AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 26, 1996.
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
CONSOLIDATED FREIGHTWAYS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0425334
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
175 LINFIELD DRIVE
MENLO PARK, CALIFORNIA 94025
(Address, Including Zip Code, of Principal Executive Offices)
CONSOLIDATED FREIGHTWAYS CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
STEPHEN D. RICHARDS
CONSOLIDATED FREIGHTWAYS CORPORATION
175 LINFIELD AVENUE
MENLO PARK, CALIFORNIA 94025
(415) 326-1700
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
COPY TO:
BRIAN J. MCCARTHY
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 SOUTH GRAND AVENUE
SUITE 3400
LOS ANGELES, CALIFORNIA 90071
--------------------
CALCULATION OF REGISTRATION FEE
Amount to be Proposed Maximum Offering Proposed Maximum Aggre- Amount of Registration
Title of Securities to be Registered Registered Price Per Share (1)(2) gate Offering Price (1)(2) Fee (3)
Common Stock, par
value $.01 per share . . . . . 3,303,798 (4) $ 7.56 $ 24,976,713 $ 7,568.70
(1) Estimated solely for purposes of calculating the registration fee.
(2) Estimated pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended (the "Securities Act"), on the basis of the average of the
high and low sale prices for when issued trading for a share of common
stock of Consolidated Freightways Corporation ("Common Stock") on the
Nasdaq Stock Market's National Market on November 25, 1996.
(3) The registration fee has been calculated pursuant to Section 6(b) of the
Securities Act as follows: one-thirty-third (1/33) of one percent of the
Proposed Maximum Aggregate Offering Price of the shares registered hereby.
(4) Plus such additional number of shares of Common Stock as may be issuable
pursuant to the antidilution provisions of the Consolidated Freightways
Corporation 1996 Stock Option and Incentive Plan.
REGISTRATION STATEMENT
ON
FORM S-8
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
have been or will be sent or given to employees as specified by Rule 428(b)(1)
under the Securities Act.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the registrant, Consolidated Freightways Corporation, a
Delaware corporation (the "Company") pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act") or the Securities Act, are incorporated by
reference in this registration statement:
(a) The Company's Registration Statement on Form 10, as declared
effective on November 7, 1996 and filed pursuant to Section 12(g)
of the Exchange Act (File No. 1-12149), including any amendment
or report filed for the purpose of updating such information (the
"Registration Statement");
(b) All other reports filed under Section 13(a) or 15(d) of the
Exchange Act since the end of the most recent fiscal year; and
(c) The description of the Company's Common Stock included in the
Registration Statement.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Page 2
Any statement contained in a 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
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
LIMITATION OF LIABILITY
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation's certificate of incorporation to include a provision
eliminating or limiting the personal liability of a director to the corporation
or its shareholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL (relating to unlawful payment of dividends and unlawful
stock purchase and redemption) or (iv) for any transaction from which the
director derived an improper personal benefit. As permitted by Section
102(b)(7) of the DGCL, the Company's Certificate of Incorporation provides that
the Company's directors shall not be liable to the Company or its shareholders
for monetary damages for breach of fiduciary duty as a director, except to the
extent that exculpation from liabilities is not permitted under the DGCL as in
effect at the time such liability is determined.
INDEMNIFICATION AND INSURANCE
The Company's Certificate of Incorporation and Bylaws provide that the
Company shall indemnify its directors and officers to the full extent permitted
by the
Page 3
law of the State of Delaware. Section 145 of the DGCL provides that a
corporation may 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, whether civil, criminal or investigative (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 the corporation or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Section 145
further provides that a corporation similarly may indemnify any such person
serving in any such capacity who was or is a party or is threatened to be made
by a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Delaware Court of Chancery or such other court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
The Company has obtained an insurance policy that insures its directors and
officers against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Page 4
ITEM 8. EXHIBITS.
Exhibit No. Description
----------- -----------
4.1 Amended and Restated Certificate of Incorporation of the
Company.
4.2 Amended and Restated Bylaws of the Company.
5.1 Opinion and consent of Skadden, Arps, Slate, Meagher & Flom
LLP.
23.1 Consent of Arthur Andersen LLP, independent public
accountants.
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in their opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
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:
(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 and 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 aggre-
Page 5
gate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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 the 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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 of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforce-
Page 6
able. In the event that a claim for indemnification against such liabilities
(other than 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 Act and will be governed by the final adjudication of such
issue.
Page 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the 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, thereunder duly
authorized, in the City of Menlo Park, State of California, on this 26th day of
November, 1996.
CONSOLIDATED FREIGHTWAYS CORPORATION
By /s/ W. Roger Curry
--------------------------------------
Name: W. Roger Curry
Title: President and Chief Executive
Officer
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 Stephen D. Richards his or her true and lawful
attorney-in-fact and agent, acting alone, with full powers 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 and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, acting alone, 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 or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, acting
alone, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Signature Title Date
--------- ----- ----
/s/ W. Roger Curry President and Chief Executive November 26, 1996
- ----------------------- Officer and Director
W. Roger Curry (Principal Executive Officer)
Page 8
/s/ David F. Morrison Executive Vice President November 26, 1996
- ------------------------ and Chief Financial Officer
David F. Morrison (Principal Financial and
Accounting Officer)
/s/ Eberhard G.H. Schmoller Director November 26, 1996
- ---------------------------
Eberhard G. H. Schmoller
Page 9
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
4.1 Amended and Restated Certificate of Incorporation of
the Company.
4.2 Amended and Restated Bylaws of the Company.
5.1 Opinion and consent of Skadden, Arps, Slate, Meagher &
Flom LLP.
23.1 Consent of Arthur Andersen LLP, independent public
accountants.
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in their opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of
this Registration Statement).
Page 10