-----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, NQv6vVRs4L8DZiozz0fj9e4Zy1Z/kpHX8PF2sPxxKSKw8UWL4RAoFRWtRIBMcWuY WVjKXRv9uOMovk1WRfJBbw== 0000950134-97-005370.txt : 19970718 0000950134-97-005370.hdr.sgml : 19970718 ACCESSION NUMBER: 0000950134-97-005370 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970717 EFFECTIVENESS DATE: 19970717 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARKANSAS BEST CORP /DE/ CENTRAL INDEX KEY: 0000894405 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 710673405 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-31475 FILM NUMBER: 97641901 BUSINESS ADDRESS: STREET 1: 3801 OLD GREENWOOD RD CITY: FORT SMITH STATE: AR ZIP: 72903 BUSINESS PHONE: 5017856000 MAIL ADDRESS: STREET 1: P O BOX 48 CITY: FORT SMITH STATE: AR ZIP: 72902 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on July 17, 1997. Registration No. 333-____________ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ARKANSAS BEST CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 71-0673405 - ------------------------------- ------------------- (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 3801 OLD GREENWOOD ROAD FORT SMITH, ARKANSAS 72903 (501) 785-6000 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) -------------------- ARKANSAS BEST CORPORATION STOCK OPTION PLAN (Full title of the Plan) -------------------- RICHARD F. COOPER SECRETARY 3801 OLD GREENWOOD ROAD FORT SMITH, ARKANSAS 72903 (501) 785-6000 (Name, address, and telephone number, including area code, of agent for service) -------------------- CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------- TITLE OF EACH AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE(2) - --------------------------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value 1,000,000 $4.44 - 9.9375 $6,151,210.75 $1,863.82 Common Stock 1,000,000 N/A N/A N/A Rights - ---------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration statement also covers an indeterminate additional amount of shares of Common Stock to be offered or sold pursuant to the antidilution provisions of the Stock Option Plan. (2) Calculated based on 939,300 shares subject to options issued under the Stock Option Plan at exercise prices ranging from $4.44 to $6.375 per share, and the remaining 41,700 shares at a price per share calculated on the basis of the closing sales price per share, as reported on NASDAQ on July 16, 1997, of $9.9375, all in accordance with Rule 457(h) promulgated under the Securities Act of 1933, as amended. 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION. Not required to be filed with this Registration Statement. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Not required to be filed with this Registration Statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The following documents, which have been previously filed with the Securities and Exchange Commission (the "Commission") by Arkansas Best Corporation (the "Company"), are incorporated by reference in this Registration Statement: (a) Annual Report on Form 10-K for the year ended December 31, 1996, which contains audited consolidated financial statements and schedule of the Company for the three fiscal years ended December 31, 1996 (the "1996 Form 10-K"). (b) All reports filed by the Company pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December 31, 1996. (c) The description of the Company's common stock, par value $.01 per share (the "Common Stock"), contained in the Company's registration statement on Form 8-A, filed with the Commission on March 20, 1992, as amended by Form 8 dated April 23, 1992, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement, which indicate that all of the shares of Common Stock offered have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Page 2 3 Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company's Restated Certificate of Incorporation provides that no director of the Company will be personally liable to the Company or any of its stockholders for monetary damages arising from the director's breach of fiduciary duty as a director, with certain limited exceptions. Pursuant to the provisions of Section 145 of the Delaware General Corporation Law, every Delaware corporation has the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, against any and all expenses, judgments, fines and amounts paid in settlement and reasonably incurred in connection with such action, suit or proceeding. The power to indemnify applies (a) if such person is successful on the merits or otherwise in the defense of any action, suit or proceeding, or (b) if such person acted in good faith and in a manner he reasonably believed to be in the best interest, or not opposed to the best interest, of the corporation and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense and settlement expenses and not to any satisfaction of a judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication unless the court, in its discretion, believes that in the light of all the circumstances indemnification should apply. To the extent any of the persons referred to in the two immediately preceding paragraphs is successful in the defense of the actions referred to therein, such person is entitled, pursuant to Section 145, to indemnification as described above. Page 3 4 The Company has entered into indemnity agreements with each of its directors. Each such Indemnification Agreement provides for indemnification of directors of the Company to the fullest extent permitted by the Delaware General Corporation Law and additionally permits advancing attorney's fees and all other costs, expenses, obligations, fines and losses, paid or incurred by a director generally in connection with the investigation, defense or other participation in any threatened, pending or completed action, suit or proceeding or any inquiry or investigation thereof, whether conducted by or on behalf of the Company or any other party. If it is later determined that the director is or was not entitled to indemnification under applicable law, the Company is entitled to reimbursement by the director. The Indemnification Agreements further provide that in the event of a change in control of the Company, then with respect to all matters thereafter arising concerning the rights of directors to indemnity payments and expense advances, all determinations regarding excludable claims will be made only by a court of competent jurisdiction or by special independent legal counsel selected by the director and approved by the Company. To the extent that the board of directors or the stockholders of the Company may in the future wish to limit or repeal the ability of the Company to indemnify directors, such repeal or limitation may not be effective as to directors who are currently parties to the Indemnification Agreements, because their rights to full protection are contractually assured by the Indemnification Agreements. It is anticipated that similar contracts may be entered into, from time to time, with future directors of the Company. In addition, the Company's Restated Certificate of Incorporation and Amended and Restated Bylaws provide for indemnification of officers and directors to the fullest extent permitted by the Delaware General Corporation Law. Insofar as indemnification by the Company for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The Exhibits to this Registration Statement are listed in the Index to Exhibits of this Registration Statement, which Index is incorporated herein by reference. ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: Page 4 5 (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; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post- effective amendment shall be deemed to be a new registration statement 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. (b) 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 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) 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. (c) Insofar as indemnification by the registrant for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 6, 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 by the registrant 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 Page 5 6 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. [Remainder of page intentionally left blank] Page 6 7 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement or amendment thereto to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Smith, State of Arkansas, on July 17, 1997. ARKANSAS BEST CORPORATION By: /s/ David E. Loeffler ------------------------------------ David E. Loeffler, Vice President - Chief Financial Officer, Treasurer Page 7 8 POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints David E. Loeffler and Richard F. Cooper, his true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorney-in-fact and agent 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 might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement or amendment thereto has been signed by the following persons in the capacities and on the dates indicated:
Signature Title Date --------- ----- ---- /s/ William A. Marquard Chairman of the Board, Director July 17, 1997 - -------------------------------- William A. Marquard /s/ Robert A. Young, III Director, Chief Executive Officer July 17, 1997 - -------------------------------- and President (Principal Robert A. Young, III Executive Officer) /s/ David E. Loeffler Vice President - Chief Financial July 17, 1997 - -------------------------------- Officer and Treasurer (Principal David E. Loeffler Financial and Accounting Officer) /s/ Frank Edelstein Director July 17, 1997 - -------------------------------- Frank Edelstein /s/ Arthur J. Fritz Director July 17, 1997 - -------------------------------- Arthur J. Fritz /s/ John H. Morris Director July 17, 1997 - -------------------------------- John H. Morris /s/ Alan J. Zakon Director July 17, 1997 - -------------------------------- Alan J. Zakon
Page 8 9 INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBIT DESCRIPTION 4.1 Restated Certificate of Incorporation of the Company, filed as Exhibit 3.1 to the Registration Statement on Form S-1 (No. 33-46483) and incorporated herein by reference. 4.2 Amended and Restated Bylaws of the Company, filed as Exhibit 3.2 to the Registration Statement on Form S-1 (No. 33-46483) and incorporated herein by reference. 4.3 Arkansas Best Corporation Stock Option Plan, filed as Exhibit 10.3 to the Company's Registration Statement on Form S-1 (No. 33-46483) and incorporated herein by reference. 4.4* Amendments to Arkansas Best Corporation Stock Option Plan dated May 10, 1994 and May 9, 1995. 4.5 Stockholders' Rights Plan by and between Arkansas Best Corporation and Harris Trust and Savings Bank, as Rights Agent, dated as of April 23, 1992, filed as Exhibit 10.2 to the Registration Statement on Form S-1 (No. 33-46483) and incorporated herein by reference. 5* Opinion of Hughes & Luce, L.L.P. 23.1 Consent of Hughes & Luce, L.L.P. (contained in Exhibit 5). 23.3* Consent of Ernst & Young LLP 24 Power of Attorney is found on page 8 hereof.
_______________ * Filed herewith. Page 9 EX-4.4 2 AMENDMENT TO STOCK OPTION PLAN 1 EXHIBIT 4.4 AMENDMENT TO THE ARKANSAS BEST CORPORATION STOCK OPTION PLAN The Arkansas Best Corporation Stock Option Plan (the "Plan") is hereby amended as follows: The Plan is hereby amended by deleting Section 4(b) in its entirety and replacing it with the following: Members of the Committee shall be specified by the Board of Directors, and shall consist solely of Disinterested Directors and as such shall not be eligible to receive options to purchase Common Stock pursuant to Section 4(a) of the Plan. On May 12, 1994, and on the first trading day after (i) January 1, 1995, and (ii) each January 1st thereafter, each Disinterested Director serving as a Committee Member shall automatically be granted non-qualified options to purchase 7,500 shares of the Company's Common Stock at an exercise price per share equal to the closing price of the Common Stock on the date of such automatic grant. This Section 4(b) shall not be amended more than once each six months, other than to comport with changes in the Code or the rules promulgated thereunder. IN WITNESS WHEREOF, Arkansas Best Corporation, acting by and through its officers hereunto duly authorized, has executed this Amendment to the Plan, to be effective the 10th day of May, 1994. ARKANSAS BEST CORPORATION By: /s/ Robert A. Young III ---------------------------------------- Robert A. Young III President and Chief Executive Officer 2 AMENDMENT TO THE ARKANSAS BEST CORPORATION STOCK OPTION PLAN The Arkansas Best Corporation Stock Option Plan (the "Plan") is hereby amended as follows: 1. The Plan is hereby amended by replacing the number "1,000,000" with the number "2,000,000" in the first sentence of Section 3. 2. The Plan is hereby amended by adding the following to the end of Section 5: "In connection with the granting of options under this Plan, the aggregate number of shares of Common Stock issuable to any single Optionee shall not exceed the number of shares subject to the Plan referred to in Section 3." IN WITNESS WHEREOF, Arkansas Best Corporation, acting by and through its officers hereunto duly authorized, has executed this Amendment to the Plan, to be effective the 9th day of May, 1995. ARKANSAS BEST CORPORATION By: /s/ Robert A. Young III ---------------------------------------- Robert A. Young III President and Chief Executive Officer EX-5 3 OPINION OF HUGHES & LUCE LLP 1 EXHIBITS 5 AND 23.1 July 17, 1997 Arkansas Best Corporation 3801 Old Greenwood Road Fort Smith, Arkansas 72903 Re: Registration Statement on Form S-8 for the Arkansas Best Corporation Stock Option Plan, as amended on May 10, 1994 and May 9, 1995. Ladies and Gentlemen: We have acted as counsel to Arkansas Best Corporation, a Delaware corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act"), of an additional 1,000,000 shares of the Company's common stock, $.01 par value per share (the "Common Stock"), issuable under the Arkansas Best Corporation Stock Option Plan, originally adopted in March 1992 and amended on May 10, 1994 and May 9, 1995, on May 9, 1995 to add 1,000,000 shares of Common Stock to the plan (the "Option Plan") (the shares issued under the plan are referred to as the "Shares"). The Shares are being registered pursuant to a registration statement on Form S-8 to be filed with the Securities and Exchange Commission on or about July 17, 1997 (the "Registration Statement"). In rendering this opinion, we have examined and relied upon executed originals, counterparts or copies of such documents, records and certificates (including certificates of public officials and officers of the Company) as we considered necessary or appropriate for enabling us to express the opinions set forth herein. In all such examinations, we have assumed the authenticity and completeness of all documents submitted to us as originals and the conformity to originals and completeness of all documents submitted to us as photostatic, conformed, notarized or certified copies. Based on the foregoing, we are of the opinion that the Shares will be, if and when issued and paid for pursuant to the Option Plan, validly issued, fully paid and nonassessable, assuming the Company maintains an adequate number of authorized but unissued shares of Common Stock available for such issuance, and further assuming that the consideration actually received by the Company for the Shares exceeds the par value thereof. We consent to the use of this opinion as an exhibit to the Registration Statement. HUGHES & LUCE, L.L.P. EX-23.3 4 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.3 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8, dated June 17, 1997) pertaining to the Arkansas Best Corporation Stock Option Plan of our report dated January 31, 1997, with respect to the consolidated financial statements and schedule of Arkansas Best Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the Securities and Exchange Commission. Little Rock, Arkansas July 16, 1997 ERNST & YOUNG LLP -----END PRIVACY-ENHANCED MESSAGE-----