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 CORPORATION
NONEMPLOYEE DIRECTORS' EQUITY AND
DEFERRED COMPENSATION 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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Title of Proposed Proposed
securities maximum maximum
to be Amount offering aggregate Amount of
registered to be price per offering registration
Common Stock registered(1) share price fee
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$.01 par value 100,000 shares $27.77(2) $2,777,000(2) $255.48
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(1) Pursuant to Rule 416 of the Securities Act of 1933 (the "Securities Act"),
this Registration Statement also covers such additional shares of Common
Stock, $.01 par value ("Common Stock"), as may become issuable pursuant to
the anti-dilution provisions of the Roadway Corporation Nonemployee
Directors' Equity and Deferred Compensation Plan (the "Plan") described
herein.
(2) Pursuant to Rule 457(h) under 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 the Common Stock
on the Nasdaq National Market on August 8, 2002.
PART II
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 Securities and
Exchange Commission (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 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 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
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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 Corporation Nonemployee Directors' Equity and
Deferred Compensation Plan.*
4.4 Amendment No. 1 to the Roadway Corporation Nonemployee
Directors' Equity and Deferred Compensation 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
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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
Director August __, 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
/s/ * Director August 13, 2002
------------------------
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 Corporation Nonemployee Directors' Equity and
Deferred Compensation Plan.*
4.4 Amendment No. 1 to the Roadway Corporation Nonemployee
Directors' Equity and Deferred Compensation 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.