As filed with the Securities and Exchange Commission on January 27, 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. Thrift and Stock Plan
CNF Inc. Employee Stock Purchase Plan
EWW Savings Plan
_______________(full title of the plans)___________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Class of Amount Offering Aggregate Amount of
Securities to Be to Be Price Offering Registration
Registered Registered per Share Price Fee
---------------------- ------------ --------- --------------- -------------
Common Stock, $0.625
par value 8,000,000(A) $32.23(B) $257,840,000(B) $23,721.28(C)
Interests in the Plans (D) N/A
(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 January 24, 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, 2001, 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, 2001, 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, 2000 and 1999, 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. 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
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 Thrift and Stock Plan and the EWW Savings Plan 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 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 such Plans.
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Independent Public Accountants (Omitted Pursuant
to Rule 437a)
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 January 27, 2003.
CNF INC.
By:/s/ Eberhard G. H. Schmoller
------------------------------
Eberhard G. H. Schmoller
Senior Vice President, General
Counsel and Secretary
THE PLANS. Pursuant to the requirements of the Securities Act
of 1933, the Benefits Administrative Committee of CNF Inc., as
administrator of the Plans, has duly caused this Registration
Statement to be signed on the Plans' behalf by the undersigned,
thereunto authorized, in the City of Palo Alto, State of
California, on January 27, 2003.
By:/s/ Mark C. Thickpenny
------------------------------
Mark C. Thickpenny
Member, Benefits Administrative
Committee
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
Chairman of the Board January 27, 2003
/s/ Donald E. Moffitt (Director)
--------------------------
Donald E. Moffitt
President and Chief January 27, 2003
Executive Officer (Principal
/s/ Gregory L. Quesnel Executive Officer and Director)
--------------------------
Gregory L. Quesnel
Senior Vice President and January 27, 2003
Chief Financial Officer
(Principal Financial and
Principal Accounting
/s/ Chutta Ratnathicam Officer)
--------------------------
Chutta Ratnathicam
Director January 27, 2003
/s/ Robert Alpert
--------------------------
Robert Alpert
Director January 27, 2003
/s/ Kevin Burns
--------------------------
Kevin Burns
Director January 27, 2003
/s/ Margaret G. Gill
--------------------------
Margaret G. Gill
Director January 27, 2003
/s/ Robert Jaunich II
--------------------------
Robert Jaunich II
Director January 27, 2003
/s/ W. Keith Kennedy, Jr.
--------------------------
W. Keith Kennedy, Jr.
Director January 27, 2003
/s/ Michael J. Murray
--------------------------
Michael J. Murray
Director January 27, 2003
/s/ John C. Pope
--------------------------
John C. Pope
Director January 27, 2003
/s/ Robert D. Rogers
--------------------------
Robert D. Rogers
Director January 27, 2003
/s/ William J. Schroeder
--------------------------
William J. Schroeder
Director January 27, 2003
/s/ Robert P. Wayman
--------------------------
Robert P. Wayman
LIST OF EXHIBITS
Exhibit Description of Exhibit Page
No.
4.1 Article Fourth of the Certificate of
Incorporation of the Registrant, as
amended, incorporated by reference from
Exhibit 4(a) to the Registrant's Form S-3
dated May 6, 1997. N/A
5.1 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit
5.1)
23.2 Consent of Arthur Andersen (omitted
pursuant to Rule 437a)
24.1 Powers of Attorney (set forth on the
signature pages of this Registration
Statement)
EXHIBIT 5.1
January 27, 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 January 27, 2003 and to be filed with
the Securities and Exchange Commission on or about January 27,
2003 in connection with the registration under the Securities Act
of 1933, as amended, of Common Stock issuable pursuant to the CNF
Inc. Thrift and Stock Plan, EWW Savings Plan and Employee Stock
Purchase Plan for Executives (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 Plan 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
(to the extent such shares constitute original issuance
securities), when issued and outstanding pursuant to the terms of
the 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,
Gary S. Cullen
Deputy General Counsel
CNF Inc.