S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on December 15, 2006
As
filed with the Securities and Exchange Commission
on
December 14, 2006
Registration
No. 333-______
UNITED
STATES
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)
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Texas
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1-7259
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74-1563240
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_____________________
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_____________
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______________
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(State
or other jurisdiction
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(Commission
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(I.R.S.
Employer
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of
incorporation)
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File
Number)
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Identification
No.)
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P.
O. Box 36611, Dallas, Texas
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75235-1611
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_________________________________
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___________
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(Address
of principal executive offices)
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(Zip
Code)
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Southwest
Airlines Co.
1991
Employee Stock Purchase Plan, as amended March 16, 2006
(Full
title of the plan)
Laura
Wright
Senior
Vice President-Finance & Chief Financial Officer
Southwest
Airlines Co.
P.O.
Box 36611
Dallas,
Texas 75235-1611
214/792-4000
(Name,
address, and telephone number, including area code,
of
agent for service)
Copy
to:
Deborah
Ackerman
Vice
President-General Counsel
Southwest
Airlines Co.
P.O.
Box 36611
Dallas,
Texas 75235-1611
CALCULATION
OF REGISTRATION FEE
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Title
of Securities to be Registered
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Amount
to be Registered(1)
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Proposed
Maximum
Offering Price Per Share(2)
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Proposed
Maximum Aggregate Offering Price(2)
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Amount
of Registration Fee(2)
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Common
Stock,
$1.00
par value per share
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7,000,000
shares
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$15.40
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$107,800,000.00
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$11,534.60
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(1)
Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
this Registration Statement shall be deemed
to
cover any additional shares of common
stock, par value $1.00 per share (the “Common Stock”), of Southwest Airlines Co.
(“Southwest”)
that may be issued to prevent dilution resulting from stock splits,
stock
dividends, or similar transactions.
(2) Estimated
solely for the purpose of calculating the registration fee in accordance
with
Rules 457(c) and 457(h) under the Securities Act.
The
offering price and registration fee are
based on a price of $15.40 per share, which price is the average of the
high and low prices
for the Common Stock, as reported on the New York Stock Exchange on December
8,
2006.
1
REGISTRATION
OF ADDITIONAL SECURITIES
This
Registration Statement covers an additional 7,000,000 shares of Southwest’s
Common Stock that may be offered pursuant to the Plan. In accordance with
General Instruction E to Form S-8, the contents of Southwest’s Registration
Statement on Form S-8 (File Number 33-40653) are incorporated herein by
reference.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
The
following documents, which have been filed with the Securities and Exchange
Commission (the “Commission”), are incorporated by reference into this
Registration Statement:
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(i)
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Southwest’s
Annual Report on Form 10-K for the fiscal year ended December 31,
2005,
filed with the Commission on February 1,
2006;
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(ii)
Southwest’s
Quarterly Reports on Form 10-Q for the quarterly periods ended March 31,
2006,
June 30, 2006, and September 30, 2006, filed with the Commission on April
24,
2006, July 21, 2006, and October 20, 2006, respectively;
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(iii)
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Southwest’s
Current Reports on Form 8-K, filed with the Commission on January 24,
2006, April 20, 2006, May 18, 2006, May 19, 2006, August 8, 2006,
August 14, 2006, November 21, 2006, December 12, 2006, and December
14, 2006; and
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(iv)
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the
description of Southwest’s Common Stock contained in its Registration
Statement on Form 8-A, including any amendments or reports filed
for the
purpose of updating such
description.
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In
addition, all documents subsequently filed by Southwest with the Commission
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 that
indicates that all securities offered have been sold or that deregisters
all
securities then remaining unsold shall be deemed to be incorporated by reference
herein and to be a part hereof form the date of filing of such
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-General Counsel of the Company.
Ms. Ackerman beneficially owns approximately 168,000 shares of Common
Stock (including vested and unvested stock options).
2
Item 6.
Indemnification
of Directors and Officers.
Article VIII,
Section 1 of Southwest’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 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 Southwest’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 2.02-1B.
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.”
Southwest
also maintains directors’ and officers’ liability insurance.
Item
8. Exhibits.
4.1 Restated
Articles of Incorporation of Southwest (incorporated by reference to
Exhibit 4.1 to Southwest’s Registration Statement on Form S-3 (File
No. 33-52155)); Amendment to Restated Articles of Incorporation of
Southwest (incorporated by reference to Exhibit 3.1 to Southwest’s
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996
(File No. 1-7259)); Amendment to Restated Articles of Incorporation of
Southwest (incorporated by reference to Exhibit 3.1 to Southwest’s
Quarterly Report on Form 10-Q for the quarter ended June 30, 1998
(File No. 1-7259)); Amendment to Restated Articles of Incorporation of
Southwest (incorporated by reference to Exhibit 4.2 to Southwest’s
Registration Statement on Form S-8 (File No. 333-82735); Amendment to
Restated Articles of Incorporation of Southwest (incorporated by reference
to
Exhibit 3.1 to Southwest’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2001 (File No. 1-7259)).
3
4.2 Bylaws
of
Southwest, as amended through January 2005 (incorporated by reference to
Exhibit 3.2 to Southwest’s Current Report on Form 8-K dated
January 25, 2005 (File No. 1-7259)).
4.3 Specimen
certificate representing Common Stock of Southwest (incorporated by reference
to
Exhibit 4.2 to Southwest’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-General Counsel of the Company.
23.1
Consent
of Ernst & Young LLP.
23.2 Consent
of Deborah Ackerman, Vice President-General Counsel of the Company (contained
in
the opinion filed as Exhibit 5 hereto).
99
Southwest
Airlines Co. 1991 Employee Stock Purchase Plan, as amended March 16,
2006.
4
Item 17.
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;
(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 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 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.
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 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.
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 December 14, 2006.
SOUTHWEST
AIRLINES
CO.
By:
/s/
Laura Wright
Laura
Wright
Senior Vice President-Finance,
Chief Financial Officer
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated on December
14, 2006.
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Signature
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Capacity
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/s/
Herbert D. Kelleher
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Chairman
of the
Board of Directors
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Herbert
D. Kelleher
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/s/
Gary C. Kelly
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Vice
Chairman of the Board of Directors
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Gary
C. Kelly
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and
Chief Executive Officer
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/s/
Laura Wright
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Senior
Vice President-Finance
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Laura
Wright
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(Principal
Financial and Accounting Officer)
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/s/
Colleen C. Barrett
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Director
and
President
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Colleen
C. Barrett
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/s/
David W. Biegler
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Director
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David
W. Biegler
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/s/
William P. Hobby
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Director
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William
P. Hobby
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/s/
Travis C. Johnson
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Director
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Travis
C. Johnson
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/s/
Louis E. Caldera
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Director
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Louis
E. Caldera
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/s/
Nancy B. Loeffler
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Director
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Nancy
B. Loeffler
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/s/
C. Webb Crockett
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Director
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C.
Webb Crockett
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/s/
John T. Montford
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Director
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John
T. Montford
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/s/WilliamH.Cunningham
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Director
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William
H. Cunningham
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6
INDEX
TO EXHIBITS
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4.1
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Restated
Articles of Incorporation of Southwest (incorporated by reference
to
Exhibit 4.1 to Southwest’s Registration Statement on Form S-3
(File No. 33-52155)); Amendment to Restated Articles of Incorporation
of Southwest (incorporated by reference to Exhibit 3.1 to Southwest’s
Quarterly Report on Form 10-Q for the quarter ended June 30,
1996 (File No. 1-7259)); Amendment to Restated Articles of
Incorporation of Southwest (incorporated by reference to Exhibit 3.1
to Southwest’s Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998 (File No. 1-7259)); Amendment to Restated Articles
of Incorporation of Southwest (incorporated by reference to
Exhibit 4.2 to Southwest’s Registration Statement on Form S-8
(File No. 333-82735); Amendment to Restated Articles of Incorporation
of Southwest (incorporated by reference to Exhibit 3.1 to Southwest’s
Quarterly Report on Form 10-Q for the quarter ended June 30,
2001 (File No. 1-7259)).
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4.2
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Bylaws
of Southwest, as amended through January 2005 (incorporated by
reference
to Exhibit 3.2 to Southwest’s Current Report on Form 8-K dated
January 25, 2005 (File
No. 1-7259)).
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4.3
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Specimen
certificate representing Common Stock of Southwest (incorporated
by
reference to Exhibit 4.2 to Southwest’s Annual Report on Form 10-K for the
year ended December 31, 1994 (File No.
1-7259)).
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5
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Opinion
of Deborah Ackerman, Vice President-General Counsel of the Company.
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23.1
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Consent
of Ernst & Young LLP.
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23.2
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Consent
of Deborah Ackerman, Vice President-General Counsel of the Company
(contained in the opinion filed as Exhibit 5
hereto).
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99
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Southwest
Airlines Co. 1991 Employee Stock Purchase Plan, as amended March
16,
2006.
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7