<PAGE> 1
As filed with the Securities and Exchange Commission on May 8, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
CALIBER SYSTEM, INC.
(Exact name of registrant as specified in charter)
Ohio 34-1365496
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
3560 West Market Street, Akron, Ohio 44333
(Address, including ZIP Code, of registrant's principal executive offices)
1996 EQUITY INCENTIVE COMPENSATION PLAN
(Full title of the plan)
DOUGLAS A. WILSON
Senior Vice President - Finance and Planning,
Secretary and Chief Financial Officer
Caliber System, Inc.
3560 West Market Street
Akron, Ohio 44333
(330) 665-5646
(Name, address, including ZIP Code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
================================================================================================================
Title of securities Amount Proposed maximum Proposed maximum Amount of
to be to be offering price aggregate registration
registered registered(1) per share(2) offering price(2) fee(2)
- ----------------------------------------------------------------------------------------------------------------
<S> <C>
Shares of Common
Stock without par 200,000 38.875 7,775,000 2,681.03
value
<FN>
(1) The total number of shares of common stock reserved and available for
distribution. Pursuant to Rule 416, this Form S-8 Registration
Statement shall be deemed to cover any additional securities issued to
prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(2) The registration fee has been calculated in accordance with Rule 457(h)
based on the average of the high and low prices of the common stock
without par value reported on the New York Stock Exchange on May 6,
1996, which average was 38.875.
</TABLE>
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Company with the
Commission are incorporated herein by reference:
(1) Annual Report of the Company on Form 10-K for the year ended
December 31, 1995;
(2) Quarterly Report of the Company on Form 10-Q for the quarter
ended March 23, 1996;
(3) Current Report of the Company on Form 8-K dated January 18, 1996;
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 Plan
have been sold or deregistering all securities then remaining unsold thereunder
shall be deemed to be incorporated herein by reference and shall be deemed to be
a part hereof from the date of filing thereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. (Securities to be offered are registered under Section
12 of the Exchange Act.)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 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 insistence 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
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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
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 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Second Amended Articles of Incorporation of the Company (filed
as Exhibit 3.1 to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995, and incorporated herein by
reference).
4.2 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).
4.3 1996 Equity Incentive Compensation Plan.
5 Opinion of Counsel.
23 Consent of Independent Auditors.
(Consent of Counsel included in Exhibit 5).
24 Powers of Attorney.
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<PAGE> 4
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 this 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 this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
and of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this 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 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.
(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
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 this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be in the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
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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 of 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 REGISTRATION STATEMENT ON FORM S-8 AND HAS
DULY CAUSED THIS 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 8th DAY OF MAY 1996.
CALIBER SYSTEM, INC.
By: /s/ Douglas A. Wilson
--------------------------------------------
Name: Douglas A. Wilson
Title: Senior Vice President - Finance and Planning,
Secretary and Chief Financial Officer
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PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Daniel J. Sullivan Chairman, Chief Executive
------------------------------------ Officer, President and
Daniel J. Sullivan Director (Principal
Executive Officer) May , 1996
/s/ Douglas A. Wilson Senior Vice President- May 8, 1996
------------------------------------ Finance and Planning,
Douglas A. Wilson Secretary and Chief
Financial Officer
(Principal Financial
Officer)
* Kathryn W. Dindo Vice President and May , 1996
------------------------------------ Controller
Kathryn W. Dindo (Principal Accounting
Officer)
* George B. Beitzel Director May , 1996
------------------------------------
George B. Beitzel
* Richard A. Chenoweth Director May , 1996
------------------------------------
Richard A. Chenoweth
* Norman C. Harbert Director May , 1996
------------------------------------
Norman C. Harbert
Director May , 1996
------------------------------------
Harry L. Kavetas
* Charles R. Longsworth Director May , 1996
------------------------------------
Charles R. Longsworth
* G. James Roush Director May , 1996
------------------------------------
G. James Roush
* H. Mitchell Watson, Jr. Director May , 1996
------------------------------------
H. Mitchell Watson, Jr.
<FN>
*This registration statement has been signed on behalf of the above
officers and directors by Douglas A. Wilson, Senior Vice President - Finance and
Planning, Secretary and Chief Financial Officer of the Company, as
attorney-in-fact pursuant to powers of attorney filed as Exhibit 24 to this
registration statement.
</TABLE>
DATED: May 8, 1996 By: /s/ Douglas A. Wilson
-----------------------------------
Douglas A. Wilson, Attorney-in-Fact
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Pagination by
sequential
Exhibit numbering
Exhibit Description system
Number ----------- ------
------
<S> <C>
4.1 Second Amended Articles of Incorporation of the Company (filed as
Exhibit 3.1 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, and incorporated herein by
reference).
4.2 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).
4.3 1996 Equity Incentive Compensation Plan.
5 Opinion of Counsel.
23 Consent of Independent Auditors.
24 Powers of Attorney.
</TABLE>
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<PAGE> 1
Exhibit 4.3
1996 EQUITY INCENTIVE COMPENSATION PLAN
1. PURPOSE. The purposes of the Caliber System, Inc. 1996 Equity Incentive
Compensation Plan are to attract, retain and motivate key employees of the
Company and its Subsidiaries, to compensate them for their contributions to the
growth and profits of the Company and its Subsidiaries and to encourage
ownership by them of Stock of the Company.
2. DEFINITIONS. As used in the Plan, the following capitalized words shall
have the meanings indicated below:
"Administrator" means the individual or individuals to whom the
Committee delegates authority under the Plan in accordance with Section
5(b).
"Award" means an award made pursuant to the terms of the Plan.
"Award Agreement" means a written agreement between the Company or one
of its Subsidiaries which is approved in accordance with Section 12(e),
which is executed by the Participant and by an officer on behalf of the
Company and which sets forth the terms and conditions of the Award to the
Participant.
"Award Certificate" means a written certificate issued by the Company
which is approved in accordance with Section 12(e), which is executed by an
officer on behalf of the Company and which sets forth the terms and
conditions of an Award.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended, and the
applicable rulings and regulations thereunder.
"Committee" means the Compensation Committee of the Board, any successor
committee thereto or any other committee appointed by the Board to
administer the Plan. The Committee shall consist of at least two
individuals, each of whom is both a "disinterested person" within the
meaning of Rule 16b-3 under the Exchange Act and an "outside director"
within the meaning of Treasury Regulation sec.1.162-27(e)(3) promulgated
under the Code and who shall serve at the pleasure of the Board.
"Company" means Caliber System, Inc.
"Date of the Award" means the effective date of an Award (whether a
mandatory Award or an elected Award pursuant to Section 12(a)) as specified
by the Committee and set forth in the applicable Award Agreement or Award
Certificate.
"Eligible Individuals" means the individuals described in Section 6 who
are eligible for Awards under the Plan.
"Employee Trust" means any trust established by the Company in
connection with an employee benefit plan (including the Plan) under which
current and former employees of the Company constitute the principal
beneficiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the applicable rulings and regulations thereunder.
"Fair Market Value" means, with respect to a share of Stock, the fair
market value thereof as of the relevant date of determination, as determined
in accordance with a valuation methodology approved by the Committee.
"Option" means an option to purchase Stock, the terms of which are
described in Section 9.
"Option Award" means an Award of Options pursuant to Section 9. An
option Award may consist of options, the receipt of which was elected
pursuant to Section 12(a).
"Other Award" means any other form of award authorized under Section 11
of the Plan. An Other Award may consist of Awards, the receipt of which was
elected pursuant to Section 12(a).
"Participant" means an individual to whom an Award has been made.
"Performance Criteria" means one or more criteria that the Committee
shall select for purposes of establishing Performance Goal(s). The
Performance Criteria that will be used to establish such Performance Goal(s)
shall be limited to the following: stock price, market share, sales,
earnings per share, net earnings, operating earnings, profit margins, return
on capital, assets, net assets or equity, costs, cash flow and any
combination thereof.
"Performance Goals" means one or more goals established by the Committee
for a performance period or performance cycle based upon Performance
Criteria.
"Plan" means the Caliber System, Inc. 1996 Equity Incentive Compensation
Plan, as the same may be amended from time to time in accordance with
Section 15(f) below.
"SAR" means a stock appreciation right, as described in Section 10.
<PAGE> 2
"SAR Award" means an Award of SARs pursuant to Section 10. An SAR Award
may be freestanding or granted in tandem with another type of Award. An SAR
Award may consist of SARs, the receipt of which was elected pursuant to
Section 12(a).
"Section 162(m) Participant" means, for a given fiscal year of the
Company, a Participant designated by the Compensation Committee by not later
than 90 days following the start of such year as a Participant (or such
other time as may be required or permitted by Section 162(m) of the Code)
whose compensation for such fiscal year may be subject to the limit on
deductible compensation imposed by Section 162(m) of the Code.
"Shares" means the shares of Stock underlying, constituting, subject to,
or corresponding to an Award.
"Stock" means the common stock, without par value, of the Company.
"Stock Award" means an Award of Shares pursuant to Section 7. A Stock
Award may consist of Stock, the receipt of which was elected pursuant to
Section 12(a).
"Stock Unit" means a restricted stock unit, as described in Section 8.
"Stock Unit Award" means an Award of Stock Units, pursuant to Section 8.
A Stock Unit Award may consist of Stock Units, the receipt of which was
elected pursuant to Section 12(a).
"Subsidiary" means (i) a corporation or other entity with respect to
which the Company, directly or indirectly, has the power, whether through
the ownership of voting securities, by contract or otherwise, to elect at
least a majority of the members of such corporation's board of directors or
analogous governing body, or (ii) any other corporation or other entity in
which the Company, directly or indirectly, has an equity or similar interest
and which the Committee designates as a Subsidiary for purposes of the Plan.
"Substitute Awards" means Awards granted upon assumption of, or in
substitution for, outstanding awards previously granted by a corporation or
other entity acquired by the Company or with which the Company combines.
"Term of the Plan" means the period beginning on the date that the Plan
is adopted by the Board and ending on the date that the Plan terminates in
accordance with Section 3 or 15(f) below.
3. EFFECTIVE DATE AND TERM. The Plan shall become effective upon its
adoption by the Board subject to its approval by the stockholders of the
Company. Prior to such stockholder approval, the Committee may grant Awards
conditioned on stockholder approval. If such stockholder approval is not
obtained at or before the first annual meeting of stockholders to occur after
the adoption of the Plan by the Board, the Plan and any Awards made thereafter
shall terminate ab initio and be of no further force and effect. In no event
shall any Awards be made under the Plan after the tenth anniversary of the date
of stockholder approval; provided however, that no incentive stock option,
within the meaning of Section 422 of the Code may be granted under the Plan
after the tenth anniversary of the adoption of the Plan by the Board.
4. STOCK SUBJECT TO PLAN.
(a) One million, nine hundred thousand shares of Stock (whether issued or
unissued) shall be authorized for issuance under the Plan (the "Section 4
Limit").
(b) The number and kind of shares authorized for issuance hereunder,
including the maximum number of Shares subject to Options or SARs as provided in
Section 4(d) below, may be equitably adjusted in the discretion of the Committee
in the event of a stock split, stock dividend, recapitalization, reorganization,
merger, consolidation, extraordinary dividend, split-up, spinoff, combination,
exchange of shares, warrants or rights offering to purchase Stock at a price
substantially below Fair Market Value or other similar corporate event affecting
the Stock in order to preserve the benefits or potential benefits intended to be
made available to Participants granted Awards. In the event of any of the
foregoing events, the number of outstanding Awards and the number and kind of
shares subject to any outstanding Award and the purchase price per share, if
any, under any outstanding Award may be equitably adjusted (including by payment
of cash to a Participant) in the discretion of the Committee in order to
preserve the benefits or potential benefits intended to be made available to
Participants granted Awards. Such adjustments shall be made by the Committee,
whose determination as to what adjustments shall be made, and the extent
thereof, shall be final. Unless otherwise determined by the Committee, such
adjusted Awards shall be subject to the same vesting schedule and restrictions
to which the underlying Award is subject. No fractional shares of Stock shall be
reserved or authorized by any such adjustment.
(c) In calculating the number of shares of Stock remaining for issuance
under the Plan, the following rules shall apply:
1. The Section 4 Limit shall be reduced by the number of Shares subject
to outstanding Awards and, for Awards which are not denominated in
Shares, by the number of Shares delivered upon payment or settlement
of the Award.
2. The Section 4 Limit shall be increased by the number of shares of
Stock tendered to pay the exercise price of any Option or Other Award
and by the number of Shares withheld from any Award to satisfy a
Participant's tax withholding obligation or, if applicable, withheld
to pay the exercise price of an Option or Other Award.
3. The Section 4 Limit shall be increased by the number of Shares subject
to an Award (or portion thereof) granted hereunder that is forfeited,
is settled through the issuance of consideration other than Shares or
otherwise
<PAGE> 3
terminates without the issuance of such Shares. With respect to SAR
Awards that are settled in whole or in part in Stock, this Section
4(c)(3) shall be applied by increasing the Section 4 Limit by the
excess, if any, of the number of Shares subject to the SAR Award over
the number of Shares delivered to the Participant upon exercise of
such Award.
4. Any Shares underlying Substitute Awards shall not be counted against
the Section 4 Limit and shall not be subject to Section 4(d), except
in the case of Shares with respect to which Substitute Awards are
granted to officers or directors of the Company subject to the
reporting obligations of Section 16(a) of the Exchange Act.
In no event may the operation of the foregoing result in the issuance
under the Plan of a number of Shares in excess of the Section 4 Limit.
(d) The maximum number of Shares that may be subject to Awards granted to or
elected by a Participant (i) in the fiscal year in which the Plan is approved by
the stockholders of the Company shall equal 150,000 Shares, and (ii) in each
subsequent fiscal year shall equal 110% of such maximum number for the preceding
fiscal year.
5. ADMINISTRATION.
(a) The Plan shall be administered by the Committee, which shall have full
power and authority, subject to the express provisions hereof, (i) to select
Participants from among the Eligible Individuals, (ii) to make Awards in
accordance with the Plan, (iii) to determine the number of Shares subject to
each Award or the cash amount payable in connection with an Award, (iv) to
determine the terms and conditions of each Award, including, without limitation,
those related to vesting, forfeiture, payment, exercisibility, and the effect,
if any, of a Participant's termination of employment with the Company or a
change in control of the Company on the outstanding Awards granted to such
Participant, and including the authority to amend the terms and conditions of an
Award after the granting thereof to a Participant in a manner that is not
prejudicial to the rights of such Participant in such Award, (v) to determine
whether the terms and conditions of each Award will be set forth in an Award
Agreement or Award Certificate and to specify and approve the provisions of the
Award Agreements and Award Certificates delivered to Participants in connection
with their Awards, (vi) to construe and interpret any Award Agreement or Award
Certificate delivered under the Plan, (vii) to prescribe, amend and rescind
rules and procedures relating to the Plan, (viii) to vary the terms of Awards to
take account of tax, securities law and other regulatory requirements of foreign
jurisdictions and (ix) to make all other determinations and to formulate such
procedures as may be necessary or advisable for the administration of the Plan.
(b) The Committee may, but need not, from time to time delegate some or all
of its authority under the Plan to an Administrator consisting of one or more
members of the Committee or of one or more officers of the Company; provided,
however, that the Committee may not delegate its authority (i) to make Awards to
Eligible Individuals (A) who are subject on the Date of the Award to the
reporting rules under Section 16(a) of the Exchange Act, (B) who are Section
162(m) Participants or (C) who are officers of the Company and are delegated
authority by the Committee hereunder, or (ii) under Sections 5(c) and 15(f) of
the Plan. Any delegation hereunder shall be subject to the restrictions and
limits that the Committee specifies at the time of such delegation or
thereafter. Nothing in the Plan shall be construed as obligating the Committee
to delegate authority to an Administrator, and the Committee may at any time
rescind the authority delegated to an Administrator appointed hereunder or
appoint a new Administrator. At all times, the Administrator appointed under
this Section 5(b) shall serve in such capacity at the pleasure of the Committee.
Any action undertaken by the Administrator in accordance with the Committee's
delegation of authority shall have the same force and effect as if undertaken
directly by the Committee, and any reference in the Plan to the Committee shall,
to the extent consistent with the terms and limitations of such delegation, be
deemed to include a reference to the Administrator.
(c) The Committee shall have full power and authority, subject to the
express provisions hereof, to construe and interpret the Plan.
(d) All determinations by the Committee in carrying out and administering
the Plan and in construing and interpreting the Plan shall be final, binding and
conclusive for all purposes and upon all persons interested herein. In the event
of any disagreement between the Committee and the Administrator, the Committee's
determination on such matter shall be final and binding on all interested
persons, including the Administrator.
(e) No member of the Committee or the Administrator shall be liable for
anything whatsoever in connection with the administration of the Plan except as
a result of such person's own willful misconduct. Under no circumstances shall
any member of the Committee or the Administrator be liable for any act or
omission of any other member of the Committee or, in the case of members of the
Committee, the Administrator. In the performance of its functions with respect
to the Plan, the Committee and the Administrator shall be entitled to rely upon
information and advice furnished by the Company's officers, the Company's
accountants, the Company's counsel and any other party the Committee or the
Administrator deems necessary or appropriate, and no member of the Committee or
the Administrator shall be liable for any action taken or not taken in reliance
upon any such advice.
6. ELIGIBILITY. Eligible Individuals shall include all officers, other key
employees and consultants of the Company and its Subsidiaries, nonemployee
directors of Subsidiaries and employees and consultants of joint ventures,
partnerships or similar business organizations in which the Company or a
Subsidiary has an equity or similiar interest, other than those individuals who
<PAGE> 4
may be designated by the Committee from time to time as ineligible for such
period of time as the Committee shall determine. In accordance with rules
specified by the Committee, Eligible Individuals may include former employees or
former consultants of the Company and such joint ventures, partnerships or
similar business organizations. Members of the Committee will not be eligible to
participate in the Plan. An individual's status as an Administrator will not
affect his or her eligibility to participate in the Plan.
7. STOCK AWARDS. Stock Awards shall consist of one or more Shares of Stock
granted or offered for sale to an Eligible Individual, and shall be subject to
the terms and conditions established by the Committee in connection with the
Award and specified in the applicable Award Agreement or Award Certificate. The
Shares subject to a Stock Award may, among other things, be subject to
Performance Goals, vesting requirements or restrictions on transferability.
8. STOCK UNIT AWARDS. Stock Unit Awards shall consist of a grant of one or
more Stock Units, and shall be subject to the terms and conditions established
by the Committee, including Performance Goals, in connection with the Award and
specified in the applicable Award Agreement or Award Certificate. Each Stock
Unit awarded to a Participant shall correspond to one Share. Upon satisfaction
of the conditions to vesting and payment specified in the applicable Award
Agreement or Award Certificate, a Stock Unit will be payable, at the discretion
of the Committee, in Stock or in cash equal to Fair Market Value on the payment
date of one Share.
9. OPTION AWARDS.
(a) An Option Award shall consist of the grant of an Option to purchase such
number of Shares as determined by the Committee, and shall be subject to the
terms and conditions established by the Committee in connection with the Award
and specified in the applicable Award Agreement or Award Certificate. Upon
satisfaction of the conditions to exercisability specified in the applicable
Award Agreement or Award Certificate, a Participant shall be entitled to
exercise the Option in whole or in part and to receive, upon satisfaction or
payment of the exercise price or an irrevocable notice of exercise in the manner
contemplated by Section 9(b) below, the number of Shares in respect of which the
Option shall have been exercised. Such Options may be either nonqualified stock
options or incentive stock options within the meaning of Section 422 of the
Code.
(b) Subject to the provisions of the applicable Award Agreement or Award
Certificate, the exercise price of the Option may be paid in cash or previously
owned shares of Stock or a combination thereof and, if the applicable Award
Agreement or Award Certificate so provides, in whole or in part through the
withholding of Shares subject to the Option with a value equal to the exercise
price. In accordance with the rules and procedures established by the Committee
for this purpose, the Option may also be exercised through a "cashless exercise"
procedure approved by the Committee that affords Participants the opportunity to
sell immediately some or all of the Shares underlying the exercised portion of
the Option in order to generate sufficient cash to pay the Option exercise price
and/or to satisfy withholding tax obligations related to the Option.
(c) Options which are intended to qualify as incentive stock options under
Section 422 of the Code shall expire no later than the tenth anniversary of the
date of the grant thereof.
10. SAR AWARDS. An SAR Award shall consist of the grant of one or more SARs,
and shall be subject to the terms and conditions established by the Committee in
connection with the Award and specified in the applicable Award Agreement or
Award Certificate. Upon satisfaction of the conditions to the payment specified
in the applicable Award Agreement or Award Certificate, each SAR shall entitle a
Participant to an amount, if any, equal to the Fair Market Value of a Share on
the date of exercise over the SAR exercise price specified in the applicable
Award Agreement or Award Certificate. At the discretion of the Committee,
payments to a Participant upon exercise of an SAR may be made in Shares, cash or
a combination thereof.
11. OTHER AWARDS. The Committee shall have the authority to specify the
terms and provisions, including Performance Goals, of other forms of
equity-based or equity-related Awards not described above which the Committee
determines to be consistent with the purpose of the Plan and the interests of
the Company, which Awards may provide for cash payments based in whole or in
part on the value or future value of Stock, for the acquisition or future
acquisition of Stock, or any combination thereof. Other Awards shall also
include cash payments (including the cash payment of dividend equivalents) under
the Plan which may be based on one or more criteria determined by the Committee
which are unrelated to the value of Stock and which may be granted in tandem
with, or independent of, other Awards under the Plan.
12. AWARDS IN GENERAL.
(a) Awards under the Plan may, in the discretion of the Committee, be made
in substitution in whole or in part for cash or other compensation payable to an
Eligible Individual. In accordance with rules and procedures established by the
Committee, an Eligible Individual may elect to receive one form of Award
permitted under the Plan in lieu of any other form of Award, or may elect to
receive an Award under the Plan in lieu of all or part of any compensation which
otherwise might have been paid to such Eligible Individual; provided, however,
that any such election shall not require the Committee to make any Award to such
Eligible Individual. Any such substitute or elective Awards shall have terms and
conditions consistent with the provisions of the Plan applicable to such Award.
At the discretion of the Committee, Stock Units may at any time be substituted
for the portion of a Stock Award that has not vested in accordance with the
provisions of the applicable Award Agreement or Award Certificate. The
substitution contemplated by the previous sentence may be made at any time prior
to the applicable vesting date of the Stock Award.
<PAGE> 5
(b) For purposes of determining the number of Shares subject to an Award,
the Committee may value the shares at a discount to Fair Market Value to reflect
the various restrictions, conditions and limitations set forth in the Plan and
the applicable Award Agreement or Award Certificate or otherwise applicable to
the Shares.
(c) With respect to any dividend or distribution on the Shares corresponding
to an Award, the Committee may in its discretion authorize current or deferred
payments (payable in cash or Stock or a combination thereof) or appropriate
adjustments to the outstanding Award to reflect such dividend or distribution.
(d) In accordance with the procedures specified by, and subject to the
approval of, the Committee, Participants may be given the opportunity to defer
the payment or settlement of an Award to one or more dates selected by the
Participant. In connection with such deferral, the Committee may provide that
Awards so deferred may be credited with a notional return during the period of
deferral based upon the corresponding return on one or more investments
designated by the Committee or elected by the Participant in accordance with the
procedures established by the Committee for this purpose. The Committee shall
have the right at any time to accelerate the payment or settlement of any Award
granted under the Plan, including, without limitation, any Award subject to a
prior deferral election.
(e) The terms and provisions of an Award shall be set forth in a written
Award Agreement or Award Certificate approved by the Committee and delivered or
made available to the Participant as soon as practicable following the Date of
the Award.
(f) The vesting, exercisability, payment and other restrictions applicable
to an Award (which may include, without limitation, restrictions on
transferability or provision for mandatory resale to the Company) shall be
determined by the Committee and set forth in the applicable Award Agreement or
Award Certificate. Notwithstanding the foregoing, the Committee may accelerate
(i) the vesting or payment of any Award, (ii) the lapse of restrictions on any
Award (including a Stock Award) or (iii) the date on which any Option or SAR
first becomes exercisable. The date of a Participant's termination of employment
for any reason shall be determined in the sole discretion of the Committee. The
Committee shall also have full authority to determine and specify in the
applicable Award Agreement or Award Certificate the effect, if any, that a
Participant's termination of employment for any reason will have on the vesting,
exercisability, payment or lapse of restrictions applicable to an outstanding
Award.
(g) If the Committee conditions the vesting of any Awards under the Plan,
other than Option Awards and SAR Awards, upon service alone, such vesting may
not occur before three years from the Date of the Award. Notwithstanding
anything in this Plan to the contrary, not more than 95,000 shares of Stock in
the aggregate available under this Plan may be subject to Awards, other than
Option Awards and SAR Awards, which do not meet the requirements of the first
sentence of this subsection (g) or to which the Committee may accelerate or
waive any restrictions imposed by the Committee or, in the case of grants of
Option Awards, which the Committee may subsequently determine, with the
Participant's consent but without any approval or consent of the Company's
stockholders, are not to be subject to the limitations of Section 15(f).
13. CERTAIN RESTRICTIONS.
(a) Except as otherwise provided by the terms of any applicable Employee
Trust, prior to the exercise of any Option or SAR Award or payment of Stock
pursuant to any Stock Unit Award or Other Award, the Participant shall not have
any rights as a stockholder with respect to any Shares subject to such Option or
SAR or corresponding to such Stock Unit or Other Award. Subject to the terms of
any applicable Employee Trust, each Participant shall be the beneficial owner of
any Shares actually issued by the Company in connection with an Award. Except
for the risk of forfeiture and the restrictions on transfer which may apply to
certain Shares (including restrictions relating to any dividends or other
rights), the Participant shall be entitled to all rights of ownership,
including, without limitation, the right (i) to vote such Shares and (ii) to
receive cash or stock dividends thereon.
(b) Unless the Committee determines otherwise, no Award granted under the
Plan shall be transferable other than by will or by the laws of descent and
distribution; provided, however, that the Committee may, subject to such terms
and conditions as the Committee shall specify, permit the transfer of an Award
to a Participant's family members or to one or more trusts established in whole
or in part for the benefit of one or more of such family members; provided,
further, that the restrictions in this sentence shall not apply to the Shares
received in connection with an Award after the date that the restrictions on
transferability of such Shares set forth in the applicable Award Agreement or
Award Certificate have lapsed. During the lifetime of the Participant, an
Option, SAR or similar-type Other Award shall be exercisable only by him or by
the family member or trust to whom such Option, SAR or Other Award has been
transferred in accordance with the previous sentence.
14. INVESTMENT REPRESENTATION. Each Award shall be conditioned on the
Participant making any representations required in the applicable Award
Agreement or Award Certificate. Each Award shall also be conditioned upon the
making of any filings and the receipt of any consents or authorizations required
to comply with or required to be obtained under, applicable local law.
15. MISCELLANEOUS PROVISIONS.
(a) As a condition to the making of any Award, the vesting or payment of any
Award or the lapse of the restrictions pertaining thereto (including those
related to the exercise of an Option or SAR), the Company may require the
Participant to pay such sum to the Company as may be necessary to discharge the
Company's obligations with respect to any taxes, assessments or other
governmental charges imposed on property or income received by a Participant
pursuant to the Plan. In
<PAGE> 6
accordance with rules and procedures established by the Committee and, in the
discretion of the Committee, such payment may be in the form of cash or other
property. In accordance with rules and procedures established by the Committee,
in satisfaction of such taxes, assessments or other governmental charges the
Company may, in the discretion of the Committee, make available for delivery a
lesser number of Shares in payment or settlement of an Award or permit a
Participant to tender previously owned Shares to satisfy such withholding
obligation. At the discretion of the Committee, the Company may deduct or
withhold the amount of taxes, assessments or other charges from any payment or
distribution to a Participant whether or not pursuant to the Plan. In accordance
with rules and procedures established by the Committee, the Company may offer
loans to Participants to satisfy withholding requirements and to satisfy the
exercise price when exercising Options which are not designated or qualified
hereunder or by the Code as "incentive stock options," on such terms as the
Committee may determine, which terms may, in the discretion of the Committee, be
non-interest bearing. The Company and the Participant may also make similar
arrangements with respect to the payment of any taxes with respect to which
withholding is not required.
(b) The Plan shall not give rise to any right on the part of any Participant
to continue in the employ of the Company or its Subsidiaries.
(c) All expenses and costs in connection with the administration of the Plan
or issuance of Shares, Options, SARs, Stock Units or Other Awards hereunder
shall be borne by the Company.
(d) The headings of sections herein are included solely for convenience of
reference and shall not affect the meaning of any of the provisions of the Plan.
(e) The Plan and all rights hereunder shall be construed in accordance with
and governed by the internal laws of the State of Ohio.
(f) The Board or Committee may modify, amend, suspend or terminate the Plan
in whole or in part at any time; provided, however, that such modification,
amendment, suspension or termination shall not, without a Participant's consent,
affect adversely the rights of such Participant with respect to any Award
previously made; and provided, further, that such modification, amendment,
suspension or termination shall not, without the approval of the Company's
shareholders:
(i) except as expressly provided in this Plan, increase the total number
of shares of Stock reserved for the purpose of the Plan;
(ii) extend the maximum period for exercise of Share Awards or SAR
Awards applicable under the Plan;
(iii) decrease the price of an Option Award, whether directly or
indirectly; or
(iv) otherwise materially increase the benefits accruing to Participants
under the Plan.
(g) The Plan is intended to comply with and be subject to Rule 16b-3 as in
effect prior to May 1, 1991. The Committee may at any time elect that the Plan
shall be subject to Rule 16b-3 as in effect on and after May 1, 1991.
<PAGE> 1
EXHIBIT 5
May 7, 1996
Caliber System, Inc.
3560 West Market Street
Akron, Ohio 44333
Re: 1996 Equity Incentive Compensation Plan
Gentlemen:
I have acted as counsel for Caliber system, Inc. (the "Company") in connection
with the adoption of the 1996 Equity Incentive Compensation Plan (the "Plan").
I have examined such documents, records and matters of law as I have
deemed necessary for purposes of this opinion, and based thereon I am of the
opinion that the shares of common stock, without par value, of the Company
("Common Stock") that may be issued pursuant to the Plan are duly authorized
and will be, when issued in accordance with the Plan, validly issued, fully
paid and nonassessable
I hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement on Form S-8 being filed by the Company to effect registration of the
shares of Common Stock to be issued and sold pursuant to the Plan under the
Securities Act of 1933.
Very truly yours,
Joseph C. Weinstein
JCW:050796-2
<PAGE> 1
Exhibit 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1996 Equity Incentive Compensation Plan of
Caliber System, Inc. of our reports dated January 23, 1996, with respect to the
consolidated financial statements of Caliber System, Inc. incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1995
and the related financial statement schedule included therein, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Akron, Ohio
May 6, 1996
<PAGE> 1
EXHIBIT 24
DIRECTORS AND OFFICERS OF
CALIBER SYSTEM, INC.
1996 EQUITY INCENTIVE COMPENSATION PLAN
REGISTRATION STATEMENT ON FORM S-8
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of Caliber system, Inc., an Ohio corporation (the "Company"),
hereby constitutes and appoints Douglas A. Wilson, with full power of
substitution and resubstitution, as the true and lawful attorney-in-fact and
agent of the undersigned, to sign and file on his behalf and in his name, place
and stead, in any and all capacities, under the Securities Act of 1933, one or
more Registration Statements on Form S-8 relating to the registration, offer,
and sale of such number of shares of common stock, without par value, as shall
be determined from time to time, issued and to be issued or acquired in
connection with the Company's 1996 Equity Incentive Compensation Plan (the
"Plan"), and any and all amendments and exhibits thereto, including
post-effective amendments and any and all applications or other documents to be
filed with the Securities and Exchange Commission or any state regulatory
authority, including and state securities regulatory board or commission,
pertaining to the securities subject to such registrations, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done in the premises, hereby ratifying and approving the acts
of said attorney and any such substitute.
EXECUTED this 8th day of May, 1996.
/s/ GEORGE B. BEITZEL /s/ CHARLES R. LONGSWORTH
- ------------------------------- -------------------------------
GEORGE B. BEITZEL CHARLES R. LONGSWORTH
/s/ RICHARD A. CHENOWETH /s/ G. JAMES ROUSH
- ------------------------------- -------------------------------
RICHARD A. CHENOWETH G. JAMES ROUSH
/s/ KATHRYN W. DINDO /s/ DANIEL J. SULLIVAN
- ------------------------------- -------------------------------
KATHRYN W. DINDO DANIEL J. SULLIVAN
/s/ NORMAN C. HARBERT /s/ H. MITCHELL WATSON, JR.
- ------------------------------- -------------------------------
NORMAN C. HARBERT H. MITCHELL WATSON, JR.
/s/ DOUGLAS A. WILSON
- ------------------------------- -------------------------------
HARRY L. KAVETAS DOUGLAS A. WILSON
