S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on October 24, 2007
As
filed with the Securities and Exchange Commission
on
October 23, 2007
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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74-1563240
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_____________________
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______________
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(State
or other jurisdiction
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(I.R.S.
Employer
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of
incorporation or organization)
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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.
2007
Equity Incentive Plan
(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)
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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285,000
5,715,000
_____________________
6,000,000
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$16.40
$14.07
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$4,674,000
$80,410,050
_______________________
$85,084,050
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$143.49
$2,468.59
__________________________
$2,612.08
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(1)
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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.
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|
(2)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rules 457(c) and 457(h) under the Securities Act as follows:
(i) with
respect to shares of Common Stock that may be purchased upon exercise
of
outstanding stock options, the fee is calculated on the basis of
the price
at which options may be exercised; and (ii) with respect to the remaining
shares of Common Stock issuable pursuant to the plan, the fee is
calculated on the basis of the average of the high and low prices
for the
Common Stock, as reported on the New York Stock Exchange on October
22,
2007.
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1
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item
3.
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Incorporation
of Documents by Reference.
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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,
2006
(the “Form 10-K”), filed with the Commission on February 1, 2007, and
Amendments No. 1 and No. 2 to the Form 10-K filed on February 28,
2007,
and April 24, 2007, respectively;
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(ii)
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Southwest’s
Quarterly Reports on Form 10-Q for the quarterly periods ended March
31,
2007, June 30, 2007, and September 30, 2007, filed with the Commission
on
April 23, 2007, June 20, 2007, and October 22, 2007,
respectively;
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(iii)
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Southwest’s
Current Reports on Form 8-K, filed with the Commission on January
19,
2007, March 19, 2007, May 17, 2007, July 20, 2007, September 20,
2007,
September 25, 2007, and October 4, 2007;
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 from
the
date of filing of such documents.
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Item
5.
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Interests
of Named Experts and
Counsel.
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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. As of October 19, 2007, Ms. Ackerman held 41,991
shares of Common Stock and options to acquire 107,270 shares of Common Stock,
of
which 87,071 were currently exercisable.
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.
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Item
8.
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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)); Articles of Amendment to Articles of
Incorporation of Southwest Airlines Co. (incorporated by reference
to
Exhibit 3.1 to Southwest’s Quarterly Report on Form 10-Q for the quarter
ended June 30, 2007 (File No.
1-7259)).
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4.2
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Amended
and Restated Bylaws of Southwest, effective September 20, 2007
(incorporated by reference to Exhibit 3.1 to Southwest’s Current
Report on Form 8-K dated September 20, 2007 (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, independent registered public accounting
firm.
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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. 2007 Equity Incentive
Plan.
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3
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Item 17.
Undertakings.
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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.
4
SIGNATURES
The
Registrant. Pursuant to the requirements of the Securities Act
of 1933, as amended, 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
October 23, 2007.
SOUTHWEST AIRLINES CO.
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By
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/s/ Laura
Wright
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Laura
Wright
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Senior
Vice President-Finance,
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Chief
Financial Officer
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Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities indicated
on October 23, 2007.
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Signature
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Capacity
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|||
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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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||||
| _______________ |
Director
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Louis
E. Caldera
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||||
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/s/
C. Webb Crockett
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Director
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C.
Webb Crockett
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||||
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/s/
William H. Cunningham
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Director
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William
H. Cunningham
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||||
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/s/
Travis C. Johnson
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Director
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Travis
C. Johnson
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||||
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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/
John T. Montford
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Director
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John
T. Montford
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||||
5
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)); Articles of Amendment to Articles of
Incorporation of Southwest Airlines Co. (incorporated by reference
to
Exhibit 3.1 to Southwest’s Quarterly Report on Form 10-Q for the quarter
ended June 30, 2007 (File No.
1-7259)).
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4.2
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Amended
and Restated Bylaws of Southwest, effective September 20, 2007
(incorporated by reference to Exhibit 3.1 to Southwest’s Current
Report on Form 8-K dated September 20, 2007 (File
No. 1-7259)).
|
|
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, independent registered public accounting
firm.
|
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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
|
Southwest
Airlines Co. 2007 Equity Incentive
Plan.
|
6