As filed with the Securities and Exchange Commission on April 30, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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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741563240 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
2702 Love Field Drive, Dallas, TX 75235
214/792-4000
(Address,
including zip code, and telephone number, including area code, of registrants principal executive offices)
TAMMY ROMO
Senior Vice President Finance & Chief Financial Officer
Southwest Airlines Co.
2702 Love Field Drive, Dallas, TX 75235
214/792-4000
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
COPIES OF
CORRESPONDENCE TO:
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MARK R. SHAW
Vice President General Counsel & Corporate Secretary
Southwest Airlines Co. 2702
Love Field Drive, Dallas, TX 75235 214/792-4000 |
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ROBERT L. KIMBALL
Vinson & Elkins L.L.P.
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201-2975
214/220-7700 |
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as
determined by market conditions and other factors.
If the only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. ¨
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment
plans, check the following box. x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting
company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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x |
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Accelerated filer |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered |
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Amount to be Registered/ Proposed
Maximum Offering Price per Unit/
Proposed Maximum
Aggregate Offering
Price/Amount of
Registration Fee (1) |
Debt Securities |
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Common Stock |
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Pass Through Certificates |
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(1) |
An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be offered hereunder at indeterminate prices. In accordance with
Rules 456(b) and 457(r) under the Securities Act of 1933, the registrant is deferring payment of all of the registration fee. |
EXPLANATORY NOTE
This registration statement contains two separate forms of prospectuses to be used in connection with offerings of (1) debt securities
and common stock and (2) pass through certificates.
PROSPECTUS
Southwest Airlines Co.
DEBT SECURITIES
and
COMMON STOCK
We may offer
and sell our unsecured debt securities and shares of our common stock from time to time in amounts, at prices and on terms that we will determine at the time of the offering.
We may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous
or delayed basis.
We will provide specific terms of these securities and the manner in which we will sell them in supplements to this
prospectus. You should read this prospectus and any prospectus supplement carefully before you invest.
Our common stock is listed for
trading on the New York Stock Exchange under the symbol LUV.
INVESTING IN
OUR SECURITIES INVOLVES RISK. YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS THAT ARE REFERENCED UNDER THE HEADING RISK FACTORS ON PAGE 2 OF THIS PROSPECTUS BEFORE YOU MAKE ANY INVESTMENT IN OUR SECURITIES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED THAT THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of
this prospectus is April 30, 2015.
TABLE OF CONTENTS
You should rely only on the information contained in this prospectus or any prospectus supplement or information contained in documents that
you are referred to in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with information different from that contained in this prospectus or any prospectus supplement. We are offering to sell the securities
only in jurisdictions where offers and sales are permitted. The information contained in this prospectus or any prospectus supplement is accurate only as of the date on the front of those documents, regardless of the time of delivery of the
documents or any sale of the securities.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we have filed with the Securities and Exchange Commission, which we refer
to as the SEC, utilizing a shelf registration process. Under this shelf registration process, we may offer and sell any combination of the securities described in this prospectus in one or more offerings. This prospectus
provides you with a general description of the securities we may offer. Each time we offer the securities, we will provide a prospectus supplement and attach it to this prospectus. The prospectus supplement will contain specific information about
the terms of the offering and the securities being offered at that time. The prospectus supplement also may add, update or change information contained in this prospectus. In this prospectus, Southwest, we, us,
our and the company each refers to Southwest Airlines Co. and its consolidated subsidiaries, unless the context indicates otherwise.
To the extent information in this prospectus is inconsistent with information contained in a prospectus supplement, you should rely on the
information in the prospectus supplement. You should read both this prospectus and any prospectus supplement, together with additional information described under the heading Incorporation of Certain Documents by Reference.
FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement delivered with this prospectus and the documents we incorporate by reference may contain statements
that constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements are based on, and include statements
about, Southwests estimates, expectations, beliefs, intentions, and strategies for the future, and the assumptions underlying these forward-looking statements. Specific forward-looking statements can be identified by the fact that they do not
relate strictly to historical or current facts and include, without limitation, words such as believe, anticipate, expect, intend, may, will, estimate,
should, project, and similar expressions.
Forward-looking statements are not guarantees of future performance and
involve risks and uncertainties that are difficult to predict. Therefore, actual results may vary materially from what is expressed in or indicated by Southwests forward-looking statements or from historical experience or Southwests
present expectations. Known material risk factors that could cause these differences are set forth in our filings with the SEC that are incorporated in this prospectus by reference or that are stated in a prospectus supplement to this prospectus
under the caption Risk Factors. Caution should be taken not to place undue reliance on the companys forward-looking statements, which represent the companys views only as of the dates of the respective documents. The company
undertakes no obligation to update publicly or revise any forward-looking statements to reflect subsequent events or circumstances.
ABOUT SOUTHWEST AIRLINES CO.
Southwest Airlines Co. operates Southwest Airlines, a major passenger airline that provides
scheduled air transportation in the United States and selected international markets. Our principal executive offices are located at 2702 Love Field Drive, P.O. Box 36611, Dallas, Texas 75235, and our telephone number is (214) 792-4000. We
maintain a website on the Internet at http://www.southwest.com. Information that you may find on this website is not part of this prospectus.
Additional information about us is included in our reports and other documents incorporated by reference in this prospectus. See
Incorporation of Certain Documents by Reference.
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RISK FACTORS
An investment in our securities involves risks. Before you invest in our securities, you should carefully consider the risk factors included
in our most recent Annual Report on Form 10-K, subsequent Quarterly Reports on Form 10-Q and those that may be included in the applicable prospectus supplement, as well as the cautionary notes regarding forward-looking statements included or
incorporated by reference herein, together with all of the other information included in this prospectus, any prospectus supplement and the documents we incorporate by reference.
If any of these risks were to materialize, our business, results of operations, cash flows and financial condition could be materially
adversely affected. In that case, our ability to pay interest on, or the principal of, any debt securities may be reduced, the trading price of our securities could decline and you could lose all or part of your investment.
USE OF PROCEEDS
We intend to use the net proceeds from any offering of the securities for general corporate purposes, unless otherwise specified in the
prospectus supplement relating to a specific issuance of securities. Such general corporate purposes may include, among other possible uses, the repayment of short-term or long-term indebtedness and capital expenditures.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth our historical ratios of earnings to fixed charges for the periods indicated:
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Three Months Ended
March 31, |
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Year Ended December 31, |
2015 |
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2014 |
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2013 |
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2012 |
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2011 |
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2010 |
7.96 |
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5.37 |
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3.92 |
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2.49 |
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1.66 |
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2.99 |
Earnings represent:
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Income before income taxes, excluding the cumulative effect of accounting changes; plus |
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Fixed charges, excluding capitalized interest. |
Fixed charges include:
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Interest, whether expensed or capitalized; and |
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A portion of rental expense. Our management believes this is representative of the interest factor in those periods. |
DESCRIPTION OF DEBT SECURITIES
We will issue the debt securities under a contract called the indenture between us and Wells Fargo Bank, N.A., which acts as trustee. We
may issue as many distinct series of debt securities under the indenture as we wish.
The trustee has two main roles. First, the trustee
can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, described later in this section under Default and Related Matters Remedies if an Event of
Default Occurs. Second, the trustee performs administrative duties for us, such as sending you interest payments, transferring your debt securities to a new buyer if you sell, and sending you notices.
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The indenture and its associated documents contain the full legal text of the matters described
in this section. The indenture and the debt securities are governed by Texas law. A copy of the indenture may be obtained from us as described below under Incorporation of Certain Documents by Reference.
This section summarizes the material terms of the debt securities that we expect will be common to all series, although the prospectus
supplement which describes the terms of each series of debt securities may also describe differences with the material terms summarized here.
Because this section is a summary, it does not describe every aspect of the debt securities. This summary is subject to and qualified in its
entirety by reference to all the provisions of the indenture, including definitions of certain terms used in the indenture. In this summary, we describe the meaning for only the more important terms. You must look to the indenture for the most
complete description of what is described in summary form in this prospectus.
This summary also is subject to and qualified by reference
to the description of the particular terms of your series described in the prospectus supplement. Those terms may vary from the terms described in this prospectus. The prospectus supplement relating to each series of debt securities will be attached
to the front of this prospectus. There may also be a further prospectus supplement, known as a pricing supplement, which contains the precise terms of debt securities you are offered.
We may issue the debt securities as original issue discount securities, which will be offered and sold at a substantial discount below their
stated principal amount. The prospectus supplement relating to the original issue discount securities will describe federal income tax consequences and other special considerations applicable to them. The prospectus supplement relating to specific
debt securities will also describe any special considerations and certain additional tax considerations applicable to such debt securities.
In addition, the specific financial, legal and other terms particular to a series of debt securities are described in the prospectus
supplement and any pricing supplement relating to the series. The prospectus supplement relating to a series of debt securities will describe the following terms of the series:
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the title of the series of debt securities; |
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any limit on the aggregate principal amount of the series of debt securities; |
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the person to whom interest on a debt security is payable, if other than the holder on the regular record date; |
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the date or dates on which the series of debt securities will mature; |
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the rate or rates, which may be fixed or variable, per annum at which the series of debt securities will bear interest, if any, and the date or dates from which that interest, if any, will accrue; |
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the place or places where the principal of (and premium, if any) and interest on the debt securities are payable; |
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the dates on which interest, if any, on the series of debt securities will be payable and the regular record dates for the interest payment dates; |
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any mandatory or optional sinking funds or similar provisions; |
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the date, if any, after which and the price or prices at which the series of debt securities may, in accordance with any optional or mandatory redemption provisions, be redeemed and the other detailed terms and
provisions of those optional or mandatory redemption provisions, if any; |
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if other than denominations of $1,000 and any of its integral multiples, the denominations in which the series of debt securities will be issuable; |
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the applicability of the provisions described under Defeasance; |
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if the series of debt securities will be issuable only in the form of a global security, the depository or its nominee with respect to the series of debt securities and the circumstances under which the global security
may be registered for transfer or exchange in the name of a person other than the depositary or the nominee; and |
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any other special feature of the series of debt securities (including its convertibility into our common stock). |
Legal Ownership
Street Name and Other
Indirect Holders. Investors who hold debt securities in accounts at banks or brokers will generally not be recognized by us as legal holders of debt securities. This is called holding in street name. Instead, we would recognize only the bank or
broker, or the financial institution the bank or broker uses to hold its debt securities. These intermediary banks, brokers and other financial institutions pass along principal, interest and other payments on the debt securities, either because
they agree to do so in their customer agreements or because they are legally required to. If you hold debt securities in street name, you should check with your own institution to find out:
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how it handles securities payments and notices; |
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whether it imposes fees or charges; |
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how it would handle voting if required; |
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whether and how you can instruct it to send you debt securities registered in your own name so that you can be a direct holder as described below; and |
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how it would pursue rights under the debt securities if there were a default or other event triggering the need for holders to act to protect their interests. |
Direct Holders. Our obligations, as well as the obligations of the trustee and those of any third parties employed by us or the
trustee, run only to persons who are registered as holders of debt securities. As noted above, we do not have obligations to you if you hold debt securities in street name or other indirect means, either because you choose to hold debt securities in
that manner or because the debt securities are issued in the form of global securities as described below. For example, once we make payment to the registered holder, we have no further responsibility for the payment, even if that holder is legally
required to pass the payment along to you as a street name customer but does not do so.
Global Securities
What is a Global Security? A global security is a special type of indirectly held security, as described above under Legal
Ownership Street Name and Other Indirect Holders. If we choose to issue debt securities in the form of global securities, the ultimate beneficial owners can only be indirect holders. We do this by requiring that the global
security be registered in the name of a financial institution we select and by requiring that the debt securities included in the global security not be transferred to the name of any other direct holder unless the special circumstances described
below occur. The financial institution that acts as the sole direct holder of the global security is called the depositary. Any person wishing to own a debt security must do so indirectly by virtue of an account with a broker, bank or other
financial institution that in turn has an account with the depositary. The prospectus supplement indicates whether your series of securities will be issued only in the form of global securities.
Special Investor Considerations for Global Securities. As an indirect holder, an investors rights relating to a global security
will be governed by the account rules of the investors financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize this type of investor as a holder of debt securities and instead
deal only with the depositary that holds the global security.
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If you are an investor, you should be aware that if debt securities are issued only in the form
of global securities:
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You cannot get debt securities registered in your own name. |
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You cannot receive physical certificates for your interest in the debt securities. |
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You will be a street name holder and must look to your own bank or broker for payments on the debt securities and protection of your legal rights relating to the debt securities. See Legal Ownership Street
Name and Other Indirect Holders. |
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You may not be able to sell interests in the debt securities to some insurance companies and other institutions that are required by law to own their securities in the form of physical certificates. |
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The depositarys policies will govern payments, transfers, exchanges and other matters relating to your interest in the global security. We and the trustee have no responsibility for any aspect of the
depositarys actions or for its records of ownership interest in the global security. We and the trustee also do not supervise the depositary in any way. |
Special Situations when Global Security will be Terminated. In a few special situations described in the next paragraph, the global
security will terminate and interests in it will be exchanged for physical certificates representing debt securities. After that exchange, the choice of whether to hold debt securities directly or in street name will be up to you. You must consult
your own bank or broker to find out how to have your interests in debt securities transferred to your own name, so that you will be a direct holder. The rights of street name investors and direct holders in the debt securities have been previously
described under Legal Ownership in the subsections entitled Street Name and Other Indirect Holders and Direct Holders.
The special situations for termination of a global security are:
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When the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary and a successor depositary is not appointed by us within 90 days. |
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When we notify the trustee that we wish to terminate the global security. |
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When an event of default on the securities has occurred and has not been cured, disregarding for this purpose any requirement of notice or that the default exists for a specified period of time. (Default is discussed
later under Default and Related Matters.) |
The prospectus supplement may also list additional situations for
terminating a global security that would apply only to the particular series of debt securities covered by the prospectus supplement. When a global security terminates, the depositary (and not us or the trustee) is responsible for deciding the names
of the institutions that will be the initial direct holders.
IN THE REMAINDER OF THIS DESCRIPTION YOU MEANS DIRECT HOLDERS
AND NOT STREET NAME OR OTHER INDIRECT HOLDERS OF DEBT SECURITIES. INDIRECT HOLDERS SHOULD READ THE PREVIOUS SUBSECTION ENTITLED STREET NAME AND OTHER INDIRECT HOLDERS.
Overview of Remainder of this Description
The remainder of this description summarizes:
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Additional Mechanics relevant to the debt securities under normal circumstances, such as how you transfer ownership and where we make payments; |
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Your rights in several Special Situations, such as if we merge with another company, or if we want to change a term of the debt securities via Modification and Waiver; |
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A Defeasance clause and a Satisfaction and Discharge provision, each of which may allow for us to be completely released from our payment and other obligations on the debt securities; and
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Your rights if we Default. |
Additional Mechanics
Form, Exchange and Transfer. The debt securities will be issued:
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only in fully registered form; |
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without interest coupons; and |
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in denominations that are even multiples of $1,000. |
You may have your debt securities divided
into more debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as long as the total principal amount is not changed. This is called an exchange.
You may exchange or transfer debt securities at the office of the trustee. The trustee acts as our agent for registering debt securities in
the names of holders and transferring debt securities. We may change this appointment to another entity or perform these functions ourselves. The entity performing the role of maintaining the list of registered holders is called the security
registrar. It will also perform transfers.
You will not be required to pay a service charge to transfer or exchange debt securities, but
you may be required to pay for any tax or other governmental charge associated with the exchange or transfer. The transfer or exchange will only be made if we and the security registrar are satisfied with your proof of ownership.
If we have designated additional transfer agents, they are named in the prospectus supplement. We may cancel the designation of any particular
transfer agent. We may also approve a change in the office through which any transfer agent acts.
If the debt securities are redeemable,
we may block the transfer or exchange of debt securities for a period beginning 15 days before the day we mail the notice of redemption, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers or
exchanges of debt securities selected for redemption, except that we will continue to permit transfers and exchanges of the unredeemed portion of any debt security being partially redeemed.
Payment and Paying Agents. We will pay interest to you if you are a direct holder listed in the trustees records at the close of
business on a particular day in advance of each due date for interest, even if you no longer own the debt security on the interest due date. That particular day, usually about two weeks in advance of the interest due date, is called the regular
record date and is stated in the prospectus supplement. Holders buying and selling debt securities must work out between them how to compensate for the fact that we will pay all the interest for an interest period to the one who is the registered
holder on the regular record date. The most common manner is to adjust the sales price of the securities to pro rate interest fairly between buyer and seller. This prorated interest amount is called accrued interest.
We will pay interest, principal and any other money due on the debt securities at the corporate trust office of the trustee in Dallas, Texas.
You must make arrangements to have your payments picked up at or wired from that office. We may also choose to pay interest by mailing checks. However, if the debt securities are represented by a global security, we will make payments to the
depositary by wire.
STREET NAME AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS, BROKERS OR OTHER FINANCIAL INSTITUTIONS FOR
INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS.
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We may also arrange for additional payment offices, and may cancel or change these offices,
including the use of the trustees corporate trust office. These offices are called paying agents. We may also choose to act as our own paying agent. We must notify you of changes in the paying agents for any particular series of debt
securities.
Notices. We and the trustee will send notices regarding the debt securities only to direct holders, using their
addresses as listed in the trustees records.
Regardless of who acts as paying agent, all money paid by us to a paying agent that
remains unclaimed at the end of two years after the amount is due to direct holders will be repaid to us. After that two-year period, you may look only to us for payment and not to the trustee, any other paying agent or anyone else.
Special Situations
Mergers and
Similar Events. We are generally permitted to consolidate or merge with another entity. We are also permitted to sell or convey all or substantially all of our assets to another entity. However, we may not take any of these actions unless all of
the following conditions are met:
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Where we consolidate or merge out of existence or sell or convey all or substantially all of our assets, the other entity must be organized under the laws of a state or under federal law, and it must agree to be legally
responsible for the debt securities. |
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Immediately after the merger, sale of assets or other transaction, we must not be in default on the debt securities. A default for this purpose would also include any event that would be an event of default if the
requirements for giving us default notice or our default having to exist for a specific period of time were disregarded. |
Modification
and Waiver
There are three types of changes we can make to the indenture and the debt securities.
Changes Requiring Your Approval. First, there are changes that cannot be made to your debt securities without your specific approval.
Following is a list of those types of changes:
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extend the stated maturity of the principal or interest on a debt security; |
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reduce any amounts due on a debt security; |
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reduce the amount of principal payable on an original discount security upon acceleration of the maturity of the debt security following a default; |
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impair your right to sue for payment; and |
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reduce the percentage of the principal amount of debt securities of any series or all series (voting as one class) the consent of which is needed to modify or amend the indenture. |
Changes Requiring a Vote. The second type of change to the indenture and the debt securities is the kind that requires a vote in favor
by the holders of debt securities owning at least a majority of the principal amount of the particular series affected. Most changes fall into this category, except for clarifying changes and certain other changes that would not adversely affect the
interests of holders of the debt securities described in the next paragraph. We may obtain a waiver of a past default from the holders of debt securities owning a majority of the principal amount of the particular series affected. However, we cannot
obtain a waiver of a payment default unless we obtain an individual consent to the waiver from every holder.
Changes Not Requiring
Approval. The third type of change to the indenture and the debt securities does not require any vote by holders of debt securities. This type is limited to clarifications and certain other changes that would not adversely affect the interests
of holders of the debt securities. Holders of debt securities will also not be eligible to vote if the debt securities have been fully defeased as described below under Defeasance.
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STREET NAME AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS, BROKERS OR OTHER FINANCIAL
INSTITUTIONS FOR INFORMATION ON HOW APPROVAL MAY BE GRANTED OR DENIED IF WE SEEK TO CHANGE THE INDENTURE OR THE DEBT SECURITIES OR REQUEST A WAIVER.
Absence of Restrictive Covenants
The
indenture does not contain any promises by us on how we will operate our business, and does not restrict our ability to incur debt or grant liens on our assets. If we determine to include such a promise for the benefit of a particular series of debt
securities, such promise, or restrictive covenant, will be described in the prospectus supplement relating to that series of debt securities.
Defeasance
We may be completely released
from our payment and other obligations on the debt securities. The following discussion of defeasance will be applicable to your series of debt securities only if we choose to have them apply to that series. If we do so choose, we will state that in
the prospectus supplement.
If there is a change in federal tax law, or if we obtain a ruling from the Internal Revenue Service, as
described below, we can legally release ourselves from any payment or other obligations on the debt securities, called full or legal defeasance, if we put in place the following arrangements for you to be repaid:
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We must deposit in trust for your benefit and the benefit of all direct holders of the debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash
to make interest, principal and any other payments on the debt securities on their various due dates. |
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There must be a change in federal tax law or a ruling from the Internal Revenue Service that lets us make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make
the deposit and just repaid the debt securities. Under current federal tax law, the deposit and our legal release from the debt securities would be treated as though we took back your debt securities and gave you your share of the cash and notes or
bonds deposited in trust. In that event, you could recognize gain or loss on the debt securities you give back to us. |
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We must deliver to the trustee a legal opinion of our counsel confirming, among other things, the tax law change described above. |
If we are able to fully defease the debt securities, as described above, you would have to rely solely on the trust deposit for repayment on
the debt securities. You could not look to us for repayment.
Satisfaction and Discharge
The indenture will cease to be of further effect as to all debt securities of any series when either:
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we have delivered to the trustee for cancellation all debt securities of that series that have been authenticated (except for lost, stolen or destroyed debt securities that have been replaced or paid and debt securities
for whose payment money has already been deposited in trust and subsequently returned to us); or |
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all debt securities of that series have become due and payable or will become due and payable at their stated maturity within one year or are to be called for redemption under arrangements satisfactory to the trustee,
and in any case we have deposited with the trustee as trust funds money in an amount sufficient to pay the entire indebtedness of all these debt securities to their stated maturity or redemption date; and we have paid all other sums payable by us
under the indenture with respect to that series. |
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Notwithstanding any satisfaction and discharge or any defeasance with respect to the debt
securities of any series, your rights of transfer and exchange, your rights to replace lost, stolen or destroyed debt securities, the rights and obligations of the trustee and your rights as beneficiaries with respect to the trust funds deposited
with the trustee would survive.
Default and Related Matters
Ranking. The debt securities are not secured by any of our property or assets. Accordingly, your ownership of debt securities means you
are one of our unsecured creditors. The debt securities are not subordinated to any of our other debt obligations and therefore they rank equally in contractual right of payment with all of our other unsubordinated indebtedness.
Events of Default. You will have special rights if an event of default occurs and is not cured, as described later in this subsection.
What is an Event of Default? The term event of default means any of the following:
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We do not pay the principal or any premium on a debt security when due. |
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We do not pay interest on a debt security within 30 days of its due date. |
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We remain in breach of any other covenant or agreement in the indenture for 90 days after we receive a notice of default stating we are in breach. The notice must be sent by either the trustee or holders of at least 25%
of the outstanding principal amount of debt securities of the affected series. |
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We default on any indebtedness for borrowed money totaling over $50,000,000 and our obligation to repay such indebtedness is accelerated, and this repayment obligation remains accelerated for 10 days after we receive a
notice of default by the trustee or holders of at least 25% of the outstanding principal amount of the affected debt securities. |
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We file for bankruptcy, or certain other events in bankruptcy, insolvency or reorganization occur. |
Remedies if an Event of Default Occurs. If an event of default has occurred and has not been cured, the trustee or the holders of at
least 25% in principal amount of the debt securities of the affected series may declare the entire principal amount (or, in the case of original issue discount securities, the portion of the principal amount that is specified in the terms of the
affected debt security) of all the debt securities of that series, plus accrued interest, to be due and immediately payable. This is called a declaration of acceleration of maturity. However, a declaration of acceleration of maturity may be
cancelled, but only before a judgment or decree based on the acceleration has been obtained, by the holders of at least a majority in principal amount of the debt securities of the affected series.
Reference is made to the prospectus supplement relating to any series of debt securities which are original issue discount securities for the
particular provisions relating to acceleration of the maturity of a portion of the principal amount of original issue discount securities upon the occurrence of an event of default and its continuation.
Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the indenture at
the request of any holders unless the holders offer the trustee reasonable protection from expenses and liability, called an indemnity. If reasonable indemnity is provided, the holders of a majority of the aggregate principal amount of the
securities of all series affected (voting as one class) may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. The trustee is required, within 90 days of acquiring
knowledge of a default with respect to the debt securities of any series, to give you notice of the default, unless the default has been cured or waived before it gives the notice; however, the trustee may withhold notice of any non-payment default
if it determines that withholding notice is in the interest of the holders of debt securities of that series.
9
Before you bypass the trustee and bring your own lawsuit or other formal legal action or take
other steps to enforce your rights or protect your interests relating to the debt securities, the following must occur:
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You must give the trustee written notice that an event of default has occurred and remains uncured. |
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The holders of at least 25% of the outstanding principal amount of all the securities of the relevant series must make a written request that the trustee take action because of an event of default, and must offer
reasonable indemnity to the trustee against the cost and other liabilities of taking that action. |
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The trustee must have not taken action for 60 days after receipt of the above written request and offer of indemnity and no directions inconsistent with the above written request must have been given to the trustee
during such period. |
However, you are entitled at any time to bring a lawsuit for the payment of money due on your debt
security on or after its due date.
STREET NAME AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS, BROKERS OR OTHER FINANCIAL
INSTITUTIONS FOR INFORMATION ON HOW TO GIVE NOTICE OR DIRECTION TO OR MAKE A REQUEST OF THE TRUSTEE AND TO MAKE OR CANCEL A DECLARATION OF ACCELERATION.
We will furnish to the trustee every year a written statement of certain of our officers certifying that to their knowledge we are in
compliance with the indenture and the debt securities, or else specifying any default and indicating the nature and status of the default.
Concerning
the Trustee
The trustee under the indenture is Wells Fargo Bank, N.A.
The indenture contains certain limitations on the right of the trustee, should it become a creditor of ours, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received in respect of any such claim as security or otherwise. The trustee will be permitted to engage in certain other transactions; however, if after an event of default has
occurred and is continuing, the trustee acquires any conflicting interest (as described in the indenture) it must eliminate such conflict or resign.
DESCRIPTION OF CAPITAL STOCK
General
We are incorporated in the State
of Texas. The rights of our shareholders are generally covered by Texas law and our certificate of formation and bylaws (each as amended and restated and in effect on the date hereof). The terms of our capital stock are therefore subject to Texas
law, including the Texas Business Organizations Code (the TBOC), and the common and constitutional law of Texas. Our certificate of formation was filed as Exhibit 3.1 to our Quarterly Report on Form 10-Q for the quarter ended
June 30, 2012, and our bylaws were filed as Exhibit 3.1 to our Current Report on Form 8-K filed on November 20, 2009. You are encouraged to read these documents.
We are authorized to issue 2,000,000,000 shares of common stock, $1.00 par value, of which 668,296,625 shares were outstanding on
April 28, 2015. Our common stock is traded on the NYSE under the symbol LUV. We are not authorized to issue shares of preferred stock.
Voting Rights
Holders of our common
stock are entitled to one vote per share in the election of directors and on all other matters submitted to a vote at a meeting of shareholders. No shareholder has the right of cumulative voting.
10
With respect to any matter other than the election of directors or a matter for which the
affirmative vote of the holders of a specified portion of the shares entitled to vote is required by Texas law or our certificate of formation, the act of the shareholders shall be the affirmative vote of the holders of a majority of the shares
entitled to vote on, and voted for or against, the matter at a meeting of shareholders at which a quorum is present; provided that, for purposes thereof, all abstentions and broker nonvotes shall not be counted as voted either for or against such
matter. Directors shall be elected by a majority of the votes cast by the holders of shares entitled to vote in the election of directors at a meeting of shareholders at which a quorum is present; provided that, if the number of nominees exceeds the
number of directors to be elected, directors shall be elected by a plurality of the votes cast. For purposes thereof, (i) a majority of the votes cast means that the number of votes cast for a director must exceed the number of votes cast
against that director, and (ii) abstentions and broker nonvotes shall not be counted as votes cast either for or against any nominee for director.
Dividend Rights
Holders of our common
stock are entitled to dividends when, as and if declared by our board of directors out of funds legally available therefor.
Liquidation Rights
In the event of our liquidation, the holders of our common stock will be entitled to share ratably in any assets remaining after
payment of all debts and other liabilities.
Certain Business Combination Restrictions
Section 21.606 of the TBOC restricts certain business combinations between us and an affiliated shareholder (beneficial ownership of 20%
or more of the voting power of our stock entitled to vote for directors) for three years after the shareholder becomes an affiliated shareholder. The restrictions do not apply if the board of directors approved the transaction that caused the
shareholder to become an affiliated shareholder or if the business combination is approved by the affirmative vote of two-thirds of our voting stock that is not beneficially owned by the affiliated shareholder at a meeting of shareholders called for
that purpose within six months of the affiliated shareholders acquiring the shares. Although we may elect to exclude ourselves from the restrictions imposed by Section 21.606, our certificate of formation does not do so.
Other
Our common stock has no preemptive
or conversion rights and is not entitled to the benefits of any redemption or sinking fund provision. The outstanding shares of our common stock are fully paid and non-assessable.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Wells Fargo Shareowner Services at 1110 Centre Pointe Curve, Suite 101, Mendota Heights, MN 55120-4100.
LEGAL MATTERS
Unless otherwise specified in the applicable prospectus supplement, the validity of the securities will be passed upon for us by
Vinson & Elkins L.L.P., Dallas, Texas, and will be passed upon for any agents, dealers or underwriters by counsel named in the applicable prospectus supplement.
11
EXPERTS
The consolidated financial statements of Southwest Airlines Co. appearing in Southwest Airlines Co.s Annual Report on Form 10-K for the
year ended December 31, 2014, and the effectiveness of Southwest Airlines Co.s internal control over financial reporting as of December 31, 2014, have been audited by Ernst & Young LLP, independent registered public
accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such
firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the SEC under the Securities Act of 1933 that registers the offer and sale of the securities
covered by this prospectus. The registration statement, including the exhibits, contains additional relevant information about us. The rules and regulations of the SEC allow us to omit some information included in the registration statement from
this prospectus.
In addition, we file annual, quarterly and current reports, proxy statements and other information with the SEC. You may
read and copy any documents we file at the SECs public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Our SEC filings are also available
to the public on the SECs website at http://www.sec.gov and through the New York Stock Exchange, 20 Broad Street, New York, New York 10005. Our common stock is listed for trading on the New York Stock Exchange under the symbol
LUV.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information,
as well as the information included in this prospectus. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 (excluding
any information furnished pursuant to Item 2.02 or 7.01 on any Current Report on Form 8-K) until we sell all the securities:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed on February 6, 2015, and Amendment No. 1 to the Form 10-K filed on February 11, 2015; |
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Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2015, filed on April 30, 2015; and |
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The description of our common stock contained in our Current Report on Form 8-K filed February 1, 2011, including any subsequently filed amendments and reports updating such description. |
We make available free of charge on or through our Internet website, www.southwest.com, our Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as soon as reasonably practicable after we electronically file such
material with, or furnish it to, the SEC. Information contained on our Internet website is not part of this prospectus.
12
You may obtain any of the documents incorporated by reference in this prospectus from the SEC
through the SECs website at the address provided above. You also may request a copy of any document incorporated by reference in this prospectus (excluding any exhibits to those documents, unless the exhibit is specifically incorporated by
reference in this document), at no cost, by writing or telephoning us at the following address:
Southwest Airlines Co. c/o Investor
Relations
P.O. Box 36611, HDQ-6IR
2702 Love Field Drive
Dallas,
Texas 75235
(214) 792-4908
13
PROSPECTUS
Southwest Airlines Co.
PASS THROUGH CERTIFICATES
This prospectus
relates to pass through certificates to be issued by one or more trusts that we will form, as creator of each pass through trust, with a national or state bank or trust company, as trustee. The trustee will hold all property owned by a trust for the
benefit of holders of pass through certificates issued by that trust. Each pass through certificate issued by a trust will represent a beneficial interest in all property held by that trust.
We will describe the specific terms of any offering of pass through certificates in a prospectus supplement to this prospectus. You should
read this prospectus and the applicable prospectus supplement carefully before you invest.
This prospectus may not be used to consummate
sales of pass through certificates unless accompanied by a prospectus supplement.
INVESTING IN
THE CERTIFICATES INVOLVES RISK. YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS THAT ARE REFERENCED UNDER THE HEADING RISK FACTORS ON PAGE 2 OF THIS PROSPECTUS BEFORE YOU MAKE ANY INVESTMENT IN THE
CERTIFICATES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED THAT THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of
this prospectus is April 30, 2015.
TABLE OF CONTENTS
You should rely only on the information contained in this prospectus or any prospectus supplement or information contained in documents that
you are referred to in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with information different from that contained in this prospectus or any prospectus supplement. We are offering to sell the pass
through certificates only in jurisdictions where offers and sales are permitted. The information contained in this prospectus or any prospectus supplement is accurate only as of the date on the front of those documents, regardless of the time of
delivery of the documents or any sale of the pass through certificates.
i
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we have filed with the Securities and Exchange Commission, which we refer
to as the SEC, utilizing a shelf registration process. Under this shelf registration process, we may offer and sell the certificates described in this prospectus in one or more offerings. Each time we offer the certificates,
we will provide a prospectus supplement and attach it to this prospectus. The prospectus supplement will contain specific information about the terms of the offering and the certificates being offered at that time. The prospectus supplement also may
add, update or change information contained in this prospectus. In this prospectus, Southwest, we, us, our and the company each refers to Southwest Airlines Co. and its consolidated
subsidiaries, unless the context indicates otherwise.
To the extent information in this prospectus is inconsistent with information
contained in a prospectus supplement, you should rely on the information in the prospectus supplement. You should read both this prospectus and any prospectus supplement, together with additional information described under the heading
Incorporation of Certain Documents by Reference.
FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement delivered with this prospectus and the documents we incorporate by reference may contain statements
that constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements are based on, and include statements
about, Southwests estimates, expectations, beliefs, intentions, and strategies for the future, and the assumptions underlying these forward-looking statements. Specific forward-looking statements can be identified by the fact that they do not
relate strictly to historical or current facts and include, without limitation, words such as believe, anticipate, expect, intend, may, will, estimate,
should, project, and similar expressions.
Forward-looking statements are not guarantees of future performance and
involve risks and uncertainties that are difficult to predict. Therefore, actual results may vary materially from what is expressed in or indicated by Southwests forward-looking statements or from historical experience or Southwests
present expectations. Known material risk factors that could cause these differences are set forth in our filings with the SEC that are incorporated in this prospectus by reference or that are stated in a prospectus supplement to this prospectus
under the caption Risk Factors. Caution should be taken not to place undue reliance on the companys forward-looking statements, which represent the companys views only as of the dates of the respective documents. The company
undertakes no obligation to update publicly or revise any forward-looking statements to reflect subsequent events or circumstances.
ABOUT SOUTHWEST AIRLINES CO.
Southwest Airlines Co. operates Southwest Airlines, a major passenger airline that provides
scheduled air transportation in the United States and selected international markets. Our principal executive offices are located at 2702 Love Field Drive, P.O. Box 36611, Dallas, Texas 75235, and our telephone number is (214) 792-4000. We
maintain a website on the Internet at http://www.southwest.com. Information that you may find on this website is not part of this prospectus.
Additional information about us is included in our reports and other documents incorporated by reference in this prospectus. See
Incorporation of Certain Documents by Reference.
1
RISK FACTORS
An investment in the certificates involves risks. Before you invest in the certificates, you should carefully consider the risk factors
included in our most recent Annual Report on Form 10-K, subsequent Quarterly Reports on Form 10-Q and those that may be included in the applicable prospectus supplement, as well as the cautionary notes regarding forward-looking statements included
or incorporated by reference herein, together with all of the other information included in this prospectus, any prospectus supplement and the documents we incorporate by reference.
If any of these risks were to materialize, our business, results of operations, cash flows and financial condition could be materially
adversely affected.
USE OF PROCEEDS
The trustee will use the proceeds of the certificates for the purchase of one or more equipment notes issued by us. Except as set forth in a
prospectus supplement for a specific offering of certificates, the equipment notes will be issued:
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To finance the purchase of aircraft by us, or to refinance any debt previously issued by us in connection with our purchase of aircraft; |
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To finance or refinance the debt portion and, in certain cases, to refinance some of the equity portion of one or more separate leveraged lease transactions entered into by us, as lessee of aircraft; and
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To provide us with funds for general corporate purposes. |
General corporate purposes may
include, among other possible uses, the repayment of short-term or long-term indebtedness and capital expenditures.
To the extent that
the proceeds of any offering of certificates are not used to purchase equipment notes on the date of issuance of those certificates, the relevant proceeds will be held for the benefit of those certificate holders. If those proceeds are not used to
purchase equipment notes by the date specified in the applicable prospectus supplement, they will be returned to the applicable certificate holders.
The prospectus supplement with respect to any offering of certificates will provide additional details with respect to the use of proceeds of
those certificates, and with respect to the use of proceeds of any equipment notes to be purchased by a pass through trust.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth our historical ratios of earnings to fixed charges for the
periods indicated:
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Three Months Ended
March 31, |
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Year Ended December 31, |
2015 |
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2014 |
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2013 |
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2012 |
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2011 |
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2010 |
7.96 |
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5.37 |
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3.92 |
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2.49 |
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1.66 |
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2.99 |
Earnings represent:
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Income before income taxes, excluding the cumulative effect of accounting changes; plus |
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Fixed charges, excluding capitalized interest. |
2
Fixed charges include:
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Interest, whether expensed or capitalized; and |
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A portion of rental expense. Our management believes this is representative of the interest factor in those periods. |
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, our counsel, Vinson & Elkins L.L.P., Dallas, Texas, will render
an opinion with respect to the validity of the certificates being offered by such prospectus supplement.
EXPERTS
The consolidated financial statements of Southwest Airlines Co. appearing in Southwest Airlines Co.s Annual Report on Form 10-K for the
year ended December 31, 2014, and the effectiveness of Southwest Airlines Co.s internal control over financial reporting as of December 31, 2014, have been audited by Ernst & Young LLP, independent registered public
accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such
firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the SEC under the Securities Act of 1933 that registers the offer and sale of the certificates
covered by this prospectus. The registration statement, including the exhibits, contains additional relevant information about us. The rules and regulations of the SEC allow us to omit some information included in the registration statement from
this prospectus.
In addition, we file annual, quarterly and current reports, proxy statements and other information with the SEC. You may
read and copy any documents we file at the SECs public reference room, 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Our SEC filings are
also available to the public on the SECs website at http://www.sec.gov and through the New York Stock Exchange, 20 Broad Street, New York, New York 10005. Our common stock is listed for trading on the New York Stock Exchange under the
symbol LUV.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information,
as well as the information included in this prospectus. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 (excluding
any information furnished pursuant to Item 2.02 or 7.01 on any Current Report on Form 8-K) until we sell all of the certificates:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed on February 6, 2015, and Amendment No. 1 to the Form 10-K filed on February 11, 2015; |
3
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Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2015, filed on April 30, 2015; and |
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The description of our common stock contained in our Current Report on Form 8-K filed February 1, 2011, including any subsequently filed amendments and reports updating such description. |
We make available free of charge on or through our Internet website, www.southwest.com, our Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as soon as reasonably practicable after we electronically file such
material with, or furnish it to, the SEC. Information contained on our Internet website is not part of this prospectus.
You may obtain
any of the documents incorporated by reference in this prospectus from the SEC through the SECs website at the address provided above. You also may request a copy of any document incorporated by reference in this prospectus (excluding any
exhibits to those documents, unless the exhibit is specifically incorporated by reference in this document), at no cost, by writing or telephoning us at the following address:
Southwest Airlines Co. c/o Investor Relations
P.O. Box 36611, HDQ-6IR
2702
Love Field Drive
Dallas, Texas 75235
(214) 792-4908
4
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. |
Other Expenses of Issuance and Distribution. |
Set forth below are the expenses (other
than underwriting discounts and commissions) expected to be incurred in connection with the issuance and distribution of the securities registered hereby:
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Securities and Exchange Commission registration fee |
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$ |
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* |
Legal fees and expenses |
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** |
Accounting fees and expenses |
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** |
Printing and engraving expenses |
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** |
Trustee fees |
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** |
Miscellaneous |
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** |
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Total |
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$ |
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** |
* |
The registrant is deferring payment of the registration fee in reliance on Rule 456(b) and Rule 457(r). |
** |
These fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time. |
Item 15. |
Indemnification of Directors and Officers. |
Article VIII, Section 1 of
Southwests Amended and Restated 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 law, 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
persons 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.
1
Article Ten of Southwests Restated Certificate of Formation 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 directors capacity as a director, subject to certain limitations.
Section 8.101 of the Texas Business Organizations Code provides that, subject to certain limitations, a corporation may indemnify a
governing person, former governing person, or delegate who was, is, or is threatened to be made a respondent in a proceeding to the extent that it is determined that:
(1) the person:
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(i) |
in the case of conduct in the persons official capacity, that the persons conduct was in the corporations best interests; and |
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(ii) |
in any other case, that the persons conduct was not opposed to the corporations best interests; and |
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(C) |
in the case of a criminal proceeding, did not have a reasonable cause to believe the persons conduct was unlawful. |
(2) with respect to expenses, the amount of expenses other than a judgment is reasonable; and
(3) indemnification should be paid.
Southwest enters into indemnification agreements with the members of its board of directors (each an indemnitee). Each
indemnification agreement requires Southwest to indemnify each indemnitee to the fullest extent permitted by the Texas Business Organizations Code and any successor statute thereto when such successor statute becomes applicable to Southwest.
Southwest will also make the indemnitee whole for taxes imposed on the indemnification payments and for costs in any action to establish indemnitees right to indemnification, whether or not wholly successful.
Southwest also maintains directors and officers liability insurance.
The forms of Underwriting Agreement to be filed as Exhibits 1.1, 1.2 and 1.3 to this Registration Statement provide for indemnification of
directors and officers of Southwest against certain liabilities.
2
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*1.1 |
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Form of Underwriting Agreement for Debt Securities. |
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*1.2 |
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Form of Underwriting Agreement for Common Stock. |
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*1.3 |
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Form of Underwriting Agreement for Pass Through Certificates. |
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4.1 |
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Indenture dated as of September 17, 2004 between Southwest and Wells Fargo Bank, N.A., relating to Debt Securities (incorporated by reference to Exhibit 4.1 to Southwests Registration Statement on Form S-3,
Registration No. 333-100861, filed on October 30, 2002). |
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4.2 |
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Pass Through Trust Agreement between Southwest and Wilmington Trust Company dated as of July 1, 2005, relating to Pass Through Certificates (incorporated by reference to Exhibit 4.2 to Southwests Registration
Statement on Form S-3, Registration No. 333-126738, filed on July 20, 2005). |
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**4.3 |
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Form of Debt Securities. |
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4.4 |
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Specimen Certificate representing Common Stock of Southwest (incorporated by reference to Exhibit 4.2 to Southwests Annual Report on Form 10-K for the year ended December 31, 1994
(File No. 001-7259)). |
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**4.5 |
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Form of Pass Through Certificates. |
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5.1 |
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Opinion of Vinson & Elkins L.L.P., as to the validity of the Debt Securities and Common Stock being registered. |
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5.2 |
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Opinion of Vinson & Elkins L.L.P., as to the validity of the Pass Through Certificates being registered. |
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12.1 |
|
Statement re computation of Ratios of Earnings to Fixed Charges. |
|
|
23.1 |
|
Consent of Ernst & Young LLP. |
|
|
23.2 |
|
Consent of Vinson & Elkins L.L.P. (contained in the opinions filed as Exhibits 5.1 and 5.2 hereto). |
|
|
24.1 |
|
Power of Attorney (on signature page). |
|
|
25.1 |
|
Form T-l Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Wells Fargo Bank, N.A., as Trustee under Indenture for the Debt Securities. |
|
|
25.2 |
|
Form T-l Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Wilmington Trust Company, as Trustee under the Pass Through Trust Agreement. |
* |
Southwest will file any underwriting agreement that it may enter into with respect to either the Debt Securities, Common Stock or Pass Through Certificates as an exhibit to a Current Report on Form 8-K.
|
** |
Southwest will file each form of any Debt Securities or Pass Through Certificates that it may issue as an exhibit to a Current Report on Form 8-K. |
3
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. 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 was 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; and
(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)(l)(i), (A)(l)(ii) and (A)(1)(iii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
4
(5) That, for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other
communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of
determining any liability under the Securities Act of 1933, each filing of the registrants 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 plans annual report pursuant to 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.
B.
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 Securities Act of 1933 and will be governed by the final adjudication of such issue.
5
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Gary C. Kelly, Ron Ricks, and Mark R. Shaw, and each of them acting
individually, 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) and supplements to this Registration Statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to
such 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 and could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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-3 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 April 30, 2015.
|
|
|
SOUTHWEST AIRLINES CO. |
|
|
By |
|
/s/ Tammy Romo |
|
|
Tammy Romo |
|
|
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 the dates indicated.
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
/s/ Gary C. Kelly
Gary C. Kelly |
|
Chairman of the Board, President, and Chief Executive Officer (Principal Executive Officer) |
|
April 30, 2015 |
|
|
|
/s/ Tammy Romo
Tammy Romo |
|
Senior Vice President Finance & Chief Financial Officer (Principal Financial and Accounting Officer) |
|
April 30, 2015 |
|
|
|
|
|
|
/s/ David W. Biegler |
|
Director |
|
April 30, 2015 |
David W. Biegler |
|
|
|
|
|
/s/ J. Veronica Biggins |
|
Director |
|
April 30, 2015 |
J. Veronica Biggins |
|
|
|
|
|
/s/ Douglas H. Brooks |
|
Director |
|
April 30, 2015 |
Douglas H. Brooks |
|
|
|
|
|
/s/ William H. Cunningham |
|
Director |
|
April 30, 2015 |
William H. Cunningham |
|
|
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
/s/ John G. Denison |
|
Director |
|
April 30, 2015 |
John G. Denison |
|
|
|
|
|
/s/ Nancy B. Loeffler |
|
Director |
|
April 30, 2015 |
Nancy B. Loeffler |
|
|
|
|
|
/s/ John T. Montford |
|
Director |
|
April 30, 2015 |
John T. Montford |
|
|
|
|
|
/s/ Thomas M. Nealon |
|
Director |
|
April 30, 2015 |
Thomas M. Nealon |
|
|
|
|
|
/s/ Daniel D. Villanueva |
|
Director |
|
April 30, 2015 |
Daniel D. Villanueva |
|
|
INDEX TO EXHIBITS
|
|
|
*1.1 |
|
Form of Underwriting Agreement for Debt Securities. |
|
|
*1.2 |
|
Form of Underwriting Agreement for Common Stock. |
|
|
*1.3 |
|
Form of Underwriting Agreement for Pass Through Certificates. |
|
|
4.1 |
|
Indenture dated as of September 17, 2004 between Southwest and Wells Fargo Bank, N.A., relating to Debt Securities (incorporated by reference to Exhibit 4.1 to Southwests Registration Statement on Form S-3,
Registration No. 333-100861, filed on October 30, 2002). |
|
|
4.2 |
|
Pass Through Trust Agreement between Southwest and Wilmington Trust Company dated as of July 1, 2005, relating to Pass Through Certificates (incorporated by reference to Exhibit 4.2 to Southwests Registration Statement on
Form S-3, Registration No. 333-126738, filed on July 20, 2005). |
|
|
**4.3 |
|
Form of Debt Securities. |
|
|
4.4 |
|
Specimen certificate representing common stock of Southwest (incorporated by reference to Exhibit 4.2 to Southwests Annual Report on Form 10-K for the year ended December 31, 1994 (File
No. 001-7259)). |
|
|
**4.5 |
|
Form of Pass Through Certificates. |
|
|
5.1 |
|
Opinion of Vinson & Elkins L.L.P., as to the validity of the Debt Securities and Common Stock being registered. |
|
|
5.2 |
|
Opinion of Vinson & Elkins L.L.P., as to the validity of the Pass Through Certificates being registered. |
|
|
12.1 |
|
Statement re computation of Ratios of Earnings to Fixed Charges. |
|
|
23.1 |
|
Consent of Ernst & Young LLP. |
|
|
23.2 |
|
Consent of Vinson & Elkins L.L.P. (contained in the opinions filed as Exhibits 5.1 and 5.2 hereto). |
|
|
24.1 |
|
Power of Attorney (on signature page). |
|
|
25.1 |
|
Form T-l Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Wells Fargo Bank, N.A., as Trustee under Indenture for the Debt Securities. |
|
|
25.2 |
|
Form T-l Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Wilmington Trust Company, as Trustee under the Pass Through Trust Agreement. |
* |
Southwest will file any underwriting agreement that it may enter into with respect to either the Debt Securities, Common Stock or Pass Through Certificates as an exhibit to a Current Report on Form 8-K.
|
** |
Southwest will file each form of any Debt Securities or Pass Through Certificates that it may issue as an exhibit to a Current Report on Form 8-K. |
Exhibit 5.1
Tel +1.214.220.7700 Fax +1.214.220.7716
April 30, 2015
Southwest Airlines Co.
2702 Love Field Drive
Dallas, Texas 75235
Ladies and Gentlemen:
We have acted as counsel
for Southwest Airlines Co., a Texas corporation (the Company), with respect to certain legal matters in connection with the registration by the Company under the Securities Act of 1933, as amended (the Securities
Act), of the offer and sale by the Company from time to time, pursuant to Rule 415 under the Securities Act, of (1) unsecured debt securities of the Company (Debt Securities), in one or more series, consisting of
notes, debentures or other evidences of indebtedness and which may be convertible into shares of common stock, par value $1.00 per share, of the Company (Common Stock, and together with the Debt Securities, the
Securities), and (2) shares of Common Stock. The Company has advised us that the Securities will be offered in amounts, at prices and on terms to be determined in light of market conditions at the time of sale and to be set
forth in supplements to the prospectus contained in the Companys Registration Statement on Form S-3 (the Registration Statement) to which this opinion is an exhibit.
We have examined originals or copies, certified or otherwise identified to our satisfaction, of (1) the Restated Certificate of Formation
and the Amended and Restated Bylaws of the Company, each as amended to the date hereof; (2) resolutions adopted by the Board of Directors of the Company (the Board of Directors, or to the extent permitted by Section 21.416 of the Texas
Business Organizations Code, a duly constituted and acting committee thereof, being referred to herein as the Board); (3) the Registration Statement; (4) the Indenture between the Company and Wells Fargo Bank, N.A., as
trustee, dated September 17, 2004 (the Indenture) relating to the Debt Securities; and (5) such other certificates, statutes and other instruments and documents as we considered appropriate for purposes of the opinions
hereafter expressed. In addition, we reviewed such questions of law as we considered appropriate.
As to any facts material to the
opinions contained herein, we have made no independent investigation of such facts and have relied, to the extent that we deemed such reliance proper, upon certificates of public officials and officers or other representatives of the Company.
|
|
|
Vinson & Elkins LLP Attorneys at Law |
|
Trammell Crow Center, 2001 Ross Avenue, Suite 3700 |
Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston London |
|
Dallas, TX 75201-2975 |
Moscow New York Palo Alto Riyadh San Francisco Tokyo Washington |
|
Tel +1.214.220.7700 Fax +1.214.220.7716 www.velaw.com |
|
|
|
|
|
Southwest Airlines Co. April 30, 2015 Page
2
|
In rendering the opinions set forth below, we have assumed that (1) all information
contained in all documents reviewed by us is true and correct; (2) all signatures on all documents examined by us are genuine; (3) all documents submitted to us as originals are authentic and all documents submitted to us as copies conform
to the originals of those documents; (4) each natural person signing any document reviewed by us had the legal capacity to do so; (5) each person signing in a representative capacity (other than on behalf of the Company) any document
reviewed by us had authority to sign in such capacity; (6) the Registration Statement, and any post-effective amendments thereto, will be effective and comply with all applicable laws; (7) one or more prospectus supplements will have been
prepared and filed with the Securities and Exchange Commission describing the Securities offered thereby; (8) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the
Registration Statement and an applicable prospectus supplement; (9) the Indenture has been duly authorized, executed and delivered by the Trustee, and any supplemental indenture to the Indenture or other instruments establishing a series of
Debt Securities to be issued under the Indenture will be duly authorized, executed and delivered by the parties thereto in substantially the form reviewed by us or with changes that do not affect the opinions given hereunder; (10) at the time
of any offering or sale of any shares of Common Stock, that the Company will have at least such number of shares of Common Stock authorized, created and, if appropriate, reserved for issuance; (11) a definitive purchase, underwriting or similar
agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; and (12) any shares of Common Stock issuable upon conversion of any Debt Security
being offered and sold will at the time of such offering or sale have been duly authorized and, if appropriate, reserved for issue upon such conversion.
Based on the foregoing, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion
that:
(1) With respect to Debt Securities to be issued under the Indenture, when (a) the Indenture has been duly qualified under the
Trust Indenture Act of 1939; (b) the Board has taken all necessary corporate action to approve the issuance and terms of such Debt Securities, the terms of the offering thereof and related matters; (c) the terms of such Debt Securities and
of their issuance and sale have been established so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company or any of its assets or properties and so as to comply with any
requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or any of its assets or properties; and (d) such Debt Securities have been duly executed, authenticated, issued and delivered in
accordance with the provisions of the
|
|
|
|
|
Southwest Airlines Co. April 30, 2015 Page
3
|
Indenture and in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board, then upon payment of the consideration provided for therein, such
Debt Securities will be legally issued and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and will be entitled to the benefits of the Indenture.
(2) With respect to shares of Common Stock, when (a) the Board has taken all necessary corporate action to approve the issuance and terms
of the offering thereof and related matters; and (b) certificates representing the shares of Common Stock have been duly executed, countersigned, registered and delivered (or non-certificated shares of Common Stock have been properly issued) in
accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board, then upon payment of the consideration therefor (not less than the par value of the Common Stock) provided for therein, such shares of
Common Stock will be validly issued, fully paid and non-assessable.
The foregoing opinions are qualified to the extent that the
enforceability of the Indenture or any Debt Security may be limited by or subject to (1) bankruptcy, insolvency, fraudulent transfer or conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors rights
generally, and general equitable or public policy principles (regardless of whether enforcement is sought in a proceeding in equity or law), and (2) with respect to any Debt Securities denominated in a currency other than United States dollars,
the requirement that a claim (or a foreign currency judgment in respect of such a claim) with respect to such Debt Securities be converted to United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or
governmental authority.
We express no opinions concerning (1) the validity or enforceability of any provisions contained in the
Indenture that purport to waive or not give effect to rights to notices, defenses, subrogation or other rights or benefits that cannot be effectively waived under applicable law or (2) the enforceability of indemnification provisions to the
extent they purport to relate to liabilities resulting from or based upon any violation of federal or state securities or blue sky laws.
The foregoing opinions are limited in all respects to the laws of the State of Texas and the federal laws of the United States of America, and
we do not express any opinions as to the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of our name in the prospectus forming a part of the Registration Statement under the caption Legal Matters. By giving such consent, we do not admit that we are within the category of persons
whose consent is required under Section 7 of the
|
|
|
|
|
Southwest Airlines Co. April 30, 2015 Page
4
|
Securities Act or the rules and regulations of the Securities and Exchange Commission issued thereunder.
|
Very truly yours, |
|
/s/ Vinson & Elkins L.L.P. |
|
Exhibit 5.2
Tel +1.214.220.7700 Fax +1.214.220.7716
April 30, 2015
Southwest Airlines Co.
2702 Love Field Drive
Dallas, Texas 75235
Ladies and Gentlemen:
We have acted as counsel
for Southwest Airlines Co., a Texas corporation (the Company), with respect to certain legal matters in connection with the registration by the Company under the Securities Act of 1933, as amended (the Securities
Act), of the offer and sale by the Company from time to time, pursuant to Rule 415 under the Securities Act, of pass through certificates (the Pass Through Certificates) expected to be issued by one or more trusts (each,
a Trust) formed by the Company for such purpose. The Company has advised us that the Pass Through Certificates will be offered in amounts, at prices and on terms to be determined in light of market conditions at the time of sale
and to be set forth in supplements to the prospectus contained in the Companys Registration Statement on Form S-3 (the Registration Statement) to which this opinion is an exhibit.
The Pass Through Certificates will be issued in one or more series under the Pass Through Trust Agreement dated as of July 1, 2005,
between the Company and Wilmington Trust Company (WTC), the trustee thereunder (the Basic Pass Through Trust Agreement), the form of which has been incorporated as an exhibit to the Registration Statement, as
supplemented by a separate trust supplement (each, a Trust Supplement) relating to each such series.
We have examined
originals or copies, certified or otherwise identified to our satisfaction, of (1) the Restated Certificate of Formation and the Amended and Restated Bylaws of the Company, each as amended to the date hereof; (2) resolutions adopted by the
Board of Directors of the Company (the Board of Directors, or to the extent permitted by Section 21.416 of the Texas Business Organizations Code, a duly constituted and acting committee thereof, being referred to herein as the
Board); (3) the Registration Statement; (4) the Basic Pass Through Trust Agreement, in the form incorporated as an exhibit to the Registration Statement; and (5) such other certificates, statutes and other
instruments and documents as we considered appropriate for purposes of the opinions hereafter expressed. In addition, we reviewed such questions of law as we considered appropriate.
As to any facts material to the opinions contained herein, we have made no independent investigation of such facts and have relied, to the
extent that we deemed such reliance proper, upon certificates of public officials and officers or other representatives of the Company.
|
|
|
Vinson & Elkins LLP Attorneys at Law |
|
Trammell Crow Center, 2001 Ross Avenue, Suite 3700 |
Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston London |
|
Dallas, TX 75201-2975 |
Moscow New York Palo Alto Riyadh San Francisco Tokyo Washington |
|
Tel +1.214.220.7700 Fax +1.214.220.7716 www.velaw.com |
|
|
|
|
|
Southwest Airlines Co. April 30, 2015 Page
2
|
In rendering the opinions set forth below, we have assumed that (1) all information
contained in all documents reviewed by us is true and correct; (2) all signatures on all documents examined by us are genuine; (3) all documents submitted to us as originals are authentic and all documents submitted to us as copies conform
to the originals of those documents; (4) each natural person signing any document reviewed by us had the legal capacity to do so; (5) each person signing in a representative capacity (other than on behalf of the Company) any document
reviewed by us had authority to sign in such capacity; (6) the Registration Statement, and any post-effective amendments thereto, will be effective and comply with all applicable laws; (7) one or more prospectus supplements will have been
prepared and filed with the Securities and Exchange Commission describing the Pass Through Certificates offered thereby; (8) all Pass Through Certificates will be issued and sold in compliance with applicable federal and state securities laws
and in the manner stated in the Registration Statement and an applicable prospectus supplement; (9) the Basic Pass Through Trust Agreement has been duly authorized, executed and delivered by the Trustee, and any Trust Supplement will be duly
authorized, executed and delivered by the parties thereto in substantially the form reviewed by us or with changes that do not affect the opinions given hereunder; and (10) a definitive purchase, underwriting or similar agreement with respect
to any Pass Through Certificates offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto.
Based upon the foregoing, we are of the opinion that, with respect to each series of Pass Through Certificates, when (1) the applicable
provisions of the Securities Act and such blue sky or state securities laws as may be applicable shall have been complied with, (2) the Trust Supplement relating to such series has been duly authorized and validly executed and
delivered by the Company and WTC, as trustee under the Basic Pass Through Trust Agreement, (3) the Board has taken all necessary corporate action to approve the terms of the offering of such series of Pass Through Certificates and related
matters and (4) the Pass Through Certificates of such series have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Basic Pass Through Trust Agreement, as supplemented by the related Trust
Supplement, and the applicable definitive purchase, underwriting or similar agreement approved by the Board and upon payment of the consideration therefor provided for therein, such series of Pass Through Certificates will be legally issued and will
constitute valid and binding obligations of WTC, as trustee of the applicable Trust.
|
|
|
|
|
Southwest Airlines Co. April 30, 2015 Page
3
|
The foregoing opinions are qualified to the extent that the enforceability of the Basic Pass
Through Trust Agreement, any Trust Supplement or Pass Through Certificate may be limited by or subject to bankruptcy, insolvency, fraudulent transfer or conveyance, reorganization, moratorium or other similar laws relating to or affecting
creditors rights generally, and general equitable or public policy principles (regardless of whether enforcement is sought in a proceeding in equity or law). Further, we express no opinions concerning the enforceability of indemnification
provisions in any Trust Supplement to the extent they purport to relate to liabilities resulting from or based upon negligence or any violation of federal or state securities or blue sky laws.
The foregoing opinions are limited in all respects to the laws of the State of Texas, the laws of the State of New York and the federal laws
of the United States of America, and we do not express any opinions as to the laws of any other jurisdiction. We have assumed that each Trust Supplement will be governed by the laws of the State of New York.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name in the prospectus
forming a part of the Registration Statement under the caption Legal Matters. By giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Securities and Exchange Commission issued thereunder.
|
Very truly yours, |
|
/s/ Vinson & Elkins L.L.P. |
Exhibit 12.1
SOUTHWEST AIRLINES CO.
STATEMENT REGARDING COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended, March 31, |
|
|
Year Ended December 31, |
|
|
|
2015 |
|
|
2014 |
|
|
2013 |
|
|
2012 |
|
|
2011 |
|
|
2010 |
|
Earnings |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes and cumulative effect of accounting changes |
|
$ |
723 |
|
|
$ |
1,816 |
|
|
$ |
1,210 |
|
|
$ |
685 |
|
|
$ |
323 |
|
|
$ |
745 |
|
Add: Fixed charges |
|
$ |
103 |
|
|
$ |
410 |
|
|
$ |
406 |
|
|
$ |
444 |
|
|
$ |
469 |
|
|
$ |
363 |
|
Less: Interest capitalized |
|
$ |
6 |
|
|
$ |
23 |
|
|
$ |
24 |
|
|
$ |
21 |
|
|
$ |
12 |
|
|
$ |
19 |
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
820 |
|
|
$ |
2,203 |
|
|
$ |
1,592 |
|
|
$ |
1,109 |
|
|
$ |
780 |
|
|
$ |
1,089 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed charges |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense (net) |
|
$ |
26 |
|
|
$ |
107 |
|
|
$ |
107 |
|
|
$ |
126 |
|
|
$ |
182 |
|
|
$ |
148 |
|
Add: Interest capitalized |
|
$ |
6 |
|
|
$ |
23 |
|
|
$ |
24 |
|
|
$ |
21 |
|
|
$ |
12 |
|
|
$ |
19 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross interest expense |
|
$ |
32 |
|
|
$ |
130 |
|
|
$ |
131 |
|
|
$ |
147 |
|
|
$ |
194 |
|
|
$ |
167 |
|
Add: Interest factor of operating lease expense |
|
$ |
71 |
|
|
$ |
280 |
|
|
$ |
275 |
|
|
$ |
298 |
|
|
$ |
275 |
|
|
$ |
197 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
103 |
|
|
$ |
410 |
|
|
$ |
406 |
|
|
$ |
444 |
|
|
$ |
469 |
|
|
$ |
364 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges |
|
|
7.96 |
|
|
|
5.37 |
|
|
|
3.92 |
|
|
|
2.49 |
|
|
|
1.66 |
|
|
|
2.99 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference of our firm under the caption Experts in the Registration Statement (Form S-3) and related Prospectuses of Southwest
Airlines Co. for the registration of its Common Stock, Debt Securities and Pass Through Certificates, and to the incorporation by reference therein of our reports dated February 6, 2015, with respect to the consolidated financial statements of
Southwest Airlines Co. and the effectiveness of internal control over financial reporting of Southwest Airlines Co. included in its Annual Report (Form 10-K) for the year ended December 31, 2014, filed with the Securities and Exchange
Commission.
|
/s/ Ernst & Young LLP |
Dallas, Texas
April 30, 2015 |
Exhibit 25.1
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF
ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
x |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
WELLS FARGO
BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
|
|
|
A National Banking Association |
|
94-1347393 |
(Jurisdiction of incorporation or
organization if not a U.S. national bank) |
|
(I.R.S. Employer
Identification No.) |
|
|
101 North Phillips Avenue Sioux Falls, South Dakota |
|
57104 |
(Address of principal executive offices) |
|
(Zip code) |
Wells Fargo & Company
Law Department, Trust Section
MAC N9305-175
Sixth
Street and Marquette Avenue, 17th Floor
Minneapolis, Minnesota 55479
(612) 667-4608
(Name,
address and telephone number of agent for service)
SOUTHWEST
AIRLINES CO.
(Exact name of registrant as specified in its charter)
|
|
|
TEXAS |
|
741563240 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
2702 Love Field Drive, Dallas, TX 75235
214/792-4000
(Address,
including zip code, and telephone number, including area code, of registrants principal executive offices)
Debt
Securities
Item 1. General Information. Furnish the following information as to the trustee:
|
(a) |
Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Treasury Department
Washington,
D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve
Bank of San Francisco
San Francisco, California 94120
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to
exercise corporate trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such
affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.
Item 15. Foreign Trustee. Not applicable.
Item 16. List of Exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
|
|
|
|
|
Exhibit 1. |
|
A copy of the Articles of Association of the trustee now in effect.* |
|
|
Exhibit 2. |
|
A copy of the Comptroller of the Currency Certificate of Corporate Existence for Wells Fargo Bank, National Association, dated January 14, 2015.** |
|
|
Exhibit 3. |
|
A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Wells Fargo Bank, National Association, dated January 6, 2014.** |
|
|
Exhibit 4. |
|
Copy of By-laws of the trustee as now in effect.** |
|
|
Exhibit 5. |
|
Not applicable. |
|
|
Exhibit 6. |
|
The consent of the trustee required by Section 321(b) of the Act. |
|
|
Exhibit 7. |
|
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
|
|
Exhibit 8. |
|
Not applicable. |
|
|
Exhibit 9. |
|
Not applicable. |
* |
Incorporated by reference to the exhibit of the same number to the trustees Form T-1 filed as exhibit 25 to the Form S-4 dated December 30, 2005 of file number 333-130784. |
** |
Incorporated by reference to the exhibit of the same number to the trustees Form T-1 filed as exhibit to the Filing 305B2 dated March 13, 2015 of file number 333-190926. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking
association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Dallas and State of Texas
on the 23rd of April, 2015.
|
WELLS FARGO BANK, NATIONAL ASSOCIATION |
|
|
Patrick T. Giordano |
Vice President |
EXHIBIT 6
April 23, 2015
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request thereof.
|
Very truly yours, |
|
WELLS FARGO BANK, NATIONAL ASSOCIATION |
|
|
Patrick T. Giordano |
Vice President |
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business December 31, 2014, filed in accordance with 12 U.S.C. §161 for National Banks.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Amounts In Millions |
|
ASSETS |
|
|
|
|
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
|
|
|
$ |
18,743 |
|
Interest-bearing balances |
|
|
|
|
|
|
222,900 |
|
Securities: |
|
|
|
|
|
|
|
|
Held-to-maturity securities |
|
|
|
|
|
|
55,483 |
|
Available-for-sale securities |
|
|
|
|
|
|
226,470 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
|
|
|
|
Federal funds sold in domestic offices |
|
|
|
|
|
|
1,968 |
|
Securities purchased under agreements to resell |
|
|
|
|
|
|
23,309 |
|
Loans and lease financing receivables: |
|
|
|
|
|
|
|
|
Loans and leases held for sale |
|
|
|
|
|
|
14,634 |
|
Loans and leases, net of unearned income |
|
|
821,207 |
|
|
|
|
|
LESS: Allowance for loan and lease losses |
|
|
10,844 |
|
|
|
|
|
Loans and leases, net of unearned income and allowance |
|
|
|
|
|
|
810,363 |
|
Trading Assets |
|
|
|
|
|
|
46,228 |
|
Premises and fixed assets (including capitalized leases) |
|
|
|
|
|
|
7,491 |
|
Other real estate owned |
|
|
|
|
|
|
2,492 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
|
|
|
|
856 |
|
Direct and indirect investments in real estate ventures |
|
|
|
|
|
|
1 |
|
Intangible assets |
|
|
|
|
|
|
|
|
Goodwill |
|
|
|
|
|
|
21,627 |
|
Other intangible assets |
|
|
|
|
|
|
18,578 |
|
Other assets |
|
|
|
|
|
|
61,641 |
|
|
|
|
|
|
|
|
|
|
Total assets |
|
|
|
|
|
$ |
1,532,784 |
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
|
|
|
|
Deposits: |
|
|
|
|
|
|
|
|
In domestic offices |
|
|
|
|
|
$ |
1,062,122 |
|
Noninterest-bearing |
|
|
322,290 |
|
|
|
|
|
Interest-bearing |
|
|
739,832 |
|
|
|
|
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
|
|
|
|
151,034 |
|
Noninterest-bearing |
|
|
928 |
|
|
|
|
|
Interest-bearing |
|
|
150,106 |
|
|
|
|
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
|
|
|
|
Federal funds purchased in domestic offices |
|
|
|
|
|
|
946 |
|
Securities sold under agreements to repurchase |
|
|
|
|
|
|
12,563 |
|
|
|
|
|
|
|
|
Dollar Amounts In Millions |
|
Trading liabilities |
|
|
25,409 |
|
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
83,997 |
|
Subordinated notes and debentures |
|
|
18,701 |
|
Other liabilities |
|
|
32,601 |
|
|
|
|
|
|
Total liabilities |
|
$ |
1,387,373 |
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
519 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
106,158 |
|
Retained earnings |
|
|
34,288 |
|
Accumulated other comprehensive income |
|
|
4,019 |
|
Other equity capital components |
|
|
0 |
|
|
|
|
|
|
Total bank equity capital |
|
|
144,984 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
427 |
|
|
|
|
|
|
Total equity capital |
|
|
145,411 |
|
|
|
|
|
|
Total liabilities, and equity capital |
|
$ |
1,532,784 |
|
|
|
|
|
|
I, John R. Shrewsberry, Sr. EVP & CFO of the above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief.
John R. Shrewsberry
Sr.
EVP & CFO
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
|
|
|
John Stumpf |
|
Directors |
James Quigley |
|
|
Enrique Hernandez, Jr. |
|
|
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
¨ Check if an Application to Determine Eligibility of a Trustee Pursuant to
Section 305(b)(2)
WILMINGTON TRUST COMPANY
(Exact name of Trustee as specified in its charter)
|
|
|
Delaware |
|
51-0055023 |
(Jurisdiction of incorporation of
organization if not a U.S. national bank) |
|
(I.R.S. Employer
Identification No.) |
1100 North Market Street
Wilmington, Delaware 19890-0001
(302) 651-1000
(Address of principal executive offices, including zip code)
Robert C. Fiedler
Vice
President and Counsel
Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
(302) 651-8541
(Name, address, including zip code, and telephone number, including area code, of agent of service)
SOUTHWEST AIRLINES CO.
(Exact name of obligor as specified in its charter)
|
|
|
TEXAS |
|
74-1563240 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
2702 Love Field Drive
Dallas, TX 75235
(Address
of principal executive offices, including zip code)
PASS THROUGH
TRUST CERTIFICATES
(Title of the indenture securities)
ITEM 1. |
GENERAL INFORMATION. |
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
State Bank Commissioner
555 East
Loockerman Street, Suite 210
Dover, Delaware 19901
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. |
AFFILIATIONS WITH THE OBLIGOR. |
If the obligor is an affiliate of the trustee, describe
each affiliation:
Based upon an examination of the books and records of the trustee and information available to the trustee, the obligor
is not an affiliate of the trustee.
ITEM 16. |
LIST OF EXHIBITS. |
Listed below are all exhibits filed as part of this Statement of
Eligibility and Qualification.
Exhibit 1. Copy of the Charter of Wilmington Trust Company:
Exhibit 2 -Certificate of Authority of Wilmington Trust Company to commence business included in Exhibit 1 above.
Exhibit 3-Authorization of Wilmington Trust Company to exercise corporate trust powers included in Exhibit 1 above.
Exhibit 4. Copy of By-Laws of Wilmington Trust Company.
Exhibit 5. Not applicable
Exhibit 6. Consent of Wilmington Trust Company required by Section 321(b) of the Trust Indenture Act.
Exhibit 7. Copy of most recent Report of Condition of Wilmington Trust Company.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
Pursuant to the
requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust Company, a corporation organized and existing under the laws of Delaware, has duly caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 6th day of April, 2015.
|
|
|
|
|
|
|
|
|
[SEAL] |
|
|
|
WILMINGTON TRUST COMPANY |
|
|
|
|
|
Attest: |
|
/s/ Chad May |
|
|
|
By: |
|
/s/ Jennifer Luce |
|
|
Assistant Secretary |
|
|
|
Name: |
|
Jennifer Luce |
|
|
|
|
|
|
Title: |
|
Vice President |
EXHIBIT 1*
RESTATED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
* |
Exhibit 1 also constitutes Exhibits 2 and 3. |
RESTATED
CHARTER OR ACT OF INCORPORATION
OF
WILMINGTON TRUST
COMPANY
(Originally incorporated on March 2, 1901
under the name Delaware Guarantee and Trust Company)
FIRST: The name of the corporation is Wilmington Trust Company (hereinafter referred to as the Company).
SECOND: The principal place of business of the Company in the State of Delaware shall be located in the City of Wilmington, County of
New Castle. The Company may have one or more branch offices or places of business.
THIRD: The purpose for which the Company is
formed is to carry on a non-depository trust company business and, in connection therewith, the Company shall have and possess all powers, rights, privileges and franchises incident to a non-depository trust company, and in general shall have the
right, privilege and power to engage in any lawful act or activity, within or without the State of Delaware, for which non-depository trust companies may be organized under the provisions of Chapter 7 of Title 5 of the Delaware Code, as the same may
be amended from time to time, and, in addition, may avail itself of any additional privileges or powers permitted to it by law.
FOURTH: The amount of the total authorized capital stock of the Company shall be Five Hundred Thousand Dollars ($500,000), divided into
Five Thousand (5,000) shares of common stock, having a par value of One Hundred Dollars ($100) per share. Upon the effective time of the filing of this Restated Charter or Act of Incorporation, each share of common stock of the Company, par
value One Dollar ($1.00) per share, outstanding immediately prior to such effective time shall be reclassified and changed into one share of common stock of the Company, par value One Hundred Dollars ($100) per share.
FIFTH: The number of directors who shall constitute the whole board of directors of the
Company shall be such number as shall be fixed by, or in the manner provided in, the bylaws of the Company, provided that the number of directors shall not be less than five.
SIXTH: The duration of the Companys existence shall be perpetual.
SEVENTH: The private property of the stockholders of the Company shall not be subject to the payment of the debts of the Company.
EIGHTH: The business and affairs of the Company shall be managed by or under the direction of the board of directors, and the directors
need not be elected by ballot unless required by the bylaws of the Company.
NINTH: In furtherance and not in limitation of the
powers conferred by the laws of the State of Delaware, the board of directors of the Company is expressly authorized to make, amend, and repeal the bylaws of the Company. The bylaws of the Company may confer upon the directors specific powers, not
inconsistent with law, which are in addition to the powers and authority expressly conferred by the laws of the State of Delaware.
TENTH: The Company shall have the right to amend, alter, change or repeal any provisions contained in this Restated Charter or Act of
Incorporation to the extent or in the manner now or hereafter permitted or prescribed by law.
ELEVENTH: To the fullest extent
permissible under Title 5, Section 723(b) of the Delaware Code, a director of the Company shall have no personal liability to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this
provision shall not eliminate the liability of a director (i) for any breach of the directors duty
- 2 -
of loyalty to the Company 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 Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is hereafter amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the liability of a director of the Company shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the Company shall not adversely affect any right or protection of
a director of the Company existing at the time of such repeal or modification.
TWELFTH: The Company shall have the power to merge
or sell its assets and take other corporate action to the extent and in the manner now or hereafter permitted or prescribed by law, and all rights conferred upon stockholders herein are granted subject to such rights.
THIRTEENTH: This Restated Charter or Act of Incorporation shall become effective at 12:05 a.m. on July 1, 2011.
-3-
EXHIBIT 4
BY-LAWS
WILMINGTON TRUST
COMPANY
WILMINGTON, DELAWARE
AMENDED AND RESTATED
BYLAWS
OF
WILMINGTON TRUST COMPANY
EFFECTIVE AS OF AUGUST 20, 2012
ARTICLE 1
Stockholders Meetings
Section 1. Annual Meeting. The annual meeting of stockholders of Wilmington Trust Company (the Company) shall be held
on the third Tuesday in April each year at the principal office at the Company or at such other date, time or place as may be designated by resolution by the Board of Directors.
Section 2. Special Meetings. Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman of
the Board, the Chief Executive Officer or the President.
Section 3. Notice. Notice of all meetings of the stockholders shall
be given by mailing to each stockholder at least ten (10) days before said meeting, at his or her last known address, a written or printed notice fixing the time and place of such meeting.
Section 4. Quorum. A majority in the amount of the capital stock of the Company issued and outstanding on the record date, as
herein determined, shall constitute a quorum at all meetings of stockholders for the transaction of any business, but the holders of a smaller number of shares may adjourn from time to time, without further notice, until a quorum is secured. At each
annual or special meeting of stockholders, each stockholder shall be entitled to one vote, either in person or by proxy, for each share of stock registered in the stockholders name on the books of the Company on the record date for any such
meeting as determined herein.
Section 5. Action by Consent in Writing. Unless otherwise provided in the Restated Charter or
Act of Incorporation, any action required to be taken at any annual or special meeting of stockholders of the Company, or any action that may be taken at any annual or special meeting of those stockholders, may be taken without a meeting, without
prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take that
action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE 2
Directors
Section 1. Management. The affairs and business of the Company shall be managed by or under the direction of the Board of
Directors.
Section 2. Number. The authorized number of directors that shall constitute the Board of Directors shall be fixed
from time to time by or pursuant to a resolution passed by a majority of the Board of Directors within the parameters set by the Restated Charter or Act of Incorporation of the Company.
Section 3. Reserved.
Section 4. Meetings. The Board of Directors shall meet at the principal office of the Company or elsewhere in its discretion at
such times to be determined by a majority of its members, or at the call of the Chairman of the Board of Directors, the Chief Executive Officer or the President.
Section 5. Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board,
the Chief Executive Officer or the President, and shall be called upon the written request of a majority of the directors.
Section 6. Quorum. A majority of the directors elected and qualified shall be necessary to constitute a quorum for the transaction
of business at any meeting of the Board of Directors.
Section 7. Notice. Written notice shall be sent by U.S. mail,
electronic mail or facsimile to each director of any special meeting of the Board of Directors, and of any change in the time or place of any regular meeting, stating the time and place of such meeting, which shall be sent not less than two days
before the time of holding such meeting.
Section 8. Vacancies. In the event of the death, resignation, removal, inability to
act or disqualification of any director, the Board of Directors, although less than a quorum, shall have the right to elect the successor who shall hold office for the remainder of the full term of the class of directors in which the vacancy
occurred, and until such directors successor shall have been duly elected and qualified.
Section 9. Organization
Meeting. The Board of Directors at its first meeting after its election by the stockholders shall appoint an Audit Committee and shall elect from its own members a Chairman of the Board, a Chief Executive Officer and a President, who may be the
same person. The Board of Directors shall also elect at such meeting a Secretary and a Chief Financial Officer, who may be the same person, and may appoint at any time such additional committees as it may deem advisable.
Section 10. Removal. The Board of Directors may at any time remove, with or without cause, any member of any committee appointed
by it or any officer elected by it and may appoint or elect his or her successor.
Section 11. Responsibility of Officers. The
Board of Directors may designate an officer to be in charge of such departments or divisions of the Company as it may deem advisable.
Section 12. Participation in Meetings; Action without a Meeting. The Board of Directors or any committee of the Board of Directors
may participate in a meeting of the Board of Directors or such committee, as the case may be, by conference telephone, video facilities or other communications equipment. Any action required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a meeting if all of the members of the Board of Directors or the committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the Board
of Directors or such committee.
ARTICLE 3
Committees of the Board of Directors
Section 1. Audit Committee.
(A) The Audit Committee shall be composed of not less than three (3) members, who shall be selected by the Board of Directors from its
own members, none of whom shall be an officer or employee of the Company, and shall hold office at the pleasure of the Board.
(B) The
Audit Committee shall have general supervision over the Audit Services Division in all matters however subject to the approval of the Board of Directors; it shall consider all matters brought to its attention by the officer in charge of the Audit
Services Division, review all reports of examination of the Company made by any governmental agency or such independent auditor employed for that purpose, and make such recommendations to the Board of Directors with respect thereto or with respect
to any other matters pertaining to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and
wherever its Chairman, the Chairman of the Board, the Chief Executive Officer, the President or a majority of the Committees members shall deem it to be proper for the transaction of its business. A majority of the Committees members
shall constitute a quorum for the transaction of business. The acts of the majority at a meeting at which a quorum is present shall constitute action by the Committee.
Nothwithstanding the provisions contained in Paragraphs (A), (B) and (C) of this Section 1, the responsibility and authority of the Audit
Committee may, if authorized by law, be given over to a duly constituted audit committee of the Companys parent corporation by a resolution duly adopted by the Board of Directors.
Section 2. Other Committees. The Company may have such other committees with such powers as the Board may designate from time to
time by resolution or by an amendment to these Bylaws.
Section 3. Absence or Disqualification of Any Member of a Committee.
In the absence or disqualification of any member of any committee created under Article 3 of these Bylaws, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
ARTICLE 4
Officers
Section 1. Officers. The Board of Directors shall annually, at the Annual Reorganization Meeting of the Board after
the Annual Meeting of Stockholders, elect from its own number a Chairman of the Board, a Chief Executive Officer and a President, and appoint or elect one or more Vice Presidents, a Corporate Secretary, a Treasurer, a General Auditor, and such other
officers as it deems necessary and appropriate. At the Annual Reorganization Meeting, the Board of Directors shall also reelect all of the then officers of the Company until the next Annual Reorganization Meeting. In the interim between Annual
Reorganization Meetings, the Board of Directors may also from time to time elect or appoint a Chairman of the Board, a Chief
Executive Officer, a President or such additional officers to the rank of Vice President, including (without limitation as to title or number) one or more Administrative Vice Presidents, Group
Vice Presidents, Senior Vice Presidents and Executive Vice Presidents, and any other officer positions as they deem necessary and appropriate; and the Chief Executive Officer of M&T Bank Corporation, the President of M&T Bank Corporation,
and a Vice Chairman of M&T Bank Corporation, acting jointly, may appoint one or more officers to the rank of Administrative Vice President or higher, and the head of the Human Resources Department or his or her designee or designees, may appoint
other officers below the rank of Administrative Vice President, including (without limitation as to title or number) one or more Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers, Assistant Auditors and Banking
Officersp, and any other officer positions as they deem necessary and appropriate. Each such person elected or appointed by the Board of Directors of the Company, the Chief Executive Officer of M&T Bank Corporation, the President of M&T Bank
Corporation, and a Vice Chairman of M&T Bank Corporation, acting jointly, or the head of the Human Resources Department or his or her designee or designees, in between Annual Reorganization Meetings shall, unless otherwise determined by the
Board or Directors, the Chief Executive Officer, the President and a Vice Chairman of M&T Bank Corporation, acting jointly, or the head of the Human Resources Department or his or her designee or designees, hold office until the next Annual
Reorganization Meeting.
Section 2. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the
Board of Directors and shall have such further authority and powers and shall perform such duties the Board of Directors may assign to him or her from time to time.
Section 3. Chief Executive Officer. The Chief Executive Officer shall have the powers and duties pertaining to the office of Chief
Executive Officer conferred or imposed upon him or her by statute, incident to his or her office or as the Board of Directors may assign to him or her from time to time. In the absence of the Chairman of the Board, the Chief Executive Officer shall
have the powers and duties of the Chairman of the Board.
Section 4. President. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him or her by statute, incident to his or her office or as the Board of Directors may assign to him or her from time to time. In the absence of the Chairman of the Board and the
Chief Executive Officer, the President shall have the powers and duties of the Chairman of the Board.
Section 5. Duties. The
Chairman of the Board, the Chief Executive Officer or the President, as designated by the Board of Directors, shall carry into effect all legal directions of the Board of Directors and shall at all times exercise general supervision over the
interest, affairs and operations of the Company and perform all duties incident to his or her office.
Section 6. Vice
Presidents. There may be one or more Vice Presidents, however denominated by the Board of Directors, who may at any time perform all of the duties of the Chairman of the Board, the Chief Executive Officer and/or the President and such other
powers and duties incident to their respective offices or as the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President or the officer in charge of the department or division to which they are assigned may assign
to them from time to time.
Section 7. Secretary. The Secretary shall attend to the giving of notice of meetings of the
stockholders and the Board of Directors, as well as the committees thereof, to the keeping of accurate minutes of all such meetings, recording the same in the minute books of the Company and in general notifying the Board of Directors of material
matters affecting the Company on a timely basis. In addition to the other notice
requirements of these Bylaws and as may be practicable under the circumstances, all such notices shall be in writing and mailed well in advance of the scheduled date of any such meeting. He or
she shall have custody of the corporate seal, affix the same to any documents requiring such corporate seal, attest the same and perform other duties incident to his or her office.
Section 8. Chief Financial Officer. The Chief Financial Officer shall have general supervision over all assets and liabilities of
the Company. He or she shall be custodian of and responsible for all monies, funds and valuables of the Company and for the keeping of proper records of the evidence of property or indebtedness and of all transactions of the Company. He or she shall
have general supervision of the expenditures of the Company and periodically shall report to the Board of Directors the condition of the Company, and perform such other duties incident to his or her office or as the Board of Directors, the Chairman
of the Board, the Chief Executive Officer or the President may assign to him or her from time to time.
Section 9. Controller.
There may be a Controller who shall exercise general supervision over the internal operations of the Company, including accounting, and shall render to the Board of Directors or the Audit Committee at appropriate times a report relating to the
general condition and internal operations of the Company and perform other duties incident to his or her office.
There may be one or more
subordinate accounting or controller officers however denominated, who may perform the duties of the Controller and such duties as may be prescribed by the Controller.
Section 10. Audit Officers. The officer designated by the Board of Directors to be in charge of the Audit Services Division of the
Company, with such title as the Board of Directors shall prescribe, shall report to and be directly responsible to the Audit Committee and the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers, however denominated, who may perform all the duties of the Auditor and
such duties as may be prescribed by the officer in charge of the Audit Services Division.
Section 11. Other Officers. There
may be one or more officers, subordinate in rank to all Vice Presidents with such titles as shall be determined in accordance with Article 4, Section 1 of these Bylaws, who shall ex officio hold the office of Assistant Secretary of the Company
and who may perform such duties as may be prescribed by the officer in charge of the department or division to which they are assigned.
Section 12. Powers and Duties of Other Officers. The powers and duties of all other officers of the Company shall be those usually
pertaining to their respective offices, subject to the direction of the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President and the officer in charge of the department or division to which they are assigned.
Section 13. Number of Offices. Any one or more offices of the Company may be held by the same person, except that (A) no
individual may hold more than one of the offices of Chief Financial Officer, Controller or Audit Officer and (B) none of the Chairman of the Board, the Chief Executive Officer or the President may hold any office mentioned in
Section 13(A).
ARTICLE 5
Stock and Stock Certificates
Section 1. Transfer. Shares of stock shall be transferable on the books of the Company and a transfer book shall be kept in which
all transfers of stock shall be recorded.
Section 2. Certificates. Every holder of stock shall be entitled to have a
certificate signed by or in the name of the Company by the Chairman of the Board, the Chief Executive Officer or the President or a Vice President, and by the Secretary or an Assistant Secretary, of the Company, certifying the number of shares owned
by him or her in the Company. The corporate seal affixed thereto, and any of or all the signatures on the certificate, may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he or she were such officer, transfer agent or registrar at the date
of issue. Duplicate certificates of stock shall be issued only upon giving such security as may be satisfactory to the Board of Directors.
Section 3. Record Date. The Board of Directors is authorized to fix in advance a record date for the determination of the
stockholders entitled to notice of, and to vote at, any meeting of stockholders and any adjournment thereof, or entitled to receive payment of any dividend, or to any allotment of rights, or to exercise any rights in respect of any change,
conversion or exchange of capital stock, or in connection with obtaining the consent of stockholders for any purpose, which record date shall not be more than 60 nor less than 10 days preceding the date of any meeting of stockholders or the date for
the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent.
ARTICLE 6
Seal
The corporate seal of the Company shall be in the following form:
Between two concentric circles the words Wilmington Trust Company within the inner circle the words Wilmington,
Delaware.
ARTICLE 7
Fiscal Year
The
fiscal year of the Company shall be the calendar year.
ARTICLE 8
Execution of Instruments of the Company
The Chairman of the Board, the Chief Executive Officer, the President, any Vice President, or any other officer as shall be determined in
accordance with Article 4, Section 1 of these Bylaws, shall have full power and authority to enter into, make, sign, execute, acknowledge and/or deliver and the Secretary or any
Assistant Secretary shall have full power and authority to attest and affix the corporate seal of the Company to any and all deeds, conveyances, assignments, releases, contracts, agreements,
bonds, notes, mortgages and all other instruments incident to the business of this Company or in acting as executor, administrator, guardian, trustee, agent or in any other fiduciary or representative capacity by any and every method of appointment
or by whatever person, corporation, court officer or authority in the State of Delaware, or elsewhere, without any specific authority, ratification, approval or confirmation by the Board of Directors, and any and all such instruments shall have the
same force and validity as though expressly authorized by the Board of Directors.
ARTICLE 9
Compensation of Directors and Members of Committees
Directors of the Company, other than salaried officers of the Company, shall be paid such reasonable honoraria or fees for attending meetings
of the Board of Directors as the Board of Directors may from time to time determine. Directors who serve as members of committees, other than salaried employees of the Company, shall be paid such reasonable honoraria or fees for services as members
of committees as the Board of Directors shall from time to time determine and directors may be authorized by the Company to perform such special services as the Board of Directors may from time to time determine in accordance with any guidelines the
Board of Directors may adopt for such services, and shall be paid for such special services so performed reasonable compensation as may be determined by the Board of Directors.
ARTICLE 10
Indemnification
Section 1. Persons Covered. The Company shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a
proceeding) by reason of the fact that he, she or a person for whom he or she is the legal representative, is or was a director or associate director of the Company, a member of an advisory board the Board of Directors of the Company or
any of its subsidiaries may appoint from time to time or is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent of another corporation, partnership, limited liability company, joint venture, trust,
enterprise or non-profit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person. The Company
shall be required to indemnify such a person in connection with a proceeding initiated by such person only if the proceeding was authorized by the Board of Directors.
The Company may indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be
amended, any person who was or is made or threatened to be made a party or is otherwise involved in any proceeding by reason of the fact that he, she, or a person for whom or she is the legal representative, is or was an officer, employee or agent
of the Company or a director, officer, employee or agent of a subsidiary or affiliate of the Company, against all liability and loss suffered and expenses reasonably incurred by such person. The Company may indemnify any such person in connection
with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. Advancement of Expenses. The Company shall pay the expenses incurred in
defending any proceeding involving a person who is or may be indemnified pursuant to Section 1 in advance of its final disposition, provided, however, that the payment of expenses incurred by such a person in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by that person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article 10 or otherwise.
Section 3. Certain Rights. If a claim under this Article 10 for (A) payment of expenses or (B) indemnification by a
director, member of an advisory board the Board of Directors of the Company or any of its subsidiaries may appoint from time to time or a person who is or was serving at the request of the Company as a director, officer, employee, fiduciary or agent
of another corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity that is not a subsidiary or affiliate of the Company, including service with respect to employee benefit plans, is not paid in full
within sixty days after a written claim therefor has been received by the Company, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting
such claim. In any such action, the Company shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
Section 4. Non-Exclusive. The rights conferred on any person by this Article 10 shall not be exclusive of any other rights which
such person may have or hereafter acquire under any statute, provision of the Restated Charter or Act of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. Reduction of Amount. The Companys obligation, if any, to indemnify any person who was or is serving at its
request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or nonprofit entity.
Section 6. Effect of Modification. Any amendment, repeal
or modification of the foregoing provisions of this Article 10 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such amendment, repeal or modification.
ARTICLE 11
Amendments to the Bylaws
These Bylaws may be altered, amended or repealed, in whole or in part, and any new Bylaw or Bylaws adopted at any regular or special meeting
of the Board of Directors by a vote of a majority of all the members of the Board of Directors then in office.
ARTICLE 12
Miscellaneous
Whenever used in these Bylaws, the singular shall include the plural, the plural shall include the singular unless the context requires
otherwise.
EXHIBIT 6
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust Company hereby consents that reports of
examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor.
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|
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|
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|
|
WILMINGTON TRUST COMPANY |
|
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|
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Dated: April 6, 2015 |
|
|
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By: |
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/s/ Jennifer Luce |
|
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Name: |
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Jennifer Luce |
|
|
|
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Title: |
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Vice President |
EXHIBIT 7
R E P O R T O F C O N D I T I O N
|
|
|
|
|
WILMINGTON TRUST COMPANY |
|
of |
|
Wilmington |
Name of Bank |
|
|
|
City |
in the State of Delaware, at the close of business on December 31, 2014:
|
|
|
|
|
ASSETS |
|
|
Thousands of Dollars |
|
Cash and balances due from depository institutions: |
|
|
996,803 |
|
Securities: |
|
|
0 |
|
Federal funds sold and securities purchased under agreement to resell: |
|
|
0 |
|
Loans and leases held for sale: |
|
|
0 |
|
Loans and leases net of unearned income, allowance: |
|
|
0 |
|
Premises and fixed assets: |
|
|
300 |
|
Other real estate owned: |
|
|
0 |
|
Investments in unconsolidated subsidiaries and associated companies: |
|
|
0 |
|
Direct and indirect investments in real estate ventures: |
|
|
0 |
|
Intangible assets: |
|
|
2,536 |
|
Other assets: |
|
|
28,017 |
|
Total Assets: |
|
|
1,027,656 |
|
LIABILITIES |
|
|
Thousands of Dollars |
|
Deposits |
|
|
0 |
|
Federal Funds Purchased and Securities Sold Under Agreements to Repurchase |
|
|
0 |
|
Other borrowed money: |
|
|
0 |
|
Other Liabilities: |
|
|
486,053 |
|
Total Liabilities |
|
|
486,053 |
|
EQUITY CAPITAL |
|
|
Thousands of Dollars |
|
Common Stock |
|
|
5 |
|
Surplus |
|
|
523,444 |
|
Retained Earnings |
|
|
18,154 |
|
Accumulated other comprehensive income |
|
|
0 |
|
Total Equity Capital |
|
|
541,603 |
|
Total Liabilities and Equity Capital |
|
|
1,027,656 |
|
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