As filed with the Securities and Exchange Commission on May 3,2000
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)
CNF TRANSPORTATION INC.
1997 EQUITY AND INCENTIVE PLAN
(Full title of the plan)
Eberhard G. H. Schmoller
Senior Vice President and General Counsel
CNF Transportation Inc.
3240 Hillview Avenue
Palo Alto, California 94304
(650) 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 Per Share Price Fee
- ----------- ------------ ---------------- ------------------ ------------
Common Stock, 4,000,000(1) $28.50(2) $114,000,000 $30,096(3)
$0.625 par
value
__________________________________________________________________________
(1) Plus such indeterminate number of additional shares as may be
necessary to adjust the number of shares reserved for issuance
pursuant to the Plans subject to the Registration Statement as a
result of any future stock split, stock dividend or similar
adjustment of the outstanding Common Stock.
(2) Estimated solely for the purpose of calculating the registration
fee in accordance with Rule 457(c)under the Securities Act of
1933, based upon the average of the high and low sales prices for the
Common Stock as reported by the New York Stock Exchange on
May 1, 2000.
(3) In accordance with Rule 457(h), the filing fee is based on the
maximum number of the Registrant's securities issuable under the
Plan that are covered by this Registration Statement.
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, 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"), and the Annual Report on Form 11-K for the year
ended December 31, 1998, of the Registrant's Thrift and Stock
Plan filed with the SEC pursuant to Section 15 of 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. 333-56667) under the Securities Act of 1933,
as amended (the "Securities Act"), and any amendment or report
filed for the purpose of updating such description.
(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. 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 or is deemed to be incorporated by reference modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
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 whom
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 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. 4(b) to the Registrant's registration
statement on Form S-3 dated May 9, 1997, File No. 333-26595.
5.1 Opinion of Counsel
Pursuant to Item 8 of Form S-8, in lieu of furnishing
an opinion of counsel concerning compliance with the
requirements of ERISA or an IRS determination letter
that the Plans are qualified under Section 401 of the
Internal Revenue Code, the Registrant undertakes that
the Registrant will submit or has submitted the
applicable Plans and any amendment thereto to the Internal
Revenue Service (the "IRS")in a timely manner and has made or
will make all changes required by the IRS in order to
qualify such Plans.
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
THE COMPANY. 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 May 1, 2000.
CNF TRANSPORTATION INC.
By: /s/ Eberhard G.H. Schmoller
Eberhard G. H. Schmoller
Senior Vice President and General Counsel
Power of Attorney and Additional Signatures
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 May 1, 2000
Donald E. Moffitt Board (Director)
/s/ Gregory L. Quesnel President and May 1, 2000
Gregory L. Quesnel Chief Executive Officer
(Principal Executive Officer
and Director)
/s/ Chutta Ratnathicam Senior Vice President and May 1, 2000
Chutta Ratnathicam Chief Financial Officer
(Principal Financial and Principal
Accounting Officer)
/s/ Robert Alpert Director May 1, 2000
Robert Alpert
/s/ Richard A. Clarke Director May 1, 2000
Richard A. Clarke
/s/ Margaret G. Gill Director May 1, 2000
Margaret G. Gill
_____________________ Director May 1, 2000
Robert Jaunich II
/s/ W. Keith Kennedy, Jr. Director May 1, 2000
W. Keith Kennedy, Jr.
_____________________ Director May 1, 2000
Richard B. Madden
/s/ Michael J. Murray Director May 1, 2000
Michael J. Murray
/s/ Robert D. Rogers Director May 1, 2000
Robert D. Rogers
/s/ William J. Schroeder Director May 1, 2000
William J. Schroeder
/s/ Robert P. Wayman Director May 1, 2000
Robert P. Wayman
INDEX TO EXHIBITS
Exhibit No. Exhibit
4.1 Article Fourth of the Certificate of
Incorporation of the Registrant, as
amended, incorporated by reference
from Exhibit 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
May 1, 2000
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 May 1, 2000 and to be filed with the
Securities and Exchange Commission on or about
May 3, 2000 in connection with the registration
under the Securities Act of 1933, as amended, of
an aggregate of 4,000,000 shares of your common stock
("Common Stock") issuable pursuant to the CNF Transportation
Inc. 1997 Equity and Incentive 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 Plans 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 applicable 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 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
May 1, 2000
