UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
DELAWARE 44-0663509
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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Jay M. Nadlman, Esq.
Kansas City Southern
427 West 12th Street, Kansas City, Missouri 64105
(816) 983-1384
(Name, Address and Telephone, Including Area Code, of Agent For Service)
Copies to:
John F. Marvin, Esq.
Diane M. Bono, Esq.
Sonnenschein Nath & Rosenthal
4520 Main Street, Suite 1100
Kansas City, Missouri 64111
(816) 460-2400
CALCULATION OF REGISTRATION FEE
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-------------------------- ----------------- ------------------------- ------------------------- --------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered(1) offering price per share aggregate offering price registration fee(2)
-------------------------- ----------------- ------------------------- ------------------------- --------------------
Common Stock 2,500,000 $19.58(2) $48,950,000(2) $5,761
($0.01 par value) (3) shares (4)
-------------------------- ----------------- ------------------------- ------------------------- --------------------
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(1) Includes associated rights to purchase Series A Preferred Stock of the
Registrant.
(2) 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 the
Registrant reported for trading on the New York Stock Exchange on June 27,
2005.
(3) 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.
(4) Such shares are in addition to the following shares of common stock
previously registered with respect to the 1991 Stock Option Plan: 4,500,000
shares (Registration No. 333-58250); 6,000,000 shares (Registration No.
033-59388) and 5,100,000 shares (Registration No. 033-50517). Such numbers
of shares have been adjusted to reflect the Registrant's stock splits
effective March 17, 1993 (2-for-1), September 17, 1997 (3-for-1) and July
12, 2000 (1-for-2).
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 Securities and Exchange Commission (the "Commission") (File No. 1-4717) are hereby incorporated by reference and made a part of this registration statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 2004;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2005;
(c) The Registrant's Current Reports on Form 8-K filed on January 6, 2005, January 26, 2005, February 1, 2005, February 15, 2005, February 23, 2005, March 18, 2005, March 29, 2005, April 7, 2005, April 15, 2005, April 26, 2005, May 11, 2005, May 13, 2005, May 26, 2005, June 1, 2005, June 6, 2005, June 9, 2005, and June 14, 2005, and the Current Report on Form 8-K/A filed on February 14, 2005.
(d) The description of the Registrant's common stock, par value $0.01 per share (the "Common Stock"), and the associated Series A Preferred Stock Purchase Rights in the Registrant's Form 8-A filed on May 19, 1986, as amended by the Registrant's Form 8-A12B/A (Amendment No. 1) filed on November 6, 1995 and any amendment or report filed for the purposes 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 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," or individually as an "Incorporated Document"). 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.
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 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 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.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of 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 with or furnished to the Commission by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this 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 hereby which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 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 of 1933 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 the City of Kansas City, State of Missouri, on May 5, 2005.
KANSAS CITY SOUTHERN
By: /s/ Michael R. Haverty
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Michael R. Haverty
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael R. Haverty, Ronald G. Russ and James S. Brook, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in fact and agents or any of them, or their, or his substitute or substitutes, 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 on May 5, 2005 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 /s/ Ronald G. Russ Executive Vice President and Chief Financial -------------------------- Officer Ronald G. Russ /s/ James S. Brook -------------------------- Vice President and Comptroller James S. Brook /s/ A. Edward Allinson -------------------------- Director A. Edward Allinson /s/ Robert J. Druten -------------------------- Director Robert J. Druten |
/s/ Michael G. Fitt -------------------------- Director Michael G. Fitt /s/ James R. Jones -------------------------- Director James R. Jones /s/ Thomas A. McDonnell -------------------------- Director Thomas A. McDonnell /s/ Karen L. Pletz -------------------------- Director Karen L. Pletz /s/ Rodney E. Slater -------------------------- Director Rodney E. Slater |
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 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"), Restated Certificate of Incorporation, is hereby incorporated by reference as Exhibit 4.1
4.2 The By-Laws of Kansas City Southern, as amended and restated to March 8, 2004, filed as Exhibit 3.2 to the Company's Form 10-K for the year ended December 31, 2003 (Commission File No. 1-4717), is incorporated herein by reference as Exhibit 4.2
4.3 Stockholder Rights Agreement by and between the Company and Harris Trust and Savings Bank dated as of September 19, 1995, which is attached as Exhibit 99 to the Company's Form 8-A dated October 24, 1995 (Commission File No. 1-4717), is hereby incorporated by reference as Exhibit 4.3
4.4 Form of First Amendment to Rights Agreement, which is attached as Exhibit 2.2 to the Company's Form 10-K for the year ended December 31, 2004 (Commission File No. 1-4717), is hereby incorporated by reference as Exhibit 4.4
4.5 Kansas City Southern 1991 Amended and Restated Stock Option and Performance Award Plan (as amended and restated effective as of May 5, 2005), which is attached as Exhibit 10.1 to the Company's Form 8-K filed on May 11, 2005 (Commission File No. 1-4717), is hereby incorporated by reference as Exhibit 4.5.
5.1 Opinion of Sonnenschein Nath & Rosenthal LLP
23.1 Consent of KPMG LLP
23.2 Consent of PricewaterhouseCoopers, S.C.
23.3 Consent of Sonnenschein Nath & Rosenthal LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page of this registration statement)
EXHIBIT 5.1
[Sonnenschein Nath & Rosenthal LLP Letterhead]
June 29, 2005
Kansas City Southern
427 West 12th Street
Kansas City, Missouri 64105
Re: Registration Statement on Form S-8 in connection with the registration of 2,500,000 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 1991 Amended and Restated Stock Option and Performance Award Plan (as amended and restated effective as of May 5, 2005) (the "Plan").
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.
Very truly yours,
SONNENSCHEIN NATH & ROSENTHAL LLP
/s/ Sonnenschein Nath & Rosenthal LLP |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
Kansas City Southern:
We consent to the incorporation by reference in this Registration Statements on Form S-8 of our reports dated March 29, 2005, with respect to the consolidated balance sheets of Kansas City Southern and subsidiaries as of December 31, 2004 and 2003, and the related consolidated statements of income, changes in stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 2004, management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2004 and the effectiveness of internal control over financial reporting as of December 31, 2004, which reports appear in the December 31, 2004 annual report on Form 10-K of Kansas City Southern and subsidiaries. The financial statements of Grupo Transportacion Ferroviaria Mexicana, S.A. de C.V. (Grupo TFM), a 46.6% owned investee company, as of and for the years ended December 31, 2004 and 2003 were audited by other auditors whose reports have been furnished to us, and our opinion, insofar as it relates to the amounts included for Grupo TFM as of and for the year ended December 31, 2004 and 2003, is based solely on the reports of other auditors.
Our report refers to the adoption by the Company of Statement of Financial Accounting Standards No. 143, ACCOUNTING FOR ASSET RETIREMENT OBLIGATIONS, effective January 1, 2003.
/s/ KPMG LLP
Kansas City, Missouri
June 27, 2005
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 28, 2005 relating to the consolidated financial statements of Grupo Transportacion Ferroviaria Mexicana, S.A. de C.V., which appears in Kansas City Southern's Annual Report on Form 10-K for the year ended December 31, 2004.
/s/ PricewaterhouseCoopers Mexico, D.F. June 23, 2005 |