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As filed with the Securities and Exchange Commission on March 31, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WESTERN RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Kansas 48-0290150
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
818 Kansas Avenue
Topeka, Kansas 66612
(Address of Principal Executive Offices)
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WESTERN RESOURCES, INC. 1996 LONG TERM INCENTIVE
AND SHARE AWARD PLAN
(Full title of the plan)
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Richard D. Terrill, Esq. William B. Moore
Vice President, Law Acting Executive Vice President,
and Corporate Secretary Chief Financial Officer and Treasurer
818 Kansas Avenue 818 Kansas Avenue
Topeka, Kansas 66612 Topeka, Kansas 66612
(785) 575-6322 (785) 575-6369
(Names, addresses and telephone numbers, including
area code, of agents for service)
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Copy to:
Gary W. Wolf, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005-1702
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered (2) Offering Price Per Share Aggregate Offering Price Registration Fee
(2) (2) (3)
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Restricted Share
Units (1) $2,000,000 100% $2,000,000 $556
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(1) The Restricted Share Units are unsecured obligations of Western Resources,
Inc. to pay deferred compensation in the future in the form of shares of
Common Stock of Western Resources, Inc.
(2) Estimated solely for purposes of calculating the registration fee.
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PART I
INFORMATION REQUIRED
IN PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*The information called for by Part I of Form S-8 is not being filed
with or included in this Form S-8 in accordance with Rule 428 under
the Securities Act of 1933, as amended, and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Western Resources (the "Company" or "Western Resources") hereby
incorporates by reference the following documents previously filed with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"):
(a) The Company's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1997 (File No. 1-3523);
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1998, June 30, 1998, as amended by Amendment No. 1
thereto on Form 10-Q/A dated June 30, 1998, and September 30, 1998
(File No. 1-3523);
(c) The Company's Current Reports on Form 8-K dated March 19, 1998, July
13, 1998, August 3, 1998, August 6, 1998, and January 28, 1999 (File
No. 1-3523);
(d) The description of the Company's Common Stock contained in the
Registration Statement on Form 10, filed May 5, 1949, as updated by
the description contained in Item 7 of the Company's Form 10-Q filed
for the quarter ended March 31, 1979; and
(e) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Company's
annual report referenced in (a) above.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Registration Statement and prior to the termination of the offering of
the Common Stock offered hereby shall be deemed to be incorporated by reference
herein and to be a part hereof from the date any such document is filed.
Any statements contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in this Registration
Statement or in any other subsequently filed document which also is incorporated
by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Under the Western Resources, Inc. Executive Stock for Compensation Program
(the "Program"), the Company will provide eligible employees the opportunity to
elect to reduce a portion of their cash compensation in exchange for a grant of
Restricted Share Units at a 15% discount under the Western Resources, Inc. 1996
Long Term Incentive and Share Award Plan (the "Plan") entitling the employee to
shares of the Company's Common Stock at the end of a deferral period. The
obligations of the Company under the Restricted Share Units (the "Obligations")
will be unsecured general obligations of the Company to pay the deferred
compensation in the future in accordance with the terms of the Program, and will
rank pari passu with other unsecured and unsubordinated indebtedness of the
Company from time to time outstanding. However, because the Company is a holding
company, the right of the Company, and hence the right of creditors of the
Company (including participants in the Plan and the Program), to participate in
any distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that claims of the Company
itself as a creditor of the subsidiary may be recognized.
The amount of compensation to be deferred by each participating employee
(each a "Participant") will be determined in accordance with the Program based
on elections by each Participant. Each Obligation will be payable on a date
selected by each Participant in accordance with the terms of the Program. The
number of shares of the Company's Common Stock payable at the end of the
deferral period is determined by dividing the amount of the compensation
reduction by 85% of the closing price of a share of the Company's Common Stock
on the date the compensation would otherwise have been paid. In addition, under
the Restricted Share Units, an employee will receive dividend equivalents
entitling the employee to receive, at the employee's election, either a cash
payment equal to the cash dividends that would have been payable on an
equivalent number of shares of the Company's Common Stock or a number of
additional Restricted Share Units determined by dividing the amount of such
dividends by 85% of the closing price of a share of the Company's Common Stock
on the date the dividend would otherwise have been paid.
A Participant's right or the right of any other person to the Obligations
cannot be assigned, alienated, sold, garnished, transferred, pledged, or
encumbered except by designation of a beneficiary under the Program, by written
will, or by the laws of descent and distribution.
The Obligations are not subject to redemption, in whole or in part, prior
to the individual payment dates specified by each Participant, at the option of
the Company or through operation of a mandatory or optional sinking fund or
analogous provision except through termination of the Program by the Company.
The Company reserves the right to amend or terminate the Program at any time,
except that no such amendment may reduce an employee's rights under outstanding
Restricted Share Units.
The Obligations are not convertible into another security of the Company.
The Obligations will not have the negative pledge or any other affirmative or
negative covenant on the part of the Company. No trustee has been appointed
having the authority to take action with respect to the Obligations and each
Participant will be responsible for acting independently with respect to, among
other things, the giving of notices, responding to any requests for consents,
waivers or amendments pertaining to the Obligations, enforcing covenants and
taking action upon default. The Company may establish a so-called "rabbi" trust
to assist it in satisfying its Obligations, but the assets of such trust shall
be subject to claims of the Company's creditors in the event of the Company's
insolvency.
-2-
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The statements as to matters of law and legal conclusions set forth in this
Registration Statement and in the documents incorporated by reference herein
have been reviewed by Richard D. Terrill, Esq., Vice President, Law and
Corporate Secretary of Western Resources Inc. and are set forth or incorporated
by reference herein in reliance upon the opinion of Mr. Terrill. At March 30,
1999, Mr. Terrill owned directly and/or beneficially 2,125 shares of Common
Stock and had been granted pursuant to and subject to the terms of Western
Resources, Inc.'s 1996 Long Term Incentive and Share Award Plan 22,500 stock
options.
The financial statements and schedules included in or incorporated by
reference in this Registration Statement to the extent and for the periods
indicated in their reports have been audited by Arthur Andersen LLP, independent
public accountants, and are included herein in reliance upon the authority of
said firm as experts in giving said reports.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XVIII of the Company's Restated Articles of Incorporation, as
amended, provides that a director of the Company shall not be personally liable
to the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (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) for paying a dividend or approving a stock repurchase in
violation of the Kansas General Corporation Code, or (iv) for any transaction
from which the director derived an improper personal benefit. This provision is
specifically authorized by Section 17-6002(b)(8) of the Kansas General
Corporation Code.
Section 17-6305 of the Kansas General Corporation Code (the
"Indemnification Statute") provides for indemnification by a corporation of its
corporate officers, directors, employees and agents. The Indemnification Statute
provides that a corporation may indemnify such persons who have been, are, or
may become a party to an action, suit or proceeding due to his or her status as
a director, officer, employee or agent of the corporation. Further, the
Indemnification Statute grants authority to a corporation to implement its own
broader indemnification policy. Article XVIII of the Company's Restated Articles
of Incorporation, as amended, requires the Company to indemnify its directors
and officers to the fullest extent provided by Kansas law. Further, as is
provided for in Article XVIII, the Company has entered into indemnification
agreements with its directors, which provide for indemnification which is
broader than that available under Article XVIII and the Indemnification Statute.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith, or incorporated herein by
reference:
EXHIBIT NO. EXHIBIT
5 Opinion of Richard D. Terrill, Esq.
23(a) Consent of Arthur Andersen LLP, filed herewith.
23(b) Consent of Richard D. Terrill, Esq. (included in Exhibit 5).
24 Power of Attorney (included on signature page to
Registration Statement).
-3-
ITEM 9. UNDERTAKINGS.
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 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 which remain unsold at the
termination of the offering.
(4) 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 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 herein, 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 described in 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 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 the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Western
Resources, Inc., 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 Topeka, State of Kansas
on the 31st day of March, 1999.
WESTERN RESOURCES, INC.
(Registrant)
By: /s/ David C. Wittig
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David C. Wittig
Chairman of the Board, President
and Chief Executive Officer
Each person whose signature appears below appoints David C. Wittig, William
B. Moore and Richard D. Terrill and each of them, any of whom may act without
the joinder of the other, as his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 and to file the same, with all exhibits thereto and all
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or their 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 below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board, President and Chief March 31, 1999
/s/ David C. Wittig Executive Officer (Principal Executive Officer)
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David C. Wittig
Acting Executive Vice President and Chief March 31, 1999
/s/ William B. Moore Financial Officer (Principal Financial and
- ------------------------------- Accounting Officer)
William B. Moore
/s/ Frank J. Becker Director March 31, 1999
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Frank J. Becker
/s/ C.Q. Chandler Director March 31, 1999
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C.Q. Chandler
/s/ Thomas R. Clevenger Director March 31, 1999
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Thomas R. Clevenger
/s/ John C. Dicus Director March 31, 1999
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John C. Dicus
-5-
/s/ David H. Hughes Director March 31, 1999
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David H. Hughes
/s/ Russell W. Meyer, Jr. Director March 31, 1999
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Russell W. Meyer, Jr.
/s/ Jane Dresner Sadaka Director March 31, 1999
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Jane Dresner Sadaka
/s/ Louis W. Smith Director March 31, 1999
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Louis W. Smith
-6-
EXHIBIT INDEX
Exhibit
Number Exhibit
5 Opinion of Richard D. Terrill, Esq.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Richard D. Terrill, Esq. (included in Exhibit 5).
24 Power of Attorney (included on signature page to
Registration Statement).
-7-
Exhibit 5
March 31, 1999
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Dear Sirs:
As Vice President, Law of Western Resources, Inc. (the "Company"), and in
connection with the proposed filing with the Securities and Exchange Commission
expected to be made on or about March 31, 1999 under the Securities Act of 1933,
as amended, of a Registration Statement on Form S-8 (the "Registration
Statement") for the purpose of registering $2,000,000 of Restricted Share Units
to be granted under the Western Resources, Inc. 1996 Long Term Incentive and
Share Award Plan (the "Plan") which represent unsecured obligations of the
Company to pay deferred compensation in the future in the form of shares of
Common Stock of the Company. In such capacity, I have examined the Restated
Articles of Incorporation and By-Laws of the Company, the Plan, and such other
documents of the Company as I have deemed necessary or appropriate for the
purposes of my opinion expressed herein.
Based upon the foregoing, I advise you that, in my opinion, when issued in
accordance with the provisions of the Plan, the Restricted Share Units will be
valid and binding obligations of the Company, enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws of general applicability relating to or affecting
enforcement of creditors' rights or by general equity principles.
I hereby consent to the filing of a copy of this opinion as an exhibit to
said Registration Statement. I also consent to the use of my name and the making
of the statements with respect to myself in the Registration Statement
constituting a part thereof.
Very truly yours,
/s/ Richard D. Terrill
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Richard D. Terrill
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
January 29, 1998 included in Western Resources, Inc.'s Form 10-K/A for the year
ended December 31, 1997, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Kansas City, Missouri
March 31, 1999