UNITED STATES 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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WISCONSIN CENTRAL TRANSPORTATION CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-3541743
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One O'Hare Centre
Suite 9000, 6250 North River Road
P.O. Box 5062
Rosemont, Illinois 60017
(Address of principal executive offices, including zip code)
1998 STOCK OPTION PLAN FOR NEW DIRECTORS
(Full title of the plan)
Edward A. Burkhardt
Chairman, President and Chief Executive Officer
Wisconsin Central Transportation Corporation
One O'Hare Centre
Suite 9000, 6250 North River Road
P.O. Box 5062
Rosemont, Illinois 60017
(Name and address of agent for service)
(847) 318-4600
(Telephone number, including area code, of agent for service)
With a copy to:
Frederick L. Hartmann
Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
(312) 876-1000
Calculation of Registration Fee
Title of securities to be registered: Common Stock, par value
$0.01 per share
Amount to be registered (1): 25,000
Proposed maximum offering price per share (2): $20.53125
Proposed maximum aggregate offering price (2): $513,281.25
Amount of registration fee (2): $142.69
(1) Plus such additional number of shares of Common Stock as may be required
pursuant to the Plan to prevent dilution resulting from a stock dividend,
stock split, recapitalization or other similar changes in Common Stock.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, on the
basis of $20.53125 per share, the specified exercise price for options
under the Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Wisconsin Central
Transportation Corporation (the "Registrant") are incorporated by reference in
this registration statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1998, June 30, 1998 and September 30, 1998;
(c) The Registrant's Current Reports on Form 8-K dated February 5, 1998
and August 12, 1998;
(d) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A (File No. 0-19150) filed with the
Securities and Exchange Commission on April 11, 1991, under Section 12
of the Securities Exchange Act of 1934, including any amendment
thereto or report filed for the purpose of updating such description;
and
(e) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold.
Any statement contained herein or in a document incorporated by reference
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that
such statement is modified or superseded by any other subsequently filed
document which is incorporated by reference or is deemed to be incorporated by
reference herein. 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.
S8 page - 1
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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 permits
indemnification of directors, officers, employees and agents of corporations
under certain conditions and subject to certain limitations. Article 6 of the
By-laws of the Registrant and Article 7 of the Restated Certificate of
Incorporation of the Registrant provide for the indemnification of directors and
officers of the Registrant to the fullest extent permitted by Section 145.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits filed herewith or incorporated by reference herein are set
forth in the Exhibit Index filed as part of this registration statement on page
6.
Item 9. Undertakings.
(a) Rule 415 Offering.
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;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Securities Exchange Act of 1934 that are
incorporated by reference in the 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.
(b) Filings Incorporating Subsequent Exchange Act Documents By
Reference.
The undersigned Registrant hereby undertakes 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 Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in
the registration statement 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.
(c) Request for Acceleration of Effectiveness or Filing of
Registration Statement on Form S-8.
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 foregoing provisions, 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 the 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 of 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
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 the City of Rosemont, State of Illinois, on December 17, 1998.
WISCONSIN CENTRAL TRANSPORTATION CORPORATION
(Registrant)
By: /s/ Edward A. Burkhardt
---------------------------------------
Edward A. Burkhardt
Chairman, President,
Chief Executive Officer and Director
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 Name and Capacity Date
--------- ----------------- ----
/s/ Edward A. Burkhardt Chairman, President, Chief December 17, 1998
- ------------------------ Executive Officer, and Director
Edward A. Burkhardt (Principal Executive Officer)
Director
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Thomas E. Evans
/s/ Carl Ferenbach Director December 17, 1998
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Carl Ferenbach
Director
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Roland V. McPherson
/s/ Thomas F. Power, Jr. Executive Vice President, December 17, 1998
- ------------------------ Chief Financial Officer and
Thomas F. Power, Jr. Director
(Principal Financial Officer)
/s/ Thomas W. Rissman Director December 17, 1998
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Thomas W. Rissman
Director
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John W. Rowe
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/s/ A. Francis Small Director December 17, 1998
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A. Francis Small
/s/ Robert H. Wheeler Director December 17, 1998
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Robert H. Wheeler
/s/ Walter C. Kelly Vice President, Finance December 17, 1998
- ------------------------ (Principal Accounting Officer)
Walter C. Kelly
Director
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J. Reilly McCarren
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EXHIBIT INDEX
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Exhibit Number Exhibit Description
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4.1 Restated Certificate of Incorporation of the Registrant, as
amended (incorporated by reference to Exhibit 3 to
Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996).
4.2 By-laws of the Registrant, as amended (incorporated by
reference to Exhibit 3(c) to Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997).
4.3 1998 Stock Option Plan For New Directors.
5.1 Opinion of Schiff Hardin & Waite.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Schiff Hardin & Waite (included in its opinion
filed as Exhibit 5.1).
S8 page - 6
Exhibit 4.3
WISCONSIN CENTRAL TRANSPORTATION CORPORATION
1998 STOCK OPTION PLAN FOR NEW DIRECTORS
SECTION 1
PURPOSE
The purpose of this 1998 STOCK OPTION PLAN FOR NEW DIRECTORS ("Plan") of
WISCONSIN CENTRAL TRANSPORTATION CORPORATION ("Company") is to promote the
long-term interests of the Company by retaining qualified and experienced
persons to serve as directors of the Company and by providing additional
incentive for directors of the Company to work for the success of the Company
through continuing ownership of the Company's common stock.
SECTION 2
DEFINITIONS
2.1. Definitions. Whenever used herein, the following terms shall have the
respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Company" means Wisconsin Central Transportation Corporation, a
Delaware corporation, and any successor thereto.
(d) "Fair Market Value" means, with respect to the Stock on any date, the
closing price per share of the Stock on the last trading day prior to
that date, as reported by NASDAQ and published in The Wall Street
Journal (Midwest Edition) or, if listed on a stock exchange, as
reported in the published reports of composite transactions for the
exchange.
(e) "Option" means the right to purchase Stock at a stated price for a
specified period of time.
(f) "Participant" means any holder of an Option granted pursuant to this
Plan.
(g) "Stock" means the common stock of the Company, $0.01 par value.
SECTION 3
ELIGIBILITY AND PARTICIPATION
3.1. Eligibility and Participation. Participants in this Plan shall be
Thomas E. Evans and John W. Rowe who are and shall be directors of the Company
(not employees of the Company) at the date of the grant of Options under Section
6 of this Plan.
Ex 4.3 page - 1
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SECTION 4
POWERS OF THE BOARD
4.1. Adoption of the Plan. Adoption of this Plan by the Board of Directors
shall be the only action required to authorize the issuance of the Options to
the Participants under the Plan.
4.2. Administration. The Board shall be responsible for the administration
of this Plan. The Board, by majority action, shall have the sole and absolute
power and authority to prescribe, amend and rescind rules and regulations
relating to this Plan, to provide for conditions and assurances deemed necessary
or advisable to protect the interests of the Company and to make all other
determinations necessary or advisable for the administration and interpretation
of this Plan in order to carry out its provisions and purposes. Determinations,
interpretations, or other actions made or taken by the Board pursuant to the
provisions of this Plan shall be final, binding and conclusive for all purposes
and upon all persons.
SECTION 5
STOCK SUBJECT TO PLAN
5.1. Maximum Number of Shares. The aggregate number of shares of Stock
which may be issued pursuant to Options granted under this Plan shall not exceed
25,000, subject to adjustment pursuant to Sections 5.2 of this Plan. Such shares
may be authorized and unissued shares or shares reacquired by the Company and
held as treasury shares.
5.2. Adjustments in Capitalization. In the event of any stock dividend or
stock split, recapitalization, merger, consolidation, combination, spin-off,
distribution of assets to stockholders, exchange of shares or other similar
corporate change, the number of shares subject to outstanding Options and the
respective prices applicable to outstanding Options may be appropriately
adjusted by the Board, whose determination shall be conclusive, provided,
however, that any fractional shares resulting from any such adjustment shall be
disregarded. Upon a merger of the Company in which the Company is not the
surviving corporation, each Option granted under this Plan and outstanding at
the effective date of the transaction which is neither assumed by the surviving
corporation nor replaced with options issued by the surviving corporation shall
expire on the effective date of the transaction.
SECTION 6
STOCK OPTIONS
6.1. Automatic Grants of Options. All grants of options under this Plan
shall be automatic and nondiscretionary and subject to the terms and conditions
of this Section 6.
6.2. Grant of Options. Each Participant shall be granted an Option to
purchase 12,500 shares of Stock on the day following the adoption of this Plan.
Ex 4.3 page - 2
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6.3. Option Price. The purchase price of each share of Stock that may be
purchased upon exercise of an Option shall be the Fair Market Value of one share
of Stock on the day following the date on which each Participant was elected as
a director.
6.4. Exercisability of Options. Options awarded under this Plan shall be
exercisable at any time not earlier than six months after the date of grant and
not later than 10 years after the date of grant (subject to earlier termination
as provided in this Plan).
6.5. Tax Status of Options. Options granted pursuant to this Plan shall not
be "incentive stock options" as defined in Section 422 of the Code.
6.6. Option Agreements. Options granted pursuant to this Plan shall be
evidenced by an Option Agreement which shall refer to this Plan, specify the
terms of the Option and make such other provisions (consistent with the other
provisions of this Plan) as the Board considers appropriate.
6.7. Exercise and Payment. A Participant may exercise an Option by delivery
to the Company of a written notice specifying the number of shares of Stock with
respect to which the Option is being exercised, accompanied by payment (in
accordance with Section 6.9 of this Plan) of the purchase price of the shares to
be purchased. As soon as practicable after receipt of a written notice of
exercise and full payment of the exercise price and compliance with all other
conditions of the Option grant, the Company shall issue to the Participant a
certificate representing the acquired shares of Stock.
6.8. Withholding Taxes. The Company shall have the right, prior to delivery
of any certificate representing shares of Stock acquired upon exercise of an
Option, to require the Participant to pay to the Company (in accordance with
Section 6.9 of this Plan) an amount sufficient to satisfy any applicable
withholding tax requirements, as determined by the Company.
6.9. Payments. Payments of the exercise price and of any amounts required
in respect of withholding taxes shall be made (i) in the form of a check or wire
transfer, (ii) by surrendering a number of shares of Stock already owned by the
Participant with a Fair Market Value on the date of exercise equal to the amount
due, or (iii) by some combination of the methods described in (i) and (ii)).
SECTION 7
TERMINATION OF OPTIONS
7.1. Termination of Options. Options granted to a Participant under this
Plan shall terminate one year after the Participant ceases for any reason to be
a director of the Company.
SECTION 8
AMENDMENT, MODIFICATION AND TERMINATION OF PLAN
8.1. Amendments by the Board. The Board at any time may terminate or
suspend this Plan, and from time to time may amend or modify this Plan,
provided, however, that the provisions of Section 6 of this Plan may not be
amended (directly or indirectly) more than once every six months other than to
comport with changes in the Code, the Employee Retirement Income Security Act,
or the rules thereunder.
Ex 4.3 page - 3
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8.2. No Impairment of Outstanding Options. No amendment, modification or
termination of this Plan shall in any manner adversely affect any Option
theretofore granted under this Plan, without the consent of the Participant.
SECTION 9
MISCELLANEOUS PROVISIONS
9.1. Nontransferability of Options. No Options granted under this Plan may
be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by beneficiary designation pursuant to Section 9.2 of this Plan, by
will or by the laws of descent and distribution. All rights with respect to
Options granted to a Participant under this Plan shall be exercisable during the
Participant's lifetime only by the Participant or, in the event of his legal
incapacity to do so, by his guardian or legal representative acting in a
fiduciary capacity under state law on behalf of the Participant and under court
supervision.
9.2. Beneficiary Designation. Each Participant under this Plan may from
time to time name any beneficiary or beneficiaries by whom any right under this
Plan is to be exercised in case of Participant's death. In the absence of any
such designation or if all persons designated shall not survive the Participant,
the beneficiary under this Plan shall be, and rights under this Plan may be
exercised by, the Participant's surviving spouse, if any, or otherwise by his
estate.
9.3. Requirements of Law. The granting of Options and the issuance of
shares of Stock shall be subject to all applicable laws, rules and regulations,
and to such approvals by any governmental agencies or national securities
exchanges as may be required.
9.4. Term of Plan. This Plan shall be effective upon its adoption by the
Board. No Option may be granted under this Plan more than 10 years after the
date this Plan was adopted by the Board.
9.5. Governing Law. This Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of Delaware.
Adopted by the Board of Directors on December 2, 1998.
Ex 4.3 page - 4
Exhibit 5.1
OPINION OF SCHIFF HARDIN & WAITE
December 22, 1998
Securities and Exchange Commission
Filing Desk - Stop 1-4
Judiciary Plaza
450 Fifth Street
Washington, D.C. 20549-1004
Re: Wisconsin Central Transportation Corporation
Registration Statement on Form S-8 --
Registration of 25,000 Shares of
Common Stock, Par Value $0.01 Per Share
----------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Wisconsin Central Transportation
Corporation, a Delaware corporation (the "Company"), in connection with the
Company's filing of a Registration Statement on Form S-8 (the "Registration
Statement") covering 25,000 shares of common stock, par value $0.01 per share
(the "Common Stock"), to be issued pursuant to the terms of the Wisconsin
Central Transportation Corporation 1998 Stock Option Plan For New Directors (the
"Plan").
In this connection, we have made such investigation and have examined such
documents as we have deemed necessary to enable us to render the opinion
contained herein. Based upon the foregoing, it is our opinion that the Common
Stock, upon issuance in accordance with the terms of the Plan, and as described
in the Registration Statement, will be legally issued, fully paid and
nonassessable.
The foregoing opinions are based on and are limited to the laws of the
State of Illinois, the General Corporation Law of the State of Delaware and the
laws of the United States of America, and we express no opinion with respect to
the law of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Frederick L. Hartmann
-------------------------------
Frederick L. Hartmann
Ex 5.1 page - 1
Exhibit 23.1
CONSENT OF KPMG PEAT MARWICK LLP
We consent to incorporation herein by reference of our report dated January
28, 1998, relating to the consolidated balance sheets of Wisconsin Central
Transportation Corporation and subsidiaries as of December 31, 1997 and 1996 and
the related consolidated statements of income, changes in stockholders' equity,
and cash flows for each of the years in the three-year period ended December 31,
1997, which report appears in the December 31, 1997 annual report on Form 10-K
of Wisconsin Central Transportation Corporation.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
December 21, 1998
Ex 23.1 page - 1
