SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
Registration Statement under the Securities Act of 1933
PIONEER RAILCORP
(Exact name of Registrant as specified in its charter)
Iowa
(State or other jurisdiction of incorporation or organization)
37-1191206
(I.R.S. Employer Identification No.)
1318 S. Johanson Rd, Peoria, IL 61607, 309-697-1400
(Address, including zip code, and telephone number, including
area code, of registrants principal executive offices)
Approximate date of commencement of sale to the public - January 2, 1996
If only the 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 of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of each class maximum maximum
of securities to be Amount to be offering price aggregate Amount of
registered registered per unit offering price registration fee
<S> <C> <C> <C> <C>
Class A Common Stock 245,190 Shares $2.5625* $628,299.37 $216.65
</TABLE>
* Average of high and low trading price reported on Chicago Stock Exchange on
December 5, 1995, pursuant to Rule 457(c)
PROSPECTUS
PIONEER RAILCORP
245,190 Shares
COMMON STOCK
This Prospectus relates to the above 245,190 shares of "Class A" Common
Stock, par value $.001 per share ("Common Stock") of Pioneer Railcorp
(hereinalso the "Company") that may be offered for sale for the account of
certain shareholders of the Company as stated herein under the heading "Selling
Shareholders" (the "Shares").
The Common Stock is listed on the Chicago Stock Exchange under the symbol
"PRR". On December 5, 1995, the last reported sale price of the Common Stock as
reflected on the Exchange was $2.625.
The Selling Shareholders have advised the Company that sales of the Shares
may be made from time to time on the Exchange, through negotiated transactions,
or otherwise, at fixed prices that may be changed, at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Selling Shareholders may effect such transactions by
selling the Shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions from
the Selling Shareholders or the purchasers of the Shares for whom such
broker-dealers may act as agent or to whom they may sell as principal, or both
(which compensation to a particular broker-dealer might be in excess of
customary commissions). See "Selling Shareholders" and "Plan of Distribution".
No period of time has been fixed within which the Shares may be offered or
sold. None of the proceeds from the sale of the Shares will be received by the
Company. The Company will pay all expenses with respect to this offering, except
for brokerage fees and commissions and transfer taxes for the Selling
Shareholders, which will be borne by the Selling Shareholders. In addition, the
Company has entered into an agreement as to the amount of proceeds to be
realized by one of the Selling Shareholders (See "Plan of Distribution").
The Shares of Common Stock offered hereby involve certain risks. See "Risk
Factors", at page 3 of this Prospectus.
----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE
SECURITIES COMMISSION, NOR HAS THE COMMISSION, OR ANY STATE
SECURITIES COMMISSION, PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
----------------------
The date of this Prospectus is December 6, 1995.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission. Reports, proxy statements and other information filed by the Company
can be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C., as well as at the following regional offices: 13th. Floor, Seven World
Trade Center, New York, New York, and Suite 1400 Northwestern Atrium Center, 500
West Madison Street, Chicago, Illinois. Copies of such material can be obtained
from the Public Reference Section of the Commission, Washington, D.C. 20549, at
prescribed rates. The Company's Class A common stock is listed on the Chicago
Stock Exchange. Reports, proxy statements and other information concerning the
Company can be inspected at such Exchange.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents heretofore filed with the Commission:
The Company's Current Report on Form 8-K dated December 27, 1994, as
amended February 24, 1995 and August 23, 1995.
The Company's Annual Report on Form 10-KSB for the year ended December 31,
1994, as amended August 31, 1995 and September 20, 1995.
The Company's Quarterly Report on Form 10-QSB for the quarter ended March
31, 1995, as amended May 19, 1995, August 31, 1995, September 20, 1995 and
September 22, 1995.
The Company's Current Report on Form 8-K dated June 30, 1995, as amended
August 19, 1995.
The Company's Quarterly Report on Form 10-QSB for the quarter ended June
30, 1995, as amended August 31, 1995, September 20, 1995, September 22, 1995,
and December 5, 1995.
The Company's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1995.
The Company's Current Report on Form 8-K dated November 22, 1995.
All reports and other documents filed by the Company 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 termination of this offering shall be deemed to be incorporated
by reference in this Prospectus and to be made a part hereof from the date of
filing of such reports and documents.
The Company hereby undertakes to provide, without charge, to each person to
whom a copy of this Prospectus shall have been delivered, upon the written or
oral request of such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents, unless such exhibits shall have been
specifically incorporated by reference into such documents. Requests for such
copies should be directed to Investor Relations Dept., Pioneer Railcorp, 1318 S.
Johanson Road, Peoria, Illinois 61607, telephone (309) 697-1400.
-------------------------
THE COMPANY
Pioneer Railcorp (the "Company" or the "Registrant") is the issuer of the
shares of Class A common stock offered hereby. The principal executive offices
of the Company are located at 1318 S. Johanson Road, Peoria, Illinois 61607, and
its telephone number is (309) 697-1400.
Pioneer Railcorp currently operates eleven wholly-owned subsidiaries, eight
of which are common carrier railroads, totalling approximately 350 miles of
track in seven states (Illinois, Minnesota, Arkansas, Alabama, Mississippi,
Tennessee and Michigan). The other three operating subsidiaries include: Pioneer
Railroad Equipment Co., Ltd.), which leases railcars, locomotives and other
railroad-related equipment to both Pioneer subsidiaries and other railroads or
entities requiring railroad equipment; Pioneer Railroad Services, Inc. which
provides agency, accounting, marketing and other services, primarily to
Pioneer's railroad subsidiaries, and Pioneer Air, Inc., which owns a small
aircraft and provides in-house air transportation.
RISK FACTORS
1. Economic Fluctuations. Demand for railroad service is highly dependent
upon the economic condition of the customers. The Registrant's businesses are
relatively diversified, in that the subsidiary railroads serve a variety of
industrial and agricultural entities, however, a general downturn in economic
activity could be expected to result in lower shipping levels, and hence lower
revenues.
2. Competition. The railroad industry is highly competitive between
railroads, and with other modes of transportation (trucks, barges, and air
freight carriers). Some of the Registrant's competitors are large railroads,
trucking companies and others with considerably greater resources than the
Registrant. The Company, therefore, has a limited ability to adjust prices for
its services.
3. Contract Commitments. Some of the Registrant's subsidiaries have entered
into long-term leases which limit their ability to raise prices to some
inflation-based index. The Registrant believes it is in its best interest to
obtain long-term leases on those properties which it leases, and believes that
such long-term arrangements are preferable to re-negotiating short-term leases
because it permits the Company to make long-term plans and investments in the
leased property.
4. Dependence on Connections. Small railroads (such as comprise the bulk of
the Registrant's businesses), have little or no traffic which does not
interchange with other railroads. The Registrant's business, therefore, is
materially dependent upon the rates and service provided by various connecting
railroads.
5. Regulation. The Railroad industry is subject to regulation as to entry,
exit, operations, safety, finance, and other aspects of the business, through
the rules and regulations of the Interstate Commerce Commission, the Federal
Railroad Administration and other federal and state agencies. A number of
proposals are currently pending in Congress to reshape railroad regulations,
which may result in more or less regulatory oversight.
6. Need for Debt. Railroad operations are capital intensive and, in order
to grow, the Registrant will likely need additional debt financing. Such debt
payments would have to be made before any funds would be available to pay
dividends on the Common Stock, and the loan agreements covering such debt may
contain covenants restricting the Registrant's ability to declare common stock
dividends.
7. Dependence on key personnel. The Company's continued success is
dependent upon the current officers, and other key management personnel. The
Company currently does not have any "key man" insurance, and the death,
disability or termination of employment of one or more of the key management
personnel could be expected to result in a temporary disruption of that
individual's function.
8. Railcar Supply. On an industry-wide basis, many types of railcars are in
short supply, either chronically or seasonally. The Registrant has acquired,
through purchase or lease, a fleet of railcars which handles a substantial
portion of its outbound loads, however, this fleet must be augmented, in some
instances, by cars provided by other railroads. The Company is also largely
dependent upon other railroads for railcars used for inbound loads.
9. Customers. Some of the Registrant's subsidiaries are dependent upon a
few customers for a substantial portion of their business. However, it is
unlikely that the loss of any one customer would have a material adverse effect
on the Registrant's consolidated financial statements.
10. Maintenance. Railroad facilities require constant maintenance in order
to remain operational. The Company has a limited ability to defer maintenance
expenses, without compromising the Company's operations.
11. Environmental Compliance. The Company is subject to a variety of
environmental laws and regulations governing discharges to air and water, the
handling, storage, and transportation of hazardous materials, and so forth.
Although the Company believes it is in material compliance with such laws and
regulations, the Company's railroads handle hazardous materials, and a major
derailment involving hazardous materials could have a material adverse impact on
the Company.
12. Labor Relations. A labor union represents the hourly employees on one
of the Company's eight subsidiary railroads. The Company is currently
negotiating a contract for those employees, and believes that it will likely
reach a multi-year agreement. There can be no assurance, however, that a work
stoppage will not occur in the future in connection with contract negotiations
or otherwise, on this or one or more other railroads.
8. Market Liquidity. The Registrant's stock is traded on the Chicago Stock
Exchange ("CHX"), however, as a small company, with relatively few shares being
traded on any given day, holders of a substantial number of shares may not be
able to liquidate their entire position in a single trading session. Therefore,
substantial investment in the Registrant's shares may not be appropriate for
those who require their investments to be immediately convertible to cash.
Between July 3, 1995 and November 24, 1995, the average weekly trading volume on
the CHX was approximately 1600 shares.
9. Dividends. The Company's Common Stock has never paid a cash dividend,
and, for the foreseeable future the Board of Directors intends to continue to
reinvest all or most of the Company's earnings in the business. While at some
point in the future, the Board of Directors may declare a cash dividend, there
is no assurance that a cash dividend will ever be declared. Therefore, purchase
of the Stock by persons who need current cash income from their investments may
not be a prudent decision.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the Stock
offered herein. All proceeds will go to the Selling Shareholders.
DETERMINATION OF OFFERING PRICE
The offering price may be the prevailing market price of the Commons Stock
on the Chicago Stock Exchange at the time of sale, or a price related to the
prevailing market price, or may be a negotiated price.
DILUTION
All of the shares participating in this offering are previously issued and
existing Common Stock of the Company. Therefore, this offering will not result
in any dilution.
SELLING SHAREHOLDERS
The following table sets forth information regarding ownership of the
Common Stock as of December 5, 1995 by the selling shareholders:
Shares Beneficially Shares Beneficially
Owned Prior to Offering Owned After Offering
Name Number Percent Number Percent
R. Franklin Unger,
Trustee (1) 76,190 1.7% 0 .0
Walter E. Barenfanger 57,500 1.3% 0 .0
Charles Barenfanger, Jr. 57,500 1.3% 0 .0
Fricks Aircraft Sales 54,000 1.2% 0 .0
TOTAL 245,190 5.5% 0 .0
(1) Mr. Unger is the Trustee of the Southwestern Michigan Railroad Company,
Inc., d/b/a Kalamazoo, Lakeshore & Chicago Railroad.
PLAN OF DISTRIBUTION
The Company has been advised that the Selling Shareholders may sell the
Shares from time to time in transactions on the Chicago Stock Exchange, through
negotiated transactions or otherwise, at fixed prices that may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Some of the Shares will be
distributed "in-kind" to the creditors of the Southwestern Michigan Railroad
Company, Inc., d/b/a Kalamazoo, Lakeshore & Chicago Railroad ("KLS&C"), in
accordance with the orders of the United States Bankruptcy Court for the Western
District of Michigan.
Sales may be made pursuant to this Prospectus to or through broker-dealers
who may receive compensation in the form of discounts, concessions or
commissions from the Selling Shareholders or the purchasers of the Shares for
whom such broker-dealer may act as agent (which compensation as to a particular
broker-dealer amy be more or less than the customary commissions). No period of
time has been fixed within which the Shares may be offered or sold.
The Company will not receive any part of the proceeds of any sales of
Shares pursuant to this Prospectus. The Company will pay the costs of this
offering, including filing fees, printing costs, and legal and accounting fees.
The brokerage commissions and fees (and any transfer taxes) on these sales will
be paid entirely by the Selling Shareholders.
In addition, the Registrant has contractually agreed with Mr. Unger that if
the sale and/or distribution of his Shares do not result in a net benefit to the
Estate of the KLS&C of at least $160,000 (either in cash or satisfaction of
claims), the Company will make up the deficiency to the Estate in cash. There
are certain conditions, including the timing and manner of sale of the Shares,
which Mr. Unger must comply with in order to qualify for any such payment from
the Company. The Registrant believes that it is extremely unlikely that this
obligation will result in a material liability to the Company.
DESCRIPTION OF COMMON STOCK
The following information is a summary of the material terms and rights of
the common stock of the Company. The summary does not purport to be complete.
Reference is made to the Company's Articles of Incorporation, which are an
exhibit to the Registration Statement of which this Prospectus constitutes a
part, and to the By-Laws (copies of which are available on request), for more
complete statements. The following statements are qualified in their entirety by
such references:
Authorized and Outstanding Stock: The Company has 20,000,000 authorized
shares of Class A Common Stock, with a par value of $.001 per share. On December
5, 1995, 4,463,558 shares were issued and outstanding. On July 1, 1995 the
Company had a 2 for 1 stock split, payable to stockholders of record June 30,
1995, after the split, the Company had 4,196,084 shares issued and outstanding.
Since July 1, 1995, 256,190 shares have been issued through private placements.
In addition the Company issued 4,196,084 Warrants on July 1, 1995, which Holders
may exercise to buy a like number of Class A common shares at a price of $2.00
per shares. As of the close of business November 27, 1995, 11,284 Shares have
been purchased through the exercise of the Warrants. The Warrant Shares are
restricted as to resale for a period of one year. The Company is also authorized
to issue up to 2,000,000 shares of Class B Common Stock. As of the date of this
Prospectus, none of these shares have ever been issued and the Company has no
immediate plans to issue any such shares.
The Class A Common Stock is nonassessable and is listed on the Chicago
Stock Exchange.
Options: The Company has 836,000 options outstanding for the purchase of
Class A Common Stock. These options were granted to officers, directors and
employees of the Company, pursuant to an incentive stock option plan. The number
of options and their respective exercise prices are as follows:
No. of Options Exercise Price Per Share
473,000 $1.50
165,000 1.65
44,000 2.38
11,000 2.69
121,000 3.56
22,000 3.92
None of these options have been exercised as of the date of this Prospectus, nor
have the option shares been registered for resale as of the date of this
Prospectus. The Registrant anticipates that the Option Shares will be registered
within the next few months.
Voting Rights: Each holder of the Class A common stock of the Company,
including holders of the Warrant Shares, is/will be entitled to one vote for
each share held. The Board of Directors has five members, all of whom are
elected for one year terms at each Annual Meeting. In general, the presence of a
majority of the outstanding shares of Class A common stock will constitute a
quorum at a meeting of shareholders; and the affirmative vote of the majority of
the shares present shall be the act of the shareholders. Cumulative voting is
not permitted. Class B shares, if any are ever issued, will not have voting
rights, except as required by law. Warrant Holders and Option Holders are not
entitled to vote on any issue.
The Company is incorporated under the Iowa Business Corporation Act, and
the rights of shareholders are subject to and shall be construed in accordance
with that Act, and any other applicable laws of the State of Iowa.
Dividend Rights: Each share of Class A common stock (including any Warrant
Shares) is entitled to dividends equally, as declared by the Board of Directors,
out of any funds available for that purpose. To date, no cash dividends have
been paid by the Company, and the Board of Directors intends, for the
foreseeable future, to continue to reinvest all or most of the Company's
earnings in the business. The Board may, at some future date, declare a cash
dividend to shareholders, but there is no guarantee as to when, or if, that will
occur. Class B stock, if ever issued, will have an equal right to dividends with
the Class A stock. Warrant Holders and Option Holders are not entitled to share
in any dividends.
Liquidation Rights: In liquidation, the Class A common stockholders will be
entitled to a pro rata distribution of all assets remaining (if any) after the
satisfaction of all just debts and liabilities of the Company. Class B stock, if
ever issued, will have an equal right to liquidation distributions with the
Class A stock. Neither Warrant Holders nor Option Holders have any rights upon
liquidation.
Warrant Holders Rights upon Merger or Sale: In the event that the Company
effects a consolidation with or merger with or into another entity (which is not
an "affiliate" of the Company, as such term is defined in the General Rules and
Regulations promulgated under the Securities Act of 1933) or a sale, transfer or
lease to another entity (which is not an affiliate of the Company) of all or
substantially all the property or assets of the Company), or any other business
combination resulting in a distribution on, or conversion or exchange of or for
the outstanding Common Stock, the Warrant Holders have certain rights to elect
to receive the benefit of such transaction (as if they were shareholders), less
the exercise price of the Warrant, if they so elect within thirty (30) days of
the notice of such transaction. A more complete statement of the rights of
Warrant Holders is contained in the Registrant's Form S-3, effective September
29, 1995, a copy of which is available on request
Preemptive Rights: Holders of the Class A common stock do not have any
preemptive rights.
Transfer Agent: The Transfer Agent for the Class A common stock is the
Company.
Costs: At present, there are no service charges for transfer of the
Company's stock, or issuance or registration of Certificates. All costs of
administration are paid by the Company. However, the Company reserves the right
at any time to charge a reasonable service fee for such services. Should the
Company determine to charge such fees, Shareholders will be notified ninety days
prior to their effective date.
Certificates for Shares: Shares of common stock are represented by
certificates, issuable only in registered form, which will be mailed to the
Holder of record at the address specified on the Assignment Form on the reverse
of the Certificate, or an accompanying Stock Power Form (If that is used to
document the transfer). The stockholder shall have the responsibility for
safekeeping the certificate. Stockholders whose holdings are in the name of a
broker or other nominee shareholder of record must obtain certificates from
their brokers or other nominee shareholders of record, if they decide to hold
the stock in certificate form. Until the transfer of the certificate is
registered on the books of the Transfer Agent, the Company may treat the
registered shareholder as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights of a shareholder, any notice to the
contrary notwithstanding.
Communications: All communications concerning the Stock should be directed
to the Transfer Agent as follows:
Transfer Agent, Investor Relations
Pioneer Railcorp
1318 S. Johanson Road
Peoria, Illinois 61607
Telephone: (309) 697-1400
Fax: (309) 697-1677
TAX CONSEQUENCES
Selling Shareholders who are U.S. residents may be taxed upon the sale of
their Shares, based upon the difference between the sale price of the Shares and
their basis in the Shares.
The foregoing is a general statement of U.S. Federal income tax
consequences only. Each Stockholder should consult his or her own tax advisor as
to the specific application of the tax rules governing the Stock as they relate
to such Holder. The records of purchase, sale, and/or transfer of the Stock
should be retained for this purpose.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Company's Annual Report on Form 10-KSB (as amended) for the
year ended December 31, 1994, have been so incorporated in reliance on the
report of McGladrey & Pullen, LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
The consolidated financial statements incorporated in this Prospectus by
reference to the Company's Annual Report on Form 10-KSB for the year ended
December 31, 1993, have been so incorporated in reliance on the report of
Pasquale & Bowers, independent accountants, given on the authority of said firm
as experts in auditing and accounting.
The validity of the Common Stock offered hereby has been passed upon for
the Company by Daniel A. LaKemper, Esq., General Counsel of the Company.
INDEMNIFICATION
Article XII of the Company's By-Laws contains provisions, pursuant to
Section 490.851 of the Iowa Business Corporation Act, authorizing
indemnification of reasonable expenses incurred by any officer, director,
employee or agent of the corporation, or any individual serving at the request
of the corporation as an officer, director, employee or agent of any other
entity, who is, was, or is threatened to be made a party to any legal proceeding
(other than an action by or in the right of the corporation) brought by reason
of the fact that the individual is or was an officer, director, employee or
agent, if (a) the individual acted in good faith; (b) the individual reasonably
believed their conduct was in the best interest of the corporation, or at least
not opposed to the best interests of the corporation; and (c) in the case of a
criminal proceeding, the individual had no reasonable cause to believe the
conduct was unlawful.
The By-Law also provides that the corporation may indemnify any person who
was, is, or is threatened to be made a party to an action by or in the right of
the corporation, under the same conditions, provided the individual is not
adjudged liable to the corporation.
The Company is also subject to Section 490.852 of the Iowa Business
Corporation Act, which mandates indemnification to "a director who was wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which the director was a party because the director is or was a director of the
corporation, against reasonable expenses incurred by the director in connection
with the proceeding."
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed 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.
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No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus and, if given or
made, such information or representation must not be relied upon as having been
authorized by the Company. This Prospectus does not constitute an offer to sell
or a solicitation of an offer to buy any securities other than those
specifically offered hereby or an offer to sell or solicitation to buy such
securities in any circumstances in which such offer or solicitation is unlawful.
Neither the delivery of this Prospectus nor any sale hereunder, under any
circumstances, shall create any implication that there has been no change in the
affairs of the Company or its subsidiaries since the date hereof or that the
information herein is correct as of any time since its date.
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION.................................2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.......2
THE COMPANY...........................................3
RISK FACTORS..........................................3
USE OF PROCEEDS.......................................5
DETERMINATION OF OFFERING PRICE.......................5
DILUTION..............................................5
SELLING SECURITY HOLDERS..............................6
PLAN OF DISTRIBUTION..................................6
DESCRIPTION OF COMMON STOCK...........................7
Authorized and Outstanding Stock.................7
Options..........................................7
Voting Rights....................................8
Dividend Rights..................................8
Liquidation Rights...............................8
Warrant Holders Rights upon Merger or Sale.......9
Preemptive Rights................................9
Transfer Agent...................................9
Costs............................................9
Certificates for Shares..........................9
Communications..................................10
TAX CONSEQUENCES.....................................10
EXPERTS..............................................10
INDEMNIFICATION......................................11
Item 14. Expenses.
The Registrant estimates that total fees and expenses incurred in
connection with this offering will be approximately $5,250. This includes
Securities & Exchange Commission Fees ($216.65); Accounting expenses (estimated
at $4,000.); Postage and Printing costs (estimated at $500.) and legal and
miscellaneous expenses (estimated at approximately $500.). All of these expenses
will be paid by the Company. No underwriting fees will be paid in connection
with this offering. Any commissions or brokerage fees will be paid by the
Selling Shareholders directly to their brokers.
Item 15. Indemnification.
Article XII of the Company's By-Laws contains provisions, pursuant to
Section 490.851 of the Iowa Business Corporation Act, authorizing
indemnification of reasonable expenses incurred by any officer, director,
employee or agent of the corporation, or any individual serving at the request
of the corporation as an officer, director, employee or agent of any other
entity, who is, was, or is threatened to be made a party to any legal proceeding
(other than an action by or in the right of the corporation) brought by reason
of the fact that the individual is or was an officer, director, employee or
agent, if (a) the individual acted in good faith; (b) the individual reasonably
believed their conduct was in the best interest of the corporation, or at least
not opposed to the best interests of the corporation; and (c) in the case of a
criminal proceeding, the individual had no reasonable cause to believe the
conduct was unlawful.
The By-Law also provides that the corporation may indemnify any person who
was, is, or is threatened to be made a party to an action by or in the right of
the corporation, under the same conditions, provided the individual is not
adjudged liable to the corporation.
The Company is also subject to Section 490.852 of the Iowa Business
Corporation Act, which mandates indemnification to "a director who was wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which the director was a party because the director is or was a director of the
corporation, against reasonable expenses incurred by the director in connection
with the proceeding.
Item 16. Exhibits.
Exhibit 1: Articles of Incorporation of Pioneer Railcorp, as amended and in
force September 30, 1995.
Exhibit 2: Opinion regarding legality.
Exhibit 3: Consent of McGladrey & Pullen, LLP, Certified Public Accountants
and Consultants.
Exhibit 4: Consent of Pasquale & Bowers, Certified Public Accountants.
Exhibit 5: Consent of Daniel A. LaKemper, Attorney at Law.
Item 17. Undertaking.
The undersigned 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 to 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) (Section 230.424(b) of this chapter) 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;
(iii) To include 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.
(2) That, for the purpose of determining 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.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to who the prospectus is sent or given, the
latest quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
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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 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 County of Peoria, State of Illinois, on December 6, 1995.
PIONEER RAILCORP
(Registrant)
By:/s/ Guy L. Brenkman
Guy L. Brenkman, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ J. Michael Carr /s/ Orvel L. Cox
J. Michael Carr, Director and Orvel L. Cox, Director
Chief Financial Officer
Dated: December 6, 1995 Dated: December 6, 1995
December 6, 1995
Securities & Exchange Commission
Filing Desk
450 5th. St., N.W.
Washington, D.C. 20549
DELAYING AMENDMENT
FOR FORM S-3
NO.
DATED DECEMBER 6, 1995
This Registration Statement shall hereafter become effective in accordance
with the provisions of Section 8(a) of the Securities Act of 1933.
PIONEER RAILCORP
(Registrant)
By:/s/ J. Michael Carr By:/s/ Daniel A. LaKemper
J. Michael Carr, Daniel A. LaKemper,
Chief Financial Officer Secretary and General Counsel
"EXHIBIT 1"
ARTICLES OF INCORPORATION
OF
PIONEER RAILCORP
ARTICLE ONE: This Corporation shall be incorporated under the provisions of the
Business Corporation Act (Chapter 496A) of the Code of the State of Iowa, and
shall have the name "Pioneer Railroad Company, Inc.".
ARTICLE TWO: The duration of this corporation shall be perpetual.
ARTICLE THREE: This corporation shall be organized for the purpose of acquiring,
forming, buying, leasing, and/or operating one or railroad lines or
railroad-related companies, within and/or without the State of Iowa, and for the
transaction of any and all other lawful business for which corporations may be
organized under the Iowa Business Corporation Act.
ARTICLE FOUR: The corporation shall have the authority to issue up to 20,000,00
shares, each having a par value of $.001 per share, and each being entitled to
one vote.
ARTICLE FIVE: All shares of the Corporation shall be classed as "common", and no
shareholder shall have any pre-emptive right to acquire additional shares of the
corporation, or treasury shares thereof.
ARTICLE SIX: The initial registered office of the Corporation shall be at the
403 First National Bank Building, Broadway and Main Sts., in the City of Council
Bluffs, Pottawattamie County, Iowa. The initial registered agent shall be Mr.
John W. Kocourek.
ARTICLE SEVEN: The initial Board of Directors shall consist of five directors,
who shall serve until the first annual meeting of shareholders, or until their
successors be elected and qualify. The names and addresses of the persons who
are to serve as said directors are:
Name Address
GUY L. BRENKMAN 1517 Sunset Dr., East Peoria, Ill. 61611
A. ROBERT JOHNSON 2811 5th. St., Eau Claire, Wisconsin 54703
ORVEL L. COX 1114 Flint St., Red Bud, Ill. 62278
JOSEPH J. SYKES 2731 N. 76th. Ct., Elmwood Park, Ill. 60635
LAUNCELOT D. ERICKSON P.O. Box 3182, Omaha, Nebraska 68103
ARTICLE EIGHT: The corporation's existence shall begin on the date on which it
is incorporated.
ARTICLE NINE: The undersigned incorporators hereby adopt these Articles of
Incorporation for Pioneer Railroad Company, Inc.
[Signature of Incorporator, Guy L. Brenkman]
ARTICLE TEN: The Corporation shall have the authority to issue, in accordance
with this Article, stock warrants for the purchase of the Company's Class A
common stock at the price of $2.00 per share. The warrants shall not have any
voting rights, or rights in the event of liquidation or dissolution, and shall
be neither redeemable for cash, or callable, and shall have such other terms and
conditions upon exercise as the Board of Directors may decide. The Board of
Directors shall be authorized to declare, as a dividend to stockholders,
warrants for 4,196,084 shares (or so many shares as are outstanding at the close
of business June 30, 1995, taking into account the stock split declared that
date, be it more or less), and said warrants shall be issued July 1, 1995, or as
soon thereafter as the appropriate Securities & Exchange Commission (and any
required state security act) filings permit, and shall, if unexercised, expire
twenty (20) years after the issue date. The shares purchased with any of said
warrants shall be restricted as to resale for a period of one (1) year.
AMENDMENT No. ONE: The name of the Corporation is "Pioneer Railcorp".
AMENDMENT No. TWO: The Company shall be authorized to issue up to 2,000,000
Class B Common Shares. These shares shall have all of the rights and privileges
of the existing Common shares of the Company, except for voting rights. The
existing Common shares of the Company shall henceforward be titled "Class A".
IOWA/PRC-ART/06-28-95.
"EXHIBIT 2"
December 6, 1995
To the Board of Directors
Pioneer Railcorp
Peoria, Illinois
Gentlemen:
It is my opinion that the Shares which are the subject of the Registration
Form S-3, dated December 6, 1995, are authorized, validly existing, fully paid
and non-assessable Shares of the Company's Class A Common Stock.
Sincerely yours,
/s/ Daniel A. LaKemper
Daniel A. LaKemper,
General Counsel.
"EXHIBIT 3"
To the Board of Directors
Pioneer Railcorp
Peoria, Illinois
We hereby consent to the use in this Registration Statement of our report, dated
February 22, 1995, except for Note 12 as to which the date is September 18,
1995, relating to the consolidated financial statements of Pioneer Railcorp and
subsidiaries as of and for the year ended December 31, 1994, and to the
reference of our Firm under the caption "Experts" in the Prospectus.
/s/ McGladrey & Pullen, LLP
Peoria, Illinois
December 4, 1995
"EXHIBIT 4"
To the Board of Directors
Pioneer Railcorp
Peoria, Illinois
We hereby consent to the use, in this Registration Statement, of our report,
dated March 5, 1994, relating to the consolidated financial statements of
Pioneer Railcorp and Subsidiaries, and to the reference to our Firm under the
caption "Experts" in the Prospectus.
/s/ Pasquale & Bowers
Syracuse, New York
December 8, 1995
"EXHIBIT 5"
December 6, 1995
To the Board of Directors
Pioneer Railcorp
Peoria, Illinois
Gentlemen:
I hereby consent to the use in the Company's Registration Statement, Form
S-3, of my opinion as to the legality of the shares being offered, and to the
reference to me under the caption "Experts" in the Prospectus.
Sincerely yours,
/s/ Daniel A. LaKemper
Daniel A. LaKemper,
General Counsel.
