As filed with the Securities and Exchange Commission on April 26,2005
Registration No. 333-
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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CNF Inc.
(Exact name of Registrant as specified in its charter)
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| Delaware || 94-1444798 |
| (State or other jurisdiction of ||(IRS Employer Identification No.)|
| incorporation or organization) || |
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| 3240 Hillview Avenue || 94304 |
| Palo Alto, California || (Zip Code) |
|(Address of principal executive offices)|| |
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| Registrant's telephone number, including area code (650) 494-2900 |
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| Jennifer W. Pileggi |
| Senior Vice President, General Counsel and Secretary |
| CNF Inc. |
| 3240 Hillview Avenue |
| Palo Alto, California 94304 |
| Telephone: (650) 494-2900 |
| (Name, address, including zip code, and telephone number, including area |
| code, of agent for service) |
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CNF Inc. 2005 Deferred Compensation Plan for Executives
CNF Inc. 2005 Deferred Compensation Plan for Non-Employee Directors
(full title of the plans)
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CALCULATION OF REGISTRATION FEE
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| Title of Each | Amount | Proposed | Proposed | Amount of |
| Class of | to Be | Maximum | Maximum |Registration Fee|
|Securities to Be| Registered | Offering | Aggregate | |
| Registered | | Price per | Offering | |
| | |Obligation/Share| Price (3) | |
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| | | | | |
|Deferred | | | | |
|Compensation | | | | |
|Obligations (4) |$20,000,000 | N/A (1) |$20,000,000| $2,354 |
| | | | | |
|Common Stock | | | | |
|Units (5) | 200,000 | $44.13 (2) | $8,826,000| $1,039 |
| | | | | |
|Common Stock, | | | | |
|$0.625 par | | | | |
|value|(5) ..... | 200,000 | $44.13 (2) | $8,826,000| $1,039 |
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(1) The registration fee has been calculated pursuant to Section 6(b)
of the Securities Act as follows: .0001177 multiplied by the
Proposed Maximum Aggregate Offering Price of the Deferred
Compensation Obligations of the registered hereby.
(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
April 22, 2005.
(3) In accordance with Rule 457(h), the filing fee is based on the
maximum number of the Registrant's securities issuable under the
Plans that are covered by this registration Statement.
(4) The Deferred Compensation Obligations are unsecured obligations of
CNF Inc. to pay deferred compensation in the future in accordance
with the terms of the Company's 2005 Deferred Compensation Plan for
Executives and 2005 Deferred Compensation Plan for Non-Employee
Directors.
(5) Plus such indeterminate number of additional shares or units as may
be necessary to adjust the number of shares or units reserved for
issuance pursuant to the 2005 Deferred Compensation Plan for
Executives subject to the Registration Statement as a result of any
future stock split, stock dividend or similar adjustment of the
outstanding Common Stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.Incorporation of Certain Documents by Reference.
The following documents that CNF Inc. (the "Company" or the
"Registrant") has filed with the Securities and Exchange Commission (the
"Commission") are incorporated in this Registration Statement by reference
and made a part hereof (except for any portions of the Company's Current
Reports furnished, as opposed to filed, on Form 8-K):
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 2004, 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) Current Reports on Form 8-K dated April 12, 2005 and
April 21, 2005.
(c) The description of the Registrant's Common Stock contained
in its registration statement filed on Form S-3 with the SEC (File No.
333-56667) under the Securities Act of 1933, as amended (the "Securities
Act").
All documents filed by the Registrant with the SEC pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act (except for any portions of
the Company's Current Reports furnished, as opposed to filed, on Form 8-K)
subsequent to the effective date of this Registration Statement, but prior to
the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered hereby 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 herein or in any 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 herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed to constitute a part of this Registration Statement,
except as so modified or superseded.
Item 4. Description of Securities.
The following descriptions of the Deferred Compensation Obligations (the
"Obligations") and the Common Stock Units (the "Units") are qualified by
reference to the 2005 Deferred Compensation Plan for Executives (the
"Executive Plan") and the 2005 Deferred Compensation Plan for Non-Employee
Directors (the "Directors Plan" and, together with the Executive Plan, the
"Plans"). Copies of the Plans are filed as Exhibits 99.2 and 99.3 to the
Company's 8-K dated December 8, 2004.
Deferred Compensation Obligations and Common Stock Units Issued Under
Executive Plan
The Obligations and the Common Stock Units will be unsecured general
obligations of the Registrant to pay the deferred compensation of eligible
participants in the Plan. The Plan is administered by the Compensation
Committee of the Company's Board of Directors.
The amount of compensation to be deferred by each Plan participant will
be based on elections made by the participant during an annual election
period, typically in December. A participant may elect to defer up to 90% of
his or her base annual salary, up to 90% of his or her annual bonus award,
and up to 90% of his or her Value Management Plan award, in each case with a
minimum deferral of $2,000. Except to the extent converted into Common Stock
Units (referred to in the Plan as "Phantom Stock Units") as described below,
amounts deferred under the Plan are credit with interest based on the Bank of
America prime rate, as compounded quarterly, or based on any other interest
rate approved by the Compensation Committee.
In January of each Plan year, participants are given the opportunity to
convert all or a portion of their dollar-denominated Plan account balance
into Common Stock Units, subject to a $5,000 minimum. The amount that a
participant elects to convert is divided by the closing price of the
Company's Common Stock on February 1 of the conversion year to determine the
number of Common Stock Units acquired. The value of the Common Stock Units
will fluctuate with the market price of the Company's Common Stock. Whenever
a cash dividend is paid with respect to the Company's Common Stock, a
participant with Common Stock Units in his or her Plan account will receive a
dividend equivalent, consisting of a number of Common Stock Units determined
by multiplying the number of Common Stock Units in the account by the per-
share cash dividend, and dividing the resulting product by the Fair Market
Value (as defined in the Plan) of a share of Common Stock on the dividend
payment date.
Distributions of Common Stock Units in a participant's Plan account will
be made in shares of the Company's Common Stock, unless the Compensation
Committee in its discretion elects to make all or part of the distribution in
cash. All other amounts deferred under the Plan will be distributed in cash.
Based upon elections made by the participant, distributions will be made in a
lump sum at a specified time, or in a lump sum or in installments upon
retirement or termination. Distribution of deferrals made in a given Plan
year, and of returns on those deferrals, will be governed by an election made
prior to the participant's entry into the Plan during that Plan year. In the
event of a financial hardship, a participant may be permitted an earlier
distribution of all or part of his or her Plan account balance, and/or a
suspension of deferrals into the Plan.
Participants and their beneficiaries may not pledge or transfer their
interests under the Plan. The Company reserves the right to terminate the
Plan at any time, and the Board of Directors of the Company may, at any time,
amend or modify the Plan in whole or in part, except as prohibited by the
terms of the Plan.
Deferred Compensation Obligations Issued Under Directors Plan
The Obligations will be unsecured general obligations of the Registrant
to pay the deferred compensation of eligible participants in the Plan. The
Plan is administered by the Director Affairs Committee of the Company's Board
of Directors.
The amount of compensation to be deferred by each Plan participant will
be based on elections made by the participant during an annual election
period in December. A participant may elect to defer either his or her
annual cash retainer, or his or her annual cash retainer plus all Committee
chair fees payable in the Plan year. Amounts deferred under the Plan are
credit with interest based on the Bank of America prime rate, as compounded
quarterly.
Distributions of amounts deferred under the Plan will be made in cash.
Based upon elections made by the participant, distributions will be made in a
lump sum at a specified time, or in a lump sum or in installments upon
termination of service. Distribution of deferrals made in a given Plan year,
and of returns on those deferrals, will be governed by an election made prior
to the participant's entry into the Plan during that Plan year. In the event
of a financial hardship, a participant may be permitted an earlier
distribution of all or part of his or her Plan account balance, and/or a
suspension of deferrals into the Plan.
Participants and their beneficiaries may not pledge or transfer their
interests under the Plan. The Company reserves the right to terminate the
Plan at any time, and the Board of Directors of the Company may, at any time,
amend or modify the Plan in whole or in part, except as prohibited by the
terms of the Plan.
Item 5.Interests of Named Experts and Counsel.
The legality of the securities offered pursuant to this Registration
Statement will be passed upon for the Registrant by Gary S. Cullen, Esq.,
Vice President, Deputy General Counsel and Assistant Secretary of the
Registrant.
Item 6.Indemnification of Officers and Directors.
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 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 7.Exemption from Registration Claimed.
Not applicable.
Item 8.Exhibits.
See List of Exhibits
Item 9.Undertakings.
(a) The 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 1933;
(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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective 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 the undertakings set forth in paragraphs (a)(1)(i)
and (a)(1)(ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(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,
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.
(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 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 April 25, 2005.
CNF INC.
By: /s/ Jennifer W. Pileggi
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Jennifer W. Pileggi
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 Jennifer W. Pileggi 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.
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|Signature |Title | Date |
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| |Chairman of the Board (Director)|April,25 2005 |
| | | |
| | | |
| | | |
|/s/ W.Keith Kennedy,Jr. | | |
|----------------------- | | |
|W. Keith Kennedy,Jr. | | |
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| |President and Chief Executive |April 25, 2005 |
| |Officer | |
| |(Principal Executive Officer) | |
|/s/Douglas W.Stotlar | | |
|--------------------- | | |
|Douglas W.Stotlar | | |
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| |Senior Vice President and Chief |April 25,2005 |
| |Financial Officer | |
| |(Principal Financial and | |
| |Principal Accounting Officer) | |
| | | |
|/s/ Kevin C Schick | | |
|------------------- | | |
|Kevin C.Schick | | |
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| |Vice President and Controller |April 25, 2005 |
| | | |
|/s/ Kevin S. Coel | | |
|------------------ | | |
|Kevin S.Coel | | |
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| |Director |April 25, 2005 |
| | | |
|/s/ John J. Anton | | |
|------------------ | | |
|John J.Anton | | |
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| |Director |April 25, 2005 |
| | | |
| | | |
|/s/ William R. Corbin | | |
|---------------------- | | |
|William R. Corbin | | |
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| |Director |April 25, 2005 |
| | | |
|/s/Margaret G. Gill | | |
|-------------------- | | |
|Margaret G. Gill | | |
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| |Director |April 25, 2005 |
| | | |
|/s/ Robert Jaunich II | | |
|---------------------- | | |
|Robert Jaunich II | | |
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| |Director |April 25, 2005 |
| | | |
|/s/ Henry H. Mauz, Jr. | | |
|---------------------- | | |
|Henry H. Mauz, Jr. | | |
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| |Director |April 25, 2005 |
| | | |
|/s/ Michael J. Murray | | |
|---------------------- | | |
|Michael J. Murray | | |
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| |Director |April 25,2005 |
| | | |
|/s/ John C. Pope | | |
|------------------- | | |
|John C.Pope | | |
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| |Director |April 25,2005 |
| | | |
|/s/ Robert D. Rogers | | |
|---------------------- | | |
|Robert D. Rogers | | |
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| |Director |April 25, 2005 |
| | | |
|/s/ William J. Schroeder | | |
|------------------------- | | |
|William J. Schroeder | | |
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| |Director |April 25, 2005 |
| | | |
|/s/ Peter W. Stott | | |
|------------------- | | |
|Peter W. Stott | | |
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| |Director |April 25, 2005 |
| | | |
|/s/ Robert P. Wayman | | |
|--------------------- | | |
|Robert P. Wayman | | |
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| |Director |April 25, 2005 |
| | | |
|/s/ Chelsea C. White III | | |
|------------------------- | | |
|Chelsea C. White III | | |
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LIST OF EXHIBITS
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|Exhibit No.||Description of Exhibit ||
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| 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 Form 10-K for the year ended ||
| ||December 31, 2002, dated March 24, 2003. ||
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| 5.1 ||Opinion of Counsel ||
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| 23.1 ||Consent of Counsel (included in Exhibit 5.1) ||
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| 23.2 ||Consent of KPMG LLP ||
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| 24.1 ||Powers of Attorney (set forth on the signature pages of this ||
| ||Registration Statement) ||
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