As filed with the Securities and Exchange Commission
on March 26, 1998
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.
DEFERRED COMPENSATION PLAN FOR EXECUTIVES
DEFERRED COMPENSATION PLAN FOR DIRECTORS
(Full title of the plans)
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 Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
registered registered per Share Offering Fee
Price
- ------------ ------------ -------------- ----------- ----------
Deferred
Compensation
Obligations $20,000,000 N/A $20,000,000 $5,900
_________________________________________________________________
(1)The registration fee has been calculated pursuant to
Section 6(b) of the Securities Act as follows: .000295
multiplied by the Proposed Maximum Aggregate Offering Price
of the securities registered hereby.
PAGE 1
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, 1997, 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, 1997, 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.
The securities registered hereby are deferred compensation
obligations of the Registrant under the Registrant's Deferred
Compensation Plan for Executives and Deferred Compensation Plan
for Directors (the "Plans"). These securities represent the
contractual obligation of the Registrant to pay or distribute
when due to participants in the Plans cash with respect to
amounts deferred in accordance with the terms of the Plans. The
right of each participant in the Plans is that of a general,
unsecured creditor of the Registrant. A participant's interest
under the Plans may not be sold, assigned, transferred, pledged
or otherwise encumbered.
PAGE 2
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.
PAGE 3
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.
PAGE 4
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 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.
PAGE 5
(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 March 26, 1998.
CNF TRANSPORTATION INC.
By: /s/Eberhard G.H. Schmoller
Eberhard G. H. Schmoller
Senior Vice President, General Counsel
and Secretary
PAGE 6
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
Donald E. Moffitt Chairman of the Board March 26, 1998
and Chief Executive
Officer
(Principal Executive
Officer and Director)
/s/ Gregory L. Quesnel President and Chief March 26, 1998
Gregory L. Quesnel Operating Officer
(Principal Executive
Officer)
/s/ Sanchayan Ratnathicam
Sanchayan Ratnathicam Senior Vice President March 26, 1998
and Chief Financial
Officer
(Principal Financial
and Principal Accounting
Officer)
PAGE 7
/s/ Robert Alpert Director March 26, 1998
Robert Alpert
/s/ Earl F. Cheit Director March 26, 1998
Earl F. Cheit
/s/ Richard A. Clarke Director March 26, 1998
Richard A. Clarke
/s/ Margaret G. Gill Director March 26, 1998
Margaret G. Gill
/s/ Robert Jaunich II Director March 26, 1998
Robert Jaunich II
/s/ W. Keith Kennedy, Jr.Director March 26, 1998
W. Keith Kennedy, Jr.
/s/ Richard B. Madden Director March 26, 1998
Richard B. Madden
/s/ Michael J. Murray Director March 26, 1998
Michael J. Murray
/s/ Robert D. Rogers Director March 26, 1998
Robert D. Rogers
/s/ William J. Schroeder Director March 26, 1998
William J. Schroeder
/s/ Robert P. Wayman Director March 26, 1998
Robert P. Wayman
PAGE 8
INDEX TO EXHIBITS
Exhibit No. Exhibit Page
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. N/A
5.1 Opinion of Counsel 9
23.1 Consent of Counsel (included in Exhibit 5.1) 9
23.2 Consent of Independent Public Accountants 10
24.1 Powers of Attorney (set forth on the
signature pages of this Registration
Statement) 6
PAGE 9
Exhibit 5.1
March 26, 1998
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 March 26, 1998 and to be filed with
the Securities and Exchange Commission on March 26, 1998 in
connection with the registration under the Securities Act of
1933, as amended, of deferred compensation obligations issuable
pursuant to the CNF Transportation Inc. Deferred Compensation
Plan for Executives and the CNF Transportation Inc. Deferred
Compensation Plan for Directors (the "Plans").
As your counsel in connection with the Registration Statement, I
have examined the proceedings taken by you in connection with the
adoption of the Plans and such documents as I have deemed
necessary to render this opinion.
Based upon the foregoing, it is my opinion that:
1.The deferred compensation obligations have been duly
authorized by all requisite action on the part of the
Company and, when issued in accordance with the terms and
conditions of the Plans, will be legally and validly issued
and will represent the binding obligation of the Company to
make payments of cash to the holders thereof in accordance
with the terms and conditions of the Plans; and
PAGE 10
2.The Deferred Compensation Plan for Executives is intended
to qualify as an unfunded plan maintained by the Company
primarily for the purpose of providing deferred compensation
for a select group of management or highly compensated
employees of the Company. Assuming such qualification, that
Plan is exempt from the participation and vesting, funding,
and fiduciary responsibility requirements of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), and the provisions of the Plan have been drafted
to comply with this exemption. The Deferred Compensation
Plan for Directors is limited to non-employee directors of
the Company and, as such, is not an employee benefit plan
subject to ERISA.
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.
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 23, 1998, included and incorporated by
reference in CNF Transportation Inc.'s Form 10-K for the year
ended December 31, 1997 and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
San Francisco, California
March 23, 1998
