AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 8, 2002
REGISTRATION NO. 333-84314
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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YELLOW CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 48-0948788
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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10990 ROE AVENUE
P.O. BOX 7563
OVERLAND PARK, KANSAS 66207
(913) 696-6100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
WILLIAM F. MARTIN, JR.
SENIOR VICE PRESIDENT, LEGAL AND CORPORATE SECRETARY
10990 ROE AVENUE
P.O. BOX 7563
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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COPIES TO:
W. LESLIE DUFFY, ESQ. JOHN R. SAGAN, ESQ.
CAHILL GORDON & REINDEL PHILLIP J. NIEHOFF, ESQ.
80 PINE STREET MAYER, BROWN, ROWE & MAW
NEW YORK, NY 10005 190 SOUTH LASALLE STREET
(212) 701-3000 CHICAGO, IL 60603-3441
(312) 782-0600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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EXPLANATORY NOTE
THIS AMENDMENT NO. 2 IS BEING FILED SOLELY FOR THE PURPOSE OF FILING EXHIBITS.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, incurred in connection with the sale of
common stock being registered (all amounts are estimated except the SEC
registration fee and the NASD Filing Fee).
Securities and Exchange Commission Registration Fee......... $ 9,198
NASD Filing Fee............................................. 10,498
Legal Fees and Expenses..................................... 250,000
Accounting Fees and Expenses................................ 200,000
Printing and engraving expenses............................. 100,000
Miscellaneous............................................... 150,304
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Total..................................................... $720,000
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ITEM 15. 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.
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ITEM 16. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
EXHIBIT
NO. DESCRIPTION
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1 Form of Underwriting Agreement
4.1 Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3(i) to the Company's Report on Form
10-Q for the quarter ended March 31, 1996).
4.2 Bylaws of the Company (incorporated by reference to Exhibit
3ii to the Company's Report on Form 10-K for the year ended
December 31, 2001).
5** Opinion of Cahill Gordon & Reindel regarding the legality of
the securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Accountants.
23.2** Consent of Cahill Gordon & Reindel (included in Exhibit 5).
24** Powers of Attorney authorizing execution of Registration
Statement on Form S-3 on behalf of certain directors and
officers of the registrant (included on the signature pages
to this Registration Statement).
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** Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that:
1. For purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 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
2. For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
3. For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
4. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 whether such indemnification by it is
against public policy as expressed in the 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, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing Amendment No. 2 to Form S-3 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
this 8th day of April, 2002.
YELLOW CORPORATION
By: /s/ WILLIAM D. ZOLLARS
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Name: William D. Zollars
Title: Chairman of the Board of
Directors,
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed on April 8, 2002 by the following
persons in the capacities indicated.
NAME TITLE DATE
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* Chairman of the Board of April 8, 2002
------------------------------------------------ Directors, President and Chief
William D. Zollars Executive Officer
* Senior Vice President and Chief April 8, 2002
------------------------------------------------ Financial Officer
Donald G. Barger, Jr.
* Director April 8, 2002
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Howard M. Dean
/s/ CASSANDRA C. CARR Director April 8, 2002
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Cassandra C. Carr
* Director April 8, 2002
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Carl W. Vogt
/s/ RICHARD C. GREEN, JR. Director April 8, 2002
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Richard C. Green, Jr.
* Director April 8, 2002
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Dennis E. Foster
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NAME TITLE DATE
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/s/ JOHN C. MCKELVEY Director April 8, 2002
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John C. McKelvey
/s/ WILLIAM L. TRUBECK Director April 8, 2002
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William L. Trubeck
*By: /s/ WILLIAM D. ZOLLARS
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Name: William D. Zollars
Pursuant to powers of attorney filed with
the registration statement on Form S-3
(333-84314) on March 14, 2002.
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