As filed with the Securities and Exchange Commission on July 30, 2004
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. 2003 Non-Qualified Stock Option Plan
(Full title of the plan)
Laura Wright
Chief Financial Officer
Southwest Airlines Co.
P.O. Box 36611
Dallas, Texas 75235-1611
214/792-4459
(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 15,000,000
$1.00 per share shares $14.10 $211,500,000 $26,860
(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
July 26, 2004.
(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 description of the Company's Common Stock contained in a
registration statement 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 136,117 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 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.
Item 8. Exhibits.
4.1 Southwest Airlines Co. 2003 Non-Qualified Stock Option Plan.
4.2 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 Registered Public
Accounting Firm.
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.
(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 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 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.
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 July 30,
2004.
SOUTHWEST AIRLINES CO.
By /s/ Laura Wright
Laura Wright
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 July 30, 2004.
Signature Capacity
___________________ Chairman of the Board of Directors
Herbert D. Kelleher
/s/ Gary C. Kelly Chief Executive Officer and
Gary C. Kelly Director
/s/ Colleen C. Barrett President, Chief Operating Officer
Colleen C. Barrett and Director
/s/ Laura Wright Chief Financial Officer
Laura Wright (Chief Financial and Accounting
Officer)
/s/ William P. Hobby Director
William P. Hobby
/s/ Travis C. Johnson Director
Travis C. Johnson
___________________ 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
___________________ Director
Louis E. Caldera
/s/ Nancy B. Loeffler Director
Nancy B. Loeffler
INDEX TO EXHIBITS
4.1 Southwest Airlines Co. 2003 Non-Qualified Stock Option Plan.
4.2 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 Registered Public
Accounting Firm.
23.2 Consent of Deborah Ackerman, Vice President and General Counsel of
Southwest (contained in the opinion filed as Exhibit 5 hereto).