SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AIRBORNE FREIGHT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 91-0837569
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER ID. NO.)
INCORPORATION OR ORGANIZATION)
</TABLE>
3101 WESTERN AVENUE, P.O. BOX 662
SEATTLE, WASHINGTON 98111
(206) 285-4600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1994 AIRBORNE KEY EMPLOYEE STOCK OPTION
AND STOCK APPRECIATION RIGHTS PLAN
-------------
ROY C. LILJEBECK
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
AIRBORNE FREIGHT CORPORATION
3101 WESTERN AVENUE, P.O. BOX 662
SEATTLE, WASHINGTON 98111
(206) 285-4600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Offering Price Aggregate Amount of
Securities To Amount To Be Per Share or Offering Registration
Be Registered Registered (1) Unit (2) Price (2) Fee
- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Common Stock,
par value
$1.00 per share 1,950,000 Shs. $19 7/16 $37,903,125 $13,070.04
Preferred Stock
Purchase Rights
(3) 1,950,000 Rts. -- -- --
</TABLE>
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(1) Plus (i) an indeterminate number of shares of Common Stock and Preferred
Stock Purchase Rights that may become issuable under the Plan as a result of
the adjustment provisions therein, and (ii) if any interests in the Plan
constitute separate securities required to be registered under the
Securities Act of 1993, an indeterminate amount of such interests in the
Plan.
(2) Computed pursuant to Rule 457 based on the average of the high and low
sales prices reported for the New York Stock Exchange on April 24, 1995.
(3) Preferred Stock Purchase Rights are initially attached to and trade
with shares of Common Stock. Value attributable to such rights, if any,
is reflected in the market price for shares of Common Stock.
PART II
Item 3. Incorporation of Documents by Reference
This registration statement incorporates herein by reference the
following documents which have been filed with the Securities and
Exchange Commission (the "Commission") by Airborne Freight Corporation
(the "Registrant") pursuant to the Securities and Exchange Act of 1934,
as amended (the "Exchange Act"):
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994.
2. All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of 1994.
3. The description of the Common Stock of the Registrant set forth
in the Registration Statement on Form 10 filed with the Commission
pursuant to the Exchange Act and declared effective on June 23,
1975.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
registration statement and prior to the filing of a post-effective
amendment, which indicates that all securities offered have been sold or
which deregisters all securities 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 such documents.
For purposes of this registration statement, any statement
incorporated by reference herein shall be deemed to be modified or
superseded 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 herein modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed thereafter, 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
The opinion of Riddell, Williams, Bullitt & Walkinshaw, 1001 Fourth
Avenue Plaza, Suite 4400, Seattle, Washington 98154, is being filed
herewith as Exhibit 5. J. Vernon Williams, a member of said firm, is an
Assistant Secretary of the Registrant. Certain other members of the firm
serve as officers and/or directors of the Registrant's subsidiaries. As of
April 1, 1995, members of the firm held approximately 12,000 shares of
the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
Article Twelfth of the Restated Certificate of Incorporation of the
Registrant provides:
No director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of his
or her fiduciary duty as a director; provided, however, that this
Article TWELFTH shall not eliminate or limit the liability of a
director to the extent provided by applicable law (i) for any breach
of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of the State of
Delaware (or successor provision), or (iv) for any transaction from
which the director derived an improper personal benefit. No amendment
to or repeal of this Article TWELFTH shall apply to or have any effect
on the liability or alleged liability of any director of the
corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
The Restated Certificate of Incorporation of the Registrant requires
the Registrant to indemnify its officers and directors from all expenses
and liabilities to the full extent permitted by Delaware law, specifically
providing for indemnities to any director, officer or former director or
officer or any person who may have served at the Registrant's request as a
director or officer of another corporation (including any heirs, personal
representatives and estates of any indemnified parties), against all costs
and expenses, including attorneys' fees reasonably incurred by him/her or
imposed on him/her in connection with any action, proceeding or
investigation, whether civil, administrative or criminal (including any
shareholder's action and any other action in which the Registrant is a
party, plaintiff or defendant), in which he/she is or may be a party or is
proceeded against or involved by any reason of any action alleged to have
been taken by him/her or omitted by him/her in such action, proceeding or
investigation, or sums paid in settlement or compromise thereof with the
approval of the Board of Directors. The indemnification provisions do not
apply unless the indemnified party acted in a manner reasonably believed by
him/her to be in or not opposed to the best interests of the corporation,
and do not apply if such person is found (1) to be guilty of willful
misconduct, bad faith or gross negligence in the performance of his/her
duties to the corporation, in a derivative action or one brought by the
corporation, or (2) to be guilty of willful misconduct or bad faith, if
such action or proceeding is brought by a third party.
Expenses incurred in defending such action, proceeding or
investigation may be paid by the Registrant in advance of the final
disposition upon receipt of an undertaking by the indemnified party to
repay such amount if it shall ultimately be determined that he/she is not
entitled to be indemnified by the Registrant.
In addition to the indemnification provision described above, the
Registrant maintains a directors and officers liability policy which
insures its officers and directors against certain liabilities.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following documents are filed as part of this registration
statement or incorporated by reference herein:
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Exhibit Description
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4(a) Rights Agreement, dated as of November 20, 1986, between the Company
and First Jersey National Bank (predecessor to First Interstate Bank,
Ltd. "FIB") as Rights Agent (incorporated herein by reference from
Exhibit 1 to the Company's Registration Statement on Form 8-A, dated
November 28, 1986).
4(b) Certificate of Designation of Series A Participating Cumulative
Preferred Stock Setting Forth the Powers, Preferences, Rights
Qualifications, Limitations and Restrictions of Such Series of
Preferred Stock of the Company(incorporated by reference from
Exhibit 2 to the Company's Registration Statement on Form 8-A,
dated November 28, 1986).
4(c) Form of Right Certificate relating to the Rights Agreement (see
Exhibit 4(a) above, incorporated by reference from Exhibit 3 to
the Company's Registration Statement on Form 8-A, dated
November 28, 1986).
4(d) Letter dated January 5, 1990, from the Company to FIB, appointing
FIB as successor Rights Agent under the Rights Agreement dated as
of November 20, 1986, between the Company and the First Jersey
National Bank (incorporated by reference from Exhibit 4(c) to the
Company's Form 10-K for the year ended December 31, 1989).
4(e) Amendment to Rights Agreement entered into as of January 24, 1990,
between the Company and FIB (incorporated herein by reference from
Exhibit 4(d) to the Company's Form 10-K for the year ended
December 31, 1989).
4(f) Third Amendment to Rights Agreement entered into as of November 6,
1991 between the Company and FIB (incorporated herein by reference
from Exhibit 4(a) to the Company's Form 10-K for the year ended
December 31, 1991).
4(g) Certificate of Designation of Preferences of Preferred Shares of
Airborne Freight Corporation filed with the Office of the Secretary of
State of Delaware on January 26, 1990 (incorporated by reference
from Exhibit 4(a) to the Company's Form 10-K for the year ended
December 31, 1989).
5 Opinion of Riddell, Williams, Bullitt & Walkinshaw.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Riddell, Williams, Bullitt & Walkinshaw (included in its
opinion filed as Exhibit 5 to this registration statement).
99(a) 1994 Airborne Key Employee Stock Option and Stock Appreciation
Rights Plan, (incorporated herein by reference from Exhibit 10(d)
to the Company's Form 10-K for the year ended December 31, 1993).
</TABLE>
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
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 of 1993 (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; and
(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 (i) and (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 this 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 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.
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 that is incorporated by reference in this 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.
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 summarized in Item 6
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 against the Registrant 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
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 Seattle, State of Washington, on
April 28, 1995.
AIRBORNE FREIGHT CORPORATION
By: /s/Robert S. Cline
------------------
Robert S. Cline
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints ROBERT S. CLINE and ROY C.
LILJEBECK, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, 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 all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, 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 any of them, or their 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 has been signed below by the following persons
on behalf of the Registrant in the capacities and on the date indicated.
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<CAPTION>
DATE Title Signature
- ---- ------ ---------
<S> <C> <C>
April 28, 1995 Chairman of the Board & /s/Robert S. Cline
Chief Executive Officer -------------------
(Principal Executive Officer) Robert S. Cline
April 28, 1995 President, /s/Robert G. Brazier
Chief Operating Officer ---------------------
& Director Robert G. Brazier
April 28, 1995 Executive Vice President /s/Roy C. Liljebeck
& Chief Financial Officer -------------------
(Principal Financial Officer) Roy C. Liljebeck
April 28, 1995 Senior Vice President, /s/Lanny H. Michael
Treasurer & Controller --------------------
(Principal Accounting Officer) Lanny H. Michael
April 28, 1995 Director /s/Harold M. Messmer Jr.
-----------------------
Harold M. Messmer Jr.
April 28, 1995 Director /s/Richard M. Rosenberg
-----------------------
Richard M. Rosenberg
April 28, 1995 Director /s/Andrew V. Smith
-------------------
Andrew V. Smith
</TABLE>
INDEX TO EXHIBITS
The following documents are filed as a part of this registration
statement or incorporated by reference herein:
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
4(a) Rights Agreement, dated as of November 20, 1986, between the Company
and First Jersey National Bank (predecessor to First Interstate Bank,
Ltd. "FIB") as Rights Agent (incorporated herein by reference from
Exhibit 1 to the Company's Registration Statement on Form 8-A, dated
November 28, 1986).
4(b) Certificate of Designation of Series A Participating Cumulative
Preferred Stock Setting Forth the Powers, Preferences, Rights
Qualifications, Limitations and Restrictions of Such Series of
Preferred Stock of the Company(incorporated by reference from
Exhibit 2 to the Company's Registration Statement on Form 8-A,
dated November 28, 1986).
4(c) Form of Right Certificate relating to the Rights Agreement (see
Exhibit 4(a) above, incorporated by reference from Exhibit 3 to
the Company's Registration Statement on Form 8-A, dated
November 28, 1986).
4(d) Letter dated January 5, 1990, from the Company to FIB, appointing
FIB as successor Rights Agent under the Rights Agreement dated as
of November 20, 1986, between the Company and the First Jersey
National Bank (incorporated by reference from Exhibit 4(c) to the
Company's Form 10-K for the year ended December 31, 1989).
4(e) Amendment to Rights Agreement entered into as of January 24, 1990,
between the Company and FIB (incorporated herein by reference from
Exhibit 4(d) to the Company's Form 10-K for the year ended
December 31, 1989).
4(f) Third Amendment to Rights Agreement entered into as of November 6,
1991 between the Company and FIB (incorporated herein by reference
from Exhibit 4(a) to the Company's Form 10-K for the year ended
December 31, 1991).
4(g) Certificate of Designation of Preferences of Preferred Shares of
Airborne freight Corporation filed with the Office of the Secretary
of State of Delaware on January 26, 1990 (incorporated by reference
from Exhibit 4(a) to the Company's Form 10-K for the year ended
December 31, 1989).
5 Opinion of Riddell, Williams, Bullitt & Walkinshaw.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Riddell, Williams, Bullitt & Walkinshaw (included in its
opinion filed as Exhibit 5 to this registration statement).
99(a) 1994 Airborne Key Employee Stock Option and Stock Appreciation
Rights Plan, (incorporated herein by reference from Exhibit 10(d)
to the Company's Form 10-K for the year ended December 31, 1993).
</TABLE>
Exhibit 5
April 28, 1995
Airborne Freight Corporation
3101 Western Avenue
Seattle, Washington 98111
Re: 1,950,000 Shares of Common Stock ($1.00 par value) of
Airborne Freight Corporation ("Airborne")
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of
a Registration Statement on Form S-8 (the "Registration Statement") under
the Securities Act of 1933, as amended (the "Act"), which you are filing
with the Securities and Exchange Commission with respect to 1,950,000
shares of Common Stock, $1.00 par value (the "Shares"), which may be issued
pursuant to the exercise of options and stock appreciation rights ("SARs")
granted or to be granted under the 1994 Airborne Key Employee Stock Option
and Stock Appreciation Rights Plan (the "Plan"). We have examined the
Registration Statement and such other documents and records as we have
deemed relevant and necessary for the purpose of this opinion.
Based upon and subject to the foregoing, we are of the opinion that
the Shares that will be issued pursuant to the Plan will, upon due
execution by Airborne and the registration by its registrars of the Shares
and issuance thereof by Airborne and receipt by Airborne of any
consideration required therefor under the terms of the Plan, be validly
issued, fully paid and nonassessable.
We note that a member of our firm is an Assistant Secretary of the
Company, that certain other members of our firm serve as officers and/or
directors of certain of the Company's subsidiaries, and that, as of
April 1, 1995, certain members of our firm were the beneficial owners of an
aggregate of approximately 12,000 shares of the Common Stock of the
Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of
the Act.
Very truly yours,
RIDDELL, WILLIAMS, BULLITT & WALKINSHAW
By: /s/Frank C. Woodruff
-----------------------------
Frank C. Woodruff
EXHIBIT 23 (a)
INDEPENDENT AUDITORS' CONSENT
Board of Directors
Airborne Freight Corporation
Seattle, Washington
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of Airborne Freight Corporation relating to 1,950,000 shares of
common stock and 1,950,000 preferred stock purchase rights issuable under
the 1994 Airborne Key Employee Stock Option and Stock Appreciation Rights
Plan of our report, dated February 10, 1995, on the consolidated financial
statements of Airborne Freight Corporation and subsidiaries appearing on
page 16 of the Company's 1994 Annual Report to Shareholders and
incorporated by reference in the Company's Annual Report on Form 10-K for
the year ended December 31, 1994. We also consent to the incorporation of
our report dated March 27, 1995, on the schedule to such consolidated
financial statements contained in such Annual Report on Form 10-K.
/s/Deloitte & Touche LLP
- ------------------------
DELOITTE & TOUCHE LLP
Seattle, Washington
April 27, 1995
