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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POST EFFECTIVE AMENDMENT NO. 2
TO
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
2001 EMPLOYEE STOCK PURCHASE 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)
This Post-Effective Amendment to the Registration Statement shall
become effective upon filing with the Securities and Exchange Commission (the
"Commission") pursuant to Rule 464 under the Securities Act of 1933, as amended
(the "Securities Act").
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered(1) share price fee
---------------- ---------------- -------------- ---------------- --------------
Common Stock
$.01 par value 150,000 shares $27.77(2) $4,165,500(2) $383.27
================ ================ ============== ================ ==============
(1) Pursuant to Rule 416 of 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 2001 Employee Stock Purchase 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.
STATEMENT UNDER GENERAL INSTRUCTION E
REGISTRATION OF ADDITIONAL SECURITIES
This Registration Statement on Form S-8 (the "Registration Statement") is being
filed pursuant to General Instruction E to Form S-8 under the Securities Act to
register additional shares of the registrant's Common Stock issuable pursuant to
the Plan. Unless otherwise noted herein, this Registration Statement
incorporates by reference the contents of Roadway's registration statement
relating to the Plan on Form S-8 (File No. 333-2562), and all exhibits thereto,
which was previously filed with the Commission on March 20, 1996 and the Post
Effective Amendment No. 1 thereto on Form S-8 (File No. 333-02562-99), and all
exhibits thereto, which was previously filed with the Commission on July 13,
2001.
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 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
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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 Corporation 2001 Employee Stock Purchase Plan
(Incorporated by reference to Exhibit 4.2 to the
Registration Statement on Form S-8 filed on July 13,
2001).
4.4 Amendment No. 1 to the Roadway Corporation 2001
Employee Stock Purchase Plan.*
4.5 Amendment No. 2 to the Roadway Corporation 2001
Employee Stock Purchase 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
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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.
(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
Director August ___, 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
---------------------------
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 2001 Employee Stock Purchase Plan
(Incorporated by reference to Exhibit 4.2 to the Registration
Statement on Form S-8 filed on July 13, 2001).
4.4 Amendment No. 1 to the Roadway Corporation 2001 Employee Stock
Purchase Plan.*
4.5 Amendment No. 2 to the Roadway Corporation 2001 Employee Stock
Purchase 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.