S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on April 4, 2001 Registration No. _____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- KANSAS CITY SOUTHERN INDUSTRIES, INC. (Exact Name of Registrant as Specified in its Charter) DELAWARE 44-0663509 (State of Incorporation) (I.R.S. Employer Identification No.) 114 WEST 11TH STREET KANSAS CITY, MISSOURI 64105-1804 (Address of Principal Executive Offices) KANSAS CITY SOUTHERN INDUSTRIES, INC. 1991 AMENDED AND RESTATED STOCK OPTION AND PERFORMANCE AWARD PLAN (Full Title of the Plan) ROBERT H. BERRY SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER 114 WEST 11TH STREET KANSAS CITY, MISSOURI 64105-1804 (816) 983-1303 (Name, Address, and Telephone Number of Agent for Service) ----------------
CALCULATION OF REGISTRATION FEE -------------------------------- ----------------------- -------------------- -------------------------- -------------------- PROPOSED PROPOSED AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF TITLE OF SECURITIES BE REGISTERED PRICE PER SHARE (2) OFFERING PRICE REGISTRATION FEE TO BE REGISTERED (1) -------------------------------- ----------------------- -------------------- -------------------------- -------------------- Common Stock, par value $.01 per share (3) ........ 4,500,000 shares (4) $13.84 $62,280,000.00 $15,570.00 -------------------------------- ----------------------- -------------------- -------------------------- --------------------
(1) Includes associated rights to purchase Series A Preferred Stock of the Registrant. (2) Estimated pursuant to Rule 457(h)(1) under the Securities Act of 1933 solely for the purposes of calculating the registration fee. (3) Pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction. (4) Such shares are in addition to 6,000,000 shares of common stock previously registered with respect to the 1991 Stock Option Plan (Registration No. 033-59388) and 5,100,000 shares of common stock previously registered with respect to the 1991 Stock Option Plan (Registration No. 033-50517). Such numbers of shares have been adjusted to reflect the Registrant's stock splits effective March 17, 1993 (2-for-1), September 17, 1997 (3-for-1) and July 12, 2000 (1-for-2). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by Kansas City Southern 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, 2000; (b) The Registrant's definitive Proxy Statement filed March 30, 2001 in connection with Registrant's 2001 Annual Meeting of Stockholders; and (c) The description of the Registrant's common stock, par value $0.01 per share (the "Common Stock"), and the associated Series A Preferred Stock Purchase Rights in the Registrant's Form 8-A filed on May 19, 1986, as amended by the Registrant's Form 8-A12B/A (Amendment No. 1) filed on November 6, 1995 and any amendment or report filed for the purpose of updating such description. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all Common Stock registered hereby has been sold or which deregisters such Common Stock then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents (such documents, and the documents listed above, being hereinafter referred to as "Incorporated Documents"). Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law ("DGCL"), provides, generally, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. Similar indemnity is authorized for such persons against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of any such threatened, pending or completed action or suit by or in the right of the corporation if such person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and provided further that (unless a court of competent jurisdiction otherwise provides) such person shall not have been adjudged liable to the corporation. Any such indemnification may be made only as authorized in each specific case upon a determination by the stockholders, disinterested directors, committee of such directors or by independent legal counsel in a written opinion that indemnification is proper because the indemnitee has met the applicable standard of conduct. The By-laws of the Registrant provide that directors and officers shall be indemnified as described above in this paragraph to the fullest extent permitted by the DGCL. The foregoing right of indemnification shall in no way be exclusive of any other rights of indemnification to which any such director, officer, employee or agent may be entitled, under any by-law, agreement, vote of stockholders or disinterested directors or otherwise. Reference is made to Section 1 of Article IX of the Registrant's By-laws filed as Exhibit 4.6 hereto. To the fullest extent permitted by the DGCL and any amendments thereto, Section 102(b)(7) of the DGCL provides, generally, that the certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision may not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. No such provision may eliminate or limit the liability of a director for any act or omission occurring before the date when such provision becomes effective. As permitted by the DGCL, the Registrant's Certificate of Incorporation provides that no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. In addition, the Registrant has entered into indemnification agreements with its officers and directors. Those agreements are intended to supplement its officer and director liability insurance and provide the officers and directors with specific contractual assurance that the protection provided by its bylaws will continue to be available regardless of, among other things, an amendment to the bylaws or a change in management or control of the Registrant. The indemnification agreements provide for prompt indemnification to the fullest extent permitted by law and for the prompt advancement of expenses, including attorneys' fees and all other costs and expenses incurred in connection with any action, suit or proceeding in which the director or officer is a witness or other participant, or to which the director or officer is a party, by reason (in whole or in part) of service in certain capacities. Under the indemnification agreements, the Registrant's determinations of indemnity are made by a committee of disinterested direectors 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 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 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. KANSAS CITY SOUTHERN INDUSTRIES, INC. By: /S/ ROBERT H. BERRY ------------------------------- Robert H. Berry Senior Vice President and Chief Financial Officer Date: April 3, 2001 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints 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/ M.R. HAVERTY Chairman, President, CEO April 3, 2001 ------------------------- and Director (Principal M.R. Haverty Executive Officer) /S R.H. BERRY Senior Vice President and Chief April 3, 2001 --------------------------- Financial Officer (Principal R.H. Berry Financial Officer) /S/ L.G. VAN HORN Vice President and April 3, 2001 ------------------------ Comptroller (Principal L.G. Van Horn Accounting Officer) /S/ A.E. ALLINSON Director April 3, 2001 ------------------------- A.E. Allinson /S/ M.G. FITT Director April 3, 2001 ---------------------------- M.G. Fitt /S/ J.R. JONES Director April 3, 2001 ---------------------------- J.R. Jones /S/ L.H. ROWLAND Director April 3, 2001 ------------------------ L.H. Rowland /S/ B.G. THOMPSON Director April 3, 2001 --------------------- B.G. Thompson INDEX TO EXHIBITS Exhibit Number Description of Exhibit ----------- --------------------------- 4.1 Restated Certificate of Incorporation, as amended (1) 4.2 By-Laws, as amended and restated September 17, 1998 (2) 4.3 Stockholder Rights Agreement by and between the Registrant and Harris Trust and Savings Bank dated as of September 19, 1995 (3) 4.4 Kansas City Southern Industries, Inc. 1991 Amended and Restated Stock Option and Performance Award Plan as amended and restated effective as of February 27, 2001 5 Opinion of Jay M. Nadlman 23.1 Consent of PricewaterhouseCoopers LLP 24.1 Powers of Attorney (included on the signature page of this Registration Statement) -------------- (1) Filed as Exhibit 3.1 to the Registrant's Registration Statement on Form S-4 (File No. 333-54262), and such exhibit is hereby incorporated by reference as Exhibit 4.1. (2) Filed as Exhibit 3.6 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1998 (File No. 1-4717), and such exhibit is hereby incorporated by reference as Exhibit 4.2. (3) Filed as Exhibit 99 to the Registrant's Registration Statement on Form 8-A12B/A, dated October 24, 1995, and such exhibit is hereby incorporated by reference as Exhibit 4.3.