As filed with the Securities and Exchange Commission on June 30, 1997
Registration No. 333-_________
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)
CNF TRANSPORTATION INC.
1997 EQUITY AND INCENTIVE PLAN
(Full title of the plan)
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)
________________________________________________________________________
CALCULATION OF REGISTRATION FEE
________________________________________________________________________
Title of
Securities Proposed Maximum Proposed Maximum Amount of
to Be Amount to be Offering Price Aggregate Offering Registration
Registered Registered(1) per Share (2) Price (2) Fee (3)
- ---------- ------------ ---------------- ------------------ ------------
Common Stock, 2,200,000 $35.00 $77,000,000 $23,333.34
$0.625 par
value
________________________________________________________________________
(1) Plus such indeterminate number of additional shares as may be
issuable pursuant to the antidilution provisions of the CNF
Transportation Inc. 1997 Equity and Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee
in accordance with Rules 457(h) and 457(c) under the Securities Act
of 1933 and based upon $35.00 per share, the average of the high and
low prices of the Common Stock on the New York Stock Exchange on June
26, 1997.
(3) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act as follows: one-thirty-third (1/33) of one percent
of the Proposed Maximum Aggregate Offering Price of the shares
registered hereby.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The documents listed in (a) through (d) 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, 1996, 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 Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997, filed with the SEC pursuant to Section 13
of the Exchange Act.
(c) 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").
(d) 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, 1996, 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 6. Indemnification of Directors and Officers.
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 state 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 8. Exhibits.
Exhibit No. Description
4.1 Article Fourth of the Certificate of Incorporation of the
Registrant, as amended, incorporated by reference from Exhibit
No. 3.1 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994.
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 June 30, 1997.
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 Capacity Date
/s/ Donald E. Moffitt Chairman of the Board, President June 30, 1997
Donald E. Moffitt and Chief Executive Officer
(Principal Executive Officer
and Director)
/s/ Gregory L. Quesnel Executive Vice President and June 30, 1997
Gregory L. Quesnel Chief Financial Officer
(Principal Financial and Principal
Accounting Officer)
Director June 30, 1997
Robert Alpert
/s/ Earl F. Cheit Director June 30, 1997
Earl F. Cheit
/s/ Richard A. Clarke Director June 30, 1997
Richard A. Clarke
/s/ Margaret G. Gill Director June 30, 1997
Margaret G. Gill
/s/ Robert Jaunich II Director June 30, 1997
Robert Jaunich II
Director June 30, 1997
W. Keith Kennedy, Jr.
/s/ Richard B. Madden Director June 30, 1997
Richard B. Madden
/s/ Michael J. Murray Director June 30, 1997
Michael J. Murray
/s/ Robert D. Rogers Director June 30, 1997
Robert D. Rogers
/s/ William J. Schroeder Director June 30, 1997
William J. Schroeder
/s/ Robert P. Wayman Director June 30, 1997
Robert P. Wayman
INDEX TO EXHIBITS
Sequentially
Exhibit No. Exhibit Numbered Page
4.1 Article Fourth of the Certificate of
Incorporation of the Registrant, as
amended, incorporated by reference
from Exhibit No. 3.1 to the Registrant's
Annual Report on Form 10-K for the
fiscal year ended December 31, 1994.
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)
Exhibit 5.1
June 30, 1997
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 June 30, 1997 and to be filed with the Securities
and Exchange Commission on June 30, 1997 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate
of 2,200,000 shares of your common stock ("Common Stock") issuable pursuant
to the CNF Transportation Inc. 1997 Equity and Incentive Plan (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 nonassessable shares of Common Stock.
I consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Gary S. Cullen
Gary S. Cullen
Deputy General Counsel
CNF Transportation Inc.
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 24, 1997, included and incorporated by reference in CNF
Transportation Inc.'s Form 10-K for the year ended December 31, 1996 and to
all references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
San Francisco, California
June 30, 1997
