-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MSJ96am1z/INaZoRyvlU7oh66qYbdLq2ACAYnxxAREpWS4QnyiRLBdCCFLsAgyPG U1QEn/7ZVKQgA63//qkRfA== 0000950131-02-002470.txt : 20020624 0000950131-02-002470.hdr.sgml : 20020624 20020624115301 ACCESSION NUMBER: 0000950131-02-002470 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020624 EFFECTIVENESS DATE: 20020624 FILER: COMPANY DATA: COMPANY CONFORMED NAME: USFREIGHTWAYS CORP CENTRAL INDEX KEY: 0000881791 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 363790696 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-91042 FILM NUMBER: 02685116 BUSINESS ADDRESS: STREET 1: 8550 W BRYN MAWR AVE STREET 2: SUITE 700 CITY: CHICAGO STATE: IL ZIP: 60631 BUSINESS PHONE: 8476960200 MAIL ADDRESS: STREET 1: 9700 HIGGINS ROAD SUITE 570 CITY: ROSEMONT STATE: IL ZIP: 60018 FORMER COMPANY: FORMER CONFORMED NAME: TNT FREIGHTWAYS CORP DATE OF NAME CHANGE: 19930328 S-8 1 ds8.txt FORM S-8 Registration No. __________ As filed with the Securities and Exchange Commission on June 24, 2002 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------------- USFREIGHTWAYS CORPORATION (Exact name of registrant as specified in its charter) Delaware 36-3790696 (State or other Jurisdiction (I.R.S. Employer of incorporation or organization) Identification Number) 8550 West Bryn Mawr Avenue, Suite 700 (773) 824-1000 Chicago, Illinois 60631 (Telephone number, including (Address, including zip code, of area code, of registrant's registrant's principal executive offices) principal executive offices) USFREIGHTWAYS CORPORATION DIRECTORS COMPENSATION PLAN Samuel K. Skinner Chairman, President and Chief Executive Officer USFreightways Corporation 8550 West Bryn Mawr Avenue, Suite 700 Chicago, Illinois 60631 (773) 824-1000 copy to: Richard C. Pagano Senior Vice President General Counsel and Secretary 8550 West Bryn Mawr Avenue, Suite 700 Chicago, Illinois 60631 (773) 824-1000 (Name, address, including zip code and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------- Title of each Amount to be Proposed maximum Proposed maximum Amount of class of securities registered(1) offering price per aggregate offering registration fee(2) to be registered share(2) price(2) - ---------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share 25,000 $35.76 $894,000 $83 - ----------------------------------------------------------------------------------------------------------------
(1) This Registration Statement includes any additional shares of the registrant's Common Stock that may be issued pursuant to antidilution provisions contained in the plan. (2) The offering price is not known. Pursuant to Rule 457(h), the registration fee was completed on the basis of the average of the high and low prices of the registrant's Common Stock on the NASDAQ National Market on June 18, 2002. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, which have heretofore been filed by USFreightways Corporation (the "Company") with the Securities and Exchange Commission (the "Commission"), are incorporated by reference in this Registration Statement, except to the extent that any statement or information therein is modified, superseded or replaced by a statement or information contained in any other subsequently filed document incorporated herein by reference: i. the Company's Annual Report on Form 10-K for the year ended December 31, 2001, filed with the Commission on March 22, 2002; ii. the Company's Quarterly Report on Form 10-Q for the period ended March 30, 2002, filed with the Commission on May 10, 2002; iii. the Company's Current Report on Form 8-K filed with the Commission on May 30, 2002; iv. the description of the Company's Common Stock, $0.01 par value per share, contained in the Company's Registration Statement on Form 10 under the Securities Exchange Act of 1934 (the "Exchange Act") with respect to such stock and all amendments and reports filed for purposes of updating such descriptions; and v. the description of the Company's stock purchase rights contained in the Company's Registration Statement on Form 8-A, dated March 18, 1994, including any amendment or report filed for the purpose of updating such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof, and 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 herein and to be a part hereof from the date of filing of such documents. On June 15, 2002, Arthur Andersen LLP, the Company's independent public accounting firm for the years ended January 3, 1998 through 2001, was convicted on federal obstruction of justice charges arising from the U.S. Government's investigation of Enron Corp. On May 30, 2002, the Company dismissed Arthur Andersen LLP as its independent public accountants and hired Deloitte & Touche LLP as its independent auditors for the year ending December 31, 2002. The Company has not been able to obtain, after reasonable efforts, the written consent of Arthur Andersen LLP to its naming it in this Registration Statement as having certified the Company's consolidated financial statements for the year 2 ended December 31, 2001, as required by Section 7 of the Securities Act. Accordingly, investors will not be able to sue Arthur Andersen LLP pursuant to Section 11(a)(4) of the Securities Act and therefore may have their recovery limited as a result of the lack of consent. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The by-laws of the Company provide that the Company shall indemnify its officers and directors to the fullest extent permitted by applicable law. Section 145 of the Delaware General Corporation Law (the "DGCL") provides, in general, that each director and officer of a corporation may be indemnified against expenses (including attorneys' fees, judgments, fines and amounts paid in settlement) actually and reasonably incurred in connection with the defense or settlement of any threatened, pending or completed legal proceedings in which he is involved by reason of the fact that he is or was a director or officer if he acted in good faith and in a manner that he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, if he had no reasonable cause to believe that his conduct was unlawful. If the legal proceeding, however, is by or in the right of the Company, the director or officer may not be indemnified in respect of any claim, issue or matter as to which he shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless a court determines otherwise. The Restated Certificate of Incorporation of the Company provides that the personal liability of the directors of the Company shall be eliminated to the fullest extent permitted by applicable law. The DGCL permits a corporation's certificate of incorporation to provide that no director of the Company shall be personally liable to the Company or its stockholders for monetary damages for any breach of his fiduciary duty as a director, provided, however, that such provision shall not apply to any liability of a director (1) for any breach of a director's duty of loyalty to the Company or its stockholders, (2) for acts or omissions that are not in good faith or involve intentional misconduct or a knowing violation of the law, (3) under Section 174 of the DGCL, or (4) for any transaction from which the director derived an improper personal benefit. Item 7. Exemption From Registration Claimed. Not applicable. Item 8. Exhibits. See Exhibit Index which is incorporated herein by reference. 3 Item 9. Undertakings. (a) The undersigned registrant hereby undertakes: (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 of 1933 (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; 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 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant 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. (b) The undersigned registrant hereby undertakes 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 each filing of the 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 the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to officers, directors, and controlling persons of the registrant pursuant to 4 the registrant's certificate of incorporation or by-laws, or otherwise, the registrant has been advised that in the opinion of the 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 Securities Act and will be governed by the final adjudication of such issue. 5 SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act, 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 Chicago, State of Illinois, on the 18th day of June, 2002. USFreightways Corporation By:/s/ Christopher L. Ellis ------------------------ Christopher L. Ellis Senior Vice President, Finance and Chief Financial Officer 6 POWER OF ATTORNEY The undersigned hereby appoint Christopher L. Ellis, Robert S. Owen and Richard C. Pagano, and each of them singly, as true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of USFreightways Corporation) to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in their respective capacities on this 18th day of June, 2002.
Signature Title - --------- ----- /s/ Samuel K. Skinner - ----------------------------- President, Chief Executive Officer and Samuel K. Skinner Director (Principal Executive Officer) /s/ Christopher L. Ellis - ----------------------------- Senior Vice President, Finance and Chief Financial Officer Christopher L. Ellis (Principal Financial and Officer) /s/ Robert S. Owen - ---------------------------- Robert S. Owen Controller and Principal Accounting Officer /s/ Robert V. Delaney - ---------------------------- Robert V. Delaney Director /s/ Neil A. Springer - ---------------------------- Neil A. Springer Director /s/ William N. Weaver, Jr. - ---------------------------- William N. Weaver, Jr. Director /s/ Morley Koffman - ---------------------------- Morley Koffman Director /s/ John W. Puth - ---------------------------- John W. Puth Director /s/ Anthony J. Paoni - ---------------------------- Anthony J. Paoni Director /s/ Stephen B. Timbers - ---------------------------- Stephen B. Timbers Director
7 EXHIBIT INDEX
Exhibit Number Description of Exhibit ------ ---------------------- 4.1 Amended and Restated Certificate of Incorporation of USFreightways Corporation (incorporated by reference from Exhibit 3.1 to USFreightways Corporation Transition Report on Form 10-K, from June 29, 1991 to December 28, 1991); Certificate of Designation for Series A Junior Participating Cumulative Preferred Stock (incorporated by reference from Exhibit 3(a) to USFreightways Corporation Annual Report on Form 10-K for the year ended January 1, 1994); Certificate of Amendment of Restated Certificate of Incorporation of USFreightways Corporation (incorporated by reference from Exhibit 3(i) to USFreightways Corporation Report on Form 10-Q for the quarter ended June 29, 1996). 4.2 By-laws of USFreightways Corporation, as restated as of October 27, 2000 (incorporated by reference from Exhibit 3(b) to USFreightways Corporation Annual Report on Form 10-K for the year ended December 31, 2000). 4.3 Indenture, dated as of May 5, 1999 among USFreightways Corporation, the Guarantors named therein and Bank One, Michigan, as Trustee (as the successor-in-interest to NBD Bank) (incorporated by reference from Exhibit 4.1 to USFreightways Corporation Current Report on Form 8-K, filed on May 11, 1999). 4.4 First Supplemental Indenture, dated as of January 31, 2000 among USFreightways Corporation, the Guarantors named therein and Bank One, Michigan, as Trustee (as the successor-in-interest to NBD Bank) (incorporated by reference from Exhibit 4.5 to USFreightways Corporation Registration Statement on Form S-3, filed on January 31, 2000, Registration No. 333-95777). 4.5 USFreightways Corporation Directors Compensation Plan 5 Opinion of Sachnoff & Weaver, Ltd. 23 Consent of Sachnoff & Weaver, Ltd. (included in Exhibit 5). 24 Power of Attorney (contained on the signature page hereto).
EX-4.5 3 dex45.txt USFREIGHTWAYS DIRECTORS COMPENSATION PLAN Exhibit 4.5 USFREIGHTWAYS CORPORATION DIRECTORS COMPENSATION PLAN I. PURPOSE The USFreightways Corporation Directors Compensation Plan (the "Plan") is intended to provide compensation to the non-employee members of the Board of Directors (the "Board") of USFreightways Corporation (the "Company") in exchange for their services as members of the Board. Directors of the Company who are also employees of the Company shall not be separately compensated for their services as directors. II. ADMINISTRATION The Plan shall be administered by the Compensation Committee of the Board. The Committee shall have the authority to establish from time to time such regulations and make such determinations as it deems necessary or advisable for the administration of the Plan. The Committee shall have the exclusive right to interpret the provisions of the Plan and to determine any questions arising in connection with the Plan, including the remedying of any omission, inconsistency, or ambiguity, and its decision or action in respect thereof shall be conclusive and binding upon the members of the Board. III. COMPENSATION A. Cash/Stock. Each director shall receive, in exchange for his services performed as a member of the Board, the following: (1) annual cash compensation in an amount equal to $15,000, which shall be payable at such time or times during the year as determined by the Committee; and (ii) annual equity compensation equal to that number of shares of the Company's common stock (the "Stock") having a fair market value equal to $20,000. The Stock compensation shall be payable at such time or times during the year as determined by the Committee. The maximum number of shares of Stock which shall be made available for issuance under the Plan shall not exceed twenty-five thousand (25,000) shares. B. Additional Fees/Options. In addition to the annual fees described in Paragraph A above, the directors also shall be paid such amounts as determined by the Board in exchange for their attendance at meetings and service on various committees of the Board and such other amounts in the form of stock options as the Board may from time to time approve. C. Deferral of Fees. Notwithstanding the terms of Paragraphs A and B, each director may elect to defer all or any portion of the cash or Stock compensation he or she would otherwise be entitled to receive hereunder pursuant to the terms of the Company's Non-Qualified Deferred Compensation Plan (the "Deferred Compensation Plan"). In accordance with the terms of the Deferred Compensation Plan, amounts that are deferred by the directors shall be deemed to be invested among certain investment alternatives offered under the Deferred Compensation Plan. In this regard, any Stock that is deferred into the Deferred Compensation Plan will be deemed to have been invested in Company Stock. IV. AMENDMENT AND TERMINATION The Board may amend or terminate all or any features of the Plan at any time, provided, however, that no such amendment or termination may diminish or reduce any directors' rights with respect to any compensation accrued to such time. V. MISCELLANEOUS A. Insider Trading. Each director who receives Stock under this Plan agrees that he or she shall not sell the shares acquired except in accordance with the Company's Securities Trading Policy and, to that end, such director agrees to seek the permission of the Company's Senior Vice President, General Counsel & Secretary prior to executing such a sale. The Company agrees that it shall not restrict any resales by a director except as may be deemed necessary for compliance with its Securities Trading Policy. B. Withholding. The Company shall have the power and right to deduct or withhold an amount sufficient to satisfy federal, state, and local taxes required by law to be withheld with respect to any distribution. C. Governing Law. The Plan shall be interpreted and administered in accordance with the laws of the State of Illinois and any action commenced to enforce any of the provisions hereof shall have as its sole and exclusive venue the County of Cook, Illinois. EX-5 4 dex5.txt OPINION OF SACHNOFF & WEAVER, LTD. Exhibit 5 [LETTERHEAD OF SACHNOFF & WEAVER, LTD.] June 20, 2002 USFreightways Corporation 8550 West Bryn Mawr Avenue Suite 700 Chicago, IL 60631 Re: Registration Statement on Form S-8 USFreightways Corporation Directors Compensation Plan Gentlemen: We have acted as counsel for USFreightways Corporation (the "Company") in connection with the Registration Statement on Form S-8 filed by the Company with the Securities and Exchange Commission to effect the registration, pursuant to the Securities Act of 1933, of 25,000 shares of common stock, $.01 par value (the "Common Stock"), which may be offered by the Company under the above-referenced plan (the "Plan"). In connection with this opinion, we have relied as to matters of fact, without investigation, upon certificates of public officials and others and upon affidavits, certificates and statements of directors, officers and employees of, and the accountants for, the Company. We also have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate and other instruments, documents and records as we have deemed relevant and necessary to examine for the purpose of this opinion, including the Plan. In addition, we have reviewed such questions of law as we have considered necessary and appropriate for the purposes of this opinion. We have assumed the accuracy and completeness of all documents and records that we have reviewed, the genuineness of all signatures, the due authority of the parties signing such documents, the authenticity of all documents submitted to us as originals, the conformity to original documents of all the documents submitted to us as certified or photostatic copies and the authenticity of the originals of such latter documents. Based upon and subject to the foregoing, we advise you that, in our opinion, the shares of Common Stock proposed to be offered by the Company as set forth in the Registration Statement have been duly authorized and, when issued and sold in accordance with the USFreightways Corporation Directors Compensation Plan referred to in the Registration Statement, such shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the above-referenced Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission. We express no opinions as to matters under or involving any laws other than the federal laws of the United States of America and the General Corporation Law of the State of Delaware. Very truly yours, /s/ SACHNOFF & WEAVER, LTD. ----------------------------------------- SACHNOFF & WEAVER, LTD. -----END PRIVACY-ENHANCED MESSAGE-----