Filed by Canadian National Railway Company
Pursuant to Rule 425 under the Securities Act of 1933
and deemed filed pursuant to Rule 14a-12
under the Securities Exchange Act of 1934
Subject Company: Kansas City Southern
Commission File No.: 001-04717
Date: June 10, 2021
On
June 10, 2021, Canadian National Railway Company (CN) and Kansas City Southern (KCS) issued the following news release.
North Americas Railroad
NEWS RELEASE
FORMER STB
COMMISSIONER AND VICE-CHAIRMAN, WILLIAM CLYBURN, JR., BELIEVES CN VOTING TRUST SHOULD BE APPROVED
MONTREAL and KANSAS CITY, Mo.,
June 10, 2021 CN (TSX: CNR, NYSE: CNI) and Kansas City Southern (NYSE: KSU) (KCS) today announced that the Hon. William Clyburn, Jr., a former Commissioner and Vice-Chairman of the U.S. Surface
Transportation Board (STB) has written an op-ed, which was published by Railway Age. In the op-ed, Clyburn states he believes the CN voting trust
addresses unlawful control and the public interest under the new rules, and that as such, the voting trust should be approved. The full text of the op-ed can be found below:
CN Voting Trust Clears Tests Under STB New Merger Rules: Should Be Approved
Written by William Clyburn, Jr.
Having been one of the three Surface Transportation Board (STB) Members who voted on the 2001 Major Merger Rules, it seems clear to me that the
CN voting trust satisfies the new rules requirements addressing unlawful control and the public interest when deciding to approve or reject a voting trust. As such, it should be approved so that the Board and the public may
move forward to consider the merits of the proposed transaction.
In adopting the 2001 new merger rules with respect to voting trusts, the
STB voting trust regulation focused on the impending control application and did not create a new test to pre-judge the public interest merits of the entire proposed transaction before
approving a voting trust. We were looking at the public interest factors that we believed were relevant to voting trust approval, not approval of the merger itself.
In reviewing voting trusts, we were focused on two factors: (1) would the trust insulate the target company from unlawful control by the
acquiring company during the regulatory review process; and (2) would the acquiring company and target company remain financially sound so as to not jeopardize either railroad in the event the transaction was eventually denied. The new rules
were designed to require applicants to formally meet these tests before the Board would approve the use of a voting trust.