As filed with the Securities and Exchange Commission on January 21, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WESTERN RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Kansas 48-0290150
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
818 Kansas Avenue
Topeka, Kansas 66612
(Address of Principal Executive Offices)
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WESTERN RESOURCES, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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Richard D. Terrill, Esq. William B. Moore
Vice President, Law Acting Executive Vice President
and Corporate Secretary and Chief Financial Officer
818 Kansas Avenue 818 Kansas Avenue
Topeka, Kansas 66612 Topeka, Kansas 66612
(785) 575-6322 (785) 575-6369
(Names, addresses and telephone numbers,
including area code, of agents for service)
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Copy to:
Gary W. Wolf, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005-1702
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CALCULATION OF REGISTRATION FEE
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Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered Registered(1) Offering Price Per Aggregate Offering Price Registration Fee
Share (2) (2) (2)
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<S> <C> <C> <C> <C>
Common Stock,
$5.00 Par Value 500,000 shares $32.51 $16,255,000 $4,518.89
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(1) Subject to adjustment to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
(2) Estimated solely for purposes of calculating the registration fee. Pursuant
to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended,
the registration fee has been calculated based on the average of the high
and low sale prices reported for the Common Stock of Western Resources,
Inc. on January 20, 1999, which was $32.51 per share, as reported on the
New York Stock Exchange Composite Transactions.
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PART I
INFORMATION REQUIRED
IN PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*The information called for by Part I of Form S-8 is not being
filed with or included in this Form S-8 in accordance with Rule
428 under the Securities Act of 1933, as amended, and the Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Western Resources (the "Company") hereby incorporates by reference the
following documents previously filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"):
(a) The Company's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1997 (File No. 1-3523);
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1998, June 30, 1998, as amended by Amendment No. 1
thereto on Form 10-Q/A dated June 30, 1998, and September 30, 1998
(File No. 1-3523);
(c) The Company's Current Reports on Form 8-K dated January 5, 1998, March
23, 1998, July 13, 1998, August 3, 1998 and August 6, 1998, (File No.
1-3523);
(d) The description of the Company's Common Stock contained in the
Registration Statement on Form 10, filed May 5, 1949, as updated by
the description contained in Item 7 of the Company's Form 10-Q filed
for the quarter ended March 31, 1979; and
(e) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Company's
annual report referenced in (a) above.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Registration Statement and prior to the termination of the offering of
the Common Stock offered hereby shall be deemed to be incorporated by reference
herein and to be a part hereof from the date any such document is filed.
Any statements contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in
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this Registration Statement or in any other subsequently filed document which
also is incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed to constitute a part
of this Registration Statement except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
The description of the Registrant's Common Stock to be offered pursuant to
this Registration Statement has been incorporated by reference into this
Registration Statement as described in Item 3 of this Part II.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The financial statements and schedules included in or incorporated by
reference in this Registration Statement to the extent and for the periods
indicated in their reports have been audited by Arthur Andersen LLP, independent
public accountants, and are included herein in reliance upon the authority of
said firm as experts in giving said reports.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XVIII of the Company's Restated Articles of Incorporation, as
amended, provides that a director of the Company shall not be personally liable
to the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (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) for paying a dividend or approving a stock repurchase in
violation of the Kansas General Corporation Code, or (iv) for any transaction
from which the director derived an improper personal benefit. This provision is
specifically authorized by Section 17-6002(b)(8) of the Kansas General
Corporation Code.
Section 17-6305 of the Kansas General Corporation Code (the
"Indemnification Statute") provides for indemnification by a corporation of its
corporate officers, directors, employees and agents. The Indemnification Statute
provides that a corporation may indemnify such persons who have been, are, or
may become a party to an action, suit or proceeding due to his or her status as
a director, officer, employee or agent of the corporation. Further, the
Indemnification Statute grants authority to a corporation to implement its own
broader indemnification policy. Article XVIII of the Company's Restated Articles
of Incorporation, as amended, requires the Company to indemnify its directors
and officers to the fullest extent provided by Kansas law. Further, as is
provided for in Article XVIII, the Company has entered into indemnification
agreements with its directors, which provide for indemnification which is
broader than that available under Article XVIII and the Indemnification Statute.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith, or incorporated herein by
reference:
EXHIBIT NO. EXHIBIT
5 Opinion of Richard D. Terrill, Esq.
23(a) Consent of Arthur Andersen LLP, filed herewith.
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23(b) Consent of Richard D. Terrill, Esq. (included in Exhibit 5).
24 Power of Attorney (included on signature page to Registration
Statement).
The registrant will submit or cause to be submitted the Plan and will
submit any amendments thereto to the Internal Revenue Service in a timely manner
and will make all changes required by the IRS to maintain the Plan's
qualification.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities
offered 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
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in
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Item 6 above, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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 the court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Western
Resources, Inc., 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, thereunder duly authorized, in the City of Topeka, State of Kansas,
on 21st day of January, 1999.
WESTERN RESOURCES, INC.
(Registrant)
By: /s/ David C. Wittig
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Name: David C. Wittig
Title: President and Chief Executive Officer
Each person whose signature appears below appoints David C. Wittig, William
B. Moore and Richard D. Terrill and each of them, any of whom may act without
the joinder of the other, as his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 and to file the same, with all exhibits thereto and all
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents 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 or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or their substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
President and Chief Executive Officer January 21, 1999
/s/ David C. Wittig (Principal Executive Officer)
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David C. Wittig
Acting Executive Vice President and Chief January 21, 1999
Financial Officer (Principal Financial and
/s/ William B. Moore Accounting Officer)
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William B. Moore
/s/ John E. Hayes, Jr. Chairman of the Board; Director January 21, 1999
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John E. Hayes, Jr.
/s/ Frank J. Becker Director January 21, 1999
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Frank J. Becker
/s/ C. Q. Chandler Director January 21, 1999
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C.Q. Chandler
/s/ Thomas R. Clevenger Director January 21, 1999
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Thomas R. Clevenger
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/s/ John C. Dicus Director January 21, 1999
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John C. Dicus
/s/ David H,. Hughes Director January 21, 1999
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David H. Hughes
/s/ Russell W. Meyer, Jr. Director January 21, 1999
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Russell W. Meyer, Jr.
/s/ Louis W. Smith Director January 21, 1999
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Louis W. Smith
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EXHIBIT INDEX
Exhibit
Number Exhibit
5 Opinion of Richard D. Terrill, Esq.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Richard D. Terrill, Esq. (included in Exhibit 5).
24 Power of Attorney (included on signature page to Registration
Statement).
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Exhibit 5
January 21, 1999
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Dear Sirs:
As Vice President, Law of Western Resources, Inc. (the "Company"), and in
connection with the proposed issue and sale, from time to time, of up to 500,000
shares of Common Stock, par value $5.00 per share, of the Company (hereinafter
called the "Offered Common Stock"), with respect to which the Company is filing
a Registration Statement on Form S-8 with the Securities and Exchange Commission
under the Securities Act of 1933 to which Registration Statement this opinion
shall be filed as an exhibit, I advise you that, in my opinion:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Kansas.
2. Upon (a) authorization of the issue and sale of the Offered Common Stock
by applicable regulatory commissions having jurisdiction, (b) the Registration
Statement becoming effective under the Securities Act of 1933, (c) the
authorization of the issuance, sale and delivery of the Offered Common Stock by
the Board of Directors of the Company and (d) full payment therefor, the Offered
Common Stock will be legally issued, validly outstanding, fully paid and
nonassessable and the holders thereof will be entitled to the rights and
privileges appertaining thereto, as set forth in the Company's Restated Articles
of Incorporation, as amended.
I hereby consent to the filing of a copy of this opinion as an exhibit to
said Registration Statement. I also consent to the use of my name and the making
of the statements with respect to myself in the Registration Statement and the
Prospectus constituting a part thereof.
Very truly yours,
/s/ Richard D. Terrill
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Richard D. Terrill
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
January 29, 1998 included in Western Resources, Inc.'s Form 10-K for the year
ended December 31, 1997, and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Kansas City, Missouri
January 20, 1999
