As filed with the Securities and Exchange Commission on June 28, 2002
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KANSAS CITY SOUTHERN
(Exact Name of Registrant as Specified in its Charter)
Delaware 44-0663509
(State of Incorporation) (I.R.S. Employer Identification No.)
427 West 12th Street
Kansas City, Missouri 64105-1804
(Address of Principal Executive Offices)
The Kansas City Southern Railway Company
Union 401(k) Plan
Gateway Western Railway Union 401(k) Plan
MidSouth Rail Union
401(k) Retirement Savings Plan
(Full Title of the Plans)
Jay M. Nadlman, Esq.
Kansas City Southern
427 West 12th Street
Kansas City, Missouri 64105-1804
(816) 983-1384
(Name, Address, and Telephone Number of Agent for Service)
----------------
CALCULATION OF REGISTRATION FEE
------------------------------ ---------------- -------------------- -------------------- -------------------
Proposed Proposed
Title of Securities Amount to Maximum Offering Maximum Aggregate Amount of
to be Registered (1) be Registered Price Per Share (2) Offering Price Registration Fee
------------------------------ ---------------- -------------------- -------------------- -------------------
Common Stock, par value
$.01 per share (3) (4) (5). 35,000 shares $ 15.555 $ 544,425 $ 50.09
------------------------------ ---------------- -------------------- -------------------- -------------------
Common Stock, par value
$.01 per share (3) (4) (6). 150,000 shares $ 15.555 $ 2,333,250 $ 214.66
------------------------------ ---------------- -------------------- -------------------- -------------------
Common Stock, par value
$.01 per share (3) (4) (7). 165,000 shares $ 15.555 $ 2,566,575 $ 236.12
------------------------------ ---------------- -------------------- -------------------- -------------------
Total $ 500.87
------------------------------ ---------------- -------------------- -------------------- -------------------
(1) Includes associated rights to purchase Series A Preferred Stock of the
Registrant.
(2) Calculated pursuant to Rule 457(h)(1) under the Securities Act of 1933.
(3) Pursuant to Rule 416(a) under the Securities Act of 1933, this registration
statement also covers any additional securities that may be offered or
issued in connection with any stock split, stock dividend or similar
transaction.
(4) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(5) The Kansas City Southern Railway Company Union 401(k) Plan.
(6) Gateway Western Railway Union 401(k) Plan.
(7) MidSouth Rail Union 401(k) Retirement Savings Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Kansas City Southern (formerly known as
Kansas City Southern Industries, Inc.) (the "Registrant") with the Securities
and Exchange Commission (File No. 1-4717) are hereby incorporated by reference
and made a part of this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended December
31, 2001, as amended by Amendment No. 1 on Form 10-K/A;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2002;
(c) The Registrant's Current Reports on Form 8-K dated January 15, 2002 and
June 5, 2002;
(d) The Registrant's definitive Proxy Statement dated April 4, 2002 filed
in connection with Registrant's 2002 Annual Meeting of Stockholders; and
(e) The description of the Registrant's common stock, par value $0.01 per
share, contained in Registrant's Registration Statement No. 1-4717-1, filed on
December 21, 1962, pursuant to Section 12 of the Securities Exchange Act of
1934, and the associated Series A Preferred Stock Purchase Rights in the
Registrant's Form 8-A filed on May 19, 1986, as amended by the Registrant's Form
8-A12B/A (Amendment No. 1) filed on November 6, 1995 and any amendment or report
filed for the purpose of updating such description.
All documents filed by the Registrant and by The Kansas City Southern
Railway Company Union 401(k) Plan, the Gateway Western Railway Union 401(k) Plan
and the MidSouth Rail Union 401(k) Retirement Savings Plan (each, a "Plan")
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") after the date of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities registered hereby has been sold or which
deregisters such securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents (such documents, and the documents
listed above, being hereinafter referred to as "Incorporated Documents"). Any
statement contained in an Incorporated Document shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a Delaware corporation may indemnify any persons who are,
or are threatened to be made, parties to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), other than an action by or in the right of such
corporation, by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise (an "indemnified capacity"). The indemnity may include
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided such person acted in good faith and in
a manner he reasonably believed to be in or not opposed to the corporation's
best interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was illegal. Similar provisions
apply to actions brought by or in the right of the corporation, except that no
indemnification shall be made without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director has actually and reasonably incurred. Section 145 of
the DGCL further authorizes a corporation to purchase and maintain insurance on
behalf of any indemnified person against any liability asserted against him and
incurred by him in any indemnified capacity, or arising out of his status as
such, regardless of whether the corporation would otherwise have the power to
indemnify him under the DGCL.
The bylaws of the Registrant provide that each person who, at any time is,
or shall have been, a director, officer, employee or agent of the Registrant,
and is threatened to be or is made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is, or was, a director, officer,
employee or agent of the Registrant, or served at the request of the Registrant
as a director, officer, employee, trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall be indemnified
against expense (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with any
such action, suit or proceeding to the full extent provided under Section 145 of
the DGCL.
The certificate of incorporation of each of the Registrant provides that to
the fullest extent permitted by the DGCL and any amendments thereto, no director
of the corporation shall be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director.
In addition, the Registrant has entered into indemnification agreements
with its officers and directors. Those agreements are intended to supplement its
officer and director liability insurance and provide the officers and directors
with specific contractual assurance that the protection provided by its bylaws
will continue to be available regardless of, among other things, an amendment to
the bylaws or a change in management or control of the Registrant. The
indemnification agreements provide for prompt indemnification to the fullest
extent permitted by law and for the prompt advancement of expenses, including
attorneys' fees and all other costs and expenses incurred in connection with any
action, suit or proceeding in which the director or officer is a witness or
other participant, or to which the director or officer is a party, by reason (in
whole or in part) of service in certain capacities. Under the indemnification
agreements, the Registrant's determinations of indemnity are made by a committee
of disinterested directors unless a change in control of the Registrant has
occurred, in which case the determination is made by special independent
counsel. The indemnification agreements also provide a mechanism to seek court
relief if indemnification or expense advances are denied or not received within
specified periods. Indemnification and advancement of expenses would also be
provided in connection with court proceedings initiated to determine rights
under the indemnification agreements and certain other matters.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits are listed in the Exhibit Index of this Registration
Statement, which Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered hereby which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act and each filing
of a Plan's annual report pursuant to Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions of the restated certificate of
incorporation and by-laws of the Registrant and the provisions of the Delaware
law described under Item 6 above, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant: Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Kansas City, Missouri, on June 6, 2002.
---
KANSAS CITY SOUTHERN
By: /s/ Michael R. Haverty
-------------------------------------
Michael R. Haverty
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael R. Haverty, Gerald K. Davies, Robert H.
Berry and Louis G. Van Horn, and each of them, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments, to this Registration Statement on
Form S-8, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each of said attorneys-in-fact and agents or
their substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Michael R. Haverty Chairman of the Board of Directors, June 6, 2002
------------------------- President and Chief Executive Officer ---
Michael R. Haverty (Principal Executive Officer)
/s/ Robert H. Berry Senior Vice President and Chief June 6, 2002
------------------------- Financial Officer (Principal) ---
Robert H. Berry Financial Officer)
/s/ Louis G. Van Horn Vice President and Comptroller June 13, 2002
------------------------- (Principal Accounting Officer) ---
Louis G. Van Horn
/s/ A. Edward Allison Director June 14, 2002
------------------------- ---
A. Edward Allinson
Director June ___, 2002
-------------------------
Michael G. Fitt
/s/ James R. Jones Director June 9, 2002
------------------------- ---
James R. Jones
/s/ Landon H. Rowland Director June 10, 2002
------------------------- ---
Landon H. Rowland
/s/ Rodney E. Slater Director June 7, 2002
------------------------- ---
Rodney E. Slater
/s/ Byron G. Thompson Director June 7, 2002
------------------------- ---
Byron G. Thompson
The Plans: Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) of each of
the respective plans designated below have duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Kansas City, state of Missouri, on June 6, 2002.
---
The Kansas City Southern Railway Company Union
401(k) Plan
By: /s/ Eric B. Freestone
----------------------------------
Name: Eric B. Freestone
Title: VP Human Resources
Gateway Western Railway Union 401(k) Plan
By: /s/ Eric B. Freestone
----------------------------------
Name: Eric Freestone
Title: VP Human Resources
MidSouth Rail Union 401(k) Retirement Savings
Plan
By: /s/ Eric B. Freestone
----------------------------------
Name: Eric Freestone
Title: VP Human Resources
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
4.1 Articles Fourth, Seventh, Eighth, Eleventh, Twelfth, Thirteenth,
Fourteenth, Fifteenth and Sixteenth of the Registrant's Restated
Certificate of Incorporation, as amended, filed as Exhibit 3.1 to the
Registrant's Registration Statement on Form S-4 filed on January 25, 2001
(File No. 333-54262), are hereby incorporated by reference as Exhibit 4.1
4.2 Article I, Sections 1, 3 and 11 of Article II, Article V and Article VIII
of the Registrant's Bylaws, as amended and restated to May 2, 2001, filed
as Exhibit 3.2 to Registrant's Form 10-Q for the quarter ended March 31,
2001 (File No. 1-4717), are hereby incorporated by reference as Exhibit 4.2
4.3 Rights Agreement by and between the Registrant and Harris Trust and Savings
Bank dated as of September 19, 1995, filed as Exhibit 99 to the
Registrant's Form 8-A dated October 24, 1995 (File No. 1-4717), is hereby
incorporated by reference as Exhibit 4.3
4.4 The Kansas City Southern Railway Company Union 401(k) Plan
4.5 Gateway Western Railway Union 401(k) Plan
4.6 MidSouth Rail Union 401(k) Retirement Savings Plan
5.1 *
23.1 Consent of KPMG LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of PricewaterhouseCoopers, S.C.
24.1 Powers of Attorney (included on the signature page of this Registration
Statement)
--------------
* The Registrant undertakes that it has submitted or will submit The Kansas
City Southern Railway Company Union 401(k) Plan, the Gateway Western
Railway Union 401(k) Plan and the MidSouth Rail Union 401(k) Retirement
Savings Plan (each, the "Plan") and any amendment thereto to the Internal
Revenue Service (the "IRS") in a timely manner and will make all changes
required by the IRS in order to qualify the Plan.