As filed with the Securities and Exchange Commission on May 31, 2005
Registration No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
DST SYSTEMS, INC.
--------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 43-1581814
-------------------------------- -------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification
No.)
333 West 11th Street, 5th Floor
KANSAS CITY, MISSOURI 64105-1594
---------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
DST SYSTEMS, INC. 2005 NON-EMPLOYEE DIRECTORS' AWARD PLAN
---------------------------------------------------------
(Full Title of the Plan)
Randall D. Young
Vice President, General Counsel and Secretary
DST Systems, Inc.
333 West 11th Street, 5th Floor
Kansas City, Missouri 64105-1594
(816) 435-4636
------------------------------------------------------------------------
(Name, Address and Telephone, Including Area Code, of Agent For Service)
Copies to:
John F. Marvin, Esq.
Diane M. Bono, Esq.
Sonnenschein Nath & Rosenthal
4520 Main Street, Suite 1100
Kansas City, Missouri 64111
(816) 460-2400
CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered Registered(1) offering price per share aggregate offering price registration fee
-------------------------- ----------------- ------------------------- ------------------------- --------------------
Common Stock 300,000 $47.20 (2) $14,160,000 (2) $1,667 (2)
($0.01 par value) (3) shares(4)
-------------------------- ----------------- ------------------------- ------------------------- --------------------
(1) Includes associated rights to purchase Series A Preferred Stock of the
Registrant.
(2) Estimated pursuant to Rule 457(h)(1) under the Securities Act of 1933
solely for the purposes of calculating the registration fee, based on the
average of the high and low prices of a share of Common Stock of DST
Systems, Inc. reported for trading on the New York Stock Exchange on May
24, 2005.
(3) Pursuant to Rule 416(a) under the Securities Act of 1933, this registration
statement also covers any additional securities that may be offered or
issued in connection with any stock split, stock dividend or similar
transaction.
(4) This Registration Statement registers 300,000 shares under the Plan which
replaces a component of the 1995 Stock Option and Performance Award Plan
("1995 Plan"), under which 30,000,000 shares have previously been
registered (SEC File Nos. 333-88288, 333-04197, 333-69377, 333-36726).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by DST Systems, Inc. (the "Registrant") with
the Securities and Exchange Commission (the "Commission") (File No. 1-14036) are
hereby incorporated by reference and made a part of this registration statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended December
31, 2004;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2005.
(c) The Registrant's Current Reports on Form 8-K filed on May 12, 2005, May
2, 2005, April 21, 2005, April 14, 2005, April 11, 2005 and March 4, 2005.
(d) The description of the Registrant's common stock, par value $0.01 per
share (the "Common Stock"), in the Registrant's Form 8-A filed on October 30,
1995, as amended by the Registrant's Form 8-A12B/A filed on January 12, 1998 and
Form 8-A12B/A filed on March 14, 2003 and any amendment or report filed for the
purposes of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective amendment to
this registration statement which indicates that all common stock registered
hereby has been sold or which deregisters such common stock then remaining
unsold shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents
(such documents, and the documents listed above, being hereinafter referred to
as "Incorporated Documents," or individually as an "Incorporated Document"). Any
statement contained in an Incorporated Document shall be deemed to be modified
or superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL"), provides,
generally, that a corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding (other than an action by or in the right
of the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director,
officer, employee or agent of another corporation or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. Similar indemnity is authorized for such persons against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of any such threatened, pending or
completed action or suit by or in the right of the corporation if such person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, and provided further that
(unless a court of competent jurisdiction otherwise provides) such person shall
not have been adjudged liable to the corporation. Any such indemnification
(unless ordered by a court) may be made only as authorized in each specific case
upon a determination by the stockholders, disinterested directors, committee of
such directors or by independent legal counsel in a written opinion, that
indemnification is proper because the indemnitee has met the applicable standard
of conduct. Section 145 of the DGCL provides that to the extent that a present
or former director or officer of a corporation has been successful on the merits
or otherwise in defense of any such action, suit or proceeding, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith. Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it is ultimately determined
that such person is not entitled to be indemnified by the corporation as
authorized under Section 145 of the DGCL. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems
appropriate. Section 145 of the DGCL also provides that a corporation shall have
power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the corporation would have the
power to indemnify such person against such liability under Section 145 of the
DGCL.
DST's Certificate of Incorporation, as amended (the "DST Certificate of
Incorporation") provides that the directors and officers of DST, or persons who
are or were serving at the request of DST as directors or officers of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan, (collectively, "indemnitees")
shall be indemnified to the maximum extent permitted by law against all expense,
liability and loss reasonably incurred by such individuals in defending a civil
or criminal action, suit or proceeding, whether the basis of such proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving as a director or officer, brought against such officers
and directors in any such capacities. The right to indemnification includes the
right to have DST pay the expenses in advance of the final disposition of such
action, suit or proceeding. As to directors and officers, the DST Certificate of
Incorporation requires receipt by DST of an undertaking by or on behalf of the
director or officer to repay such amount if it is ultimately determined that the
director or officer is not entitled to be indemnified by DST as authorized by
the DGCL. Except as discussed below with respect to proceedings to enforce
rights to indemnification, DST will indemnify any such indemnitee in connection
with a proceeding initiated by such indemnitee only if such proceeding was
authorized by the DST Board of Directors.
If a claim for indemnification, or advancement of expenses, is not paid in
full by DST within the time periods specified in the DST Certificate of
Incorporation, the indemnitee may bring suit against DST to recover the unpaid
amount of the claim. If the indemnitee is successful in whole or in part in any
such suit, or in a suit brought by DST to recover an advancement of expenses
pursuant to the terms of an
undertaking, the indemnitee will also be entitled to be paid the expenses of
prosecuting or defending such suit. In any suit by DST to recover an advancement
of expenses pursuant to the terms of an undertaking, DST is entitled to recover
such expenses upon a final adjudication that the indemnitee has not met any
applicable standard for indemnification set forth in the DGCL. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses, or by DST to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under the DST Certificate of Incorporation will be on DST.
The foregoing right of indemnification and advancement of expenses is not
exclusive of any other rights of indemnification and advancement of expenses to
which any such individual may be entitled by by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
DST's Certificate of Incorporation provides that a director of DST will not
be personally liable to DST or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for the prohibition on elimination or
limitation set forth in Section 102(b)(7) of the DGCL. The DST Certificate of
Incorporation further provides that if the DGCL is amended to further eliminate
or limit the personal liability of directors, then the liability of a DST
director will be eliminated or limited to the fullest extent permitted by the
DGCL as so amended. Reference is made to Article NINTH of the Registrant's
Certificate of Incorporation incorporated by reference as Exhibit 4.1 hereto.
DST's Amended and Restated Bylaws provides that directors, officers,
employees or agents shall be indemnified only as provided in the DST Certificate
of Incorporation.
Section 102(b)(7) of the DGCL provides, generally, that the certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
may not eliminate or limit the liability of a director (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) under section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. No
such provision may eliminate or limit the liability of a director for any act or
omission occurring before the date when such provision becomes effective. As
permitted by the DGCL, the Registrant's Certificate of Incorporation provides
that, to the fullest extent permitted by the DGCL and any amendments thereto, no
director of the Registrant shall be liable to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
The exhibits are listed in the Exhibit Index of this registration
statement, which Exhibit Index is incorporated herein by reference.
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 this 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 this
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this 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 hereby 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
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 therein, 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 of the certificate of incorporation and
by-laws of the Registrant and the provisions of the Delaware law described under
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 Securities Act of 1933 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
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 Kansas City, State of Missouri, on May 31, 2005.
DST SYSTEMS, INC.
By: /s/ Thomas A. McDonnell
---------------------------------------------
Thomas A. McDonnell
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas A. McDonnell, Thomas A. McCullough and
Kenneth V. Hager and each of them, his or her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in
fact and agents or any of them, or their, or his 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 on May 31, 2005 by the following persons
in the capacities indicated.
SIGNATURE TITLE
/s/ Thomas A. McDonnell
-------------------------- President, Chief Executive Officer and
Thomas A. McDonnell Director (Principal Executive Officer)
/s/ Kenneth V. Hager
-------------------------- Vice President, Chief Financial Officer
Kenneth V. Hager and Treasurer (Principal Financial Officer)
/s/ Gregg Wm. Givens
-------------------------- Vice President and Chief Accounting Officer
Gregg Wm. Givens (Principal Accounting Officer)
/s/ Thomas A. McCullough
-------------------------- Executive Vice President, Chief Operating
Thomas A. McCullough Officer and Director
/s/ A. Edward Allinson
-------------------------- Director
A. Edward Allinson
/s/ Michael G. Fitt
-------------------------- Director
Michael G. Fitt
/s/ William C. Nelson
-------------------------- Director
William C. Nelson
/s/ Travis E. Reed
-------------------------- Director
Travis E. Reed
-------------------------- Director
M. Jeannine Strandjord
EXHIBIT INDEX
-------------- -----------------------------------------------------------------
EXHIBIT NO. DESCRIPTION OF EXHIBIT
-------------- -----------------------------------------------------------------
4.1 The Company's Amended Delaware Certificate of Incorporation, as
restated ("Certificate"), which is attached as Exhibit 3.1 to the
Company's Registration Statement on Form S-1 filed on September
1, 1995, as amended (Registration No. 33-96526) (the "IPO
Registration Statement"), is hereby incorporated by reference as
Exhibit 4.1.
-------------- -----------------------------------------------------------------
4.1.1 The Company's Certificate of Amendment of Certificate of
Incorporation dated May 9, 2000, which is attached as Exhibit 3.1
to the Company's Quarterly Report on Form 10-Q dated May 15, 2000
(File No. 1-14036), is hereby incorporated by reference as
Exhibit 4.1.1.
-------------- -----------------------------------------------------------------
4.1.2 The Company's Certificate of Amendment of Certificate of
Incorporation dated May 11, 2004, which is attached as Exhibit
3.1.2 to the Company's Quarterly Report on Form 10-Q dated August
9, 2004 (File No. 1-14036), is hereby incorporated by reference
as Exhibit 4.1.2.
-------------- -----------------------------------------------------------------
4.2 The Company's Amended and Restated By-laws dated February 26,
2004, which are attached as Exhibit 4.7 to the Company's
Post-Effective Amendment No. 2 to the Registration Statement on
Form S-3 (Registration File No. 333-109130), are hereby
incorporated by reference as Exhibit 4.2.
-------------- -----------------------------------------------------------------
4.3 The Certificate of Designations dated October 16, 1995,
establishing the Series A Preferred Stock of the Company, which
is attached as Exhibit 4.3 to the Company's IPO Registration
Statement, is hereby incorporated by reference as Exhibit 4.3.
-------------- -----------------------------------------------------------------
4.3.1 The summary of the preferred stock purchase rights set forth in
the Company's Registration Statement on Form 8-A dated November
15, 1995 in connection with the listing of the preferred stock
purchase rights on the New York Stock Exchange (the "Form 8-A")
(Commission File No. 1-14036), and the related Rights Agreement
dated as of October 6, 1995, between the Company and State Street
Bank and Trust Company, as rights agent ("Rights Agreement"),
which is attached as Exhibit 4.4 to the Company's IPO
Registration Statement, are hereby incorporated by reference as
Exhibit 4.3.1.
-------------- -----------------------------------------------------------------
4.3.2 The First Amendment dated as of July 9, 1998 to the Rights
Agreement, which amendment is attached as Exhibit 99 to Form
8-A12B/A, Amendment No. 1, dated July 30, 1998 (Commission File
No. 1-14036), to the Form 8-A, is hereby incorporated by
reference as Exhibit 4.3.2.
-------------- -----------------------------------------------------------------
4.3.3 The Second Amendment dated as of September 10, 1999 to the Rights
Agreement, which amendment is attached as Exhibit 99 to Form
8-A12B/A, Amendment No. 2, dated September 27, 1999 (Commission
File No. 1-14036), to the Form 8-A, is hereby incorporated by
reference as Exhibit 4.3.3.
-------------- -----------------------------------------------------------------
4.3.4 The Third Amendment dated as of September 25, 2001 to the Rights
Agreement, which amendment is attached as Exhibit 99 to Form
8-A12B/A, Amendment No. 3, dated November 26, 2001 (Commission
File No. 1-14036), to the Form 8-A, is hereby incorporated by
reference as Exhibit 4.3.4.
-------------- -----------------------------------------------------------------
4.3.5 The Fourth Amendment dated as of March 2, 2005 to the Rights
Agreement, which amendment is attached as Exhibit 10.4 to the
Company's Current Report on Form 8-K filed March 4, 2005
(Commission File No. 1-14036), is hereby incorporated by
reference as Exhibit 4.3.5.
-------------- -----------------------------------------------------------------
4.6 DST Systems, Inc. 2005 Non-Employee Directors' Award Plan, which
is attached as Exhibit 10.2 to the Company's Current Report on
Form 8-K filed May 12, 2005 (Commission File No. 1-14036), is
hereby incorporated by reference as Exhibit 4.6.
-------------- -----------------------------------------------------------------
5.1 Opinion of Sonnenschein Nath & Rosenthal LLP
-------------- -----------------------------------------------------------------
23.1 Consent of PricewaterhouseCoopers LLP
-------------- -----------------------------------------------------------------
23.2 Consent of Sonnenschein Nath & Rosenthal LLP (included in Exhibit
5.1)
-------------- -----------------------------------------------------------------
24.1 Powers of Attorney (included on the signature page of this
registration statement)
-------------- -----------------------------------------------------------------