As filed with the Securities and Exchange Commission on December 22, 1999
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
SUPPLEMENTAL BENEFIT 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 OF
AMOUNT MAXIMUM MAXIMUM REGISTRATION
TITLE OF CLASS OF TO BE OFFERING PRICE AGGREGATE FEE(3)
SECURITIES TO BE REGISTERED REGISTERED PER OBLIGATION(2) OFFERING PRICE(2)
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Supplemental Benefit Plan Obligations (1) $15,000,000 100% $15,000,000 $4,170
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<FN>
(1) The Supplemental Benefit Plan Obligations are unsecured obligations of Arkansas Best Corporation to pay benefits in the
future in accordance with the terms of the Arkansas Best Corporation Supplemental Benefit Plan.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h).
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</FN>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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* 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 Supplemental Benefit
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 filed with the
Commission for the fiscal year ended December 31, 1998;
(2) the registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30, 1999, filed with the
Commission.
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.
Under the Plan, Arkansas Best Corporation (the "Company"), will restore
to eligible employees (i) benefits lost under the Arkansas Best Corporation
Pension Plan (the "Qualified Plan") due to the Internal Revenue Code's (the
"Code") limitations on compensation and benefits and certain design changes to
the Qualified Plan, and (ii) the benefits lost under the Qualified Plan due to
an eligible employee's participation under the Company's Voluntary Savings Plan
(the "VSP"), a nonqualified deferred compensation plan for certain employees of
the Company. The Plan is an unfunded arrangement, and all benefits are paid from
the Company's general assets. Only officers of the Company designated by the
Board of Directors (the "Eligible Employees") are eligible for benefits under
the Plan. Certain Eligible Employees will receive a benefit under the Plan in an
amount calculated by subtracting (i) such Eligible Employee's benefit under the
Qualified Plan computed without regard to the compensation and benefit limits of
the Code and certain design changes to the Qualified Plan from (ii) each such
Eligible Employee's actual Qualified Plan benefit. The remaining Eligible
Employees will receive a benefit calculated by subtracting (i) such Eligible
Employee's benefit under the Qualified Plan computed without regard to his
compensation deferral under the VSP from (ii) each such Eligible Employee's
actual Qualified Plan benefit. The obligations of the Corporation under the
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Plan (the "Obligations") will be unfunded, unsecured promises to pay the
benefits in the future in accordance with the terms of the Plan, and will rank
on a parity with other unsecured and unsubordinated indebtedness of the
Corporation from time to time outstanding.
Distributions of the vested account balance of each Obligation will be
payable (i) in a lump sum within 30 days of the voluntary or involuntary
termination of employment, death, or disability of any Eligible Employee, or
(ii) at the election of an Eligible Employee, at a specified later date or
dates, in lump sum, in equal annual installments over a period of up to fifteen
years, or in fixed annual payments over a period of up to fifteen years with the
balance payable in the last payment (the "Deferral Period"), subject to the
terms and limitations of the Plan. During the Deferral Period, the electing
Eligible Employee will direct the notational investment of the deferred amounts
amongst certain investments selected by the Company, and such Eligible
Employee's deferred payments will reflect the notational investment performance.
The Corporation has established a rabbi or grantor trust to hold,
invest and reinvest the Obligations during the Deferral Period, if a Deferral
Period is duly elected by any Eligible Employee. The placing of the Obligations
in a rabbi trust does not protect the trust assets from the claims of the
Company's general secured or unsecured creditors in the event of the Company's
bankruptcy or insolvency. The Plan will be administered by the Company and the
Company's Benefits Department.
A participating employee's right or the right of any other person to
the Obligations cannot be assigned, alienated, sold, garnished, transferred,
pledged, or encumbered except by a written designation of a beneficiary under
the Plan, by written will, or by the laws of descent and distribution. The
Company reserves the right to amend or terminate the Plan at any time, except
that no such amendment or termination may reduce the amount of benefits credited
to an Eligible Employee's account. Upon a change of control of the Company, the
Obligations will be distributed pursuant to the terms of the Plan. The
Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of the Company.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the Obligations offered hereby have
been passed upon for the Corporation by Richard F. Cooper, Esq., the Secretary
of the Corporation and an employee of the Corporation eligible to participate in
the Plan.
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.
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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, 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 Corporation or any other party. If it is later determined that the director
is or was not entitled to indemnification under applicable law, 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.
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 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
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4.1 Arkansas Best Corporation Supplemental Benefit Plan.
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., regarding the legality of
the securities being registered.
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23.1 Consent of Richard F. Cooper, Esq., included in Exhibit 5.1.
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney (on signature page).
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 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 David E. Loeffler, 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 17,
1999:
ARKANSAS BEST CORPORATION
By: /s/ David E. Loeffler
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Name: David E. Loeffler
Title: Vice President - Chief Financial Officer
and Treasurer
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
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/s/ William A. Marguard
- ----------------------------- Chairman of the Board, Director December 17,
William A. Marquard 1999
/s/ Robert A. Young, III
- ----------------------------- Director, Chief Executive Officer and December 17,
Robert A. Young, III President (Principal Executive Officer) 1999
/s/ David E. Loeffler
- ----------------------------- Vice President - Chief Financial Officer and December 17,
David E. Loeffler Treasurer (Principal Financial and Accounting 1999
Officer)
/s/ Frank Edelstein
- ----------------------------- Director December 17,
Frank Edelstein 1999
/s/ Arthur J. Fritz, Jr.
- ----------------------------- Director December 17,
Arthur J. Fritz, Jr. 1999
/s/ John H. Morris
- ----------------------------- Director December 17,
John H. Morris 1999
/s/ Alan J. Zakon, Ph.D.
- ----------------------------- Director December 17,
Alan J. Zakon, Ph.D. 1999
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THE PLAN.
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Pursuant to the requirements of the Securities Act of 1933, the
Corporation, in its capacity as administrator of the Arkansas Best Corporation
Supplemental Benefit 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 the dates indicated.
ARKANSAS BEST CORPORATION
By: /s/ David E. Loeffler
------------------------------------------------
Name: David E. Loeffler
Title: Vice President - Chief Financial Officer
and Treasurer
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EXHIBIT INDEX
Exhibit
Number Document Description
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4.1 Arkansas Best Corporation Supplemental Benefit Plan.
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., regarding the legality of
the securities being registered.
23.1 Consent of Richard F. Cooper, Esq., included in Exhibit 5.1.
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney (on signature page).
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