1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
Form S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------
YELLOW CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 48-0948788
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
10777 Barkley
Overland Park, Kansas 66211
(913) 967-4380
(Address of Principal Executive Offices)
--------------------
Yellow Corporation
Directors' Stock Compensation Plan
(Full title of the plan)
--------------------
William F. Martin, Jr., Esq.
Senior Vice President/Secretary
Yellow Corporation
10777 Barkley
Overland Park, Kansas 66211
(913) 967-4380
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copy to:
W. Leslie Duffy, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
--------------------
Approximate date of proposed sale to public: From time to time after the
effective date of this Registration Statement.
(Cover page continued on next page)
2
-------------------------------
CALCULATION OF REGISTRATION FEE
-------------------------------
Proposed
Proposed Maximum
Title of Maximum Aggregate Amount of
Securities to Amount to be Offering Price Offering Registration
be Registered Registered Per Share Price Fee
- ------------- ------------ -------------- --------- ------------
Common Stock, par 100,000 $ 12 5/8 (1) $1,262,500(1) $ 253.00
value $1.00 per share
(1) Estimated solely for the purpose of calculating the registration fee,
computed pursuant to Rules 457(c) and (h) under the Securities Act of 1933,
as amended, on the basis of the average of the high and low prices of a
share of the registrant's Common Stock as reported by NASDAQ on April 24,
1996.
================================================================================
3
PART I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act") and the Note to Part I of Form S-8.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Yellow Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission") and
are hereby incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) The Company's Current Report on Form 8-K dated January 17,
1996 and March 20, 1996; and
(c) The description of the Company's common stock, $1.00 par
value per share, contained in the Company's Registration Statement on
Form 10 filed pursuant to Section 12 of the Securities and Exchange Act
of 1934, as amended (the "Exchange Act") and any amendments thereto.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of
4
-2-
filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities offered hereby is registered under Section
12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of another corporation or enterprise. Depending on the character of
the proceeding, a corporation or enterprise. Depending on the character of the
proceeding, a corporation may indemnify against expenses (including attorneys'
fees), judgments, fines and/or amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or proceeding if the
person indemnified acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe such person's conduct was unlawful. In the case of an action by or in
the right of the corporation, no indemnification may be made with respect to
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
that despite the adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the
5
-3-
court shall deem proper. Section 145 further provides that to the extent a
director, officer, employee or agent of a corporation has been successful in
the defense of any action, or any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith. Section 145 also
states that the indemnification provided for in such Section shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled and
empowers the corporation to purchase and maintain insurance on behalf of
directors, officers, employees and agents of the corporation against any
liability asserted against such person or incurred by such person in any such
capacity or arising out of such person's status as such whether or not the
corporation would have the power to indemnify such person against such
liabilities under Section 145.
In addition, directors and officers of the Registrant are entitled
to indemnification as provided in Article V of its Bylaws. Such Article V
provides as follows:
Section 1. Right to Indemnification
a. Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative ("proceeding"), by reason of
the fact that he or she or a person for whom he or she is the legal
representative is or was a director, officer or employee of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity as
a director, officer, employee or agent, shall be indemnified and held harmless
by the corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent such amendment permits the
corporation to provide broader indemnification rights than said law permitted
the corporation to provide prior to such amendment) against all expenses,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith; provided, however,
that with respect to any agent or employee, to the extent any such expenses,
liabilities
6
-4-
or losses are covered by insurance, other than insurance maintained
by the corporation, the corporation shall be required to indemnify and hold
harmless such agent or employee only to the extent that such expenses,
liabilities or losses are not covered by such insurance. Such right shall be a
contract right and shall include the right to be paid by the corporation
expenses incurred in defending any such proceedings in advance of its final
disposition; provided, however, that the payment of such expenses incurred by a
director or officer of the corporation in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of such
proceeding, shall be made only upon delivery to the corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it should be determined ultimately that such director or officer
is not entitled to be indemnified under this section or otherwise.
b. Any person who is or was an agent of the corporation, and who
would be entitled to be indemnified by the corporation under the circumstances
set forth in Section 1(a) but for the fact that such person is not or was not a
director, officer or employee of the corporation, may be indemnified by the
corporation (but shall not be entitled to be indemnified by the corporation) in
a specific case to all or part of the extent set forth in Section 1(a), if the
Board of Directors determines that it is in the best interests of the
corporation to grant such indemnity. Authorization for such indemnity and the
extent thereof shall be determined by majority vote of a quorum of the Board of
Directors.
Section 2. Right of Claimant to Bring Suit
If a claim under Section 1 is not paid in full by the corporation
within 90 days after a written claim has been received by the corporation, the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim, and if successful in whole or in part,
the claimant shall be entitled to be paid also the expenses of prosecuting such
claim. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending any proceeding in advance
of its final disposition where the required undertaking has been tendered to
the corporation) that the claimant has not met the standards of conduct which
make it permissible under the Delaware General Corporation Law for the
corporation to
7
-5-
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant had not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant had
not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights
The rights conferred by Sections 1 and 2 shall not be exclusive of
any other right which such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, bylaw, agreement, vote
of stockholders or disinterested directors or otherwise.
Section 4. Insurance
The corporation may maintain insurance, at its expense, to protect
itself and any such director, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
such expense, liability or loss, whether or not the corporation would have the
power to indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
Section 5.
For purposes of this Article, reference to "other enterprise" shall
include entities of any kind, including associations, rate bureaus and
conferences.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
8
-6-
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this Registration
Statement:
Exhibit No. Description
- ----------- -----------
5 Opinion of Cahill Gordon & Reindel as to
the legality of the Common Stock being
registered
23.1 Consent of Cahill Gordon & Reindel
(included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers of sales are being
made, if applicable, a post-effective amendment to this Registration
Statement: (a) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933; (b) 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; and (c) 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
clauses (1)(a) and 1(b) shall not apply if the information required to be
included therein is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein,
9
-7-
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
(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.
The undersigned registrant hereby undertakes that, 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
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 of 1933, 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
10
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 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 Overland Park, State of Kansas on the 25th day
of April, 1996.
YELLOW CORPORATION
By: /s/ William F. Martin, Jr.
--------------------------------------
William F. Martin, Jr.
Senior Vice President
and Secretary
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 Capacity in Which Signed Date
--------- ------------------------ ----
/s/ A. Maurice Myers President, Chief Executive, April 25, 1996
- --------------------------- Officer and Director
A. Maurice Myers
/s/ George E. Powell, Jr. Chairman of the Board and April 25, 1996
- --------------------------- Director
George E. Powell, Jr.
/s/ M. Reid Armstrong President, Yellow Freight April 25, 1996
- --------------------------- System, Inc. and Director
M. Reid Armstrong
/s/ Klaus E. Agthe Director April 25, 1996
- ---------------------------
Klaus E. Agthe
/s/ Howard M. Dean Director April 25, 1996
- ---------------------------
Howard M. Dean
/s/ David H. Hughes Director April 25, 1996
- ---------------------------
David H. Hughes
11
/s/ Ronald T. LeMay Director April 25, 1996
- ---------------------------
Ronald T. LeMay
/s/ John C. McKelvey Director April 25, 1996
- ---------------------------
John C. McKelvey
/s/ George E. Powell, III Director April 25, 1996
- ---------------------------
George E. Powell, III
/s/ William L. Trubeck Director April 25, 1996
- ---------------------------
William L. Trubeck
12
Exhibit Index
Exhibit No. Description
- ----------- -----------
5 Opinion of Cahill Gordon & Reindel as to
the legality of the Common Stock being
registered
23.1 Consent of Cahill Gordon & Reindel
(included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
1
EXHIBIT 5
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
(212) 701-3000
April 25, 1996
Yellow Corporation
10777 Barkley
Overland Park, Kansas 66211
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") being filed
by you with the Securities and Exchange Commission under the Securities Act of
1933, as amended, with respect to the 100,000 shares of Common Stock, par value
$1.00 per share (the "Common Stock"), of Yellow Corporation (the "Company")
which are to be granted (a "Grant") pursuant to the Yellow Corporation
Directors' Stock Compensation Plan (the "Plan").
We advise you that, in our opinion, upon the issuance of Common Stock
pursuant to a Grant in accordance with the terms of the Plan, and in each case
upon payment to the Company of any consideration for such Common Stock provided
for in the Plan or any agreement with the Company relating to the applicable
Grant (which consideration is assumed herein to be in no event less than the
par value of the Common Stock being issued upon such payment), the shares of
the Common Stock so issued will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the aforesaid Registration Statement.
Very truly yours,
/s/ Cahill Gordon & Reindel
1
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As Independent Public Accountants, we hereby consent to the use of our
reports (and to all references to our firm) included in or made a part of this
Registration Statement.
/s/ Arthur Andersen LLP
---------------------------------------
Arthur Andersen LLP
Kansas City, Missouri
April 26, 1996
