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As filed with the Securities and Exchange Commission on December 29, 2000
Registration No. 33-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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
(Address of principal executive offices) (Zip Code)
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ARKANSAS BEST CORPORATION
NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
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Richard F. Cooper Copy to:
Secretary Riva T. Johnson, Esq.
Arkansas Best Corporation Jenkens & Gilchrist,
3801 Old Greenwood Road A Professional Corporation
Fort Smith, Arkansas 72903 1445 Ross Avenue, Suite 3200
(501) 785-6000 Dallas, Texas 75202
(Name, address and telephone number
including area code of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER SHARE(3)(4) OFFERING PRICE(3)(4) FEE(4)
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share 1,000,000 shares $15.981 $15,981,000 $3,995
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(1) The securities to be registered consist of 1,000,000 shares
reserved for issuance under the Arkansas Best Corporation
Nonqualified Stock Option Plan.
(2) Pursuant to Rule 416, this Registration Statement is deemed to
include additional shares of common stock issuable under the
terms of the Plan to prevent dilution resulting from any
further stock split, stock dividend or similar transaction.
(3) Estimated solely for the purpose of calculating the
registration fee.
(4) Calculated pursuant to Rule 457(c) and (h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 of the Securities Act of 1933, as amended, and the Note
to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant and the Arkansas Best Corporation Nonqualified Stock
Option Plan (the "Plan") hereby incorporate by reference in this registration
statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999;
(2) the registrant's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2000;
(3) the registrant's Quarterly Report on Form 10-Q for
the quarter ended June 30, 2000;
(4) the registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2000;
(5) the registrant's Current Report on Form 8-K filed
with the Commission on September 22, 2000; and
(6) the description of the registrant's Common Stock and
Common Stock Rights as set forth in the registrant's
Form 8-A Registration Statement filed with the
Commission on March 20, 1992, including any amendment
or report filed for the purpose of updating such
description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this registration
statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold at the time of such amendment.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation's Restated Certificate of Incorporation provides that
no director of the Corporation will be personally liable to the Corporation 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.
The Corporation has entered into indemnity agreements with each of its
directors. Each such Indemnification Agreement provides for indemnification of
directors of the Corporation to the fullest extent permitted by the Delaware
General Corporation Law and additionally permits advancing attorney's fees and
all other costs, expenses, obligations, 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 Corporation or
any other party. If it is later determined that the director is or was not
entitled to indemnification under applicable law or the terms of the
Indemnification Agreement, the Corporation is entitled to reimbursement by the
director.
The Indemnification Agreements further provide that in the event of a
change in control of the Corporation, 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 Corporation.
The Corporation has also agreed to provide its directors with
directors' and officers' liability insurance for so long as the directors may
continue to serve as directors of the Corporation. However, if the Board of
Directors determines that such insurance is not reasonably available, the
Corporation shall not have such an obligation.
To the extent that the board of directors or the stockholders of the
Corporation may in the future wish to limit or repeal the ability of the
Corporation 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 Corporation.
In addition, the Corporation'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 Corporation for liabilities arising
under the Securities Act of 1933, as amended (the "Securities Act"), may be
permitted to directors, officers or persons controlling the Corporation
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pursuant to the foregoing provisions, the Corporation 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.
None.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
4.1 Arkansas Best Corporation Nonqualified Stock Option Plan, as
amended.
4.2 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.
4.3 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.
5.1 Opinion of Richard F. Cooper, Esq.
23.1 Consent of Richard F. Cooper, Esq. (included in his opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney (on signature page).
The Company will submit or has submitted the Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner and has made
or will make all changes required by the IRS in order to qualify the Plan.
ITEM 9. UNDERTAKINGS.
A. 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
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 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; and
(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 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) 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.
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C. 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 foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints 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 all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said 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 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 attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all 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 Fort Smith, State of Arkansas, on December 29,
2000:
ARKANSAS BEST CORPORATION
By: /s/ Richard F. Cooper
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Name: Richard F. Cooper
Title: Vice President Administration/General
Counsel
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
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SIGNATURE CAPACITY DATE
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/s/ William A. Marquard Chairman of the Board, Director December 29, 2000
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William A. Marquard
/s/ Robert A. Young, III Director, Chief Executive Officer and President December 29, 2000
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Robert A. Young, III (Principal Executive Officer)
/s/ David E. Loeffler Vice President - Chief Financial Officer and December 29, 2000
------------------------------- Treasurer (Principal Financial and Accounting
David E. Loeffler Officer)
/s/ Frank Edelstein Director December 29, 2000
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Frank Edelstein
/s/ Arthur J. Fritz, Jr. Director December 29, 2000
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Arthur J. Fritz, Jr.
/s/ John H. Morris Director December 29, 2000
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John H. Morris
/s/ Alan J. Zakon, Ph.D. Director December 29, 2000
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Alan J. Zakon, Ph.D.
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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4.1 Arkansas Best Corporation Nonqualified Stock Option Plan, as amended.
4.2 Restated Certificate of Incorporation of the Corporation, filed as
Exhibit 3.1 to the Registration Statement on Form S-1 (No. 33-46483),
and incorporated herein by reference.
4.3 Amended and Restated Bylaws of the Corporation, filed as Exhibit 3.2 to
the Registration Statement on Form S-1 (No. 33-46483), and incorporated
herein by reference.
5.1 Opinion of Richard F. Cooper, Esq.
23.1 Consent of Richard F. Cooper, Esq. (included in his opinion filed as
Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney. (included on signature page)
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