As filed with the Securities and Exchange Commission on May 15, 2002
Registration No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
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) 696-6100
(Address of Principal Executive Offices)
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Yellow Corporation
2002 Stock Option and Share Award 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) 696-6100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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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
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Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Registered Price Per Share(2) Aggregate Offering Price(2) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$1.00 per share 1,000,000 $27.255 $27,255,000 $2,507.46
shares(1)
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the employee
benefit plan described herein.
(2) 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 May 14,
2002.
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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 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, 2001, as filed with the Commission on March 14, 2002;
(b) The Company's Prospectus filed pursuant to Rule 414(b), as filed with
the Commission on April 12, 2002; and
(c) The Company's Current Report on Form 8-K, filed with the Commission on
April 9, 2002.
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.
The Certificate of Incorporation and Bylaws of Yellow Corporation together
provide that Yellow's directors shall not be personally liable to Yellow or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability for (i) any breach of the director's duty of loyalty to
Yellow or its stockholders, (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law (the "DGCL"), or (iv) any
transaction from which the director derived an improper personal benefit. The
Certificate of Incorporation and Bylaws of Yellow also provide that if the DGCL
is amended to permit further elimination of limitation of the personal liability
of the directors, then the liability of Yellow's directors shall be eliminated
or limited to the fullest extent permitted by the DGCL, as so amended.
Yellow maintains directors' and officers' liability insurance against any
actual or alleged error, misstatement, misleading statement, act, omission,
neglect or breach of duty by any director or officer, excluding certain maters
including fraudulent, dishonest or criminal acts or self-dealing.
DGCL Section 102(b)(7) provides that Yellow may indemnify a present or
former director if such director conducted him or herself in good faith and
reasonably believed, in the case of conduct in his or her official capacity,
that his or her conduct was in Yellow's best interests.
DGCL Section 145 provides that Yellow may indemnify its directors and
officers, as well as other employees and individuals (each an "Indemnified
Party," and collectively, "Indemnified Parties"), against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative, other than in connection with actions by or in
the right of Yellow (a "derivative action"), if an Indemnified Party acted in
good faith and in a manner such Indemnified Party reasonably believed to be in
or not opposed to Yellow's best interests and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that Yellow may only indemnify an Indemnified Party for expenses
(including attorneys' fees) incurred in connection with the defense or
settlement of such derivative action. Additionally, in the context of a
derivative action, DGCL Section 145 requires a court approval before there can
be any indemnification where an Indemnified Party has been found liable to
Yellow. The statute provides that it is not exclusive of other indemnification
arrangements that may be granted pursuant to a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise.
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 2002 Stock Option and Share Award 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)
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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;
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 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 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 con-
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nection 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 15th day of
May, 2002.
YELLOW CORPORATION
By: /s/ William F. Martin, Jr.
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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 May 15, 2002
- --------------------------- and Chairman of the Board of Directors
William D. Zollars
/s/ Donald G. Barger, Jr. Senior Vice President and May 15, 2002
- --------------------------- Chief Financial Officer
Donald G. Barger, Jr.
/s/ Howard M. Dean Director May 15, 2002
- ---------------------------
Howard M. Dean
/s/ Cassandra C. Carr Director May 15, 2002
- ---------------------------
Cassandra C. Carr
/s/ Carl W. Vogt Director May 15, 2002
- ---------------------------
Carl W. Vogt
/s/ Richard C. Green Jr. Director May 15, 2002
- ---------------------------
Richard C. Green, Jr.
/s/ Dennis E. Foster Director May 15, 2002
- ---------------------------
Dennis E. Foster
/s/ John C. McKelvey Director May 15, 2002
- ---------------------------
John C. McKelvey
/s/ William L. Trubeck Director May 15, 2002
- ---------------------------
William L. Trubeck
Exhibit Index
Exhibit No. Description
4 2002 Stock Option and Share Award 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)
Exhibit 4
Exhibit A
YELLOW CORPORATION
2002 STOCK OPTION AND SHARE AWARD PLAN
1. Purpose
The Yellow Corporation 2002 Stock Option and Share Award 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 and to
provide additional compensation to such personnel tied to the common stock of
the Company. 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, SAR, Restricted Stock Award, Restricted
Stock Unit Award, Performance Stock Award, Performance Stock Unit
Award, Dividend Equivalent or Other Share-Based Award.
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. "Dividend Equivalent" means a right, granted pursuant to Section 11 of
the Plan, to receive cash, Shares or other property equal in value to
dividends paid with respect to a specified number of Shares. Dividend
Equivalents may be awarded on a free-standing basis or in connection
with another Award, and may be paid currently or on a deferred basis.
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. "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.
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2.9. "Option" means the right, granted pursuant to Section 6 of the Plan,
to purchase, at a price, for a term, under conditions, and for cash or
other considerations fixed by the Committee, and subject to such other
limitations and restrictions as the Plan and the Committee impose, a
number of shares specified by the Committee. All such Options shall be
Non-Qualified Stock Options and are not or intended to be Incentive
Stock Options as defined by IRC `86.
2.10. "Other Share-Based Award" means a right, granted pursuant to Section
12 of the Plan, that relates to or is valued by reference to Shares.
2.11. "Performance Stock Award" means the grant pursuant to Section 10 of
the Plan of the right to receive the number of Shares specified by the
Committee, at a time or times fixed by the Committee, and subject to
such performance objectives and other limitations and restrictions as
the Plan and the Committee impose.
2.12. "Performance Stock Unit Award" means the grant pursuant to Section 10
of the Plan, of units representing a right to receive Shares or cash
at a time or times fixed by the Committee, and subject to such
performance objectives and other limitations and restrictions as the
Plan and the Committee impose.
2.13. "Plan" means the Company's 2002 Stock Option and Share Award Plan.
2.14. "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.
2.15. "Restricted Stock Award" means the grant pursuant to Section 8 of the
Plan of the right to receive the number of Shares specified by the
Committee, at a time or times fixed by the Committee in accordance
with the Plan, and subject to such other limitations and restrictions
as the Plan and the Committee impose.
2.16. "Restricted Stock Unit Award" means the grant pursuant to Section 9
of the Plan of units representing a right to receive Shares or cash,
at the time or times fixed by the Committee in accordance with the
Plan, and subject to such other limitations and restrictions as the
Plan and the Committee impose.
2.17. "SAR" means a right granted pursuant to Section 7 of the Plan to
surrender to the Company all or a portion of an Option and to be paid
therefor an amount, as determined by the Committee, no greater than
the excess, if any, of (i) the Fair 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.
2.18. "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.
2.19. "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.
2.20. "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 or to receive cash, Shares or other
property issuable upon satisfaction of a Restricted Stock Award,
Restricted
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Stock Unit Award, Performance Stock Award, Performance Stock Unit
Award, Dividend Equivalent or Other Share-Based Award, by bequest or
inheritance or by reason of the death of the Grantee, as provided in
accordance with Section 14 hereof.
2.21. "Term" means the period during which a particular Option or SAR may
be exercised or the restricted or performance period or other term
specified in any other Award.
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 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.
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5. Shares Subject to Plan
Subject to adjustment as provided in Section 23 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 or otherwise issuable under any Awards 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 the Option or SAR or upon settlement
of the Award or (ii) the Option or SAR expires or terminates unexercised as to
any Shares covered thereby or (iii) the Award is forfeited, canceled or
otherwise terminated. Subject to adjustment as provided in Section 23 below, the
maximum number of Shares with respect to which any form of award may be granted
during any calendar year to any one Grantee under the Plan shall be 500,000
Shares. Subject to adjustment as provided in Section 23 below, the maximum total
amount of Shares which can be awarded in any form other than Options or SARs is
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 14 and 15, 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 14
and 15, no SAR shall be exercisable prior to the first anniversary of
the 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. Restricted Stock Awards
8.1. Subject to the terms of the Plan, the Committee may grant eligible
employees Restricted Stock Awards.
8.2. The terms and conditions of any such Award, including restrictions on
transfer or on the ability of the Grantee to make elections with
respect to the taxation of the Award without the consent of the
Committee, shall be determined by the Committee. Except as provided in
or pursuant to Sections 14 and 15, no such restrictions shall lapse
earlier than the first, or later than the tenth, anniversary of the
date of the Awards.
8.3. The Committee may establish terms and conditions under which the
Grantee of a Restricted Stock Award shall be entitled to receive a
credit equivalent to any dividend payable with respect to the number
of Shares which, as of the record date for such dividend, had been
awarded but not delivered to him. Any such Dividend Equivalent shall
be paid to the Grantee of the Restricted Stock Award at such time or
times during the period when the Shares are being held by the Company
pursuant to the terms of the Restricted Stock Award, or at the time
the Shares to which the Dividend Equivalents apply are delivered to
the Grantee, as the Committee shall determine. Any arrangement for the
payment of Dividend Equivalents shall be terminated if, under the
terms and conditions established by the Committee, the right to
receive Shares being held pursuant to the terms of the Restricted
Stock Award shall lapse.
9. Restricted Stock Unit Awards
9.1. Subject to the terms of the Plan, the Committee may grant eligible
employees Restricted Stock Unit Awards.
9.2. Each Restricted Stock Unit Award shall represent the right to receive
Shares (or cash equivalent to the Fair Market Value of such Shares) at
the end of a specified deferral period as specified by the Committee,
subject to such limitations and restrictions as the Committee may
prescribe. The terms and conditions of any such Award, including the
forfeiture provisions referred to in Section 9.3 below, shall be
determined by the Committee.
9.3. Except as otherwise determined by the Committee at the date of grant
or thereafter, upon termination of employment during the deferral
period (as determined under criteria established by the Committee), or
upon failure to satisfy any other conditions precedent to the delivery
of Shares or cash to which Restricted Stock Unit Awards relate, all
Restricted Stock Unit Awards that are at that time subject to deferral
or restriction shall be forfeited; provided, however, that the
Committee may provide in any Award agreement, or may determine in an
individual case, that restrictions or forfeiture conditions relating
to Restricted Stock Unit Awards shall be waived in whole or in part in
the event of termination resulting from specified causes, and the
Committee may in other cases waive in whole or in part the forfeiture
of Restricted Stock Unit Awards.
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9.4. The Committee may establish terms and conditions under which the
Grantee of a Restricted Stock Unit Award shall be entitled to receive
a credit equivalent to any dividend payable with respect to the number
of Shares which correspond, as of the record date for such dividend,
to the number of units represented by such Award. Any such Dividend
Equivalent shall be paid to the Grantee of the Restricted Stock Unit
Award at such time or times during the deferral period, or at the time
the Grantee vests in the Restricted Stock Unit Award, as the Committee
shall determine. Any arrangement for the payment of Dividend
Equivalents shall be terminated if, under the terms and conditions
established by the Committee, the Restricted Stock Unit Award is
forfeited.
10. Performance Stock Awards and Performance Stock Unit Awards
10.1. Subject to the terms of the Plan, the Committee may grant eligible
employees Performance Stock Awards and/or Performance Stock Unit
Awards.
10.2. Each Performance Stock Award shall represent a right to receive
Shares subject to such performance objectives and other limitations
and restrictions as the Committee may prescribe. Each Performance
Stock Unit Award shall represent a grant of units corresponding to a
right to receive Shares (or cash equivalent to the Fair Market Value
of such Shares) subject to such performance measures and other
limitations and conditions as the Committee may prescribe. The terms
and conditions of any such Award, including the performance period,
performance measures and forfeiture provisions shall be determined by
the Committee.
10.3. The Committee shall determine a performance period ("Performance
Period") and shall determine the performance objectives for grants of
Performance Stock Awards and Performance Stock Unit Awards.
Performance objectives may vary from eligible employee to eligible
employee, and shall be based on such one or more of the following
performance criteria as the Committee may deem appropriate: return on
capital, total stockholder return, earnings, earnings per share,
operating income, net income, pro forma net income, return on
stockholders' equity, return on designated assets, net asset value,
economic value added, revenues, expenses, operating profit margin,
operating cash flow, cash flow per share, and net operating profit
after taxes. The performance objectives may be determined by reference
to the performance of the Company, or of a Subsidiary, or of a
division or unit of any of the foregoing. Such performance objectives
shall involve specific or relative performance measures in relation to
a peer group of companies and/or broad-based market index. Performance
periods may overlap, and eligible employees may participate
simultaneously with respect to Performance Stock Units and Performance
Stock Unit Awards for which different Performance Periods are
prescribed.
10.4. At the beginning of a Performance Period, the Committee shall
determine for each eligible employee or group of eligible employees
with respect to that Performance Period the range of number of Shares,
if any, which may be fixed or may vary in accordance with such
performance or other criteria specified by the Committee, which shall
be paid to an eligible employee as an Award if the relevant measure of
performance for the Performance Period is met.
10.5. If, during the course of a Performance Period, there shall occur
significant events as determined by the Committee which the Committee
expects to have a substantial effect on the performance objective
during the Performance Period, the Committee, may revise such
objective; provided, however, that the Committee shall not have any
discretion to increase the amount of compensation payable under the
Award to the extent such an increase would cause
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the Award to lose its qualification as performance-based compensation
for purposes of IRC `86 Section 162(m)(4)(C) and the regulations
thereunder.
10.6. Except as otherwise determined by the Committee at the date of grant
or thereafter, upon termination of employment during the applicable
Performance Period, Performance Stock Awards and Performance Stock
Unit Awards for that Performance Period shall be forfeited; provided,
however, that the Committee may provide in any Award agreement, or may
determine in an individual case, that restrictions or forfeiture
conditions relating to Performance Stock Awards and Performance Stock
Unit Awards shall be waived in whole or in part in the event of
termination resulting from specified causes or in the event of a
change of control as defined by the Committee, and the Committee may
in other cases waive in whole or in part the forfeiture of Performance
Stock Awards and Performance Stock Unit Awards.
10.7. Each Performance Stock Award or Performance Stock Unit Award that is
earned may be paid in whole Shares, or cash, or a combination of
Shares and cash, as the Committee may determine at the time of grant
or otherwise, as soon as practicable after the end of the relevant
Performance Period. The Committee must certify in writing prior to
payment of any Performance Stock Award or Performance Stock Unit that
the performance objectives and any other material terms were in fact
satisfied.
10.8. The Committee may establish terms and conditions upon which the
Grantee of a Performance Stock Award or Performance Stock Unit Award
shall be entitled to receive a credit equivalent to any dividend
payable with respect to the number of Shares which correspond, as of
the record date for such dividend, to the number of Shares or units
represented by such Award. Any such Dividend Equivalent shall be paid
to the Grantee of the Performance Stock Award or Performance Stock
Unit Award at such time or times during the Performance Period, or
after the end of the Performance Period, as the Committee shall
determine. Any arrangement for the payment of Dividend Equivalents
shall be terminated if, under the terms and conditions established by
the Committee, the Performance Stock Award or Performance Stock Unit
Award is forfeited.
11. Dividend Equivalents
The Committee is authorized to grant Dividend Equivalents to eligible
employees. The Committee may provide, at the date of grant or thereafter, that
Dividend Equivalents shall be paid or distributed when accrued or shall be
deemed to have been reinvested in additional Shares or other investment vehicles
as the Committee may specify; provided, however, that Dividend Equivalents
(other than free-standing Dividend Equivalents) shall be subject to all
conditions and restrictions of the underlying Awards to which they relate.
12. Other Share-Based Awards
The Committee is authorized, subject to limitations under applicable law,
to grant to eligible employees such other Awards that may be denominated or
payable in, valued in whole or in part by reference to, or otherwise based on,
or related to, Shares, as deemed by the Committee to be consistent with the
purposes of the Plan, including, without limitation, unrestricted Shares awarded
purely as a "bonus" and not subject to any restrictions or conditions, other
rights convertible or exchangeable into Shares, purchase rights for Shares,
Awards with value and payment contingent upon performance of the Company or any
of its Subsidiaries or affiliates or any other factors designated by the
Committee, and Awards valued by reference to the performance of specified
Subsidiaries or affiliates. The Committee shall determine the terms and
conditions of such Awards at date of grant or thereafter. Shares delivered
pursuant to an Award in the nature of a purchase right granted under this
Section 12 shall be purchased for such consideration, paid at such times, by
such methods,
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and in such forms, including, without limitation, cash, Shares, notes or other
property, as the Committee shall determine. Cash awards, as an element of or
supplement to any other Award under the Plan, shall also be authorized pursuant
to this Section 12.
13. Non-Transferability of Rights
Except for certain transfers of Options, SARs, and Restricted Stock Awards
to family members (including, without limitation, to a trust for the benefit of
the Grantee's family members or to a partnership or limited liability company
owned by one or more members of the Grantee's family members), charities, or
pursuant to a QDRO, which the Committee in its sole discretion may permit, no
Option, SAR and no rights under any Restricted Stock Award shall be transferable
by the Grantee otherwise than by will or the laws of descent and distribution,
and, except for permitted transferees, each Option and SAR may be exercised
during the lifetime of the Grantee only by the Grantee.
14. Death or Termination of Employment
14.1 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
the first anniversary of the date on which it was granted, except in
the event of death or termination by reason of disability.
14.2 The effect of death or termination of employment on Shares or other
amounts payable pursuant to any Restricted Stock Award, Restricted
Stock Unit Award, Performance Stock Award, Performance Stock Unit
Award, Dividend Equivalent or Other Share-Based Award shall be stated
in the applicable Award.
14.3 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.
15. 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 and any or all Restricted Stock Awards,
Restricted Stock Unit Awards, Performance Stock Awards, Performance Stock Unit
Awards, Dividend Equivalents and Other Share-Based Awards shall be payable
immediately in full.
16. 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.
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17. Exercise of Rights Under Awards
17.1 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.
17.2 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.
17.3 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.
17.4 Upon exercise of an Option or SAR, or after grant of any other type of
Award but before a distribution in satisfaction thereof, 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.
17.5 All notices or requests provided for herein shall be delivered to the
Secretary of the Company.
18. Effective Date of the Plan and Duration.
18.1 The Plan shall become effective on March 1, 2002, subject to
stockholder approval at the 2002 Annual Meeting of Stockholders of the
Company.
18.2 No Awards may be granted under the Plan on or after March 1, 2012
although the terms of any Award may be amended at any time prior to
the end of its Term in accordance with the Plan.
19. 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.
20. 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.
21. Postponement of Exercise
The Committee may postpone any exercise of an Option or SAR or the
distribution of Shares under any other Award 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 or distributable in satisfaction of any other type of Award
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
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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 Award 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 any Award. 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 or as to which issuance
under any other Award was delayed.
22. Termination, Suspension, Modification or Amendment of Plan
The Board may at any time terminate, suspend, modify or amend the Plan,
except that the original per share option price of each option grant; the
maximum number of Shares with respect to which any form of award may be granted
during any calendar year to any one Grantee of 500,000 Shares; and the maximum
total amount of Shares which can be awarded in any form other than Options and
SARs of 200,000 Shares may not be modified, except for modification under the
circumstances outlined in Paragraph 23 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.
23. 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. In the event that the Board shall determine that any
recapitalization, reorganization, merger, consolidation, spin-off, combination,
repurchase or share exchange, or other similar corporate transaction or event
affects the Shares (other than those considered above) such that an adjustment
is appropriate in order to prevent dilution or enlargement of rights of
participants, then the Board shall make such adjustment in the number and kind
of shares that may thereafter be issued under the Plan and in the number and
kind 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 transaction or event, and all such adjustments shall be conclusive upon all
persons.
24. Delivery of Shares in Lieu of Cash Incentive Awards
24.1 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.
24.2 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 other-
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wise payable to the employee under such incentive plan for which a
Share delivery is to be made in lieu of cash payment.
24.3 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.
24.4 Such applications and such delivery of Shares shall not be permitted
on or after March 1, 2012.
25. Loans
25.1 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 25 as well as such other items as may be established by
the Committee.
25.2 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.
25.3 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.
25.4 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.
25.5 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.
26. 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, 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.
27. 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
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withhold or receive Shares and to make cash payments in respect thereof in
satisfaction of an individual's tax obligations.
28. 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 and any other Awards in which the Grantee has
already vested.
29. 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.
30. 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, corporation, 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.
31. 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
May 15, 2002
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 2002 Stock Option and Share Award 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 this registration statement of our reports dated January 25,
2002 included and incorporated by reference in the Yellow Corporation Form 10-K
for the year ended December 31, 2001 and to all references to our firm included
in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Kansas City, Missouri
May 14, 2002