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Mail Stop 0303
November 23, 2004
Via Facsimile (713) 651-5246 and U.S. Mail
Charles L. Strauss, Esq.
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, TX 77010
Re: Yellow Roadway Corporation
Form S-4
Filed on October 27, 2004
File No. 333-119990
Dear Mr. Strauss:
The staff of the Office of Mergers and Acquisitions in the
Division of Corporation Finance at the Securities and Exchange
Commission has conducted a limited review of the registration
statement on Form S-4 filed by Yellow Roadway Corporation on
October 27, 2004. While noting that you have not filed a Schedule TO,
and that your documents are in preliminary form, the staff`s review
focused on compliance with the federal rules applicable to tender offers,
found in Regulations 14D and 14E. Based on this limited review,
we have the following comments on your filing.
Where indicated, we think you should revise your document in
response to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation. In some of our comments, we may ask you to provide us
with supplemental information so we may better understand your
disclosure. After reviewing this information, we may or may not raise
additional comments.
Please understand that the purpose of our review process is to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome any
questions you may have about our comments or on any other aspect
of our review. Feel free to call me at the telephone number listed
at the end of this letter.
General
1. We urge the company and all persons who are responsible for the
accuracy and adequacy of the disclosure in the filings reviewed by
the staff to be certain that they have provided all information
investors require. Since the company is in possession of all
facts relating to its disclosure, the company is responsible for the
accuracy and adequacy of the disclosures it has made.
In connection with responding to our comments, please provide, in
writing, a statement from the company acknowledging that:
* the company is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of Enforcement
has access to all information you provide to the staff of the Division
of Corporation Finance in our review of your filing or in response to
our comments on your filing.
2. Your draft Offer to Exchange appears to be a pre-commencement
tender offer communication, which must be filed under cover of a
Schedule TO. See Instruction 1 to Rule 13e-4(c).
3. Refer to the statement on the cover page that the offer will
close at 5:00 pm on a specified date. Please confirm to us that you
intend to keep the offer open for a full 20 business days, in keeping
with Rule 13e-4(f)(1)(i). Please note that a business day as defined
by Rule 13e-4(a)(3) ends at midnight Eastern Standard Time and does
not include federal holidays.
4. We note that the "terms of the New Notes are identical to the
Existing Notes" except that you have changed the conversion
feature so that Yellow Roadway may account for the New Notes under
the treasury stock method (but carry over the holding period for the
Existing Notes). If the outstanding notes were not issued in a
registered offering, please tell us the exemption upon which you
relied to issue those securities and why it is appropriate to
exchange them for similar securities in a registered offering.
5. Please confirm, if true, that Yellow Roadway is an S-3
registrant.
6. It appears the issuer is attempting to satisfy its disclosure
obligations with respect to Item 10 of Schedule TO by
incorporating financial information by reference at page 69. Revise
to include complete summarized financial information required by
Item 1010(c) of Regulation M-A. In the event financial information
required by Item 1010(a) and (b) has been incorporated by reference,
all of the summarized financial information required by Item 1010(c)
must be disclosed in the disclosure document furnished to security
holders. See Instruction 6 to Item 10 of Schedule TO. In addition,
refer to telephone interpretation H.7 in the July 2001 supplement to
our "Manual of Publicly Available Telephone Interpretations" that is
available on the Commission`s website at www.sec.gov. for
additional guidance.
Cautionary Statements Regarding Forward-Looking Information, page
ii
7. The Private Securities Litigation Reform Act does not apply to
statements made in connection with a tender offer. See Section
21E(b)(2)(C) of the Securities Exchange Act of 1934. Please
eliminate any reference to the safe harbor and the Act. See also
Q&A 2, Section I.M. of the Division of Corporation Finance`s Manual
Of Publicly Available Telephone Interpretations, which is available
on our website at www.sec.gov.
Summary, page 4
8. We note your disclosure that the tax consequences of the
exchange are unclear. Please disclose the name of any tax counsel
from whom you have sought an opinion, or whose advice you have relied
upon.
9. You have included a draft letter of transmittal with your
offer. By filing a draft letter of transmittal to which security
holders have access, the issuer has published the means to tender and
improperly commenced the offer. See Rule 13e-4(a)(4). Please
confirm for us, if true, that issuer has not received any tenders
that were executing using this transmittal form. In addition,
please advise us when you expect properly to commence the offer.
Summary of Differences between the Existing Notes and the New
Notes, page 5
10. Revise this section to include information about when the
Existing Notes were issued, and their maturity date.
The Exchange Offer, page 18
Acceptance of Existing Notes for Exchange; Delivery of New Notes,
page 20
11. We note that you will accept Notes promptly after expiration,
but will issue New Notes "promptly after acceptance." Revise to
clarify that you will issue the New Notes promptly after expiration
of the offer.
Return of Existing Notes Accepted for Exchange, page 21
12. We note that you will return the Existing Notes that you do
not exchange "as promptly as practicable after expiration." Revise
your disclosure to state that you will return the notes promptly, in
keeping with Rule 14e-1(c).
Conditions for Completing the Exchange Offers, page 22
13. Please confirm your understanding that that all conditions to
the offer, other than regulatory approvals, must be satisfied or
waived prior to expiration, and that a delay in payment for shares
because of the actions of a court or government agency would not
necessarily be consistent with Rule 14e-1(c).
Material U.S. Federal Income Tax Considerations, page 61
14. Revise this section to unequivocally state the tax
consequences of this transaction. If doubt exists, then revise this
section to provide an opinion on what the tax consequences "should" be
or "are more likely than not" to be. Revise to disclose that counsel
cannot opine on the material federal tax consequences, to explain why
counsel is not able to opine, describe the degree of uncertainty
in the opinion and clarify your disclosure of the possible outcomes
and risks to investors. Finally, revise the risk factor on page 12 to
clarify the risks involved in this uncertainty. Currently, the
risk factor does not specify the potentially negative tax consequences
of the transaction.
Legal and Tax Opinions
15. We note that you have filed neither your legal opinion nor
your tax opinion. Please file these documents as soon as possible.
We will review the opinions when they have been filed, and we may
have comments.
Closing
File a revised Form S-4 and a Schedule TO in response to
these comments. You may wish to provide us with marked copies of the
amendment to expedite our review. Please furnish a cover letter
with your amendments that keys your responses to our comments and
provides any requested supplemental information. If you do not agree
with a comment, tell us why in your response. Detailed cover letters
greatly facilitate our review. Please understand that we may have
additional comments after reviewing your amendment and responses to
our comments. Address your response letter to the address on the
letterhead, using 20549-0305 as the zip code.
Direct any questions to me at (202) 942-1762.
Sincerely,
Julia E. Griffith
Special Counsel
Office of Mergers and
Acquisitions