AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 24, 2002
REGISTRATION NO. 333-92360
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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KANSAS CITY SOUTHERN*
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 4011 44-0663509
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION) CLASSIFICATION NUMBER)
427 WEST 12TH STREET
KANSAS CITY, MISSOURI 64105
(816) 983-1303
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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THE KANSAS CITY SOUTHERN RAILWAY COMPANY*
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MISSOURI 4011 44-6000758
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION) CLASSIFICATION NUMBER)
427 WEST 12TH STREET
KANSAS CITY, MISSOURI 64105
(816) 983-1303
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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WILLIAM J. PINAMONT, ESQ.
KANSAS CITY SOUTHERN
427 WEST 12TH STREET
KANSAS CITY, MISSOURI 64105
(816) 983-1303
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
JOHN F. MARVIN, ESQ.
SONNENSCHEIN NATH & ROSENTHAL
4520 MAIN STREET
KANSAS CITY, MISSOURI 64111
(816) 460-2400
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*The companies listed on the next page are also included in this Form S-4
Registration Statement as additional Registrants.
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: The exchange offer will commence as soon as practicable after the
effective date of this Registration Statement.
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If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
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 of the earlier effective
registration statement for the same offering. [_] _
If this form is a post-effective amendment filed pursuant to Rule 462(d)
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. [_] _
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
JURISDICTION PRIMARY
OF IRS STANDARD
INCORPORATION EMPLOYER INDUSTRIAL
OR IDENTIFICATION CLASSIFICATION
EXACT NAME OF ADDITIONAL REGISTRANTS* ORGANIZATION NUMBER NUMBER
------------------------------------- ------------- -------------- --------------
Gateway Eastern Railway Company..... Illinois 37-1301047 4011
Mid-South Microwave, Inc............ Delaware 43-1422644 7359
PABTEX GP, LLC...................... Texas 43-1915234 4013
PABTEX, L.P......................... Delaware 43-0909361 4013
Rice-Carden Corporation............. Missouri 44-6011041 6512
SIS Bulk Holding, Inc............... Delaware 43-1915233 4013
Southern Development Company........ Missouri 44-6005843 6512
Southern Industrial Services, Inc... Delaware 36-3499535 6719
Trans-Serve, Inc.................... Delaware 43-0865086 2491
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*The address for each of the additional registrants is c/o Kansas City
Southern, 427 West 12th Street, Kansas City, Missouri 64105.
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EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement is being filed solely for
the purpose of filing exhibits to the Registration Statement, and no changes or
additions are being made hereby to the preliminary prospectus which forms part
of the Registration Statement. Accordingly, the preliminary prospectus has been
omitted from this filing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
REGISTRANTS INCORPORATED OR ORGANIZED UNDER DELAWARE LAW
KCS, SIS Bulk Holding, Inc., PABTEX, L.P., Mid-South Microwave, Inc.,
Southern Industrial Services, Inc. and Trans-Serve, Inc. are each incorporated
or organized under the laws of the State of Delaware. Section 145 of the
General Corporation Law of the State of Delaware (the "Delaware Statute")
provides that a Delaware corporation may indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), other than an action by or in the right of such corporation, by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise (an "indemnified capacity"). The indemnity may include expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was illegal. Similar provisions apply to actions
brought by or in the right of the corporation, except that no indemnification
shall be made without judicial approval if the officer or director is adjudged
to be liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred. Section 145 of the Delaware
Statute further authorizes a corporation to purchase and maintain insurance on
behalf of any indemnified person against any liability asserted against him and
incurred by him in any indemnified capacity, or arising out of his status as
such, regardless of whether the corporation would otherwise have the power to
indemnify him under the Delaware Statute.
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act
provides that, subject to such standards and restrictions as may be set forth
in the partnership agreement, a limited partnership has the power to indemnify
any partner or other person from and against any and all claims and demands
whatsoever.
The bylaws of KCS provide that each person who, at any time is, or shall
have been, a director, officer, employee or agent of KCS, and is threatened to
be or is made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is, or was, a director, officer, employee or agent of KCS,
or served at the request of KCS as a director, officer, employee, trustee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall be indemnified against expense (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with any such action, suit or proceeding to the
full extent provided under Section 145 of the Delaware Statute.
The bylaws of Mid-South Microwave, Inc. provide that it has the power to
indemnify to the full extent authorized by law any person made or threatened to
be made a party to any action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he, his testator or
intestate is or was a director, officer or employee of the corporation or any
predecessor of the corporation or serves or served any other enterprise as
director, officer or employee at the request of the corporation or any
predecessor of the corporation.
The certificate of incorporation and bylaws of Southern Industrial Services,
Inc. provide that each person who, at any time is, or shall have been, a
director, officer, employee or agent of the corporation, and who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is, or was, a director,
officer, employee or agent of the corporation, or served at the request of the
corporation as a director, officer, employee,
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trustee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall be indemnified against expense (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with any such action, suit or proceeding to the
full extent provided under Section 145 of the Delaware Statute. The certificate
of incorporation provides that the right to indemnification is a contractual
right and includes the right to be paid by the corporation for expenses
incurred in defending any such proceeding in advance of its final disposition
upon delivery to the corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it is determined
ultimately that such director or officer is not entitled to be indemnified.
The certificate of incorporation of SIS Bulk Holding, Inc. provides that the
corporation shall, to the fullest extent permitted by law, indemnify any and
all officers and directors of the corporation, and may, to the fullest extent
permitted by law or to such lesser extent as is determined in the discretion of
the corporation's Board of Directors, indemnify and advance expenses to any and
all other persons whom it shall have power to indemnify, from and against all
expenses, liabilities or other matters arising out of their status as such or
their acts, omissions or services rendered in such capacities. The certificate
of incorporation further provides that the corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against him and incurred by him in such capacity, or arising
out of his status as such, whether or not the corporation would have the power
to indemnify him against such liability.
The certificate of incorporation of each of KCS, Southern Industrial
Services, Inc. and SIS Bulk Holding, Inc. provides that to the fullest extent
permitted by the Delaware Statute and any amendments thereto, no director of
the corporation shall be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
The Agreement of Limited Partnership (the "Partnership Agreement") of
PABTEX, L.P. provides that the partnership, its receiver or its trustee shall
indemnify and pay all judgments and claims against the general partner and its
representatives relating to any liability or damage incurred by reason of any
act performed or omitted to be performed by the general partner and its
representatives in connection with the business of the partnership, including
attorneys' fees incurred by the general partner and its representatives in
connection with the defense of any action based on any such act or omission,
which attorneys' fees may be paid as incurred, including all liabilities under
federal and state securities laws (including the Securities Act) as permitted
by law. The Partnership Agreement further provides that in the event of any
action by the limited partner against the general partner and/or its
representatives, including a partnership derivative suit, the partnership shall
indemnify and pay all expenses of the general partner and its representatives,
including attorneys' fees incurred in the defense of such action, if the
general partner and its representatives are successful in such action. In
addition, the Partnership Agreement provides that the partnership shall
indemnify and pay all expenses, costs or liabilities of the general partner and
its representatives who for the benefit of the partnership makes any deposit,
acquires any option, or makes any other similar payment or assumes any
obligation in connection with any property proposed to be acquired by the
partnership and who suffers any financial loss as the result of such action.
Notwithstanding the above indemnification provisions, under the Partnership
Agreement, neither the general partner nor any of its representatives is
indemnified from any liability for fraud, bad faith, willful misconduct or
gross negligence.
In addition, KCS has entered into indemnification agreements with its
officers and directors. Those agreements are intended to supplement its officer
and director liability insurance and provide the officers and directors with
specific contractual assurance that the protection provided by its bylaws will
continue to be available regardless of, among other things, an amendment to the
bylaws or a change in management or control of KCS. The indemnification
agreements provide for prompt indemnification to the fullest extent permitted
by law and for the prompt advancement of expenses, including attorneys' fees
and all other costs and expenses incurred in connection with any action, suit
or proceeding in which the director or officer is a witness or other
participant, or to which the director or officer is a party, by reason (in
whole or in part) of service in certain
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capacities. Under the indemnification agreements, KCS's determinations of
indemnity are made by a committee of disinterested directors unless a change in
control of KCS has occurred, in which case the determination is made by special
independent counsel. The indemnification agreements also provide a mechanism to
seek court relief if indemnification or expense advances are denied or not
received within specified periods. Indemnification and advancement of expenses
would also be provided in connection with court proceedings initiated to
determine rights under the indemnification agreements and certain other matters.
REGISTRANTS INCORPORATED UNDER MISSOURI LAW
KCSR, Rice-Carden Corporation and Southern Development Company are each
incorporated under the laws of the State of Missouri. Section 351.355 of the
General and Business Corporation Law of Missouri (the "Missouri Statute")
provides that a Missouri corporation may indemnify any person who was or is a
party or is threatened to be made a party to any proceeding, other than an
action by or in the right of the corporation, by reason of the fact that he is
or was serving in an indemnified capacity against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Similar provisions apply to actions brought by or in the right of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person has been found liable for
negligence or misconduct in the performance of his duty to the corporation
unless and only to the extent that the court in which the action or suit was
brought determines upon application that, despite the finding of liability and
in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper. Where an officer or director is successful on the merits or otherwise
in defense of any proceeding referred to above, the corporation must indemnify
him against the expenses which he has actually and reasonably incurred.
The Missouri Statute further provides that its provisions concerning
indemnification are not exclusive of any other rights to which a person seeking
indemnification may be entitled under a corporation's articles of incorporation
or bylaws or any agreement, vote of shareholders or disinterested directors or
otherwise. In addition, the Missouri Statute authorizes a corporation to
purchase and maintain insurance on behalf of any person who is or was serving
in an indemnified capacity against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
regardless of whether the corporation would otherwise have the power to
indemnify him under the Missouri Statute.
The Articles of Association of KCSR, as amended, provide that the
corporation shall indemnify each of its directors and officers to the full
extent permitted by the Missouri Statute and, in addition, shall indemnify each
of them against all expenses (including without limitation all attorneys' fees,
judgments, fines and amounts paid in settlement) incurred by any of them in
connection with any claim (including without limitation any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether or not by or in the right of the
corporation) by reason of the fact that they are or were serving the
corporation or at the request of the corporation in any of the capacities
referred to in the Missouri Statute or arising out of their status in any such
capacity, provided that the corporation shall not indemnify any person from or
on account of such person's conduct which was finally adjudged to have been
knowingly fraudulent, deliberately dishonest or willful misconduct. Such
Articles of Association further provide that the corporation may, as it deems
appropriate and as may be permitted by the Missouri Statute, indemnify any
other person referred to in the Missouri Statute against any such expenses
incurred by him in connection with any such claim by reason of the fact that
they are or were serving the corporation or at the request of the corporation
in any of such capacities or arising out of their status in any such capacity.
In addition, such Articles of Association authorize the corporation to give or
supplement any of the above indemnifications by by-law, agreement or otherwise
and fund them by insurance to the extent it deems appropriate and provides that
such indemnification of officers and directors will survive elimination or
modification of such Articles with respect to any such expenses incurred in
connection with claims arising out of the acts or omissions occurring prior to
such
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elimination or modification and persons to whom such indemnification is given
shall be entitled to rely upon such indemnification as a contract with the
corporation.
The by-laws of KCSR provide that each person who at any time is, or shall
have been, a director, officer, employee or agent of the corporation, and is
threatened to be or is made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is, or was, serving in such
capacity, or served at the request of the corporation in such capacity of
another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with any such action, suit or proceeding to the full extent provided
under the Missouri Statute.
REGISTRANT INCORPORATED UNDER ILLINOIS LAW
Gateway Eastern Railway Company is incorporated under the laws of the State
of Illinois. Section 8.75 of Illinois' Business Corporation Act of 1983 (the
"Illinois Statute") provides that an Illinois corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
proceeding, other than an action by or in the right of the corporation, by
reason of the fact that he or she is or was serving in an indemnified capacity
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection
with such proceeding if such person acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Similar provisions
apply to actions brought by or in the right of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person has been found liable to the corporation, unless, and only to
the extent that the court in which the action or suit was brought determines
upon application that, despite the finding of liability and in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper. Where an officer,
director, employee or agent is successful on the merits or otherwise in defense
of any proceeding referred to above, the corporation must indemnify such person
against the expenses actually and reasonably incurred by such person.
The Illinois Statute further provides that its provisions concerning
indemnification are not exclusive of any other rights to which a person seeking
indemnification may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
such office. In addition, the Illinois Statute authorizes a corporation to
purchase and maintain insurance on behalf of any person who is or was serving
in an indemnified capacity against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of his or her
status as such, regardless of whether the corporation would otherwise have the
power to indemnify such person under the Illinois Statute.
The By-laws of Gateway Eastern Railway Company provide that the corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement reasonably incurred by him in connection with the action, suit or
proceeding, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. Such By-laws contain similar provisions with
respect to actions brought by or in the right of the corporation, except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person has been found liable for negligence or misconduct in the
performance of his duty to the corporation, except to the extent the court in
which the action or suit was brought determines upon application
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that, despite the finding of liability but in view of all the circumstances of
the case, that person is fairly and reasonably entitled to indemnity for those
expenses which the court determines proper. Such By-laws also provide that to
the extent an officer, director, employee or agent is successful on the merits
or otherwise in defense of any proceeding referred to above, the corporation
must indemnify him against the expenses actually and reasonably incurred by
him, and to the extent such person is not successful in such defense, he may be
indemnified against expenses (including attorneys' fees) reasonably incurred by
him in connection with the action, suit or proceeding, if authorized by (a) the
board of directors by a majority vote of a quorum consisting of directors who
were not party to the action, suit or proceeding, or (b) if that quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (c) by the
shareholders. In addition, such By-laws provide for advancement of expenses
prior to the final disposition of the action, suit or proceeding, as authorized
by the board of directors in a specific case, upon receipt of an undertaking by
or on behalf of the director, officer employee or agent to repay the amount,
unless it is ultimately determined that he is entitled to indemnification by
the corporation as authorized by such By-laws. Such By-laws further provide
that the indemnification provided for in such By-laws is not exclusive of any
other rights to which a person seeking indemnification may be entitled under
any bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action
in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of that person.
Such By-laws also provide that the corporation may purchase and maintain
insurance on behalf of any person who is or was serving in an indemnified
capacity against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of his or her status as such,
regardless of whether the corporation would otherwise have the power to
indemnify such person under such By-laws.
REGISTRANTS ORGANIZED UNDER TEXAS LAW
PABTEX GP, LLC is organized under the laws of the State of Texas. Section
2.20 of the Texas Limited Liability Company Act ("TLLCA") provides that,
subject to such standards and restrictions, if any, as are set forth in its
articles of organization or in its regulations, a limited liability company has
the power to indemnify managers, officers and other persons and purchase and
maintain liability insurance for such persons. Section 2.01 of the TLLCA
provides in pertinent part that each limited liability company shall have the
power provided for a corporation under the Texas Business Corporation Act
("TBCA").
The TBCA provides that a corporation may indemnify a person who was, or is
threatened to be made a named defendant or respondent in a proceeding because
the person is or was a director only if it is determined in the manner set
forth in the statute that the person conducted himself in good faith;
reasonably believed, in the case of conduct in his official capacity as a
director of the corporation, that his conduct was in the corporation's best
interests, and in all other cases, that his conduct was at least not opposed to
the corporation's best interests; and in the case of any criminal proceeding,
had no reasonable cause to believe his conduct was unlawful. Under the TBCA,
except as described below, a director may not be indemnified in respect of a
proceeding in which the person is found liable on the basis that he improperly
received personal benefit or in which the person is found liable to the
corporation. A person may be indemnified under the TBCA against judgments,
penalties (including excise and similar taxes), fines, settlements, and
reasonable expenses actually incurred by the person in connection with the
proceeding; but if the person is found liable to the corporation or is found
liable on the basis that personal benefit was improperly derived by the person,
the indemnification is limited to reasonable expenses actually incurred by the
person in connection with the proceeding and shall not be made in respect of
any proceeding in which the person shall have been found liable for willful or
intentional misconduct in the performance of his duty to the corporation. The
TBCA further provides that a corporation shall indemnify a director or officer
against reasonable expenses incurred by him in connection with a proceeding in
which he is named a defendant or respondent because he is or was a director or
officer if he has been wholly successful, on the merits or otherwise, in the
defense of the proceeding. A corporation may pay or reimburse reasonable
expenses incurred by a director in advance of the final disposition of a
proceeding and without the determination of indemnification or authorization of
indemnification required by the statute if the corporation receives a written
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affirmation by the director of his good faith belief that he has met the
standard of conduct necessary for indemnification under the TBCA and a written
undertaking by or on behalf of the director to repay the amount
advanced if it is ultimately determined that he has not met the standard or
that indemnification of such person against such expenses is prohibited by the
TBCA. A provision in the corporation's articles of organization, bylaws, a
resolution of shareholders or directors, or an agreement that makes mandatory
the advancement of such expenses is deemed to constitute authorization of the
advancement of such expenses. A corporation may indemnify and advance expenses
to an officer, employee or agent of the corporation, or to persons who are or
were serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic corporation, employee benefit plan, other
enterprise, or other entity, to the same extent that it may indemnify and
advance expenses to directors, and to such further extent, consistent with law,
as may be provided by its articles of incorporation, bylaws, general or
specific action of its board of directors, or contract or as permitted or
required by common law. In addition, under the TBCA, a corporation may purchase
and maintain insurance or another arrangement on behalf of any such any person
serving in any such indemnified capacity against any liability asserted against
him and incurred by him in such a capacity or arising out of his status as such
a person, whether or not the corporation would have the power to indemnify him
against that liability under the TBCA, however, if the insurance or other
arrangement is with a person or entity that is not regularly engaged in the
business of providing insurance coverage, the insurance or arrangement may
provide for payment of a liability with respect to which the corporation would
not have the power to indemnify the person only if including coverage for the
additional liability has been approved by the shareholders of the corporation.
The TBCA further provides that the articles of incorporation of a corporation
may restrict the circumstances under which the corporation is required or
permitted to indemnify a person under certain sections of the TBCA.
The Articles of Organization of PABTEX GP, LLC provide that the company
shall indemnify any person who was, is, or is threatened to be made a named
defendant or respondent in a proceeding because the person (i) is or was a
member or officer of the company or (ii) while a member or officer of the
company, is or was serving at the request of the company as a director,
manager, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan, or other
enterprise, to the fullest extent that a limited liability company may grant
indemnification to a member under the TLLCA and the TBCA. Such Articles further
provide that such right is a contract right and runs to the benefit of any
member or officer who is elected and accepts the position of member or officer
of the company or elects to continue to serve as a member or officer of the
company while the Article covering indemnification is in effect. Such right
includes the right to be paid or reimbursed by the company for expenses
incurred in defending any such proceeding in advance of its final disposition
to the maximum extent permitted under the TLLCA and the TBCA. If a claim for
indemnification or advancement of expenses is not paid in full by the company
within 90 days after a written claim has been received by the company, the
claimant may at any time thereafter bring suit against the company to recover
the unpaid amount of the claim, and if successful in whole or in part, the
claimant is entitled to be paid also the expenses of prosecuting such claim.
Under such Articles, the company may additionally indemnify any person covered
by the grant of mandatory indemnification set forth above to such further
extent as is permitted by law and may indemnify any other person to the fullest
extent permitted by law. To the extent permitted by then applicable law, the
grant of mandatory indemnification to any person as set forth above extends to
proceedings involving the negligence of such person. As used in such Articles
and in the TBCA, the term "proceeding" is defined as any threatened, pending or
completed action, suit or proceeding, whether civil or criminal,
administrative, arbitrative or investigative, any appeal in such an action,
suit or proceeding, and any inquiry or investigation that could lead to such an
action, suit or proceeding.
The Regulations of PABTEX GP, LLC provide that, subject to the limitations
and conditions described below, each person who was or is made a party or is
threatened to be made a party to or is involved in any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative, or any appeal in such an action, suit or
proceeding, by reason of the fact that such person is or was a member of the
company or while such member of the company is or was serving at the request of
the
II-6
company as a member, manager, director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another foreign or domestic
limited liability company, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise shall be
indemnified by the company to the fullest extent permitted by the TLLCA against
judgments, penalties (including excise and similar taxes and punitive damages),
fines, settlements and reasonable expenses (including attorneys' fees) actually
incurred by such person in connection with such action, suit or proceeding. The
Regulations further provide that such indemnification rights are contract
rights and it is expressly acknowledged that the indemnification provided in
the Regulations could involve indemnification for negligence or under theories
of strict liabilities.
The Regulations further provide that the company shall indemnify and advance
expenses to an officer of the company to the extent required to do so by the
TLLCA or other applicable law. The company, by adoption of a resolution of the
member, may indemnify and advance expenses to an officer, employee or agent of
the company to the same extent and subject to the same conditions under which
it may indemnify and advance expenses to the member, and may indemnify and
advance expenses to persons who are or were serving at the request of the
company as a member, manager, director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another foreign or domestic
limited liability company, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise against any
liability asserted against such person and incurred by such person in such a
capacity arising out of its status as such a person to the same extent that the
company may indemnify and advance expenses to the member.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
EXHIBIT NO. DESCRIPTION
----------- -----------
1.1+ Placement Agreement dated June 5, 2002, is attached hereto as Exhibit 1.1
3.1+ Restated Certificate of Incorporation of Kansas City Southern (the "Company"), as amended
is attached hereto as Exhibit 3.1
3.2 By-Laws of the Company, as amended and restated to May 2, 2002, which is attached as
Exhibit 3.2 to the Company's Form 10-Q for the quarterly period ended March 31, 2002
(Commission File Number 1-4717), is hereby incorporated by reference as Exhibit 3.2
3.3 Articles of Association of The Kansas City Southern Railway Company, ("KCSR"), a
Missouri corporation, which is attached as Exhibit 3.3 to the Company's Registration
Statement on Form S-4 originally filed January 25, 2001 (Registration No. 333-54262), as
amended and declared effective on March 15, 2001 (the "S-4 Registration Statement"), and
is hereby incorporated by reference as Exhibit 3.3
3.4 By-Laws of KCSR, which is attached as Exhibit 3.4 to the Company's S-4 Registration
Statement (Registration No. 333-54262), and is hereby incorporated by reference as Exhibit
3.4
3.5 Articles of Incorporation of Gateway Eastern Railway Company, an Illinois corporation,
which is attached as Exhibit 3.5 to the Company's S-4 Registration Statement (Registration
No. 333-54262), and is hereby incorporated by reference as Exhibit 3.5
3.6 By-Laws of Gateway Eastern Railway Company, which is attached as Exhibit 3.6 to the
Company's S-4 Registration Statement (Registration No. 333-54262), and is hereby
incorporated by reference as Exhibit 3.6
3.7 Certificate of Incorporation of Mid-South Microwave, Inc., as corrected, which is attached
as Exhibit 3.11 to the Company's S-4 Registration Statement (Registration No. 333-54262),
and is hereby incorporated by reference as Exhibit 3.7
3.8 By-Laws of Mid-South Microwave, Inc., which is attached as Exhibit 3.12 to the
Company's S-4 Registration Statement (Registration No. 333-54262), and is hereby
incorporated by reference as Exhibit 3.8
II-7
EXHIBIT NO. DESCRIPTION
----------- -----------
3.9 Articles of Incorporation of Rice-Carden Corporation, a Missouri corporation, which is
attached as Exhibit 3.13 to the Company's S-4 Registration Statement (Registration
No. 333-54262), and is hereby incorporated by reference as Exhibit 3.9
3.10 By-Laws of Rice-Carden Corporation, which is attached as Exhibit 3.14 to the Company's
S-4 Registration Statement (Registration No. 333-54262), and is hereby incorporated by
reference as Exhibit 3.10
3.11 Articles of Incorporation of Southern Development Company, a Missouri corporation,
which is attached as Exhibit 3.15 to the Company's S-4 Registration Statement (Registration
No. 333-54262), and is hereby incorporated by reference as Exhibit 3.11
3.12 By-Laws of Southern Development Company, which is attached as Exhibit 3.16 to the
Company's S-4 Registration Statement (Registration No. 333-54262), and is hereby
incorporated by reference as Exhibit 3.12
3.13 Certificate of Incorporation of Southern Industrial Services, Inc., as amended, which is
attached as Exhibit 3.17 to the Company's S-4 Registration Statement (Registration
No. 333-54262), and is hereby incorporated by reference as Exhibit 3.13
3.14 By-Laws of Southern Industrial Services, Inc., which is attached as Exhibit 3.18 to the
Company's S-4 Registration Statement (Registration No. 333-54262), and is hereby
incorporated by reference as Exhibit 3.14
3.15 Certificate of Incorporation of Trans-Serve, Inc., which is attached as Exhibit 3.19 to the
Company's S-4 Registration Statement (Registration No. 333-54262), and is hereby
incorporated by reference as Exhibit 3.15
3.16 By-Laws of Trans-Serve, Inc., which is attached as Exhibit 3.20 to the Company's S-4
Registration Statement (Registration No. 333-54262), and is hereby incorporated by
reference as Exhibit 3.16
3.17 Certificate of Incorporation of SIS Bulk Holding, Inc., which is attached as Exhibit 3.21 to
the Company's S-4 Registration Statement (Registration No. 333-54262), and is hereby
incorporated by reference as Exhibit 3.17
3.18 By-Laws of SIS Bulk Holding, Inc., which is attached as Exhibit 3.22 to the Company's S-4
Registration Statement (Registration No. 333-54262), and is hereby incorporated by
reference as Exhibit 3.18
3.19 Certificate of Conversion of Global Terminaling Services, Inc. into PABTEX, L.P., which is
attached as Exhibit 3.23 to the Company's S-4 Registration Statement (Registration
No. 333-54262), and is hereby incorporated by reference as Exhibit 3.19
3.20 Certificate of Limited Partnership of PABTEX, L.P., which is attached as Exhibit 3.24 to the
Company's S-4 Registration Statement (Registration No. 333-54262), and is hereby
incorporated by reference as Exhibit 3.20
3.21 Agreement of Limited Partnership of PABTEX, L.P., which is attached as Exhibit 3.25 to
the Company's S-4 Registration Statement (Registration No. 333-54262), and is hereby
incorporated by reference as Exhibit 3.21
3.21.1 First Amendment to Limited Partnership Agreement of PABTEX, L.P., which is attached as
Exhibit 3.25.1 to the Company's Form S-4A originally filed March 15, 2001, Registration
Statement (Registration No. 333-54626 (the "S-4A Registration Statement")), and is hereby
incorporated by reference as Exhibit 3.21.1
3.22 Articles of Organization of PABTEX GP, LLC, which is attached as Exhibit 3.26 to the
Company's S-4 Registration Statement (Registration No. 333-54262), and is hereby
incorporated by reference as Exhibit 3.22
II-8
EXHIBIT NO. DESCRIPTION
----------- -----------
3.23 Regulations of PABTEX GP, LLC, which is attached as Exhibit 3.27 to the Company's S-4
Registration Statement (Registration No. 333-54262), and is hereby incorporated by
reference as Exhibit 3.23
3.23.1 First Amendment to Regulations of PABTEX GP, LLC, which is attached as Exhibit 3.27.1
to the Company's S-4/A Registration Statement (Registration No. 333-54262), and is hereby
incorporated by reference as Exhibit 3.23.1
4.1+ Indenture, dated June 12, 2002, among the Company, the Guarantors and U.S. Bank
National Association, as Trustee, is attached hereto as Exhibit 4.1
4.2+ Form of Face of Exchange Security, included as Exhibit B to Exhibit 4-1, is attached hereto
as Exhibit 4.2
4.3+ Registration Rights Agreement dated as of June 5, 2002, among the Company, the
Guarantors and the Initial Purchasers, is attached hereto as Exhibit 4.3
4.4 Indenture, dated September 27, 2000, among the Company, KCSR, certain other
subsidiaries of the Company, and The Bank of New York, as trustee (the "2000 Indenture")
which is attached as Exhibit 4.1 to the Company's S-4 Registration Statement (Registration
No. 333-54262) is hereby incorporated by reference as Exhibit 4.4
4.4.1 Supplemental Indenture, dated January 29, 2001, to the 2000 Indenture, among the
Company, KCSR, certain other subsidiaries of the Company, and The Bank of New York, as
trustee, which is attached as Exhibit 4.1.1 to the Company's S-4 Registration Statement
(Registration No. 333-54262) is hereby incorporated by reference as Exhibit 4.4.1
4.5 The Indenture, dated July 1, 1992 between the Company. and The Chase Manhattan Bank
(the "1992 Indenture"), which is attached as Exhibit 4 to KCS's Shelf Registration of $300
million of Debt Securities on Form S-3 filed June 19, 1992 (Commission File
No. 33-47198) and as Exhibit 4(a) to the Company's Form S-3 filed March 29, 1993
(Commission File No. 33-60192) registering $200 million of Debt Securities, is hereby
incorporated by reference as Exhibit 4.5
4.5.1 Supplemental Indenture, dated December 17, 1999 to the 1992 Indenture with respect to the
6.625% Notes Due March 1. 2005 issued pursuant to the 1992 Indenture, which is attached
as Exhibit 4.5.2 to KCS's Form 10-K for the year ended December 31, 1999 (Commission
File No. 1-4717), is hereby incorporated by reference as Exhibit 4.5.1
4.5.2 Supplemental Indenture, dated December 17, 1999 to the 1992 Indenture with respect to the
7% Debentures Due December 15, 2025 issued pursuant to the 1992 Indenture, which is
attached as Exhibit 4.5.4 to KCS's Form 10-K for the year ended December 31, 1999
(Commission File No. 1-4717), is hereby incorporated by reference as Exhibit 4.5.2
4.6 Stockholder Rights Agreement, dated September 19, 1995, by and between the Company
and Harris Trust and Savings Bank, which is attached as Exhibit 99 to the Company's Form
8-A dated October 24, 1995 (Commission File No. 1-4717), and is hereby incorporated by
reference as Exhibit 4.6
5.1 Opinion of Sonnenschein Nath & Rosenthal regarding the validity of the securities offered
8.1 Opinion of Sonnenschein Nath & Rosenthal regarding federal income tax consequences
10.1 Form of Director Indemnification Agreement, which is attached as Exhibit 10.2 to the
Company's Form 10-K for the year ended December 31, 2001 (Commission File
No. 1-4717), is hereby incorporated by reference as Exhibit 10.1
10.2 Form of Officer Indemnification Agreement, which is attached as Exhibit 10.1 to the
Company's Form 10-K for the year ended December 31, 2001 (Commission File
No. 1-4717), is hereby incorporated by reference as Exhibit 10.2
II-9
EXHIBIT NO. DESCRIPTION
----------- -----------
10.3 The 1992 Indenture, which is incorporated by reference as Exhibit 4.5 hereto, is hereby
incorporated by reference as Exhibit 10.3
10.3.1 Supplemental Indenture, dated December 17, 1999 to the 1992 Indenture with respect to the
6.625% Notes Due March 1, 2005 issued pursuant to the 1992 Indenture, which is
incorporated by reference as Exhibit 4.5.2 hereto, is hereby incorporated by reference as
Exhibit 10.3.1
10.3.2 Supplemental Indenture dated December 17, 1999 to the 1992 Indenture with respect to the
7% Debentures Due December 15, 2025 issued pursuant to the 1992 Indenture, which is
incorporated by reference as Exhibit 4.5.4 hereto, is hereby incorporated by reference as
Exhibit 10.3.2
10.4 The Kansas City Southern Railway Company Directors' Deferred Fee Plan, as adopted
August 20, 1982 and the amendment thereto effective March 19, 1997 to such plan, which is
attached as Exhibit 10.1 to the Company's Form 10-Q for the period ended March 31, 1997
(Commission File No. 1-4717), is hereby incorporated by reference as Exhibit 10.4
10.5 Description of the Company's 1991 incentive compensation plan, which is attached as
Exhibit 10.4 to the Company's Form 10-K for the year ended December 31, 1990
(Commission File No. 1-4717), is hereby incorporated by reference as Exhibit 10.5
10.6+ Amendment and Restatement Agreement dated June 12, 2002, among the Company, KCSR
and the lenders named therein, together with the Amended and Restated Credit Agreement
dated June 12, 2002 among the Company, KCSR and the lenders named therein attached
thereto as Exhibit A, is attached hereto as Exhibit 10.6.
10.6.1+ Reaffirmation Agreement dated June 12, 2002 among the Company, KCSR and JP Morgan
Chase Bank, is attached hereto as Exhibit 10.6.1
10.6.2+ Master Assignment and Acceptance dated June 12, 2002, among the Company, KCSR and
the lenders named therein, is attached hereto as Exhibit 10.6.2
10.7 Tax Disaffiliation Agreement, dated October 23, 1995, by and between the Company and
DST Systems, Inc., which is attached as Exhibit 10.8 to the Company's S-4 Registration
Statement (Registration No. 333-54262), and is hereby incorporated by reference as Exhibit
10.7
10.8 Kansas City Southern Industries, Inc. 401(k) and Profit Sharing Plan, which is attached as
Exhibit 4.8 to the Company's Form S-8 filed on December 14, 2000 (Registration
No. 333-51854), is hereby incorporated by reference as Exhibit 10.8
10.9 Assignment, Consent and Acceptance Agreement, dated August 10, 1999, by and among the
Company, DST Systems, Inc., and Stilwell Financial, Inc., which is attached as
Exhibit 10.10 to the Company's S-4 Registration Statement (Registration No. 333-54262),
and is hereby incorporated by reference as Exhibit 10.9
10.10+ Directors Deferred Fee Plan, adopted August 20, 1982, amended and restated June 1, 2002,
is attached hereto as Exhibit 10.10
10.11 Kansas City Southern Industries, Inc. 1991 Amended and Restated Stock Option and
Performance Award Plan, as amended and restated effective as of February 27, 2001, which
is attached as Exhibit 4.4 to the Company's Form S-8 filed on April 4, 2001 (Registration
No. 333-58250), is hereby incorporated by reference as Exhibit 10.11
10.12 Employment Agreement, as amended and restated January 1, 2001, by and among the
Company, KCSR and Michael R. Haverty, which is attached as Exhibit 10.12 to the
Company's Form 10-K for the year ended December 31, 2001 (Commission File
No. 1-4717), is hereby incorporated by reference as Exhibit 10.12
II-10
EXHIBIT NO. DESCRIPTION
----------- -----------
10.13 Employment Agreement, dated January 1, 1999, by and among the Company, KCSR and
Gerald K. Davies, which is attached as Exhibit 10.14 to the Company's S-4 Registration
Statement (Registration No. 333-54262), is hereby incorporated by reference as
Exhibit 10.13
10.13.1 Amendment to Employment Agreement, dated as of January 1, 2001, by and among the
Company, KCSR and Gerald K. Davies, which is attached as Exhibit 10.13.1 to the
Company's Form 10-K for the year ended December 31, 2001 (Commission File
No. 1-4717), is hereby incorporated by reference as Exhibit 10.13.1
10.14 Employment Agreement, as amended and restated January 1, 2001, by and between the
Company and Robert H. Berry, which is attached as Exhibit 10.14 to the Company's Form
10-K for the year ended December 31, 2001 (Commission File No. 1-4717), is hereby
incorporated by reference as Exhibit 10.14
10.15 Employment Agreement, dated August 1, 2001, as amended by the Amendment to
Employment Agreement dated August 1, 2001, by and among the Company, KCSR and
William J. Pinamont, which is attached as Exhibit 10.16 to the Company's Form 10-K for
the year ended December 31, 2001 (Commission File No. 1-4717), is hereby incorporated
by reference as Exhibit 10.15
10.16 Employment Agreement, as amended and restated effective as of January 1, 2001 between
the Company, KCSR and Albert W. Rees, which is attached as Exhibit 10.15 to the
Company's Form 10-K for the year ended December 31, 2001 (Commission File
No. 1-4717), is hereby incorporated by reference as Exhibit 10.16
10.17+ Employment Agreement, dated June 1, 2002, by and between the Company, KCSR and
Ronald G. Russ, is attached hereto as Exhibit 10.17
10.18 Kansas City Southern Industries, Inc. Executive Plan, as amended and restated effective
November 17, 1998, which is attached as Exhibit 10.18 to the Company's Form 10-K for
the year ended December 31, 1998 (Commission File No. 1-4717), is hereby incorporated
by reference as Exhibit 10.18
10.19 The 2000 Indenture (See Exhibit 4.4)
10.20.1 Supplemental Indenture, dated January 29, 2001, to the 2000 Indenture (Exhibit 4.4.1)
10.21 Intercompany Agreement, dated August 16, 1999, between the Company and Stilwell
Financial Inc., which is attached as Exhibit 10.23 to the Company's S-4 Registration
Statement (Registration No. 333-54262), is hereby incorporated by reference as
Exhibit 10.21
10.22 Tax Disaffiliation Agreement, dated August 16, 1999, between the Company and Stilwell
Financial Inc., which is attached as Exhibit 10.24 to the Company's S-4 Registration
Statement (Registration No. 333-54262), is hereby incorporated by reference as
Exhibit 10.22
10.23 Pledge Agreement, dated January 11, 2000, among the Company, KCSR, the subsidiary
pledgors party thereto and the Chase Manhattan Bank, as Collateral Agent (the "Pledge
Agreement"), which is attached as Exhibit 10.25 to the Company's S-4/A Registration
Statement (Registration No. 333-54262), is hereby incorporated by reference as
Exhibit 10.23
10.24 Guarantee Agreement, dated January 11, 2000, among the Company, the subsidiary guarantors
party thereto and The Chase Manhattan Bank, as Collateral Agent (the "Guarantee
Agreement"), which is attached as Exhibit 10.26 to the Company's S-4/A Registration
Statement (Registration No. 333-54262), is hereby incorporated by reference as Exhibit 10.24
II-11
EXHIBIT NO. DESCRIPTION
----------- -----------
10.25 Security Agreement, dated January 11, 2000, among the Company, KCSR, the subsidiary
grantors party thereto and The Chase Manhattan Bank, as Collateral Agent (the "Security
Agreement"), which is attached as Exhibit 10.27 to the Company's S-4A Registration
Statement (Registration No. 333-54262), is hereby incorporated by reference as
Exhibit 10.25
10.26 Indemnity, Subrogation and Contribution Agreement, dated January 11, 2000, among the
Company, KCSR, the subsidiary guarantors party thereto, and The Chase Manhattan Bank,
as Collateral Agent (the "Indemnity, Subrogation and Contribution Agreement"), which is
attached as Exhibit 10.28 to the Company' S-4/A Registration Statement (Registration
No. 333-54262), is hereby incorporated by reference as Exhibit 10.26
10.27 Supplement No. 1, dated January 29, 2001, to the Pledge Agreement, among PABTEX GP,
LLC, SIS BULK HOLDING, INC. and The Chase Manhattan Bank, as Collateral Agent,
which is attached as Exhibit 10.29 to the Company's S-4/A Registration Statement
(Registration No. 333-54262), is hereby incorporated by reference as Exhibit 10.27
10.28 Supplement No. 1, dated January 29, 2001, to the Guarantee Agreement, among PABTEX
GP, LLC, SIS Bulk Holdings, Inc. and The Chase Manhattan Bank, as Collateral Agent,
which is attached as Exhibit 10.30 to the Company's S-4/A Registration Statement
(Registration No. 333-54262), is hereby incorporated by reference as Exhibit 10.28
10.29 Supplement No. 1, dated January 29, 2001, to the Security Agreement, among PABTEX
GP, LLC, SIS Bulk Holdings, Inc. and The Chase Manhattan Bank, as Collateral Agent,
which is attached as Exhibit 10.31 to the Company's S-4/A Registration Statement
(Registration No. 333-54262), is hereby incorporated by reference as Exhibit 10.29
10.30 Supplement No. 1, dated January 29, 2001, to the Indemnity, Subrogation and Contribution
Agreement, among PABTEX GP, LLC, SIS Bulk Holding, inc. and The Chase Manhattan
Bank, as Collateral Agent, which is attached as Exhibit 10.32 to the Company's S-4/A
Registration Statement (Registration No. 333-54262), is hereby incorporated by reference as
Exhibit 10.30
10.31 Lease Agreement, as amended, dated June 26, 2001, between KCSR and Broadway Square
Partners LLP, which is attached as Exhibit 10.34 to the Company's Form 10-K for the
year ended December 31, 2001, is hereby incorporated by reference as Exhibit 10.31
12.1+ Statement Re Computation of Ratios, is attached hereto as Exhibit 12.1
21.1+ Subsidiaries of the Registrants, is attached hereto as Exhibit 21.1
23.1 Consent of KPMG LLP, is attached hereto as Exhibit 23.1
23.2 Consent of PricewaterhouseCoopers LLP, is attached hereto as Exhibit 23.2
23.3 Consent of PricewaterhouseCoopers, S.C., is attached hereto as Exhibit 23.3
23.4 Consent of Sonnenschein Nath & Rosenthal (included in Exhibits 5.1 and 8.1)
24.1+ Powers of Attorney (included on the signature pages)
25.1+ Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939 of
U.S. Bank National Association, is attached hereto as Exhibit 25.1
99.1+ Form of Letter of Transmittal, is attached hereto as Exhibit 99.1
99.2+ Form of Notice of Guaranteed Delivery, is attached hereto as Exhibit 99.2
99.3+ Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees, is attached hereto as Exhibit 99.3
99.4+ Form of Letter to Clients, is attached hereto as Exhibit 99.4
--------
+Previously filed on July 12, 2002 as part of this Registration
Statement.
II-12
(b) FINANCIAL STATEMENT SCHEDULES
No financial statement schedules are required to be filed herewith
pursuant to this Item.
ITEM 22. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the foregoing provisions, or otherwise, the registrants
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer or controlling
person of the registrants 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 registrants 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 and will be governed by the final adjudication of such issue.
The undersigned registrants hereby undertake:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the 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;
(c) 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.
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 exchange offer.
The undersigned registrants hereby undertake to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequently to the effective date of the registration statement through
the date of responding to the request.
The undersigned registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-13
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
KANSAS CITY SOUTHERN
/S/ MICHAEL R. HAVERTY
By: _______________________________
Michael R. Haverty
CHAIRMAN OF THE BOARD OF
DIRECTORS; PRESIDENT AND CHIEF
FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ MICHAEL R. HAVERTY Chairman of the Board of Directors; President and Chief
_______________________ Executive Officer
Michael R. Haverty
* Senior Vice President and Chief Financial Officer
_______________________
Ronald G. Russ
/S/ LOUIS G. VAN HORN Vice President and Comptroller
_______________________
Louis G. Van Horn
* Director
_______________________
Landon H. Rowland
* Director
_______________________
A. Edward Allinson
* Director
_______________________
Michael G. Fitt
* Director
_______________________
James R. Jones
* Director
_______________________
Byron G. Thompson
* Director
_______________________
Rodney E. Slater
/S/ LOUIS G. VAN HORN
*By: __________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-14
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
THE KANSAS CITY SOUTHERN RAILWAY
COMPANY
/S/ MICHAEL R. HAVERTY
By: _______________________________
Michael R. Haverty
CHAIRMAN OF THE BOARD OF
DIRECTORS; PRESIDENT AND CHIEF
FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ MICHAEL R. HAVERTY Chairman of the Board of Directors; President and Chief
_______________________ Executive Officer
Michael R. Haverty
* Senior Vice President and Chief Financial Officer; Director
_______________________
Ronald G. Russ
/S/ LOUIS G. VAN HORN Vice President and Comptroller
_______________________
Louis G. Van Horn
* Director
_______________________
Gerald K. Davies
* Director
_______________________
Warren K. Erdman
* Director
_______________________
Albert W. Rees
/S/ LOUIS G. VAN HORN
*By: __________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-15
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
GATEWAY EASTERN RAILWAY COMPANY
/S/ MICHAEL R. HAVERTY
By: _______________________________
Michael R. Haverty
CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ MICHAEL R. HAVERTY Chairman of the Board and Chief Executive Officer
_______________________
Michael R. Haverty
* President and General Manager; Director
_______________________
Gerald K. Davies
* Vice President and Treasurer (Principal Financial Officer
_______________________ and Accounting Officer)
Paul J. Weyandt
* Director
_______________________
Albert W. Rees
/S/ LOUIS G. VAN HORN
*By: __________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-16
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
SIS BULK HOLDING, INC.
/S/ MICHAEL R. HAVERTY
By: _______________________________
Michael R. Haverty
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ MICHAEL R. HAVERTY President; Director
_______________________
Michael R. Haverty
* Vice President and Treasurer (Principal Financial
_______________________ Officer)
Ronald G. Russ
/S/ LOUIS G. VAN HORN Vice President and Comptroller
_______________________
Louis G. Van Horn
* Director
_______________________
Gerald K. Davies
* Director
_______________________
Warren K. Erdman
/S/ LOUIS G. VAN HORN
*By: __________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-17
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
MID-SOUTH MICROWAVE, INC.
/S/ MICHAEL R. HAVERTY
By: _______________________________
Michael R. Haverty
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ MICHAEL R. HAVERTY President; Director
_______________________
Michael R. Haverty
* Vice President and Treasurer, Director (Principal Financial
_______________________ Officer and Accounting Officer)
Ronald G. Russ
* Director
_______________________
Warren K. Erdman
/S/ LOUIS G. VAN HORN Director
_______________________
Louis G. Van Horn
/S/ LOUIS G. VAN HORN
*By: __________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-18
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
RICE-CARDEN CORPORATION
/S/ MICHAEL R. HAVERTY
By: _______________________________
Michael R. Haverty
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ MICHAEL R. HAVERTY President; Director
_______________________
Michael R. Haverty
* Vice President and Treasurer; Director (Principal Financial
_______________________ Officer)
Ronald G. Russ
/S/ LOUIS G. VAN HORN Vice President and Controller; Director
_______________________
Louis G. Van Horn
* Director
_______________________
Warren K. Erdman
/S/ LOUIS G. VAN HORN
*By: __________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-19
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
SOUTHERN DEVELOPMENT COMPANY
/S/ MICHAEL R. HAVERTY
By: _______________________________
Michael R. Haverty
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ MICHAEL R. HAVERTY President; Director
_______________________
Michael R. Haverty
* Vice President and Treasurer; Director
_______________________ (Principal Financial Officer)
Ronald G. Russ
/S/ LOUIS G. VAN HORN Vice President Director and Comptroller
_______________________
Louis G. Van Horn
* Director
_______________________
Warren K. Erdman
/S/ LOUIS G. VAN HORN
*By: __________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-20
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
SOUTHERN INDUSTRIAL SERVICES, INC.
/S/ MICHAEL R. HAVERTY
By: _______________________________
Michael R. Haverty
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ MICHAEL R. HAVERTY President; Director
_______________________
Michael R. Haverty
* Vice President and Treasurer; Director (Principal Financial
_______________________ Officer and Accounting Officer)
Ronald G. Russ
* Director
_______________________
Warren K. Erdman
/S/ LOUIS G. VAN HORN
*By: __________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-21
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
TRANS-SERVE, INC.
/S/ ALBERT W. REES
By: _______________________________
Albert W. Rees
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ ALBERT W. REES President; Director
______________________
Albert W. Rees
* Vice President and Treasurer; Director
______________________ (Principal Financial Officer)
Ronald G. Russ
/S/ LOUIS G. VAN HORN Vice President and Comptroller
______________________
Louis G. Van Horn
* Director
______________________
Warren K. Erdman
/S/ LOUIS G. VAN HORN
*By: _________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-22
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
PABTEX GP, LLC
By: Southern Industrial Services,
Inc., its sole member
/S/ MICHAEL R. HAVERTY
By: ___________________________
Michael R. Haverty
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ MICHAEL R. HAVERTY President and Director of Southern Industrial Services, Inc.
_______________________
Michael R. Haverty
* Vice President and Treasurer and Director of Southern
_______________________ Industrial Services, Inc.
Ronald G. Russ
* Director of Southern Industrial Services, Inc.
_______________________
Warren K. Erdman
/S/ LOUIS G. VAN HORN
*By: __________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-23
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF KANSAS CITY,
STATE OF MISSOURI, ON JULY 24, 2002.
PABTEX L.P.
By: PABTEX GP, LLC, its General
Partner
By: Southern Industrial
Services, Inc., the sole
member of PABTEX GP, LLC
/S/ MICHAEL R. HAVERTY
By: ___________________________
Michael R. Haverty
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON JULY 24, 2002 BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED.
SIGNATURE TITLE
--------- -----
/S/ MICHAEL R. HAVERTY President and Director of Southern Industrial Services, Inc.
_______________________
Michael R. Haverty
* Vice President and Treasurer and Director of Southern
_______________________ Industrial Services, Inc.
Ronald G. Russ
* Director of Southern Industrial Services, Inc.
_______________________
Warren K. Erdman
/S/ LOUIS G. VAN HORN
*By: __________________
(Louis G. Van Horn, as
ATTORNEY-IN-FACT)
II-24
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
5.1 Opinion of Sonnenschein Nath & Rosenthal regarding the validity of the securities offered
8.1 Opinion of Sonnenschein Nath & Rosenthal regarding federal income tax consequences
23.1 Consent of KPMG LLP, is attached hereto as Exhibit 23.1
23.2 Consent of PricewaterhouseCoopers LLP, is attached hereto as Exhibit 23.2
23.3 Consent of PricewaterhouseCoopers, S.C., is attached hereto as Exhibit 23.3
23.4 Consent of Sonnenschein Nath & Rosenthal (included in Exhibits 5.1 and 8.1)