-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AU4yWujxBzecxK/qAQkuvZN0WLsc1xTdzB5ZGszlseT1MyIfasZCCInTA4C8dwxh 3a8pGQLWEulJFIBJdy05yQ== 0000023675-01-000001.txt : 20010131 0000023675-01-000001.hdr.sgml : 20010131 ACCESSION NUMBER: 0000023675-01-000001 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010130 EFFECTIVENESS DATE: 20010130 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CNF TRANSPORTATION INC CENTRAL INDEX KEY: 0000023675 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 941444798 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-54558 FILM NUMBER: 1518355 BUSINESS ADDRESS: STREET 1: 3240 HILLVIEW AVE CITY: PALO ALTO STATE: CA ZIP: 94304 BUSINESS PHONE: 6504942900 MAIL ADDRESS: STREET 1: 1717 NW 21ST AVE CITY: PORTLAND STATE: OR ZIP: 97209 FORMER COMPANY: FORMER CONFORMED NAME: CONSOLIDATED FREIGHTWAYS INC DATE OF NAME CHANGE: 19920703 S-8 1 0001.txt As filed with the Securities and Exchange Commission on January 29, 2001 Registration No. 333-_________ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CNF TRANSPORTATION INC. (Exact name of registrant as specified in its charter) DELAWARE 94-1444798 (State of Incorporation) (I.R.S. Employer I.D. No.) 3240 Hillview Avenue Palo Alto, California 94304 (Address of Principal Executive Office Including Zip Code) Eberhard G. H. Schmoller Senior Vice President, General Counsel and Secretary CNF Transportation Inc. 3240 Hillview Avenue Palo Alto, California 94304 (415) 494-2900 (Name, address and telephone number of agent for service) _________________________________________________________________ CNF Transportation Inc. Deferred Compensation Plan for Executives (full title of the plans) _________________________________________________________________ CALCULATION OF REGISTRATION FEE _________________________________________________________________ Title of Each Proposed Proposed Class of Maximum Maximum Securities Amount Offering Aggregate Amount of to Be to be Price per Offering Registration Registered Registered Share Price Fee Common Stock, 200,000(A) (B) (B) $1668.75(C) $0.625 par value Common Stock 200,000(A) (B) (B) $1668.75(C) Units _________________________________________________________________ (A) Plus such indeterminate number of additional shares as may be necessary to adjust the number of shares or units reserved for issuance pursuant to the Plan subject to the Registration Statement as a result of any future stock split, stock dividend or similar adjustment of the outstanding Common Stock. (B) No additional consideration to be received beyond what is received in respect of interests in the Plan, which have been registered pursuant to Registration No. 333-48733 as filed with the Securities and Exchange Commission on March 27, 1998. (C) The registration fee was calculated pursuant to Section 6(b) of the Securities Act and Rule 457 as follows: 0.00025 times $33.375 (the average of the high and low prices of the Common Stock on January 25, 2001) times 200,000. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference. The documents listed in (a) through (c) below are incorporated by reference in this Registration Statement. (a) The Registrant's Annual Report on Form 10- K for the year ended December 31, 1999, filed with the Securities and Exchange Commission ("SEC") pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (b) The description of the Registrant's Common Stock contained in its registration statement filed on Form S-3 with the SEC (File No. 333-26595) under the Securities Act of 1933, as amended (the "Securities Act"). (c) All documents subsequently filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to December 31, 1999, but prior to the filing of a post- effective amendment which indicates that all securities offered have been sold or which de-registers all securities covered hereby then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Item 4. Description of Securities. Common Stock Units are units having at all times a value equal to one whole share of Common Stock that are payable only in shares of Common Stock. Under the terms of the Plan, amounts allocated to a Plan participant's "phantom stock account" will be denominated in Common Stock Units during the period of deferral and may not be transferred out of such account. During the deferral period, a Plan participant's phantom stock account will be credited with dividend equivalents as though the underlying shares of Common Stock were owned by such participant. Dividend equivalents so credited will be converted into additional Common Stock Units. Plan participants will have no voting rights with respect to the shares underlying Common Stock Units until such shares have been distributed. The number of Common Stock Units allocated to a participant's phantom stock account may be adjusted in the event of certain corporate events. At the expiration of the deferral period, a number of shares of Common Stock equal to the number of Common Stock Units in a participant's phantom stock account will be issued to such participant (fractional shares will be paid in cash). Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Officers and Directors. As authorized by Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), the Registrant's Certificate of Incorporation eliminates to the fullest extent permitted by Delaware law the personal liability of its directors to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director. The Registrant's Bylaws provide that each person who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the Registrant or of another enterprise, serving as such at the request of the Registrant, shall be indemnified and held harmless by the Registrant to the fullest extent permitted by the DGCL; provided, however, that except as to actions to enforce indemnification rights, the Registrant shall indemnify any such person seeking indemnification in connection with an action, suit or proceeding (or part thereof) initiated by such person only if the action, suit or proceeding (or part thereof) was authorized by the Board of Directors of the Registrant. When indemnification is authorized by the Registrant's Bylaws, the director, officer, employee or agent shall be indemnified for expenses, liabilities and losses (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred by him or her in connection therewith. The Registrant's Bylaws also provide that expenses incurred by an officer or director (acting in his or her capacity as such) in defending a proceeding shall be paid by the Registrant in advance of final disposition of the proceeding; provided, however, that if required by the DGCL, the officer or director shall deliver to the Registrant an undertaking by the officer or director to repay such expenses if it is ultimately determined that he or she is not entitled to be indemnified by the Registrant. The Registrant's Bylaws also provide that in other circumstances, expenses may be advanced upon such terms and conditions as the Board of Directors deems appropriate. The Registrant's Bylaws further provide that the right to indemnification granted thereunder shall be a contract right for the benefit of the Registrant's directors, officers, employees and agents. The Registrant's Bylaws also authorize actions against the Registrant to enforce the indemnification rights provided by the Bylaws, subject to the Registrant's right to assert a defense in any such action that the claimant has not met the standards of conduct that make it permissible under the DGCL for the Registrant to indemnify the claimant for the amount claimed, and the Registrant shall bear the burden of proving any such a defense. Under Section 145 of the DGCL, a corporation may provide indemnification to directors, officers, employees and agents against judgments, penalties, fines, settlements and reasonable expenses (including attorneys' fees) incurred in the defense or settlement of a derivative action, provided there is a determination by a majority vote of a quorum of disinterested directors, a committee of directors, independent legal counsel, or a majority vote of stockholders that a person seeking indemnification acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and, in the case of a criminal proceeding, with no reasonable cause to believe his or her conduct was unlawful. However, Section 145 also states that no indemnification may be made in derivative actions where such person is adjudged liable to the corporation, unless, and only to the extent, that a court determines upon application that such person is fairly and reasonably entitled to indemnity for such expenses which the court deems proper. Section 145 of the DGCL also permits indemnification of expenses which the court deems proper and provides that indemnification of expenses actually and reasonably incurred shall be provided when the individual being indemnified has successfully defended the action on the merits or otherwise in any action, suit or proceeding. The indemnification rights provided by statute in Delaware are not deemed to be exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement or otherwise. The Registrant's Bylaws also authorize the Registrant to purchase and maintain insurance to protect itself and any person who is or was the director, officer, employee or agent against any liability, expense or loss incurred by or asserted against such persons, whether or not the Registrant would have the power to indemnify any such person against such liability, expense or loss under applicable law or the Registrant's Bylaws. The Registrant presently maintains a directors' and officers' liability insurance policy which insures directors and officers of the Registrant and those of certain of its subsidiaries. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit Description No. of Exhibit 4.1 Article Fourth of the Certificate of Incorporation of the Registrant, as amended, incorporated by reference from Exhibit 4(a) to the Registrant's Form S-3 dated May 6, 1997 5.1 Opinion of Counsel 23.1 Consent of Counsel (included in Exhibit 5.1) 23.2 Consent of Independent Public Accountants 24.1 Powers of Attorney (set forth on the signature pages of this Registration Statement) Item 9. Undertakings. The Registrant hereby undertakes as follows: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement 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. (2) That, for the purposes of determining any liability under the Securities Act, 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) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act, as amended), 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. (5) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described above or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Palo Alto, State of California, on January 29, 2001. CNF TRANSPORTATION INC. By: /s/ Eberhard G. H. Schmoller Eberhard G. H. Schmoller Senior Vice President, General Counsel and Secretary POWER OF ATTORNEY AND ADDITIONAL SIGNATURES Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Each person whose signature appears below constitutes and appoints Eberhard G. H. Schmoller and Gary S. Cullen, and each of them, 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 or all amendments to this Registration Statement, including post-effective amendments, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue thereof. Further, pursuant to the requirements of the Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date /s/ Donald E. Moffitt Chairman of the Board January 29, 2001 Donald E. Moffitt (Director) /s/ Gregory L. Quesnel President, Chief Executive January 29, 2001 Gregory L. Quesnel Officer and Interim Chief Financial Officer (Principal Executive, Principal Financial and Principal Accounting Officer and Director) s/ Robert Alpert Director January 29, 2201 Robert Alpert /s/ Richard A. Clarke Director January 29, 2001 Richard A. Clarke /s/ Margaret G. Gill Director January 29, 2001 Margaret G. Gill /s/ Robert Jaunich II Director January 29, 2001 Robert Jaunich II /s/ W. Keith Kennedy Jr. Director January 29, 2001 W. Keith Kennedy, Jr. /s/ Richard B. Madden Director January 29, 2001 Richard B. Madden /s/ Michael J. Murray Director January 29, 2001 Michael J. Murray /s/ Robert D. Rogers Director January 29, 2001 Robert D. Rogers /s/ William J. Schroeder Director January 29, 2001 William J. Schroeder /s/ Robert P. Wayman Director January 29, 2001 Robert P. Wayman LIST OF EXHIBITS Exhibit Description of Exhibit No. 4.1 Article Fourth of the Certificate of Incorporation of the Registrant, as amended, incorporated by reference from Exhibit 4(a) to the Registrant's Form S-3 dated May 6, 1997. 5.1 Opinion of Counsel 23.1 Consent of Counsel (included in Exhibit 5.1) 23.2 Consent of Independent Public Accountants 24.1 Powers of Attorney (set forth on the signature pages of this Registration Statement) EX-5.1 2 0002.txt EXHIBIT 5.1 January 29, 2001 CNF Transportation Inc. 3240 Hillview Avenue Palo Alto, California 94304 Gentlemen: At your request, I have examined the Registration Statement on Form S-8 executed by you on January 29, 2001 and to be filed with the Securities and Exchange Commission on January 29, 2001 in connection with the registration under the Securities Act of 1933, as amended, of Common Stock and Common Stock Units issuable pursuant to the CNF Transportation Inc. Deferred Compensation Plan for Executives (the "Plan"). As your counsel in connection with the Registration Statement, I have examined the proceedings taken by you in connection with the adoption of the Plan and the authorization of the issuance of shares of Common Stock under the Plan (the "Plan Shares") and such documents as I have deemed necessary to render this opinion. Based upon the foregoing, it is my opinion that the Plan Shares, when issued and outstanding pursuant to the terms of the Plan, will be validly issued, fully paid and nonnassessable shares of Common Stock. I consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, Gary S. Cullen Deputy General Counsel CNF Transportation Inc. EX-23.2 3 0003.txt EXHIBIT 23.2 Consent of Independent Public Accountants As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our reports dated January 28, 2000, included and incorporated by reference in CNF Transportation Inc.'s Form 10-K for the year ended December 31, 1999 and to all references to our Firm included in this Registration Statement. /s/ Arthur Andersen LLP San Francisco, California January 26, 2001 -----END PRIVACY-ENHANCED MESSAGE-----