SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Consolidated Freightways Corporation
(Exact name of registrant as specified in its charter)
Delaware 77-0425334
(State of Incorporation) (I.R.S. Employer
Identification No.)
175 Linfield Drive
Menlo Park, California 94025
(Address of principal executive offices)
CF AirFreight Savings Plan
(Full title of the plan)
Stephen D. Richards, Esq.
Consolidated Freightways Corporation
175 Linfield Drive
Menlo Park, California 94025
(650) 326-1700
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount to Maximum Maximum Amount of
Securities be Offering Aggregate Registration
to be Registered Price Per Offering Fee (2)
Registered Share (1) Price (1)
Common Stock
(par value 100,000 $4.5625 $456,250.00 $120.45
$0.01)
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the CF
AirFreight Savings Plan, the employee benefit plan described herein (the
"Plan").
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and 457(h) under the Securities
Act. The price per share and aggregate offering price for the shares
registered hereunder are based upon the average of the high and low sale
prices of the Registrant's Common Stock on July 26, 2000, as reported on
The Nasdaq National Market's website for its issues.
(2) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act as follows: the Proposed Maximum Aggregate Offering
Price of the shares registered multiplied by 0.000264.
Part II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Consolidated Freightways
Corporation (the "Company") with the Securities and Exchange
Commission are incorporated by reference into this Registration
Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the Plan's latest annual report
filed pursuant to Section 13(a) or 15(d) of the Exchange Act.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
annual reports referred to in (a) above.
(c) The description of the Company's Common Stock which is contained
in Form 10-12G/A filed under the Exchange Act as of November 7, 1996,
including any amendment or report filed for the purpose of updating
such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated
by reference herein and to be a part of this registration statement
from the date of the filing of such reports and documents.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Stephen D. Richards, Senior Vice President and General Counsel of
the Company, is providing the required opinion regarding the legality
of the securities being registered (see Exhibit 5.1 to this
Registration Statement). Mr. Richards owns 129,678 shares of the
Company's common stock and options to purchase an additional 97,000
shares of the Company's common stock. Mr. Richards is not eligible to
receive awards under or otherwise participate in the Plan.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Limitation of Liability
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation's certificate of incorporation to include a
provision eliminating or limiting the personal liability of a director
to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director provided that such provision
shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL (relating to unlawful payment of
dividends and unlawful stock purchase and redemption) or (iv) for any
transaction from which the director derived an improper personal
benefit. As permitted by Section 102(b)(7) of the DGCL, the Company's
Certificate of Incorporation, as amended, provides that the Company's
directors shall not be liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except to
the extent that exculpation from liabilities is not permitted under
the DGCL as in effect at the time such liability is determined.
Indemnification and Insurance
The Company's Certificate of Incorporation, as amended, and Bylaws, as
amended, provide that the Company shall indemnify its directors and
officers to the full extent permitted by the law of the State of
Delaware. Section 145 of the DGCL provides that a corporation may
indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative (other than an
action by or in the right of the corporation) by reason of the fact
that he or she is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in
good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. Section 145 further provides
that a corporation similarly may indemnify any such person serving in
any such capacity who was or is a party or is threatened to be made by
a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor,
against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action
or suit if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of
the corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to
the extent that the Delaware Court of Chancery or such other court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
The Company has obtained an insurance policy that insures its
directors and officers against certain liabilities.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
Exhibit
Number
4.1 Amended and Restated Certificate of Incorporation of the
Company. (1)
4.2 Amended and Restated Bylaws of the Company. (2)
4.3 CF AirFreight Savings Plan (draft).
5.1 Opinion of Counsel of Consolidated Freightways Corporation.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Counsel for Consolidated Freightways Corporation
(included in Exhibit 5.1).
24.1 Powers of Attorney.
(1) Document incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-8 dated November 26, 1996,
File No. 333-16851.
(2) Document incorporated by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
The Registrant will submit the Plan and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and will make all
changes required by the IRS in order to qualify the Plan under Section
401 of the Internal Revenue Code.
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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;
(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. 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 end 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
a 20% 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 the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(i) and (a)(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 issuer pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference herein.
(b) 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
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) 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.
2. 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, where applicable, each filing of an
employee benefit 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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act 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.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, as amended, 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 Menlo Park, State of
California, on July 28, 2000.
CONSOLIDATED FREIGHTWAYS CORPORATION
By /s/ Stephen D. Richards
Stephen D. Richards
Senior Vice President and
General Counsel
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed on July 28, 2000,
by the following persons in the capacities indicated below.
Signature
Title
/s/ Patrick H. Blake
Patrick H. Blake
Chief Executive Officer, President,
and Director
(Principal Executive Officer)
/s/ Robert E. Wrightson
Robert E. Wrightson
Senior Vice Wrightson President and
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
* /s/ William D. Walsh
William D. Walsh
Chairman of the Board
* /s/ G. Robert Evans
G. Robert Evans
Director
* /s/ Paul B. Guenther
Paul B. Guenther
Director
* /s/ Robert W. Hatch
Robert W. Hatch
Director
* /s/ John M. Lillie
John M. Lillie
Director
* /s/ James B. Malloy
James B. Malloy
Director
* /s/ Raymond F. O'Brien
Raymond F. O'Brien
Director
* By /s/ Stephen D. Richards
Stephen D. Richards
Attorney-in-fact
The Plan. Pursuant to the requirements of the Securities Act of
1933, as amended, the members of the Administrative Committee of the
Plan have duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, on the dates
indicated below, in the City of Menlo Park, State of California (by
Mr. Bolio), and in the City of Portland, State of Oregon (by Mr.
Morgan).
CF AIRFREIGHT SAVINGS PLAN
ADMINISTRATIVE COMMITTEE
/s/ Wayne M. Bolio July 28, 2000
Wayne M. Bolio, Member
/s/ Kerry Morgan July 28, 2000
Kerry Morgan, Member
EXHIBIT INDEX
Exhibit
Number Description
4.1 Amended and Restated Certificate of Incorporation of the
Company. (1)
4.2 Amended and Restated Bylaws of the Company. (2)
4.3 CF AirFreight Savings Plan (draft).
5.1 Opinion of Counsel of Consolidated Freightways Corporation.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Counsel for Consolidated Freightways Corporation
(included in Exhibit 5.1).
24.1 Powers of Attorney.
(1) Document incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-8 dated November 26, 1996,
File No. 333-16851.
(2) Document incorporated by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
Exhibit 4.3
DRAFT
CF AIRFREIGHT
SAVINGS PLAN
June ___, 2000
TABLE OF CONTENTS
Page
INDEX OF TERMS
ARTICLE I Relevant Dates; Qualification
1.01 Effective Date; Plan Year;
Limitation Year; Valuation Dates
1.02 Qualification
ARTICLE II Application to the Company and Affiliates
2.01 Eligible Employers
2.02 Service for Affiliates
2.03 Adoption Procedure
ARTICLE III Eligibility and Service
3.01 Conditions of Eligibility
3.02 Service
3.03 Leaves of Absence
3.04 Break in Service
ARTICLE IV Compensation; Contributions
4.01 Compensation
4.02 Supplementary Contributions
4.03 Elective Contributions
4.04 Matching Contributions
4.05 No After-Tax Employee Contributions
4.06 Contribution Limits for Highly
Compensated Employees
4.07 Actions to Correct Excess
Contributions for
Highly Compensated Employees
4.08 Deductibility
4.09 Limit on Annual Additions
4.10 Adjustments to Satisfy Limits
4.11 Time of Payment
ARTICLE V Participants' Accounts
5.01 Participants' Accounts
5.02 Valuations and Adjustments
5.03 Rollovers
5.04 Transfers Between Plans
5.05 In-Service Withdrawals
5.06 Loans to Participants
ARTICLE VI Retirement Benefits
6.01 Entitlement; Retirement Dates;
Participation
After Mandatory Benefit Starting Date
6.02 Amount and Form of Benefit
6.03 Application for Benefits; Time of Payment
6.04 Distribution Rules
ARTICLE VII Benefits on Death and Disability
7.01 Benefits on Death
7.02 Disability
7.03 Designation of Beneficiary
ARTICLE VIII Benefits After Termination of Employment
8.01 Vesting
8.02 Distributable Amount
8.03 Payment of Benefits
8.04 Forfeiture of Unvested Amounts
8.05 Restoration of Forfeited Amounts
8.06 Vesting After Rehire
ARTICLE IX Plan Administration
9.01 Administrative Committee
9.02 Committee Powers and Duties; Reports to
Committee
9.03 Company and Employer Functions
9.04 Claims Procedure
9.05 Expenses
9.06 Indemnity and Bonding
ARTICLE X Investment of Trust Funds; Voting Company Stock
10.01 Trust Fund
10.02 Pooled Investment Funds
10.03 Diversification of Company Stock
ARTICLE XI Amendment; Termination; Merger
11.01 Amendment
11.02 Termination
11.03 Treatment of Employers
11.04 Merger
ARTICLE XII Miscellaneous Provisions
12.01 Information Furnished
12.02 Applicable Law
12.03 Plan Binding on All Parties
12.04 Not Contract of Employment
12.05 Notices
12.06 Benefits Not Assignable;
Qualified Domestic
Relations Orders
12.07 Nondiscrimination
12.08 Nonreversion of Assets
ARTICLE XIII Special Top-Heavy Plan Rules
13.01 Application of Rules
13.02 Determination of Top-Heavy Status
13.03 Top-Heavy Plan Restrictions
INDEX OF TERMS
Term Section
Absence because of Maternity
or Paternity 3.04-1(d)
Actual Deferral Percentage (ADP) 4.06-2
Affiliate 2.01-2
Annual Addition 4.09-3
Beneficiary 7.03
Break in Service 3.04
Break-in-Service Year 3.04-1(b)
CF AirFreight 1.01-1, 2.01 1,2
Chair 9.01-1
Committee 9.01
Company Preamble, 9.03 ,
Company Group Preamble
Company Stock 4.02-3
Compensation 4.01
Contribution Percentage (CP) 4.06-2
Deferred Retirement Date 6.01-2(b)
Disabled Participant 7.02
Effective Date 1.01-1
Elective Contributions 4.03
Elective Transfers 5.04-2(d)
Eligibility 3.01
Eligible Recipient 6.03-4(d)
Eligible Retirement Plan 6.03-4(b)
Eligible Rollover Distribution 6.03-4(c)
Employer 2.01-3, 9.03 ,
Employment Year 3.02-2
Excess Deferral 4.03-3
FMLA Leave 3.03-2(d)
Highly Compensated Employee 4.06-5
Hours of Service 3.02-4
Key Employee 13.02-3
Leave of Absence 3.03
Limitation Year 1.01-2
Matching Contributions 4.04
Non-Key Employee 13.02-3
Normal Retirement Date 6.01-2(a)
Participant 3.01-6
Party in Interest 5.06-1
Plan Administrator 9.02-2
Plan Year 1.01-2
Qualified Domestic Relations Orders (QDROs) 12.06
Qualified Employee 3.01-2
Rollover 5.03
Service 3.02
Service Year 3.02-1
Severance Date 3.02-3(b)(3)
Supplemental Employee 3.01-3
Supplementary Contribution 4.02
Top-Heavy Plan 13.02-1
Trustee 10.01
Valuation Date 1.01-3
Year of Service 3.02-3
CF AIRFREIGHT
SAVINGS PLAN
June ___, 2000
Consolidated Freightways Corporation (the "Company")
adopts this plan effective June __, 2000.
ARTICLE I
Relevant Dates; Qualification
1.01 Effective Date; Plan Year;
Limitation Year; Valuation Dates
1.01-1 This plan shall be effective generally June __,
2000. The following special provisions and effective dates
apply:
(a) Persons employed by the CF
AirFreight Corporation ("CF AirFreight") on
June 2, 2000 shall participate immediately and
be given service credit for vesting for service
to FirstAir, Inc.
(b) For the first plan year from
June __, 2000 to December 31, 2000, the ADP and
the CP of nonhighly compensated employees for
the first plan year shall be used under 4.06-3
in place of the ADP and CP for the prior plan
year.
1.01-2 The "plan year" and "limitation year" shall be
a calendar year.
1.01-3 The last day of each plan year shall be the
regular "valuation date." Each other date on which the trust
assets are valued at the request of the Committee shall be a
special valuation date.
1.02 Qualification
1.02-1 The plan and the related trust are maintained
for the exclusive benefit of participants and eligible employees
and are intended to comply with sections 401(a), 401(k) and 501
of the Internal Revenue Code and applicable regulations. This
plan is a profit sharing plan.
1.02-2 If the Commissioner of Internal Revenue rules
that the plan and the related trust do not qualify under sections
401(a), 401(k) and 501 of the Internal Revenue Code, the Company
may, within the time permitted by applicable law and regulations,
amend the plan and trust retroactively to qualify. This plan is
a new plan, the adoption of which is contingent on initial
approval by the Internal Revenue Service in response to a
determination letter request submitted no later than the due date
of the Company's federal income tax return for its taxable year
in which the plan was adopted or such later time or the
designate. If the plan and related trust are rescinded for
failure initially to qualify, all contributions, adjusted for
interior investment results and expenses, shall be returned, and
all rights of employees shall cease as though the plan and trust
had not been adopted.
ARTICLE II
Application to CF AirFreight and Affiliates
2.01 Eligible Employers
2.01-1 The Company has adopted this plan initially for
the employees of CF AirFreight, and any affiliate approved by the
Company may adopt this plan for its employees.
2.01-2 "Affiliate" means a corporation, person or
other entity that is any of the following:
(a) A member, with Employer, of a
controlled group under section 414(b) of the
Internal Revenue Code.
(b) A member, with Employer, of a group
of trades or businesses under common control
under section 414(c) of the Internal Revenue
Code.
(c) A member, with Employer, of an
affiliated service group under section 414(m)
of the Internal Revenue Code.
(d) A member, with Employer, of a group
of businesses required to be aggregated under
section 414(o) of the Internal Revenue Code.
(e) An entity that has been designated
an affiliate for this purpose by the Company.
2.01-3 "Employer" means CF AirFreight and any adopting
affiliate. This plan is a single plan which is or may be
maintained by multiple employers in which all of the plan assets
are available to pay benefits for all participants.
2.02 Service for Affiliates
2.02-1 Transfer of employment from one affiliate to
another shall not cause a termination or Break in Service.
2.02-2 Work for any affiliate, whether or not an
adopting Employer, shall be counted as Service after the business
becomes an affiliate or an earlier date fixed by the Company or
in a statement of adoption.
2.02-3 If a business is acquired by the Company or an
affiliate and not continued as a separate affiliate, Service for
employees of the acquired business who become employees of the
Company or the acquiring affiliate shall be counted from their
date of hire by the Company or the affiliate. Past service for
the acquired business may be counted from dates fixed by the
Company, filed with the Committee and announced to affected
employees.
2.02-4 If an employee is employed by two or more
affiliates at the same time, the following rules shall apply:
(a) Service for both affiliates shall
count to determine whether a Service Year is a
Year of Service.
(b) The employee may elect contributions
up to the maximum allowed percentage of
compensation from each Employer, but may not
elect contributions from compensation from a
non-adopting affiliate.
(c) The employee shall receive a share
of the matching contribution from each Employer
based on elective contributions with respect to
compensation from each.
(d) The employee shall receive an
allocation of supplementary contributions, if
any, based on compensation from each Employer.
2.03 Adoption Procedure
An affiliate may adopt this plan by a written statement
signed by the affiliate, approved by the Company and filed with
the Trustee. The statement shall include the effective date of
adoption and any special provisions that are to be applicable
only to employees of the adopting affiliate.
ARTICLE III
Eligibility and Service
3.01 Conditions of Eligibility
3.01-1 A Qualified Employee shall participate as
follows:
(a) Except as provided in (b) and
subject to election procedures under 4.03,
participation shall start on the first day of
employment as a Qualified Employee.
(b) Subject to election procedures under
4.03, a Supplemental Employee shall participate
immediately after the date the employee
completes one Year of Service.
(c) Participation in elective
contributions shall continue as long as the
employee remains a Qualified Employee.
(d) Participation in supplementary and
matching contributions shall start and continue
as provided in 4.02-2, 4.04-4 and 13.03-2.
Participation in supplementary contributions
shall not require an election under 4.03.
3.01-2 "Qualified Employee" means any employee of
Employer, except the following:
(a) An employee covered by a collective
bargaining agreement that does not provide for
participation in this plan.
(b) A leased employee treated as an
employee for pension purposes solely because of
section 414(n) of the Internal Revenue Code.
(c) A nonresident alien who has no US-
source earned income.
(d) An employee of an Employer or a
division or branch of an Employer that has
substantially all of its operations outside of
the United States unless both of the following
apply:
(1) Employer makes
contributions under the Federal
Insurance Contributions Act on
behalf of the employee.
(2) The employee does not
accrue a benefit under a funded
pension plan or similar plan, other
than this plan or the Company's
Pension Plan, to which the Company
or any affiliate contributes.
3.01-3 "Supplemental Employee" means a Qualified
Employee who is one or more of the following:
(a) A regularly scheduled part-time
employee.
(b) An employee hired to perform work in
excess of Employer's normal workload.
(c) An employee hired to replace a
temporarily absent employee.
(d) Any other employee designated as a
Supplemental Employee in Employer's payroll
system.
3.01-4 Subject to 3.01-5 below, "employee" means for a
year one of the following:
(a) A person who receives an IRS Form
W-2 from Employer or an affiliate under 2.01-2,
other than the following:
(1) A person who receives a
Form W-2 solely because of payments
from a non-qualified deferred
compensation plan.
(2) A person who receives a
Form W-2 solely because of payments
for the year attributable entirely
to services performed in a prior
year.
(b) A person who has satisfied (a) in a
prior year and is treated as an employee for
accruing service under a specific provision of
this plan.
(c) A leased employee under 3.01-2(b).
3.01-5 If a person's employment status is redetermined
for any period, the following shall apply:
(a) A person who receives a Form W-2 for
a period and is later determined to be an
independent contractor for that period, not an
employee, shall be treated as ineligible
retroactively to the earliest date on which the
determination is effective.
(b) A person who does not receive a Form
W-2 for a period shall not be treated as an
employee for that period even if it is later
determined that the person was entitled to
receive a Form W-2 for the period.
3.01-6 Every person eligible to elect contributions or
having an account under this plan shall be known as a
"participant." The Committee shall inform participants about the
plan and procedures for enrollment, making contribution
elections, making investment elections and designating
beneficiaries.
3.02 Service
3.02-1 "Service Year" means:
(a) For initial eligibility under 3.01
and Breaks in Service under 3.04 - the initial
Employment Year and each plan year starting
with the plan year in which the initial
Employment Year ends.
(b) For vesting under 8.01, an
Employment Year.
(c) For continued participation in
contributions, a plan year.
3.02-2 "Employment Year" means the 12 consecutive-
month period starting on the date the employee first performs an
Hour of Service, or an anniversary of that date.
3.02-3 "Year of Service" means the following:
(a) For eligibility for contributions:
(1) Each Service Year in
which an employee has 1,000 or more
Hours of Service.
(2) A plan year in which the
participant is employed at the rate
of 1,000 or more Hours of Service
in part of the year shall be a Year
of Service for participation in
contributions (not for vesting) if
one of the following applies:
(i)
The partial year ends
due to disability under
7.02.
(ii)
The partial year begins
on rehire as a Qualified
Employee, employment
continues through the
end of the plan year and
either a Break in
Service has not occurred
or pre-Break Service is
counted for
participation under
3.04-2.
(b) For vesting:
(1) A 12-month period within
the total period of employment with
Employer beginning with the date
the employee first performs an Hour
of Service and ending on the
Severance Date.
(2) If an employee performs
an Hour of Service after rehire but
before the first anniversary of the
Severance Date, the period between
the Severance Date and the
resumption of Service shall be
counted. Not more than one Year of
Service will be counted under
(b)(3) below during an absence for
maternity or paternity.
(3) "Severance Date" means:
The earliest of the
following:
(i)The date the employee
quits, retires, is
discharged or dies.
(ii) The first
anniversary of the
first day the
employee is absent
from work for any
reason, including
without limitation
illness, disability
other than disability
under 7.02, vacation,
layoff, or leave of
absence unless the
authorized period of
leave is greater than
one year and the
employee resumes
employment under the
conditions of the
leave.
(iii) The second
anniversary of the
first day of absence
because of maternity
or paternity under
3.04-1(d), subject to
the requirements of
3.04-1(e).
(4) All or whole fractional
Years of Service in (1) and (2)
above shall be aggregated until the
fifth anniversary of the latest
Severance Date. After the fifth
anniversary, a rehired employee
shall have no credit for months of
Service and shall be treated as
newly hired.
(5) Service shall continue to
accrue if the participant is absent
because of a disability under 7.02.
3.02-4 "Hours of Service" are the following:
(a) Hours, whether or not worked, for
which an employee is directly or indirectly
paid or entitled to payment.
(b) Regularly scheduled hours during
leave of absence under 3.03.
(c) Hours covered by a back pay award or
agreement, regardless of mitigation of damages,
unless already counted.
(d) Hours paid for at or after
termination of employment for layoff,
disability, jury duty or unused vacation,
holiday or sick leave.
(e) Hours as a leased employee under
3.01-2(b) or in another non-Qualified
employment capacity.
3.02-5 The following shall apply to Hours of Service
for periods not worked:
(a) Hours shall be computed and
attributed to Service Years in accordance with
Department of Labor Regulations sections
2530.200b-2(b) and (c).
(b) Hours directly or indirectly paid
for under 3.02-4(a) include regularly scheduled
hours during periods of disability when an
individual is receiving payments from Employer
or from an insurance company under a policy
maintained by Employer.
(c) Hours directly or indirectly paid
for under 3.02-4(a) do not include hours during
periods in which an individual receives
payments only under workers' compensation or
unemployment compensation laws, regardless of
the source of payment.
(d) Hours counted under 3.02-4(d) do not
include any hours on account of severance pay,
except severance pay measured by applying a
rate of pay to a period of time.
(e) No more than 501 hours will be
counted on account of any single continuous
period in which the employee performs no
services, whether or not the period occurs in a
single computation period.
3.02-6 Hours of Service shall be credited as follows:
(a) For an hourly paid employee, actual
hours shall be credited under 3.02-4.
(b) For a salaried employee, 190 hours
shall be credited for each month in which the
employee has one or more hours as defined in
3.02-4.
3.02-7 If an employee of Employer is shared with other
employers on an agreed basis, all time for all employers shall be
counted to determine the employee's Service.
3.03 Leaves of Absence
3.03-1 An employee on leave of absence shall be
treated as employed for all purposes under this plan.
3.03-2 "Leave of absence" under 3.03-1 shall mean the
following:
(a) Leave of absence authorized by
Employer if the employee returns or retires
within the time prescribed and otherwise
fulfills all conditions imposed by Employer.
(b) Leave of absence in accordance with
Employer policies because of illness or
accident, including disability that does not
result in retirement, if the employee returns
promptly after recovery.
(c) Periods of military service if the
employee returns with employment rights
protected by law.
(d) Periods of leave covered by the
Family and Medical Leave Act of 1993 ("FMLA
leave").
3.03-3 In authorizing leaves of absence, Employer
shall treat all employees who are similarly situated alike as
much as possible.
3.03-4 If a person on leave fails to meet the
conditions of the leave or fails to return to work when required,
the following shall apply:
(a) Employment shall be terminated and
accrual of Service shall stop when the failure
occurs if either of the following apply:
(1) The leave is not for
military service and the failure is
because of death, disability under
7.02 or retirement.
(2) The leave is FMLA leave.
(b) If (a) does not apply, Employment
shall be terminated and accrual of Service
shall stop as of the date the leave began.
(c) No previous allocation of
contributions shall be changed.
3.04 Break in Service
3.04-1 A "Break in Service" shall be determined as
follows:
(a) A Break in Service shall occur when
an employee has five consecutive Break-in-
Service Years.
(b) Subject to (c), a "Break-in-Service
Year" is a Service Year in which an employee
has not more than 500 Hours of Service.
(c) Regardless of Hours of Service, an
employee absent because of maternity or
paternity shall not, because of such absence,
have a Break-in-Service Year until the second
Service Year ending after the Service Year in
which the absence begins, subject to (e) below.
(d) "Absence because of maternity or
paternity" means an absence from Service
because of any of the following:
(1) Pregnancy.
(2) Birth of the employee's
child or care following birth.
(3) Adoption of the
employee's child or care following
adoption or placement for adoption.
(e) Paragraph (c) above shall not apply
unless the employee furnishes timely
information satisfactory to the Committee to
establish the following:
(1) That the absence was due
to maternity or paternity.
(2) The length of the
absence.
3.04-2 Intermittent periods of Service shall be
aggregated until there is a Break in Service. If a Break in
Service occurs and the employee has later Service, Service before
the Break shall be counted only if the employee had met the
Service requirements for participation before the Break.
3.04-3 If an employee has a Break in Service, has
later Service and Service before the Break is counted, the
employee shall participate immediately after resumption of
employment as a Qualified Employee, subject to election
procedures under 4.03. If Service before the Break is not
counted, the employee shall be treated as newly hired and shall
participate when eligible under 3.01. In that event, the first
day of Service after rehire shall start a new Employment Year.
ARTICLE IV
Compensation; Contributions
4.01 Compensation
4.01-1 "Compensation" means the following subject to
4.01-3 and to the limits in 4.01-2:
(a) For deductibility under 4.08,
compensation means taxable pay from Employer
reportable on IRS Form W-2 under Internal
Revenue Code section 3401(a), disregarding
limitations based on the nature or location of
the employment.
(b) For the annual addition limit under
4.09-2(b), compensation under (a) above shall
be adjusted in accordance with Treasury
Regulation sections 1.415-2(d)(1) and (2) with
amounts described in (d)(1) below included.
The $150,000 limit in 4.01-2 shall not apply.
(c) For determination of highly
compensated employees under 4.06-5,
compensation under (a) above shall be adjusted
as follows:
(1) Amounts described in
(d)(1) below shall be included.
(2) Amounts realized from the
exercise of a nonqualified stock
option or from the lapse of
restrictions on restricted property
shall be excluded.
(d) Subject to (e), for supplementary
contributions under 4.02, elective
contributions under 4.03, matching
contributions under 4.04, and the ADP and CP
test under 4.06-2, compensation means the
amount under (a) above adjusted as follows:
(1) Elective contributions
and any amounts set aside by the
participant from otherwise taxable
income under a welfare benefit plan
qualified under section 125 of the
Internal Revenue Code shall be
included.
(2) Any reimbursements or
other expense allowances, fringe
benefits, moving expenses,
severance or disability pay and
other deferred compensation,
welfare benefits, and incidental
bonuses relating to utilization of
health benefits shall be excluded.
(e) For purposes of the ADP and CP tests
under 4.06-2, the Committee may use any
definition of compensation permitted by
Internal Revenue Code section 414(s) in lieu of
the definition in 4.01-1(d).
4.01-2 Compensation counted under 4.01-1(a) and (d)
shall be limited to $150,000 plus any cost-of-living adjustment
authorized by applicable law.
4.01-3 During any leave of absence for military
service under 3.03, compensation shall imputed at the rate the
participant would have been paid if not absent. If this amount
is not reasonably certain, compensation shall be based on the
participant's average compensation during the 12 months
immediately before the leave began, or all such months if fewer
than 12.
4.02 Supplementary Contributions
4.02-1 Subject to 4.08 and 4.09, for each year
Employer may make a "supplementary contribution" in such amount,
if any, as may be fixed by the Company and announced to
participants. The contribution shall be uniform for all
Employers in proportion to compensation of participants.
4.02-2 Supplementary contributions shall be allocated
as follows:
(a) Allocations shall be in proportion
to compensation from Employer under 4.01-1(d)
as a Qualified Employee.
(b) A participant must have a Year of
Service for eligibility for the year and be
employed at the end of the year by Employer or
an affiliate under 2.01-2 to receive an
allocation.
4.02-3 Supplementary contributions may be made in cash
or capital stock of the Company or an affiliate under 2.01-2
(Company Stock) as decided by the Company and the following shall
apply:
(a) Amounts contributed in cash shall be
used as soon as practicable to buy Company
Stock if the Company directs.
(b) Cash dividends or other
distributions on contributed Company Stock and
Company Stock under (a) above shall be used as
soon as practicable to buy Company Stock.
(c) Subject to 10.03, contributed
Company Stock and Company Stock under (a) above
shall be retained unless the Committee or other
plan fiduciary appointed for the purpose
determines that it is not prudent to do so.
4.02-4 Employer shall make additional supplementary
contributions as follows for a participant who returns from
military leave under 3.03:
(a) The additional supplementary
contribution shall be determined separately
with respect to each plan year during which the
participant was absent on military leave.
(b) The additional basic contribution
with respect to a plan year during any period
of absence from military leave shall equal the
amount of additional basic contribution that
would have been made on behalf of the
participant for the plan year if the
compensation imputed under 4.01-3 had been paid
during the period of absence.
(c) The additional basic contribution shall be subject to the
limits in 4.08 and 4.09 that applied to the plan year for which
the additional contribution is made.
4.03 Elective Contributions
4.03-1 For each plan year Employer shall make
"elective contributions" as follows:
(a) Subject to 4.08, 4.09 and the limits
stated below, the contribution for a
participant shall be a whole number percentage
of compensation for the applicable pay period
or payment from Employer under 4.01-1(d)
elected by the participant, and the
participant's compensation for the year shall
be reduced by that amount.
(b) The Committee shall fix the maximum
percentage of compensation that may be elected
under (a). Unless the Committee fixes a
different percentage, 15 percent is the
maximum. The Committee may fix lower maximums
for highly compensated employees to satisfy the
requirements of 4.06. In the first year of
participation, compensation shall be counted
for the full plan year in which the employee is
first eligible to participate.
(c) The maximum elective contribution
for any calendar year for any participant shall
be $7,000 plus any cost-of-living adjustment
authorized by applicable law.
(d) The Committee may limit elective
contributions to the plan for a participant to
provide for compliance with the maximum under
(c) above when the contributions under
(a) above are combined with elective deferrals
by the participant under one or more plans not
maintained by Employer or a statutory
affiliate. The limit established by the
Committee may be based on information from the
participant or another plan administrator about
the participant's deferrals for a year under
another plan.
4.03-2 The Committee shall establish rules covering
the method and frequency of elections and procedures for
starting, stopping and changing the rate of elective
contributions.
4.03-3 If an employee's elective contributions for a
calendar year would be more than permitted under 4.03-1(c) (an
"excess deferral"), the following shall apply:
(a) Any direction for such an excess
deferral shall be invalid and the directed
deferral shall not be made. If an amount is
erroneously paid to the plan on account of an
improper excess, 12.08 shall apply. If more
than one year has passed, the amount shall be
placed in a suspense account in the plan to the
credit of Employer and applied as soon as
practicable to pay plan expenses or offset
future contributions. In either event,
Employer shall promptly increase the
participant's compensation by the same amount.
(b) An excess deferral that occurs,
regardless of the restriction in (a), under all
plans maintained by Employer or a statutory
affiliate under 2.01-2 shall be a designated
excess and shall be distributed to the
participant subject to (e).
(c) Subject to (e) below, if an excess
deferral occurs because of elective deferrals
under plans described in (b) above combined
with deferrals under one or more plans not
maintained by Employer or a statutory
affiliate, the excess shall be distributed if
the following conditions are satisfied:
(1) The participant notifies
the Committee of the excess
deferral by March 1 following the
close of the year, unless the
Committee waives the deadline.
(2) The notice specifies how
much of the excess deferral is to
be distributed from this plan.
(3) Other applicable rules of
the Committee are followed.
(d) Any distribution under (b) or (c)
shall be completed by April 15 following the
close of the year for which the excess deferral
is made.
(e) A participant's distribution under
(b) or (c) shall include related earnings and
shall be reduced by the amount of any excess
contribution previously distributed under
4.07-2 for the same plan year.
4.03-4 A participant who returns from military leave
under 3.03 may make elective contributions on the account of the
period of leave as follows:
(a) Subject to (c), make-up elective
contributions may be made only during the
contribution make-up period under (b) out of
compensation payable during such make-up
period.
(b) The contribution make-up period
begins on the date the participant is
reemployed and ends on the earlier of the
following:
(1) The fifth anniversary of
re-employment.
(2) The last day of a period
that is three times the period of
military leave.
(c) To the extent permitted by
applicable regulations, make-up contributions
may be made out of funds other than
compensation. Each such contribution shall be
considered made when the participant delivers
funds to the plan equal to the contribution
amount.
(d) The participant shall file an
election with the Committee designating the
plan year during military leave to which
make-up elective contributions under (a) and
(c) relate.
(e) Elective contributions under (a) and
(c), plus elective contributions otherwise made
for the plan year for which the make-up
contributions are made, shall not exceed the
limit in 4.03-1(c) and 4.03-3 shall apply.
4.04 Matching Contributions
4.04-1 For each calendar quarter Employer shall make
"matching contributions" as follows, subject to 4.08:
(a) Subject to (c) below, the
contribution for each participant shall be
50 percent of the participant's matchable
elective contributions under (b) below for the
year.
(b) "Matchable elective contributions"
are a participant's elective contributions up
to 6 percent of the participant's compensation
for the year.
4.04-2 Elective contributions shall be determined
after giving effect to any reductions under 4.07, 4.10 or 12.08.
4.04-3 Matching contributions shall be made in cash or
in Company Stock. The Company may direct that cash contributions
be used as soon as practicable to buy Company Stock. Amounts
contributed in Company Stock or used to buy Company Stock shall
be held in Company Stock, sold and reinvested in the same manner
as provided in 4.02-3 unless the Company directs that the
contributions for the year and related earnings shall not be
subject to 4.02-3.
4.04-4 For each plan year, Employer shall make an
additional matching contribution with respect to make-up elective
contributions made during the plan year under 4.03-4 as follows:
(a) The additional matching contribution
shall be determined separately with respect to
each plan year to which a participant's
election under 4.03-4(d) relates.
(b) The amount of the additional
matching contribution with respect to any plan
year during military leave shall equal the
amount of additional matching contribution that
would have been made had the make-up elective
contributions been made during that plan year.
(c) An additional quarterly contribution
shall be made each quarter with respect to
make-up elective contributions made in the
quarter and imputed compensation allocable to
that quarter.
4.05 No After-Tax Employee Contributions
After-tax employee contributions shall not be permitted.
Elective contributions under 4.03 are Employer contributions.
4.06 Contribution Limits for Highly Compensated Employees
4.06-1 For each year the plan shall satisfy the
nondiscrimination tests in sections 401(k)(3) and 401(m) of the
Internal Revenue Code in accordance with Treasury Regulation
sections 1.401(k)-1 and 1.401(m)-1 and -2. The following
provisions shall be applied in a manner consistent with the Code
and Regulation sections, which are incorporated by this
reference.
4.06-2 For each plan year the Committee shall
determine the actual deferral percentage ("ADP") and the
contribution percentage ("CP") of the eligible employees who are
highly compensated employees under 4.06-5 and the ADP and CP of
the remaining eligible employees as follows:
(a) The ADP and CP for the highly
compensated employees or for the nonhighly
compensated employees is the average of the
individual deferral or contribution percentages
for all eligible employees in the group.
(b) An employee's individual deferral
percentage is that individual's combined
elective and supplementary contributions for
the year as a percentage of the individual's
compensation under (d). Excess elective
deferrals for a nonhighly compensated employee
under a plan maintained by Employer shall be
disregarded.
(c) An employee's individual
contribution percentage is that individual's
matching contributions for the year as a
percentage of the individual's compensation
under (d).
(d) Compensation for purposes of the ADP
and CP is compensation under 4.01-1(d) or (e)
for the entire year.
(e) The Committee may, for any year,
treat matching contributions not needed for the
CP test as elective contributions for purposes
of the ADP test, and elective contributions not
needed for the ADP test as matching
contributions for purposes of the CP test. No
contributions may be used in both tests.
(f) The following shall be aggregated to
determine the ADP and the CP:
(1) All plans that are
aggregated with this plan under
Internal Revenue Code sections
401(a)(4) and 410(b) (other than
for the average benefit percentage
test).
(2) All cash and deferred
arrangements in which the same
highly compensated employee is
eligible to participate.
4.06-3 Neither the ADP nor the CP of the highly
compensated employees may exceed the greater of the following,
subject to 4.06-4:
(a) 1.25 times the ADP or CP of the
nonhighly compensated employees for the prior
plan year.
(b) 2 percentage points higher than the
ADP or CP of the nonhighly compensated
employees for the prior plan year, up to
2 times such ADP or CP.
4.06-4 The limit in 4.06-3(b) shall be adjusted with
respect to the CP under this plan in accordance with Treasury
Regulation section 1.401(m)-2 to avoid duplicate use of the limit
for any highly compensated employee in violation of Code section
401(m)(9).
4.06-5 "Highly compensated employee" is defined in
section 414(q) of the Internal Revenue Code and related Treasury
regulations. In determining which employees are highly
compensated employees, the following shall apply:
(a) Subject to (b) through (d) below, a
highly compensated employee for a plan year is
an employee who has performed services for
Employer during the year or the prior plan year
and is one of the following:
(1) An owner of 5 percent or
more of an Employer during the year
or the prior year.
(2) A person paid over
$80,000 for the prior year who is
among the highest paid 20 percent
of employees of Employer for such
prior year, aggregating employees
of all statutory affiliates under
2.01-2 and excluding employees to
the extent provided by applicable
regulations.
(b) The dollar amounts in (a) above
shall be adjusted in accordance with Treasury
regulations for changes in cost of living.
(c) Former employees shall be taken into
account in accordance with applicable
regulations.
(d) Pay for this purpose shall mean
compensation under 4.01-1(c).
4.07 Actions to Correct Excess Contributions for
Highly Compensated Employees
4.07-1 If the ADP or CP of the highly compensated
employees would exceed the limits in 4.06-3, the Committee shall
adjust the contributions for certain highly compensated employees
to come within the limits, as follows:
(a) If the ADP limit is exceeded,
elective contributions and related matching
contributions shall be adjusted, taking the
highest individual deferral amount first.
(b) If the CP limit is exceeded, the
matching contributions shall be adjusted,
taking the highest individual contribution
amount first.
4.07-2 Adjustments under 4.07-1 shall be by forfeiture
or distribution as follows:
(a) Any matching amount under 4.07-1(a)
shall be forfeited and applied to pay plan
expenses or offset future matching
contributions.
(b) Subject to (c) below, any amount not
forfeited under (a) above shall be distributed,
with related earnings, to the highly
compensated employees to whom it applies. The
related earnings shall be determined under
applicable regulations. Distribution shall be
made during the plan year after the year to
which the excess applies.
(c) A distribution under (b) above
because of the ADP test shall be reduced by the
amount of any excess deferral previously
distributed under 4.03-3 for the same plan
year.
4.08 Deductibility
4.08-1 Contributions are conditioned upon
deductibility under section 404 of the Internal Revenue Code. To
the extent a deduction is disallowed, 12.08 shall apply.
4.08-2 The aggregate of elective, supplementary and
matching contributions under this plan and Employer contributions
under all other profit sharing and stock bonus plans maintained
by an Employer covering some or all of the same participants
shall not exceed 15 percent of aggregate compensation under
4.01-1(a) for all the Employer's participants. To the extent the
15 percent limit is exceeded, 12.08 shall apply.
4.08-3 The amount recovered under 12.08 shall be
charged in the same order as reductions under 4.10-2, and 4.10-3
shall apply.
4.09 Limit on Annual Additions
4.09-1 Benefits shall be limited in accordance with
the following rules as provided in Internal Revenue Code section
415 and related regulations. The following provisions shall be
applied in a manner consistent with the Code and regulations,
which are incorporated by this reference.
4.09-2 No annual addition for any participant shall be
more than the lesser of the following:
(a) $30,000 plus any authorized cost-of-
living adjustment.
(b) 25 percent of the participant's
compensation, under 4.01-1(b), for the
limitation year.
4.09-3 "Annual addition" means for any limitation year
the sum of elective, supplementary and matching contributions for
the year. In applying the limitations on annual additions, all
employers that are statutory affiliates as described under
2.01-2, with the adjustment provided in section 415(h) of the
Internal Revenue Code, shall be considered a single employer.
4.09-4 If Employer maintains one or more other defined
contribution plans at any time, the annual additions under all
such plans shall be combined for purposes of applying the above
limitations. For the purposes of 4.09-2(a) only, any
contribution to a separate account for post-retirement medical
benefits for a key employee under a funded welfare benefit plan
shall be considered such an annual addition.
4.10 Adjustments to Satisfy Limits
4.10-1 If an annual addition for a participant would
exceed the limit in 4.09, contributions shall be reduced as
necessary to eliminate the excess, in the following order:
(a) Unmatched elective contributions.
(b) Matched elective contributions and
related matching contributions.
(c) Supplementary contributions.
4.10-2 If an annual addition for a participant would
exceed the limit in 4.09 because of any other tax qualified
retirement plan of an Employer, the contributions and benefits
under the plans shall be reduced as necessary to meet the limit,
in the following order:
(a) Unmatched elective contributions
under this plan.
(b) Matched elective contributions and
related matching contributions under this plan.
(c) Supplementary contributions under
this plan.
(d) Annual additions under any defined
contribution plan, other than this plan.
4.10-3 The amount of reduction under 4.10-1 or 4.10-2
shall be held in a suspense account to the credit of Employer and
shall be allocated, with related earnings, to participants in
later plan years. Amounts allocated shall reduce Employer
contributions for the year of allocation.
4.11 Time of Payment
4.11-1 Employer shall make payments to the Trustee to
cover all contributions as follows:
(a) Subject to (b) and (c), an elective
contribution shall be paid as soon as the
amount can reasonably be identified and
separated from Employer's other assets.
Payment shall in any event be made within 15
business days after the end of the month the
participant would otherwise have received the
amount deducted from pay on account of the
elective contribution.
(b) All contributions for a plan year
shall be paid within the regular or extended
time for filing Employer's federal income tax
return for the year.
(c) In any event, all elective and
matching contributions for a plan year shall be
paid no later than 12 months after the end of
the plan year.
4.11-2 Any amount that is paid after the end of the
year within the time allowed under 4.11-1(b) shall be treated as
though paid on the last day of the year.
ARTICLE V
Participants' Accounts
5.01 Participants' Accounts
5.01-1 The Committee shall keep such separate accounts
for each participant as may be necessary to administer the plan
properly.
5.01-2 The Committee shall furnish each participant at
least annually a statement showing contributions, vesting and
account balances.
5.01-3 If a participant or beneficiary elects not to
receive a distribution of the entire balance of the participant's
account as soon as practicable after termination of employment,
the account shall be charged from time to time with any
maintenance or administrative fee charged by the custodian or
recordkeeper until the entire balance is distributed. No fee may
be charged if any of the following apply:
(a) The participant was employed by
Employer or was a disabled participant on the
date of death.
(b) The participant terminated
employment on or after the normal retirement
date, or on or after age 55 and 5 Years of
Service for vesting, except that all service
shall be counted, including service before a
rehire after the fifth anniversary of a
Severance Date.
(c) The participant is a disabled
participant and has attained age 55.
5.02 Valuations and Adjustments
5.02-1 As of each regular or special valuation date,
the trust funds shall be valued and the values allocated as
follows:
(a) The Trustee shall value the pooled
investment funds at their fair market values
and report the values to the Committee.
(b) The Committee shall allocate the
pooled fund values to accounts as of the
valuation date as follows:
(1) Appropriate adjustments
shall be made for any interim
contributions or distributions
since the last valuation date.
(2) The allocation shall be
in proportion to account balances
on the valuation date before adding
any allocations or subtracting any
withdrawals or other distributions
made as of that date.
5.02-2 Whenever the Committee finds it desirable to
avoid a material distortion in benefits or otherwise to
administer the plan properly, it may do either of the following:
(a) Call for a special valuation.
(b) Defer pending distributions until
after the next regular valuation date.
5.03 Rollovers
5.03-1 The Committee may approve rollover of funds
from a tax qualified retirement plan if all of the following
criteria are met:
(a) The individual rolling over the
funds is a Qualified Employee of Employer at
the time the rollover is made.
(b) The funds come from an eligible
rollover distribution from a qualified plan.
(c) The funds are paid to this plan
within 60 days after distribution from the
other plan.
(d) The funds do not include any
employee contributions.
(e) The Committee finds that the
rollover will not impair the qualified status
of this plan.
5.03-2 A rollover shall be accounted for in such
manner as the Committee shall decide.
5.04 Transfers Between Plans
5.04-1 The Committee may approve a transfer from this
plan directly into another qualified plan if all of the following
conditions are met:
(a) The account is currently
distributable under this plan.
(b) The individual involved requests
that the account be distributed directly to the
other plan in which the individual may
participate.
(c) The plan administrator of the
receiving plan has agreed to accept the funds
and has affirmed that the receiving plan is
authorized to accept the transfer.
5.04-2 The Committee may direct the Trustee to accept
funds transferred directly to this plan from another qualified
plan if the following conditions are met:
(a) The individual involved has
requested the transfer and is a Qualified
Employee of Employer at the time the transfer
is made.
(b) The Committee determines that the
transfer will not impair the qualified status
of this plan.
(c) Subject to (d) below, none of the
amount transferred is subject to any
distribution requirement that is inconsistent
with the distribution options in this plan.
(d) The transfer would not satisfy (c)
above except that it is an "elective transfer"
under Treasury Regulation section 1.411(d)-4
Q&A-3 and the requirements of the regulation
are met.
(e) None of the amount transferred
includes amounts not subject to taxation upon
distribution.
5.04-3 The Committee may approve a transfer from this
plan or accept funds transferred directly to this plan if the
transfer is between this plan and the Consolidated Freightways
401(k) plan.
5.04-4 An amount received by direct transfer shall be
accounted for in such manner as the Committee shall decide.
5.05 In-Service Withdrawals
5.05-1 A participant may withdraw amounts from the
plan before termination of employment as follows:
(a) A participant over age 59 1/2 may
withdraw all or part of the participant's
vested interest.
(b) Distributions are allowed as
provided in 6.01-5.
5.05-2 The following shall apply to in-service
withdrawals:
(a) Withdrawals shall be charged
against the participant's investment funds as
directed by the participant. Absent direction,
the investment funds shall be charged pro rata.
(b) Withdrawals shall not be allowed
from the following:
(1) Funds necessary to
provide adequate security for a
loan under 5.06, except on default
of a loan under 5.06-3(d).
(2) Funds (including post-
transfer earnings) attributable to
amounts transferred from a money
purchase pension plan, excluding
amounts attributable to any after-
tax employee contributions included
in the transfer, unless the
employee has reached age 70 1/2.
(c) Withdrawals shall be carried out
under procedures adopted by the Committee that
shall be similar to procedures for
distributions. The Committee may require a
minimum advance notice, may limit the amount
and frequency of withdrawals and may delay
payment of an approved withdrawal to permit a
special valuation, to permit liquidation of
necessary assets or for other pertinent
reasons.
5.06 Loans to Participants
5.06-1 The Committee may direct the Trustee to lend
money to a participant or beneficiary as follows:
(a) The Committee shall make loans
available to participants and beneficiaries who
are "parties in interest" under section 3(14)
of ERISA on a reasonably equivalent basis as
follows:
(1) The borrower must
establish an intention and a
reasonably certain capacity to
repay the loan and interest when
due.
(2) A beneficiary shall not
be eligible for a loan unless all
events needed to make the
beneficiary's rights unconditional
have occurred.
(3) A loan shall be available
for not less than $1,000 and not
more than the limits specified in
5.06-4.
(4) Loans shall not be made
available to highly compensated
employees in an amount greater than
the amount available to other
employees expressed as a percentage
of the account, subject to (3)
above.
(b) The loan date shall be fixed by the
Committee after application by the borrower
under Committee procedures.
(c) Receipt of a loan shall constitute
consent by the participant to withdrawals under
5.06-3 before normal retirement age.
(d) A loan shall be held as a separated
investment for the account of the borrower and
not as an asset of the pooled trust fund. The
loan shall be charged against participant's
investment funds pro-rata except Company Stock
that is subject to the provisions of 4.02-3
Loan repayments shall be invested in investment
funds in the same proportion as participant has
designated for contributions to the plan.
(e) Reasonable fees may be charged to
the borrower for making and administering the
loan. Such fees shall be paid to the Company
and shall be charged directly against the
borrower's account.
(f) A participant may not have more than
three loans at any time.
(g) Except as required by law, loans
shall only be permitted for persons who, when
the loan application is submitted, are
employees of Employer or any affiliate and
whose pay from Employer or the affiliate is
sufficient to support payroll deductions to
repay the loan.
5.06-2 Loans shall be secured as follows:
(a) A loan shall be secured by the
account balances as follows:
(1) A loan shall be secured
by participant's vested account
balances.
(2) The loan shall be held as
part of the accounts that secure
the loan, and any payments of
principal and interest and any
withdrawals on default shall be
credited to or charged against such
accounts.
(b) All loans shall be secured by an
assignment of current pay of the borrower or
other automatic payment arrangement approved by
the Committee sufficient to service the loan.
Cancellation of the automatic payment
arrangement shall constitute a default unless a
new arrangement is in place before the next
payment is due.
5.06-3 If a loan is not repaid when due or otherwise
is in default, the following shall apply:
(a) The Committee shall have the option
to declare the entire principal and interest
immediately due and payable.
(b) The Committee may instruct the
Trustee to withdraw from the participant's
vested accounts the amount of the loan and
interest plus any applicable withholding, or
foreclose on any other collateral, or both, as
provided below.
(c) After age 59 1/2 or termination of
service, all or part of a participant's entire
vested plan interest may be withdrawn on
default except that amounts described in 5.05-
2(b)(2) may not be withdrawn unless service has
terminated.
(d) During employment before age 59 1/2,
only amounts attributable to rollovers,
unrestricted transfers or other amounts that
the participant may withdraw while in service
may be withdrawn on default.
(e) Withdrawals will be charged pro-rata
against all of the participant's investment
funds except Company Stock that is subject to
the provisions of 4.02-3.
5.06-4 A loan may be made so long as the aggregate
amount does not exceed the least of the following considering all
loans from the plan or any tax qualified plan maintained by the
Company or an affiliate with respect to any participant:
(a) The participant's elective
contributions and amounts transferred under
10.03-1 and related earnings.
(b) 45 percent of the participant's
vested accounts.
(c) $50,000, reduced by the highest
aggregate loan balance within the preceding
12 months.
5.06-5 The Committee shall fix the terms of payment
and interest rate for loans under the following rules, treating
all persons similarly situated alike:
(a) Loans shall be evidenced by
promissory notes payable to the Trustee or
shall be in accordance with pre-authorized loan
agreements. The maker shall be personally
liable on the note regardless of any security.
(b) The interest rate shall be a
reasonable rate fixed by the Committee.
(c) Loans must be payable in not more
than 54 months.
(d) Loans must be amortized by
substantially level principal and interest
payments made no less often than quarterly over
the loan term. Prepayments shall be allowed,
but only if the entire loan is prepaid at once.
(e) Loan payments may be suspended
during leave under 3.03 as permitted by
applicable law, including under section
414(u)(4) of the Internal Revenue Code.
5.06-6 Regardless of the payment terms, the following
rules shall apply:
(a) A loan to an employee participant
shall be immediately due and payable on
termination of employment with Employer unless
the borrower continues to be a party in
interest.
(b) The loan shall be in default and
5.06-3 shall apply if the pay assignment or
other automatic payment arrangement lapses by
termination of employment or is canceled, and a
new arrangement is not in place before the next
payment is due.
(c) If a participant or beneficiary
applies for a distribution or withdrawal of
assets that secure an outstanding loan, the
distribution or withdrawal shall, to the extent
necessary to maintain adequate security, be
made by offsetting a corresponding amount of
the loan and accrued interest.
ARTICLE VI
Retirement Benefits
6.01 Entitlement; Retirement Dates; Participation After
Mandatory Benefit
Starting Date
6.01-1 A participant or beneficiary shall be entitled
to benefits on the participant's retirement or on reaching the
mandatory benefit starting date under 6.04-2.
6.01-2 Retirement shall occur on termination of
employment after reaching one of the following dates:
(a) "Normal retirement date," which
shall be age 65.
(b) "Deferred retirement date," which
shall be any day after normal retirement date.
6.01-3 Commencing benefits under 6.04-2 while still
employed shall not constitute retirement and shall not prevent
continued participation in contributions. Contributions
allocated to the account of a participant after the distribution
date under 6.04-2 shall be distributed in accordance with 6.04-2
and related provisions.
6.01-4 Subject to 6.01-5, if a person entitled to
receive benefits is rehired, the following shall apply:
(a) If payment had not commenced, the
benefit shall not be paid until later
termination of employment except as provided in
6.04-2.
(b) When the participant later
terminates, the amount and form of the benefit
shall be redetermined.
(c) Subject to 6.04-2, a participant who
was receiving installments may elect at any
time to stop benefits.
6.01-5 A participant who is rehired shall be entitled
to receive the account balance accrued prior to termination and
related earnings as though the participant had not been rehired
if both of the following apply:
(a) When the participant terminated
employment, the participant was eligible to
start benefits immediately under the
Consolidated Freightways Corporation Pension
Plan.
(b) The participant is rehired as a
Supplemental Employee.
6.02 Amount and Form of Benefit
6.02-1 On retirement, the benefit shall be based on
the participant's entire account, which shall be 100 percent
vested under 8.01-2, adjusted through the last regular or special
valuation on or before distribution.
6.02-2 Benefits shall be paid in cash in one of the
following ways as selected under 6.03, subject to 6.02-6 and
6.04:
(a) By a total lump sum payment, whether
or not benefits have previously started under
(b) or (c) below.
(b) By payments on or before the
participant's age 69 not less than the lesser
of $1,000 or the entire account balances, in
amounts and at times specified from time to
time by the participant.
(c) By payment in annual installments
fixed by the recipient subject to 6.04 if the
amount exceeds $5,000.
6.02-3 Installments shall normally be substantially
equal over the period of payout. Variations may occur because of
changes in the account balances caused by trust investment
results.
6.02-4 If the participant's accounts are distributed
before the final allocation of contributions is made, a final
payment shall be made to the participant promptly after
allocation.
6.02-5 If the participant dies before payment of the
entire account, the balance shall be paid as a death benefit
under 7.01.
6.02-6 The participant may elect to receive in kind
amounts invested in employer securities, as defined in section
409(1) of the Internal Revenue Code. Fractional shares shall be
distributed in cash.
6.03 Application for Benefits; Time of Payment
6.03-1 A participant or beneficiary eligible for
benefits must apply or consent in writing under 9.04 as follows:
(a) Application or consent shall be made
on a form prescribed by the Committee.
(b) Application or consent shall be made
after receipt of the explanation in 6.03-2(d)
and within 90 days before benefits are to
start.
6.03-2 Subject to 6.04 and 7.02-3, benefits shall be
paid under the following rules:
(a) Subject to (b), the Committee shall
direct the Trustee to start benefits as soon as
reasonably possible whether or not an
application is filed.
(b) The participant may defer payment of
a benefit that exceeds $5,000.
(c) The Committee may delay payment of
benefits for a reasonable period necessary to
process payment but in no event beyond 60 days
after the latest of the following:
(1) The end of the plan year
of retirement.
(2) The date the amount is
known.
(3) The date an application
is received.
(d) If (b) above applies, the Committee
shall, between 30 and 90 days before benefits
are to start, give the participant an
explanation of the distribution options and the
right to defer payment.
(e) The Committee shall give the
participant or other eligible recipient a
written explanation of the following between 30
and 90 days before benefits start:
(1) The right to have a
direct rollover under 6.03-4, if
applicable.
(2) The applicability of
mandatory withholding if a direct
rollover could be elected under
6.03-4 and is not.
(3) The applicable rules on
rollover and taxation of the
distribution as required by section
402(f) of the Internal Revenue
Code.
(4) The right to defer any
benefit election for at least
30 days.
(f) If the explanations in (e) are given
and the recipient makes the required elections
within 30 days, the recipient may request
immediate distribution and waive the balance of
the 30-day period.
6.03-3 If a date for payment has passed and the
Committee has not located the participant or beneficiary, the
following shall apply:
(a) The unclaimed benefit shall be
forfeited at the end of the plan year in which
the Committee determines that the person cannot
be located using reasonable efforts. Amounts
forfeited shall be applied as provided in 8.04-
2.
(b) If the Participant or beneficiary
later establishes a valid claim for the
forfeited amount, then such amount, unadjusted
for any interim gains or losses in the trust,
shall be restored to the participant's account
and distributed in accordance with the regular
rules of the plan.
6.03-4 An eligible recipient of an eligible rollover
distribution may elect before a benefit is paid to have the
benefit distributed by a direct rollover into an eligible
retirement plan and the following shall apply:
(a) The recipient shall furnish the
Committee sufficient information to identify
the eligible retirement plan and the fund
holder to whom the direct rollover should be
paid.
(b) "Eligible retirement plan" means an
IRA or individual retirement annuity, an
employer-sponsored qualified retirement trust,
or an employer-sponsored qualified annuity
plan.
(c) "Eligible rollover distribution"
means any distribution from the plan other than
the following:
(1) One of a series of
substantially equal periodic
payments over life, life
expectancy, or a period of 10 years
or more.
(2) A payment required under
section 401(a)(9) of the Internal
Revenue Code.
(3) A distribution under
4.07.
(4) An amount not otherwise
includable in the gross income of
the recipient.
(d) "Eligible recipient" means the
participant, the spouse of a deceased
participant or a spouse or former spouse who is
an alternate payee under a QDRO.
6.03-5 The participant or beneficiary shall select the
form of payment in the application. Absent a selection, the
benefits shall be paid in a single lump sum.
6.04 Distribution Rules
6.04-1 Benefits shall be paid in accordance with the
following overriding rules as provided in Treasury Regulation
sections 1.401(a)(9)-1 and -2.
6.04-2 Payment to a participant shall be subject to
the following:
(a) Payments shall start by the April 1
following the calendar year in which the
participant has reached 70 1/2, and is either a
5 percent owner under section 416(i) of the
Internal Revenue Code or has terminated
employment.
(b) After the earlier of the mandatory
starting date in (a) or the first required
distribution under 6.04-1, the following shall
apply:
(1) Benefits shall be paid
over a period not longer than the
life expectancies of the
participant and any designated
beneficiary.
(2) If a participant starts
payments in installments under 6.02-
2(c) on or before the mandatory
starting date, the participant may
elect whether or not single or
joint life expectancies shall be
used and whether or not life
expectancies of the participant or
the participant's spouse shall be
recalculated after initial
determination. The election is
irrevocable and must be made for
the first installment that is
subject to the required
distribution rules described in
6.04-1. If no election is filed,
required distributions will be
calculated based on joint life
expectancy of the participant and
the beneficiary and life expectancy
will not be recalculated.
(3) If a participant does not
elect to start payment in a form of
benefit under 6.02-2, the Committee
shall calculate required
distributions based on the life of
the participant and the life
expectancy shall be recalculated
annually. If the designated
beneficiary at the time of the
first required distribution is the
spouse and the Committee knows the
spouse's age, required
distributions will be calculated
based on joint life expectancy and
both life expectancies will be
recalculated annually. If a
participant or beneficiary elects
installments after first required
distribution, subsequent required
distributions shall continue to be
calculated in the same way.
(4) If payments are by
installments under 6.02-2(c) with a
non-spouse designated beneficiary
who is more than 10 years younger
than the participant, the joint
life expectancy shall be calculated
based on the participant's age and
a beneficiary 10 years younger.
ARTICLE VII
Benefits on Death and Disability
7.01 Benefits on Death
7.01-1 A deceased participant's vested account,
adjusted to the last regular or special valuation date before
payment and including any final allocation for the year of death
shall be paid as a death benefit to the beneficiary. If death
occurs before employment terminates, the participant's account
shall be vested as provided in 8.01.
7.01-2 Vested death benefits shall be paid in cash
subject to 6.02-6. Application shall be made under 6.03-1.
Payment shall be subject to the following:
(a) Subject to (b), the following
provisions shall apply:
(1) Payments may be made over
a period not longer than the
beneficiary's life expectancy. A
surviving spouse beneficiary may
irrevocably elect before required
distributions under 6.04-1 have
started whether or not to have the
spouse's life expectancy
recalculated annually. Life
expectancy shall not be
recalculated if the spouse does not
file a timely election to
recalculate.
(2) Subject to (3), payments
to a beneficiary who is a natural
person shall either be paid in
substantially equal installments
for a period not longer than the
beneficiary's life expectancy
starting by the end of the next
year after the calendar year of
death, or be paid by the end of the
calendar year that contains the
fifth anniversary of death.
(3) A surviving spouse may
defer payment of a benefit
exceeding $5,000 beyond the time in
(2) up to the date the participant
would have reached age 65. If the
surviving spouse dies before
receipt of the balance of the
benefit, the balance shall be
distributed by the end of the
calendar year that contains the
fifth anniversary of the spouse's
death to the beneficiary designated
by the participant, or if none, to
the spouse's estate.
(4) If the beneficiary is not
a natural person, the entire
benefit shall be paid within five
years after death.
(5) Payments under 6.02-2(b)
are not available.
(b) If the participant had begun to
receive installments or was past the mandatory
benefit starting date under 6.04-2, payments
must continue at least as quickly as under the
schedule in effect at death.
7.02 Disability
7.02-1 A participant whose employment ends because of
disability shall be entitled to receive benefits. Subject to
7.02-3, benefits shall be paid at a time fixed under 8.03.
7.02-2 A "disabled participant" is one who is eligible
to receive disability benefits under the Social Security Act,
whether or not the participant is eligible for or receiving
benefits under an Employer's disability arrangements. The
Committee shall determine the existence of disability and may
have the participant examined by and rely on advice from a
medical examiner satisfactory to the Committee in making the
determination.
7.02-3 If the participant notifies the Committee in
writing that benefits after disability would reduce any other
disability benefit, the Committee shall defer payment until the
other benefit stops, subject to 6.04-2.
7.03 Designation of Beneficiary
7.03-1 Each participant shall file a designation of
beneficiaries with the Committee as follows:
(a) The designation shall name a
specific beneficiary or beneficiaries, which
may include a trust. The beneficiaries may be
changed from time to time in accordance with
these provisions.
(b) A designation by a married
participant of a beneficiary other than the
surviving spouse shall not be effective unless
either of the following applies:
(1) The spouse executes a
consent in writing that
acknowledges the effect of the
designation and is witnessed by a
plan representative or notary
public.
(2) The consent cannot be
obtained because the spouse cannot
be located or because of other
circumstances provided by
applicable regulations.
(c) A determination in good faith by the
Committee that (b) has been complied with shall
be final and binding if the Committee has
exercised proper fiduciary care in making the
determination.
(d) The designated beneficiary or other
recipient described below shall receive any
residual benefit after death of a participant.
7.03-2 If the participant's marital status changes
after the participant has designated a beneficiary, the following
shall apply, subject to any applicable QDRO under 12.06-2:
(a) If the participant is married at
death but was unmarried when the designation
was made, the designation shall be void unless
the spouse is the beneficiary or the spouse
consents to the designation in the manner
prescribed above.
(b) If the participant is unmarried at
death but was married when the designation was
made, the benefit shall be paid as though the
former spouse had predeceased the participant.
(c) If the participant was married when
the designation was made and is married to a
different spouse at death, the designation
shall be void unless the new spouse consents to
it in the manner prescribed above.
7.03-3 If a beneficiary dies after the death of a
participant but before full distribution to the beneficiary, any
benefit to which the beneficiary was entitled shall be paid to
the estate of the deceased beneficiary.
7.03-4 The following shall apply to any part of a
benefit as to which no valid designation of beneficiary is in
effect at death:
(a) Subject to (b) and (c) below, the
benefit shall be paid in the following order of
priority:
(1) To the participant's
surviving spouse.
(2) To the participant's
surviving children in equal shares.
(3) To the participant's
surviving parents in equal shares.
(4) To the participant's
estate.
(b) If a beneficiary designated under
(a) above or under 7.03-1 disclaims a benefit,
the benefit shall be paid as though that
beneficiary had predeceased the participant.
(c) If a surviving spouse entitled to a
benefit consents after the participant's death
to the participant's designation of another
beneficiary, the other beneficiary shall be a
validly designated beneficiary as to such
benefit.
7.03-5 The Committee may direct that benefits be paid
directly to the participant or beneficiary or to one or more of
the following:
(a) A spouse, parent or child of legal
age.
(b) A legal guardian or a person or
entity having actual custody.
(c) A provider of maintenance, support
or hospitalization.
ARTICLE VIII
Benefits After Termination of Employment
8.01 Vesting
8.01-1 Amounts attributable to matching and
supplementary contributions shall be vested as follows based on
Years of Service under 3.02:
Years of Service Percent Vested
Less than 2 -0-
2 20%
3 40%
4 60%
5 80%
6 100%
8.01-2 A participant who, while employed by Employer,
becomes eligible for retirement shall be fully vested.
8.01-3 Amounts attributable to elective contributions
and any rollovers and elective transfers shall be fully vested at
all times.
8.02 Distributable Amount
8.02-1 Absent rehire and restoration under 8.05, a
participant whose employment terminates for any reason other than
retirement shall receive only the vested interest under 8.01. On
the first anniversary of continuous absence because of a
condition or injury covered by worker's compensation law, a
participant shall be entitled to benefits even if the participant
is not treated as terminated for all purposes by Employer.
8.02-2 The amount to be forfeited shall be determined
under 8.04-2(a). The amount of the vested benefit shall be based
on the last regular or special valuation on or before payment.
8.03 Payments of Benefits
8.03-1 Subject to 6.04-2, the participant shall
specify the time of payment in the application under 6.03 or
consent to the time of payment under 6.03 and the following shall
apply:
(a) Subject to (b) below, the Committee
shall direct the Trustee to pay benefits as
soon as reasonably possible, whether or not an
application has been filed.
(b) The participant may defer payment of
a benefit that exceeds $5,000.
(c) The Committee may delay payment for
a reasonable period necessary to process
payment but in no event beyond 60 days after
the latest of the following:
(1) The end of the plan year
of retirement.
(2) The date the amount is
known.
(3) The date an application
is received.
(d) The Committee shall, between 30 and
90 days before benefits are to start, give the
participant or other eligible recipient the
explanations required by 6.03-2(c) and (e)
(e) If the amount is not over $5,000,
only the information in 6.03-2(e) is required.
(f) If the explanations in (e) are given
and the recipient makes the required elections
within 30 days, the recipient may request
immediate distribution and waive the balance of
the 30-day period.
(g) If a person entitled to receive
benefits is rehired, 6.01-4 shall apply.
8.03-2 If the date for payment has passed, 6.03-3
shall apply.
8.03-3 Benefits shall be paid as provided in 6.02-2.
Application shall be made under 6.03.
8.04 Forfeiture of Unvested Amounts
8.04-1 The unvested portion of a participant's
account(s) shall be forfeited at the earlier of the following
unless the participant continues to accrue Service under 3.02-
3(b)(5):
(a) The date on which the participant's
vested interest is distributed or is considered
as distributed under 8.04-3.
(b) The end of the plan year in which
the fifth anniversary of the latest Severance
Date occurs.
8.04-2 Forfeitures shall be accounted for as follows:
(a) The amount forfeited shall be based
on the balance in the account as of the
valuation date on or last preceding the
forfeiture date.
(b) Forfeitures shall first be applied
to restore prior forfeitures under 6.03-3 and
8.05.
(c) Any forfeitures remaining after
application under (b) shall be applied to
reduce future matching contributions or to pay
plan expenses.
8.04-3 A zero vested balance of a participant shall be
treated as though it were distributed immediately when employment
terminates.
8.05 Restoration of Forfeited Amounts
8.05-1 If a participant is rehired before the fifth
anniversary after the latest Severance Date but after a
forfeiture under 8.04-1(a) because of an imputed or full
distribution, the forfeited amount, unadjusted for interim gains
or losses, shall be subject to restoration under 8.05-2, and
8.05-3 shall apply. If the rehire occurs after the fifth
anniversary after the latest Severance Date, no restoration shall
occur.
8.05-2 An amount subject to restoration under 8.05-1
shall be credited to the participant's supplementary or matching
contribution account, as applicable, as of the first plan-
year-end after rehire and satisfaction of the requirement of 8.05-
4. Amounts restored shall be derived first from forfeitures for
the plan year of restoration, and then from additional Employer
contributions.
8.05-3 A rehired participant under 8.05-1 may repay as
follows the full amount previously distributed before full
vesting:
(a) Repayment shall be made in a single
lump sum. Partial repayments shall not be
allowed.
(b) Repayment may only be made while the
participant remains employed, and may not be
made later than five years after rehire.
(c) Repaid amounts shall be fully vested
and shall be accounted for in such manner as
the Committee may decide.
(d) Repayment cannot be made in whole or
in part by rollover from another plan or IRA.
8.05-4 In order to receive a restoration under 8.05-1
and 8.05-2, a participant must have terminated with no vested
interest or must repay the distributed amount within the time
allowed for repayment under 8.05-3.
8.06 Vesting After Rehire
8.06-1 A participant who was fully vested on
termination of employment shall remain fully vested after rehire.
8.06-2 The following rules shall apply in determining
the future vested balances for supplementary and matching
contributions after rehire of a participant who is not fully
vested:
(a) If the rehire occurs before a
distribution is made from the account or if the
participant repays a distribution under 8.05-3
after rehire, the following shall apply:
(1) Subject to (2), the
participant's future vested balance
shall be determined by applying the
vesting schedule to the entire
account.
(2) In no event shall the
vested amount under (1) be less
than the amount repaid under 8.05-
3, adjusted for investment results
after the date of repayment.
(b) If the rehire occurs after a
distribution is made from the account and
before the participant's fifth anniversary of
the last Severance Date, and no repayment is
made under 8.05-3, the participant's future
vested balance shall be determined by
multiplying the participant's vesting
percentage times the current account balance.
(c) If the rehire occurs after the
participant's fifth anniversary of the last
Severance Date, the following shall apply:
(1) Any unforfeited and
undistributed residue of the
participant's partially vested
account shall remain fully vested
and be carried as a separate
account until the participant's
future contributions are fully
vested.
(2) The forfeited balance
shall not be restored.
ARTICLE IX
Plan Administration
9.01 Administrative Committee
9.01-1 The plan shall be administered by an
administrative committee (the "Committee") of one or more persons
appointed by the chief executive officer of the Company, who may
delegate that function. The Committee shall have a "Chair"
chosen from among its members and a secretary who need not be a
member. Minutes shall be kept of all proceedings of the
Committee. The Committee may act at a meeting by a majority vote
of a quorum present or without a meeting by action recorded in a
memorandum signed by a majority of all members. A majority of
members shall constitute a quorum.
9.01-2 Any member of the Committee may resign on 15
days' notice to the chief executive officer or delegate. The
chief executive officer may remove any Committee member without
having to show cause. All vacancies on the Committee shall be
filled as soon as reasonably practicable. Until a new
appointment is made, the remaining members of the Committee shall
have authority to act although less than a quorum.
9.01-3 The Trustee shall be given the names and
specimen signatures of the Committee members, the Chair and the
secretary. The Trustee shall accept and rely on the names and
signatures until notified of a change.
9.01-4 Documents may be signed for the Committee by
the Chair, the secretary or other person designated by the
Committee.
9.02 Committee Powers and Duties; Reports to Committee
9.02-1 The Committee shall interpret the plan and the
related trust, shall decide any questions about the rights of
participants and their beneficiaries and in general shall
administer the plan and trust. Any decision by the Committee
shall be final and bind all parties. The Committee shall have
absolute discretion to carry out its responsibilities.
9.02-2 The Committee shall be the "plan administrator"
under federal laws and regulations applicable to plan
administration and shall comply with such laws and regulations.
The Chair of the Committee shall be an agent for service of
process on the plan at the Company's address.
9.02-3 The Committee shall keep records of all
relevant data about the rights of all persons under the plan.
The Committee shall determine eligibility to participate and the
time, manner, amount and recipient of payment of benefits and the
Service of any employee and shall instruct the Trustee on
distributions. Any person having an interest under the plan may
consult the Committee at any reasonable time.
9.02-4 The Committee may delegate all or part of its
administrative duties to one or more agents and may retain
advisors to assist it. The Committee may consult with and rely
upon the advice of counsel who may be counsel for an Employer.
The Committee shall appoint any independent public accountant
required for the plan.
9.02-5 Each Employer shall furnish the Committee any
information reasonably requested by it for plan administration.
9.03 Company and Employer Functions
9.03-1 The power to appoint or remove any Committee
member may be exercised only by the chief executive officer or
delegate under 9.01. The Company and the Employer have no
administrative authority or function and are not plan
fiduciaries.
9.03-2 Except as provided in 9.03-3, all Company or
Employer functions or responsibilities shall be exercised by the
chief executive officer of the corporation, who may delegate all
or any part of those functions.
9.03-3 The power to amend or terminate the plan and
trust may be exercised only by the Board of Directors of the
Company, except as provided in 9.03-4.
9.03-4 The chief executive officer of the Company may
amend the plan to make technical, administrative or editorial
changes on advice of counsel to comply with applicable law or to
simplify or clarify the plan. The chief executive officer may
delegate the amendment authority.
9.03-5 Supplementary contributions may be declared by
the Board of Directors of the Company or by the chief executive
officer of the Company.
9.03-6 The Board of Directors of the Company or an
Employer shall have no administrative or investment authority or
function. Membership on the Board shall not, by itself, cause a
person to be considered a plan fiduciary.
9.04 Claims Procedure
9.04-1 Any person claiming a benefit or requesting
information, an interpretation or a ruling under the plan shall
present the request in writing to the Committee or its delegate,
who shall respond in writing as soon as practicable.
9.04-2 If the claim or request is denied, the written
notice of denial shall state the following:
(a) The reasons for denial, with
specific reference to the plan provisions on
which the denial is based.
(b) A description of any additional
material or information required for review of
the claim and an explanation of why it is
necessary.
(c) An explanation of the plan's claim
review procedure.
9.04-3 The initial notice of denial shall normally be
given within 90 days after receipt of the claim. If special
circumstances require an extension of time, the claimant shall be
so notified and the time limit shall be 180 days.
9.04-4 Any person whose claim or request is denied or
who has not received a response within the time provided in
9.04-3 may request review by notice in writing to the Committee
or its delegate. A request for review is required to be
submitted within 60 days after the date the notice of denial is
given unless the Committee or its delegate waives such
requirement. The original decision shall be reviewed by the
Committee or its delegate who may, but shall not be required to,
grant the claimant a hearing. On review, whether or not there is
a hearing, the claimant may have representation, examine
pertinent documents and submit issues and comments in writing.
9.04-5 The decision on review shall normally be made
within 60 days. If an extension is required for a hearing or
other special circumstances, the claimant shall be so notified
and the time limit shall be 120 days. The decision shall be in
writing and shall state the reasons and the relevant plan
provisions. All decisions on review shall be final and bind all
parties concerned.
9.05 Expenses
9.05-1 Members of the Committee shall not be
compensated for services. The Committee shall be reimbursed for
all expenses.
9.05-2 The Company may elect to pay any administrative
fees or expenses and may allocate the cost among the Employers.
Otherwise the expenses and fees shall be paid from the plan
assets. Expenses related to a particular account, subaccount or
an investment fund may be charged directly to that account,
subaccount or fund.
9.05-3 Expenses related to a loan shall be charged as
provided in 5.06-1(e).
9.06 Indemnity and Bonding
9.06-1 The Company shall indemnify and defend any plan
fiduciary who is an officer, director or employee of Employer
from any claim or liability that arises from any action or
inaction in connection with the plan subject to the following
rules:
(a) Coverage shall be limited to actions
taken in good faith that the fiduciary
reasonably believed were not opposed to the
best interest of the plan.
(b) Negligence by the fiduciary shall be
covered to the fullest extent permitted by law.
(c) Coverage shall be reduced to the
extent of any insurance coverage.
9.06-2 Plan fiduciaries shall be bonded to the extent
required by applicable law for the protection of plan assets.
ARTICLE X
Investment of Trust Funds; Voting Company Stock
10.01 Trust Fund
A benefit under this plan shall be funded through a
trust established by agreement between the Company and a Trustee.
The Trustee shall receive the contributions, hold and invest
them, and pay benefits.
10.02 Pooled Investment Funds
10.02-1 Pooled assets shall be invested in one or more
investment funds established by the Committee, including
investment funds for employer securities. The Committee shall
define objectives for the funds, may establish new funds, combine
two or more funds or change the objectives of an existing fund.
10.02-2 The Trustee and any investment manager shall be
informed of any Committee action with respect to the investment
funds. The Committee shall inform all participants about the
funds and the objectives of each.
10.02-3 Subject to 4.02-3, 4.04-3 and special
provisions affecting investment funds, if there are two or more
investment funds offered, allocation of the account of each
participant among the funds shall be controlled as follows:
(a) A participant shall allocate
contributions among the funds in minimum
increments established by the Committee and may
elect to transfer assets between funds. An
allocation once made shall apply to all future
contributions unless changed by the
participant. If no allocation has been made by
the participant, the contributions shall be
allocated to the most balanced fund.
(b) All allocations and elections to
transfer shall be by notice to the Trustee.
The Committee shall adopt rules for allocations
and transfers, which may restrict amounts and
timing, to the extent permitted by law.
Transfers shall be made over a reasonable
period to allow orderly liquidation and
reinvestment of the funds.
(c) The Committee shall allocate amounts
not covered by (a) among the funds and may
create a different fund or funds for this
purpose.
10.02-4 The rights of a participant under 10.02-3 may
be exercised by a beneficiary as follows:
(a) Subject to (c), the beneficiary must
be currently entitled to receive benefits on
account of the death of a participant.
(b) If more than one person or entity is
entitled to share the benefit, the Committee
may do any of the following:
(1) Designate one person or
entity to make decisions
controlling the entire account.
(2) Divide the account and
allocate the decision-making power
over separate portions to separate
beneficiaries.
(3) Require the beneficiaries
to designate one of themselves or a
third person to exercise the power
for all of them in such manner and
on such terms as the Committee may
prescribe.
(c) An alternate payee under a qualified
domestic relations order under 12.06 shall be
considered a beneficiary for this purpose if
one of the following applies:
(1) The participant has died.
(2) The alternate payee's
interest is held in a separate
account and the Committee elects to
allocate to the alternate payee the
power of decision over the account.
10.03 Diversification of Company Stock
10.03-1 All amounts from investment accounts that hold
Company Stock shall be transferred to investment accounts that
hold elective contributions in the first quarter of the year
following the year in which the participant attains age 55 and
10 Years of Service for vesting, except that all service shall be
counted, including service before a rehire after the fifth
anniversary of a Severance Date.
10.03-2 Investment accounts that hold elective
contributions shall include investment options that comply with
requirements under Internal Revenue Code section 401(a)(28).
ARTICLE XI
Amendment; Termination; Merger
11.01 Amendment
11.01-1 The Company may amend this plan at any time by
written instrument except as follows:
(a) No amendment that affects the rights
or responsibilities of the Trustee shall be
effective unless signed by the Trustee.
(b) No amendment shall revest any of the
plan assets in any Employer or otherwise modify
the plan so that it would not be for the
exclusive benefit of eligible employees except
as required or permitted by applicable law and
regulations.
(c) No amendment shall reduce any
participant's accrued benefit, or the vested
percentage of that accrued benefit, as of the
date the amendment is adopted or is effective,
whichever is later.
(d) No amendment shall increase the
Years of Service required for vesting without
providing that each participant with at least
three Years of Service on the date the
amendment is adopted shall have the prior
vesting schedule continue to apply to future
benefits under the plan.
11.01-2 Amendments may be made effective retroactively
to the extent permitted by applicable law and regulations.
11.02 Termination
11.02-1 The Company may terminate this plan or
discontinue contributions at any time. In the event of any total
or partial termination or discontinuance, the accounts of all
affected participants shall be fully vested and nonforfeitable.
The Company may request a ruling from the Internal Revenue
Service on the effect of termination on the qualification of the
plan.
11.02-2 Upon termination or discontinuance, the Company
may continue the trust to pay benefits as they mature or
liquidate and distribute the relevant portion of the trust fund
as follows:
(a) If the Employer does not maintain a
successor defined contribution plan, the assets
may be distributed to employees or transferred
to a qualified plan that is not a successor
plan.
(b) If the Employer maintains a
successor defined contribution plan, the assets
may be transferred to the successor plan. The
assets may not be distributed to employees
before termination of employment except as
allowed under 5.05 for in-service withdrawals.
(c) The net assets transferred or
distributed shall be allocated by the Committee
among participants and beneficiaries in
proportion to their interests. Any accumulated
forfeitures shall be covered by 12.08-2.
11.03 Treatment of Employers
11.03-1 All employees of all Employers, including the
Company, shall be treated as though employed by one Employer for
purposes of determining total or partial termination. For this
purpose the plan shall be treated as one plan and not as a
collection of separate plans of the Employers. If some or all of
the employees of an Employer terminate employment, this shall be
viewed in the context of the whole plan to determine whether
there has been a partial termination and whether accelerated
vesting is required.
11.03-2 An Employer may be excluded from the plan with
respect to its employees at any time by the Company. Such
exclusion shall not automatically constitute a termination or
partial termination of the plan. Employees of the excluded
affiliate shall be treated as having terminated employment if the
affiliate ceases to maintain its affiliated status. Unless the
Committee determines or the Internal Revenue Service rules that
the exclusion constitutes a partial termination of the plan, the
rights of the employees of the excluded affiliate shall not
become fully vested or nonforfeitable as a result of the
exclusion. If the excluded affiliate retains its affiliated
status with the Company, its employees shall continue to accrue
Service for purposes of vesting, but shall not be eligible to
participate in contributions with respect to pay after the
effective date of the exclusion.
11.04 Merger
If this plan is merged or consolidated with or the
assets or liabilities are transferred to any other plan or trust,
the benefit that each participant would receive if the plan
terminated just afterwards shall be at least as much as if it
terminated just before.
ARTICLE XII
Miscellaneous Provisions
12.01 Information Furnished
12.01-1 The Committee may accept as correct and rely on
any information furnished by Employer. The Committee may not
demand an audit, investigation or disclosure of the records of
Employer.
12.01-2 The Committee may require satisfactory proof of
age, marital status or other data from a participant, spouse or
beneficiary. The Committee may adjust any benefit if an error in
relevant data is discovered.
12.02 Applicable Law
This plan shall be construed according to the laws of
Oregon except as preempted by federal law.
12.03 Plan Binding on All Parties
This plan shall be binding upon the heirs, personal
representatives, successors and assigns of all present and future
parties.
12.04 Not Contract of Employment
The plan shall not be a contract of employment between
an Employer and any employee, and no employee may object to
amendment or termination of the plan. The plan shall not prevent
any Employer from discharging any employee at any time, with or
without cause.
12.05 Notices
Except as otherwise required or permitted under this
plan or applicable law, any notice or direction under this plan
shall be in writing and shall be effective when actually
delivered or when deposited postpaid as first-class mail. Mail
shall be directed to the address stated in this plan or in a
statement of adoption or to such other address as a party may
specify by notice to the other parties. Notice to the Committee
shall be sent to the Company's address.
12.06 Benefits Not Assignable; Qualified
Domestic Relations Orders
12.06-1 This plan is for the personal protection of the
participants. No interest of any participant or beneficiary may
be assigned, alienated, seized by legal process, transferred or
subjected to the claims of creditors in any way, except as
provided in 12.06-2.
12.06-2 Benefits may be paid in accordance with a
qualified domestic relations order ("QDRO") under section 414(p)
of the Internal Revenue Code pursuant to procedures established
by the Committee. A benefit shall be paid to an alternate payee
at the earliest time permitted by the QDRO whether or not the
participant has terminated employment. If the amount awarded to
an alternate payee is not more than $5,000 at the time the amount
is determined, the amount shall be distributed to the alternate
payee in a lump sum as soon as practicable, whether or not the
alternate payee consents.
12.07 Nondiscrimination
The Company, each Employer and the Committee shall to
the fullest extent possible treat all persons who may be
similarly situated alike under this plan.
12.08 Nonreversion of Assets
12.08-1 Subject to 1.02-2 and the following paragraphs,
no part of the contributions or the principal or income of this
plan shall be paid or revert to an Employer or be used other than
for the exclusive benefit of the participants and their
beneficiaries.
12.08-2 A contribution may be returned to an Employer
to the extent that either of the following applies:
(a) The contribution was made by mistake
of fact.
(b) A deduction for the contribution
under 4.08-1 is disallowed.
12.08-3 Return of contributions under 12.08-2 shall be
subject to the following:
(a) Any return must occur within one
year of the mistaken payment or disallowance of
the deduction.
(b) The returnable amount shall be
reduced by a pro rata share of any investment
losses attributable to the contribution and by
any amounts that cannot be charged under (c)
below.
(c) The amounts returned shall be
charged to participants' accounts in the same
proportion as the accounts were credited with
the contribution. No participant's account
shall be charged more than it was previously
credited.
12.08-4 Any amount held for the credit of Employer in a
suspense account under 4.10-3 that cannot be allocated to
participants because the plan has terminated shall be returned to
Employer.
12.08-5 If a mistaken contribution cannot be returned
because of the one-year limit in 12.08-3(a), the amount shall be
placed in a suspense account in the plan to the credit of
Employer and applied as soon as practicable to pay plan expenses
or future contributions.
ARTICLE XIII
Special Top-Heavy Plan Rules
13.01 Application of Rules
If the plan becomes top-heavy, the rules in this Article
shall apply and shall control over any other provisions with
which they conflict. If the plan becomes top-heavy and then
ceases to be top-heavy, the top-heavy plan restrictions shall
apply only to the years for which the plan is top-heavy, and
11.01-1(d) shall apply to any resulting changes in the applicable
vesting schedule.
13.02 Determination of Top-Heavy Status
13.02-1 The plan shall be top-heavy for a plan year if,
as of the determination date, the plan's top-heavy percentage for
the year exceeds 60 percent. The top-heavy percentage is the
present value of accrued benefits of all key employees as a
percentage of the present value of accrued benefits of all key
and non-key employees. For this purpose, "employees" means all
current and former employees other than the following:
(a) Non-key employees who were formerly
key employees.
(b) Former employees who have performed
no services for Employer during the five-year
period ending on the determination date.
13.02-2 The determination date for each plan year other
than the first plan year shall be the last day of the preceding
plan year. For the first plan year, the determination date shall
be the last day of the plan year.
13.02-3 "Key employee" and "non-key employee" are
defined in section 416(i) of the Internal Revenue Code.
13.02-4 The following plans of Employers and affiliates
shall be considered as one plan for determining top-heaviness:
(a) Any plan in which a key employee
participates.
(b) Any plan that must be considered in
order for a plan in (a) to meet the minimum
coverage requirements for qualification under
Internal Revenue Code sections 401(a)(4) and
410.
13.02-5 For purposes of 13.02-1, the present value of a
participant's accrued benefit shall be the sum of the account
balances as of the determination date, subject to the following:
(a) Any later Employer contributions
allocated as of that date shall be excluded.
(b) Rollovers and transfers shall be
included or excluded as provided in 13.02-6 and
13.02-7.
(c) Nondeductible employee contributions
shall be included.
13.02-6 Except as provided below, distributions and
transfers made within the plan year ending on the determination
date or the four preceding plan years shall be added back to the
present value of accrued benefits as of the determination date
unless already counted. A transfer out of this plan, or a
distribution that is rolled over, shall not be added back if
either of the following applies:
(a) It goes to a plan maintained by
Employer or an affiliate.
(b) It is not initiated by the employee.
13.02-7 A rollover or transfer shall be included only
if one of the following applies:
(a) It comes from a plan maintained by
Employer or a statutory affiliate under 2.01-2.
(b) It is not initiated by the employee.
13.03 Top-Heavy Plan Restrictions
13.03-1 The following provisions shall apply effective
the first plan year for which the plan is top-heavy.
13.03-2 Each participant who is a non-key employee
employed at the end of the year shall receive a minimum Employer
contribution regardless of the participant's Hours of Service for
the year, or whether or not the participant has elective
contributions during the year. The minimum contribution
(excluding elective contributions) for a non-key employee shall
be the lesser of the following:
(a) The largest combined elective and
other Employer contribution, expressed as a
percentage of compensation as defined in
4.01-1(b), for any key employee for the year.
(b) 3 percent of such compensation.
Company CF AIRFREIGHT CORPORATION
By
Executed: , 2000
Exhibit 5.1
July 28, 2000
Consolidated Freightways Corporation
175 Linfield Drive
Menlo Park, California 94025
Ladies and Gentlemen:
I am General Counsel of Consolidated Freightways Corporation (the
"Company") and am rendering this opinion with respect to certain matters in
connection with the filing by the Company of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 100,000 shares of the Company's
Common Stock, $.01 par value (the "Shares"), pursuant to the CF AirFreight
Savings Plan, as amended (the "Plan").
In connection with this opinion, I have examined the Registration Statement
and related Prospectus, the Company's Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws, and such other documents,
records, certificates, memoranda and other instruments as I deem necessary
as a basis for this opinion. I have assumed the genuineness and
authenticity of all documents submitted to me as originals, the conformity
to originals of all documents submitted to me as copies thereof, and the
due execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, I am of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued,
fully paid, and nonassessable (except as to shares issued pursuant to
certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
By:
/s/ Stephen D. Richards
Stephen D. Richards
Senior Vice President and General Counsel,
Consolidated Freightways Corporation
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 26, 2000
included and incorporate by reference in Consolidated Freightways Corporation's
Form 10-K for the year ended December 31, 1999 (File No. 001-12149) and to all
references to our Firm included in this registration statement.
/s/Arthur Andersen LLP
Arthur Andersen LLP
Portland, Oregon
July 24, 2000
Exhibit 24.1
Power of Attorney
(CF AirFreight Savings Plan 401(k) Shares)
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned, an officer
and/or director of Consolidated Freightways Corporation (the "Company"),
does hereby constitute and appoint Stephen D. Richards his true and lawful
attorney-in-fact and agent, with full power of substitution and re-
substitution, to do any and all acts and things and to execute in his name
(whether on behalf of the Company or as an officer or director of the
Company, or otherwise) any and all instruments which said attorney-in-fact
and agent may deem necessary or advisable in order to enable the Company to
comply with the Securities Act of 1933, as amended (the "Securities Act"),
and any requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Securities Act of
shares of the Company's Common Stock issuable pursuant to the CF AirFreight
Savings Plan, including specifically, but without limitation thereto, power
and authority to sign his name (whether on behalf of the Company or as an
officer or director of the Company, or otherwise) to a Registration
Statement on Form S-8 and any amendment thereto (including any post-
effective amendment) or application for amendment thereto in respect to
such Common Stock or any exhibits filed therewith; and to file the same
with the Securities and Exchange Commission; and the undersigned does
hereby ratify and confirm all that said attorney-in-fact and agent shall do
or cause to be done by virtue hereof.
DATED: July 25, 2000
/s/ Patrick H. Blake
Patrick H. Blake
Exhibit 24.1
Power of Attorney
(CF AirFreight Savings Plan 401(k) Shares)
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned, an officer
and/or director of Consolidated Freightways Corporation (the "Company"),
does hereby constitute and appoint Stephen D. Richards his true and lawful
attorney-in-fact and agent, with full power of substitution and re-
substitution, to do any and all acts and things and to execute in his name
(whether on behalf of the Company or as an officer or director of the
Company, or otherwise) any and all instruments which said attorney-in-fact
and agent may deem necessary or advisable in order to enable the Company to
comply with the Securities Act of 1933, as amended (the "Securities Act"),
and any requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Securities Act of
shares of the Company's Common Stock issuable pursuant to the CF AirFreight
Savings Plan, including specifically, but without limitation thereto, power
and authority to sign his name (whether on behalf of the Company or as an
officer or director of the Company, or otherwise) to a Registration
Statement on Form S-8 and any amendment thereto (including any post-
effective amendment) or application for amendment thereto in respect to
such Common Stock or any exhibits filed therewith; and to file the same
with the Securities and Exchange Commission; and the undersigned does
hereby ratify and confirm all that said attorney-in-fact and agent shall do
or cause to be done by virtue hereof.
DATED: July 21, 2000
/s/ Robert E. Wrightson
Robert E. Wrightson
Exhibit 24.1
Power of Attorney
(CF AirFreight Savings Plan 401(k) Shares)
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned, an officer
and/or director of Consolidated Freightways Corporation (the "Company"),
does hereby constitute and appoint Stephen D. Richards his true and lawful
attorney-in-fact and agent, with full power of substitution and re-
substitution, to do any and all acts and things and to execute in his name
(whether on behalf of the Company or as an officer or director of the
Company, or otherwise) any and all instruments which said attorney-in-fact
and agent may deem necessary or advisable in order to enable the Company to
comply with the Securities Act of 1933, as amended (the "Securities Act"),
and any requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Securities Act of
shares of the Company's Common Stock issuable pursuant to the CF AirFreight
Savings Plan, including specifically, but without limitation thereto, power
and authority to sign his name (whether on behalf of the Company or as an
officer or director of the Company, or otherwise) to a Registration
Statement on Form S-8 and any amendment thereto (including any post-
effective amendment) or application for amendment thereto in respect to
such Common Stock or any exhibits filed therewith; and to file the same
with the Securities and Exchange Commission; and the undersigned does
hereby ratify and confirm all that said attorney-in-fact and agent shall do
or cause to be done by virtue hereof.
DATED: July 25, 2000
/s/ William D. Walsh
William D. Walsh
Exhibit 24.1
Power of Attorney
(CF AirFreight Savings Plan 401(k) Shares)
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned, an officer
and/or director of Consolidated Freightways Corporation (the "Company"),
does hereby constitute and appoint Stephen D. Richards his true and lawful
attorney-in-fact and agent, with full power of substitution and re-
substitution, to do any and all acts and things and to execute in his name
(whether on behalf of the Company or as an officer or director of the
Company, or otherwise) any and all instruments which said attorney-in-fact
and agent may deem necessary or advisable in order to enable the Company to
comply with the Securities Act of 1933, as amended (the "Securities Act"),
and any requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Securities Act of
shares of the Company's Common Stock issuable pursuant to the CF AirFreight
Savings Plan, including specifically, but without limitation thereto, power
and authority to sign his name (whether on behalf of the Company or as an
officer or director of the Company, or otherwise) to a Registration
Statement on Form S-8 and any amendment thereto (including any post-
effective amendment) or application for amendment thereto in respect to
such Common Stock or any exhibits filed therewith; and to file the same
with the Securities and Exchange Commission; and the undersigned does
hereby ratify and confirm all that said attorney-in-fact and agent shall do
or cause to be done by virtue hereof.
DATED: July 20, 2000
/s/ G. Robert Evans
G. Robert Evans
Exhibit 24.1
Power of Attorney
(CF AirFreight Savings Plan 401(k) Shares)
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned, an officer
and/or director of Consolidated Freightways Corporation (the "Company"),
does hereby constitute and appoint Stephen D. Richards his true and lawful
attorney-in-fact and agent, with full power of substitution and re-
substitution, to do any and all acts and things and to execute in his name
(whether on behalf of the Company or as an officer or director of the
Company, or otherwise) any and all instruments which said attorney-in-fact
and agent may deem necessary or advisable in order to enable the Company to
comply with the Securities Act of 1933, as amended (the "Securities Act"),
and any requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Securities Act of
shares of the Company's Common Stock issuable pursuant to the CF AirFreight
Savings Plan, including specifically, but without limitation thereto, power
and authority to sign his name (whether on behalf of the Company or as an
officer or director of the Company, or otherwise) to a Registration
Statement on Form S-8 and any amendment thereto (including any post-
effective amendment) or application for amendment thereto in respect to
such Common Stock or any exhibits filed therewith; and to file the same
with the Securities and Exchange Commission; and the undersigned does
hereby ratify and confirm all that said attorney-in-fact and agent shall do
or cause to be done by virtue hereof.
DATED: July 21, 2000
/s/ Paul B. Guenther
Paul B. Guenther
Exhibit 24.1
Power of Attorney
(CF AirFreight Savings Plan 401(k) Shares)
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned, an officer
and/or director of Consolidated Freightways Corporation (the "Company"),
does hereby constitute and appoint Stephen D. Richards his true and lawful
attorney-in-fact and agent, with full power of substitution and re-
substitution, to do any and all acts and things and to execute in his name
(whether on behalf of the Company or as an officer or director of the
Company, or otherwise) any and all instruments which said attorney-in-fact
and agent may deem necessary or advisable in order to enable the Company to
comply with the Securities Act of 1933, as amended (the "Securities Act"),
and any requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Securities Act of
shares of the Company's Common Stock issuable pursuant to the CF AirFreight
Savings Plan, including specifically, but without limitation thereto, power
and authority to sign his name (whether on behalf of the Company or as an
officer or director of the Company, or otherwise) to a Registration
Statement on Form S-8 and any amendment thereto (including any post-
effective amendment) or application for amendment thereto in respect to
such Common Stock or any exhibits filed therewith; and to file the same
with the Securities and Exchange Commission; and the undersigned does
hereby ratify and confirm all that said attorney-in-fact and agent shall do
or cause to be done by virtue hereof.
DATED: July 21, 2000
/s/ Robert W. Hatch
Robert W. Hatch
Exhibit 24.1
Power of Attorney
(CF AirFreight Savings Plan 401(k) Shares)
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned, an officer
and/or director of Consolidated Freightways Corporation (the "Company"),
does hereby constitute and appoint Stephen D. Richards his true and lawful
attorney-in-fact and agent, with full power of substitution and re-
substitution, to do any and all acts and things and to execute in his name
(whether on behalf of the Company or as an officer or director of the
Company, or otherwise) any and all instruments which said attorney-in-fact
and agent may deem necessary or advisable in order to enable the Company to
comply with the Securities Act of 1933, as amended (the "Securities Act"),
and any requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Securities Act of
shares of the Company's Common Stock issuable pursuant to the CF AirFreight
Savings Plan, including specifically, but without limitation thereto, power
and authority to sign his name (whether on behalf of the Company or as an
officer or director of the Company, or otherwise) to a Registration
Statement on Form S-8 and any amendment thereto (including any post-
effective amendment) or application for amendment thereto in respect to
such Common Stock or any exhibits filed therewith; and to file the same
with the Securities and Exchange Commission; and the undersigned does
hereby ratify and confirm all that said attorney-in-fact and agent shall do
or cause to be done by virtue hereof.
DATED: July 25, 2000
/s/ John M. Lillie
John M. Lillie
Exhibit 24.1
Power of Attorney
(CF AirFreight Savings Plan 401(k) Shares)
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned, an officer
and/or director of Consolidated Freightways Corporation (the "Company"),
does hereby constitute and appoint Stephen D. Richards his true and lawful
attorney-in-fact and agent, with full power of substitution and re-
substitution, to do any and all acts and things and to execute in his name
(whether on behalf of the Company or as an officer or director of the
Company, or otherwise) any and all instruments which said attorney-in-fact
and agent may deem necessary or advisable in order to enable the Company to
comply with the Securities Act of 1933, as amended (the "Securities Act"),
and any requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Securities Act of
shares of the Company's Common Stock issuable pursuant to the CF AirFreight
Savings Plan, including specifically, but without limitation thereto, power
and authority to sign his name (whether on behalf of the Company or as an
officer or director of the Company, or otherwise) to a Registration
Statement on Form S-8 and any amendment thereto (including any post-
effective amendment) or application for amendment thereto in respect to
such Common Stock or any exhibits filed therewith; and to file the same
with the Securities and Exchange Commission; and the undersigned does
hereby ratify and confirm all that said attorney-in-fact and agent shall do
or cause to be done by virtue hereof.
DATED: July 20, 2000
/s/ James B. Malloy
James B. Malloy
Exhibit 24.1
Power of Attorney
(CF AirFreight Savings Plan 401(k) Shares)
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned, an officer
and/or director of Consolidated Freightways Corporation (the "Company"),
does hereby constitute and appoint Stephen D. Richards his true and lawful
attorney-in-fact and agent, with full power of substitution and re-
substitution, to do any and all acts and things and to execute in his name
(whether on behalf of the Company or as an officer or director of the
Company, or otherwise) any and all instruments which said attorney-in-fact
and agent may deem necessary or advisable in order to enable the Company to
comply with the Securities Act of 1933, as amended (the "Securities Act"),
and any requirements of the Securities and Exchange Commission in respect
thereof, in connection with the registration under the Securities Act of
shares of the Company's Common Stock issuable pursuant to the CF AirFreight
Savings Plan, including specifically, but without limitation thereto, power
and authority to sign his name (whether on behalf of the Company or as an
officer or director of the Company, or otherwise) to a Registration
Statement on Form S-8 and any amendment thereto (including any post-
effective amendment) or application for amendment thereto in respect to
such Common Stock or any exhibits filed therewith; and to file the same
with the Securities and Exchange Commission; and the undersigned does
hereby ratify and confirm all that said attorney-in-fact and agent shall do
or cause to be done by virtue hereof.
DATED: July 20, 2000
/s/ Raymond F. O'Brien
Raymond F. O'Brien
