As filed with the Securities and Exchange Commission on December 14, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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.
401(k) AND PROFIT SHARING 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)
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CALCULATION OF REGISTRATION FEE
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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)
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<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share (3) (4)..... 660,000 shares $8.22 $5,425,200.00 $1,432.25
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(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.
<PAGE>
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, 1999, as amended by Amendment No. 1 on Form 10-K/A and Amendment No. 2 on
Form 10-K/A;
(b) The Registrant's Quarterly Reports of Form 10-Q for the quarterly
periods ended March 31, 2000, June 30, 2000 and September 30, 2000;
(c) The Registrant's Current Reports on Form 8-K dated June 15, 2000, Form
8-K dated July 12, 2000 and as amended on Form 8-K/A, Form 8-K dated September
8, 2000, Form 8-K dated September 27, 2000 and Form 8-K dated October 25, 2000;
(d) The Registrant's definitive Proxy Statement dated May 8, 2000 filed in
connection with Registrant's 2000 Annual Meeting of Stockholders; and
(e) 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-A/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.
<PAGE>
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<PAGE>
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.
<PAGE>
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/ RICHARD P. BRUENING
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Richard P. Bruening
Vice President, General
Counsel and Secretary
Date: December 11, 2000
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard P. Bruening, 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/ L.H. ROWLAND Chairman and Director December 11, 2000
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L.H. Rowland
/s/ M.R. HAVERTY President, CEO and Director December 11, 2000
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M.R. Haverty (Principal Executive Officer)
/s/ R.H. BERRY Senior Vice President and Chief December 11, 2000
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R.H. Berry Financial Officer (Principal
Financial Officer)
/s/ L.G. VAN HORN Vice President and December 11, 2000
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L.G. Van Horn Comptroller (Principal
Accounting Officer)
/s/ A.E. ALLINSON Director December 11, 2000
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A.E. Allinson
/s/ M.G. FITT Director December 11, 2000
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M.G. Fitt
/s/ J.R. JONES Director December 11, 2000
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J.R. Jones
/s/ B.G. THOMPSON Director December 11, 2000
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B.G. Thompson
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
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4.1 Certificate of Incorporation as amended through May 14, 1985 (1)
4.2 Certificate of Designation dated September 29, 1993 Establishing Series B Convertible
Preferred Stock, par value $1.00 (2)
4.3 Amendment to Certificate of Incorporation dated May 6, 1994 (3)
4.4 Amended Certificate of Designation Establishing the New Series A Preferred Stock, par
value $1.00, dated November 7, 1995 (4)
4.5 Certificate of Amendment dated May 12, 1987 of Certificate of Incorporation (4)
4.6 By-Laws, as amended and restated September 17, 1998 (5)
4.7 Stockholder Rights Agreement by and between the Registrant and Harris Trust and
Savings Bank dated as of September 19, 1995 (6)
4.8 Kansas City Southern Industries, Inc. 401(k) and Profit Sharing Plan
5.1 *
23.1 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (included on the signature page of this Registration Statement)
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* The Registrant undertakes that it will submit the Kansas City Southern
Industries, Inc. 401(k) and Profit Sharing Plan (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.
(1) Filed as an exhibit to the Registrant's Registration Statement on Form S-8
(File No. 33-8880), and such exhibit is hereby incorporated by reference.
(2) Filed as an exhibit to the Registrant's Current Report on Form 8-K, dated
October 1, 2000, and such exhibit is hereby incorporated by reference.
(3) Filed as an exhibit to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994, and such exhibit is hereby
incorporated by reference.
(4) Filed as an exhibit to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996, and such exhibit is hereby
incorporated by reference.
(5) Filed as an exhibit to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998, and such exhibit is hereby
incorporated by reference.
(6) Filed as an exhibit to the Registrant's Registration Statement on Form 8-A
dated October 24, 1995, and such exhibit is hereby incorporated by
reference.
