SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 17, 2003
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GENESEE & WYOMING INC.
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(Exact Name of registrant specified in its charter)
Delaware 0-20847 06-0984624
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(State or other jurisdiction (Commission File (I.R.S. Employer
of Incorporation) Number) Identification No.)
66 Field Point Road
Greenwich, Connecticut 06830
(Address of principal executive offices)
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Registrant's telephone number: (203) 629-3722
Item 5. Other Events.
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The purpose of this filing is to provide an update of recent developments
in a lawsuit involving one of the Registrant's subsidiaries. As disclosed in
our previous Securities and Exchange Commission filings, on August 6, 1998, a
lawsuit was commenced against the Company and its subsidiary, Illinois & Midland
Railroad, Inc. (IMRR), by Commonwealth Edison Company (ComEd) in the Circuit
Court of Cook County, Illinois. The suit alleges that IMRR breached certain
provisions of a stock purchase agreement entered into by a prior unrelated owner
of the IMRR rail line. The provisions allegedly pertain to limitations on rates
received by IMRR for freight hauled during the period February 6, 1996 through
December 15, 1999, the date on which ComEd sold the Powerton plant. The suit
sought $19.0 million in compensatory damages, plus interest, for alleged past
rate overcharges.
The parent company of ComEd sold certain of ComEd's power facilities, one
of which is the Powerton plant served by IMRR under the provisions of a 1987
Service Assurance Agreement (the SAA), entered into by a prior unrelated owner
of the IMRR rail line. The SAA, among other things, provides that IMRR has
exclusive access to provide rail service to the Powerton plant. On July 18,
2002, the Company filed an amended counterclaim against ComEd in the Cook County
action. The counterclaim seeks a declaration of certain rights regarding the
SAA and damages in action. The counterclaim seeks a declaration of certain
rights regarding the SAA and damages in excess of $45.0 million for ComEd's
failure to assign the SAA to the purchaser of the Powerton plant.
On January 13, 2003, the Company filed a motion for summary judgment,
seeking dismissal of ComEd's claims. At the same time, ComEd filed a motion
for summary judgment seeking to dismiss the Company's counterclaim. On April
17, 2003, the Circuit Court granted both the Company's and ComEd's motions,
effectively terminating the litigation. While both parties have the immediate
right to appeal, we do not know whether ComEd will appeal the dismissal of its
complaint. The Company is currently evaluating with counsel whether or not to
appeal the dismissal of its counterclaim and is also reviewing the impact, if
any, of the Court's order on the SAA. The Company believes that ComEd's claims
against the Company are without merit, and the Company will continue vigorously
to defend against such claims if ComEd appeals their dismissal. If ComEd were
successful on its complaint but the Company was unsuccessful on its
counterclaim, it could have a material adverse effect on the Company.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GENESSE & WYOMING INC.
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(Registrant)
By: /s/ John C. Hellmann
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Name: John C. Hellmann
Title: Chief Financial Officer
April 21, 2003