As filed with the Securities and Exchange Commission on August 13, 2002.
Registration No. _______
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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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ROADWAY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 34-1956254
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
1077 Gorge Boulevard, Akron, Ohio 44310
(Address of principal executive offices) (zip code)
ROADWAY EXPRESS, INC.
UNION STOCK PLAN
(FULL TITLE OF THE PLAN)
John J. Gasparovic
Vice President, General Counsel and Secretary
Roadway Corporation
1077 Gorge Boulevard
Akron, Ohio 44310
(Name and address of agent for service)
(330) 384-1717
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share price fee
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Common Stock
$.01 par value 200,000 shares $27.77(1) $5,554,000(1) $510.97
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(1) Pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act"), this estimate is made solely for the purpose of
calculating the amount of the registration fee and is based on the average
of the high and low prices of Common Stock, $.01 par value of Roadway
Corporation ("Common Stock") on the Nasdaq National Market on August 8,
2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Roadway Corporation
(Commission File No. 000-32821), successor to Roadway Express, Inc. (the
"Company" or the "Registrant"), with the Commission are incorporated herein by
reference:
(1) Annual Report of Roadway Corporation on Form 10-K for the year
ended December 31, 2001;
(2) Quarterly Reports of Roadway Corporation on Form 10-Q for the
periods ended March 23, 2002 and June 15, 2002;
(3) Current Reports of Roadway Corporation on Form 8-K dated
January 23, 2002 and May 24, 2002; and
(4) The description of the Common Stock contained in the
Registration Statement of Roadway Corporation on Form 8-A
filed on May 30, 2001.
All documents that shall be filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") subsequent to the filing of this registration statement and prior to the
filing of a post-effective amendment indicating that all securities offered
under the Roadway Express, Inc. Union Stock Plan have been sold or deregistering
all securities then remaining unsold thereunder shall be deemed to be
incorporated herein by reference and shall be deemed to be a part hereof from
the date of filing thereof.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Delaware law, a corporation may include in its certificate of
incorporation ("Certificate") a provision that eliminates or limits the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duties as a director, but no such provision may
eliminate or limit the liability of a director (a) for any breach of duty of
loyalty, (b) for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (c) under Section 174 of the Delaware
General Corporation Law (the "DGCL") (dealing with illegal redemptions and stock
repurchases), or (d) for any transaction from which the director derived an
improper personal benefit. The Registrant's Certificate limits personal
liability of directors to the fullest extent permitted by Delaware law.
Delaware law also provides that a corporation (a) must indemnify its
directors, officers, employees, and agents for all expenses of litigation when
they are successful on the merits or otherwise; (b) may indemnify such persons
for the expenses, judgments, fines, and amounts paid in settlement of litigation
(other than a derivative suit) even if they are not successful on the merits, if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation (and, in the case of
criminal
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proceedings, have no reason to believe that their conduct was unlawful); and (c)
may indemnify such persons for the expenses of a derivative suit even if they
are not successful on the merits if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation, provided that no such indemnification may be made on behalf of a
person adjudged to be liable in a derivative suit, unless the Delaware Chancery
Court determines that, despite such adjudication but in view of all of the
circumstances, such person is entitled to indemnification. In any such case,
indemnification may be made only upon determination by (i) a majority of the
disinterested directors, (ii) independent legal counsel or (iii) the
stockholders that indemnification is proper because the applicable standard of
conduct was met. The advancement of litigation expenses to a director or officer
is also authorized upon receipt by the board of directors of an undertaking to
repay such amounts if it is ultimately determined that such person is not
entitled to be indemnified for them.
The Registrant's Certificate authorizes mandatory indemnification to
the full extent permitted by Delaware law, and authorizes the Registrant to
enter into indemnification agreements with directors, officers and other persons
entitled to indemnification thereunder. The Registrant's Certificate further
authorizes the Registrant to provide by agreement for indemnification greater or
different than set forth in the Registrant's Certificate. The Registrant has
entered into indemnification agreements with its directors and certain officers
that indemnify such persons to the maximum extent permitted by applicable law.
The Registrant has a directors' and officers' liability insurance
policy in place pursuant to which its directors and officers are insured against
certain liabilities, including certain liabilities under the Securities Act and
the Exchange Act.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of the
Company (Incorporated by reference to Exhibit 3.1 to the
Current Report on Form 8-K filed by Roadway Express, Inc. on
May 30, 2001).
4.2 Amended and Restated Bylaws of the Company (Incorporated by
reference to Exhibit 3.2 to the Current Report on Form 8-K
filed by Roadway Express, Inc. on May 30, 2001).
4.3 Roadway Express, Inc. Union Stock Plan.*
5.1 Opinion of Counsel.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of PricewaterhouseCoopers LLP.*
23.3 Consent of Counsel (included in Exhibit 5.1).*
24.1 Power of Attorney.*
* Filed herewith.
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ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b), if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement
is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished
to the Commission 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.
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(b) 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 in the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions or otherwise, the Registrant has been
advised that in the opinion of the 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 connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by
it is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
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 this registration statement 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 Akron, State of Ohio, on
this 13th day of August 2002.
ROADWAY CORPORATION
By: /s/ John J. Gasparovic
--------------------------------
John J. Gasparovic
Vice President, General Counsel
and Secretary
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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 Title Date
--------- ----- ----
/s/ * Chairman and Chief August 13, 2002
------------------------------------ Executive Officer
Michael W. Wickham (Principal Executive Officer)
/s/ * Executive Vice President and August 13, 2002
------------------------------------ Chief Financial Officer
J. Dawson Cunningham (Principal Financial Officer)
/s/ * Controller August 13, 2002
------------------------------------ (Principal Accounting Officer)
John G. Coleman
/s/ * Director August 13, 2002
------------------------------------
Dale F. Frey
/s/ * Director August 13, 2002
------------------------------------
Phillip J. Meek
/s/ * Director August 13, 2002
------------------------------------
Frank P. Doyle
/s/ * Director August 13, 2002
------------------------------------
John F. Fiedler
/s/ * Director August 13, 2002
------------------------------------
Carl W. Schafer
Director August ___, 2002
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Sarah Roush Werner
* The undersigned by signing his name hereto, does sign and execute the
Registration Statement on Form S-8 pursuant to a Power of Attorney
executed on behalf of the above-indicated officers and directors of
Roadway Corporation filed herewith as Exhibit 24.1 on behalf of Roadway
Corporation and each such person.
By: /s/ John J. Gasparovic
------------------------------------
John J. Gasparovic, Attorney-in-fact
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Exhibit Index
4.1 Amended and Restated Certificate of Incorporation of the
Company (Incorporated by reference to Exhibit 3.1 to the
Current Report on Form 8-K filed by Roadway Express, Inc. on
May 30, 2001).
4.2 Amended and Restated Bylaws of the Company (Incorporated by
reference to Exhibit 3.2 to the Current Report on Form 8-K
filed by Roadway Express, Inc. on May 30, 2001).
4.3 Roadway Express, Inc. Union Stock Plan.*
5.1 Opinion of Counsel.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of PricewaterhouseCoopers LLP.*
23.3 Consent of Counsel (included in Exhibit 5.1).*
24.1 Power of Attorney.*
* Filed herewith.