UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): | February 22, 2012 |
Kansas City Southern
__________________________________________
(Exact name of registrant as specified in its charter)
Delaware | 1-4717 | 44-0663509 |
_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
427 West 12th Street, Kansas City, Missouri | 64105 | |
_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | 816-983-1303 |
Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
Amendment No. 1 to Credit Agreement
On February 24, 2012, Kansas City Southern (the "Company"), its wholly owned subsidiary, The Kansas City Southern Railway Company ("KCSR") and certain other subsidiaries of the Company that guaranty KCSR's Amended and Restated Credit Agreement dated as of July 12, 2011 (the "Credit Agreement") entered into Amendment No. 1 and Additional Term Advance Agreement ("Amendment No. 1") to the Credit Agreement with certain Lenders under the Credit Agreement, certain financial institutions and other persons parties thereto as providers of the additional Term A advances described below (the "Additional Term A Lenders"), The Bank of Nova Scotia ("Scotia Capital"), as administrative agent and collateral agent for the Lenders ("Agent"), J.P. Morgan Securities LLC ("JPMorgan"), Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPFS"), Scotia Capital, Citibank Global Markets Inc. and Morgan Stanley Senior Funding, Inc. ("MSSF") as joint lead arrangers, JPMorgan, MLPFS and MSSF as joint bookrunners, JPMorgan as syndication agent and Scotia Capital, Citibank, N.A. and MSSF as co-documentation agents.
Amendment No. 1 provides that the Additional Term A Lenders shall make additional Term A advances to KCSR in an aggregate principal amount of $275 million (the "Additional Term A Advances") on substantially the same terms as those applicable to the existing Term A facility under the Credit Agreement. KCSR drew down $175 million of the Additional Term A Advances on the effective date of Amendment No. 1, and may draw down the remaining $100 million of Additional Term A Advances on up to five occasions on or prior to June 30, 2012.
The proceeds of the initial $175 million draw down of the Additional Term A Advances were used to purchase all of KCSR’s 8% Senior Notes due 2015 (the "8% Senior Notes") that were accepted in accordance with KCSR's recently completed tender offer for such notes (including any principal, interest, fees and other amounts owing with respect thereto). The remaining Additional Term A Advances may be used to (i) finance any actual or intended redemption of any 8% Senior Notes which remain outstanding following the aforementioned tender offer (including any principal, interest, fees and other amounts owing with respect thereto) or (ii) to pay any transaction costs related to the foregoing.
The outstanding principal balance of the Additional Term A Advances bear interest at floating rates. At KCSR's option, the loans will bear interest at either (i) the greater of (a) The Agent's base rate, (b) federal funds rate plus 0.50% or (c) one-month London Interbank Offered Rate ("LIBOR") plus 1.00% (the "Base Rate") plus a margin of 0.25% or (ii) LIBOR plus a margin of 1.25%.
Except as amended and supplemented by Amendment No. 1, all terms of the Credit Agreement remain in full force and effect. The foregoing is a summary of the terms of Amendment No. 1 and does not purport to be a complete discussion of them. A copy of Amendment No. 1 is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Supplemental Indenture
On February 13, 2012, the Company, KCSR and certain subsidiaries of the Company that guarantee the 8% Senior Notes pursuant to the terms of the indenture governing the 8% Senior Notes (the "Indenture"), and U.S. Bank National Association, as trustee under the Indenture, entered into the First Supplemental Indenture (the "Supplemental Indenture") to the Indenture. Pursuant to its terms, certain provisions of the Supplemental Indenture, including the amendments to the Indenture described below, became operative on February 24, 2012 following the acceptance by KCSR of the 8% Senior Notes tendered by holders thereof pursuant to KCSR's previously announced tender offer.
The Supplemental Indenture amends the terms of the Indenture to, among other things, delete certain covenants that:
• restrict the ability of the Company, KCSR and certain of their affiliates to incur certain forms and amounts of indebtedness;
• restrict the ability of the Company, KCSR and certain of their affiliates to (i) declare or pay dividends to certain parties, (ii) purchase, redeem, retire or otherwise acquire for value capital stock held by certain parties and (iii) make certain investments, interest payments and other distributions;
• prohibit the Company, KCSR and certain of their affiliates from causing or permitting to exist restrictions on the ability of certain of their subsidiaries to pay dividends or indebtedness, make distributions or loans or transfer property or assets to the guarantors or their subsidiaries;
• prohibit the Company, KCSR and certain of their affiliates from disposing of assets or issuing or selling shares of capital stock of certain of their subsidiaries;
• restrict the ability of the Company, KCSR and certain of their affiliates to enter into, renew or extend any transaction with certain stockholders and affiliates;
• prohibit the Company, KCSR and certain of their affiliates from creating, incurring, assuming or suffering to exist certain liens;
• prohibit the Company, KCSR and certain of their affiliates from entering into sale-leaseback transactions;
• require KCSR to commence and consummate an offer to purchase the Notes upon a change in control;
• require the Company, KCSR and certain of their affiliates to pay taxes and other claims;
• require the Company to deliver compliance certificates to the trustee; and
• in connection with a defeasance, require the Company and KCSR to deliver certain legal opinions and allow a certain number of days to pass before such defeasance becomes effective.
The elimination or modification of the foregoing provisions permit the Company, KCSR and certain of their affiliates to take actions that could increase the credit risk faced by the holders of any remaining outstanding 8% Senior Notes (although KCSR remains subject to the restrictions and covenants set forth in its other outstanding indebtedness), adversely affect the market price of such 8% Senior Notes or otherwise be adverse to the interests of the holders of such 8% Senior Notes.
The amendments do not relieve KCSR from its obligations to make scheduled payments of principal and accrued interest on the 8% Senior Notes that remain outstanding in accordance with the terms of the Indenture.
The foregoing discussion is qualified in its entirety by the terms and conditions of the Supplemental Indenture, a copy of which is attached to this Form 8-K as Exhibit 10.2 and incorporated herein by this reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information required by this item is included in Item 1.01 above and is incorporated herein by reference.
Item 3.03 Material Modifications to Rights of Security Holders.
The information required by this item is included in Item 1.01 above and is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(e)
On February 22, 2012, the Compensation and Organization Committee (the "Compensation Committee") of the Board of Directors of the Company approved the Company's 2012 Long-Term Incentive Program (the "2012 LTI Program") and the 2012 Annual Incentive Plan (the "2012 AIP"), in which the Company's officers participate. The Committee also set the performance goals for the 2012 tranche of performance awards issued under the 2011 Long-Term Incentive Program approved on February 23, 2011 ("2011 LTI Program") and modified the performance metric definitions for the 2012 and 2013 tranches of performance awards issued under the 2011 LTI Program.
2012 LTI Program
The 2012 LTI Program consists of performance share awards (50%), non-qualified stock options (25%) and restricted stock (25%). All awards under the 2012 LTI Program were granted on February 22, 2012, and are governed by the Company's 2008 Stock Option and Performance Award Plan.
The performance period for the performance shares is the three year period 2012 through 2014. Participants may earn between 50% and 200% of the performance shares awarded under the 2012 LTI Program by meeting or exceeding the performance criteria set for the 2012 LTI Program. The Compensation Committee set three-year performance goals for the 2012 LTI Program on February 22, 2012. The number of performance shares earned at the end of the three-year performance period is based on the average of the earned percentage for each year during the 2012 LTI Program. Performance shares earned under the 2012 LTI Program become vested and will paid out on the later of (i) February 27, 2015, or (ii) the date the Compensation Committee certifies the performance results.
The performance metrics for the performance shares awarded under the 2012 LTI Program are return on invested capital ("ROIC") and consolidated operating ratio ("OR"), weighted 75% and 25%, respectively. For this purpose, ROIC is defined as the quotient of the Company's net operating profit after taxes ("NOPAT") divided by the Company's invested capital where (i) NOPAT is the sum of the Company's net income plus interest expense, interest on the present value of the Company's operating leases and debt retirement costs (all preceding items tax effected), with further adjustments to eliminate the after-tax effects of any foreign exchange gains/losses, the foreign exchange impact of the Company's effective tax rate and changes in accounting principles, and (ii) invested capital is the sum of the Company's average equity balance, average debt balance and the present value of the Company's operating leases, with further adjustments to eliminate the average equity impacts of changes in accounting principles.
The shares of restricted stock awarded under the 2012 LTI Program vest on February 27, 2015.
The non-qualified stock options become vested and exercisable in equal installments on February 22, 2013, February 22, 2014 and February 22, 2015, respectively. The stock options must be exercised in all events no later than ten years from the date of grant. The exercise price of the stock options is equal to the fair market value of the Company's common stock on the date of grant.
The above description is qualified in its entirety by the form of 2012 LTI Program award agreements attached to this Current Report on Form 8-K as Exhibits 10.3 (for United States employees) and 10.4 (for non-United States employees).
2012 AIP
The 2012 AIP is payable in cash following certification by the Compensation Committee that the 2012 annual performance target is met. The Compensation Committee determined at its February 22, 2012, meeting that the performance target for the 2012 AIP is the Company's budgeted year-end 2012 consolidated operating ratio.
2011 LTI Plan
On February 22, 2012, the Compensation Committee set the performance criteria for the 2012 performance period of the 2011 LTI Program. Further, the Compensation Committee approved a modification of the definition of ROIC for purposes of the 2011 LTI Program with respect to the 2012 and 2013 tranches of performance shares awarded under that program such that it conforms with the definition of ROIC approved by the Compensation Committee for the 2012 LTI Program.
Item 7.01 Regulation FD Disclosure.
The Company is furnishing under Item 7.01 of this Current Report on Form 8-K the information included as Exhibit 99.1 to this report. Exhibit 99.1 is the KCS news release dated February 27, 2012, announcing the entry into Amendment No. 1.
Item 9.01 Financial Statements and Exhibits.
(d)
10.1 Amendment No. 1 and Additional Term Advance Agreement dated as of February 24, 2012, to the Amended and Restated Credit Agreement dated as of July 12, 2011, by and among the Company, KCSR, as Borrower, certain of their subsidiaries named therein as guarantors, certain Lenders under the Credit Agreement, certain financial institutions and other persons parties thereto as providers of the additional Term A advances described therein, The Bank of Nova Scotia ("Scotia Capital"), as administrative agent and collateral agent for the Lenders, J.P. Morgan Securities LLC ("JPMorgan"), Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPFS"), Scotia Capital, Citibank Global Markets Inc. and Morgan Stanley Senior Funding, Inc. ("MSSF") as joint lead arrangers, JPMorgan, MLPFS and MSSF as joint bookrunners, JPMorgan as syndication agent and Scotia Capital, Citibank, N.A. and MSSF as co-documentation agents.
10.2 First Supplemental Indenture dated as of February 13, 2012 among KCSR, the Company, Gateway Eastern Railway Company, Pabtex, Inc., Southern Development Company, Southern Industrial Services, Inc. and Trans-Serve, Inc. and U.S. Bank National Association, as trustee.
10.3 Form of Non-Qualified Stock Option, Restricted Share and Performance Share Award Agreement (United States Employees) under the Kansas City Southern 2008 Stock Option and Performance Award Plan for the 2012 Long-Term Incentive Program.
10.4 Form of Non-Qualified Stock Option, Restricted Share and Performance Share Award Agreement (Non-United States Employees) under the Kansas City Southern 2008 Stock Option and Performance Award Plan for the 2012 Long-Term Incentive Program.
99.1 News release issued by Kansas City Southern dated February 27, 2012.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Kansas City Southern | ||||
February 27, 2012 | By: |
/s/ Brian P. Banks
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Name: Brian P. Banks | ||||
Title: Associate General Counsel & Corporate Secretary |
Exhibit Index
Exhibit No.
Description
Amendment No. 1 and Additional Term Advance Agreement dated as of February 24, 2012, to the Amended and Restated Credit Agreement dated as of July 12, 2011, by and among the Company, KCSR, as Borrower, certain of their subsidiaries named therein as guarantors, certain Lenders under the Credit Agreement, certain financial institutions and other persons parties thereto as providers of the additional Term A advances described therein, The Bank of Nova Scotia ("Scotia Capital"), as administrative agent and collateral agent for the Lenders, J.P. Morgan Securities LLC ("JPMorgan"), Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPFS"), Scotia Capital, Citibank Global Markets Inc. and Morgan Stanley Senior Funding, Inc. ("MSSF") as joint lead arrangers, JPMorgan, MLPFS and MSSF as joint bookrunners, JPMorgan as syndication agent and Scotia Capital, Citibank, N.A. and MSSF as co-documentation agents.
First Supplemental Indenture dated as of February 13, 2012 among KCSR, the Company, Gateway Eastern Railway Company, Pabtex, Inc., Southern Development Company, Southern Industrial Services, Inc. and Trans-Serve, Inc. and U.S. Bank National Association, as trustee.
Form of Non-Qualified Stock Option, Restricted Share and Performance Share Award Agreement (United States Employees) under the Kansas City Southern 2008 Stock Option and Performance Award Plan for the 2012 Long-Term Incentive Program.
Form of Non-Qualified Stock Option, Restricted Share and Performance Share Award Agreement (Non-United States Employees) under the Kansas City Southern 2008 Stock Option and Performance Award Plan for the 2012 Long-Term Incentive Program.
News release issued by Kansas City Southern dated February 27, 2012.
EXHIBIT 10.1
EXECUTION VERSION
AMENDMENT NO. 1 AND ADDITIONAL TERM ADVANCE AGREEMENT
dated as of February 24, 2012,
relating to the
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of July 12, 2011,
among
THE KANSAS CITY SOUTHERN RAILWAY COMPANY,
KANSAS CITY SOUTHERN,
THE GUARANTORS NAMED THEREIN,
THE LENDERS PARTY THERETO,
THE ISSUING BANK AND SWINGLINE BANK NAMED THEREIN,
THE BANK OF NOVA SCOTIA,
as Collateral Agent and Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
and
COMPASS BANK
JPMORGAN CHASE BANK, N.A.
and
MORGAN STANLEY BANK, N.A.
as Co-Documentation Agents
__________________
J.P. MORGAN SECURITIES LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
THE BANK OF NOVA SCOTIA
CITIGROUP GLOBAL MARKETS INC.
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Lead Arrangers
J.P. MORGAN SECURITIES LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Joint Bookrunners
J.P. MORGAN SECURITIES LLC
as Syndication Agent
and
THE BANK OF NOVA SCOTIA
CITIBANK, N.A.
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Co-Documentation Agents
AMENDMENT NO 1. AND ADDITIONAL TERM ADVANCE AGREEMENT dated as of February 24, 2012 (this Agreement ), relating to the AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 12, 2011 (the Credit Agreement ), among The Kansas City Southern Railway Company, a Missouri corporation (the Borrower ), Kansas City Southern, a Delaware corporation ( Parent ), the Subsidiary Guarantors party thereto, the Lenders party thereto, the Issuing Bank named therein, the Swing Line Bank named therein, The Bank of Nova Scotia, as collateral agent and administrative agent (in such capacity, the Administrative Agent ), Bank of America, N.A., as syndication agent, and Merrill Lynch, Pierce, Fenner & Smith Incorporated and The Bank of Nova Scotia, as joint lead arrangers and joint bookrunning managers.
A. The Borrower has requested that (a) the Persons set forth on Schedule I hereto (the Additional Term A Lenders ) make Additional Term A Advances (as defined below) in an aggregate principal amount of up to $275,000,000 to the Borrower and (b) certain provisions of the Credit Agreement be amended as set forth herein.
B. The Additional Term A Lenders are willing to make the Additional Term A Advances (as defined below) to the Borrower, and the undersigned Lenders are willing to so amend the Credit Agreement, in each case on the terms and subject to the conditions set forth herein and in the Credit Agreement.
C. J.P. Morgan Securities LLC, Merrill Lynch, Pierce Fenner & Smith Incorporated, The Bank of Nova Scotia, Citigroup Global Markets Inc. and Morgan Stanley Senior Funding, Inc. will act as joint lead arrangers with respect to the Additional Term A Advances (together in such capacities, the Additional Term A Arrangers ).
Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of interpretation set forth in Section 1.02 of the Credit Agreement are hereby incorporated by reference herein, mutatis mutandis . As used herein, the following terms have the meanings specified below.
Additional Term A Advances means the Initial Additional Term A Advances and the Delayed Draw Additional Term A Advances.
Additional Term A Effective Date means the date on which the conditions specified in Section 7 of this Agreement are satisfied (or waived in accordance with Section 9.01 of the Credit Agreement).
Additional Term A Transactions means, collectively, (a) the execution, delivery and performance by each Loan Party of this Agreement, the borrowing of the Additional Term A Advances hereunder, and the use of the proceeds thereof in accordance with the terms hereof, (b) the Tender Offer and the purchase of all of the 8% Senior Notes tendered pursuant thereto, (c) any redemption of any 8% Senior Notes, in accordance with the 8% Senior Notes and the 8% Indenture, which remain outstanding following the completion of the Tender Offer and (d) the payment of fees and expenses incurred in connection with the foregoing (the Transaction Costs ).
Applicable Delayed Draw Commitment Fee Rate means, at any time, a rate per annum equal to the Applicable Commitment Fee Rate at such time.
Delayed Draw Additional Term A Advance means a term advance made by an Additional Term A Lender to the Borrower during the Delayed Draw Availability Period pursuant to Section 2(a)(ii).
Delayed Draw Additional Term A Commitment means, with respect to each Additional Term A Lender, the commitment of such Additional Term A Lender to make Delayed Draw Additional Term A Advances to the Borrower hereunder in an aggregate principal amount not to exceed the amount set forth under the heading Delayed Draw Additional Term A Commitment opposite such Additional Term A Lenders name on Schedule I hereto. The aggregate principal amount of the Delayed Draw Additional Term A Commitments of all Additional Term A Lenders as of the Additional Term A Effective Date is $100,000,000.
Delayed Draw Availability Period means the period commencing on the Additional Term A Effective Date and ending on the earlier to occur of (a) 5:00 p.m., New York City time, on the Delayed Draw Expiration Date and (b) the first date on which the Delayed Draw Term A Commitments shall have been fully utilized or otherwise terminated.
Delayed Draw Expiration Date means June 30, 2012.
Initial Additional Term A Advance means a term advance made by an Additional Term A Lender to the Borrower on the Additional Term A Effective Date pursuant to Section 2(a)(i).
Initial Additional Term A Commitment means, with respect to each Additional Term A Lender, the commitment of such Additional Term A Lender to make Initial Additional Term A Advances to the Borrower hereunder in an aggregate principal amount not to exceed the amount set forth under the heading Initial Additional Term A Commitment opposite such Additional Term A Lenders name on Schedule I hereto. The aggregate principal amount of the Initial Additional Term A Commitments of all Additional Term A Lenders as of the Additional Term A Effective Date is $175,000,000.
Tender Offer means the cash tender offer and consent solicitation undertaken by the Borrower with respect to all of its 8% Senior Notes pursuant to the Offer to Purchase and Related Solicitation of Consents dated as of January 25, 2012.
SECTION 2. Additional Term A Commitments. (a) Each Additional Term A Lender hereby agrees, severally and not jointly, on the terms and subject to the conditions set forth herein and in the Credit Agreement, (i) to make Initial Additional Term A Advances to the Borrower on the Additional Term A Effective Date in an aggregate principal amount not to exceed its Initial Additional Term A Commitment and (ii) to make Delayed Draw Additional Term A Loans to the Borrower on any Business Day on up to five occasions during the Delayed Draw Availability Period in an aggregate principal amount not to exceed such Additional Term A Lenders Delayed Draw Additional Term A Commitment. Amounts borrowed under this Section 2(a) and repaid or prepaid may not be reborrowed.
(b) The Additional Term A Advances shall have the terms and conditions applicable to the Term A Loans under the Credit Agreement and the other Loan Documents. Unless the context shall otherwise require, (i) the Additional Term A Advances shall constitute Term A Advances and Term Advances, and (ii) the Additional Term A Lenders shall constitute Term A Lenders, Term Lenders and Lenders, and shall have the Domestic Lending Office and (if applicable) Eurodollar Lending Office set forth opposite their respective names in Schedule I hereto, in each case for all purposes of the Credit Agreement and the other Loan Documents (and, for the avoidance of doubt, the Additional Term A Advances shall not constitute Incremental Term Advances under the Credit Agreement). For convenience of reference, the Term A Advances made on the Effective Date outstanding immediately prior to the Additional Term A Effective Date shall, on the Additional Term A Effective Date, be redesignated as Original Term A Advances, as more fully set forth in Section 4 below.
(c) The proceeds of the Additional Term A Advances shall be used solely to (i) purchase the 8% Senior Notes (including, without limitation, to pay the outstanding principal amount of such 8% Senior Notes as well as any accrued interest, fees and other amounts owing with respect thereto) tendered in accordance with the terms of the Tender Offer, (ii) finance any actual or intended redemption of any 8% Senior Notes (including, without limitation, to pay the outstanding principal amount of such 8% Senior Notes as well as any accrued interest, fees and other amounts owing with respect thereto), in accordance with the terms of the 8% Senior Notes and the 8% Indenture, which remain outstanding following the completion of the Tender Offer and (iii) to pay the Transaction Costs. If the proceeds of the Additional Term A Advances exceed the aggregate amount paid in respect of the Tender Offer, the redemptions described in preceding clause (ii) and the Transaction Costs, or if no redemptions of the kind described in the preceding clause (ii) are contemplated, then such excess shall be used for general corporate purposes (including Permitted Acquisitions).
(d) Unless previously terminated, (i) the Initial Additional Term A Commitments shall terminate at 5:00 p.m., New York City time, on the Additional Term A Effective Date and (ii) the Delayed Draw Additional Term A Commitments shall terminate at the end of the Delayed Draw Availability Period.
(e) The Delayed Draw Additional Term A Commitments shall be reduced upon the making of each Delayed Draw Additional Term A Advance by an amount equal to the amount of such Delayed Draw Additional Term A Advance.
SECTION 3. Delayed Draw Commitment Fees . The Borrower shall pay to the Administrative Agent, for the account of each Additional Term A Lender, a commitment fee (the Delayed Draw Commitment Fees ), during the Delayed Draw Availability Period, payable in arrears on March 31, 2012, and on the Delayed Draw Expiration Date, equal to the Applicable Delayed Draw Commitment Fee Rate times the actual daily amount of the outstanding Delayed Draw Additional Term A Commitment of such Additional Term A Lender; provided , however , that any Delayed Draw Commitment Fee accrued with respect to the Delayed Draw Additional Term A Commitment of a Defaulting Lender during the period prior to the time such Additional Term A Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Additional Term A Lender shall be a Defaulting Lender except to the extent that such Delayed Draw Commitment Fee shall otherwise have been due and payable by the Borrower prior to such time; and provided, further that no Delayed Draw Commitment Fee shall accrue on any portion of the Delayed Draw Additional Term A Commitment of a Defaulting Lender so long as such Additional Term A Lender shall be a Defaulting Lender.
SECTION 4. Amendments to Credit Agreement. (a) Section 1.01 of the Credit Agreement is hereby amended by inserting the following definitions in proper alphabetical order therein:
Additional Term A Agreement means Amendment No. 1 and Additional Term Advance Agreement dated as of February 24, 2012, relating to this Agreement.
Additional Term A Advance means a term advance made by a Term A Lender to the Borrower on the Additional Term A Effective Date or on the date of the borrowing thereof, in each case pursuant to the Additional Term A Agreement.
Additional Term A Commitments means the commitments of the Term A Lenders to make Additional Term A Advances in an aggregate principal amount of $275,000,000 to the Borrower established pursuant to the Additional Term A Agreement.
Additional Term A Effective Date has the meaning assigned to such term in the Additional Term A Agreement.
Original Term A Advance has the meaning specified in Section 2.01(a).
Original Term A Commitment means, with respect to any Term A Lender at any time, the amount set forth opposite such Lenders name on Schedule I hereto under the caption Term A Commitment or, if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lenders Term A Commitment, as such amount may be reduced at or prior to such time pursuant to Section 2.05.
(b) The definition of the term Applicable Margin in Section 1.01 of the Credit Agreement is hereby amended by (i) redesignating clause (a) thereof as clause (b) thereof, (ii) replacing the words Term A Facility in each instance in which they appear therein with the words Original Term A Advances and (iii) inserting the following new clause (a) immediately after the word means therein:
(a) in the case of the Additional Term A Advances, 0.25% per annum for Base Rate Advances and 1.25% per annum for Eurodollar Rate Advances,.
(c) The definition of the term Change in Law in Section 1.01 of the Credit Agreement is hereby amended by amending and restating the proviso thereto as follows:
provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law, regardless of the date enacted, adopted, promulgated or issued.
(d) The definition of the term Term A Advance in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
Term A Advance means an Original Term A Advance or an Additional Term A Advance.
(e) The definition of the term Term A Commitment in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
Term A Commitment means an Original Term A Commitment or an Additional Term A Commitment.
(f) The definition of the term Term A Facility in Section 1.01 of the Credit Agreement is hereby amended by inserting the words and outstanding Term A Advances immediately before the words at such time therein.
(g) Section 2.01(a) of the Credit Agreement is hereby amended by (i) inserting the word Original immediately before the words (x) Term A Advances, (y) Term A Commitment and (z) Term A Commitments in each instance in which they appear therein and (ii) replacing the words (a Term A Advance ) therein with the words (an Original Term A Advance ).
(h) Section 2.04(a) of the Credit Agreement is hereby amended by (i) deleting the words the Term A Advances on the Effective Date and substituting therefor the words (i) the Original Term A Advances on the Effective Date and (ii) other than on any date set forth below occurring prior to (x) the Additional Term A Effective Date, the Additional Term A Advances on the Additional Term A Effective Date, and (y) any date on which Delayed Draw Additional Term A Advances are made, the Delayed Draw Additional Term A Advances made on the date of the borrowing thereof, in each case and (ii) deleting the word initial in the heading of the second column of the table therein.
(i) Section 2.05(b) of the Credit Agreement is hereby amended by inserting the word Original immediately before the words (i) Term A Advances and (ii) Term A Commitments therein.
(j) Section 2.11(f) of the Credit Agreement is hereby amended by inserting the words (other than of any amounts contemplated by Section 19(b) of the Security Agreement, which shall be held, or applied against the Secured Obligations, by the Collateral Agent in accordance with the terms thereof) immediately following the words or any of the other Loan Documents therein.
(k) Section 2.15(a)(iii)(A) of the Credit Agreement is hereby amended by inserting the words or Delayed Draw Commitment Fees (as defined in the Additional Term A Agreement) immediately after the words Commitment Fee.
SECTION 5. Consent. The undersigned Lenders hereby consent to the amendments set forth in the preceding Section 4, and to the borrowing of the Additional Term A Advances on the Additional Term A Effective Date, in each case in accordance with the terms hereof. For the avoidance of doubt, the undersigned Lenders hereby acknowledge and agree that the use of the proceeds of the Additional Term A Advances pursuant to Section 2(c) above shall be in compliance with the requirements of Section 5.02(i)(A) of the Credit Agreement.
SECTION 6. Representations and Warranties. To induce the other parties hereto to enter into this Agreement, each Loan Party hereby represents and warrants to the Administrative Agent and each of the other parties hereto that:
(a) The execution, delivery and performance by each Loan Party of this Agreement, and the consummation of the Additional Term A Transactions to occur on the Additional Term A Effective Date, are within such Loan Partys powers and have been duly authorized by all necessary corporate or other action. This Agreement has been duly executed by each Loan Party and is the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or limiting creditors rights generally and subject to general principals of equity, regardless of whether considered in a proceeding in equity or at law.
(b) (i) the representations and warranties contained in each Loan Document are true and correct (i) in the case of representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects, on and as of the Additional Term A Effective Date, before and after giving effect to the Additional Term A Transactions to occur on the Additional Term A Effective Date and the other transactions contemplated hereby, as though made on and as of the Additional Term A Effective Date, other than any such representations and warranties that, by their terms, expressly relate to an earlier date, in which case such representations and warranties were true and correct as of such date and (ii) no Event of Default or Default has occurred and is continuing, or will result from the Additional Term A Transactions to occur on the Additional Term A Effective Date and the other transactions contemplated hereby.
SECTION 7. Conditions to Effectiveness. The effectiveness of this Agreement and the obligations of the Additional Term A Lenders to make the Initial Additional Term A Advances to the Borrower are subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received duly executed counterparts of this Agreement that, when taken together, bear the signatures of each Loan Party, each Additional Term A Lender and the Required Lenders.
(b) The representations and warranties set forth in Section 4 of the Credit Agreement shall be true and correct (i) in the case of representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects, on and as of the Additional Term A Effective Date, before and after giving effect to the Additional Term A Transactions to occur on the Additional Term A Effective Date and the other transactions contemplated hereby, as though made on and as of the Additional Term A Effective Date, other than any such representations and warranties that, by their terms, expressly relate to an earlier date, in which case such representations and warranties were true and correct as of such date.
(c) At the time of and immediately after giving effect to the Additional Term A Transactions to occur on the Additional Term A Effective Date, no Default or Event of Default shall have occurred and be continuing.
(d) At the time of and after giving pro forma effect to the Additional Term A Transactions to occur on the Additional Term A Effective Date, (i) the Leverage Ratio shall not exceed 4.50 to 1.00 and (ii) the Interest Coverage Ratio shall not be less than 2.50 to 1.00, and the Administrative Agent and the Additional Term A Arrangers shall have received a certificate to that effect (containing reasonably detailed calculations thereof) dated as of the Additional Term A Effective Date and executed by a financial officer of the Borrower.
(e) The Administrative Agent and the Additional Term A Arrangers shall have received (i) a favorable legal opinion of White & Case LLP, counsel to the Loan Parties, (ii) to the extent not covered by clause (i) above, a favorable legal opinion of local counsel from each jurisdiction in which any Loan Party is organized and (iii) a favorable legal opinion of Alvord & Alvord, special STB counsel, in each case reasonably satisfactory to the Administrative Agent and the Additional Term A Arrangers.
(f) The Administrative Agent and the Additional Term A Arrangers shall have received certified copies of the resolutions of the Board of Directors of each Loan Party approving the Additional Term A Transactions to occur on the Additional Term A Effective Date and this Agreement, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Additional Term A Transactions to occur on the Additional Term A Effective Date and this Agreement.
(g) The Administrative Agent and the Additional Term A Arrangers shall have received a copy of a certificate of the Secretary of State (or other similar official) of the jurisdiction of incorporation of each Loan Party, dated reasonably near the date of the Additional Term A Effective Date, certifying (i) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretarys office and (ii) that (A) such amendments are the only amendments to such Loan Partys charter on file in such Secretarys office, (B) such Loan Party has paid all franchise taxes to the date of such certificate (to the extent the Secretary of State in the applicable jurisdictions typically provides such a certification) and (C) such Loan Party is duly incorporated and in good standing (to the extent such concept exists in the applicable jurisdiction) or presently subsisting under the laws of the State of the jurisdiction of its incorporation.
(h) The Administrative Agent and the Additional Term A Arrangers shall have received (i) a certificate of the Secretary or Assistant Secretary of each Loan Party, countersigned on behalf of such Loan Party by another officer of such Loan Party, dated the Additional Term A Effective Date (the statements made in which certificate shall be true on and as of the Additional Term A Effective Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of States certificate referred to in Section 7(f), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the Additional Term A Effective Date and (C) the good standing of each Loan Party (to the extent such concept exists in the applicable jurisdiction) (with the applicable good standing certificates attached thereto) and (ii) a certificate of the President or a Vice President of the Borrower, dated the Additional Term A Effective Date (the statements made in which certificate shall be true on and as of the Additional Term A Effective Date), certifying as to the satisfaction of the conditions precedent set forth in paragraphs (b) and (c) above.
(i) The Administrative Agent and the Additional Term A Arrangers shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder and thereunder.
(j) The Additional Term A Lenders, the Additional Term A Arrangers and the Administrative Agent shall have received payment of all accrued and duly invoiced fees and expenses (including the legal fees and expenses required to be reimbursed pursuant to the Commitment Letter dated as of January 26, 2012) relating to the Additional Term A Commitments.
(k) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including, without limitation, the U.S.A. PATRIOT Act, to the extent requested not less than five days prior to the Additional Term A Effective Date by the Administrative Agent, any Additional Term A Lender or any Additional Term A Arranger.
(l) The Administrative Agent shall have received a notice of borrowing in accordance with Section 2.02 of the Credit Agreement.
The Administrative Agent shall notify the Borrower and the Lenders of the Additional Term A Effective Date, and such notice shall be conclusive and binding.
SECTION 8. Delayed Draw Conditions to Effectiveness. The obligations of the Additional Term A Lenders to make Delayed Draw Additional Term A Advances to the Borrower are subject to the satisfaction of the following conditions precedent (and each of the giving of the applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that both on the date of such notice and on the date of such Borrowing such conditions precedent have been satisfied):
(a) The representations and warranties set forth in Section 4 of the Credit Agreement shall be true and correct (i) in the case of representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects, on and as of the date of such Borrowing, before and after giving effect to such Borrowing, as though made on and as of such date, other than any such representations and warranties that, by their terms, expressly relate to an earlier date, in which case such representations and warranties were true and correct as of such date.
(b) At the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing.
SECTION 9. Additional Agreements. Within 90 days following the Additional Term A Effective Date (as such period may be extended in the Administrative Agents discretion), the Borrower shall deliver to the Collateral Agent:
(a) Amendments, supplements and restatements in form and substance satisfactory to the Collateral Agent of the existing Mortgages (the Mortgage Amendments ), each duly executed and acknowledged by a duly authorized officer of the applicable Loan Party party thereto, together with a mortgage modification endorsement (or to the extent not available in the applicable jurisdiction, the equivalent thereof) to each Mortgage Policy delivered with respect to each such Mortgage under the Credit Agreement, in a form suitable for filing or recording and otherwise in form and substance satisfactory to the Collateral Agent,
(b) A fully paid date down endorsement (or to the extent not available in the applicable jurisdiction, a nothing further certificate) to each existing Mortgage Policy delivered with respect to certain of such Mortgages under the Credit Agreement in form and substance acceptable to the Collateral Agent, dated the date of this Agreement, and issued by Stewart Title Guaranty Company or First American Title Insurance Company, which states, among other things, that since the effective date of applicable mortgage policy, there have been no changes in the state of title, including no new Liens that do not constitute Permitted Encumbrances, provided , however , that if a combined mortgage modification and date down endorsement is available in an applicable jurisdiction, and such combined product will result in cost savings to the Borrower, such product shall be acceptable to the Collateral Agent with respect to the properties covered thereby,
(c) Such other consents, agreements and confirmations of lessors and third parties as the Collateral Agent may reasonably deem necessary or desirable and evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to continue valid first and subsisting Liens on the property described in the Mortgages have been taken,
(d) Evidence of the insurance required by the terms of the Mortgages, including, in the case of any Flood Hazard Property, (i) the Borrowers written acknowledgment of receipt of written notification from the Collateral Agent as to the fact that such Mortgaged Property is a Flood Hazard Property and as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (ii) copies of the Borrowers application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Collateral Agent and naming the Collateral Agent as loss payee on behalf of the Lenders,
(e) Evidence that all invoiced fees, costs and expenses have been paid in connection with the preparation, execution, filing and recordation of the Mortgage Amendments, including, without limitation, reasonable attorneys fees (including the reasonable fees and expenses of Shearman & Sterling LLP), filing and recording fees, title insurance company coordination fees, documentary stamp, mortgage and intangible taxes, if any, and title search charges and other charges incurred in connection with the recordation of the Mortgage Amendments, and
(f) In addition to the items listed immediately above, the Collateral Agent shall be satisfied with the advice (not a legal opinion) from local counsel acceptable to the Collateral Agent in each state in which a Mortgage Amendment is recorded which imposes a mortgage recording (or similar) tax in connection with such Mortgage Amendment relating to the effects of the transactions contemplated herein on the Lien priority of each such Mortgage Amendment, the mortgage recording (or similar) taxes payable in connection with each such Mortgage Amendment, and related matters.
SECTION 10. Consent and Reaffirmation. The Borrower and each other Loan Party hereby consents to this Agreement and the transactions contemplated hereby, and hereby (a) agrees that, notwithstanding the effectiveness of this Agreement, the Security Agreement and each of the other Collateral Documents continue to be in full force and effect, (b) affirms and confirms its guarantee (in the case of each Loan Party other than the Borrower) of the Obligations and (in the case of each Loan Party) the pledge of and/or grant of a security interest in those of its assets constituting Collateral pursuant to the Collateral Documents to secure such Obligations, all as provided in the Loan Documents as originally executed, and (c) acknowledges and agrees that such guarantee, pledge and/or grant continue in full force and effect in respect of, and to secure, the Obligations under the Credit Agreement and the other Loan Documents, including the Additional Term A Advances.
SECTION 11. Effect of this Agreement. Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Agreement shall apply and be effective only with respect to the provisions of the Credit Agreement specifically referred to herein. After the Additional Term A Effective Date, any reference to the Credit Agreement in any Loan Document shall mean the Credit Agreement as modified hereby. This Agreement shall constitute a Loan Document or all purposes of the Credit Agreement and the other Loan Documents.
SECTION 12. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery by telecopier or other form of electronic communication of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement.
SECTION 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Headings. Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
THE KANSAS CITY SOUTHERN RAILWAY COMPANY | ||
by | ||
/s/ Michael W. Upchurch
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Name: Michael W. Upchurch
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Title: Executive Vice President and Chief Financial Officer
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KANSAS CITY SOUTHERN | ||
by | ||
/s/ Michael W. Upchurch | ||
Name: Michael W. Upchurch | ||
Title: Executive Vice President and Chief Financial Officer |
GATEWAY EASTERN RAILWAY COMPANY | ||
by | ||
/s/ Michael W. Upchurch | ||
Name: Michael W. Upchurch | ||
Title: Vice President and Chief Financial Officer |
SOUTHERN DEVELOPMENT COMPANY | ||
by | ||
/s/ Michael W. Upchurch | ||
Name: Michael W. Upchurch | ||
Title: Vice President, Chief Financial Officer and Treasurer |
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THE KANSAS CITY NORTHERN RAILWAY COMPANY | ||
by | ||
/s/ Michael W. Upchurch | ||
Name: Michael W. Upchurch | ||
Title: Vice President and Chief Financial Officer |
TRANS-SERVE, INC. | ||
by | ||
/s/ Michael W. Upchurch | ||
Name: Michael W. Upchurch | ||
Title: Vice President and | ||
Treasurer |
PABTEX, INC. | ||
by | ||
/s/ Michael W. Upchurch | ||
Name: Michael W. Upchurch | ||
Title: Vice President and Chief Financial Officer |
KCS HOLDINGS I, INC. | ||
by | ||
/s/ Michael W. Cline | ||
Name: Michael W. Cline | ||
Title: Vice President and | ||
Treasurer |
KCS VENTURES I, INC. | ||
by | ||
/s/ Michael W. Cline | ||
Name: Michael W. Upchurch | ||
Title: Vice President and | ||
Treasurer |
SOUTHERN INDUSTRIAL SERVICES, INC. | ||
by | ||
/s/ Michael W. Upchurch | ||
Name: Michael W. Upchurch | ||
Title: Vice President, Chief Financial Officer and Treasurer |
2
VEALS, INC. | ||
by | ||
/s/ Michael W. Upchurch | ||
Name: Michael W. Upchurch | ||
Title: Vice President, Chief Financial Officer and Treasurer |
THE BANK OF NOVA SCOTIA, as Administrative Agent, | ||
by | ||
/s/ Paula Czach | ||
Name: Paula Czach | ||
Title: Managing Director & Execution Head | ||
by | ||
Name: | ||
Title: | ||
SIGNATURE PAGE TO AMENDMENT NO. 1 AND | ||
ADDITIONAL TERM ADVANCE AGREEMENT DATED AS OF THE | ||
DATE FIRST WRITTEN ABOVE, RELATING TO THE KANSAS | ||
CITY SOUTHERN RAILWAY COMPANY CREDIT AGREEMENT |
Name of Institution:
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MORGAN STANLEY SENIOR FUNDING, INC. | |
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by | ||
/s/ Michael King
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Name: Michael King
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Title: Vice
President |
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For any Lender requiring a
second signature line: |
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by | ||
Name:
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Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN RAILWAY COMPANY CREDIT AGREEMENT |
Name of Institution:
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MORGAN STANLEY BANK, N.A. | |
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by | ||
/s/ Michael King
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Name: Michael King
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Title: Authorized
Signatory |
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For any Lender requiring a second
signature line: |
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by | ||
Name:
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Title:
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4
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN RAILWAY COMPANY CREDIT AGREEMENT |
Name of Institution:
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JPMORGAN CHASE BANK, N.A. | |
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by | ||
/s/ Mary Gherty
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Name: Mary Gherty
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Title: Managing
Director |
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For any Lender requiring a
second signature line: |
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by | ||
Name:
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Title:
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5
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN RAILWAY COMPANY CREDIT AGREEMENT |
Name of Institution:
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BANK OF AMERICA, N.A. | |
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by | ||
/s/ Irene Bertozzi Bartenstein
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Name: Irene Bertozzi
Bartenstein |
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Title: Director
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For any Lender requiring a second
signature line: |
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by | ||
Name:
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Title:
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SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
by
For any Lender requiring a second signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
CITIBANK, N.A.
by
President
For any Lender requiring a second
signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
by
Elkins
President
For any Lender requiring a
second signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
COMPASS BANK NA
by
President
For any Lender requiring a second
signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
THE ROYAL BANK OF SCOTLAND PLC
by
Lasner
For any Lender requiring a
second signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
WELLS FARGO BANK, N.A.
by
President
For any Lender requiring a second
signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
SUNTRUST BANK
by
President
For any Lender requiring a
second signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION
by
President
For any Lender requiring a second
signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
BMO HARRIS FINANCING, INC.
by
President
For any Lender requiring a second
signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
UMB BANK N.A.
by
President
For any Lender requiring a second
signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
U.S. BANK, NATIONAL ASSOCIATION
by
President
For any Lender requiring a second
signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
BRANCH BANKING AND TRUST COMPANY
by
President
For any Lender requiring a
second signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
FIFTH THIRD BANK
by
IV
For any Lender requiring a second
signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
FIRST HAWAIIAN BANK
by
President
For any Lender requiring a
second signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
BANK MIDWEST, N.A.
by
President
For any Lender requiring a second
signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
FIRST MERIT BANK, N.A.
by
President
For any Lender requiring a
second signature line:
by
SIGNATURE PAGE TO AMENDMENT NO. 1 AND ADDITIONAL
TERM ADVANCE AGREEMENT DATED AS OF THE DATE FIRST
WRITTEN ABOVE, RELATING TO THE KANSAS CITY SOUTHERN
RAILWAY COMPANY CREDIT AGREEMENT
RB INTERNATIONAL FINANCE (USA) LLC
by
President
For any Lender requiring a second
signature line:
by
President
EXHIBIT 10.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this First Supplemental Indenture) dated as of February 13, 2012 (the Effective Date), among THE KANSAS CITY SOUTHERN RAILWAY COMPANY, a corporation duly organized and existing under the laws of the State of Missouri (the Company), KANSAS CITY SOUTHERN (the Parent), and GATEWAY EASTERN RAILWAY COMPANY, PABTEX, INC., (the successor by merger to each of PABTEX GP, LLC, PABTEX I, L.P. and SIS BULK HOLDING, INC.), SOUTHERN DEVELOPMENT COMPANY, SOUTHERN INDUSTRIAL SERVICES, INC., and TRANS-SERVE, INC. (together with the Parent, the Note Guarantors), and U.S. BANK NATIONAL ASSOCIATION, as trustee under the indenture referred to below (the Trustee).
WITNESSETH:
WHEREAS, the Company and the Note Guarantors have heretofore executed and delivered to the Trustee an Indenture (the Indenture) dated as of May 30, 2008, providing for the issuance of 8.0% Senior Notes due 2015 (the Notes);
WHEREAS, $275,000,000 in aggregate principal amount of Notes are outstanding as of the date of this First Supplemental Indenture;
WHEREAS, Section 9.02 of the Indenture provides that, with the written consent of the Holders of at least a majority in principal amount of Notes then outstanding, the Company, the Note Guarantors and the Trustee may amend the Indenture;
WHEREAS, pursuant to an Offer to Purchase and Related Solicitation of Consents dated January 25, 2012 (the Offer to Purchase), the Company offered to purchase (the Tender Offer) all outstanding Notes and solicited consents to the amendments to the Indenture and the Notes described herein (the Amendments);
WHEREAS, Holders of a majority in principal amount of the Notes outstanding have consented to the Amendments by tendering and not withdrawing their Notes and by delivering the related consents pursuant to the terms of the Offer to Purchase, as evidenced by a certificate of D.F. King & Co., Inc. of even date hereof;
WHEREAS, the Company, the Note Guarantors and the Trustee are entering into this First Supplemental Indenture in order to set forth the Amendments; and
WHEREAS, this First Supplemental Indenture has been duly authorized by all necessary corporate action on the part of the Company, the Note Guarantors and the Trustee.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the Note Guarantors and
the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as
follows:
ARTICLE 1
1.01.
Amendments to the Indenture
. Effective as of the Effective Date, the Indenture
is amended as set forth herein.
(a) SECTION 1.01 of the Indenture is hereby amended to delete the following definitions in
their entirety:
AMENDMENT OF THE INDENTURE
Net Available Cash
Net Cash Proceeds
Permitted Business
Permitted Investment
Permitted Liens
Purchase Money Indebtedness
Rating Agency
Refinancing Indebtedness
Sale/Leaseback Transaction
Secured Indebtedness
Secured Indebtedness Leverage Ratio
Securities Act
Senior Indebtedness
Stock Purchase Loans
Subordinated Obligation
Temporary Cash Investments
(b) Each of the following Sections of the Indenture is hereby deleted in its entirety and replaced in lieu thereof with the words [Intentionally Deleted]:
Section 4.03 Limitation on Indebtedness.
Section 4.04 Limitation on Restricted Payments.
Section 4.05 Limitation on Restrictions on Distributions from Restricted Subsidiaries.
Section 4.06 Limitation on Sales of Assets and Capital Stock.
Section 4.07 Limitation on Transactions with Affiliates.
Section 4.08 Change of Control.
Section 4.10 Future Note Guarantors.
Section 4.13 Limitation on Liens.
Section 4.14 Limitation of Sale/Leaseback Transactions.
Section 4.15 Covenant Termination.
(c) SECTION 4.09 of the Indenture is hereby deleted in its entirety and replaced with the following:
SECTION 4.09 Compliance Certificate. The Company shall comply with Section 314(a)(4) of the TIA to the extent applicable.
(d) SECTION 5.01 of the Indenture is hereby deleted in its entirety and replaced with the following:
Section 5.01 When Company May Merge or Transfer Assets. (a) Neither the Company nor any Note Guarantor will consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the Successor Company) shall be a corporation, partnership or limited liability company organized and existing under the laws of the United States of America, any state thereof or the District of Columbia (or in the case of a Note Guarantor, a corporation, partnership or limited liability company organized and existing under the laws of the jurisdiction under which such Note Guarantor was organized) and the Successor Company (if not the Company or a Note Guarantor) shall expressly assume, by a supplemental indenture hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company or such Note Guarantor, as the case may be, under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company, the Parent or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Company, the Parent or such Restricted Subsidiary at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Parent shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
The Successor Company will succeed to, and be substituted for, and may exercise every right and power of the Company or Note Guarantor, as the case may be, under the Indenture, but the predecessor in the case of a conveyance, transfer or lease of all or substantially all of its assets will not be released from the obligation to pay the principal of and interest on the Securities.
(b) Notwithstanding the foregoing, (i) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Company or any Note Guarantor; (ii) any Restricted Subsidiary that is not a Note Guarantor may consolidate with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary that is not a Note Guarantor; and (iii) the Parent or the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating the Parent or the Company, as the case may be, in another jurisdiction to realize tax or other benefits.
(e) SECTION 6.01(c) of the Indenture is hereby deleted in its entirety and replaced with the following:
the Parent or any Restricted Subsidiary fails to comply with Section 5.01;
(f) SECTION 6.01(d) is hereby deleted in its entirety and replaced in lieu thereof with the words [Intentionally Deleted].
(g) The penultimate paragraph in SECTION 6.01 is hereby deleted in its entirety and replaced with the following:
A default under clause (i) will not constitute an Event of Default until the Trustee notifies the Company or the holders of at least 25% in principal amount of the outstanding Securities notify the Company and the Trustee of the Default and the Company or the Note Guarantor, as applicable, does not cure such Default within the time specified in clause (i) hereof after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a Notice of Default.
(h) SECTION 6.12 of the Indenture is hereby deleted in its entirety and replaced in lieu thereof with the words [Intentionally Deleted].
(i) SECTIONS 8.02(a)(iii), (vi) and (vii) of the Indenture are hereby deleted in their entirety and replaced in lieu thereof with the words [Intentionally Deleted].
( j ) SECTION 9.04 of the Indenture is hereby deleted in its entirety and replaced with the following:
SECTION 9.04. Revocation and Effect of Consents and Waivers. (a) A consent to an amendment or a waiver by a Holder of a Security shall bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting Holders Security, even if notation of the consent or waiver is not made on the Security. After an amendment or waiver becomes effective, it shall bind every Holder. An amendment or waiver becomes effective upon the (i) receipt by the Company or the Trustee of the requisite number of consents, (ii) satisfaction of conditions to effectiveness as set forth in this Indenture and any indenture supplemental hereto containing such amendment or waiver and (iii) execution of such amendment or waiver (or supplemental indenture) by the Company and the Trustee.
(k) SECTION 10.02(b) of the Indenture is hereby deleted in its entirety and replaced with the following:
A Note Guarantee of any Restricted Subsidiary which is a Note Guarantor shall be released and terminated (i) upon the sale (including by means of a merger) of all of the Capital Stock of such Note Guarantor made in compliance with the terms of this Indenture and (2) upon any release and termination of the Guarantee of the Indebtedness outstanding under the Credit Agreement (other than by reason of repayment and satisfaction of all of the Indebtedness outstanding under the Credit Agreement). At the request of the Company, the Trustee shall execute and deliver an appropriate instrument evidencing such release (in the form provided by the Company).
(l) SECTION 10.06 of the Indenture is hereby deleted in its entirety and replaced in lieu thereof with the words [Intentionally Deleted].
(m) The first clause of SECTION 11.05 is hereby deleted in its entirety and replaced with the following:
Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture shall include:
ARTICLE 2
MISCELLANEOUS
2.01. Ratification of Indenture, Supplemental Indentures Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. Upon the execution and delivery of this First Supplemental Indenture by the Company, the Note Guarantors and the Trustee, the Indenture shall be supplemented in accordance herewith. This First Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby, and the respective rights, limitation of rights, obligations, duties and immunities under the Indenture of the Company, the Note Guarantors and the Trustee, and the Holders of the Notes shall thereafter be determined, exercised and enforced thereunder, subject in all respects to such modifications and amendments, and all the terms and conditions of this First Supplemental Indenture shall be deemed to be part of the terms and conditions of the Indenture and the Notes theretofore issued for any and all purposes.
2.02. Governing Law . THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
2.03. Trustee Acceptance . The Trustee accepts the amendment of the Indenture effected by this First Supplemental Indenture, but only upon the terms and conditions set forth in the Indenture, as hereby amended, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee in the performance of its duties and obligations under the Indenture, as hereby amended. Without limiting the generality of the foregoing, the Trustee has no responsibility for the correctness of the recitals of fact herein contained which shall be taken as the statements of the Company, and makes no representations as to the validity or sufficiency of this First Supplemental Indenture.
2.04. Severability Clause . In case any provision of this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
2.05. Counterparts . The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
2.06. Definitions, Effect of Headings . All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture. The section headings herein are for convenience only and shall not effect the construction thereof.
2.07. Effectiveness of First Supplemental Indenture . This First Supplemental Indenture shall become effective upon execution hereof by all parties hereto. All of the provisions of this First Supplemental Indenture other than Article I hereof will become operative on, and simultaneously with, the time that this First Supplemental Indenture becomes effective. Article I of this First Supplemental Indenture will become operative upon, and simultaneously with, and shall have no force or effect prior to the acceptance by the Company for purchase the (the Acceptance Date) of at least a majority in principal amount of Notes then outstanding pursuant to the Tender Offer.
2.08. Termination . Prior to the Acceptance Date, the Company may terminate this First Supplemental Indenture upon written notice to the Trustee.
2.09. Successors . All agreements of the Company and each Note Guarantor in this First Supplemental Indenture shall bind their respective successors. All agreements of the Trustee in this First Supplemental Indenture shall bind its successors.
2.10. Trust Indenture Act Controls . If and to the extent that any provision of this First Supplemental Indenture limits, qualifies or conflicts with the duties imposed by, or with another provision (an incorporated provision) included in the Indenture or this First Supplemental Indenture by operation of, Sections 310 to 318 of the TIA, inclusive, such imposed duties or incorporated provision shall control.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the date first above written.
THE KANSAS CITY SOUTHERN RAILWAY COMPANY
By /s/ Michael W. Cline
Name: Michael W. Cline
Title: VP-Finance & Treasurer
KANSAS CITY SOUTHERN
By /s/ Michael W. Cline
Name: Michael W. Cline
Title: VP-Finance & Treasurer
GATEWAY EASTERN RAILWAY COMPANY
By /s/ Michael W. Cline
Name: Michael W. Cline
Title: VP & Treasurer
PABTEX , INC
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By
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/s/ William J. Wochner | |
|
Name: William J. Wochner
Title: Vice President
SOUTHERN DEVELOPMENT COMPANY
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By
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/s/ William J. Wochner | |
|
Name: William J. Wochner
Title: Vice President
SOUTHERN INDUSTRIAL SERVICES, INC.
|
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By
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/s/ William J. Wochner | |
|
Name: William J. Wochner
Title: Vice President
TRANS-SERVE, INC.
|
||
By
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/s/ Michael W. Cline | |
|
Name: Michael W. Cline
Title: Vice President & Treasurer
1
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By
/s/Michael M. Hopkins
Name: Michael M. Hopkins
Title: Vice President
2
EXHIBIT 10.3
US
KANSAS CITY SOUTHERN
2008 STOCK OPTION AND PERFORMANCE AWARD PLAN
NON-QUALIFIED STOCK OPTION, RESTRICTED SHARE AND PERFORMANCE SHARE
AWARD AGREEMENT
By this Agreement, Kansas City Southern, a Delaware corporation (the Company), grants to you,
[Name]
, an employee of the Company or an Affiliate, (you), (i) a non-qualified stock Option to
purchase the number of shares of the Companys Common Stock set forth below, (ii) the number of
Restricted Shares set forth below, and (iii) the number of Performance Shares set forth below,
which Performance Shares represent a conditional right to receive a number of Shares determined by
the satisfaction of performance goals for the applicable Performance Period; all subject to the
terms and conditions set forth below and in the attached Exhibit A and in the Kansas City Southern
2008 Stock Option and Performance Award Plan (including Committee rules, regulations, policies and
procedures established thereunder), as may from time to time be amended (the Plan), all of which
are an integral part of this Agreement.
NON-QUALIFIED STOCK OPTION
[Date]
[Number of options]
[Grant date FMV]
This Option shall become exercisable in accordance with the schedule below, provided you remain
continuously employed by the Company or an Affiliate from the Grant Date to such date. The term of
the Option shall be ten (10) years from the Grant Date unless terminated earlier as provided in
Exhibit A or in the Plan.
RESTRICTED SHARES
PERFORMANCE SHARES
The Award evidenced by this Agreement shall not be effective unless you have indicated your
acceptance of this Agreement by signing one copy of this Agreement in the space provided below and
returning it to the Corporate Secretarys Office, in the envelope provided, promptly after your
receipt of this Agreement from the Company. You should retain one copy of this Agreement for your
records.
Kansas City Southern
By:
ACCEPTANCE OF GRANTEE: (
To be completed by grantee and returned to Corporate Secretarys Office)
As described in the attached Exhibit A, you may make your tax payment with respect to your
Restricted Share and Performance Share Awards by check or by share withholding. If you decide to
make your payment by check, you will need to provide a check for the full payment on the tax
liability date. If you decide to make your payment by share withholding, the Company will withhold
the necessary number of shares to pay the tax withholding from the Restricted Shares or Performance
Shares when they vest. Whole shares only will be withheld, having a value on the vesting date not
greater than the tax payment due. You will need to provide a check for any remaining amount of the
tax payment due. The Corporate Secretarys office will notify you of the amount due and the date
by which payment will be required. Checks must be made payable to Kansas City Southern.
Please indicate below how you will make your tax withholding payment with respect to your
Restricted Shares and Performance Shares and return this form to the Corporate Secretarys office.
I
irrevocably
elect to pay the tax withholding on the above referenced Restricted Shares and
Performance Shares by (choose only one):
I understand that my election above does not apply to tax withholding on my Non-Qualified
Stock Options and that I may make a tax withholding election with respect to my Non-Qualified Stock
Options in accordance with the terms of Exhibit A.
I further understand that, by signing below, I hereby accept the above Award on the terms and
conditions set forth herein and in attached Exhibit A.
ACCEPTED AND AGREED:
1
EXHIBIT A
You received three Awards under this Agreement: an Award of Non-Qualified Stock Options, an
Award of Restricted Shares and an Award of Performance Shares. This Exhibit A consists of three
sections. The first section applies to your Award of Non-Qualified Stock Options. The second
section applies to your Award of Restricted Shares. The third section applies to your Award of
Performance Shares. The fourth section contains provisions that apply to all your three types of
Awards.
Non-Qualified Stock Option Award
1.
Manner of Exercise
.
This Option shall be exercised by delivering to the Company
(or its authorized agent), during the period in which such Option is exercisable, (i) a notice,
which may be electronic, of your intent to purchase a specific number of Shares pursuant to this
Option (a Notice of Exercise), and (ii) full payment of the Option Price for such specific number
of Shares. Payment may be made by any one or more of the following means:
(a) cash, personal check, or wire transfer;
(b) if approved and permitted by the Committee, Shares owned by you with a Fair Market
Value on the date of exercise equal to the Option Price, which such Shares must be fully
paid, non-assessable, and free and clear from all liens and encumbrances;
(c) if approved and permitted by the Committee, through the sale of the Shares acquired
on exercise of this Option through a broker to whom you have submitted irrevocable
instructions to deliver promptly to the Company an amount sufficient to pay for such Shares,
together with, if required by the Company, the minimum statutory amount of federal, state,
local or foreign withholding taxes payable by reason of such exercise. A copy of such
delivery instructions must also be delivered to the Company by you with the Notice of
Exercise; or
(d) if approved and permitted by the Committee, with Restricted Shares owned by you
with a Fair Market Value on the date of exercise equal to the Option Price, in which case an
equal number of Shares delivered on exercise of the Option will carry the same restrictions
as the Restricted Shares tendered to pay the exercise price.
The exercise of the Option shall become effective at the time such a Notice of Exercise has
been received by the Company, which must be before the tenth (10th) anniversary of the Grant Date
(the Expiration Date), unless an earlier date is provided herein. You shall not have any rights
as a stockholder of the Company with respect to the Shares deliverable upon exercise of this Option
until ownership of such Shares is recorded in your name on the books of the Company
If the Option is exercised as permitted herein by any person or persons other than you, such
Notice of Exercise shall be accompanied by such documentation as Company may reasonably require,
including without limitation, evidence of the authority of such person or persons to exercise the
Option and evidence satisfactory to Company (if required by the Company) that any death taxes
payable with respect to such Shares have been paid or provided for.
2.
Exercisability
. This Option shall become exercisable upon the date(s) specified in
this Award Agreement, provided you remain continuously employed by the Company or an Affiliate from
the Grant Date to such date(s) the Option becomes exercisable. This Option shall also become fully
exercisable upon your Termination of Affiliation on account of: (a) Retirement, (b) death or (c)
Disability. For purpose of your Option, Retirement means Retirement as defined in the Plan
(Termination of Affiliation after having both attained age 55 and completed 10 years of service)
and as otherwise specified in Committee rules, regulations or policies (currently Termination of
Affiliation after having attained age 65).
3.
Change of Control
. This Option shall become fully exercisable upon a Change of
Control, provided you have not had a Termination of Affiliation prior to such Change of Control.
4.
Exercise After Termination of Affiliation
. This Option may be exercised only while
you are employed by the Company or an Affiliate, except that this Option may also be exercised
after the date on which you have a Termination of Affiliation (Termination Date) as follows:
(i) if you have a Termination of Affiliation by reason of your Retirement, you may
exercise this Option at any time during the first five (5) years after your Termination
Date;
(ii) if you have a Termination of Affiliation by reason of your Disability, you may
exercise this Option at any time during the first twelve (12) months after your Termination
Date;
(iii) if you have a Termination of Affiliation by reason of your death, the executor or
administrator of your estate, your heirs or legatees, or beneficiary designated in
accordance with the Plan, as applicable, may exercise this Option at any time during the
first twelve (12) months after your Termination Date; and
(iv) if you have a Termination of Affiliation for any reason other than as described in
subparagraph (i), (ii) or (iii) above, or as provided in paragraph 5, you may exercise this
Option at any time during the first three (3) months after your Termination Date;
provided, however, that (x) except as otherwise provided in paragraphs 2 or 3 of this Non-Qualified
Stock Option Award section, this Option may be exercised after your Termination Date only to the
extent it is exercisable on the Termination Date, and (y) under no circumstances may this Option be
exercised on or after the Expiration Date. For purposes of this paragraph 4, if you are employed
by an Affiliate of the Company, you will be deemed to have had a Termination of Affiliation as of
the first day on which such corporation ceases to be an Affiliate of the Company.
5.
Affiliation with Competitor/Dismissal for Cause
. Notwithstanding anything to the
contrary contained herein, if you have a Termination of Affiliation due to a dismissal for Cause,
or if you, without Companys consent, become associated with, employed by, render service to, or
own any interest in (other than any non-substantial interest, as the Committee from time to time
determines) any business that is in competition with (i) the Company or (ii) any Related Company
(as defined below), this Option shall terminate and cease to be exercisable immediately upon such
event. For purposes of this paragraph, Related Company means (i) any individual or entity that
directly, or through one or more intermediaries, controls, or is controlled by, or is under common
control with, the Company, and (ii) any entity in which the Company owns, directly or indirectly,
twenty percent (20%) or more of the combined value of all equity interests.
6.
Limited Transferability of Option
. Except as provided in the immediately following
sentence, this Option is exercisable during your lifetime only by you or your guardian or legal
representative, and this Option is not transferable except by will or the laws of descent and
distribution. To the extent and in the manner permitted by the Committee, and subject to such
terms, conditions, restrictions or limitations as may be prescribed by the Committee, you may
transfer this Option to (i) your spouse, sibling, parent, child (including an adopted child) or
grandchild (any of which an Immediate Family Member); (ii) a trust, the primary beneficiaries of
which consist exclusively of you or your Immediate Family Members; or (iii) a corporation,
partnership or similar entity, the owners of which consist exclusively of you or your Immediate
Family Members.
7.
Fractional or De Minimis Shares
. The Option shall not be exercisable with respect
to a fractional share or with respect to fewer that ten (10) Shares, unless the remaining Shares
are fewer than ten (10).
8.
Nonstatutory Option
. This Option has been designated by the Committee as a
Nonstatutory Option; it does not qualify as an Incentive Stock Option.
Restricted Shares Award
1.
Payment
. The Restricted Shares are awarded to you without requirement of payment.
2.
Transfer Restrictions
. Until the restrictions lapse, the Restricted Shares may not
be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by you, and
any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall
be void and unenforceable; provided that the designation of a beneficiary pursuant to Article 14 of
the Plan shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance. Certificates will be transferred to you only as provided in paragraph 3 of this
Restricted Shares Award section.
3.
Record of Ownership
. The number of your Restricted Shares with respect to which
the restrictions have lapsed will be released from restrictions on the books of the Company.
Delivery may be effected on an uncertificated basis, to the extent not prohibited by applicable law
or the rules of the New York Stock Exchange. To the extent the Shares are delivered in
uncertificated form, those Shares shall be deposited directly with Charles Schwab Trust Company, or
such other agent designated by the Company, and the Company may utilize electronic or automated
methods to transfer the Shares. Until the restrictions lapse, your Restricted Shares either will
be evidenced by certificates held by or on behalf of the Company (in which case you will sign and
deliver to the Company a stock power relating to the Restricted Shares so that the Company may
cancel the Restricted Shares in the event of forfeiture), or the Restricted Shares will be
reflected in a book-entry form or other account maintained by the Company, as determined by the
Company.
4.
Rights as Stockholder
. During the Period of Restriction you will have all of the
rights of a stockholder of the Company with respect to the Restricted Shares subject to the
provisions of paragraph 2 of this Restricted Shares Award section.
5.
Lapse of Restrictions Other than Upon Retirement
. The Restricted Shares will vest
and no longer be subject to restrictions upon the first of the following events to occur:
(a) The end of the Period of Restriction, provided your Termination of Affiliation does not
occur prior to that date; or
(b) Your Termination of Affiliation by reason of your death;
(c) Your Termination of Affiliation by reason of your Disability; or
(d) A Change of Control.
6.
Nonforfeitability of Shares Upon Retirement
. Notwithstanding any provision in this
Agreement to the contrary, if you satisfy the conditions for Retirement prior to the expiration of
the Period of Restriction, then your Restricted Shares will become non-forfeitable in accordance
with (a), (b) or (c) below, as applicable:
(a) If you first satisfy the conditions for Retirement on or before February , 2013,
then (i) one-third (1/3) of your Restricted Shares will become non-forfeitable on February
, 2013 provided you have not incurred a Termination of Affiliation before such date; (ii)
an additional one-third (1/3) of your Restricted Shares will become non-forfeitable on
February , 2014 provided you have not incurred a Termination of Affiliation before such
date; and (iii) the final one-third (1/3) of your Restricted Shares will become
non-forfeitable on February , 2015 provided you have not incurred a Termination of
Affiliation before such date.
(b) If you first satisfy the conditions for Retirement after February , 2013 but on
or before February , 2014, then (i) one-third (1/3) of your Restricted Shares will become
non-forfeitable on the last day of the month during which you first satisfy the conditions
for Retirement provided you have not incurred a Termination of Affiliation before such date;
(ii) an additional one-third (1/3) of your Restricted Shares will become non-forfeitable on
February , 2014 provided you have not incurred a Termination of Affiliation before such
date; and (iii) the final one-third (1/3) of your Restricted Shares will become
non-forfeitable on February , 2015 provided you have not incurred a Termination of
Affiliation before such date; and
(c) If you first satisfy the conditions for Retirement after February , 2014 but on
or before February , 2015, then (i) two-thirds (2/3) of your Restricted Shares will become
non-forfeitable on the last day of the month during which you first satisfy the conditions
for Retirement provided you have not incurred a Termination of Affiliation before such date;
and (ii) the final one-third (1/3) of your Restricted Shares will become non-forfeitable on
February , 2015 provided you have not incurred a Termination of Affiliation before such
date.
Although certain of your Restricted Shares may become non-forfeitable as set forth above prior
to the expiration of the Period of Restriction, such Shares shall remain subject to the
restrictions on transfer set forth in paragraph 2 of this Restricted Shares Award section until the
earlier of your Termination of Affiliation or the expiration of the Period of Restriction. For
purposes of the foregoing, you will satisfy the conditions for Retirement only if you have
attained age 55 and completed 10 years of service, or you have attained age 65, prior to your
Termination of Affiliation.
7.
Acceleration of Vesting
. The Committee may at any time or times in its discretion
accelerate the vesting of some or all of your Restricted Shares by specifying a date, other than
what is provided in this Agreement, on which the Period of Restriction ends and such Shares will no
longer be subject to restrictions. Any such Shares that become vested under this paragraph 7 will
not be forfeited under paragraph 8 of this Restricted Shares Award section.
8.
Forfeiture
. If you have a Termination of Affiliation prior to any of the events
specified in paragraphs 5, 6 or 7 of this Restricted Shares Award section, then you will forfeit
your Restricted Shares that are not vested upon such Termination of Affiliation. All of your
rights to and interest in any Restricted Shares that are forfeited under this paragraph 9 will
terminate upon forfeiture.
Performance Shares Award
1.
Payment
. The Performance Shares are awarded to you without requirement of payment
by you.
2.
Transfer Restrictions
. The Performance Shares are rights that may not be assigned,
alienated, pledged, attached, sold or otherwise transferred or encumbered by you, and any such
purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void
and unenforceable; provided that the designation of a beneficiary pursuant to Article 14 of the
Plan shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance.
3.
Number of Shares Earned
. Your Award of Performance Shares specifies a number of
Performance Shares awarded with respect to the FY 2012-14 Performance Period. The number of
Performance Shares designated for the FY 2012-14 Performance Period represents a target number of
Shares to be earned if the Company performance goals (the Performance Goals) are met for the FY
2012-14 Performance Period. As of the last day of the FY 2012-14 Performance Period, the Committee
will determine, in accordance with the Schedule of Performance Goals below (the Performance
Schedule), the number of Shares, if any, earned by you. The earned Shares will be paid as
provided in paragraph 7 of this Performance Shares Award section subject to satisfaction of the
vesting requirements and forfeiture provisions of paragraph 4 and paragraph 10 of this Performance
Shares Award section.
4.
Vesting
. The number of Shares earned as determined under the Performance Schedule
will be paid to you only if you become vested in the Shares. You will become vested in the Shares
on the Vesting Date provided you do not have a Termination of Affiliation prior to the Vesting Date
except as otherwise provided in paragraph 5 and paragraph 6 of this Performance Shares Award
section, and subject to any other forfeiture of Shares under paragraph 10 of this Performance
Shares Award section. If you have a Termination of Affiliation prior to the Vesting Date, then
except as provided in paragraph 5 and paragraph 6 of this Performance Shares Award section, you
will forfeit all Performance Shares, and will have no right to earn or receive payment of any
Shares under this Agreement.
5.
Termination of Affiliation Due to Retirement
. If you have a Termination of
Affiliation prior to the Vesting Date due to Retirement, a portion of your Performance Shares will
be forfeited and you will have no right to earn or receive payment of any Shares with respect to
such forfeited portion. The forfeited portion shall be equal to your Performance Shares times a
fraction, the numerator of which is the total number of remaining whole months in the FY 2012-14
Performance Period and the denominator of which is 36 months. The portion of your Performance
Shares not forfeited pursuant to the foregoing shall be earned based on the applicable performance
percentage determined in accordance with the Performance Schedule and shall be paid as provided in
paragraph 7 of this Performance Shares Award. For purposes of your Performance Share Award,
Retirement means Retirement as defined in the Plan (Termination of Affiliation after having both
attained age 55 and completed 10 years of service) and as otherwise specified in Committee rules,
regulations or policies (currently Termination of Affiliation after having attained age 65).
6.
Termination of Affiliation Due to Change in Control, Death or Disability
. If you
have a Termination of Affiliation prior to the Vesting Date due to a Change in Control or due to
your death or Disability, then upon such Termination of Affiliation, you will be deemed to have
earned a number of Shares determined under the Performance Schedule as if the Performance Goals
were at Target.
7.
Payment of Shares
. Except as provided in the following sentence, the Shares, if
any, earned by you under this Agreement, and not forfeited under this Agreement, will be delivered
to you, or your beneficiary if you are deceased, for the number of Shares earned as soon as
practicable after the latest to occur of (a) the Vesting Date, or (b) the determination of the
number of all Shares, if any, earned by you under this Agreement with respect to the FY 2012-14
Performance Period. Notwithstanding the preceding sentence, in the event of vesting prior to the
Vesting Date under the provisions of paragraph 6 of this Performance Shares Award section, then the
Shares, if any, earned by you will be delivered to you or your beneficiary as soon as practicable
after your Termination of Affiliation. Delivery of Shares may be effected on an uncertificated
basis, to the extent not prohibited by applicable law or the rules of the New York Stock Exchange.
To the extent the Shares are delivered in uncertificated form, your Shares shall be deposited
directly with Charles Schwab Trust Company, or such other agent designated by the Company, and the
Company may utilize electronic or automated methods to transfer the Shares.
8.
Rights as Stockholder
. Prior to the time you receive a payment of Shares under
this Agreement, you will have no rights of a stockholder of the Company with respect to your
Performance Shares or any Shares which may be or have been earned by you. Accordingly, with
respect to the Performance Shares or any unearned or earned but unpaid Shares, in addition to the
restrictions under paragraph 2 of this Performance Shares Award section, you will not have the
right to vote, you will not receive or be entitled to receive cash or non-cash dividends, and you
will not have any other beneficial rights as a shareholder of the Company.
9.
Acceleration of Vesting Date
. The Committee may at any time or times in its
discretion accelerate the Vesting Date. The Committee will accelerate the Vesting Date by
specifying an earlier Vesting Date. Acceleration of the Vesting Date under this paragraph 9 will
not result in an earlier payment of any Shares.
10.
Additional Forfeiture Provision and Repayment Obligation
. Notwithstanding any
provisions of this Agreement to the contrary, if the Committee determines that you have engaged in
Gross Misconduct as defined in this paragraph 10, then: (a) you will immediately forfeit all
Performance Shares awarded to you, and all earned or unearned Shares, for the FY 2012-14
Performance Period under this Agreement, and you will have no right to receive payment of any
Shares under this Agreement and (b) you will repay to the Company a number of Shares, or a dollar
amount equal to the current Fair Market Value of a number of Shares, equal to the number of Shares
previously paid to you under this Agreement. For purposes of this paragraph 10, Gross Misconduct
means intentional conduct in disregard of the Companys expectations of someone in your position
with the Company that has caused significant financial harm to the Company, whether occurring
before or after your Termination of Affiliation.
Provisions Applicable to Your Non-Qualified Stock Option Award, Restricted Shares Award and
1.
Plan Governs
. The Non-Qualified Stock Option Award, Restricted Shares Award and
Performance Share Award and this Agreement are subject to the terms and conditions of the Plan.
The Plan is incorporated in this Agreement by this reference. All capitalized terms used in this
Agreement have the meaning set forth in the Plan unless otherwise defined in this Agreement. By
executing this Agreement, you acknowledge receipt of a copy of the Plan and the prospectus covering
the Plan and you acknowledge that the Award is subject to all the terms and provisions of the Plan.
You further agree to accept as binding, conclusive and final all decisions and interpretations by
the Plan Committee with respect to any questions arising under the Plan. By signing this Agreement
with respect to your Non-Qualified Stock Option Award, you are not obligated to exercise all or any
part of this Option or any other Option.
2.
Tax Withholding
. As of any date that a required tax withholding liability
(Required Withholding) occurs, you must remit the minimum amount necessary to satisfy the
Required Withholding. The Company will not deliver Shares to you or release the restrictions on
Shares under this Agreement unless you remit (or in appropriate cases agree to remit) or otherwise
provide for the Required Withholding as described below. In the event the Required Withholding is
not equal to the number of whole Shares used to satisfy such Required Withholding as provided
below, you will be required to pay the additional amount in cash, either by a cash payment or by
withholding from compensation otherwise payable to you.
(a) With respect to your Non-Qualified Stock Option Award, the Committee may require
you to satisfy the Required Withholding by any (or a combination) of the following means:
(a) a cash payment; (b) withholding from compensation otherwise payable to you; (c)
withholding from any of your Restricted Shares that are no longer subject to forfeiture,
from Shares purchased upon exercise of an Option, or from any Shares payable to you a number
of Shares sufficient to pay the minimum statutory amount of the Required Withholding; or (d)
delivering to the Company Mature Shares having a Fair Market Value sufficient to pay the
minimum statutory amount of the Required Withholding. The Committee may give you the
opportunity to elect to satisfy such Required Withholding in one or more of the above
methods. If this election is extended to you, the Committee hereby accepts your irrevocable
election made prior to the time the Required Withholding liability occurs. The Company
retains the discretion to require a specific method of withholding and may exercise such
discretion at any time prior to the Required Withholding or, if applicable, the earlier date
of your irrevocable election.
(b) With respect to your Restricted Shares Award and Performance Share Award, the
Committee may require you to satisfy the Required Withholding by either (or a combination)
of the following means: (a) a cash payment, or (b) withholding from your Restricted Shares
or Performance Shares that are no longer subject to forfeiture a number of whole Shares
sufficient to pay the minimum statutory amount of the Required Withholding. The Committee
may give you the opportunity to elect to satisfy such Required Withholding in one or both of
the above methods. If this election is extended to you, the Committee hereby accepts your
irrevocable election made prior to the time the Required Withholding liability occurs. The
Company retains the discretion to require a specific method of withholding and may exercise
such discretion at any time prior to the Required Withholding or, if applicable, the earlier
date of your irrevocable election.
3.
No Right to Employment
. Nothing in this Agreement shall interfere with or limit in
any way the right of the Company or an Affiliate to terminate your employment or service at any
time, nor confer upon you the right to continue in the employ of the Company or an Affiliate.
4.
Notices
. Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Corporate Secretary. Any notice to be given to
you shall be addressed to you at the address listed in the Companys records. By written notice
referencing this paragraph of this Agreement, either party may designate a different address for
notices. Any notice under this Agreement to the Company shall become effective upon receipt by the
Company. Any notice under this Agreement to you will be deemed to have been delivered to you when
delivered in person or when deposited in the United States mail, addressed to you at your address
on the shareholder records of the Company, or such other address as you have designated under this
paragraph.
5.
Tax Consultation
. Your signature on this Agreement means that you understand that
you may incur tax consequences as of any date that a number (which may be all or part) of your
Restricted Shares or Performance Shares would no longer be forfeited if you were to have a
Termination of Affiliation on such date, and that special tax rules apply with respect to your
Non-Qualified Stock Option. You agree to consult with any tax consultants you think advisable in
connection with tax issues regarding your Non-Qualified Stock Option Award, Restricted Shares Award
and Performance Share Award and you acknowledge that you are not relying, and will not rely, on the
Company or any Affiliate for any tax advice. Please see Section 17.2 of the Plan regarding Code
Section 83(b) elections with respect to your Restricted Shares.
6.
Amendment
. The Company reserves the right to amend the Plan at any time. The
Committee reserves the right to amend this Agreement at any time.
7.
Severability
. If any part of this Agreement is declared by any court or
governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not serve
to invalidate any part of this Agreement not declared to be unlawful or invalid. Any part so
declared unlawful or invalid shall, if possible, be construed in a manner which gives effect to the
terms of such part to the fullest extent possible while remaining lawful and valid.
8.
Applicable Law
. This Agreement shall be governed by the laws of the State of
Delaware other than its laws respecting choice of law.
9.
Headings
. Headings are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
10.
No Waiver
. The failure of Company in any instance to exercise any of its rights
granted under this Agreement or the Plan shall not constitute a waiver of any other rights that may
arise under this Agreement.
11.
Right of Recovery
. Notwithstanding any provisions of this Agreement to the
contrary, the Company may recover from you any amount paid or payable pursuant to this Agreement
which is required to be recovered under the rules of any exchange on which the Companys Shares are
registered and any amount the Committee determines is appropriate under the Companys policies
regarding recovery of incentive compensation, as such policies may be effect from time to time.
2
Schedule of Performance Goals for Performance Shares
The number of Shares earned for the FY 2012-14 Performance Period will be determined by calculating
the average of the earned percentage for each fiscal year, and then multiplying such average
earned percentage times the number of Performance Shares subject to this Award Agreement. To
determine the earned percentage for a fiscal year, the Committee will compare the Companys
actual performance for the fiscal year to the Performance Goals for such fiscal year as set forth
in the above schedule. If the calculated percentage is between Threshold and Maximum for any
fiscal year, then the earned percentage will be prorated. If the calculated percentage is below
Threshold, then the earned percentage for the fiscal year will be 0%. If the calculated percentage
is above Maximum, then the earned percentage will be 200%. For purposes of the foregoing, any
fractional Share earned with respect to the FY 2012-14 Performance Period shall be rounded down to
the nearest whole Share.
3
Number of Options Exercisable
Date Exercisable
[
]
[
]
[
]
[Date]
[Number of shares]
February , 2015
Grant Date:
Number of Performance Shares (at target):
3-Year Performance Period
Period of Restriction / Vesting Date:
or (ii) the date the Committee
certifies that the Performance
Goals for the FY 2012-14
Performance Period are (or are not)
satisfied.
Name and Title:
for any amount due in excess of the value of the withheld shares.)
Date:
[Address]
[City, State, Zip]
to
NON-QUALIFIED STOCK OPTION, RESTRICTED SHARE AWARD, AND
PERFORMANCE SHARE AWARD AGREEMENT
Performance Share Award
Return on Invested
Capital
FY 2012-14
(ROIC)
1
Operating Ratio (OR)
2
Earned Percentage
Performance Level
(75% Weighting)
(25% Weighting)
of Incentive Target
2012
[
]
[
]
50
%
[
]
[
]
100
%
[
]
[
]
200
%
2013
[
]
[
]
50
%
[
]
[
]
100
%
[
]
[
]
200
%
[
]
[
]
50
%
[
]
[
]
100
%
[
]
[
]
200
%
1
ROIC is defined as the quotient of the
Companys net operating profit after taxes (NOPAT) for the applicable
performance period divided by the Companys invested capital where (i) NOPAT is
the sum of the Companys net income plus interest expense, interest on the
present value of the Companys operating leases, and debt retirement costs (all
preceding items tax effected), with further adjustments to eliminate the
after-tax effects of any foreign exchange gains/losses, the foreign exchange
impact on the companys Effective Tax Rate (ETR) and changes in accounting
principles, and (ii) invested capital is the sum of the Companys average
equity balance, average debt balance and the present value of the Companys
operating leases, with further adjustments to eliminate the average equity
impacts of changes in accounting principles.
2
OR is defined as the Companys consolidated
operating ratio.
EXHIBIT 10.4
Non-US
KANSAS CITY SOUTHERN
2008 STOCK OPTION AND PERFORMANCE AWARD PLAN
NON-QUALIFIED STOCK OPTION, RESTRICTED SHARE AND PERFORMANCE SHARE
AWARD AGREEMENT
By this Agreement, Kansas City Southern, a Delaware corporation (the Company), grants to you,
[Name]
, an employee of the Company or an Affiliate, (you), (i) a non-qualified stock Option to
purchase the number of shares of the Companys Common Stock set forth below, (ii) the number of
Restricted Shares set forth below, and (iii) the number of Performance Shares set forth below,
which Performance Shares represent a conditional right to receive a number of Shares determined by
the satisfaction of performance goals for the applicable Performance Period; all subject to the
terms and conditions set forth below and in the attached Exhibit A and in the Kansas City Southern
2008 Stock Option and Performance Award Plan (including Committee rules, regulations, policies and
procedures established thereunder), as may from time to time be amended (the Plan), all of which
are an integral part of this Agreement.
NON-QUALIFIED STOCK OPTION
[Date]
[Number of options]
[Grant date FMV]
This Option shall become exercisable in accordance with the schedule below, provided you remain
continuously employed by the Company or an Affiliate from the Grant Date to such date. The term of
the Option shall be ten (10) years from the Grant Date unless terminated earlier as provided in
Exhibit A or in the Plan.
RESTRICTED SHARES
PERFORMANCE SHARES
The Award evidenced by this Agreement shall not be effective unless you have indicated your
acceptance of this Agreement by signing one copy of this Agreement in the space provided below and
returning it to the Corporate Secretarys Office, in the envelope provided, promptly after your
receipt of this Agreement from the Company. You should retain one copy of this Agreement for your
records.
Kansas City Southern
By:
ACCEPTANCE OF GRANTEE: (
To be completed by grantee and returned to Corporate Secretarys Office)
I understand that, by signing below, I hereby accept the above Award on the terms and
conditions set forth herein and in attached Exhibit A.
ACCEPTED AND AGREED:
1
EXHIBIT A
You received three Awards under this Agreement: an Award of Non-Qualified Stock Options, an
Award of Restricted Shares and an Award of Performance Shares. This Exhibit A consists of three
sections. The first section applies to your Award of Non-Qualified Stock Options. The second
section applies to your Award of Restricted Shares. The third section applies to your Award of
Performance Shares. The fourth section contains provisions that apply to all your three types of
Awards.
Non-Qualified Stock Option Award
1.
Manner of Exercise
.
This Option shall be exercised by delivering to the Company
(or its authorized agent), during the period in which such Option is exercisable, (i) a notice,
which may be electronic, of your intent to purchase a specific number of Shares pursuant to this
Option (a Notice of Exercise), and (ii) full payment of the Option Price for such specific number
of Shares. Payment may be made by any one or more of the following means:
(a) cash, personal check, or wire transfer;
(b) if approved and permitted by the Committee, Shares owned by you with a Fair Market
Value on the date of exercise equal to the Option Price, which such Shares must be fully
paid, non-assessable, and free and clear from all liens and encumbrances;
(c) if approved and permitted by the Committee, through the sale of the Shares acquired
on exercise of this Option through a broker to whom you have submitted irrevocable
instructions to deliver promptly to the Company an amount sufficient to pay for such Shares,
together with, if required by the Company, the minimum statutory amount of federal, state,
local or foreign withholding taxes payable by reason of such exercise. A copy of such
delivery instructions must also be delivered to the Company by you with the Notice of
Exercise; or
(d) if approved and permitted by the Committee, with Restricted Shares owned by you
with a Fair Market Value on the date of exercise equal to the Option Price, in which case an
equal number of Shares delivered on exercise of the Option will carry the same restrictions
as the Restricted Shares tendered to pay the exercise price.
The exercise of the Option shall become effective at the time such a Notice of Exercise has
been received by the Company, which must be before the tenth (10th) anniversary of the Grant Date
(the Expiration Date), unless an earlier date is provided herein. You shall not have any rights
as a stockholder of the Company with respect to the Shares deliverable upon exercise of this Option
until ownership of such Shares is recorded in your name on the books of the Company
If the Option is exercised as permitted herein by any person or persons other than you, such
Notice of Exercise shall be accompanied by such documentation as Company may reasonably require,
including without limitation, evidence of the authority of such person or persons to exercise the
Option and evidence satisfactory to Company (if required by the Company) that any death taxes
payable with respect to such Shares have been paid or provided for.
2.
Exercisability
. This Option shall become exercisable upon the date(s) specified in
this Award Agreement, provided you remain continuously employed by the Company or an Affiliate from
the Grant Date to such date(s) the Option becomes exercisable. This Option shall also become fully
exercisable upon your Termination of Affiliation on account of: (a) Retirement, (b) death or (c)
Disability. For purpose of your Option, Retirement means Retirement as defined in the Plan
(Termination of Affiliation after having both attained age 55 and completed 10 years of service)
and as otherwise specified in Committee rules, regulations or policies (currently Termination of
Affiliation after having attained age 65).
3.
Change of Control
. This Option shall become fully exercisable upon a Change of
Control, provided you have not had a Termination of Affiliation prior to such Change of Control.
4.
Exercise After Termination of Affiliation
. This Option may be exercised only while
you are employed by the Company or an Affiliate, except that this Option may also be exercised
after the date on which you have a Termination of Affiliation (Termination Date) as follows:
(i) if you have a Termination of Affiliation by reason of your Retirement, you may
exercise this Option at any time during the first five (5) years after your Termination
Date;
(ii) if you have a Termination of Affiliation by reason of your Disability, you may
exercise this Option at any time during the first twelve (12) months after your Termination
Date;
(iii) if you have a Termination of Affiliation by reason of your death, the executor or
administrator of your estate, your heirs or legatees, or beneficiary designated in
accordance with the Plan, as applicable, may exercise this Option at any time during the
first twelve (12) months after your Termination Date; and
(iv) if you have a Termination of Affiliation for any reason other than as described in
subparagraph (i), (ii) or (iii) above, or as provided in paragraph 5, you may exercise this
Option at any time during the first three (3) months after your Termination Date;
provided, however, that (x) except as otherwise provided in paragraphs 2 or 3 of this Non-Qualified
Stock Option Award section, this Option may be exercised after your Termination Date only to the
extent it is exercisable on the Termination Date, and (y) under no circumstances may this Option be
exercised on or after the Expiration Date. For purposes of this paragraph 4, if you are employed
by an Affiliate of the Company, you will be deemed to have had a Termination of Affiliation as of
the first day on which such corporation ceases to be an Affiliate of the Company.
5.
Affiliation with Competitor/Dismissal for Cause
. Notwithstanding anything to the
contrary contained herein, if you have a Termination of Affiliation due to a dismissal for Cause,
or if you, without Companys consent, become associated with, employed by, render service to, or
own any interest in (other than any non-substantial interest, as the Committee from time to time
determines) any business that is in competition with (i) the Company or (ii) any Related Company
(as defined below), this Option shall terminate and cease to be exercisable immediately upon such
event. For purposes of this paragraph, Related Company means (i) any individual or entity that
directly, or through one or more intermediaries, controls, or is controlled by, or is under common
control with, the Company, and (ii) any entity in which the Company owns, directly or indirectly,
twenty percent (20%) or more of the combined value of all equity interests.
6.
Limited Transferability of Option
. Except as provided in the immediately following
sentence, this Option is exercisable during your lifetime only by you or your guardian or legal
representative, and this Option is not transferable except by will or the laws of descent and
distribution. To the extent and in the manner permitted by the Committee, and subject to such
terms, conditions, restrictions or limitations as may be prescribed by the Committee, you may
transfer this Option to (i) your spouse, sibling, parent, child (including an adopted child) or
grandchild (any of which an Immediate Family Member); (ii) a trust, the primary beneficiaries of
which consist exclusively of you or your Immediate Family Members; or (iii) a corporation,
partnership or similar entity, the owners of which consist exclusively of you or your Immediate
Family Members.
7.
Fractional or De Minimis Shares
. The Option shall not be exercisable with respect
to a fractional share or with respect to fewer that ten (10) Shares, unless the remaining Shares
are fewer than ten (10).
8.
Nonstatutory Option
. This Option has been designated by the Committee as a
Nonstatutory Option; it does not qualify as an Incentive Stock Option.
Restricted Shares Award
1.
Payment
. The Restricted Shares are awarded to you without requirement of payment.
2.
Transfer Restrictions
. Until the restrictions lapse, the Restricted Shares may not
be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by you, and
any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall
be void and unenforceable; provided that the designation of a beneficiary pursuant to Article 14 of
the Plan shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance. Certificates will be transferred to you only as provided in paragraph 3 of this
Restricted Shares Award section.
3.
Record of Ownership
. The number of your Restricted Shares with respect to which
the restrictions have lapsed will be released from restrictions on the books of the Company.
Delivery may be effected on an uncertificated basis, to the extent not prohibited by applicable law
or the rules of the New York Stock Exchange. To the extent the Shares are delivered in
uncertificated form, those Shares shall be deposited directly with Charles Schwab Trust Company, or
such other agent designated by the Company, and the Company may utilize electronic or automated
methods to transfer the Shares. Until the restrictions lapse, your Restricted Shares either will
be evidenced by certificates held by or on behalf of the Company (in which case you will sign and
deliver to the Company a stock power relating to the Restricted Shares so that the Company may
cancel the Restricted Shares in the event of forfeiture), or the Restricted Shares will be
reflected in a book-entry form or other account maintained by the Company, as determined by the
Company.
4.
Rights as Stockholder
. During the Period of Restriction you will have all of the
rights of a stockholder of the Company with respect to the Restricted Shares subject to the
provisions of paragraph 2 of this Restricted Shares Award section.
5.
Lapse of Restrictions Other than Upon Retirement
. The Restricted Shares will vest
and no longer be subject to restrictions upon the first of the following events to occur:
(a) The end of the Period of Restriction, provided your Termination of Affiliation does not
occur prior to that date; or
(b) Your Termination of Affiliation by reason of your death;
(c) Your Termination of Affiliation by reason of your Disability; or
(d) A Change of Control.
6.
Nonforfeitability of Shares Upon Retirement
. Notwithstanding any provision in this
Agreement to the contrary, if you satisfy the conditions for Retirement prior to the expiration of
the Period of Restriction, then your Restricted Shares will become non-forfeitable in accordance
with (a), (b) or (c) below, as applicable:
(a) If you first satisfy the conditions for Retirement on or before February , 2013,
then (i) one-third (1/3) of your Restricted Shares will become non-forfeitable on February
, 2013 provided you have not incurred a Termination of Affiliation before such date; (ii)
an additional one-third (1/3) of your Restricted Shares will become non-forfeitable on
February , 2014 provided you have not incurred a Termination of Affiliation before such
date; and (iii) the final one-third (1/3) of your Restricted Shares will become
non-forfeitable on February , 2015 provided you have not incurred a Termination of
Affiliation before such date.
(b) If you first satisfy the conditions for Retirement after February , 2013 but on
or before February , 2014, then (i) one-third (1/3) of your Restricted Shares will become
non-forfeitable on the last day of the month during which you first satisfy the conditions
for Retirement provided you have not incurred a Termination of Affiliation before such date;
(ii) an additional one-third (1/3) of your Restricted Shares will become non-forfeitable on
February , 2014 provided you have not incurred a Termination of Affiliation before such
date; and (iii) the final one-third (1/3) of your Restricted Shares will become
non-forfeitable on February , 2015 provided you have not incurred a Termination of
Affiliation before such date; and
(c) If you first satisfy the conditions for Retirement after February , 2014 but on
or before February , 2015, then (i) two-thirds (2/3) of your Restricted Shares will become
non-forfeitable on the last day of the month during which you first satisfy the conditions
for Retirement provided you have not incurred a Termination of Affiliation before such date;
and (ii) the final one-third (1/3) of your Restricted Shares will become non-forfeitable on
February , 2015 provided you have not incurred a Termination of Affiliation before such
date.
Although certain of your Restricted Shares may become non-forfeitable as set forth above prior
to the expiration of the Period of Restriction, such Shares shall remain subject to the
restrictions on transfer set forth in paragraph 2 of this Restricted Shares Award section until the
earlier of your Termination of Affiliation or the expiration of the Period of Restriction. For
purposes of the foregoing, you will satisfy the conditions for Retirement only if you have
attained age 55 and completed 10 years of service, or you have attained age 65, prior to your
Termination of Affiliation.
7.
Acceleration of Vesting
. The Committee may at any time or times in its discretion
accelerate the vesting of some or all of your Restricted Shares by specifying a date, other than
what is provided in this Agreement, on which the Period of Restriction ends and such Shares will no
longer be subject to restrictions. Any such Shares that become vested under this paragraph 7 will
not be forfeited under paragraph 8 of this Restricted Shares Award section.
8.
Forfeiture
. If you have a Termination of Affiliation prior to any of the events
specified in paragraphs 5, 6 or 7 of this Restricted Shares Award section, then you will forfeit
your Restricted Shares that are not vested upon such Termination of Affiliation. All of your
rights to and interest in any Restricted Shares that are forfeited under this paragraph 9 will
terminate upon forfeiture.
Performance Shares Award
1.
Payment
. The Performance Shares are awarded to you without requirement of payment
by you.
2.
Transfer Restrictions
. The Performance Shares are rights that may not be assigned,
alienated, pledged, attached, sold or otherwise transferred or encumbered by you, and any such
purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void
and unenforceable; provided that the designation of a beneficiary pursuant to Article 14 of the
Plan shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance.
3.
Number of Shares Earned
. Your Award of Performance Shares specifies a number of
Performance Shares awarded with respect to the FY 2012-14 Performance Period. The number of
Performance Shares designated for the FY 2012-14 Performance Period represents a target number of
Shares to be earned if the Company performance goals (the Performance Goals) are met for the FY
2012-14 Performance Period. As of the last day of the FY 2012-14 Performance Period, the Committee
will determine, in accordance with the Schedule of Performance Goals below (the Performance
Schedule), the number of Shares, if any, earned by you. The earned Shares will be paid as
provided in paragraph 7 of this Performance Shares Award section subject to satisfaction of the
vesting requirements and forfeiture provisions of paragraph 4 and paragraph 10 of this Performance
Shares Award section.
4.
Vesting
. The number of Shares earned as determined under the Performance Schedule
will be paid to you only if you become vested in the Shares. You will become vested in the Shares
on the Vesting Date provided you do not have a Termination of Affiliation prior to the Vesting Date
except as otherwise provided in paragraph 5 and paragraph 6 of this Performance Shares Award
section, and subject to any other forfeiture of Shares under paragraph 10 of this Performance
Shares Award section. If you have a Termination of Affiliation prior to the Vesting Date, then
except as provided in paragraph 5 and paragraph 6 of this Performance Shares Award section, you
will forfeit all Performance Shares, and will have no right to earn or receive payment of any
Shares under this Agreement.
5.
Termination of Affiliation Due to Retirement
. If you have a Termination of
Affiliation prior to the Vesting Date due to Retirement, a portion of your Performance Shares will
be forfeited and you will have no right to earn or receive payment of any Shares with respect to
such forfeited portion. The forfeited portion shall be equal to your Performance Shares times a
fraction, the numerator of which is the total number of remaining whole months in the FY 2012-14
Performance Period and the denominator of which is 36 months. The portion of your Performance
Shares not forfeited pursuant to the foregoing shall be earned based on the applicable performance
percentage determined in accordance with the Performance Schedule and shall be paid as provided in
paragraph 7 of this Performance Shares Award. For purposes of your Performance Share Award,
Retirement means Retirement as defined in the Plan (Termination of Affiliation after having both
attained age 55 and completed 10 years of service) and as otherwise specified in Committee rules,
regulations or policies (currently Termination of Affiliation after having attained age 65).
6.
Termination of Affiliation Due to Change in Control, Death or Disability
. If you
have a Termination of Affiliation prior to the Vesting Date due to a Change in Control or due to
your death or Disability, then upon such Termination of Affiliation, you will be deemed to have
earned a number of Shares determined under the Performance Schedule as if the Performance Goals
were at Target.
7.
Payment of Shares
. Except as provided in the following sentence, the Shares, if
any, earned by you under this Agreement, and not forfeited under this Agreement, will be delivered
to you, or your beneficiary if you are deceased, for the number of Shares earned as soon as
practicable after the latest to occur of (a) the Vesting Date, or (b) the determination of the
number of all Shares, if any, earned by you under this Agreement with respect to the FY 2012-14
Performance Period. Notwithstanding the preceding sentence, in the event of vesting prior to the
Vesting Date under the provisions of paragraph 6 of this Performance Shares Award section, then the
Shares, if any, earned by you will be delivered to you or your beneficiary as soon as practicable
after your Termination of Affiliation. Delivery of Shares may be effected on an uncertificated
basis, to the extent not prohibited by applicable law or the rules of the New York Stock Exchange.
To the extent the Shares are delivered in uncertificated form, your Shares shall be deposited
directly with Charles Schwab Trust Company, or such other agent designated by the Company, and the
Company may utilize electronic or automated methods to transfer the Shares.
8.
Rights as Stockholder
. Prior to the time you receive a payment of Shares under
this Agreement, you will have no rights of a stockholder of the Company with respect to your
Performance Shares or any Shares which may be or have been earned by you. Accordingly, with
respect to the Performance Shares or any unearned or earned but unpaid Shares, in addition to the
restrictions under paragraph 2 of this Performance Shares Award section, you will not have the
right to vote, you will not receive or be entitled to receive cash or non-cash dividends, and you
will not have any other beneficial rights as a shareholder of the Company.
9.
Acceleration of Vesting Date
. The Committee may at any time or times in its
discretion accelerate the Vesting Date. The Committee will accelerate the Vesting Date by
specifying an earlier Vesting Date. Acceleration of the Vesting Date under this paragraph 9 will
not result in an earlier payment of any Shares.
10.
Additional Forfeiture Provision and Repayment Obligation
. Notwithstanding any
provisions of this Agreement to the contrary, if the Committee determines that you have engaged in
Gross Misconduct as defined in this paragraph 10, then: (a) you will immediately forfeit all
Performance Shares awarded to you, and all earned or unearned Shares, for the FY 2012-14
Performance Period under this Agreement, and you will have no right to receive payment of any
Shares under this Agreement and (b) you will repay to the Company a number of Shares, or a dollar
amount equal to the current Fair Market Value of a number of Shares, equal to the number of Shares
previously paid to you under this Agreement. For purposes of this paragraph 10, Gross Misconduct
means intentional conduct in disregard of the Companys expectations of someone in your position
with the Company that has caused significant financial harm to the Company, whether occurring
before or after your Termination of Affiliation.
Provisions Applicable to Your Non-Qualified Stock Option Award, Restricted Shares Award and
1.
Plan Governs
. The Non-Qualified Stock Option Award, Restricted Shares Award and
Performance Share Award and this Agreement are subject to the terms and conditions of the Plan.
The Plan is incorporated in this Agreement by this reference. All capitalized terms used in this
Agreement have the meaning set forth in the Plan unless otherwise defined in this Agreement. By
executing this Agreement, you acknowledge receipt of a copy of the Plan and the prospectus covering
the Plan and you acknowledge that the Award is subject to all the terms and provisions of the Plan.
You further agree to accept as binding, conclusive and final all decisions and interpretations by
the Plan Committee with respect to any questions arising under the Plan. By signing this Agreement
with respect to your Non-Qualified Stock Option Award, you are not obligated to exercise all or any
part of this Option or any other Option.
2.
Tax Withholding
. As of any date that a required tax withholding liability
(Required Withholding) occurs, you must remit the minimum amount necessary to satisfy the
Required Withholding. The Company will not deliver Shares to you or release the restrictions on
Shares under this Agreement unless you remit (or in appropriate cases agree to remit) or otherwise
provide for the Required Withholding as described below. In the event the Required Withholding is
not equal to the number of whole Shares used to satisfy such Required Withholding as provided
below, you will be required to pay the additional amount in cash, either by a cash payment or by
withholding from compensation otherwise payable to you.
(a) With respect to your Non-Qualified Stock Option Award, the Committee may require
you to satisfy the Required Withholding by any (or a combination) of the following means:
(a) a cash payment; (b) withholding from compensation otherwise payable to you; (c)
withholding from any of your Restricted Shares that are no longer subject to forfeiture,
from Shares purchased upon exercise of an Option, or from any Shares payable to you a number
of Shares sufficient to pay the minimum statutory amount of the Required Withholding; or (d)
delivering to the Company Mature Shares having a Fair Market Value sufficient to pay the
minimum statutory amount of the Required Withholding. The Committee may give you the
opportunity to elect to satisfy such Required Withholding in one or more of the above
methods. If this election is extended to you, the Committee hereby accepts your irrevocable
election made prior to the time the Required Withholding liability occurs. The Company
retains the discretion to require a specific method of withholding and may exercise such
discretion at any time prior to the Required Withholding or, if applicable, the earlier date
of your irrevocable election.
(b) With respect to your Restricted Shares Award and Performance Share Award, the
Committee may require you to satisfy the Required Withholding by either (or a combination)
of the following means: (a) a cash payment, or (b) withholding from your Restricted Shares
or Performance Shares that are no longer subject to forfeiture a number of whole Shares
sufficient to pay the minimum statutory amount of the Required Withholding. The Committee
may give you the opportunity to elect to satisfy such Required Withholding in one or both of
the above methods. If this election is extended to you, the Committee hereby accepts your
irrevocable election made prior to the time the Required Withholding liability occurs. The
Company retains the discretion to require a specific method of withholding and may exercise
such discretion at any time prior to the Required Withholding or, if applicable, the earlier
date of your irrevocable election.
3.
No Right to Employment
. Nothing in this Agreement shall interfere with or limit in
any way the right of the Company or an Affiliate to terminate your employment or service at any
time, nor confer upon you the right to continue in the employ of the Company or an Affiliate.
4.
Notices
. Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Corporate Secretary. Any notice to be given to
you shall be addressed to you at the address listed in the Companys records. By written notice
referencing this paragraph of this Agreement, either party may designate a different address for
notices. Any notice under this Agreement to the Company shall become effective upon receipt by the
Company. Any notice under this Agreement to you will be deemed to have been delivered to you when
delivered in person or when deposited in the United States mail, addressed to you at your address
on the shareholder records of the Company, or such other address as you have designated under this
paragraph.
5.
Tax Consultation
. Your signature on this Agreement means that you understand that
you may incur tax consequences as of any date that a number (which may be all or part) of your
Restricted Shares or Performance Shares would no longer be forfeited if you were to have a
Termination of Affiliation on such date, and that special tax rules apply with respect to your
Non-Qualified Stock Option. You agree to consult with any tax consultants you think advisable in
connection with tax issues regarding your Non-Qualified Stock Option Award, Restricted Shares Award
and Performance Share Award and you acknowledge that you are not relying, and will not rely, on the
Company or any Affiliate for any tax advice. Please see Section 17.2 of the Plan regarding Code
Section 83(b) elections with respect to your Restricted Shares.
6.
Amendment
. The Company reserves the right to amend the Plan at any time. The
Committee reserves the right to amend this Agreement at any time.
7.
Severability
. If any part of this Agreement is declared by any court or
governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not serve
to invalidate any part of this Agreement not declared to be unlawful or invalid. Any part so
declared unlawful or invalid shall, if possible, be construed in a manner which gives effect to the
terms of such part to the fullest extent possible while remaining lawful and valid.
8.
Applicable Law
. This Agreement shall be governed by the laws of the State of
Delaware other than its laws respecting choice of law.
9.
Headings
. Headings are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
10.
No Waiver
. The failure of Company in any instance to exercise any of its rights
granted under this Agreement or the Plan shall not constitute a waiver of any other rights that may
arise under this Agreement.
11.
Right of Recovery
. Notwithstanding any provisions of this Agreement to the
contrary, the Company may recover from you any amount paid or payable pursuant to this Agreement
which is required to be recovered under the rules of any exchange on which the Companys Shares are
registered and any amount the Committee determines is appropriate under the Companys policies
regarding recovery of incentive compensation, as such policies may be effect from time to time.
2
Schedule of Performance Goals for Performance Shares
The number of Shares earned for the FY 2012-14 Performance Period will be determined by calculating
the average of the earned percentage for each fiscal year, and then multiplying such average
earned percentage times the number of Performance Shares subject to this Award Agreement. To
determine the earned percentage for a fiscal year, the Committee will compare the Companys
actual performance for the fiscal year to the Performance Goals for such fiscal year as set forth
in the above schedule. If the calculated percentage is between Threshold and Maximum for any
fiscal year, then the earned percentage will be prorated. If the calculated percentage is below
Threshold, then the earned percentage for the fiscal year will be 0%. If the calculated percentage
is above Maximum, then the earned percentage will be 200%. For purposes of the foregoing, any
fractional Share earned with respect to the FY 2012-14 Performance Period shall be rounded down to
the nearest whole Share.
3
Number of Options Exercisable
Date Exercisable
[
]
[
]
[
]
[Date]
[Number of shares]
February , 2015
Grant Date:
Number of Performance Shares (at target):
3-Year Performance Period
Period of Restriction / Vesting Date:
or (ii) the date the Committee
certifies that the Performance
Goals for the FY 2012-14
Performance Period are (or are not)
satisfied.
Name and Title:
Date:
[Address]
[City, State, Zip]
to
NON-QUALIFIED STOCK OPTION, RESTRICTED SHARE AWARD, AND
PERFORMANCE SHARE AWARD AGREEMENT
Performance Share Award
Return on Invested
Capital
FY 2012-14
(ROIC)
1
Operating Ratio (OR)
2
Earned Percentage
Performance Level
(75% Weighting)
(25% Weighting)
of Incentive Target
2012
[
]
[
]
50
%
[
]
[
]
100
%
[
]
[
]
200
%
2013
[
]
[
]
50
%
[
]
[
]
100
%
[
]
[
]
200
%
[
]
[
]
50
%
[
]
[
]
100
%
[
]
[
]
200
%
1
ROIC is defined as the quotient of the
Companys net operating profit after taxes (NOPAT) for the applicable
performance period divided by the Companys invested capital where (i) NOPAT is
the sum of the Companys net income plus interest expense, interest on the
present value of the Companys operating leases, and debt retirement costs (all
preceding items tax effected), with further adjustments to eliminate the
after-tax effects of any foreign exchange gains/losses, the foreign exchange
impact on the companys Effective Tax Rate (ETR) and changes in accounting
principles, and (ii) invested capital is the sum of the Companys average
equity balance, average debt balance and the present value of the Companys
operating leases, with further adjustments to eliminate the average equity
impacts of changes in accounting principles.
2
OR is defined as the Companys consolidated
operating ratio.
EXHIBIT 99.1
Contact: William H. Galligan, (816) 983-1551, bgalligan@kcsouthern.com
KCS Announces Completion of $275 Million Term Loan
Kansas City, Missouri, February 27, 2012. Kansas City Southern (KCS) (NYSE: KSU) announced today that its wholly-owned subsidiary, The Kansas City Southern Railway Company (KCSR or the Company), has entered into a $275 million Term Loan A-2 (TLA-2) maturing January 15, 2017. The TLA-2, completed as an amendment to the Companys credit facility executed in July 2011, will result in significant future interest expense savings for KCSR. The Company plans to use the proceeds from the TLA-2, which carries an interest rate of 1.25% over the London Interbank Offered Rate (LIBOR), to retire its $275 million 8.0% Senior Notes (the Notes). This redemption includes approximately $175 million of Notes tendered pursuant to a recently-concluded tender offer and the remainder when the Notes become callable in the second quarter of 2012.
A total of 18 financial institutions participated in the TLA-2. JP Morgan, Bank of America Merrill Lynch and Morgan Stanley acted as Joint Bookrunners and Lead Arrangers. JP Morgan also served as Syndication Agent and Morgan Stanley also served as Co-Documentation Agent. Additional Lead Arrangers and Co-Documentation Agents included Citibank and Scotia Capital.
Headquartered in Kansas City, Mo., KCS is a transportation holding company that has railroad investments in the U.S., Mexico and Panama. Its primary U.S. holding is The Kansas City Southern Railway Company, serving the central and south central U.S. Its international holdings include Kansas City Southern de Mexico, S.A. de C.V., serving northeastern and central Mexico and the port cities of Lázaro Cárdenas, Tampico and Veracruz, and a 50 percent interest in Panama Canal Railway Company, providing ocean-to-ocean freight and passenger service along the Panama Canal. KCSs North American rail holdings and strategic alliances are primary components of a NAFTA Railway system, linking the commercial and industrial centers of the U.S., Mexico and Canada.
This release contains forward-looking statements that are not based upon historical information. Readers can identify these forward-looking statements by the use of such verbs as expects, anticipates, believes or similar verbs or conjugations of such verbs. Such forward-looking statements are based upon information currently available to management and managements perception thereof as of the date of this news release. However, such statements are dependent on and, therefore, can be influenced by, a number of external variables over which management has little or no control, including: domestic and international economic conditions; interest rates; the business environment in industries that produce and consume rail freight; competition and consolidation within the transportation industry; fluctuation in prices or availability of key materials, in particular diesel fuel; labor difficulties, including strikes and work stoppages; credit risk of customers and counterparties and their failure to meet their financial obligations; the outcome of claims and litigation; legislative and regulatory developments; political and economic conditions in Mexico and the level of trade between the United States and Mexico; changes in securities and capital markets; disruptions to the Companys technology infrastructure, including its computer systems; natural events such as severe weather, hurricanes and floods; acts of terrorism or risk of terrorist activities; war or risk of war; and other factors affecting the operation of the business of KCS and KCSR. More detailed information about these factors may be found in filings by KCS with the Securities and Exchange Commission, including its most recent Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q . Forward-looking statements are not, and should not be relied upon as, a guarantee of future performance or results, nor will they necessarily prove to be accurate indications of the times at or by which any such performance or results will be achieved. As a result, actual outcomes and results may differ materially from those expressed in forward-looking statements. KCS and KCSR are under no obligation to, and expressly disclaim any such obligation to, update or alter their forward-looking statements, whether as a result of new information, future events or otherwise.