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE DELIVERY OF THIS PROSPECTUS,
ANY ACCOMPANYING PROSPECTUS SUPPLEMENT OR ANY SALE OF COMMON STOCK IMPLIES THAT
THERE HAS BEEN NO CHANGE IN OUR BUSINESS, FINANCIAL CONDITIONS, RESULTS OF
OPERATIONS OR PROSPECTS AT ANY TIME SUBSEQUENT TO THE DATE OF THIS PROSPECTUS OR
THAT THE INFORMATION IN THIS PROSPECTUS IS CORRECT AS OF ANY TIME SUBSEQUENT TO
ITS DATE.
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WHERE YOU CAN OBTAIN ADDITIONAL INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the Securities and Exchange Commission in accordance with
the Securities Exchange Act of 1934. You can inspect and copy, at prescribed
rates, these reports, proxy statements and other information at the public
reference facilities of the SEC, in Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on its public reference room. The SEC also maintains a website that
contains reports, proxy statements and other information regarding registrants
that file electronically with the SEC at http://www.sec.gov. You can also
inspect reports and other information that we file at the office of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
We have filed a registration statement on Form S-3, of which this
prospectus is a part, covering the equity securities offered by this prospectus.
As allowed by SEC rules and regulations, this prospectus does not contain all of
the information set forth in the registration statement and the related
exhibits. We refer you to the registration statement and the related exhibits
for further information and this prospectus is qualified in its entirety by such
other information.
INCORPORATION OF DOCUMENTS BY REFERENCE
We are incorporating by reference in this prospectus the documents we
file with the SEC. This means that we are disclosing important information to
you by referring you to those documents. The information incorporated by
reference is an important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede the information
contained in this prospectus. We are incorporating by reference the following
documents.
- Our Annual Report on Form 10-K for the year ended August 31, 2004,
filed with the SEC on November 12, 2004;
- Our Current Report on Form 8-K filed with the SEC on October 8, 2004;
- Our Current Report on Form 8-K filed with the SEC on November 15,
2004;
- Our Current Report on Form 8-K filed with the SEC on December 7, 2004;
- The description of our common stock, par value $0.001 per share,
included in our registration statement on Form 8-A filed with the SEC
on June 13, 1994;
- The description of our share purchase rights, par value $0.001 per
share, included in our registration statement on Form 8-A filed with
the SEC on September 16, 2004; and
- 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 and any applicable prospectus supplement.
Any statement contained in a document incorporated by reference in this
prospectus or the applicable prospectus supplement shall be deemed to be
modified or superseded for the purposes of this prospectus or the applicable
prospectus supplement to the extent that a statement contained in this
prospectus, in the applicable prospectus supplement or in any other subsequently
filed document that is also incorporated by reference in this prospectus
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus or the applicable prospectus supplement.
Information that we file with the SEC after the date of this prospectus or the
applicable prospectus supplement will automatically modify and supersede the
information included or incorporated by reference in this prospectus or the
applicable prospectus supplement 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 or the applicable prospectus supplement, other than exhibits to such
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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
FORWARD-LOOKING STATEMENTS
This prospectus, including information incorporated by reference in
this prospectus, contains statements that we believe are forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934, including statements as to
our expectations, beliefs and strategies regarding the future. These
forward-looking statements are subject to risks and uncertainties that are
difficult to predict, may be beyond our control and could cause actual results
to differ materially from those currently anticipated. Important factors that
could cause actual results to differ materially from those suggested by these
forward-looking statements and that could adversely affect our future financial
performance and stockholder value include the following:
- a delay or failure of acquired businesses, products or
services to compete successfully;
- actual future costs and the availability of materials and a
trained workforce;
- steel price increases, scrap surcharges and other commodity
prices fluctuations and their impact on railcar demand and
margins;
- continued industry demand at current levels for railcar
products, given substantial price increases;
- ability to obtain suitable contracts for railcars held for
sale;
- ability to grow our railcar services and lease fleet and
management services businesses;
- availability of financing sources and borrowing base for
working capital, other business development activities,
capital spending and railcar warehousing activities;
- ability to renew or obtain sufficient lines of credit and
performance guarantees on acceptable terms;
- competitive factors, including introduction of competitive
products, price pressures and competitiveness of our
manufacturing facilities and products;
- industry overcapacity and our manufacturing capacity
utilization;
- ability to adjust to cyclical nature of railcar industry;
- domestic and global business conditions and growth or
reduction in the surface transportation industry;
- domestic and global political, regulatory or economic
conditions including such matters as terrorism, war,
embargoes or quotas;
- the effects of car hire deprescription on leasing revenue;
- ability to obtain purchase orders that contain provisions for
the escalation of prices due to increased costs of materials
and components;
- availability of subcontractors;
- ability to utilize beneficial tax strategies;
- decreases in carrying value of assets due to impairment;
- severance or other costs or charges associated with lay-offs,
shutdowns, or reducing the size and scope of operations;
- changes in future maintenance requirements;
- effects of local statutory accounting conventions on
compliance with certain covenants in loan agreements;
- changes in product mix and the mix between the manufacturing
and leasing & services segments;
- changes in fuel and/or energy prices;
- labor disputes, energy shortages or operating difficulties
that might disrupt manufacturing operations or the flow of
cargo;
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- production difficulties and product delivery delays as a
result of, among other matters, changing technologies or
non-performance of subcontractors or suppliers;
- lower than anticipated residual values for leased equipment;
- discovery of defects in railcars resulting in increased
warranty cost or litigation;
- resolution or outcome of pending litigation;
- the ability to consummate expected sales;
- ability to obtain adequate certification and licensing of
products;
- delays in receipt of orders, risks that contracts may be
canceled during their term or not renewed and that customers
may not purchase as much equipment under the contracts as
anticipated;
- financial condition of principal customers;
- market acceptance of products;
- ability to obtain insurance at acceptable rates;
- changes in interest rates;
- availability and price of essential raw materials, specialties
or components, including steel and steel castings, to permit
manufacture of units on order;
- ability to replace maturing lease revenue and earnings with
revenue and earnings from additions to the lease fleet and
management services; and
- financial impacts from currency fluctuations in our worldwide
operations.
Any forward-looking statements should be considered in light of these
factors. We assume no obligation to update or revise any forward-looking
statements to reflect actual results, changes in assumptions or changes in other
factors affecting the forward-looking statements.
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ABOUT GREENBRIER
We are a leading supplier of transportation equipment and services to
the railroad and related transportation industries. Our principal business
activities include:
- designing, manufacturing and marketing intermodal railcars,
conventional railcars, specialty railcars and marine vessels
and repairing and refurbishing intermodal and conventional
railcars; and
- leasing and providing management services to the North
American rail transportation industry.
With operations in the United States, Canada, Mexico and Europe, the
manufacturing segment of our business produces double-stack intermodal railcars,
conventional railcars, specialty railcars and marine vessels, and performs
repair, refurbishment and maintenance activities for both intermodal and
conventional railcars. The leasing and services segment owns approximately
11,000 railcars and performs management services for approximately 122,000
railcars for railroads, shippers, carriers and other leasing and transportation
companies.
We are a Delaware corporation that was formed in 1981. Our principal
executive offices are located at One Centerpointe Drive, Suite 200, Lake Oswego,
Oregon 97035, and our telephone number is (503) 684-7000.
USE OF PROCEEDS
Except as otherwise described in the applicable prospectus supplement,
we intend to use the net proceeds from the sale of securities offered by this
prospectus and such prospectus supplement for general corporate purposes, which
may include the repayment of existing debt, the financing of working capital
needs, capital expenditures and acquisitions. Accordingly, our management will
have discretion in the application of the net proceeds. We may temporarily
invest the net proceeds in short-term, interest-bearing, investment-grade
securities.
DESCRIPTION OF CAPITAL STOCK
The following description is a general summary of the terms of our
common stock and preferred stock. The description below and in any prospectus
supplement does not include all of the terms of the common stock and preferred
stock and should be read together with our Restated Certificate of
Incorporation, Amended and Restated By-Laws, as further amended, and Rights
Agreement, copies of which have been filed with the SEC.
GENERAL
Under our Restated Certificate of Incorporation, we are authorized to
issue 75,000,000 shares, of which 50,000,000 shall be shares of common stock,
par value $0.001 per share, and 25,000,000 shall be shares of preferred stock,
par value $0.001 per share. As of October 29, 2004, 14,899,842 shares of common
stock were issued and outstanding, including 8,588,000 shares beneficially owned
by our two principal stockholders. This includes 750,000 shares held by
charitable remainder unitrusts created by each of our two principal
stockholders. These unitrusts expire on December 29, 2004, at which point the
shares held by the unitrusts will be distributed in accordance with the terms of
the respective unitrusts. In addition, as of October 29, 2004, 867,950 shares
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 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
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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 stockholders,
subject to 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, $0.001 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 stockholder
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 stockholders.
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.
ANTI-TAKEOVER PROVISIONS
Our Restated Certificate of Incorporation and Amended and Restated
By-Laws, 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:
- 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;
- A vote of at least 55% of our voting securities to amend some
provisions of the Restated Certificate of Incorporation;
- No less than 40 days' advance notice with respect to
nominations of directors or other matters to be voted on by
stockholders other than by or at the direction of the board of
directors;
- The calling of special meetings of stockholders only by the
president or a majority of the board of directors; and
- The designation of the terms of preferred stock issuable
pursuant to a stockholder rights plan, as described below.
Delaware Anti-Takeover Provision. We are subject to Section 203 of the
Delaware General Corporation Law, which prohibits a publicly held Delaware
corporation from engaging in a "business combination," except under certain
circumstances, with an "interested stockholder" for a period of three years
following the date such person became an "interested stockholder" unless:
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- before such person became an interested stockholder, the board
of directors of the corporation approved either the business
combination or the transaction that resulted in the interested
stockholder becoming an interested stockholder;
- upon the consummation of the transaction that resulted in the
interested stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock
of the corporation outstanding at the time the transaction
commenced, excluding shares held by directors who also are
officers of the corporation and shares held by employee stock
plans; or
- at or following the time such person became an interested
stockholder, the business combination is approved by the board
of directors of the corporation and authorized at a meeting of
stockholders by the affirmative vote of the holders of 66 2/3%
of the outstanding voting stock of the corporation that is not
owned by the interested stockholder.
The term "interested stockholder" generally is defined as a person who,
together with affiliates and associates, owns, or, within the three years prior
to the determination of interested stockholder status, owned, 15% or more of a
corporation's outstanding voting stock. The term "business combination" includes
mergers, asset or stock sales and other similar transactions resulting in a
financial benefit to an interested stockholder. Section 203 makes it more
difficult for an "interested stockholder" to effect various business
combinations with a corporation for a three-year period. The existence of this
provision would be expected to have an anti-takeover effect with respect to
transactions not approved in advance by our board of directors, including
discouraging attempts that might result in a premium over the market price for
the shares of common stock held by stockholders. A Delaware corporation may "opt
out" of Section 203 with an express provision in its original certificate of
incorporation or any amendment thereto. Our Restated Certificate of
Incorporation does not contain any such exclusion.
STOCKHOLDER RIGHTS PLAN
On July 13, 2004, our board of directors adopted a stockholder rights
plan pursuant to which 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, 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, $0.001 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. 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 any time until ten days after a person or group meets a triggering
threshold as described below.
The rights become exercisable ten days following the date a person or
group first acquires 12% or more of our common stock or ten business days
following the commencement of a tender offer that would result in a person or
group beneficially owning 12% or more of our outstanding common stock. In
determining whether 12% ownership has been acquired for purposes of the rights
plan, the present beneficial holdings of our two principal stockholders, which
constitute 28.8% of our common stock for each stockholder, are grandfathered.
Subject to limited exceptions, the rights also will become exercisable if either
principal stockholder increases the number of shares he currently beneficially
owns.
If a person or group acquires, obtains a right to acquire or commences
a tender offer for 12% or more of our common stock, 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 exercise
price, that number of shares of the acquirer's or surviving corporation's common
stock having a market value of two times the exercise price of the right. At any
time after a person or group acquires 12% or more of our common stock and before
the person or group acquires 50% of more of our common stock, we may exchange
all of the then-outstanding rights for common stock at an exchange ratio of one
share of common stock per right,
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subject to adjustment. In each case, the rights associated with the shares of
our common stock owned by the triggering person or group are not exercisable.
On July 26, 2004, Alan James, then-chairman of our board of directors
filed an action in the Court of Chancery of the State of Delaware against us and
all of our then-existing directors other than Mr. James. On October 29, 2004,
Mr. James was the beneficial owner of 28.8% of our shares. The action seeks
rescission of the rights agreement, alleging, among other things, that directors
breached their fiduciary duties in adopting the rights agreement and that
adopting the rights agreement breached the right-of-first-refusal provisions of
a stockholders' agreement among Mr. James, William A. Furman and us.
Subsequently, the action has been amended to remove the claims regarding the
stockholders' agreement. The lawsuit does not seek monetary damages. We believe
the lawsuit is without merit and intend to vigorously defend our position.
NUMBER OF DIRECTORS; FILLING VACANCIES
Our Amended and Restated By-Laws, as currently in effect, provide that
the number of directors shall be eight. The stockholders and the board of
directors have the authority to adopt, repeal or amend the by-laws. 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 with or without 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
of the directors then in office, even if less than a quorum, or by a sole
remaining director.
PLAN OF DISTRIBUTION
The common stock being offered by this prospectus may be sold:
- through agents,
- to or through underwriters,
- through broker-dealers (acting as agent or principal),
- directly to purchasers, through a specific bidding or auction
process or otherwise, or
- through a combination of any such methods of sale.
The distribution of the common stock may be effected from time to time
in one or more transactions. The common stock may be sold at a fixed price or
prices, which may be changed, or at market prices prevailing at the time of
sale, at prices relating to the prevailing market prices or at negotiated
prices.
Any underwriter or agent involved in the offer and sale of the common
stock will be named in the applicable prospectus supplement.
If we use underwriters for an offering of common stock, the
underwriters will acquire the common stock for their own accounts. We also may,
from time to time, authorize underwriters acting as agents to offer and sell the
common stock upon the terms and conditions as will be set forth in the
applicable prospectus supplement. In connection with the sale of the common
stock, underwriters may be deemed to have received compensation from us in the
form of underwriting discounts or commissions and also may receive commissions
from purchasers of the common stock. We and any underwriters may sell the common
stock to or through dealers, who may receive compensation in the form of
discounts, concessions and/or commissions from the purchasers of the common
stock.
Any underwriting compensation paid by us to underwriters or agents in
connection with any offering of the common stock and any discounts, concessions
or commissions to participating dealers will be set forth in the applicable
prospectus supplement. Underwriters, dealers and agents participating in the
distribution of the common stock may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
resale of the common stock may be deemed to be underwriting discounts and
commissions. We
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may agree to indemnify underwriters, dealers and agents against civil
liabilities, including liabilities under the Securities Act of 1933, or to
contribute with respect to payments underwriters, dealers, or agents may be
required to make.
If so indicated in the applicable prospectus supplement, we may
authorize underwriters, dealers or agents to solicit offers from certain types
of institutions to purchase common stock from us at the public offering price
set forth in the applicable prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a future date. Institutions with
which delayed delivery contracts may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions, and other institutions. The applicable prospectus
supplement will set forth the commission payable for solicitation of such
offers.
Any underwriter may engage in overallotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with Regulation M
under the Securities Exchange Act of 1934. Overallotment 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. Short-covering transactions
involve purchases of shares of common stock 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 shares of
common stock originally sold by the dealer are purchased in a covering
transaction to cover short positions. Those activities may cause the price of
the common stock to be higher than it would otherwise be. If commenced, the
underwriters may discontinue any of these activities at any time.
Underwriters and their affiliates may engage in transactions with or
perform services for us in the ordinary course of business.
LEGAL MATTERS
The validity of the issuance of the shares of common stock being
offered by us by this prospectus will be passed upon by Squire, Sanders &
Dempsey L.L.P.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this prospectus by reference from our Annual Report on Form 10-K
for the year ended August 31, 2004 have been audited by Deloitte & Touche LLP,
an independent registered public accounting firm, as stated in their reports,
which are incorporated herein by reference, and have been so incorporated in
reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing.
5
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate (except for the registration fee) of the
fees and expenses payable by us in connection with the sale of common stock
being registered.
SEC registration fee.......................................... $24,281
NYSE listing fee.............................................. 21,000
Blue sky fees and expenses.................................... 5,000
Printing and engraving expenses............................... 50,000
Transfer agent's fees......................................... 3,500
Legal fees and expenses....................................... 100,000
Accounting fees and expenses.................................. 75,000
Miscellaneous................................................. 21,219
Total................................................ $300,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Delaware General Corporation Law ("DGCL"), the Company's
Restated Certificate of Incorporation (the "Certificate"), and the Company's
Amended and Restated Bylaws (the "Bylaws"), the Company has broad powers to
indemnify directors and officers against liabilities that they may incur in such
capacities.
Pursuant to Section 102(b)(7) of the DGCL, Article Sixth of the
Certificate contains the following provision relating to the personal liability
of the Company's directors:
"No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability,
to the extent provided by applicable law, (i) for any breach
of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
the law, (iii) under Section 174 of the General Corporation
Law of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. If the General
Corporation Law of Delaware is amended to authorize corporate
action further eliminating or limiting the personal liability
of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of Delaware,
as so amended. This Article Sixth shall not eliminate or limit
the liability of a director for any act or omission which
occurred prior to the effective date of its adoption. Any
repeal or modification of this Article Sixth by the
stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing
at the time of such repeal or modification."
Pursuant to DGCL Section 145 and Article Seventh of the Certificate,
Article VIII of the Company's Amended and Restated Bylaws provides:
"Section 1. Directors and Officers.
(a) Indemnity in Third-Party Proceedings. The corporation
shall indemnify its Directors and officers in accordance with
the provisions of this Section 1(a) if the Director or officer
was or is a party to, or is threatened to be made a party to,
any proceeding (other than a proceeding by or in the right of
the corporation to procure a judgment in its favor), against
all expenses, judgments, fines and amounts paid in settlement,
actually and reasonably incurred by the Director or
II-1
officer in connection with such proceeding if the Director or
officer acted in good faith and in a manner the Director or
officer reasonably believed was in or not opposed to the best
interests of the corporation, and, with respect to any
criminal action or proceeding, the Director or officer, in
addition, had no reasonable cause to believe that the
Director's or officer's conduct was unlawful; provided,
however, that the Director or officer shall not be entitled to
indemnification under this Section 1(a): (i) in connection
with any proceeding charging improper personal benefit to the
Director or officer in which the Director or officer is
adjudged liable on the basis that personal benefit was
improperly received by the Director or officer unless and only
to the extent that the court conducting such proceeding or any
other court of competent jurisdiction determines upon
application that, despite the adjudication of liability, the
Director or officer is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, or
(ii) in connection with any proceeding (or part thereof)
initiated by such person or any proceeding by such person
against the corporation or its Directors, officers, employees
or other agents unless (A) such indemnification is expressly
required to be made by law, (B) the proceeding was authorized
by the Board of Directors, or (C) such indemnification is
provided by the corporation, in its sole discretion, pursuant
to the powers vested in the corporation under the Delaware
General Corporation Law."
In addition to the indemnification and exculpation provided by the
Company's Certificate and Bylaws, the Company has entered into an
indemnification agreement with each of its directors and officers. The
indemnification agreements provide that no director or officer shall have a
monetary liability of any kind in respect of the director's or officer's errors
or omissions in serving the Company or any of its subsidiaries, stockholders or
related enterprises, so long as such errors are not shown by clear and
convincing evidence to have involved: (i) any breach of the duty of loyalty to
such entities; (ii) any act or omission not in good faith or which involved
intentional misconduct or a knowing violation of the law; (iii) any transaction
from which the director or officer derived an improper personal benefit; (iv)
any unlawful corporate distribution as defined in the DGCL; or (v) profits made
from the purchase and sale by the director or officer of securities of the
Company within the meaning of Section 16(b) of the Securities Exchange Act of
1934. Furthermore, regardless of the theory of liability asserted and to the
fullest extent permitted by law, no director or officer shall have personal
liability for (i) punitive, exemplary or consequential damages; (ii) treble or
other damages computed based upon any multiple of damages actually and directly
proved to have been sustained; (iii) fees of attorneys, accountants, expert
witnesses or professional consultants; or (iv) civil fines or penalties of any
kind or nature whatsoever.
The indemnification agreements also require the Company to indemnify
any director or officer who is a party to, or is threatened to be made a party
to, any proceeding, against all expenses, judgments, fines and amounts paid in
settlement, actually and reasonably incurred by the director or officer in
connection with such proceeding, if the director or officer: (i) acted in good
faith and in a manner the director or officer reasonably believed was in or not
opposed to the best interests of the Company; and (ii) with respect to any
criminal proceeding, the director or officer also had no reasonable cause to
believe that his or her conduct was unlawful. In any proceeding charging a
director or officer with improper personal benefit to the director or officer,
the Company will indemnify the director or officer if the appropriate court
determines that the director or officer is fairly and reasonably entitled to
indemnification.
The indemnification agreements also provide indemnity to a director or
officer in proceedings brought by or in the right of the Company, as long as the
director or officer acted in good faith and in a manner which he or she
reasonably believed to be in, or not opposed to, the best interests of the
Company. If a director or officer is adjudged liable to the Company, he or she
will not be indemnified unless the appropriate court determines that the
director or officer is fairly and reasonably entitled to indemnification.
Notwithstanding the foregoing, the indemnification agreements indemnify
each director and officer to the fullest extent permitted by law with respect to
any proceeding against all expenses, judgments, fines and amounts paid in
settlement, actually and reasonably incurred by the director or officer in
connection with any proceeding. The forms of indemnification agreements entered
into between the Company and its officers and directors have been
II-2
filed with the Commission and are incorporated by reference to the Company's
Registration Statement on Form S-1, as declared effective on July 11, 1994
(Registration No. 33-78852).
The Company maintains directors' and officers' liability insurance
under which the Company's directors and officers are insured against claims for
errors, neglect, breach of duty and other matters.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
1 * Form of Underwriting Agreement
4.1 Registrant's Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.1 to the
Registrant's Registration Statement No. 33-78852, effective
July 11, 1994), together with Certificate of Designation of
Preferences and Rights of Series A Preferred Stock, dated July
13, 2004 (incorporated herein by reference to Exhibit 3.1 to
the Registrant's Annual Report on Form 10-K for the year ended
August 31, 2004).
4.2 Registrant's Amended and Restated By-laws, as amended on
November 9, 1994, January 8, 2002 and August 20, 2004
(incorporated herein by reference to Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K for the year ended
August 31, 2004).
4.3 Rights Agreement, dated as of July 13, 2004, between the
Registrant and EquiServe Trust Company, N.A., as Rights Agent,
(incorporated herein by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form 8-A, filed
September 16, 2004), as amended by Amendment No. 1 to Rights
Agreement dated as of November 9, 2004 between the Company and
Equiserve Trust Company, N.A. (incorporated herein by
reference to Exhibit 4.2 of the Registrant's Registration
Statement on Form 8-K, filed November 15, 2004).
5 Opinion of Squire, Sanders & Dempsey L.L.P.
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.
-------------
* To be filed by amendment or as an exhibit to a document to be
incorporated or deemed to be incorporated by reference in this
registration statement.
ITEM 17. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act 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% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
II-3
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the registration pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 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.
(c) 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 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
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes:
(1) 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 of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) 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.
II-4
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 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 December 10, 2004.
THE GREENBRIER COMPANIES, INC.
By: /s/ WILLIAM A. FURMAN
-------------------------------------
William A. Furman
Chief Executive Officer and 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 December 10, 2004:
Signature Title
--------- -----
*/s/ BENJAMIN R. WHITELEY Chairman of the Board of Directors
-----------------------------------
Benjamin R. Whiteley
*/s/ WILLIAM A. FURMAN Chief Executive Officer,
----------------------------------- President and Director
William A. Furman (Principal Executive Officer)
*/s/ LARRY G. BRADY Senior Vice President and
----------------------------------- Chief Financial Officer
Larry G. Brady (Principal Financial and
Accounting Officer)
*/s/ VICTOR G. ATIYEH Director
------------------------------------
Victor G. Atiyeh
Director
-------------------------------------
Alan James
*/s/ DUANE C. MCDOUGALL Director
-----------------------------------
Duane C. McDougall
*/s/ A. DANIEL O'NEAL, JR. Director
-----------------------------------
A. Daniel O'Neal, Jr.
*/s/ C. BRUCE WARD Director
-----------------------------------
C. Bruce Ward
*/s/ DONALD A. WASHBURN Director
-----------------------------------
Donald A. Washburn
*By /s/ LARRY G. BRADY
--------------------------------
Larry G. Brady, Attorney-in-Fact
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
1 * Form of Underwriting Agreement
4.1 Registrant's Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.1 to the
Registrant's Registration Statement No. 33-78852, effective
July 11, 1994), together with Certificate of Designation of
Preferences and Rights of Series A Preferred Stock, dated July
13, 2004 (incorporated herein by reference to Exhibit 3.1 to
the Registrant's Annual Report on Form 10-K for the year ended
August 31, 2004).
4.2 Registrant's Amended and Restated By-laws, as amended on
November 9, 1994, January 8, 2002 and August 20, 2004
(incorporated herein by reference to Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K for the year ended
August 31, 2004).
4.3 Rights Agreement, dated as of July 13, 2004, between the
Registrant and EquiServe Trust Company, N.A., as Rights Agent,
(incorporated herein by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form 8-A, filed
September 16, 2004), as amended by Amendment No. 1 to Rights
Agreement dated as of November 9, 2004 between the Company and
Equiserve Trust Company, N.A. (incorporated herein by
reference to Exhibit 4.2 of the Registrant's Registration
Statement on Form 8-K, filed November 15, 2004).
5 Opinion of Squire, Sanders & Dempsey L.L.P.
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.
-------------
* To be filed by amendment or as an exhibit to a document to be
incorporated or deemed to be incorporated by reference in this
registration statement.