As filed with the Securities and Exchange Commission on April 2, 2003
Reg. No. 333-
---------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
SOUTHWEST AIRLINES CO.
(Exact name of registrant as specified in its charter)
Texas 75-1563240
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. Box 36611, Dallas, Texas 75235-1611
(Address of Principal Executive Offices) (Zip Code)
Southwest Airlines Co. 2002 Ramp, Operations, Provisioning and Freight
Non-Qualified Stock Option Plan
Southwest Airlines Co. 2002 Customer Service/Reservations
Non-Qualified Stock Option Plan
(Full title of the plan)
Gary C. Kelly
Executive Vice President & Chief Financial Officer
Southwest Airlines Co.
P.O. Box 36611
Dallas, Texas 75235-1611
214/792-4363
(Name, address, and telephone number, including area code,
of agent for service)
Copy to:
Deborah Ackerman
Vice President and General Counsel
Southwest Airlines Co.
P.O. Box 36611
Dallas, Texas 75235-1611
CALCULATION OF REGISTRATION FEE
Proposed
Proposed maximum Amount
Title of maximum aggregate of
securities to Amount to be offering price offering registration
be registered registered (2) per share (1) price(1) fee
--------------- -------------- -------------- ------------ ------------
Common Stock
par value 37,500,000
$1.00 per share shares $ 14.25 $534,375,000 $ 43,231
--------------- -------------- -------------- ------------ ------------
(1) Estimated solely for the purpose of calculating the registration fee which,
pursuant to Rules 457(c) and 457(h), is based on the average of the high and low
price for the Common Stock on the New York Stock Exchange on March 28, 2003.
(2) The number of shares of Common Stock registered herein is subject to
adjustment to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) the Company's latest annual report filed pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934;
(b) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
annual report referred to above; and
(c) the descriptions of the Company's Common Stock and Common Share
Purchase Rights contained in registration statements filed under the Securities
Exchange Act of 1934 by the Company with the Commission, including any amendment
or report filed for the purpose of updating such descriptions.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such reports and
documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock registered hereunder has been passed
upon for the Company by Deborah Ackerman, Vice President and General Counsel.
Ms. Ackerman beneficially owns 201,228 shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VIII, Section 1 of Registrant's Bylaws provides as follows:
"Right to Indemnification: Subject to the limitations and
conditions as provided in this Article VIII, each person, who was or is made a
party to, or is threatened to be made a party to, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative (hereinafter called a "proceeding"), or any appeal
in such a proceeding or any inquiry or investigation that could lead to such a
proceeding, by reason of the fact that he (or a person of whom he is the legal
representative) is or was a director or officer of the corporation (or while a
director or officer of the corporation is or was serving at the request of the
corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent, or similar functionary of another foreign or domestic
corporation, partnership, joint venture, proprietorship, trust, employee benefit
plan, or other enterprise) shall be indemnified by the corporation to the
fullest extent permitted by the Texas Business Corporation Act, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the
II-2
corporation to provide broader indemnification rights than said law permitted
the corporation to provide prior to such amendment) against judgments, penalties
(including excise and similar taxes and punitive damages), fines, settlements
and reasonable expenses (including, without limitation, court costs and
attorneys' fees) actually incurred by such person in connection with such
proceeding, appeal, inquiry or investigation, and indemnification under this
Article VIII shall continue as to a person who has ceased to serve in the
capacity which initially entitled such person to indemnity hereunder; provided,
however, that in no case shall the corporation indemnify any such person (or the
legal representative of any such person) otherwise than for his reasonable
expenses, in respect of any proceeding (i) in which such person shall have been
finally adjudged by a court of competent jurisdiction (after exhaustion of all
appeals therefrom) to be liable on the basis that personal benefit was
improperly received by him, whether or not the benefit resulted from an action
taken in such person's official capacity, or (ii) in which such person shall
have been found liable to the corporation; and provided, further, that the
corporation shall not indemnify any such person for his reasonable expenses
actually incurred in connection with any proceeding in which he shall have been
found liable for willful or intentional misconduct in the performance of his
duty to the corporation. The rights granted pursuant to this Article VIII shall
be deemed contract rights, and no amendment, modification or repeal of this
Article VIII shall have the effect of limiting or denying any such rights with
respect to actions taken or proceedings arising prior to any such amendment,
modification or repeal. It is expressly acknowledged that the indemnification
provided in this Article VIII could involve indemnification for negligence or
under theories of strict liability."
Article Ten of the Company's Articles of Incorporation provides that a
director of the corporation shall not be liable to the corporation or its
shareholders for monetary damages for an act or omission in the director's
capacity as a director, subject to certain limitations.
Article 2.02-1 B. of the Texas Business Corporation Act provides that,
subject to certain limitations, "a corporation may indemnify a person who was,
is or is threatened to be made a named defendant or respondent in a proceeding
because the person is or was a director only if it is determined in accordance
with Section F of this article that the person: (1) conducted himself in good
faith; (2) reasonably believed: (a) in the case of conduct in his official
capacity as a director of the corporation, that his conduct was in the
corporation's best interests; and (b) in all other cases, that his conduct was
at least not opposed to the corporation's best interests; and (3) in the case of
any criminal proceeding, had no reasonable cause to believe his conduct was
unlawful."
The Company also maintains directors' and officers' liability
insurance.
II-3
ITEM 8. EXHIBITS.
4.1 Southwest Airlines Co. 2002 Ramp, Operations, Provisioning and
Freight Non-Qualified Stock Option Plan (incorporated by
reference to Exhibit 10.27 to the Company's Annual Report on
Form 10-K for the year ended December 31, 2002 (File No.
1-7259))
4.2 Southwest Airlines Co. 2002 Customer Service/Reservations
Non-Qualified Stock Option Plan (incorporated by reference to
Exhibit 10.28 to the Company's Annual Report on Form 10-K for
the year ended December 31, 2002 (File No. 1-7259))
4.3 Amendment No. 1 to Southwest Airlines Co. 2002 Customer
Service/Reservations Non-Qualified Stock Option Plan
4.4 Specimen certificate representing Common Stock of the Company
(incorporated by reference to Exhibit 4.2 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1994 (File No. 1-7259)).
5 Opinion of Deborah Ackerman, Vice President and General
Counsel of Southwest Airlines Co., re legality of securities
being registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Deborah Ackerman, Vice President and General
Counsel of Southwest Airlines Co. (contained in the opinion
filed as Exhibit 5 hereto).
ITEM 9. UNDERTAKINGS.
A. 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which is registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
II-4
(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 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 by registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. 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. 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 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 Act and will be governed by the final adjudication of
such issue.
II-5
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 Dallas, State of Texas on March 28, 2003.
SOUTHWEST AIRLINES CO.
By /s/ Gary C. Kelly
---------------------------------
Gary C. Kelly
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated on March 20, 2003.
Signature Capacity
--------- --------
/s/ Herbert D. Kelleher Chairman of the Board of Directors
---------------------------------
Herbert D. Kelleher
/s/ James F. Parker Chief Executive Officer and Director
---------------------------------
James F. Parker
/s/ Colleen C. Barrett President, Chief Operating Officer and Director
---------------------------------
Colleen C. Barrett
/s/ Gary C. Kelly Executive Vice President-Chief Financial Officer
--------------------------------- (Chief Financial and Accounting Officer)
Gary C. Kelly
/s/ William P. Hobby Director
---------------------------------
William P. Hobby
/s/ Travis C. Johnson Director
---------------------------------
Travis C. Johnson
/s/ R.W. King Director
---------------------------------
R. W. King
/s/ June M. Morris Director
---------------------------------
June M. Morris
/s/ C. Webb Crockett Director
---------------------------------
C. Webb Crockett
/s/ William H. Cunningham Director
---------------------------------
William H. Cunningham
/s/ John T. Montford Director
---------------------------------
John T. Montford
/s/ Louis Caldera Director
Louis Caldera
/s/ Nancy Loeffler Director
Nancy Loeffler
II-6
INDEX TO EXHIBITS
4.1 Southwest Airlines Co. 2002 Ramp, Operations, Provisioning and Freight
Non-Qualified Stock Option Plan (incorporated by reference to Exhibit
10.27 to the Company's Annual Report on Form 10-K for the year ended
December 31, 2002 (File No. 1-7259))
4.2 Southwest Airlines Co. 2002 Customer Service/Reservations Non-Qualified
Stock Option Plan (incorporated by reference to Exhibit 10.28 to the
Company's Annual Report on Form 10-K for the year ended December 31,
2002 (File No. 1-7259))
4.3 Amendment No. 1 to Southwest Airlines Co. 2002 Customer
Service/Reservations Non-Qualified Stock Option Plan
4.4 Specimen certificate representing Common Stock of the Company
(incorporated by reference to Exhibit 4.2 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1994 (File No.
1-7259)).
5 Opinion of Deborah Ackerman, Vice President and General Counsel of
Southwest, re legality of securities being registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Deborah Ackerman, Vice President and General Counsel of
Southwest (contained in the opinion filed as Exhibit 5 hereto).
II-7