EX-10.1






COMMON STOCK PURCHASE AGREEMENT




THIS COMMON STOCK PURCHASE AGREEMENT (the “Agreement”) is made as of July 31, 2009, by and
between Kansas City Southern, a Delaware corporation (the “Company”), and the undersigned (the
"Investor”).



	 	 	 
	 THE PARTIES HEREBY AGREE AS FOLLOWS:

	Section 1.

	 	Purchase and Sale of Stock.
	
 
	 	 






Section 1.1 Sale and Issuance of Common Stock. The Investor agrees to purchase at the
Closing (defined below), and the Company agrees to sell and issue to the Investor at the Closing,
the number of shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”),
set forth on the Investor’s signature page hereto next to the heading “Shares” (the “Stock”) at a
price of $20.00 per share, for a total subscription amount equal to the amount set forth on the
Investor’s signature page hereto next to the heading “Subscription Amount.”



Section 1.2 Closing. The purchase and sale of the Stock shall take place at the
offices of Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022 at 10:00 A.M., New
York time, on the date hereof, or at such other time and place as the Company and the Investor may
mutually agree upon orally or in writing (which time and place are designated as the “Closing”).
At the Closing, the Company shall cause its transfer agent to deliver to the Investor, via
electronic book-entry or, if requested by the Investor, physical certificates, the Stock the
Investor is purchasing hereunder against payment of the purchase price therefor by wire transfer of
immediately available funds to the following account:



[On file with Company]




Section 1.3 Delivery of Stock.  The account or accounts to be credited with the Stock
being purchased by the Investor is set forth on the Investor’s signature page hereto.  The Company
shall direct the transfer agent to credit the Investor’s account or accounts with the Stock
pursuant to such information.



Section 1.4 Business Day.  For the purposes of this Agreement, “Business Day” shall
mean any day other than a Saturday, Sunday or other day on which the New York Stock Exchange, Inc.
(the “Principal Market”) is permitted or required by law to close.



Section 2. Representations, Warranties and Covenants of the Company. The Company
hereby makes the following representations, warranties and covenants to the Investor:




(a) The Company meets, and will continue to meet through the Closing, the requirements for
use of Form S-3ASR under the Securities Act of 1933, as amended (the “Securities Act”), and has
filed with the Securities and Exchange Commission (the “Commission”) a registration statement on
such Form (Registration File No. 333-155601), which became effective as of November 21, 2008, for
the registration under the Securities Act of the Stock. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule. 
The Company will file with the Commission pursuant to Rule 424(b) under the Securities Act
(“Rule 424(b)”), and the rules and regulations (the “Rules and Regulations”) of the Commission
promulgated thereunder, on or promptly after the date hereof (and in any event within one Business
Day after the date hereof) a supplement to the form of prospectus filed on November 21, 2008 and
relating to such registration statement, relating to the offer to sell and proposed sale of the
Stock and the plan of distribution thereof.  The Company will also, if applicable, file with the
Commission pursuant to Rule 433 under the Securities Act (“Rule 433”), and the Rules and
Regulations of the Commission promulgated thereunder, any issuer free writing prospectus relating
to the Stock which was delivered to the Investor on or prior to the date hereof.  Such
registration statement, including the exhibits thereto, as amended at the date of this Agreement,
is hereinafter called the “Registration Statement”; any such issuer free writing prospectus, if
applicable, in the form in which it will be filed with the Commission pursuant to Rule 433 is
hereinafter called the “Issuer Free Writing Prospectus”; such prospectus filed on November 21,
2008 and relating to the Registration Statement is hereinafter called the “Base Prospectus”; and
the supplemented form of prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter called
the “Prospectus Supplement.” Any reference herein to the Registration Statement, the Base
Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents
incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or
before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be; and any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any document under the Exchange
Act after the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be, deemed to be incorporated therein by reference. All references in
this Agreement to financial statements and schedules and other information which is “contained,”
“included,” “described,” “set forth” or “stated” in the Registration Statement, the Base
Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information which is or
is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus or
the Prospectus Supplement, as the case may be. The Registration Statement is effective under the
Securities Act and no stop order preventing or suspending the effectiveness of the Registration
Statement or the use of the Base Prospectus or the Prospectus Supplement has been issued, and no
proceeding for any such purpose is pending or has been initiated or, to the Company’s knowledge,
is threatened by the Commission.




(b)  The Registration Statement (and any further documents to be filed with the Commission)
contains all exhibits and schedules as required by the Securities Act.  Each of the Registration
Statement and any post-effective amendment thereto, at the time it became effective, complied in
all material respects with the Securities Act and the Exchange Act and the applicable Rules and
Regulations and did not and, as amended or supplemented, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Issuer Free Writing Prospectus,
the Base Prospectus and the Prospectus Supplement, each as of its respective date, complied in all
material respects with the Securities Act and the Exchange Act and the applicable Rules and
Regulations. Each of the Issuer Free Writing Prospectus, the Base Prospectus and the Prospectus
Supplement, as amended or supplemented, did not and will not contain as of the date thereof any
untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made, not misleading.
The Incorporated Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the applicable Rules and Regulations and none
of such Incorporated Documents, when they were filed with the Commission, contained any untrue
statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Base Prospectus or Prospectus Supplement,
when such documents are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the applicable Rules and Regulations, as applicable, and will
not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they are made, not
misleading. Notwithstanding the foregoing, the Company makes no representations or warranties as
to information, if any, contained in or omitted from the Issuer Free Writing Prospectus, the
Prospectus Supplement or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf of any Investor
specifically for use in the Registration Statement or the Prospectus Supplement. No post-effective
amendment to the Registration Statement reflecting any facts or events arising after the date
thereof which represent, individually or in the aggregate, a fundamental change in the information
set forth therein is required to be filed with the Commission. There are no documents required to
be filed with the Commission in connection with the transaction contemplated hereby that have not
been filed as required pursuant to the Securities Act or will not be filed within the requisite
time period. There are no contracts or other documents required to be described in the Base
Prospectus or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration
Statement, which have not been described or filed as required.




(c) The Company has delivered, or will as promptly as practicable deliver, to the Investor
complete conformed copies of the Registration Statement and of each consent and certificate of
experts filed as a part thereof, and conformed copies of the Registration Statement (without
exhibits) and the Base Prospectus, the Issuer Free Writing Prospectus and the Prospectus
Supplement, as amended or supplemented, in such quantities and at such places as the Investor
reasonably requests. Neither the Company nor any of its directors and officers has distributed and
none of them will distribute, prior to the Closing, any offering material in connection with the
offering and sale of the Stock other than the Issuer Free Writing Prospectus, the Base Prospectus,
the Prospectus Supplement, the Registration Statement, copies of the documents incorporated by
reference therein and any other materials permitted by the Securities Act.




(d) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the Registration
Statement, the Base Prospectus and the Prospectus Supplement, and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which such qualification
is required, except where the failure to so qualify or to be in good standing, individually or in
the aggregate, would not have a material adverse effect on the assets, properties, condition,
financial or otherwise, or in the results of operations of the Company, or materially impair the
Company’s ability to perform its obligations under this Agreement (a “Material Adverse Effect”).




(e) The Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this Agreement and otherwise to carry out its
obligations hereunder.  The execution and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated hereunder have been duly authorized by all
necessary corporate action on the part of the Company, and no further consent or action is
required by the Company, its Board of Directors or its stockholders.  This Agreement has been duly
executed by the Company and, when delivered in accordance with the terms hereof, will constitute
the valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms, except (i) as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ and contracting parties’ rights generally, (ii) as
enforceability may be subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii) in so far as
indemnification and contribution provisions may be limited by applicable law.




(f)  The execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby do not and will not
(i) conflict with or violate any provision of the Company’s amended and restated certificate of
incorporation or amended and restated bylaws, (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse
of time or both) of, or give any rights to receipt of any portion of the proceeds from the sale of
the Stock pursuant to, any agreement, credit facility, debt or other instrument (evidencing a
Company debt or otherwise) to which the Company is a party or by which any property or asset of
the Company is bound or affected, (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which
the Company is subject (including federal and state securities laws and regulations) and the
rules and regulations of any self-regulatory organization to which the Company or its securities
are subject, or by which any property or asset of the Company is bound or affected, or (iv) result
in the creation or imposition of any lien, encumbrance, claim, security interest or restriction
whatsoever upon any of the material properties or assets of the Company or an acceleration of
indebtedness pursuant to any obligation, agreement or condition contained in any material bond,
debenture, note or any other evidence of indebtedness or any material indenture, mortgage, deed of
trust or any other agreement or instrument to which the Company is a party or by which it is bound
or to which any material property or assets of the Company is subject, except in the case of
clauses (ii), (iii) and (iv), such as would not, individually or in the aggregate, result in a
Material Adverse Effect.




(g) No consent, approval, authorization, filing with, order of or registration with, any
court or governmental agency or body is required in connection with the transactions contemplated
herein, except such as have been or will be obtained or made under the Securities Act and such as
may be required under the securities, or blue sky, laws of any jurisdiction in connection with the
offer and sale of the Stock by the Company in the manner contemplated herein and in the Prospectus
Supplement.




(h) The Stock to be issued and sold by the Company hereunder has been duly and validly
authorized and, when issued and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and nonassessable and free and clear of all liens (other than
any liens created by or imposed by the Investor or through no action of the Company) and free of
any preemptive or similar rights.  The Stock conforms in all material respects to the description
thereof contained in the Registration Statement, the Base Prospectus and the Prospectus
Supplement.




(i) Except for (i) Stock issued pursuant to this Agreement or Common Stock pursuant to the
Company’s ATM Equity Offering Sales Agreement with Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the “ATM Program”), (ii) issuances of Common Stock pursuant to reservations,
agreements or employee benefit plans referred to in the SEC Documents or pursuant to the exercise
of convertible securities or options referred to in the SEC Documents, the Company has
an authorized capitalization as set forth in the Registration Statement, the Base Prospectus and
the Prospectus Supplement. All of the issued and outstanding shares of Common Stock of the Company
have been duly and validly authorized and issued, are fully paid and non-assessable, have been
issued in compliance with federal and state securities laws, and conform in all material respects
to the description thereof contained in the Registration Statement, the Base Prospectus and the
Prospectus Supplement. There are no outstanding restricted stock, performance shares, options,
warrants, or other rights to purchase, or equity or debt securities convertible into or
exchangeable or exercisable for, any capital stock of the Company that have been granted by the
Company other than those accurately described in the Registration Statement, the Base Prospectus
and the Prospectus Supplement, or restricted stock, performance shares or options issued in the
ordinary course of business subsequent to the dates presented in the Registration Statement, the
Base Prospectus and the Prospectus Supplement.  The description of the Company’s stock option,
stock bonus and other stock plans or arrangements, and the options or other rights granted
thereunder, as described in the Registration Statement, the Base Prospectus and the Prospectus
Supplement, accurately and fairly present the information required to be shown with respect to
such plans, arrangements, options and rights.  Other than as set forth in the SEC Documents as
defined herein, there are no shareholders agreements, voting agreements or other similar
agreements with respect to the Common Stock to which the Company is a party.




(j) The Company will use the proceeds from the sale of Stock as described under the heading
“Use of Proceeds” in the Prospectus Supplement.




(k) Except as otherwise disclosed in the reports filed by the Company under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve
months preceding the date hereof (the foregoing materials (together with any materials filed by
the Company under the Exchange Act, whether or not required) being collectively referred to herein
as the “SEC Documents”), since December 31, 2008, (i) there have not been any changes in the
assets, liabilities, financial condition, business prospects or operations of the Company from
that reflected in the financial statements in the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2008 except changes in the ordinary course of business that have
not been, either individually or in the aggregate, materially adverse, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables, accrued expenses
and other liabilities incurred in the ordinary course of business consistent with past practice,
(B) liabilities not required to be reflected in the Company’s financial statements pursuant to
GAAP or required to be disclosed in filings made with the Commission, and (C) other liabilities
that would not, individually or in the aggregate, have a Material Adverse Effect, (iii) the
Company has not materially altered its critical accounting policies, (iv) except for dividends on
the Company’s outstanding preferred stock declared or paid in the ordinary course of business, the
Company has not declared or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its
capital stock, and (v) the Company has not issued any equity securities to any officer, director
or affiliate of the Company, except pursuant to existing Company stock incentive or purchase
plans. The Company does not have pending before the Commission any request for confidential
treatment of information or documents. During the two (2) years prior to the date hereof, the
Company has timely filed all reports, schedules, forms, statements and other documents required to
be filed by it with the Commission pursuant to the reporting requirements of the Exchange Act.




(l) Except as disclosed in the SEC Documents, there is no proceeding, or, to the Company’s
knowledge, inquiry or investigation, before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries that (a) would reasonably be expected
to have a Material Adverse Effect on the Company’s properties or assets or the business of the
Company as currently conducted or (b) would reasonably be expected to impair the ability of the
Company to perform in any material respect its obligations under this Agreement. Neither the
Company nor any director or executive officer thereof is, or within the last five years has been,
the subject of any action involving a claim of violation of or liability under federal or state
securities laws relating to the Company or a claim of breach of fiduciary duty relating to the
Company.  There are no material disagreements presently existing between the principal independent
accounting firm formerly or presently employed by the Company which, if not resolved in the
Company’s favor, would have a Material Adverse Effect. The Company is not in violation of its
certificate of incorporation or bylaws, as amended.




(m)  The Company has taken no action intended to, or which to its knowledge is likely to have
the effect of, terminating the registration of the Common Stock under the Exchange Act or
delisting the Common Stock from the Principal Market, nor has the Company received any
notification that the Commission is contemplating terminating such registration.  The Company has
not, in the twelve months preceding the date hereof, received notice (written or oral) from the
Principal Market to the effect that the Company is not in compliance with the listing or
maintenance requirements of the Principal Market. The Company is in compliance with all such
listing and maintenance requirements. The issuance and sale of the Stock under this Agreement does
not contravene the rules and regulations of the Principal Market, and no approval of the
stockholders of the Company thereunder is required for the Company to issue and deliver to the
Investor the Stock.




(n) The Company is in compliance with applicable requirements of the Sarbanes-Oxley Act of
2002 and applicable rules and regulations promulgated by the Commission thereunder.  The Company
maintains a system of internal accounting controls over financial reporting (as such term is
defined in the Exchange Act) sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability and (iii) access to assets is permitted only in accordance with
management’s general or specific authorization.




(o) The Company has established and maintains disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are effective in all material respects to
ensure that material information relating to the Company, including its subsidiaries, is made
known to its chief executive officer and chief financial officer by others within those entities.
The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and
procedures as of December 31, 2008. The Company presented in its Annual Report on Form 10-K for
the fiscal year ended December 31, 2008 the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their evaluations as of
December 31, 2008. Since December 31, 2008, there have been no material changes in the Company’s
internal controls over financial reporting (as such term is defined in Rule 13a-15 under the
Exchange Act).




(p) Neither the Company, nor any person acting on its behalf, has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under
circumstances that would cause the offering of Stock contemplated by this Agreement to be
integrated with prior offerings by the Company for purposes of (i) the Securities Act in a manner
that would require a registration statement to be filed under the Securities Act in addition to
the Registration Statement or that would cause the offer and sale of the Stock under the
Registration Statement to violate Section 5 of the Securities Act or (ii) the rules and
regulations of the Principal Market in a manner that would cause this offering of the Stock to
require approval of stockholders of the Company for purposes of any applicable stockholder
approval provisions. None of the Company, its subsidiaries, their affiliates and any person
acting on their behalf will take any action or steps referred to in the preceding sentence that
would cause the offering of the Stock to be integrated with other offerings for the purposes, and
in the manner, described above.




(q)  The Company has not taken, nor will it take, directly or indirectly any action designed
to stabilize or manipulate the price of the Common Stock or any security of the Company to
facilitate the sale or resale of any of the Common Stock.




(r) The Company shall, before 8:30 am New York time on the trading day immediately following
the date hereof, issue a press release disclosing all material aspects of the transactions
contemplated hereby. The Company will provide the press release to the Investor for review and
comment prior to issuance of the press release. From and after the filing of the press release
the Investor shall not be in possession of any material, nonpublic information received from the
Company or any of its subsidiaries or any of its respective officers, directors, employees or
agents, that has not been publicly disclosed by the Company. The Company shall not identify the
Investor by name in any press release or public filing, or otherwise publicly disclose the
Investor’s names, without the Investor’s prior written consent, unless required by law or the
rules and regulations of the Commission or any self-regulatory organization which the Company or
its securities are subject.




(s) To the Company’s knowledge, the execution and delivery of this Agreement and the sale of
the Stock contemplated hereby will not impose any restriction on any Investor other than by law or
as set forth in this Agreement, or create in any party (including any current stockholder of the
Company) any rights, under any agreements filed or required to be filed by the Company with the
Commission.




(t) The Company acknowledges and agrees that Investor does not make or has not made any
representations or warranties with respect to the transactions contemplated hereby other than
those specifically set forth in Sections 3 and 4.7 of this Agreement.




(u) The Company acknowledges and agrees that the Investor is acting solely in the capacity of
an arm’s length purchaser with respect to this Agreement and the transactions contemplated
hereby.  The Company further acknowledges that the Investor is not acting as a financial advisor
or fiduciary of the Company (or in any similar capacity with respect to the Company) with respect
to this Agreement and the transactions contemplated hereby and any advice given by the Investor or
any of their respective representatives or agents to the Company in connection with this Agreement
and the transactions contemplated hereby is merely incidental to the Investor’s purchase of the
Stock.  The Company further represents to the Investor that the Company’s decision to enter into
this Agreement has been based on the independent evaluation of the transactions contemplated
hereby by the Company and its representatives.



Section 3. Representations and Warranties of the Investor.  The Investor hereby makes
the following representations, warranties and covenants to the Company:




(a) (i) Such Investor has full right, power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a
valid and binding obligation of such Investor enforceable against such Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights
generally and except as enforceability may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law).




(b) Such Investor represents that it has received (or otherwise had made available to it by
the filing by the Company of an electronic version thereof with the Commission) the Base
Prospectus, the Prospectus Supplement, the Incorporated Documents and the Issuer Free Writing
Prospectus prior to or in connection with its receipt of this Agreement.  Such Investor
acknowledges that, prior to the delivery of this Agreement to the Company, the Investor will
receive certain additional information regarding the offering of the Stock, including pricing
information (the “Offering Information”). The Offering Information may be provided to such
Investor by any means permitted under the Securities Act, including in the Prospectus Supplement,
the Issuer Free Writing Prospectus (delivered to such Investor or made available to it by the
filing of an electronic version thereof with the Commission), or other free writing prospectuses
or oral communications.




(c) Such Investor shall not issue any press release or make any other public announcement
relating to this Agreement unless (i) the content thereof is mutually agreed to by the Company and
such Investor, or (ii) such Investor is advised by its counsel that such press release or public
announcement is required by law.




(d) If such Investor is outside the United States, such Investor will comply with all
applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells
or delivers the Stock or has in its possession or distributes any offering material, in all cases
at its own expense.




(e) Such Investor understands that nothing in this Agreement or any other materials presented
to such Investor in connection with the purchase and sale of the Stock constitutes legal, tax or
investment advice. Such Investor has consulted such legal, tax and investment advisors as such
Investor, in its sole discretion, has deemed necessary or appropriate in connection with such
Investor’s purchase of the Stock.




(f) Such Investor hereby acknowledges that it is not acting as a member of a “group” (as such
term is defined in Rule 13d of the Exchange Act) with any other investor other than funds
affiliated with the Investor, in connection with the offering and sale of the Stock.




(g) The Investor further represents to the Company that the Investor’s decision to enter into
this Agreement has been based on the independent evaluation of the transactions contemplated
hereby by the Investor and its representatives.




(h) The Investor has not taken, nor will it take, directly or indirectly any action designed
to stabilize or manipulate the price of the Common Stock or any security of the Company to
facilitate the sale or resale of any of the Common Stock.




(i) Such Investor represents that, except as set forth below (i) it has had no position,
office or other material relationship within the past three years with the Company or any of its
affiliates, (ii) it is not a FINRA member or an Associated Person (as such terms are defined under
the FINRA Membership and Registration Rules Section 1011) as of the Closing, and (iii) neither
such Investor nor any group of Investors (as identified in a public filing made with the
Commission) of which the Investor is a part in connection with the offering of the Stock,
acquired, or obtained the right to acquire, 20% or more of the Common Stock (or securities
convertible into or exercisable for Common Stock) or the voting power of the Company on a
post-transaction basis.  Exceptions:



None

(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)


 


Section 4. Miscellaneous.



Section 4.1 Successors and Assigns.  Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.



Section 4.2 Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of Delaware, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of Delaware or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of Delaware. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.



Section 4.3 Counterparts; Facsimile. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Facsimile signatures shall be as effective as original signatures.



Section 4.4 Titles and Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or interpreting this
Agreement.



Section 4.5 Notices. Any notice required or permitted hereunder shall be given in
writing and shall be conclusively deemed effectively given upon personal delivery, or five (5) days
after deposit in the United States mail, by registered or certified mail (or airmail, if notice
shall be sent outside the United States), postage prepaid, or two (2) days after delivery to a
nationally known air courier company, addressed (a) if to the Company, to the Company’s address as
set forth below the Company’s name on the signature page of this Agreement, and (b) if to the
Investor, to the Investor’s address as set forth on the signature page of this Agreement, with a
copy (for informational purposes only) to Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New
York, 10022, Telephone: (212) 756-2000, Facsimile: (212) 593-5955, Attn.: Eleazer N. Klein,
Esq., or at such other address as the Company or the Investor may designate by ten (10) days,
advance written notice to the other parties hereto.



Section 4.6 Fees. The Company covenants and agrees with the Investor that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the
Company’s counsel and accountants in connection with the registration of the Shares under the
Securities Act and all other expenses in connection with the preparation, printing and filing of
the Registration Statement, the Base Prospectus, Prospectus Supplement, any Issuer Free Writing
Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof
to the Investor; (ii) the cost of printing or producing this Agreement, closing documents
(including any compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Stock; (iii) all expenses in connection with the qualification
of the Stock for offering and sale under state securities laws; (iv) any filing fees incident to
any required review by Financial Industry Regulatory Authority, Inc. of the terms of the sale of
the Stock; (v) all fees and expenses in connection with listing the Stock on the Principal Market;
(vi) the cost of preparing the Stock; (vii) the costs and charges of any transfer agent or
registrar or any dividend distribution agent; and (viii) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise specifically provided for in
this Section. The Company shall be responsible for the payment of any placement agent’s fees,
financial advisory fees, or broker’s commissions relating to or arising out of the transactions
contemplated hereby. The Company shall pay, and hold the Investor harmless against, any liability,
loss or expense (including, without limitation, reasonable attorney’s fees and out-of-pocket
expenses) arising in connection with any claim relating to any such payment. The Investor will pay
all of its own costs and expenses, including the fees of its counsel.



Section 4.7 Indemnification. Subject to the provisions of this Section 4.7, the
Company will indemnify and hold the Investor and its directors, officers, stockholders, partners,
managers, members, employees and agents (each, an “Investor Party”) harmless from any and all
losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and attorneys’ fees and costs of investigation,
that any such Investor Party may suffer or incur (the “Indemnified Liabilities”) as a result of or
relating to any breach of any of the representations, warranties, covenants or agreements made by
the Company in this Agreement (which shall survive the Closing).  The Company shall not be liable
to any Investor Party under this provision in respect of any Indemnified Liability if (and then
only to the extent) such liability arises out of any misrepresentation by the Investor in Section 3
of this Agreement or actions taken by such Investor Party in violation or contravention of this
Agreement.  To the extent that the foregoing undertaking by the Company may be unenforceable for
any reason, the Company shall make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law. If any action shall be
brought against any Investor Party in respect of which indemnity may be sought pursuant to this
Agreement, such Investor Party shall promptly notify the Company in writing, and the Company shall
have the right to assume the defense thereof with counsel of its own choosing.  Any Investor Party
shall have the right to employ separate counsel in any such action and participate in the defense
thereof (it being understood, however, that the Company shall not be liable for the expenses of
more than one separate counsel (other than local counsel)), but the fees and expenses of such
counsel shall be at the expense of such Investor Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the Company has failed
after a reasonable period of time to assume such defense and to employ counsel or (iii) in such
action there is, in the reasonable opinion of such separate counsel, a material conflict on any
material issue between the position of the Company and the position of such Investor Party.
Notwithstanding the foregoing, the Company is not liable under this Section 4.7 for any
information, if any, contained in or omitted from the Issuer Free Writing Prospectus, the
Prospectus Supplement or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf of any Investor
specifically for use in the Registration Statement or the Prospectus Supplement.



Section 4.8 Conditions.




(a) The Company’s obligation to issue and sell the Stock to the Investor shall be subject to:
(i) the receipt by the Company of the purchase price for the Stock being purchased hereunder and
(ii) the accuracy of the representations and warranties made by the Investor and the fulfillment
of those undertakings of the Investor to be fulfilled prior to the Closing.




(b) The Investor’s obligation to purchase the Stock will be subject to (i) the accuracy of
the representations and warranties made by the Company and the fulfillment of those undertakings
of the Company to be fulfilled prior to the Closing, and (ii) no stop order or suspension of
trading shall have been imposed by the Principal Market, the Commission or any other governmental
regulatory body with respect to public trading in the Common Stock nor shall suspension by the
Commission, the Principal Market or any other governmental regulatory body have been threatened.



Section 4.9 Survival.  The respective representations, warranties, indemnities,
covenants and agreements of the Company and the Investor set forth in or made pursuant to this
Agreement (a) will remain operative and in full force and effect, regardless of any
(i) investigation, or statement as to the results thereof, made by or on behalf of the Investor,
the Company or any of their respective representatives, officers or directors or any controlling
person, as the case may be, or (ii) acceptance of the Stock and payment for it hereunder and
(b) will survive delivery of and payment for the Stock sold hereunder and any termination of this
Agreement.



Section 4.10 Amendments and Waivers.  Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written consent of the Company
and the Investor.



Section 4.11 Severability.  If any provision of this Agreement is prohibited by law or
otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the
provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to
apply to the broadest extent that it would be valid and enforceable, and the invalidity or
unenforceability of such provision shall not affect the validity of the remaining provisions of
this Agreement so long as this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not substantially
impair the respective expectations or reciprocal obligations of the parties or the practical
realization of the benefits that would otherwise be conferred upon the parties. The parties will
endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable
provision(s) with a valid provision(s), the effect of which comes as close as possible to that of
the prohibited, invalid or unenforceable provision(s).



Section 4.12 Entire Agreement.  This Agreement and the other documents referred to
herein constitute the entire agreement among the parties and no party shall be liable or bound to
any other party in any manner by any warranties, representations, or covenants except as
specifically set forth herein or therein.

 


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1

 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.

 


	 	 	 	 	 	 	 
	 	 	KANSAS CITY SOUTHERN
	 	 	 
	 	 	 
	 	 	By:	 	 /s/ Paul J. Weyandt

	 	 	 	 	 

	 	 	 	 	Name: Paul J. Weyandt

	 	 	 	 	Title: Senior Vice President – Finance and
Treasurer

	 	 	 
	 
	 	 
	 	Address:

	 	427 W. 12th Street

Kansas City, MO 64105
	 	 	 	 	 






[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGE FOR INVESTOR FOLLOWS]


 


2

 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.

 


	 	 	 
	Name of Investor:
	 	 UBS O’Connor LLC FBO

	 	 	O’Connor Capital Structure Opportunity

Master Limited

O’Connor Global Fundamental Market

Neutral Long/Short Master Limited

O’Connor Global Multi-Strategy Alpha

Master Limited

O’Connor Fundamental Long/Short Equity

Master Limited

	 	 	 

	 
	 	 

	Signature of Authorized Signatory of Investor:
	 	 /s/ Mark Melchiorre & George Halaby

	 	 	 

	 
	 	 

	Name of Authorized Signatory:
	 	 Mark Melchiorre & George Halaby

	 	 	 

	 
	 	 

	Title of Authorized Signatory:
	 	 c/o jeff.richmond@ubs.com

	 	 	 

	 
	 	 

	Email Address of Investor:
	 	 c/o jeff.richmond@ubs.com

	 	 	 

	 
	 	 

	Address for Notice of Investor:
	 	 UBS O’Connor LLC  

	 
	 	 Attn: Jeff Richmond

One N. Wacker Drive, 32nd Floor

Chicago, IL 60606

	 	 	 

	 
	 	


	 
	 	 

	Tax ID No.:
	 	 N/A

	 	 	 

	 
	 	 

	Contact Name:
	 	 Jeff Richmond

	 	 	 

	 
	 	 

	Telephone No.:
	 	 312-525-5839

	 	 	 

	 
	 	 

	Name of DTC Participant (broker-dealer at

which the account or accounts to be credited

with the shares are maintained), if

applicable:
	 	 

Per attached schedule






	 	 	 

	 
	 	 

	DTC Participant Number, if applicable:
	 	 Per attached schedule

	 	 	 

	 
	 	 

	Name of Account at DTC Participant being

credited with the shares, if applicable:
	 	 Per attached schedule




	 	 	 

	 
	 	 

	Account Number at DTC Participant being

credited with the shares, if applicable:
	 	 Per attached schedule




	 	 	 

	 
	 	 

Per attached schedule

	Contact Name at Broker:
	 	 

	 	 	 

	 
	 	 Per attached schedule

	Broker’s Telephone Number:
	 	 

	 	 	 

	 
	 	 $22,506,160 (breakdown attached)

	Subscription Amount:
	 	 

	 	 	 

	 
	 	 1,125,308 (breakdown attached)

	Shares:
	 	 

	 	 	 







[INVESTOR SIGNATURE PAGE]




Schedule A




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	DTC Participant	 	 	 	 
	Date of Sale	 	Settlement Date	 	Investor	 	Purchasing Bank	 	Number	 	Contact	 	# of Shares to DWAC
	July 31, 2009
	 	August 3, 2009
	 	UBS O’Connor LLC

FBO O’Connor

Capital Structure

Opportunity Master

Limited

	 	Credit Suisse







	 	355







	 	Keith Cadeiux

Tel: 312-525-0101







	 	462,808









	 
	 	 
	 	 

	 	 
	 	 
	 	 
	 	 
	July 31, 2009
	 	August 3, 2009
	 	UBS O’Connor LLC

FBO O’Connor Global

Fundamental Market

Neutral Long/Short

Master Limited

	 	JPMorgan







	 	352







	 	Michael C. Murphy

Tel: 212-272-5074







	 	265,588









	 
	 	 
	 	 

	 	 
	 	 
	 	 
	 	 
	July 31, 2009
	 	August 3, 2009
	 	UBS O’Connor LLC

FBO O’Connor

Multi-Strategy

Alpha Master

Limited

	 	Credit Suisse







	 	355







	 	Keith Cadeiux

312-525-0101







	 	366,388









	 
	 	 
	 	 

	 	 
	 	 
	 	 
	 	 
	July 31, 2009
	 	August 3, 2009
	 	UBS O’Connor LLC

FBO O’Connor

Fundamental

Long/Short Equity

Master Limited

	 	Goldman Sachs







	 	005







	 	Stephen Granstrand

Tel: 212-357-7171







	 	30,524









	 
	 	 
	 	 

	 	 
	 	 
	 	 
	 	 







3