As filed with the Securities and Exchange Commission on April 28, 2003
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________________
CNF Inc.
(Exact name of Registrant as specified in its charter)
Delaware 94-1444798
(State or other (IRS Employer
jurisdiction of Identification No.)
incorporation or
organization)
3240 Hillview Avenue 94304
Palo Alto, California (Zip Code)
(Address of principal
executive offices)
Registrant's telephone number, including area code (650) 494-2900
__________________________________
Eberhard G. H. Schmoller
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)
__________________________________
CNF Inc. 1997 Equity and Incentive Plan
CNF Inc. 2003 Equity Incentive Plan for Non-Employee Directors
_______________(full title of the plans)___________________
CALCULATION OF REGISTRATION FEE
Title of Each Class Amount Proposed Proposed Amount of
of Securities to Be to Be Maximum Maximum Registration
Registered Registered Offering Aggregate Fee
Common Stock,
$0.625 par value 3,800,000(A) $29.80(B) $113,240,000(B) $10,418.08(C)
Interests in the (D) N/A
Plans
(A) Plus such indeterminate number of additional shares or units as may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Plan subject to the Registration Statement as a result of any future
stock split, stock dividend or similar adjustment of the outstanding
Common Stock.
(B) 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 25, 2003.
(C) 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.
(D) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plans described herein.
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, 2002, 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. 333-56667) 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, 2002, 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.
CNF's consolidated financial statements for each of the years ended 2001
and 2000, included in the Company's Form 10-K and incorporated by reference
herein, have been audited by Arthur Andersen LLP ("Arthur Andersen"). On
May 30, 2002, CNF dismissed Arthur Andersen as its independent public
accountants and engaged KPMG LLP to serve as CNF's independent public
accountants for the 2002 fiscal year. CNF understands that the staff of the
Securities and Exchange Commission has taken the position that it will not
accept consents from Arthur Andersen if the engagement partner and the
manager for CNF's audit are no longer with Arthur Andersen. Both the
engagement partner and the manager for CNF's audit are no longer with
Arthur Andersen and Arthur Andersen has ceased practicing before the
Securities and Exchange Commission. As a result, CNF has been unable to
obtain Arthur Andersen's written consent to the incorporation by reference
into this registration statement of their audit report with respect to the
Company's financial statements referred to above. Under these
circumstances, Rule 437a under the Securities Act of 1933 (the "Securities
Act") permits CNF to file this registration statement without a written
consent from Arthur Andersen. Because Arthur Andersen has not consented to
the inclusion of their report in this registration statement, Arthur
Andersen will not have any liability under Section 11(a) of the Securities
Act for any untrue statements of a material fact contained in the financial
statements audited by Arthur Andersen and incorporated by reference herein
or any omission of a material fact required to be stated therein.
Accordingly, investors will not be able to assert a claim against Arthur
Andersen under Section 11(a) of the Securities Act for any purchases of
securities under this registration statement.
Item 4. Description of Securities.
--------------------------
Not applicable.
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.,
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.
---------
Exhibit No. Description
4.1 Article Fourth of the Certificate of Incorporation of the
Registrant, as amended, incorporated by reference from
Exhibit 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
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 to 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
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 28, 2003.
CNF INC.
By: /s/ Eberhard G. H. Schmoller
------------------------------
Eberhard G. H. Schmoller
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 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 Title Date
--------- ----- ----
/s/ Donald E. Moffitt Chairman of the Board April 28, 2003
-------------------------- (Director)
Donald E. Moffitt
/s/ Gregory L. Quesnel President and Chief April 28, 2003
-------------------------- Executive Officer (Principal
Gregory L. Quesnel Executive Officer and
Director)
/s/ Chutta Ratnathicam Senior Vice President and April 28, 2003
-------------------------- Chief Financial Officer
Chutta Ratnathicam (Principal Financial and
Principal Accounting
Officer)
/s/ Robert Alpert Director April 28, 2003
--------------------------
Robert Alpert
/s/ Kevin Burns Director April 28, 2003
--------------------------
Kevin Burns
Director April 28, 2003
--------------------------
Margaret G. Gill
/s/ Robert Jaunich II Director April 28, 2003
--------------------------
Robert Jaunich II
/s/ W. Keith Kennedy, Jr. Director April 28, 2003
--------------------------
W. Keith Kennedy, Jr.
/s/ Michael J. Murray Director April 28, 2003
--------------------------
Michael J. Murray
/s/ John C. Pope Director April 28, 2003
--------------------------
John C. Pope
/s/ Robert D. Rogers Director April 28, 2003
--------------------------
Robert D. Rogers
/s/ William J. Schroeder Director April 28, 2003
--------------------------
William J. Schroeder
/s/ Robert P. Wayman Director April 28, 2003
--------------------------
Robert P. Wayman
LIST OF EXHIBITS
Exhibit Description of Exhibit Page
No.
4.1 Article Fourth of the Certificate of N/A
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 KPMG LLP
24.1 Powers of Attorney (set forth on the
signature pages of this Registration
Statement)
EXHIBIT 5.1
April 28, 2003
CNF 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 April 28, 2003 and to be filed with the Securities and
Exchange Commission on or about April 28, 2003 in connection with the
registration under the Securities Act of 1933, as amended, of Common Stock
issuable pursuant to the CNF Inc. 1997 Equity and Incentive Plan and 2003
Equity Incentive Plan for Non-Employee 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 the authorization of the issuance of shares of Common Stock
under the Plans (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 Plans, 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 Inc.
Exhibit 23.2
Independent Auditors' Consent
We consent to the use of our reports dated January 24, 2003 (except with
respect to the negotiated return of leased aircraft as discussed in Note 3,
as to which the date is February 3, 2003), with respect to the consolidated
balance sheet of CNF Inc. and subsidiaries as of December 31, 2002, and the
related consolidated statements of operations, shareholders' equity, and
cash flows for the year then ended, and the related financial statement
schedule, which reports appear in the December 31, 2002 annual report on
Form 10-K of CNF Inc., incorporated herein by reference.
Our reports refer to the revisions to the 2001 and 2000 financial
statements to include the transitional disclosures required by Statement of
Financial Accounting Standards No. 142, Goodwill and Other Intangible
Assets, which was adopted by CNF Inc. as of January 1, 2002, as described
in Note 1 to the consolidated financial statements, as well as the
adjustments that were applied to restate the disclosures of reportable
segments reflected in the 2001 and 2000 consolidated financial statements
to conform to the 2002 composition of reportable segments, as discussed in
Note 15 to the consolidated financial statements. However, we were not
engaged to audit, review, or apply any procedures to the 2001 and 2000
consolidated financial statements other than with respect to such revisions
and adjustments.
/s/ KPMG LLP
----------------------------------------
KPMG LLP
San Francisco, California
April 28, 2003