As filed with the Securities and Exchange Commission on October 28, 2008
Registration No.
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KANSAS CITY SOUTHERN
(Exact Name of Registrant as Specified in its Charter)
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DELAWARE
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44-0663509
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(State of Incorporation)
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(I.R.S. Employer Identification No.)
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427 WEST 12TH STREET
KANSAS CITY, MISSOURI 64105
(Address of Principal Executive Offices)
KANSAS CITY SOUTHERN
2008 STOCK OPTION AND PERFORMANCE AWARD PLAN
(Full Title of the Plan)
BRIAN P. BANKS
427 WEST 12TH STREET
KANSAS CITY, MISSOURI 64105
(816) 983-1382
(Name, Address, and Telephone Number of Agent for Service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company.
See the definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
þ
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Accelerated filer
o
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Non-accelerated filer
o
(Do not check if a smaller reporting company)
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Smaller Reporting Company
o
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CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM
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PROPOSED
MAXIMUM
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TITLE OF SECURITIES TO
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AMOUNT TO
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OFFERING
PRICE
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AGGREGATE
OFFERING
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AMOUNT OF
REGISTRATION
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BE REGISTERED
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BE REGISTERED
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PER SHARE (1)
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PRICE
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FEE (2)
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Common Stock, par value
$.01 per share (2)
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2,300,000 shares
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$26.29
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$60,467,000
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$
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2,377
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(1)
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Estimated pursuant to Rule 457(h)(1) under the Securities Act of 1933 solely for the purposes
of calculating the registration fee, based on the average of the high and low prices of a
share of Common Stock of Kansas City Southern reported for
trading on the New York Stock Exchange on October 24, 2008.
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(2)
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Pursuant to Rule 457(p) under the Securities Act of 1933, the registration fee of $ 2,377 is
offset in full by registration fees previously paid by Kansas City Southern with respect to unsold shares of common stock registered under the Registration Statement on Form S-8
(Registration No. 333-126207) of Kansas City Southern filed with the Securities and Exchange Commission on June 29, 2005.
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(3)
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Pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement also
covers any additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
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TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Part I of this Registration Statement
will be sent or given to eligible employees as specified by Rule 428(b)(1) of the Securities Act of
1933, as amended (the “Securities Act”). Such documents are not required to be and are not filed
with the Securities and Exchange Commission (the “Commission”) either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and
the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part
II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part
II of this Registration Statement (which documents are incorporated by reference in this Section
10(a) Prospectus), other documents required to be delivered to eligible employees pursuant to Rule
428(b) or additional information about the Kansas City Southern 2008 Stock Option and Performance
Award Plan are available without charge by contacting:
Office of the Corporate Secretary
Kansas City Southern
P.O. Box 219335
Kansas City, Missouri 64121
Phone: (816) 983-1237
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Kansas City Southern (the “Registrant”) with the Commission
(File No. 1-4717) are hereby incorporated by reference and made a part of this Registration
Statement:
(a) The Company’s Annual Report on Form 10-K for the year ended December 31, 2007;
(b) The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2008; June
30, 2008 and September 30, 2008;
(c) The Company’s Current Reports on Form 8-K filed March 5, 2008; April 1, 2008; April 18,
2008; May 23, 2008; June 2, 2008; June 12, 2008; July 2, 2008; July 8, 2008; July 16, 2008;
September 15, 2008; September 19, 2008; October 7, 2008 and October 22, 2008;
(d) The Company’s Notice of Annual Meeting and definitive Proxy Statement filed on March 26,
2008 in connection with Company’s 2008 Annual Meeting of Stockholders;
(e) The Company’s definitive Proxy Statement filed on September 5, 2008 in connection with
Company’s Special Meeting of Stockholders held on October 7, 2008; and
(f) The description of the Company’s Common Stock, par value $0.01 per share in the Company’s
Form 8-A filed on May 19, 1986 and any amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 (the “Exchange Act”) after the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration Statement which
indicates that all Common Stock registered hereby has been sold or which deregisters such Common
Stock then remaining unsold shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents (such documents, and
the documents listed above, being hereinafter referred to as “Incorporated Documents”). Any
statement contained in an Incorporated Document shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained herein or in any
other subsequently filed Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law “DGCL”), provides, generally, that a
corporation shall have the power to 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 (other than an
action by or in the right of the corporation) by reason of the fact that such person 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 or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person 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 the person’s conduct was unlawful.
Similar indemnity is authorized for such persons against expenses (including attorneys’ fees)
actually and reasonably incurred by such person in connection with the defense or settlement of any
such threatened, pending or completed action or suit by or in the right of the corporation if
such person acted in good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation, and provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have been adjudged liable to the
corporation. Any such indemnification (unless ordered by a court) may be made only as authorized
in each specific case upon a determination by the stockholders, disinterested directors, committee
of such directors or by independent legal counsel in a written opinion, that indemnification is
proper because the indemnitee has met the applicable standard of conduct. Section 145 of the DGCL
provides that to the extent that a present or former director or officer of a corporation has been
successful on the merits or otherwise in defense of any such action, suit or proceeding, or in
defense of any claim, issue or matter therein, such person shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred by such person in connection
therewith. Expenses (including attorneys’ fees) incurred by an officer or director in defending
any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it is ultimately determined that such person is
not entitled to be indemnified by the corporation as authorized under Section 145 of the DGCL.
Such expenses (including attorneys’ fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as the corporation
deems appropriate. Section 145 of the DGCL also provides that a corporation shall have power to
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 or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity, or arising out of
such person’s status as such, whether or not the corporation would have the power to indemnify such
person against such liability under Section 145 of the DGCL.
The By-laws of the Registrant provide that directors and officers shall be indemnified as
described above in this paragraph to the fullest extent permitted under Section 145 of the
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DGCL. The foregoing right of indemnification shall in no way be exclusive of any other rights of
indemnification to which any such director, officer, employee or agent may be entitled, under any
by-law, agreement, vote of stockholders or disinterested directors or otherwise. Reference is made
to Section 1 of Article IX of the Registrant’s By-laws, certain articles of which are incorporated
by reference as Exhibit 4.2 hereto.
Section 102(b)(7) of the DGCL provides, generally, that the certificate of incorporation may
contain a provision eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision may not eliminate or limit the liability of a director (i) for any
breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
(iii) under section 174 of the DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit. No such provision may eliminate or limit the liability of a director
for any act or omission occurring before the date when such provision becomes effective. As
permitted by the DGCL, the Registrant’s Certificate of Incorporation provides that, to the fullest
extent permitted by the DGCL and any amendments thereto, no director of the Registrant shall be
liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a
director.
In addition, the Registrant 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 the Registrant. 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 capacities. Under the indemnification
agreements, the Registrant’s determinations of indemnity are made by a committee of disinterested
directors unless a change in control of the Registrant 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits are listed in the Exhibit Index of this Registration Statement, which Exhibit
Index is incorporated herein by reference.
Item 9. Undertakings.
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(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the
securities registered hereby, a post-effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this 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 this Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any material
change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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 hereby which remain unsold at the termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of Registrant’s annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers and controlling persons of the Registrant pursuant to the provisions of the
restated certificate of incorporation and by-laws of the Registrant and the provisions of the
Delaware law described under Item 6 above, or otherwise, the Registrant has been advised that in
the opinion of the 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 Registrant of expenses incurred or paid by
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a director, officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
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-8 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Kansas City, Missouri on October 28, 2008.
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KANSAS CITY SOUTHERN
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By:
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/s/ Michael R. Haverty
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Michael R. Haverty
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Chairman of the Board of Directors and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below appoints
Michael Haverty his true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments, to this Registration Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
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.
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SIGNATURE
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TITLE
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DATE
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/s/ Michael R. Haverty
Michael R. Haverty
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Chairman of the Board of
Directors and
Chief
Executive Officer
(principal
executive officer)
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October 28, 2008
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/s/ David L. Starling
David L. Starling
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President and Chief
Operating Officer
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October 28, 2008
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SIGNATURE
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TITLE
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DATE
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/s/ Michael W. Upchurch
Michael W. Upchurch
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Executive Vice President
and
Chief Financial Officer
(principal financial
officer)
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October 27, 2008
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/s/ Michael K. Borrows
Michael K. Borrows
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Senior Vice President and
Chief Accounting Officer
(principal accounting
officer)
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October 27, 2008
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/s/ Henry R. Davis
Henry R. Davis
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Director
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October 24, 2008
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/s/ Robert J. Druten
Robert J. Druten
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Director
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October 27, 2008
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/s/ Terrence P. Dunn
Terrence P. Dunn
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Director
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October 27, 2008
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/s/ James R. Jones
James R. Jones
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Director
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October 24, 2008
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/s/ Thomas A. McDonnell
Thomas A. McDonnell
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Director
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October 27, 2008
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/s/ Karen L. Pletz
Karen L. Pletz
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Director
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October 27, 2008
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/s/ Rodney E. Slater
Rodney E. Slater
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Director
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October 24, 2008
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INDEX TO EXHIBITS
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Exhibit
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Number
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Description of Exhibit
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4.1
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The Fourth, Seventh, Eighth, Eleventh, Twelfth, Thirteenth,
Fourteenth, Fifteenth and Sixteenth paragraphs of the Company’s
Restated Certificate of Incorporation, filed as Exhibit 3.1 to the
Company’s Registration Statement on Form S-4 originally filed
July 12, 2002 (Registration No. 333-92360), as amended and declared
effective on July 30, 2002 (the “2002 S-4 Registration Statement”),
is incorporated herein by reference as Exhibit 4.1.
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4.2
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Article I, Sections 1, 3 and 11 of Article II, Article V and
Article VIII of The Amended and Restated By-Laws of Kansas City
Southern, as amended on January 18, 2007, filed as Exhibit 3.2 to the
Company’s Form 10-K for the fiscal year ended December 31, 2006 (File
No. 1-4717), are incorporated herein by reference as Exhibit 4.2.
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5.1
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Opinion of Sonnenschein Nath & Rosenthal LLP.
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10.1
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Kansas City Southern 2008 Stock Option and Performance Award Plan,
filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K
filed on October 7, 2008 (File No. 1-4717), is incorporated herein by
reference as Exhibit 10.1.
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15.1
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Letter regarding unaudited interim financial information.
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23.1
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Consent of KPMG LLP.
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23.2
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Consent of Sonnenschein Nath & Rosenthal (included in Exhibit 5.1).
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24.1
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Powers of Attorney (included on the signature page of this
Registration Statement).
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EXHIBIT 5.1
[Sonnenschein Nath & Rosenthal LLP Letterhead]
October 28, 2008
Kansas City Southern
427 West 12th Street
Kansas City, Missouri 64105
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Re:
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Registration Statement on Form S-8 in connection with the registration of
2,300,000 shares (the “Shares”) of common stock, $0.01 par value (the
“Common Stock”) of Kansas City Southern that may be issued from time to
time under the 2008 Stock Option and Performance Award Plan (effective as
of October 14, 2008) (the “Plan”).
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Ladies and Gentlemen:
In connection with the preparation of the above-referenced Registration
Statement (the “Registration Statement”), which is being filed on or about the
date of this letter on behalf of Kansas City Southern, a Delaware corporation
(the “Corporation”), you have asked us to provide you this opinion letter
pursuant to the requirements of Form S-8 and in accordance with Item 601 of
Regulation S-K promulgated by the Securities and Exchange Commission.
In connection with this opinion, we have examined and relied upon, without
further investigation, the following in connection with rendering the opinions
expressed herein: (a) the Plan; (b) the Registration Statement; (c) corporate
records, including the Amended and Restated Certificate of Incorporation of the
Corporation, the Bylaws of the Corporation and related resolutions adopted by
the Board of Directors of the Corporation, and (d) such other documents,
certificates, records, and oral statements of public officials and the officers
of the Corporation as we deemed necessary for the purpose of rendering the
opinions expressed herein.
In our examinations, we have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity, accuracy and
completeness of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, conformed, or
photostatic copies or by facsimile or electronic mail, and the authenticity of
the originals from which such copies, facsimiles, or electronic transmissions
were made. In our examination of documents executed by persons, legal or
natural, other than the Corporation, we have assumed that such persons had the
power, corporate or otherwise, to enter into and perform all obligations
thereunder and that such documents are valid and binding. In rendering this
opinion, we have assumed without investigation that the certificates or other
records evidencing the Shares to be issued under the Plan and the ownership
thereof will be in proper form and will be duly and properly completed and
properly executed.
Based upon and subject to the foregoing and the balance of this opinion, we
are of the opinion that the Shares to be issued under the Plan will, when issued
pursuant to and in accordance with the Plan and upon receipt by the Corporation
of the consideration therefor as described in the Plan, be validly issued, fully
paid and non-assessable. The foregoing opinion is limited to shares that are
originally issued under the Plan.
This opinion letter is limited to the specific legal issues that it
expressly addresses, and no opinion may be inferred or implied beyond the
matters expressly set forth herein. We express no opinion as to the law of any
jurisdiction other than the General Corporation Law of the State of Delaware, as
amended.
We consent to the filing of this opinion letter, or a reproduction thereof,
as an exhibit to the Registration Statement. In giving such consent, however, we
are not admitting that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
or regulations promulgated by the Securities and Exchange Commission thereunder.
This opinion letter is rendered on the date set forth above, and we have no
continuing obligation hereunder to inform you of changes in the applicable law
or the facts after such date or facts of which we have become aware after the
date hereof, even though such changes or facts could affect our opinions
expressed herein.
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Very truly yours,
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SONNENSCHEIN NATH & ROSENTHAL LLP
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/s/ Sonnenschein Nath & Rosenthal LLP
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