-----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, FYtpcALh5IMwngwh8B7o14hyfgjHMX2Dz4ERdEL1cT9A3oMgf95qD3UrpGcJAegW WZeELrN22luVa7UpUaxYhA== 0000950131-02-003429.txt : 20020903 0000950131-02-003429.hdr.sgml : 20020903 20020903142724 ACCESSION NUMBER: 0000950131-02-003429 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020903 EFFECTIVENESS DATE: 20020903 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: 333-99081 FILM NUMBER: 02755175 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: 8550 W. BRYN MAWR AVE STREET 2: SUITE 700 CITY: CHICAGO STATE: IL ZIP: 60631 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 September 3, 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 NONQUALIFIED EMPLOYEE STOCK PURCHASE 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(2) offering price per aggregate offering registration fee(3) to be registered(1) share(3) price(3) - ---------------------------------------------------------------------------------------------------------------- Common Stock, par value 300,000 $28.03 $8,409,000 $774 $.01 per share - ----------------------------------------------------------------------------------------------------------------
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (2) 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. (3) 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 August 29, 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 Reports on Form 10-Q for the period ended March 30, 2002, filed with the Commission on May 10, 2002; for the period ended June 29, 2002, filed with the Commission on August 13, 2002; and the Company's amended Quarterly Report on Form 10-Q/A for the period ended March 30, 2002, filed with the Commission on August 12, 2002; iii. the Company's Current Reports on Form 8-K filed with the Commission on May 30, 2002, August 12, 2002 and August 13, 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 2 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 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. 3 Item 8. Exhibits. See Exhibit Index which is incorporated herein by reference. 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 4 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 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 29th day of August, 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 29th day of August, 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 - ---------------------------- Christopher L. Ellis Financial Officer (Principal Financial 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 The Plan. Pursuant to the requirements of the Securities Act, the USFreightways Corporation Nonqualified Employee Stock Purchase Plan 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 30th day of August, 2002. USFreightways Corporation By: /s/ Gerard M. Klaisle ---------------------------------------- Gerard M. Klaisle Senior Vice President of Human Resources On behalf of its Plan Administrator 8 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 Nonqualified Employee Stock Purchase 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 CORPORATION STOCK PURCHASE PLAN Exhibit 4.5 USFREIGHTWAYS CORPORATION NONQUALIFIED EMPLOYEE STOCK PURCHASE PLAN 1. PURPOSE The purpose of the USFreightways Corporation Nonqualified Employee Stock Purchase Plan is to provide eligible Employees of USFreightways Corporation and its Affiliates with an opportunity to acquire a proprietary interest in the Company through the purchase of Common Stock of the Company on a payroll deduction basis. It is believed that participation in the ownership of the Company will be to the mutual benefit of the eligible Employees and the Company. This Plan is not intended to constitute an "employee stock purchase plan" within the meaning of Section 423 of the Internal Revenue Code of 1986, as amended. 2. DEFINITIONS Unless otherwise specified or unless the context otherwise requires, the following terms, as used in this Plan, have the following meanings. Wherever appropriate, words used in the singular shall be deemed to include the plural and vice versa, and the masculine gender shall be deemed to include the feminine gender. (a) Account means the funds accumulated with respect to an Employee as a result of deductions from his paycheck for the purpose of purchasing Common Stock under the Plan. The funds allocated to an Employee's Account shall remain the property of the Employee at all times prior to the purchase of the Common Stock, but may be commingled with the assets of the Company and used for general corporate purposes. No interest shall be paid or accrued on any funds accumulated in the Accounts of Employees. (b) Affiliate means a corporation, as defined in Section 424(f) of the Code, that is a parent or subsidiary of the Company, direct or indirect. (c) Board means the Board of Directors of the Company. (d) Code means the Internal Revenue Code of 1986, as amended. (e) Committee means the committee to which the Board delegates the power to act under or pursuant to the provisions of the Plan, or the Board if no committee is selected. (f) Common Stock means the shares of common stock of the Company, $.01 par value. (g) Company means USFreightways Corporation, a Delaware corporation, and any corporate successor to all or substantially all of the assets or voting stock of the Company. (h) Compensation means the regular straight time earnings paid to an Employee by the Company during a payroll period, excluding payments for overtime, shift premium, incentive compensation, bonuses, and other special payments except to the extent that the inclusion of any such item is specifically approved by the Committee. (i) Effective Date means the date the Plan is adopted by, and made effective by, the Board, subject to the limitations of Section 17. (j) Employee means any person who is employed by the Company or an Affiliate on a regular full-time or part-time basis, excluding, however, any employee who also is serving as an officer or director of the Company or an Affiliate. A person shall be considered employed on a regular full-time or part-time basis if he is customarily employed for more than twenty (20) hours per week, excluding, however, any employee who also is serving as an officer or director of the Company or of an Affiliate. (k) Offering Date means the date on which the Committee grants Employees the option to purchase shares of Common Stock. (l) Offering Period means the period beginning on the Offering Date and ending on the Purchase Date. (m) Participant means an Employee who elects to participate in the Plan. (n) Plan means the USFreightways Corporation Nonqualified Employee Stock Purchase Plan. (o) Purchase Date means the date on which the Committee purchases the shares of Common Stock, which date shall be the last day of an Offering Period. 3. ELIGIBILITY Subject to the enrollment limitations of Section 6, each Employee of the Company and, if designated by the Board, any Affiliate, shall be eligible to participate in the Plan on the earlier of (i) the Effective Date or (ii) the first payroll period of any calendar month next following the date the Employee submits a payroll deduction authorization. The foregoing notwithstanding, an Employee included in a unit of employees covered by a collective bargaining agreement with the Company shall not be eligible to participate in the Plan, provided the applicable union has chosen not to include such persons in the Plan. 4. ADMINISTRATION The Plan shall be administered by the Committee, which shall consist of not less than two (2) members of the Board. Subject to the provisions of the Plan, the Committee shall be vested with full authority to make, administer, and interpret such rules and regulations as it deems necessary 2 to administer the Plan, and any determination, decision, or action of the Committee in connection with the construction, interpretation, administration, and application of the Plan shall be final, conclusive, and binding upon all Participants and any and all persons claiming under or through any Participant. Notwithstanding anything to the contrary in the Plan, the Committee shall have the discretion to modify the terms of the Plan with respect to Participants who reside outside of the United States or who are employed by a subsidiary of the Company that has been formed under the laws of any foreign country, if such modification is necessary in order to conform such terms to the requirements of local laws. 5. STOCK (a) The Common Stock to be sold to Participants under the Plan may, at the election of the Company, be either treasury shares, shares acquired on the open market, and/or shares originally issued for such purpose. The aggregate number of shares of Common Stock that shall be made available for purchase under the Plan shall not exceed three hundred thousand (300,000) shares, subject to adjustment upon changes in capitalization of the Company as provided in subparagraph (b) below. In the event any purchase right granted under the Plan expires or terminates for any reason without having been exercised in full or ceases for any reason to be exercisable in whole or in part, the unpurchased shares subject thereto will again be available for purchase by Employees upon the exercise of purchase rights. If the total number of shares that otherwise would have been acquired under the Plan on any Purchase Date exceeds the number of shares of Common Stock then available under the Plan, the Company shall make a pro rata allocation of the shares remaining available in as nearly a uniform manner as shall be practicable and as it shall determine to be equitable. In such event, the payroll deductions to be made pursuant to the Participants' authorizations shall be reduced accordingly, or refunded to the Participants, as the case may be, and the Company shall give written notice of such reduction or refund to each affected Participant. (b) Appropriate adjustments in the aggregate number of shares of Common Stock that shall be made available for purchase under the Plan shall be made to give effect to any stock splits, stock dividends, or other similar changes in the capitalization of the Company. The establishment of the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations, or changes in its capital or business structure or to merge, consolidate, dissolve, liquidate, sell, or otherwise transfer all or any part of its business or assets. Adjustments under this Section 5 shall be made in the sole discretion of the Committee, and its decision shall be binding and conclusive. (c) A Participant shall not have any interest in shares covered by his authorized payroll deduction until shares of Common Stock are acquired for his Account. 3 6. PARTICIPATION (a) Each Employee who is a participant in the USF Employees' Stock Purchase Plan (the "Original ESPP") and who otherwise meets the eligibility requirements set forth in Section 3 of this Plan shall automatically become a Participant in the Plan on the Effective Date at the same rate of payroll deduction as he or she had elected under the Original ESPP, unless he or she affirmatively elects not to participate in the Plan. Except as set forth in the preceding sentence, Employees may become Participants in the Plan by authorizing a payroll deduction on a form provided by the Committee. Such authorization shall become effective on the Effective Date, or, if later, on the first day of the first payroll period of the calendar month next following the delivery of the authorization form to the Committee (or its designated representative); provided (i) that the Employee is eligible under Section 3 to participate in the Plan on such day and (ii) that if the authorization form is delivered to the Committee later than fifteen (15) days prior to the Effective Date (or the first day of the calendar month, if applicable), it shall become effective on the first day of the first payroll period of the next succeeding calendar month. (b) At the time an Employee files his authorization for a payroll deduction, he shall elect to have deductions made from each paycheck that he receives, such deductions to continue until the Participant withdraws from the Plan or otherwise becomes ineligible to participate in the Plan. Authorized payroll deductions shall be in whole number increments and shall be for a minimum of three percent (3%) and a maximum of ten percent (10%) of the Participant's Compensation. The deduction rate so authorized shall continue in effect through the Offering Period and each succeeding Offering Period; provided, however, that a Participant may, as of the first day of the first payroll period of any calendar month, increase or decrease the rate of his payroll deduction by filing an authorization form with the Committee at least fifteen (15) or more days prior to such date. (c) All Compensation deductions made for a Participant shall be credited to his Account. Except as may otherwise be provided by the Committee under Section 4, a Participant may not make any separate cash payment into his Account. 7. PURCHASE OF SHARES (a) On the date when a Participant's authorization form for a deduction becomes effective, and on each Offering Date thereafter, he shall be deemed to have been granted an option to purchase as many full and/or fractional shares of Common Stock as he will be able to purchase with the Compensation deductions credited to his Account during the payroll periods within the applicable Offering Period for which the Compensation deductions are made. In addition to the foregoing, any cash dividends paid on shares of Common Stock held in his Account shall be added to the Account, and used to purchase Common Stock as otherwise provided herein. 4 (b) The purchase price for the shares of Common Stock to be purchased with payroll deductions from the Participant shall be equal to eighty-five percent (85%) (or such other amount as the Committee shall authorize, but in no event less than eighty-five percent (85%)) of the "fair market value" of a share of Common Stock on the Purchase Date. Fair market value shall be defined as the closing sales price of the Common Stock on the largest national securities exchange on which such Common Stock is listed at the time the Common Stock is to be valued. If the Common Stock is not then listed on any such exchange, the fair market value shall be the closing sales price if such is reported or otherwise the mean between the closing "Bid" and the closing "Ask" prices, if any, as reported in the National Association of Securities Dealers Automated Quotation System ("NASDAQ") for the date of valuation, or if none, on the most recent trade date thirty (30) days or less prior to the date of valuation for which such quotations are reported. If the Common Stock is not then listed on any such exchange or quoted in NASDAQ, the fair market value shall be the mean between the average of the "Bid" and the average of the "Ask" prices, if any, as reported in the National Daily Quotation Service for the date of valuation, or, if none, for the most recent trade date thirty (30) days or less prior to the date of valuation for which such quotations are reported. If the fair market value cannot be determined under the preceding three sentences, it shall be determined in good faith by the Committee. 8. TIME OF PURCHASE From time to time, the Committee shall grant to each Participant an option to purchase shares of Common Stock in an amount equal to the number of shares of Common Stock that the accumulated payroll deductions to be credited to his Account during the Offering Period may purchase at the applicable purchase price. Each Offering Period shall be for a specified period of time to be fixed by the Committee and shall be for no less than one month. Each Participant who elects to purchase shares of Common Stock hereunder shall be deemed to have exercised his option automatically on such date of purchase. Administrative and commission costs on purchases shall be paid by the Company. The Committee shall cause to be delivered periodically to each Participant a statement showing the aggregate number of shares of Common Stock in his Account, the number of shares of Common Stock purchased for him in the preceding Offering Periods, the price per share paid for the shares of Common Stock purchased for him during the preceding Offering Periods, and the amount of cash, if any, remaining in his Account at the end of the preceding Offering Periods. A Participant may request delivery to him of the cash in his Account or of the shares of Common Stock held in his Account at any time (subject to any limitations imposed by Section 16(b) of the Securities Exchange Act of 1934), and the delivery thereof shall be made at such regular time as the Company or its transfer agent shall determine. If such delivery is required at a time other than the normal transfer date set by the Company or its transfer agent, the Participant requesting such transfer shall pay the costs thereof. All of the cash deposits in his Account shall be paid to him promptly after receipt of notice of withdrawal, without interest. Shares of Common Stock to be delivered to a Participant under the Plan shall be registered in the name of the Participant or, if the Participant so directs in writing to the Committee, in the name of the Participant and such 5 person(s) as may be designated by the Participant, to the extent permitted by applicable law, and delivered to the Participant as soon as practicable after the request for a withdrawal. If a Participant wishes to sell the shares of Common Stock in his Account, he may notify the Committee to sell the same, in lieu of a distribution of such shares, in which event all commission costs incurred in connection with the sale of the shares of Common Stock shall be borne by the Participant. The Company shall pay administrative costs associated therewith other than costs arising from a sale occurring at a time different from the prearranged dates set by the Company or its transfer agent for making such sales. If a Participant withdraws shares from his Account pursuant to this Section 8, he shall not be eligible to make payroll deductions under the Plan for a period of ninety (90) days following such withdrawal. Thereafter, the Employee may resume his or her payroll deductions by filing a new authorization form with the Committee as provided in Section 6. 9. CESSATION OF PARTICIPATION A Participant may cease participation in the Plan at any time by notifying the Committee in writing of his intent to cease his participation. If such notice is received by the Committee the Company shall distribute to the Participant all of his accumulated payroll deductions, without interest. If any Participant ceases participation in the Plan, no further Compensation deductions shall be made on his behalf after the effective date of his cessation, except in accordance with a new authorization form filed with the Committee as provided in Section 6. 10. INELIGIBILITY An Employee must be employed by the Company or an Affiliate on the Purchase Date in order to participate in the purchase for that Offering Period. If an option expires without first having been exercised, all funds credited to the Participant's Account shall be refunded, without interest. If a Participant becomes ineligible to participate in the Plan at any time, all Compensation deductions made on behalf of the Participant that have not been used to purchase shares of Common Stock shall be paid to the Participant within thirty (30) days after the Committee determines that the Participant is not eligible to participate in the Plan. 11. DESIGNATION OF BENEFICIARY A Participant may file a written designation of a beneficiary who shall receive any shares of Common Stock (or remaining Compensation deductions) credited to the Participant's Account under the Plan in the event of such Participant's death prior to delivery to him of the certificates for such shares (or remaining Compensation deductions). The designation of a beneficiary may be changed by the Participant at any time by written notice given in accordance with rules and procedures established by the Committee. Upon the death of a Participant, and upon receipt by the Company of proof of the identity and existence, at the Participant's death, of a beneficiary validly designated by him under the Plan, the Company shall deliver such shares of Common Stock (or remaining Compensation deductions) to such beneficiary. In the event of the death of the Participant, and in the absence of a beneficiary validly designated under the Plan who is living at the time of such Participant's death, the Company shall deliver such shares (or 6 remaining Compensation deductions) to the executor or administrator of the estate of the Participant, or if no such executor or administrator has been appointed, the Company, in its sole discretion, may deliver such shares (or remaining Compensation deductions) to the Participant's spouse or to any one or more dependents or relatives of the Participant, or to such other person or persons as the Company may designate on behalf of the estate of such deceased Participant. As used herein, the term spouse shall not include any individual from whom the Participant is legally separated on the date of the Participant's death. 12. TRANSFERABILITY Neither Compensation deductions nor Plan contributions credited to a Participant's Account nor any rights with regard to Plan participation or the right to purchase shares of Common Stock under the Plan may be assigned, transferred, pledged, or otherwise disposed of in any way by a Participant other than by will or the laws of descent and distribution; provided, however, that shares of Common Stock purchased on behalf of a Participant and left in his Account shall be subject to his absolute control. Any attempted assignment, transfer, pledge, or other disposition shall be void and without effect. 13. AMENDMENT OR TERMINATION The Board may, at any time amend the Plan in any respect, or terminate the Plan, provided that no amendment or termination may decrease the rights of a Participant during an Offering Period without his consent. 14. NOTICES All notices or other communications by a Participant under or in connection with the Plan shall be deemed to have been duly given when received in writing by the Chief Financial Officer of the Company or when received in the form specified by the Committee at the location and by the person designated by the Committee for the receipt thereof. 15. INDEMNIFICATION OF COMMITTEE In addition to such other rights of indemnification as they may have as directors or as members of the Committee, the members of the Committee shall be indemnified by the Company against all reasonable expenses, including attorneys' fees, actually and reasonably incurred in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken by them as members of the Committee and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that the Committee member is liable for gross negligence or willful misconduct in the performance of his or her duties. To receive such indemnification, a Committee member must first offer in writing to the Company the opportunity, at its own expense, to defend any such action, suit or proceeding. 7 16. LIMITATIONS Notwithstanding any other provisions of the Plan: (a) All Employees shall have the same rights and privileges under the Plan, except that the amount of Common Stock that may be purchased pursuant to the Plan shall bear a uniform relationship to an Employee's Compensation. All rules and determinations of the Committee shall be uniformly and consistently applied to all persons in similar circumstances. (b) Nothing in the Plan shall confer upon any Employee the right to continue in the employment of the Company or any Affiliate or affect the right that the Company or any Affiliate may have to terminate the employment of such Employee. (c) No Participant shall have any right as a stockholder unless and until certificates for shares of Common Stock are issued to him or allocated to his Account. (d) Under any provision of the Plan that requires a computation of the number of shares of Common Stock to be purchased, such number of shares of Common Stock may be expressed as a whole number or as a fractional portion of a whole number. (e) The Plan is intended to provide shares of Common Stock for investment and not for resale. The Company does not, however, intend to restrict or influence any Participant in the conduct of his own affairs. A Participant, therefore, may sell shares of Common Stock purchased under the Plan at any time he chooses, subject to compliance with any applicable federal or state securities laws or any applicable Company restriction or blackout periods; provided, however, that because of certain federal tax requirements, each Participant shall agree, by entering the Plan: (i) that the Company may withhold, pursuant to Code ss.ss. 3102, 3301, and 3402, from his wages and other cash compensation paid to him in all payroll periods following in the same calendar year, any taxes the Company may become liable for in respect of amounts includable in his income as compensation as a result of the acquisition of Common Stock under the Plan; and (ii) that he shall repay the Company any amount of taxes the Company may become liable for in respect of amounts includable in his income as compensation as a result of a purchase of Common Stock under the Plan that cannot be satisfied by withholding from the wages and other cash compensation paid to him by the Company. (f) This Plan is intended to comply in all respects with applicable law and regulations. In case any one or more provisions of this Plan shall be held invalid, illegal, or unenforceable in any respect under applicable law and regulations, the validity, 8 legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and the invalid, illegal, or unenforceable provision shall be deemed null and void; however, to the extent permitted by law, any provision that could be deemed null and void shall first be construed, interpreted, or revised retroactively to permit this Plan to be construed in compliance with all applicable law, so as to further the intent of this Plan. 17. EFFECTIVE DATE AND APPROVALS The Plan shall become effective at a time when: (a) the Plan has been adopted by the Board; and (b) a registration statement on Form S-8 under the Securities Act of 1933, as amended, has become effective with respect to the Plan; and (c) the Committee has notified the eligible Employees that they may commence participation in the Plan. Unless sooner terminated by the Board, the Plan shall terminate upon the earlier of (i) the tenth (10th) anniversary of the adoption of the Plan by the Board, or (ii) the date on which all shares available for issuance under the Plan shall have been sold under the Plan. 18. APPLICABLE LAW All questions pertaining to the validity, construction, and administration of the Plan shall be determined in conformity with the laws of Delaware. 9 EX-5 4 dex5.txt OPINION OF SACHNOFF & WEAVER , LTD Exhibit 5 [LETTERHEAD OF SACHNOFF & WEAVER, LTD.] August 30, 2002 USFreightways Corporation 8550 West Bryn Mawr Avenue Suite 700 Chicago, IL 60631 Re: Registration Statement on Form S-8 USFreightways Corporation Nonqualified Employee Stock Purchase 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 300,000 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 Nonqualified Employee Stock Purchase 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-----