Genesee & Wyoming Inc. Amended and Restated 2004 Deferred Compensation Plan

1.1

“ Account Balance ” shall mean, with respect to a Participant, an entry on the records of the Employer equal to the sum of the Participant’s Annual Accounts. The Account Balance shall be a bookkeeping entry only and shall be utilized solely as a device for the measurement and determination of the amounts to be paid to a Participant, or his or her designated Beneficiary, pursuant to this Plan. If a Participant is both an Employee and a Director and participates in this Plan in each capacity, then separate Account Balances (and separate Annual Accounts, if applicable) shall be established for such Participant as a device for the measurement and determination of the (a) amounts deferred under this Plan that are attributable to the Participant’s status as an Employee, and (b) amounts deferred under this Plan that are attributable to the Participant’s status as a Director.

1.2

“ Annual Account ” shall mean, with respect to a Participant for a given Plan Year, an entry on the records of the Employer equal to (a) the sum of the Participant’s Annual Deferral Amount, Company Contribution Amount and Company Restoration Matching Amount for such Plan Year, plus (b) amounts credited or debited to such amounts pursuant to this Plan, less (c) all distributions made to the Participant or his or her Beneficiary pursuant to this Plan that relate to the Annual Account for such Plan Year. The Annual Account shall be a bookkeeping entry only and shall be utilized solely as a device for the measurement and determination of the amounts to be paid to a Participant, or his or her designated Beneficiary, pursuant to this Plan.

1.3

“ Annual Deferral Amount ” shall mean, with respect to a Participant for a given Plan Year, that portion of a Participant’s Base Salary, Bonus and Director Fees that a Participant defers in accordance with Article 3 for such Plan Year, without regard to whether such amounts are withheld and credited during such Plan Year.

1.4

“ Annual Installment Method ” shall mean the method used to determine the amount of each payment due to a Participant who has elected to receive a benefit over a period of years in accordance with the applicable provisions of this Plan. The amount of each annual payment due to the Participant shall be calculated by multiplying the balance of the Participant’s benefit by a fraction, the numerator of which is one and the denominator of which is the remaining number of annual payments due to the Participant. The amount of the first annual payment shall be calculated as of the close of business on or around the Participant’s Benefit Distribution Date, and the amount of each subsequent annual payment shall be calculated on or around each anniversary of such Benefit Distribution Date. For purposes of this Plan and Code Section 409A and related Treasury Regulations, the right to receive a benefit payment in annual installments shall be treated as the entitlement to a single payment.

1.5

“ Base Salary ” shall mean the annual cash compensation relating to services performed during any calendar year, excluding distributions from nonqualified deferred compensation plans, bonuses, commissions, overtime, fringe benefits, stock options, relocation expenses, incentive payments, non-monetary awards, director fees and other fees, and automobile and other allowances paid to a Participant for employment services rendered (whether or not such allowances are included in the Employee’s gross income). Base Salary shall be calculated before reduction for compensation voluntarily deferred or contributed by the Participant pursuant to all qualified or nonqualified plans of any Employer and shall be calculated to include amounts not otherwise included in the Participant’s gross income under Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans established by any Employer; provided, however, that all such amounts will be included in compensation only to the extent that had there been no such plan, the amount would have been payable in cash to the Employee.

1.6

“ Beneficiary ” shall mean one or more persons, trusts, estates or other entities, designated in accordance with Article 9, that are entitled to receive benefits under this Plan upon the death of a Participant.

1.7

“ Beneficiary Designation Form ” shall mean the form established from time to time by the Committee that a Participant completes, signs and returns to the Committee (or its designated agent) to designate one or more Beneficiaries.

1.8

“ Benefit Distribution Date ” shall mean the date or the event that triggers distribution of all or a portion of a Participant’s vested Account Balance, as elected by the Participant in connection with his or her commencement of participation in this Plan or as otherwise provided by this Plan. The Benefit Distribution Date selected by the Participant may be any one of the following:

(a)

a specified Plan Year (in accordance with the provisions of Section 4.1 or 4.2);

(b)

the date of the Participant’s Separation from Service (in accordance with the provisions of Section 5.1); or

(c)

the earlier of (i) a specified Plan Year (in accordance with the provisions of Section 4.1 or 4.2), or (ii) the date of the Participant’s Separation from Service (in accordance with the provisions of Section 5.1).

1.9

“ Board ” shall mean the board of directors of the Company.

1.10

“ Bonus ” shall mean any compensation, in addition to Base Salary earned by a Participant under any Employer’s annual bonus or cash incentive plans.

1.11

“ Change In Control ” shall mean the occurrence of a “change in the ownership,” a “change in the effective control” or a “change in the ownership of a substantial portion of the assets” of a corporation, as determined in accordance with this Section.

(a)

A “change in the ownership” of the applicable corporation shall occur on the date on which any one person, or more than one person acting as a group, acquires ownership of stock of such corporation that, together with stock held by such person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of such corporation, as determined in accordance with Treasury Regulations Section 1.409A-3(i)(5)(v). If a person or group is considered either to own more than 75% of the total fair market value or total voting power of the stock of such corporation, or to have effective control of such corporation within the meaning of Section 1.11(b), and such person or group acquires additional stock of such corporation, the acquisition of additional stock by such person or group shall not be considered to cause a “change in the ownership” of such corporation.

(b)

A “change in the effective control” of the applicable corporation shall occur on either of the following dates:

(i)

the date on which any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of such corporation possessing 50% or more of the total voting power of the stock of such corporation, as determined in accordance with Treasury Regulations Section 1.409A-3(i)(5)(vi). If a person or group is considered to possess 50% or more of the total voting power of the stock of a corporation, and such person or group acquires additional stock of such corporation, the acquisition of additional stock by such person or group shall not be considered to cause a “change in the effective control” of such corporation; or

(ii)

the date on which a majority of the members of the applicable corporation’s board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of such corporation’s board of directors before the date of the appointment or election, as determined in accordance with Treasury Regulations Section 1.409A-3(i)(5)(vi). In determining whether the event described in the preceding sentence has occurred, the applicable corporation to which the event must relate shall only include a corporation identified in accordance with Treasury Regulations Section 1.409A-3(i)(5)(ii) for which no other corporation is a majority shareholder.

(c)

A “change in the ownership of a substantial portion of the assets” of the applicable corporation shall occur on the date on which any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have a total gross fair market value equal to or more than 51% of the total gross fair market value of all of the assets of the corporation immediately before such acquisition or acquisitions, as determined in accordance with Treasury Regulations Section 1.409A-3(i)(5)(vii), including such a transfer of the corporation’s assets pursuant to shareholder-approved liquidation and dissolution of the corporation. A transfer of assets shall not be treated as a “change in the ownership of a substantial portion of the assets” when such transfer is made to an entity that is controlled by the shareholders of the transferor corporation, as determined in accordance with Treasury Regulations Section 1.409A-3(i)(5)(vii)(B).

1.12

“ Claimant ” shall have the meaning set forth in Section 14.1.

1.13

“ Code ” shall mean the Internal Revenue Code of 1986, as it may be amended from time to time.

1.14

“ Committee ” shall mean the committee described in Article 12.

1.15

“ Company ” shall mean Genesee & Wyoming Inc., a Delaware corporation, and any successor to all or substantially all of the Company’s assets or business.

1.16

“ Company Contribution Amount ” shall mean, with respect to a Participant for a given Plan Year, the amount credited to the Participant’s Annual Account for such Plan Year pursuant to and in an amount determined in accordance with Section 3.5.

1.17

“ Company Restoration Matching Amount ” shall mean, with respect to a Participant for a given Plan Year, the amount credited to the Participant’s Annual Account for such Plan Year pursuant to and in an amount determined in accordance with Section 3.6.

1.18

“ Death Benefit ” shall mean the benefit set forth in Article 8.

1.19

“ Director ” shall mean any member of the board of directors of any Employer.

1.20

“ Director Fees ” shall mean the annual fees earned by a Director from any Employer, including retainer fees and meetings fees, as compensation for serving on a board of directors or committee at the request of the Employer.

1.21

“ Disability ” or “ Disabled ” shall mean that a Participant is either (a) unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (b) by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Participant’s Employer. For purposes of this Plan, a Participant shall be deemed Disabled if determined to be totally disabled by the Social Security Administration. A Participant shall also be deemed Disabled if determined to be disabled in accordance with the applicable disability insurance program of such Participant’s Employer, provided that the definition of “disability” applied under such disability insurance program complies with the requirements of this Section.

1.22

“ Disability Benefit ” shall mean the benefit set forth in Article 7.

1.23

“ Election Form ” shall mean the form, which may be in electronic format, established from time to time by the Committee that a Participant completes, signs and returns to the Committee (or its designated agent) to make an election under this Plan.

1.24

“ Employee ” shall mean a person who is an employee of any Employer.

1.25

“ Employer(s) ” shall be defined as follows:

(a)

Except as otherwise provided in Section 1.23(b), the term “Employer” shall mean the Company and/or any of its subsidiaries (now in existence or hereafter formed or acquired) that have been selected by the Committee to participate in this Plan.

(b)

For the purpose of determining whether a Participant has experienced a Separation from Service, the term “Employer” shall mean:

(i)

the entity for which the Participant performs services and with respect to which the legally binding right to compensation deferred or contributed under this Plan arises; and

(ii)

all other entities with which the entity described above would be aggregated and treated as a single employer under Code Section 414(b) (controlled group of corporations) and Code Section 414(c) (a group of trades or businesses, whether or not incorporated, under common control), as applicable. In order to identify the group of entities described in the preceding sentence, the

Committee shall use an ownership threshold of at least 50% as a substitute for the 80% minimum ownership threshold that appears in, and otherwise must be used when applying, the applicable provisions of (A) Code Section 1563 for determining a controlled group of corporations under Code Section 414(b), and (B) Treasury Regulations Section 1.414(c)-2 for determining the trades or businesses that are under common control under Code Section 414(c).

1.26

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

1.27

“ 401(k) Plan ” shall mean, with respect to an Employer, a plan qualified under Code Section 401(a) that contains a cash or deferral arrangement described in Code Section 401(k), adopted by the Employer, as it may be amended from time to time, or any successor thereto.

1.28

“ Participant ” shall mean any Employee or Director (i) who is selected to participate in this Plan, (ii) whose executed Plan Agreement, Election Form and Beneficiary Designation Form are accepted by the Committee (or its designated agent), and (iii) whose Plan Agreement has not terminated.

1.29

“ Performance-Based Compensation ” shall mean compensation the entitlement to or amount of which is contingent on the satisfaction of pre-established organizational or individual performance criteria relating to a performance period of at least 12 consecutive months, as determined by the Committee in accordance with Treasury Regulations Section 1.409A-1(e).

1.30

“ Plan ” shall mean this Genesee & Wyoming Inc. Amended and Restated 2004 Deferred Compensation Plan, which shall be evidenced by this instrument, as it may be amended from time to time, and by any other documents that together with this instrument define a Participant’s rights to amounts credited to his or her Account Balance.

1.31

“ Plan Agreement ” shall mean a written agreement in the form prescribed by or acceptable to the Committee that evidences a Participant’s agreement to the terms of this Plan and which may establish additional terms or conditions of Plan participation for a Participant. Unless otherwise determined by the Committee, the most recent Plan Agreement accepted with respect to a Participant shall supersede any prior Plan Agreements for such Participant. Plan Agreements may vary among Participants and may provide additional benefits not set forth in this Plan or limit the benefits otherwise provided under this Plan.

1.32

“ Plan Year ” shall mean a period beginning on January 1 of each calendar year and continuing through December 31 of such calendar year.

1.33

“ Retirement ,” “ Retire(s) ” or “ Retired ” shall mean with respect to a Participant who is an Employee, a Separation from Service on or after the attainment of age 62, and shall mean with respect to a Participant who is a Director, a Separation from Service. If a Participant is both an Employee and a Director and participates in this Plan in each capacity, (a) the determination of whether the Participant qualifies for Retirement as an Employee shall be made when the Participant experiences a Separation from Service as an Employee and such determination shall only apply to the applicable portion of the Participant’s Account Balance for amounts deferred under this Plan as an Employee, and (b) the determination of whether the Participant qualifies for Retirement as a Director shall be made at the time the Participant experiences a Separation from Service as a Director and such determination shall only apply to the applicable portion of the Participant’s Account Balance for amounts deferred under this Plan as a Director.

1.34

“ Separation from Service ” shall mean a termination of services provided by a Participant to his or her Employer, whether voluntarily or involuntarily, other than by reason of death or Disability, as determined by the Committee in accordance with Treasury Regulations Section 1.409A-1(h). In determining whether a Participant has experienced a Separation from Service, the following provisions shall apply:

(a)

For a Participant who provides services to an Employer as an Employee, except as otherwise provided in Section 1.32(c), a Separation from Service shall occur when such Participant has experienced a termination of employment with such Employer. A Participant shall be considered to have experienced a termination of employment when the facts and circumstances indicate that the Participant and his or her Employer reasonably anticipate that either (i) no further services will be performed for the Employer after a certain date, or (ii) that the level of bona fide services the Participant will perform for the Employer after such date (whether as an Employee or as an independent contractor) will permanently decrease to no more than 20% of the average level of bona fide services performed by such Participant (whether as an Employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the Employer if the Participant has been providing services to the Employer less than 36 months).

(b)

For a Participant who provides services to an Employer as an independent contractor, except as otherwise provided in Section 1.32(c), a Separation from Service shall occur upon the expiration of the contract (or in the case of more than one contract, all contracts) under which services are performed for such Employer, provided that the expiration of such contract(s) is determined by the Committee to constitute a good-faith and complete termination of the contractual relationship between the Participant and such Employer.

(c)

For a Participant who provides services to an Employer as both an Employee and an independent contractor , a Separation from Service generally shall not occur until the Participant has ceased providing services for such Employer both as an Employee and as an independent contractor, as determined in accordance with the provisions set forth in Sections 1.32(a) and (b), respectively. Similarly, if a

Participant either (i) ceases providing services for an Employer as an independent contractor and begins providing services for such Employer as an Employee, or (ii) ceases providing services for an Employer as an Employee and begins providing services for such Employer as an independent contractor, the Participant will not be considered to have experienced a Separation from Service until the Participant has ceased providing services for such Employer in both capacities, as determined in accordance with the applicable provisions set forth in Sections 1.32(a) and (b).

1.35

“ Specified Employee ” shall mean any Participant who is determined to be a “key employee” (as defined under Code Section 416(i) without regard to paragraph (5) thereof) for the applicable period, as determined annually by the Committee in accordance with Treasury Regulations Section 1.409A-1(i). In determining whether a Participant is a Specified Employee, the following provisions shall apply:

(a)

the Committee’s identification of the individuals who fall within the definition of “key employee” under Code Section 416(i) (without regard to paragraph (5) thereof) shall be based upon the 12-month period ending on each December 31st (referred to below as the “identification date”). In applying the applicable provisions of Code Section 416(i) to identify such individuals, “compensation” shall be determined in accordance with Treasury Regulations Section 1.415(c)-2(a) without regard to (i) any safe harbor provided in Treasury Regulations Section 1.415(c)-2(d), (ii) any of the special timing rules provided in Treasury Regulations Section 1.415(c)-2(e), and (iii) any of the special rules provided in Treasury Regulations Section 1.415(c)-2(g); and

(b)

each Participant who is among the individuals identified as a “key employee” in accordance with Section 1.33(a) shall be treated as a Specified Employee for purposes of this Plan if such Participant experiences a Separation from Service during the 12-month period that begins on the April 1st following the applicable identification date.

1.36

“ Treasury Regulations ” shall mean all final and temporary treasury regulations promulgated under the Code.

1.37

“ Trust ” shall mean one or more trusts established by the Company in accordance with Article 15.

1.38

“ Unforeseeable Emergency ” shall mean a severe financial hardship of the Participant resulting from (a) an illness or accident of the Participant, the Participant’s spouse or the Participant’s dependent (as defined in Code Section 152 without regard to paragraphs (b)(1), (b)(2) and (d)(1)(b) thereof), (b) a loss of the Participant’s property due to casualty, or (c) such other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant, all as determined by the Committee based on the relevant facts and circumstances and in accordance with Code Section 409A and related Treasury Regulations.

2.1

Selection by Committee . Participation in this Plan shall be limited to a select group of management and highly compensated Employees and Directors of an Employer, as determined by the Committee in its sole discretion. From that group, the Committee shall select, in its sole and absolute discretion, which Employees and Directors may participate in this Plan.

2.2

Enrollment and Eligibility Requirements; Commencement of Participation .

(a)

As a condition to participation, each Director or selected Employee shall complete, execute and return to the Committee a Plan Agreement, an Election Form and a Beneficiary Designation Form by the deadline(s) established by the Committee in accordance with the applicable provisions of this Plan. In addition, subject to the requirements of Section 3.3, the Committee shall establish from time to time such other enrollment requirements as it determines, in its sole discretion, are necessary.

(b)

Each selected Employee or Director who is eligible to participate in this Plan shall commence participation in this Plan on the date that the Committee determines that the Employee or Director has met all enrollment requirements set forth in this Plan and required by the Committee, including the return of all required documents to the Committee (or its designated agent) within the specified time period.

(c)

If an Employee or a Director fails to meet all of the requirements established by the Committee within the period required, that Employee or Director shall not be eligible to participate in this Plan during such Plan Year.

3.1

Minimum Deferrals . For each Plan Year, a Participant may elect to defer, as his or her Annual Deferral Amount, a stated amount or percentage of his or her Base Salary, Bonus and/or Director Fees in the following minimum amounts for each deferral elected:

3.2

Maximum Deferral .

(a)

Annual Deferral Amount . For each Plan Year, a Participant may elect to defer, as his or her Annual Deferral Amount, Base Salary, Bonus, and/or Director Fees up to the following maximum percentages for each deferral elected:

(b)

Short Plan Year . Notwithstanding the foregoing, if a Participant first becomes a Participant after the first day of a Plan Year, then to the extent required by Section 3.3 and Code Section 409A and related Treasury Regulations, the maximum amount of the Participant’s Base Salary, Bonus, or Director Fees that may be deferred by the Participant for this Plan Year shall be determined by applying the percentages set forth in Section 3.2(a) to the portion of such compensation attributable to services performed after the date that the Participant’s deferral election is made.

3.3

Timing of Deferral Elections; Effect of Election Form .

(a)

General Timing Rule for Deferral Elections . Except as otherwise provided in this Section 3.3, in order for a Participant to make a valid election to defer Base Salary and/or Bonus, the Participant must submit an Election Form on or before the deadline established by the Committee, which in no event shall be later than the December 31st preceding this Plan Year in which such compensation will be earned.

(b)

Timing of Deferral Elections for Newly Eligible Plan Participants . A Director or selected Employee who first becomes eligible to participate in this Plan on or after the beginning of a Plan Year, as determined in accordance with Treasury Regulations Section 1.409A-2(a)(7)(ii) and the “plan aggregation” rules provided in Treasury Regulations Section 1.409A-1(c)(2), may be permitted to make an election to defer the portion of Base Salary, Bonus, and/or Director Fees attributable to services to be performed after such election, provided that the Participant submits an Election Form on or before the deadline established by the Committee, which in no event shall be later than thirty (30) days after the Participant first becomes eligible to participate in this Plan.

(c)

Timing of Deferral Elections for Performance-Based Compensation . Subject to the limitations described in this Section 3.3(c), the Committee may determine that an irrevocable deferral election for an amount that qualifies as Performance-Based Compensation may be made by submitting an Election Form on or before the deadline established by the Committee, which in no event shall be later than six months before the end of the performance period.