As filed with the Securities and Exchange Commission on November 9, 2000
Registration No. 333 -___________
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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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YELLOW CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 48-0948788
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
10990 Roe Avenue
Overland Park, Kansas 66207
(913) 696-6106
(Address of Principal Executive Offices)
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Yellow Corporation
1999 Stock Option Plan
(Full title of the plan)
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William F. Martin, Jr., Esq.
Senior Vice President/Secretary
Yellow Corporation
10990 Roe Avenue
Overland Park, Kansas 66207
(913) 696-6106
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
Copy to:
W. Leslie Duffy, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
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CALCULATION OF REGISTRATION FEE
===============================================================================================================
Title of Securities to Proposed Maximum Proposed Maximum Amount of
be Amount to be Offering Price Per Aggregate Offering Registration
to be Registered Registered Share Price Fee
- ---------------------------------------------------------------------------------------------------------------
Common Stock, par value
$1.00 per share 1,000,000 $ 17.9375 (1) $ 17,937,500 (1) $4735.50
===============================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee,
computed pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended, on the basis of the average of the high and low prices
of a share of the registrant's Common Stock as reported on The NASDAQ
Stock Market on November 8, 2000.
PART I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement
in accordance with Rule 428 under the Securities Act of 1933,
as amended (the "Securities Act") and the Note to Part I of
Form S-8.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Yellow Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") and
are hereby incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1999, as filed with the Securities and Exchange Commission (the
"Commission") on March 24, 2000;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000, as filed with the Commission on May 12, 2000;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 2000, as filed with the Commission on August 14, 2000;
(d) The Company's Current Report on Form 8-K, filed with the Commission on
July 18, 2000;
(e) The Company's Current Report on Form 8-K, filed with the Commission on
June 23, 2000;
(f) The Company's Current Report on Form 8-K, filed with the Commission on
May 2, 2000;
(g) The Company's Current Report on Form 8-K, filed with the Commission on
October 10, 2000; and
(h) The description of the Company's common stock, $1.00 par value per
share, contained in the Company's Registration Statement on Form 10
filed pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and any amendments thereto.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 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 in this Registration Statement and to
be a part hereof from the date of filing of such documents. 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 such 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.
The class of securities offered hereby is registered under Section 12 of
the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 ("Section 145") of the General Corporation Law of the State of
Delaware empowers a corporation 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, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such person 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 or enterprise.
Depending on the character of the proceeding, a corporation may indemnify
against expenses (including attorneys' fees), judgments, fines and/or amounts
paid in settlement actually and reasonably incurred in connection with such
action, suit or proceeding if the person indemnified acted in good faith and in
a manner such person 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 such person's conduct was
unlawful. In the case of an action by or in the right of the corporation, no
indemnification may be made with respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. Section 145 further provides that to
the extent a present or former director or officer of a corporation has been
successful in the defense of any action, or any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith. Section
145 also states that the indemnification provided for in such Section shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled and empowers the corporation to purchase and maintain insurance on
behalf of directors, officers, employees and agents of the corporation against
any liability asserted against such person or incurred by such person in any
such capacity or arising out of such person's status as such whether or not the
corporation would have the power to indemnify such person against such
liabilities under Section 145.
In addition, directors and officers of the Company are entitled to
indemnification as provided in Article V of the Company's Bylaws (the "Bylaws").
Such Article V provides as follows:
Section 1. Right to Indemnification
a. Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative ("proceeding"), by reason of the fact
that he or she or a person for whom he or she is the legal representative is or
was a director, officer or employee of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action
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in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
such amendment permits the corporation to provide broader indemnification rights
than said law permitted the corporation to provide prior to such amendment)
against all expenses, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith; provided, however, that with respect to any agent or employee, to the
extent any such expenses, liabilities or losses are covered by insurance, other
than insurance maintained by the corporation, the corporation shall be required
to indemnify and hold harmless such agent or employee only to the extent that
such expenses, liabilities or losses are not covered by such insurance. Such
right shall be a contract right and shall include the right to be paid by the
corporation expenses incurred in defending any such proceedings in advance of
its final disposition; provided, however, that the payment of such expenses
incurred by a director or officer of the corporation in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of such proceeding, shall be made upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it should be determined ultimately that such director or
officer is not entitled to be indemnified under this section or otherwise.
b. Any person who is or was an agent of the corporation, and who would be
entitled to be indemnified by the corporation under the circumstances set forth
in Section 1(a) but for the fact that such person is not or was not a director,
officer or employee of the corporation, may be indemnified by the corporation
(but shall not be entitled to be indemnified by the corporation) in a specific
case to all or part of the extent set forth in Section 1(a), if the Board of
Directors determines that it is in the best interests of the corporation to
grant such indemnity. Authorization for such indemnity and the extent thereof
shall be determined by majority vote of a quorum of the Board of Directors.
Section 2. Right of Claimant to Bring Suit
If a claim under Section 1 is not paid in full by the corporation within 90
days after a written claim has been received by the corporation, the claimant
may at any time thereafter bring suit against the corporation to recover the
unpaid amount of the claim, and if successful in whole or in part, the claimant
shall be entitled to be paid also the expenses of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking has been tendered to the corporation)
that the claimant has not met the standards of conduct which make it permissible
under the Delaware General Corporation Law for the corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the corporation. Neither the failure of the corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant had
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant had not met the applicable standard of
conduct.
Section 3. Non-Exclusivity of Rights
The rights conferred by Sections 1 and 2 shall not be exclusive of any
other right which such person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
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Section 4. Insurance
The corporation may maintain insurance, at its expense, to protect itself
and any such director, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the corporation would have the
power to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
Section 5.
For purposes of this Article, reference to "other enterprise" shall include
entities of any kind, including associations, rate bureaus and conferences.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this Registration Statement:
Exhibit No. Description
4 1999 Stock Option Plan
5 Opinion of Cahill Gordon & Reindel as to the legality of the
Common Stock being registered
23.1 Consent of Cahill Gordon & Reindel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (set forth on the signature page of this
Registration Statement)
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers of sales are being made, if
applicable, a post-effective amendment to this Registration Statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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; and
(c) 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;
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provided, however, that clauses (1)(a) and 1(b) shall not apply
if the information required to be included therein is contained
in periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by
reference 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;
(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) 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; and
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company 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 Company 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.
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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, thereunto duly
authorized, in the City of Overland Park, State of Kansas on the 26th day of
October, 2000.
YELLOW CORPORATION
By: /s/ William F. Martin, Jr.
William F. Martin, Jr.
-----------------------------
Senior Vice President and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints William
F. Martin, Jr. such person's true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and her and in his or her
name, place and stead, in any and all capacities, to sign this Registration
Statement, and any and all amendments thereto (including pre- and post-effective
amendments), and to file the same, with exhibits and schedules thereto and other
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 necessary or desirable 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 or his substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity in Which Signed Date
- --------- ------------------------ ----
/s/ William D. Zollars President, Chief Executive Officer October 26, 2000
- --------------------------- and Chairman of the Board
William D. Zollars
/s/ H. A. Trucksess, III Senior Vice President, Finance, October 26, 2000
- --------------------------- Chief Financial Officer and Treasurer
H. A. Trucksess, III
/s/ Klaus E. Agthe Director October 26, 2000
- ---------------------------
Klaus E. Agthe
/s/ Cassandra C. Carr Director October 26 , 2000
- ---------------------------
Cassandra C. Carr
/s/ Howard M. Dean Director October 26, 2000
- ---------------------------
Howard M. Dean
/s/ Dennis Foster Director October 26, 2000
- ---------------------------
Dennis Foster
/s/ John C. McKelvey Director October 26, 2000
- ---------------------------
John C. McKelvey
/s/ William L. Trubeck Director October 26, 2000
- ---------------------------
William L. Trubeck
/s/ Carl W. Vogt Director October 26, 2000
- ---------------------------
Carl W. Vogt
Exhibit Index
Exhibit No. Description
4 1999 Stock Option Plan
5 Opinion of Cahill Gordon & Reindel as to the legality of the
Common Stock being registered
23.1 Consent of Cahill Gordon & Reindel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (set forth on the signature page of this
Registration Statement)
YELLOW CORPORATION
1999 STOCK OPTION PLAN
1. PURPOSE-
The Yellow Corporation 1999 Stock Option Plan is designed to enable
qualified executive, managerial, supervisory and professional personnel of
Yellow Corporation and its subsidiaries to acquire or increase their ownership
of common stock of the Company on reasonable terms. The opportunity so provided
is intended to foster in participants a strong incentive to put forth maximum
effort for the continued success and growth of the Company and its subsidiaries,
to aid in retaining individuals who put forth such efforts, and to assist in
attracting the best available individuals in the future.
2. DEFINITIONS-
When used herein, the following terms shall have the meaning set forth
below:
2.1 "Award" shall mean an Option or SAR.
2.2 "Board" means the Board of Directors of Yellow Corporation.
2.3 "Committee" means the members of the Board's Compensation Committee who
are non-employee directors as defined in Rule 16b-3 of the Securities and
Exchange Commission as it exists on the effective date of the Plan or as
subsequently amended or interpreted and are "outside directors" within the
meaning of Section 162(m) of the Internal Revenue Code of 1986 and the
regulations thereunder.
2.4 "Company" means Yellow Corporation.
2.5 "IRC '86" means the Internal Revenue Code of 1986, as in effect as of
the effective date of the Plan or as thereafter amended, and applicable
regulations.
2.6 "Fair Market Value" means with respect to the Company's Shares the
closing price of the Shares as reported by NASDAQ or if the closing price is not
reported, the bid price of the Shares as reported by NASDAQ on the date on which
the value is to be determined or, if the stock did not trade on that date, the
next preceding date on which such stock traded.
2.7 "Grantee" means a person to whom an Award is made.
2.8 "Non-Qualified Stock Option" or "NQSO" means an Option awarded under
the Plan which by its terms and conditions is not, and is not intended to be, an
"Incentive Stock Option" as defined by IRC '86.
2.9 "Option" means the right to purchase, at a price, for a term, under
conditions, and for cash or other considerations fixed by the Committee in
accordance with the Plan, and subject to such other limitations and restrictions
as the Plan and the Committee impose, a number of shares specified by the
Committee.
2.10 "Plan" means the Company's 1999 Stock Option Plan.
2.11 "SAR" means a right to surrender to the Company all or a portion of an
Option and to be paid therefore an amount, as determined by the Committee, no
greater than the excess, if any, of (i) the Fair
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Market Value, on the date such right is exercised, of the Shares to which the
Option or portion thereof relates, over (ii) the aggregate option price of those
Shares.
2.12 "Shares" means shares of the Company's common stock or, if by reason
of the adjustment provisions hereof any rights under an Award under the Plan
pertain to any other security, such other security.
2.13 "Subsidiary" means any business, whether or not incorporated, in which
the Company, at the time an Award is granted to an employee thereof, or in other
cases, at the time of reference, owns directly or indirectly not less than 50%
of the equity interest.
2.14 "Successor" means the legal representative of the estate of a deceased
Grantee or the person or persons who shall acquire the right to exercise an
Option or an SAR, by bequest or inheritance or by reason of the death of the
Grantee, as provided in accordance with Section 9 hereof.
2.15 "Term" means the period during which a particular Option or SAR may be
exercised.
2.16 "QDRO" means a qualified domestic relations order as defined by IRC
'86 or Title I of the Employee Retirement Income Security Act, or the rules
thereunder.
3. ADMINISTRATION OF THE PLAN-
3.1 The Plan shall be administered by the Committee.
3.2 The Committee shall have plenary authority, subject to the provisions
of the Plan, to determine when and to whom Awards shall be granted, the Term of
each Award, the number of Shares covered by it, the participation by Grantee in
other plans, and any other terms or conditions of each such Award. The Committee
may grant such additional benefits in connection with any Award as it deems
appropriate. The number of Shares, the Term, the other terms and conditions of a
particular kind of Award and any additional benefits granted in connection with
any Award need not be the same, even as to Awards made at the same time. The
Committee's actions in making Awards and fixing their size, Term and other terms
and conditions and in granting any additional benefits in connection with any
Award shall be conclusive on all persons.
3.3 The Committee shall have the sole responsibility for construing and
interpreting the Plan, for establishing and amending such rules and regulations
as it deems necessary or desirable for the proper administration of the Plan,
and for resolving all questions arising under the Plan. Any decision or action
taken by the Committee arising out of or in connection with the construction,
administration, interpretation and effect of the Plan and of its rules and
regulations shall, to the extent permitted by law, be within its absolute
discretion, except as otherwise specifically provided herein, and shall be
conclusive and binding upon all Grantees, all Successors, and any other persons,
whether that person is claiming under or through any Grantee or otherwise.
3.4 The Committee shall regularly inform the Board as to its actions with
respect to all Awards under the Plan and the Terms and conditions of such Awards
in a manner, at such times, and in such form as the Board may reasonably
request.
4. ELIGIBILITY-
Awards may be made under the Plan only to employees of the Company or a
Subsidiary who have executive, managerial, supervisory or professional
responsibilities. Officers shall be employees for this purpose, whether or not
they are also Directors, but a Director who is not such an employee shall not be
eligible to receive an Award. Awards may be made to eligible employees whether
or not they have received
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prior Awards, under the Plan or under any previously adopted plan, and whether
or not they are participants in other benefit plans of the Company. In making a
determination concerning the granting of Awards to eligible employees, the
Committee may take into account the nature of the services they have rendered or
that the Committee expects they will render, their present and potential
contributions to the success of the business, the number of years of effective
service they are expected to have and such other factors as the Committee in its
sole discretion shall deem relevant.
5. SHARES SUBJECT TO PLAN-
Subject to adjustment as provided in Section 18 below, 1,000,000 Shares are
hereby reserved for issuance in connection with Awards under the Plan. The
Shares so issued may be unreserved Shares held in the treasury however acquired
or Shares which are authorized but unissued. Any Shares subject to issuance upon
exercise of Options shall once again be available for issuance in satisfaction
of Awards to the extent that (i) cash is issued in satisfaction of the exercise
of such Shares or (ii) the Option expires or terminates unexercised as to any
Shares covered thereby. Subject to adjustment as provided in Section 18 below,
the maximum number of Shares with respect to which options or SARs may be
granted during any calendar year to any employee under the Plan shall be 200,000
Shares.
6. GRANTING OF OPTIONS-
6.1 Subject to the terms of the Plan, the Committee may from time to time
grant Options to eligible employees.
6.2 The purchase price of each Share subject to Option shall be fixed by
the Committee, but shall not be less than 100% of the Fair Market Value of the
Share on the date the Option is granted.
6.3 Each Option shall expire and all right to purchase Shares thereunder
shall cease on the date fixed by the Committee, which subject to the terms of
the Plan, shall not be later than the tenth anniversary of the grant date of the
Option.
6.4 Each Option shall become exercisable at the time, and for the number of
Shares, fixed by the Committee. Except to the extent otherwise provided in or
pursuant to Sections 9 and 10, no Option shall become exercisable as to any
Shares prior to the first anniversary of the date on which the Option was
granted.
7. STOCK APPRECIATION RIGHTS-
7.1 The Committee may, in its discretion, grant an SAR to the holder of an
Option, either at the time the Option is granted or by amending the instrument
evidencing the grant of the Option at any time after the Option is granted and
more than six months before the end of the Term of the Options, so long as the
grant is made during the period in which grants of SARs may be made under the
Plan.
7.2 Each SAR shall be for such Term, and shall be subject to such other
terms and conditions, as the Committee shall impose. The terms and conditions
may include Committee approval of the exercise of the SAR, limitations on the
time within which and the extent to which such SAR shall be exercisable,
limitations on the amount of appreciation which may be recognized with regard to
such SAR, and specification of what portion, if any, of the amount payable to
the Grantee upon his exercise of an SAR shall be paid in cash and what portion,
if any, shall be payable in Shares. If and to the extent that Shares are issued
in satisfaction of amounts payable on exercise of an SAR, the Shares shall be
valued at their Fair Market Value on the date of exercise.
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7.3 Except to the extent otherwise provided in or pursuant to Sections 9
and 10, no SAR shall be exercisable during the first six months after its date
of grant.
7.4 Upon exercise of an SAR the Option, or portion thereof, with respect to
which such right is exercised shall be surrendered and shall not thereafter be
exercisable.
8. NON-TRANSFERABILITY OF RIGHTS-
No rights under any Award shall be transferable otherwise than by will or
the laws of descent and distribution or pursuant to a QDRO, and the rights, and
except to the extent otherwise provided in Section 12, the benefits, of any such
Award may be exercised and received, respectively, during the lifetime of the
Grantee only by him or by his guardian or legal representative or by an
"alternate payee" pursuant to a QDRO.
9. DEATH OR TERMINATION OF EMPLOYMENT-
9.1 Subject to the provisions of the Plan, the Committee may make such
provisions concerning exercise or lapse of Options or SARs on death or
termination of employment as it shall in its discretion determine. No such
provision shall extend the Term of an Option or SAR, nor shall any such
provision permit an Option or SAR to be exercised prior to six months after the
date on which it was granted, except in the event of death or termination by
reason of disability.
9.2 Transfers of employment between the Company and a Subsidiary, or
between Subsidiaries, shall not constitute termination of employment for
purposes of any Award. The Committee may specify in the terms and conditions of
an Award whether any authorized leave of absence or absence for military or
government service or for any other reason shall constitute a termination of
employment for purposes of the Award and the Plan.
10. PROVISIONS RELATING TO TERMINATION OF THE COMPANY'S SEPARATE EXISTENCE-
The Committee may provide that in the event that the Company is to be
wholly or partly liquidated, or agrees to participate in a merger, consolidation
or reorganization in which it, or an entity controlled by it, is not the
surviving entity, any or all Options and SARs granted under the Plan shall be
immediately exercisable in full.
11. WRITINGS EVIDENCING AWARDS-
Each Award granted under the Plan shall be evidenced by a writing which
may, but need not, be in the form of an agreement to be signed by the Grantee.
The writing shall set forth the nature and size of the Award, its Term, the
other terms and conditions thereof, other than those set forth in the Plan, and
such other information as the Committee directs. Acceptance of any benefits of
an Award by the Grantee shall be conclusively presumed to be an assent to the
terms and conditions set forth therein, whether or not the writing is in the
form of an agreement to be signed by the Grantee.
12. EXERCISE OF RIGHTS UNDER AWARDS-
12.1 A person entitled to exercise an Option or SAR may do so by delivery
of a written notice to that effect specifying the number of Shares with respect
to which the Option or SAR is being exercised and any other information the
Committee may prescribe.
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12.2 The notice shall be accompanied by payment in full for the purchase
price of any Shares to be purchased with such payment being made in cash; shares
of the Company's common stock having a Fair Market Value equivalent to the
purchase price of such Shares; a combination thereof; or cashless exercise
pursuant to the Cashless Exercise Program offered by the Company. No Shares
shall be issued upon exercise of an Option until full payment has been made
therefor.
12.3 The notice of exercise of an SAR shall be accompanied by the Grantee's
copy of the writing or writings evidencing the grant of the SAR and the related
Option.
12.4 Upon exercise of an Option or SAR, the Grantee may request in writing
that the Shares to be issued in satisfaction of the Award be issued in the name
of the Grantee and another person as joint tenants with right of survivorship or
as tenants in common.
12.5 All notices or requests provided for herein shall be delivered to the
Secretary of the Company.
13. EFFECTIVE DATE OF THE PLAN AND DURATION-
13.1 The Plan shall become effective on August 31, 1999, subject to
stockholder approval at the 2000 Annual Meeting of Stockholders of the Company
where such approval is required by applicable SEC or stock market regulations.
13.2 No Awards may be granted under the Plan on or after August 31, 2009
although the terms of any Award may be amended at any time prior to the end of
its Term in accordance with the Plan.
14. DATE OF AWARD-
The date of an Award shall be the date on which the Committee's
determination to grant the same is final, or such later date as shall be
specified by the Committee in connection with its determination.
15. STOCKHOLDER STATUS-
No person shall have any rights as a stockholder by virtue of the grant of
an Award under the Plan except with respect to Shares actually issued to that
person.
16. POSTPONEMENT OF EXERCISE-
The Committee may postpone any exercise of an Option or SAR for such time
as the Committee in its discretion may deem necessary in order to permit the
Company (I) to effect or maintain registration of the Plan or the Shares
issuable upon the exercise of an Option or an SAR under the Securities Act of
1933, as amended, or the securities laws of any applicable jurisdiction, (ii) to
permit any action to be taken in order to comply with restrictions or
regulations incident to the maintenance of a public market for its Shares, or
(iii) to determine that such Shares and the Plan are exempt from such
registration or that no action of the kind referred to in (ii) above needs to be
taken; and the Company shall not be obligated by virtue of any terms and
conditions of any Award or any provision of the Plan to recognize the exercise
of an Option or an SAR to sell or issue shares in violation of the Securities
Act of 1933 or the law of any government having jurisdiction thereof. Any such
postponement shall not extend the Term of an Option or SAR. Neither the Company
nor its directors or officers shall have any obligation or liability to the
Grantee of an Award, to the Grantee's Successor or to any other person with
respect to any Shares as to which the Option or SAR shall lapse because of such
postponement.
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17. TERMINATION, SUSPENSION OR MODIFICATION OF PLAN-
The Board may at any time terminate, suspend or modify the Plan, except
that the original per share option price of each grant may not be modified,
except for modification under the circumstances outlined in Section 18 below,
without stockholder approval. However, no termination, suspension or
modification of the Plan shall adversely affect any right acquired by any
Grantee or any Successor under an Award granted before the date of such
termination, suspension or modification, unless such Grantee or Successor shall
consent; but it shall be conclusively presumed that any adjustment for changes
in capitalization as provided for herein does not adversely affect any such
right. Any member of the Board who is an officer or employee of the Company or a
Subsidiary shall be without vote on any proposed amendment to the Plan, or on
any other matter which might affect that member's individual interest under the
Plan.
18. ADJUSTMENT FOR CHANGES IN CAPITALIZATION-
Any increase in the number of outstanding Shares of the Company occurring
through stock splits or stock dividends after the adoption of the Plan shall be
reflected proportionately in an increase in the aggregate number of Shares then
available for the grant of Awards under the Plan, or becoming available through
the termination, surrender or lapse of Awards previously granted but
unexercised, and in the number of Shares subject to Awards then outstanding; and
a proportionate reduction shall be made in the per share option price as to any
outstanding Options. Any fractional shares resulting from such adjustment shall
be eliminated. If changes in capitalization other than those considered above
shall occur, the Board shall make such adjustment in the number or class of
shares, remaining subject to Awards then outstanding and in the per share option
price as the Board in its discretion may consider appropriate to reflect such
change in capitalization, and all such adjustments shall be conclusive upon all
persons.
19. DELIVERY OF SHARES IN LIEU OF CASH INCENTIVE AWARDS-
19.1 Any employee otherwise eligible for an Award under the Plan who is
eligible to receive a cash incentive payment from the Company under any
management incentive plan may make application to the Committee in such manner
as may be prescribed from time to time by the Committee, to receive Shares from
the Plan in lieu of all or any portion of such cash payment.
19.2 The Committee may in its discretion honor such application by
delivering Shares from the Plan to such employee equal in Fair Market Value to
that portion of the cash payment otherwise payable to the employee under such
incentive plan for which a Share delivery is to be made in lieu of cash payment.
19.3 Any Shares delivered to employees under the Plan in lieu of cash
incentive payments shall come from the aggregate number of Shares authorized for
use by the Plan and shall not be available for any other Awards under the Plan.
19.4 Such applications and such delivery of Shares shall not be permitted
on or after August 31, 2009.
20. LOANS-
20.1 The Company may make loans to Grantees for the sole purpose of
exercising Option Awards under the Plan and meeting the Federal tax consequences
of such exercise. Such loans shall be subject to the terms and conditions
established by the Committee from time to time which shall in all cases include
those specific items contained in this Section 20 as well as such other items as
may be established by the Committee.
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20.2 No loan shall exceed the exercise price of the option to be exercised
plus the amount of Federal income taxes reasonably estimated to be due at the
exercise of the option or within the next following seven month period.
20.3. No loan shall have a term exceeding five years subject to renewal at
the discretion of the Committee. Notwithstanding any other terms of the loan,
each loan shall be fully due and payable on the loan recipient's termination of
employment, except that in the case of termination due to disability, the
Committee at its discretion may extend the terms of the loan beyond termination.
20.4 Interest shall be charged on the loan with a rate established by the
Committee but in no case less than an amount equal to any dividends payable
during the term of the loan on the Shares being purchased by the Grantee at the
exercise of the Option. Such minimum interest rate shall be determined by
dividing the dividends paid on such Shares during the preceding twelve months by
the Option price for such Shares.
20.5 If such a loan is made to a Grantee, the Company shall not deliver a
certificate or any shares purchased with the loan proceeds, until such time as
the loan is repaid.
21. NO-UNIFORM DETERMINATION-
The Committee's determination under the Plan including, without limitation,
determination of the persons to receive Awards, the form, amount and type of
Awards (e.g. NQSOs, SAR's), the terms and provisions of Awards and the written
material evidencing such Awards, the grant of additional benefits in connection
with any Award, and the granting or rejecting of loans or applications for
delivery of stock in lieu of cash bonus or incentive payments need not be
uniform and may be made selectively among otherwise eligible employees, whether
or not such employees are similarly situated.
22. TAXES-
The Company is authorized to pay or withhold the amount of any tax
attributable to any amounts payable under any Awards, and the Company may defer
making payment of any Award if any such tax, charge or assessment may be pending
until indemnification to its satisfaction. This authority shall include
authority to withhold or receive Shares and to make cash payments in respect
thereof in satisfaction of an individual's tax obligations.
23. TENURE-
An employee's right, if any, to continue in the employ of the Company or a
Subsidiary shall not be affected by the fact that he is a participant under this
Plan. At the sole discretion of the Committee, an employee terminated for cause
may be required to forfeit all of his rights under the Plan, except as to
Options or SARs already exercised.
24. APPLICATION OF PROCEEDS-
The proceeds received by the Company from the sale of its Shares under the
Plan shall be used for general corporate purposes.
25. OTHER ACTIONS-
Nothing in the Plan shall be construed to limit the authority of the
Company to exercise its corporate rights and powers, including, by way of
illustration and not by way of limitation, the right to grant options for proper
corporate purposes otherwise than under the Plan to any employee or any other
person, firm, corpora-
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tion, association or other entity, or to grant options to, or assume options of,
any person in connection with the acquisition, by purchase, lease, merger,
consolidation or otherwise, of all or any part of the business and assets of any
person, firm, corporation, association or other entity.
26. GOVERNING LAW-
The Plan and all determinations made and actions taken pursuant hereto
shall be governed by and construed in accordance with the laws of the State of
Delaware.
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Exhibit 5
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
(212) 701-3000
November 9, 2000
Yellow Corporation
10990 Roe Avenue
Overland Park, Kansas 66207
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") being filed by
you with the Securities and Exchange Commission under the Securities Act of
1933, as amended, with respect to the 1,000,000 shares of Common Stock, par
value $1.00 per share (the "Common Stock"), of Yellow Corporation (the
"Company") which are to be awarded (an "Award") pursuant to the Yellow
Corporation 1999 Stock Option Plan (the "Plan").
We advise you that, in our opinion, upon the issuance of Common Stock
pursuant to an Award in accordance with the terms of the Plan, and in each case
upon payment to the Company of any consideration for such Common Stock provided
for in the Plan or any agreement with the Company relating to the applicable
Award (which consideration is assumed herein to be in no event less than the par
value of the Common Stock being issued upon such payment), the shares of the
Common Stock so issued will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the aforesaid Registration Statement.
Very truly yours,
/s/ Cahill Gordon & Reindel
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Registration Statement (Form S-8) pertaining
to the 1999 Stock Option Plan of Yellow Corporation of our report dated January
26, 2000 included in its Annual Report (Form 10-K) for the year ended December
31, 1999, filed with the Securities and Exchange Commission and to all
references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Kansas City, Missouri
November 9, 2000