As filed with the Securities and Exchange Commission on October 20,
1995
Registration
No. 33-______
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.)
1000 SOUTH 21ST STREET
FORT SMITH, ARKANSAS 72901
(Address of principal executive offices) (Zip Code)
1) CAROLINA FREIGHT CORPORATION
EMPLOYEE SAVINGS AND PROTECTION PLAN
2) COMPLETE LEASING CONCEPTS, INC. EMPLOYEE SAVINGS & PROFIT SHARING PLAN
3) IDI 401(K) SAVINGS PLAN
(Full title of the plans)
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RICHARD F. COOPER COPY TO:
SECRETARY MARK D. WIGDER, ESQ.
ARKANSAS BEST CORPORATION JENKENS & GILCHRIST,
1000 SOUTH 21ST STREET A PROFESSIONAL
CORPORATION
FORT SMITH, ARKANSAS 72901 1445 ROSS AVENUE, SUITE
3200
(501) 785-6000 DALLAS, TEXAS 75202
(Name, address and telephone number (214) 855-4500
including area code of agent for service)
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
Title of Class of TO BE OFFERING PRICE AGGREGATE REGISTRATION FEE(3)
Securities to be Registered REGISTERED(1) PER SHARE(2)(3) OFFERING PRICE(2)(3)
Common Stock, $0.01 par value per 600,000 Shares $ 9 3/8 $ 5,625,000 $ 1,939.66
share
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Carolina Freight Corporation
Employee Savings and Protection Plan, the Complete Leasing Concepts, Inc.
Employee Savings and Profit Sharing Plan, and the IDI 401(k) Savings Plan (the
"Plans").
(2) Estimated solely for the purpose of calculating the registration
fee.
(3) Calculated pursuant to Rule 457(c) and (h) under the Securities
Act of 1933, as amended. Accordingly, the price per share of the common stock
offered hereunder pursuant to the Plans is based on 600,000 shares of common
stock that may be offered or sold under the Plans at a price per share of
$9 3/8 which was the closing price per share of common stock on the NASDAQ
National Market on October 17, 1995.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant and the Plans 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 filed with the
Commission for the fiscal year ended December 31, 1994;
(2) the registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31 and June 30 1995, filed with the Commission;
(3) the registrant's Current Report on Form 8-K dated August 17,
1995, and the amendment to such Report on Form 8-K/A dated October 13,
1995;
(4) the description of the common stock, par value $0.01 per
share, of the registrant (the "Common Stock") set forth in the
Registration Statement on Form 8-A, filed with the Commission on March
20, 1992, as amended by Form 8, dated April 23, 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 that deregisters all securities
remaining unsold at the time of such amendment.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Registrant's Restated Certificate of Incorporation provides that no
director of the Registrant will be personally liable to the Registrant 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 or
she 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, suite or proceeding. The power to
indemnify applies only if such person acted in good faith and in a manner he
or she 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 or her 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 Registrant has entered into indemnity agreements with each of its
directors. Each such Indemnification Agreement provides for indemnification
of directors of the Registrant to the fullest extent permitted by the Delaware
General Corporation Law and additionally permits advancing attorney's fees and
all other costs, expenses, obligations, fines and losses, 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 Registrant or any other party. If it is later determined that
the director is or was not entitled to indemnification under applicable law,
the Registrant is entitled to reimbursement by the director.
The Indemnification Agreements further provide that in the event of a
change in control of the Registrant, 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 Registrant.
To the extent that the board of directors or the stockholders of the
Registrant may in the future wish to limit or repeal the ability of the
Registrant 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
Registrant.
In addition, the Registrant'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.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
EXHIBIT DESCRIPTION OF EXHIBIT
4.1 Restated Articles of Incorporation of Arkansas Best Corporation, as
amended (incorporated by reference to Exhibit 3.1 to the
registrant's Registration Statement on Form S-3 (Reg. No. 33-
46483))
4.2 Restated Bylaws of the Arkansas Best Corporation (incorporated by
reference to Exhibit 3.2 to the Registrant's Registration Statement
on Form S-3 (Reg. No. 33-46483).
4.3 Arkansas Best Corporation Stock Option Plan filed as Exhibit 10.3
to the Registration Statement on Form S-1 (No. 33-46483) and
incorporated herein by reference.
4.4 Arkansas Best Corporation Disinterested Director Stockholder Plan,
dated May 7, 1993, filed as Exhibit 4.4 to the Registration
Statement on Form S-8 (No. 33-66694) and incorporated herein by
reference.
4.5 Stockholders' Rights Plan by and between Arkansas Best Corporation
and Harris Trust and Savings Bank, as Rights Agent, dated as of
April 23, 1992, filed as Exhibit 10.2 to the Registration Statement
on Form S-1 (No. 33-46483) and incorporated herein by reference.
4.6 Arkansas Best Corporation Employees' Investment Plan, effective as
of January 1, 1994, filed as Exhibit 4.6 to the Registration
Statement on Form S-8 filed with the Commission on March 30, 1994
and incorporated herein by reference.
4.7* Carolina Freight Corporation Employee Savings and Protection Plan
as amended through November 1, 1994, and Amendment No. 1 dated
October 1, 1995.
4.8* Complete Leasing Concepts, Inc. Employee Savings and Profit Sharing
Plan dated October 1, 1993, and Amendment thereto dated October 1,
1995.
4.9* IDI 401(k) Savings Plan, restated effective as of October 1, 1995
4.10* The Arkansas Best Corporation and Affiliates Employees'Investment
Trust No. 1, Trust Agreement Between Arkansas Best Corporation and
Fidelity Management Trust Company Dated as of January 1, 1990, and
Amendment No. 1 dated January 1, 1992, Amendment No. 2 Dated March
13, 1992, Amendment No. 3 dated September 30, 1993, Amendment No. 4
Dated April 1, 1994 and Amendment No. 5 dated as of November 1,
1995.
*23.1 Consent of Ernst & Young LLP, independent auditors.
25 Power of Attorney is found on pages II-6 to II-7 hereof.
____________________
* Filed herewith.
(b) The registrant will submit each Plan in a timely manner to the
Internal Revenue Service (the "IRS") for determination letter that such Plan
is qualified under Section 401 of the Internal Revenue Code and 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.
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 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 of
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
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
October 19, 1995:
ARKANSAS BEST CORPORATION
By: /S/ ROBERT A. YOUNG, III
ROBERT A. YOUNG, III
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert A. Young, III and Donald L. Neal, and
each of them, his true and lawful attorney-in-fact and agents 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
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 either 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, this registration
statement has been signed by the following persons in the capacities and on
the dates indicated.
SIGNATURE CAPACITY DATE
/S/ WILLIAM A. MARQUARD Chairman of the Board of Directors October 19, 1995
WILLIAM A. MARQUARD
/S/ ROBERT A. YOUNG, III President, Chief Executive Officer and October 19, 1995
ROBERT A. YOUNG, III Director
(Principal Executive Officer)
/S/ DONALD L. NEAL Senior Vice President and Chief Financial October 19, 1995
DONALD C. NEAL Officer (Principal Accounting Officer)
/S/ FRANK EDELSTEIN Director October 19, 1995
FRANK EDELSTEIN
/S/ ARTHUR J. FRITZ, JR. Director October 19, 1995
ARTHUR J. FRITZ, JR.
/S/ JOHN H. MORRIS Director October 19, 1995
JOHN H. MORRIS
Director _______, 1995
ALAN J. ZAKON, PH.D
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the Carolina Freight Corporation Savings and Protection Plan Committee have
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 October 19, 1995.
CAROLINA FREIGHT CORPORATION
EMPLOYEE SAVINGS AND PROTECTION PLAN COMMITTEE
/S/ ROBERT A. YOUNG, III
Robert A. Young, III
/S/ DONALD L. NEAL
Donald L. Neal
/S/ RICHARD F. COOPER
Richard F. Cooper
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the following members of the Complete Leasing Concepts, Inc. Employee Savings
and Profit Sharing Plan 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 October 19, 1995.
COMPLETE LEASING CONCEPTS, INC.
EMPLOYEE SAVINGS AND PROFIT SHARING PLAN COMMITTEE
/S/ ROBERT A. YOUNG, III
Robert A. Young, III
/S/ DONALD L. NEAL
Donald L. Neal
/S/ RICHARD F. COOPER
Richard F. Cooper
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the following members of the Administrative Committee of the IDI 401(k)
Savings Plan 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 October 19, 1995.
IDI 401(K) SAVINGS PLAN ADMINISTRATIVE COMMITTEE
/S/ DONALD L. NEAL
Donald L. Neal
/S/ RICHARD F. COOPER
Richard F. Cooper
/S/ SHIRLEY J. BOZE
Shirley J. Boze
/S/ RANDALL M. LOYD
Randall M. Loyd
/S/ JERRY A. YARBROUGH
Jerry A. Yarbrough
EXHIBIT INDEX
Number Description
4.1 Restated Articles of Incorporation of Arkansas Best Corporation, as
amended (incorporated by reference to Exhibit 3.1 to the
registrant's Registration Statement on Form S-3 (Reg. No. 33-
46483))
4.2 Restated Bylaws of the Arkansas Best Corporation (incorporated by
reference to Exhibit 3.2 to the Registrant's Registration Statement
on Form S-3 (Reg. No. 33-46483).
4.3 Arkansas Best Corporation Stock Option Plan filed as Exhibit 10.3
to the Registration Statement on Form S-1 (No. 33-46483) and
incorporated herein by reference.
4.4 Arkansas Best Corporation Disinterested Director Stockholder Plan,
dated May 7, 1993, filed as Exhibit 4.4 to the Registration
Statement on Form S-8 (No. 33-66694) and incorporated herein by
reference.
4.5 Stockholders' Rights Plan by and between Arkansas Best Corporation
and Harris Trust and Savings Bank, as Rights Agent, dated as of
April 23, 1992, filed as Exhibit 10.2 to the Registration Statement
on Form S-1 (No. 33-46483) and incorporated herein by reference.
4.6 Arkansas Best Corporation Employees' Investment Plan, effective as
of January 1, 1994, filed as Exhibit 4.6 to the Registration
Statement on Form S-8 filed with the Commission on March 30, 1994
and incorporated herein by reference.
4.7* Carolina Freight Corporation Employee Savings and Protection Plan
as amended through November 1, 1994, and Amendment No. 1 dated
October 1, 1995.
4.8* Complete Leasing Concepts, Inc. Employee Savings and Profit Sharing
Plan dated October 1, 1993, and Amendment thereto dated October 1,
1995.
4.9* IDI 401(K) Savings Plan Restated as of October 1, 1995.
4.10* The Arkansas Best Corporation and Affiliates Employees' Investment
Trust No. 1, Trust Agreement Between Arkansas Best Corporation and
Fidelity Management Trust Company Dated as of January 1, 1990, and
Amendment No. 1 dated January 1, 1992, Amendment No. 2 Dated March
13, 1992, Amendment No. 3 dated September 30, 1993, Amendment No. 4
Dated April 1, 1994 and Amendment No. 5 dated as of November 1,
1995.
*23.1 Consent of Ernst & Young LLP, independent auditors.
25 Power of Attorney is found on pages II-6 to II-7 hereof.