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Registration Statement No. 33-44502
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
POST-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_________________________
ROADWAY SERVICES, INC.
(Exact name of issuer as specified in its charter)
Ohio 34-1365496
(State or other (I.R.S. Employer
jurisdiction of incorporation) Identification No.)
1077 Gorge Boulevard
P.O. Box 88
Akron, Ohio 44309-0088
(Address of principal executive office) (Zip Code)
RESTRICTED BOOK VALUE SHARES PLAN
FOR
ROADWAY SERVICES, INC.
AND
CERTAIN OPERATING COMPANIES
(Full title of plan)
John M. Glenn
1077 Gorge Boulevard
P.O. Box 88
Akron, Ohio 44309-0088
(Name and address of agent for service)
(216) 384-8184
(Telephone number, including area code, of agent for service)
______________________________________________________________________________
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In order to include as new Exhibit 4(c) to this registration statement
the Restricted Book Value Shares Plan for Roadway Services, Inc. and Certain
Operating Companies (as Amended and Restated as of January 13, 1994), Part II
of this registration statement is hereby amended and restated in its entirety
as hereinafter set forth.
(i)
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Roadway Services, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
are incorporated herein by reference:
(1) Annual Report on Form 10-K for the year ended December 31,
1992;
(2) Quarterly Reports of the Company on Form 10-Q for the quarters
ended March 27, 1993, as amended by Amendment No. 1 thereto on
Form 10-Q/A dated May 5, 1993; June 19, 1993, as amended by
Amendment No. 1 thereto on Form 10-Q/A dated September 8,
1993; and September 11, 1993;
(3) Current Reports of the Company on Form 8-K dated January 12,
1993, April 15, 1993, May 13, 1993, and November 10, 1993; and
(4) The description of the Company's common stock without par
value contained in the Company's Registration Statement filed
pursuant to Section 12 of the Securities Exchange Act of 1934
(the "Exchange Act"), including any amendments and reports
filed for the purpose of updating that description.
All documents that shall be filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this
post-effective amendment to registration statement and prior to the filing of a
post-effective amendment indicating that all securities offered under the
Restricted Book Value Shares Plan for Roadway Services, Inc. and Certain
Operating Companies 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.
Section 1701.13(E) of the Ohio Revised Code sets forth conditions and
limitations concerning indemnification of officers, directors and other
persons.
Article IV of the Company's Restated Amended Code of Regulations
provides, in relevant part, as follows:
"The Company shall indemnify each present and future director
and officer of the Company, and each person who at the request of or
at the instance of the Company is now serving or hereafter serves as a
director or officer of any other corporation, against any costs and
expenses which may be imposed on or reasonably incurred by him in
connection with any claim, suit, or proceeding (whether brought by the
Company, such corporation, a receiver, a trustee, one or more
shareholders or creditors, any governmental body, any public official,
any private person, or any other corporation) hereafter made or
instituted in which he may be involved by reason of his being or
having been a director or officer of the Company or of any other
corporation in which he served or serves as a director or officer at
the request of or at the instance of the Company (whether or not he
continues to be a director or officer at the time of imposition of
such costs or incurring of such expense), such costs and expenses to
include the cost to such director or officer of reasonable settlements
(other than amounts paid to the Company itself or to such other
corporation served at the request of or at the instance of the
Company). The Company shall not, however, indemnify such director or
officer with respect to matters as to which he shall be finally
adjudged in any such action, suit or proceeding to be liable because
of dereliction in the performance of his duties as
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such director or officer, or (except with the approval of a court of
competent jurisdiction, a disinterested majority of the Board of
Directors, or any committee or group of persons to whom the question
may be referred by the Board) with respect to any matter on which a
settlement is effected if the amount paid by the director or officer
in such settlement shall substantially exceed the expenses which might
reasonably be incurred by him after the date of settlement in
conducting litigation to a final conclusion. The foregoing right of
indemnification shall not be exclusive of other rights to which any
person concerned may be entitled as a matter of law, and shall inure
to the benefit of the heirs, executors, and administrators of any such
person."
In addition, the Company maintains directors' and officers'
reimbursement and liability insurance. The risks covered by such policies
include certain liabilities under the securities laws.
ITEM 8. EXHIBITS.
4(a) Restated Amended Articles of Incorporation of the Company
(b) Restated Amended Code of Regulations of the Company effective
May 10, 1989 (filed as Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, and
incorporated herein by reference)
(c) Restricted Book Value Shares Plan for Roadway Services, Inc.
and Certain Operating Companies (as Amended and Restated as of
January 13, 1994)*
5 Opinion of Counsel
23(a) Consent of Independent Auditors*
(b) Consent of Counsel (included in Exhibit 5)
24 Powers of Attorney
_________________________
* Filed with this post-effective amendment to registration statement.
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; (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
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 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, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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(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 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.
(c) 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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 POST-EFFECTIVE AMENDMENT TO
REGISTRATION STATEMENT ON FORM S-8 AND HAS DULY CAUSED THIS POST-EFFECTIVE
AMENDMENT TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF AKRON, STATE OF OHIO, ON
THIS 17TH DAY OF FEBRUARY 1994.
ROADWAY SERVICES, INC.
By: /S/ John M. Glenn
------------------------------
John M. Glenn
Vice President and General Counsel
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<TABLE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
POST-EFFECTIVE AMENDMENT TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* JOSEPH M. CLAPP Director; Chairman of February 17, 1994
----------------------- the Board and Chief
Joseph M. Clapp Executive Officer
(Principal Executive Officer)
* DANIEL J. SULLIVAN Director; President and February 17, 1994
----------------------- Chief Operating Officer
Daniel J. Sullivan
* DOUGLAS A. WILSON Senior Vice President- February 17, 1994
----------------------- Finance and Planning and
Douglas A. Wilson Secretary (Principal
Financial Officer)
* ROY E. GRIGGS Vice President and February 17, 1994
----------------------- Controller (Principal
Roy E. Griggs Accounting Officer)
* GEORGE B. BEITZEL Director February 17, 1994
-----------------------
George B. Beitzel
* RICHARD A. CHENOWETH Director February 17, 1994
-----------------------
Richard A. Chenoweth
* NORMAN C. HARBERT Director February 17, 1994
-----------------------
Norman C. Harbert
* CHARLES R. LONGSWORTH Director February 17, 1994
-----------------------
Charles R. Longsworth
* ROBERT E. MERCER Director February 17, 1994
-----------------------
Robert E. Mercer
* G. JAMES ROUSH Director February 17, 1994
-----------------------
G. James Roush
* WILLIAM SWORD Director February 17, 1994
-----------------------
William Sword
* SARAH ROUSH WERNER Director February 17, 1994
-----------------------
Sarah Roush Werner
</TABLE>
*This post-effective amendment to registration statement has been
signed on behalf of the above officers and directors by John M. Glenn, Vice
President and General Counsel of the Company, as attorney-in-fact pursuant to
powers of attorney on file with the Commission.
DATED: February 17, 1994 By: /s/ John M. Glenn
-------------------------------
John M. Glenn, Attorney-in-Fact
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<TABLE>
EXHIBIT INDEX
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------ -------------------
<S> <C>
4(a) Restated Amended Articles of
Incorporation of the Company
4(b) Restated Amended Code of Regulations
of the Company effective May 10, 1989
(filed as Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the year
ended December 31, 1992, and incorporated
herein by reference)
4(c) Restricted Book Value Shares Plan
for Roadway Services, Inc. and Certain
Operating Companies (as Amended and
Restated as of January 13, 1994)*
5 Opinion of Counsel
23(a) Consent of Independent Auditors*
23(b) Consent of Counsel (included in Exhibit 5)
24 Powers of Attorney
_____________________
* Filed with this post-effective amendment to registration statement.
</TABLE>
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Exhibit 4(c)
RESTRICTED BOOK VALUE SHARES PLAN
FOR ROADWAY SERVICES, INC.
AND CERTAIN OPERATING COMPANIES
(As Amended and Restated as of January 13, 1994)
ARTICLE I: Definitions
1.1 The terms defined in this Article I and the various terms
defined from time to time in the text of this Plan shall have their defined
meanings throughout unless expressly stated otherwise or the context otherwise
requires.
(a) "Basic Stock Credits" means Stock Credits awarded to participants in
the Stock Credit Plan, as approved by the Board of Directors of RSI in
its discretion.
(b) "Book Value" as of a specified date means the value determined by
dividing the common shareholders' equity of RSI by the total number of
its shares of Common Stock outstanding, excluding treasury shares,
based upon RSI's annual consolidated balance sheet as audited by its
independent auditors as of the date in question. For the purpose of
calculating the Repurchase Price under Section 4.4 hereof only, the
Book Value calculation may be adjusted by the Committee, in its sole
discretion, after consultation with the independent auditors, to
reduce or eliminate the effect of any changes in accounting policies,
acquisitions or other unusual or extraordinary items.
(c) "Committee" means a committee of the Board of Directors of RSI
composed of three or more nonemployee directors who may not have any
interest in any Employer Incentive Compensation Plan and are not
eligible to participate in the Plan.
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(d) "Common Stock" means the shares of no par value common stock
of RSI. Such shares issued or transferred under the Plan
may be treasury shares or shares of original issuance.
(e) "Determination Date" means the date on which the independent auditors
issue their opinion to RSI on the annual financial statements for the
preceding year ended December 31.
(f) "Disability" means a physical or mental condition of the Participant,
resulting from a bodily injury or disease or mental disorder, which
renders him incapable of performing duties for the Employer.
(g) "Employer" means RSI or any other individual company within the RSI
affiliated group of companies that employs the Participant and any
corporate successor to the business presently conducted by such
affiliated company.
(h) "Employer Incentive Compensation Plan" means an incentive plan which
the Employer has adopted for calendar year 1992 (and may adopt and
amend in subsequent years) which embodies a formula for determining
the amount of the Employer's net income which may be paid to
Participants if the Employer's performance meets certain standards
which are a part of the Employer Incentive Compensation Plan. Except
for decisions reserved to the Committee hereunder, all decisions
concerning the Employer Incentive Compensation Plan including, without
limitation, eligibility to participate, award of benefits and the
approval of the exercise of any options available, shall be made by
the Board of Directors of the Employer.
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3
(i) "Normal Retirement Date" means the first day of the calendar month
following the month in which the retiring Participant attains age
sixty-five (65).
(j) "Participant" means an individual who purchases RBV Shares as offered
through his Employer. As of June 1, 1993, the groups of individuals
who are eligible to participate in the Plan are (i) officers of RSI,
Roadway Express, Inc.; Roadway Package System, Inc.; Summit
Information Systems, Inc.; Roberts Transportation Services, Inc. and
its affiliates; Roadway Logistics Systems, Inc. and its affiliates;
Central Freight Lines Inc.; and Roadway Global Air, Inc.; (ii) Roadway
Package System, Inc. Regional Managers; (iii) Roadway Express, Inc.
District Managers; (iv) the division vice presidents - sales and vice
president - corporate sales of Roadway Express, Inc.; and (v) any
other individuals or groups of individuals as the Committee (as
defined in Section 1.1(c) of the Plan) may determine from time to
time.
(k) "Plan" means the Restricted Book Value Shares Plan for Roadway
Services, Inc. and Certain Operating Companies, as in effect from time
to time.
(l) "Plan Year" means calendar year 1992 and any subsequent calendar year
for which any Employer Incentive Compensation Plan may be adopted.
(m) "Price" for Common Stock means the "last" price quoted for
shares of Common Stock of RSI on the date in question by the
National Association of Securities Dealers Automated
Quotation System for the National Over-The-Counter Market as
set forth in the Wall Street Journal if published, and if
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4
not published, as set forth in a newspaper of general
circulation selected by the Committee. If the Common Stock is
listed on a national stock exchange, the term "Price" for
Common Stock as of a certain date shall be the closing
price for said Common Stock on such exchange, or if no sale has
occurred on such date, the closing bid price, in each case, as quoted
in The Wall Street Journal if published, but if not published, as set
forth in a newspaper of general circulation selected by the Committee.
(n) "RBV Shares" means shares of Common Stock issued pursuant to, and
otherwise subject to the provisions of, Article IV hereof.
(o) "RSI" means Roadway Services, Inc., an Ohio corporation, and any
successor.
(p) "Stock Credit Plan" means the RSI Long-Term Stock Award Incentive
Plan, as in effect from time to time.
(q) "Stock Credits" means Basic Stock Credits and Supplemental Stock
Credits.
(r) "Supplemental Stock Credits" means Stock Credits awarded to
participants in the Stock Credit Plan that reflect amounts of
Employer contributions and other annual additions that would
have been made under tax qualified employee benefit plans of RSI
but for limitations imposed by federal tax law.
ARTICLE II: CONDITIONS OF ELIGIBILITY
An individual shall be eligible to participate in the Plan
upon satisfaction of the following conditions:
2.1 EMPLOYMENT AT WILL. The Employer has agreed to employ
Participant and Participant has agreed to serve the
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5
Employer in the capacity assigned under a relationship rescindable
at the will of either party. Nothing herein shall limit the right of the
Employer to transfer Participant to another position, whether
similar or not, nor limit the right of the Employer to discharge Participant
for any cause recognized by law as grounds for discharge without liability.
2.2 FULL-TIME BEST EFFORTS. The Participant also has agreed
to devote his best efforts and substantially all of his business time and
attention to the affairs of the Employer (including the affairs of a subsidiary
or other affiliated company, if the Employer so elects).
2.3 MEANING OF TERMINATION OF EMPLOYMENT. The phrase
"termination of employment" and any variation thereof with respect to a
Participant shall mean that the Participant has ceased to serve his Employer or
another Employer on a full-time basis, whether as a result of resignation,
dismissal, retirement, death or any other reason.
ARTICLE III: METHODS OF PURCHASE OF RBV SHARES
3.1 PURCHASES WITH INCENTIVE COMPENSATION. For a
Participant's services rendered during his employment, the Employer shall pay
him and Participants shall accept compensation therefor an amount as determined
by the Employer from which Participant may elect to take a portion thereof in
the form of RBV Shares under Article IV hereof pursuant to an election
procedure established by the Employer.
3.2 PURCHASES WITH STOCK CREDITS. RBV Shares may also be
purchased by a Participant with Basic Stock Credits, or with amounts that would
otherwise be issued in the form of
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6
Supplemental Stock Credits, on terms established by RSI from time to time.
ARTICLE IV: RBV SHARES
4.1.1 RESTRICTED BOOK VALUE PORTION. The portion of the
Participant's incentive compensation or amounts of Stock Credits designated for
the purchase of RBV Shares hereunder is sometimes hereinafter referred to as
the "Restricted Book Value Portion".
4.1.2 DETERMINATION OF PURCHASE AMOUNT. The Restricted Book
Value Portion shall consist of two parts: one for (i) required tax
withholdings, (ii) Roadway Services, Inc. Stock Savings and Retirement Income
Plan (or other Employer sponsored defined contribution plan) contributions and
(iii) residual cash otherwise attributable to any fractional share (the
"Withholding Amount") and the other for the actual purchase of RBV Shares (the
"Purchase Amount"). The Purchase Amount shall be equal to the Restricted Book
Value Portion minus the Withholding Amount; provided, however, that the
Purchase Amount shall at all times be subject to limitation by the Board of
Directors of RSI. Notwithstanding the foregoing, in the event a limitation
imposed by the Board of Directors results in the payment of a portion of the
Purchase Amount in cash, RSI may, at its discretion, include in the cash
payment the amount of residual cash otherwise attributable to any fractional
share.
4.1.3 ISSUANCE OF RBV SHARES. The Purchase Amount shall be
used to cause the issuance at the Committee's convenience after the
Determination Date (but prior to March 16 of the year after the Plan Year) of
certificates in the
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Participant's name for that number of RBV Shares equal to the
number of whole shares of Common Stock which could have been purchased
at Book Value on December 31 of the Plan Year.
4.2 TRANSFER RESTRICTIONS. RBV Shares may not be sold,
assigned, pledged, encumbered, charged, transferred or disposed of in any way
except as permitted in Sections 4.3 and 4.4 hereof.
4.3 PERMITTED TRANSFERS. Section 4.2 notwithstanding, the
Participant may make a gift of or may otherwise transfer any of his RBV Shares
to (i) any member of his immediate family (which is defined to include his
spouse, child, grandchild, parent, brother, sister, niece or nephew, whether of
the whole or half blood) or (ii) a trust, partnership or S Corporation, of
which the beneficiaries, partners or shareholders are immediate family members
or the Participant. In addition, on the death or disability of the
Participant, his RBV Shares may be transferred to his estate or personal
representative and to the person or persons entitled thereto under his last
will and testament or under the laws of descent and distribution of his
domicile. Any RBV Shares permitted to be transferred pursuant to the
provisions of this Section 4.3 shall continue to be RBV Shares until
repurchased in accordance with Section 4.4 hereof. The foregoing
notwithstanding, a permitted transferee of RBV Shares may subsequently transfer
any of such shares to another immediate family member of the Participant.
4.4 CONDITIONS OF REPURCHASE OR EXCHANGE. RBV Shares are
subject to repurchase or exchange as follows:
4.4.1 REPURCHASE PRICE. The price per share at which RBV
Shares shall be repurchased shall be the Book Value on
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8
December 31 of the year preceding the date of repurchase at which
the RBV Shares being repurchased, were initially issued (the
"Repurchase Price").
4.4.2 REPURCHASE AT PARTICIPANT'S ELECTION. On or after the
fifth anniversary date of the issuance of RBV Shares to the Participant under
Section 4.1, the Participant may tender his RBV Shares for repurchase, and, if
tendered, such shares shall be repurchased at the Repurchase Price.
4.4.3 REPURCHASE UPON RETIREMENT OR DEATH. If the
Participant's employment terminates because of retirement at or prior to the
Normal Retirement Date or death prior to retirement, his RBV Shares (whether
held by the Participant or any transferee) must be returned for repurchase at
the Repurchase Price as follows: at least 10 percent of the Participant's RBV
Shares (including any issuable for his final year of employment) shall be
repurchased on or before April 1 of the second year following the year in which
the Participant's termination of employment occurred; thereafter, at least 20
percent in the aggregate of said shares shall be repurchased on the following
April 1 and at least 30% on the next following April 1, and continuing
thereafter so that within a ten-year period all said shares shall have been
returned for repurchase.
4.4.4 REPURCHASE UPON OTHER TERMINATION OF EMPLOYMENT.
Upon termination of a Participant's employment with his Employer for any reason
other than as referred to in Section 4.4.3, all of the Participant's RBV Shares
must be returned for repurchase at the Repurchase Price within one year from
the date of such termination.
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9
4.4.5 REPURCHASE ONLY AFTER AUDIT. In the event RBV
Shares are returned for repurchase during January of any year
pursuant to the preceding provisions of this Article IV, such
shares shall be repurchased on or about April 1 of such year, but in any event
after the Determination Date under the applicable Employer Incentive
Compensation Plan for the preceding year.
4.4.6 LEGENDING AND ESCROW OF CERTIFICATES. Certificates
representing RBV Shares shall bear a legend to the effect that they are subject
to restriction on transfer or disposition in accordance with this Plan. In aid
of such restrictions, and as a matter of administrative convenience, the
Committee shall, with the authority hereby given by the Participant, deposit
for the Participant's account the certificate or certificates representing the
Participant's RBV Shares, together with such appropriate documentation as may
be requested by the Committee, with a bank selected by the Committee under an
escrow agreement containing such terms and conditions as the Committee shall
determine. The Participant, however, retains the right to require any escrow
agent to redeliver the RBV Shares to the Participant subject to all of the
other provisions of this Article IV and this Plan.
4.4.7 EXCHANGE WITHOUT CASH. In lieu of any right or
obligation to repurchase RBV Shares for cash pursuant to the terms of this
Plan, the Committee may, but is not obligated to, authorize the issuance in
exchange for the RBV Shares otherwise to be purchased, of that number of shares
of its Common Stock equal to the number of RBV Shares exchanged times the
ratio determined by dividing the Repurchase Price by the Price for Common
Stock as of December 31 of the year preceding the date of
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10
such exchange. The Common Stock thus issued shall be free of the
restrictions provided for in this Article IV but subject to any restrictions
under applicable securities laws.
4.4.8 EXCHANGE WITH CASH. Upon request of the Participant
made at any time the Participant desires to tender his RBV Shares for
repurchase as permitted by Section 4.4.2 hereof, the Committee may (but is not
obligated to) permit the Participant to tender an amount of cash equal to the
positive difference of the Price less the Repurchase Price as of December 31 of
the year preceding the tender, times the number of RBV Shares tendered
therewith and to receive back the same number of shares of Common Stock free of
the restrictions provided for in this Article IV but subject to any
restrictions under applicable securities laws. Once a participant has made
such a request, it may not be withdrawn without the consent of the Committee.
4.4.9 CERTAIN TENDER OFFERS. In the event of a tender offer
for the Common Stock subject to Regulation 14D or 14E under the Securities
Exchange Act of 1934, as amended, the acceptance of which tender offer is
either (i) recommended to shareholders by the Board of Directors of RSI, or
(ii) not opposed by such Board, or (iii) involves an acquisition device in
which any of the shareholders may exercise dissenters' rights under any
provision of Chapter 1701 of the Ohio Revised Code, then in any such event, the
Committee may unilaterally confer upon the Participant the benefits of both
Sections 4.4.7 and 4.4.8 with respect to any or all of the Participant's RBV
Shares.
4.5 REPURCHASE OR EXCHANGE IN CERTAIN SPECIAL CIRCUMSTANCES.
The Committee may also accelerate the date on which the Participant's RBV
Shares be repurchased under
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Section 4.4 or exchanged for Common Stock under Section 4.4.7, to such date or
dates as the Committee shall determine, if, in the sole judgment of the
Committee, the acceleration is justified (i) by the death or disability of
the Participant, (ii) by hardship suffered by the Participant, or (iii) for
any other reason which the Committee may deem to be in the best interests
of the Participant or his Employer.
4.6 SUBDIVISIONS AND COMBINATIONS OF SHARES. If any
subdivision, combination or other change of outstanding shares of Common Stock
by reclassification, distribution of a stock dividend, corporate
reorganization, consolidation, merger or otherwise shall occur, the number of
RBV Shares issued under Article IV shall be accordingly increased, decreased or
otherwise appropriately changed as the Committee may determine. To the extent
that, because of any such change, the Participant, former Participant, or his
legal representative or transferee as permitted herein shall as the owner of
RBV Shares be entitled to new, additional or different shares of stock or
securities, the certificates for such new, additional or different shares or
securities, together with such appropriate documentation as may be requested by
the Committee, shall be deposited by the Participant, legal representative or
transferee under the escrow referred to in Section 4.4.6 hereof. All
provisions of Article IV shall be applicable to such new, additional or
different shares or securities issued with respect to RBV Shares.
4.7 RIGHTS, WARRANTS, ETC. If the Participant, former
Participant, his legal representative or transferee as permitted herein, shall
receive rights, warrants or fractional interest in respect of RBV Shares, such
rights or warrants may be held,
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exercised, sold or otherwise disposed of, and such fractional interest may be
settled free and clear of any restrictions under Article IV, except any
restrictions imposed by federal or state securities laws.
ARTICLE V: MISCELLANEOUS PROVISIONS
5.1 AMENDMENT AND TERMINATION. The Board of Directors of RSI
may amend or terminate the Plan at any time without the consent of any
Participant or any other person. In the event of any such termination, the
Board may require each holder of RBV Shares to tender them to RSI for
repurchase at the Repurchase Price. RSI shall not be required, however, to
provide for any such repurchase and may make any other provision for the
settlement of outstanding awards that it considers, in its sole discretion, to
be equitable.
5.2 DISPUTES. In the event that any disagreement, dispute or
controversy shall hereafter exist between an Employer and a Participant or the
Committee and a Participant as to any matter arising under this Plan, whether
as to construction, interpretation or operation thereof, or the respective
rights and liabilities of the parties hereunder, or as to the payment or
receipt of any sum of money, or otherwise, then such disagreement, dispute or
controversy shall be settled by arbitration by three arbitrators. Within thirty
(30) days after either party delivers to the other party a written request for
arbitration, each shall appoint one arbitrator and the two arbitrators shall
together then appoint a third arbitrator within ten (10) days after the first
two arbitrators are appointed. If either party fails to appoint an arbitrator
within such time, or
<PAGE> 13
13
if the two arbitrators fail to appoint the third arbitrator within the
specified period, then such arbitrator or such third arbitrator, as the case
may be, shall be selected pursuant to the rules of the American Arbitration
Association upon application of either party. It shall be the duty of the
arbitrators to make the determination required hereunder as expeditiously as
possible after their appointment. A determination by a majority of the
arbitrators shall be final and binding. Each party shall pay the cost of his
or its arbitrator and one-half of the cost of the third arbitrator and the cost
of the arbitration itself. All arbitration proceedings shall be held in the
place of the Participant's domicile.
5.3 ADOPTION BY EMPLOYERS. This Plan may
be adopted by an Employer by inclusion of the substance hereof in a specific
incentive compensation agreement or stand alone plan adopted by an Employer.
<PAGE> 1
Exhibit 23(a)
Consent Of Independent Auditors
We consent to the incorporation by reference in Post-Effective Amendment No. 3
to the Registration Statement (Form S-8 No. 33-44502) and related Prospectus
pertaining to the Restricted Book Value Shares Plan for Roadway Services, Inc.
and Certain Operating Companies for the registration of 550,000 shares of
Common Stock of our report dated January 26, 1993 with respect to the
consolidated financial statements and our report dated March 9, 1993 with
respect to the financial statement schedules of Roadway Services, Inc. and
subsidiaries included or incorporated by reference in the Roadway Services,
Inc. Annual Report on Form 10-K for the year ended December 31, 1992 filed with
the Securities and Exchange Commission.
ERNST & YOUNG
February 14, 1994
