<PAGE> 1
Registration No. _______________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_________________________
ROADWAY SERVICES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Ohio 34-1365496
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
1077 Gorge Boulevard
P.O. Box 88
Akron, Ohio 44309-0088
(Address of principal executive offices including zip code)
ROADWAY SERVICES, INC.
STOCK SAVINGS AND RETIREMENT INCOME
PLAN AND TRUST (AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1994)
(Full title of the plan)
John M. Glenn
1077 Gorge Boulevard
P.O. Box 88
Akron, Ohio 44309-0088
(Name and address of agent for service)
(216) 384-8184
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered(1) registered share price fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of
Common Stock
without par value 1,700,000 $71.75 (2) $121,975,000 (2) $42,060.64
- --------------------------------------------------------------------------------------------------------------
<FN>
- ----------
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of
interests to be offered pursuant to the Roadway Services, Inc. Stock
Savings and Retirement Income Plan and Trust (Amended and Restated
effective January 1, 1994).
(2) Pursuant to Rule 457(h) under the Securities Act of 1933, this
estimate is made solely for the purpose of calculating the amount of
the registration fee and is based on the average of the high and low
prices of the Common Stock on the NASDAQ National Market on March 7,
1994.
</TABLE>
<PAGE> 2
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Roadway Services, Inc.
(the "Company") and the Roadway Services, Inc. Stock Savings and Retirement
Income Plan and Trust (Amended and Restated effective January 1, 1994) (the
"Plan") with the Securities and Exchange Commission are incorporated herein by
reference:
(1) Annual Report of the Company on Form 10-K for the fiscal year
ended December 31, 1993;
(2) Annual Report of the Plan on Form 11-K for the fiscal year
ended December 31, 1992, which was filed under cover of Form
SE on June 28, 1993; and
(3) The description of the Company's Common Stock without par
value contained in the Company's Registration Statement filed
pursuant to Section 12 of the Securities Exchange Act of 1934
and any amendments and reports filed for the purpose of
updating that description.
All documents that shall be filed by the Company and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 subsequent to the filing of this registration statement and prior to
the filing of a post-effective amendment indicating that all securities offered
under the Plan have been sold or deregistering all securities then remaining
unsold thereunder shall be deemed to be incorporated herein by reference and
shall be deemed to be a part hereof from the date of filing thereof.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1701.13(E) of the Ohio Revised Code sets forth conditions
and limitations concerning indemnification of officers, directors and other
persons.
Article IV of the Company's Restated Amended Code of Regulations
provides, in relevant part, as follows:
"The Company shall indemnify each present and future director
and officer of the Company, and each person who at the request of
or at the instance of the Company is now serving or hereafter
serves as a director or officer of any other corporation, against
any costs and expenses which may be imposed on or reasonably
incurred by him in connection with any claim, suit, or proceeding
(whether brought by the Company, such corporation, a receiver, a
trustee, one or more shareholders or creditors, any governmental
body, any public official, any private person, or any other
corporation) hereafter made or instituted in which he may be
involved by reason of his being or having been a director or
officer of the Company or of any other corporation in which he
served or serves as a director or officer at the request of or at
the instance of the Company (whether or not he continues to be a
director or officer at the time of imposition of such costs or
incurring of such expense), such costs and expenses to include the
cost to such director or officer of reasonable settlements (other
than amounts paid to the Company itself or to such other
corporation served at the request of or at the instance of the
Company). The Company shall not, however, indemnify such director
or officer with respect to matters as to which he shall be finally
adjudged in any such action, suit or proceeding to be liable
because of dereliction in the performance of his duties as such
director or officer, or (except with the approval of a court of
competent jurisdiction, a disinterested majority of the Board of
Directors, or any committee or group of persons to whom the
question may be referred by the Board) with respect to any matter
on which a settlement is effected if the amount paid by the
director or officer in such settlement shall substantially exceed
the expenses which might reasonably be
II-1
<PAGE> 3
incurred by him after the date of settlement in conducting
litigation to a final conclusion. The foregoing right of
indemnification shall not be exclusive of other rights to which any
person concerned may be entitled as a matter of law, and shall
inure to the benefit of the heirs, executors, and administrators of
any such person."
In addition, the Company maintains directors' and officers'
reimbursement and liability insurance. The risks covered by such policies
include certain liabilities under the securities laws.
ITEM 8. EXHIBITS.
4(a) Restated Amended Articles of Incorporation of the Company
(filed as Exhibit 4(a) to Post-Effective Amendment No. 1 to
the Company's Registration Statement No. 33-44502 on Form
S-8 and incorporated herein by reference)
(b) Restated Amended Code of Regulations of the Company
effective May 10, 1989 (filed as Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1992, and incorporated herein by reference)
(c) Roadway Services, Inc. Stock Savings and Retirement Income
Plan and Trust (Amended and Restated effective
January 1, 1994)
23 Consent of Independent Auditors
24(a) Power of Attorney on behalf of the Company
(b) Power of Attorney on behalf of the Plan
UNDERTAKING:
The undersigned registrant will submit the Plan and any
amendments thereto to the Internal Revenue Service and will make
all changes required by the Internal Revenue Service in order to
qualify the Plan.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933; (ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; PROVIDED,
HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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<PAGE> 4
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING THIS REGISTRATION STATEMENT 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 AKRON, STATE OF OHIO, ON
THIS 10TH DAY OF MARCH 1994.
ROADWAY SERVICES, INC.
By: /S/ JOHN M. GLENN
----------------------
John M. Glenn
Vice President and General Counsel
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<PAGE> 5
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* JOSEPH M. CLAPP Director; Chairman of March 10, 1994
---------------------------------- the Board and Chief
Joseph M. Clapp Executive Officer
(Principal Executive
Officer)
* DANIEL J. SULLIVAN Director; President and March 10, 1994
---------------------------------- Chief Operating Officer
Daniel J. Sullivan
* DOUGLAS A. WILSON Senior Vice President-Finance March 10, 1994
---------------------------------- and Planning (Principal
Douglas A. Wilson Financial Officer)
* ROY E. GRIGGS Vice President and March 10, 1994
---------------------------------- Controller (Principal
Roy E. Griggs Accounting Officer)
* GEORGE B. BEITZEL Director March 10, 1994
----------------------------------
George B. Beitzel
* NORMAN C. HARBERT Director March 10, 1994
----------------------------------
Norman C. Harbert
* CHARLES R. LONGSWORTH Director March 10, 1994
----------------------------------
Charles R. Longsworth
* ROBERT E. MERCER Director March 10, 1994
----------------------------------
Robert E. Mercer
Director March __, 1994
----------------------------------
Richard A. Chenoweth
Director March __, 1994
----------------------------------
G. James Roush
Director March __, 1994
----------------------------------
William Sword
Director March __, 1994
----------------------------------
Sarah Roush Werner
</TABLE>
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<PAGE> 6
*This registration statement has been signed on behalf of the above
officers and directors by John M. Glenn, Vice President and General Counsel of
the Company, as attorney-in-fact pursuant to a power of attorney filed as
Exhibit 24(a) to this registration statement.
DATED: March 10, 1994 By: /s/ JOHN M. GLENN
---------------------------
John M. Glenn,
Attorney-in-Fact
II-5
<PAGE> 7
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the Plan has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Akron, State of
Ohio, on this March 10, 1994.
ROADWAY SERVICES, INC. STOCK
SAVINGS AND RETIREMENT
INCOME PLAN AND TRUST
* By:DOUGLAS A. WILSON
----------------------------
Chairman of the Stock Savings
and Retirement Income Plan
and Trust Committee
* This registration statement has been signed on behalf of the
Roadway Services, Inc. Stock Savings Retirement Income Plan and Trust (Amended
and Restated effective January 1, 1994) through its Chairman by John M. Glenn,
Vice President and General Counsel of the Company, as attorney-in-fact pursuant
to a power of attorney filed as Exhibit 24(b) to this registration statement.
Dated: March 10, 1994
/s/ JOHN M. GLENN
------------------------------
John M. Glenn, Attorney-in-Fact
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<PAGE> 8
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
------- -------------------
4(a) Restated Amended Articles of Incorporation of the Company
(filed as Exhibit 4(a) to Post-Effective Amendment No. 1 to
the Company's Registration State No. 33-44502 on Form S-8
and incorporated herein by reference)
4(b) Restated Amended Code of Regulations of the Company
effective May 10, 1989 (filed as Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1992, and incorporated herein by reference)
4(c) Roadway Services, Inc. Stock Savings and Retirement Income
Plan and Trust (Amended and Restated Effective
January 1, 1994)
23 Consent of Independent Auditors
24(a) Power of Attorney on behalf of the Company
24(b) Power of Attorney on behalf of the Plan
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<PAGE> 1
Exhibit 4(c)
ROADWAY SERVICES, INC.
STOCK SAVINGS AND RETIREMENT INCOME
PLAN AND TRUST
(AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1994)
<PAGE> 2
ROADWAY SERVICES, INC. STOCK SAVINGS AND
RETIREMENT INCOME PLAN AND TRUST
INDEX
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE I PRELIMINARY MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1 Qualified Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Discretionary Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Account and Sub-Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 After-Tax Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Before-Tax Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.6 Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.7 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.8 Committee or Administrative Committee . . . . . . . . . . . . . . . . . . . . . 5
2.9 Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.10 Company Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.11 Company Stock Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.12 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.13 Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.14 Controlled Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.15 Controlled Group Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.16 Covered Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.17 Death Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.18 Eligible Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.19 Eligible Rollover Distribution . . . . . . . . . . . . . . . . . . . . . . . . 9
2.20 Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.21 Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.22 Employment Commencement Date . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.23 Enrollment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.24 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.25 Fiduciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.26 Hardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.27 Highly Compensated Employee . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.28 Hours of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.29 Instrument of Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.30 Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.31 Investment Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.32 Matching Employer Contributions . . . . . . . . . . . . . . . . . . . . . . . . 14
2.33 Named Fiduciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.34 1-Year Break in Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.35 Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.36 Period of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.37 Period of Severance and Severance Date . . . . . . . . . . . . . . . . . . . . 17
2.38 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.39 Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.40 Plan Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.41 Reemployment Commencement Date . . . . . . . . . . . . . . . . . . . . . . . . 18
2.42 Salary Reduction Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
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<TABLE>
<CAPTION>
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----
<S> <C>
2.43 Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.44 Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.45 Termination of Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.46 Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.47 Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.48 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.49 Valuation Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.50 Year of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE III ELIGIBILITY FOR PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1 Conditions of Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.2 Enrollment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.3 Duration of Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.4 Participation Due to Administrative Error . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IV BEFORE-TAX AND AFTER-TAX CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . 22
4.1 Amount of Before-Tax and After-Tax
Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.2 Maximum and Minimum Contributions . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.3 Payments to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.4 Changes in Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.5 Suspension and Resumption of Contributions . . . . . . . . . . . . . . . . . . . . 23
4.6 Excess Deferrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.7 Excess Before-Tax Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.8 Excess Matching Employer and After-Tax
Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.9 Multiple Use of the Alternative Limitation . . . . . . . . . . . . . . . . . . . . 31
4.10 Monitoring Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.11 Testing Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE V MATCHING EMPLOYER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.1 Amount of Matching Employer Contributions . . . . . . . . . . . . . . . . . . . . . 35
5.2 Allocation of Matching Employer Contributions . . . . . . . . . . . . . . . . . . . 35
5.3 Investment of Matching Employer Contributions . . . . . . . . . . . . . . . . . . . 36
5.4 Reduction of Matching Employer Contributions . . . . . . . . . . . . . . . . . . . 36
5.5 Return of Contributions to Employers . . . . . . . . . . . . . . . . . . . . . . . 36
5.6 Provisions Pursuant to Code Section 415(c) . . . . . . . . . . . . . . . . . . . . 37
5.7 Provision Pursuant to Code Section 415(e) . . . . . . . . . . . . . . . . . . . . . 40
5.8 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.9 Funding Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.10 No Duty to Enforce Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VI VESTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.1 Immediate Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VII INVESTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.1 Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.2 Account; Sub-Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.3 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.4 Valuation of Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.5 Investment of Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.6 Change of Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
</TABLE>
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<TABLE>
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7.7 Investment Direction and Change Procedures-
Future Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.8 Investment Direction and Change Procedures-
Prior Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.9 Directions to the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.10 Voting of Allocated Company Stock . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.11 Tender of Allocated Company Stock . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE VIII DISTRIBUTIONS AND WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . . . 53
8.1 Distributions Only As Provided . . . . . . . . . . . . . . . . . . . . . . . . . . 53
8.2 Distributions upon Termination of Employment
(Other than Death) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
8.3 Distribution upon Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
8.4 Form and Valuation of Distribution . . . . . . . . . . . . . . . . . . . . . . . . 55
8.5 Latest Time of Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.6 Withdrawal Requested by Participant . . . . . . . . . . . . . . . . . . . . . . . . 58
8.7 Suspension of Contributions Upon Withdrawal . . . . . . . . . . . . . . . . . . . . 59
8.8 Hardship Withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.9 Distributions Pursuant to Qualified
Domestic Relations Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.10 Distribution on Sale of Assets or
Disposition of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.11 Direct Rollovers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
8.12 Prohibited Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE IX PROVISIONS RELATING TO THE TRUSTEE
AND THE ADMINISTRATION OF THE TRUST FUND . . . . . . . . . . . . . . . . . . . . 64
9.1 Duties of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.2 The Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.3 Payment of Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.4 Powers of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.5 Compensation and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
9.6 No Diversion of the Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 70
9.7 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
9.8 Resignation or Removal of the Trustee . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE X INVESTMENT MANAGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.2 Written Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.3 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.4 Notification of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.5 Powers and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.6 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE XI ADMINISTRATION OF THE PLAN AND FIDUCIARY
RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
11.1 Responsibility for Administration . . . . . . . . . . . . . . . . . . . . . . . . . 77
11.2 Named Fiduciaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
11.3 Delegation of Fiduciary Responsibilities . . . . . . . . . . . . . . . . . . . . . 77
11.4 Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
11.5 Limitation on Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . 79
11.6 Administrative Committee - Organization . . . . . . . . . . . . . . . . . . . . . . 79
11.7 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.8 Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
</TABLE>
- iii -
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
11.9 Interpretation of the Plan and Findings
of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.10 Operation of the Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.11 Plan Administrator's Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.12 Correction of Errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE XII CLAIMS PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.1 Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.2 Review of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE XIII AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
13.1 Right to Amend or Terminate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
13.2 Procedure for Termination or Amendment . . . . . . . . . . . . . . . . . . . . . . 86
13.3 Distribution Upon Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
13.4 Amendment Changing Vesting Schedule . . . . . . . . . . . . . . . . . . . . . . . . 87
13.5 Nonforfeitable Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.6 Prohibition on Decreasing Accrued Benefits . . . . . . . . . . . . . . . . . . . . 88
ARTICLE XIV MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
14.1 Employment Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
14.2 Inalienability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
14.3 Incapacity to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
14.4 Unclaimed Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
14.5 Dissolution, Merger or Consolidation of
the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
14.6 Action by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
14.7 Limitation to Rights Created Under the Plan . . . . . . . . . . . . . . . . . . . . 91
14.8 Recourse Against Officers, Directors or
Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
14.9 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
14.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
14.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
14.12 Plan Merger or Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . . 92
14.13 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
14.14 Service of Process/Necessary Parties . . . . . . . . . . . . . . . . . . . . . . . 94
ARTICLE XV ADOPTION OF PLAN BY CONTROLLED GROUP MEMBERS . . . . . . . . . . . . . . . . . . . . 95
15.1 Adoption Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
15.2 Additional Terms and Conditions Relating
to Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
15.3 Effect of Adoption by a Controlled
Group Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
15.4 Withdrawal of an Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
ARTICLE XVI TOP-HEAVY PLAN PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
16.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
16.2 Determination of Top-Heavy Status . . . . . . . . . . . . . . . . . . . . . . . . . 101
16.3 Determination of Extra Top-Heavy Status . . . . . . . . . . . . . . . . . . . . . . 101
16.4 Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
16.5 Coordination With Other Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
EXHIBIT A Employers Pursuant to Section 2.21
EXHIBIT B Additional Investment Funds Pursuant to Section 7.1
</TABLE>
- iv -
<PAGE> 6
ROADWAY SERVICES, INC.
STOCK SAVINGS AND RETIREMENT INCOME
PLAN AND TRUST
(AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1994)
THIS AMENDMENT AND RESTATEMENT is made and executed this 9th day of
December, 1993, and generally effective as of January 1, 1994, by and between
Roadway Services, Inc. and National City Bank, Cleveland, Ohio.
W I T N E S S E T H:
WHEREAS, effective January 1, 1979, Roadway Express, Inc. established
the Roadway Express, Inc. Employee Stock Savings Plan and Trust;
WHEREAS, effective July 30, 1982, Roadway Express, Inc. became a
wholly owned subsidiary of Roadway Services, Inc., an Ohio corporation,
pursuant to an Agreement and Plan of Merger and Reorganization, and, effective
January 1, 1983, Roadway Services, Inc. adopted the Plan, the name of which was
changed to the Roadway Services, Inc. Employees Stock Savings Plan and Trust
(Amended and Restated);
WHEREAS, effective January 1, 1989, the name of the Plan was changed
to the Roadway Services, Inc. Stock Savings and Retirement Income Plan and
Trust (Amended and Restated);
WHEREAS, Article XI of the Plan in effect prior to January 1, 1994
(now Article XIII of the Plan) sets forth the provisions whereby such Plan may
be amended; and
WHEREAS, the Company desires to again amend and restate the Plan in
its entirety;
<PAGE> 7
2
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed by and between the Company and Trustee
that the Plan is amended and restated as follows:
<PAGE> 8
3
ARTICLE I
PRELIMINARY MATTERS
1.1 Qualified Plan
The Plan is maintained by the Company for the exclusive benefit of
Participants and their Beneficiaries. The Plan is permitted to acquire and
hold shares of common stock of the Company, and is intended to comply with the
provisions of the Code that govern tax-qualified plans and ERISA.
1.2 Discretionary Powers
All discretionary powers granted hereunder shall be exercised in a
uniform nondiscriminatory manner.
1.3 Construction
(a) Unless the context otherwise indicates, the masculine wherever
used herein shall include the feminine and neuter, the singular shall include
the plural and words such as "herein", "hereof", "hereby", "hereunder" and
words of similar import refer to the Plan as a whole and not to any particular
part thereof.
(b) Wherever the word "person" appears in the Plan, it shall refer to
both natural and legal persons.
(c) A number of the provisions of the Plan are designed to contain
provisions required or contemplated by certain federal laws and/or regulations
thereunder. All such provisions are intended to have the meaning required or
contemplated by such provisions of such law or regulations and shall be
construed in accordance with valid regulations and valid published governmental
rulings and interpretations of such provisions. In applying such provisions of
the Plan, each Fiduciary may rely (and shall be protected in relying) on any
determination or ruling made by any agency of the United States Government that
has authority to issue regulations,
<PAGE> 9
4
rulings or determinations with respect to the federal law thus involved.
(d) This amendment and restatement of the Plan shall constitute an
amendment, restatement and continuation of the Plan. This amendment and
restatement is generally effective January 1, 1994. However, certain
provisions of this amendment and restatement of the Plan are effective as of
some other date. The provisions of this amendment and restatement of the Plan
that are effective prior to January 1, 1994 shall be deemed to amend the
corresponding provisions of the Plan as in effect before this amendment and
restatement and all amendments thereto. Events occurring before the applicable
effective date of any provision of this amended and restated Plan shall be
governed by the applicable provision of the Plan in effect on the date of the
event.
(e) The benefits payable with respect to an Employee or former
Employee whose Termination of Employment with the Controlled Group occurred
before January 1, 1994 (and who does not have an Hour of Service on or after
that date) shall be determined by and paid in accordance with the terms and
provisions of the Plan as in effect at the date of such Termination of
Employment, except to the extent that certain provisions of the Plan, as
amended and restated as of January 1, 1994, apply to such individual as a
result of applicable law or the context clearly requires the application of
such provision to such individual.
<PAGE> 10
5
ARTICLE II
DEFINITIONS
2.1 Generally
The following terms, when used with initial capital letters, unless
the context clearly indicates otherwise, shall have the following respective
meanings.
2.2 Account and Sub-Account
"Account" and "Sub-Account" mean the records maintained by the Plan
Administrator in the manner provided in Section 7.2 to determine the interest
of each Participant in the Trust Fund.
2.3 After-Tax Contributions
"After-Tax Contributions" means the contributions provided for in
Section 4.1(b).
2.4 Before-Tax Contributions
"Before-Tax Contributions" means the contributions provided for in
Section 4.1(a).
2.5 Beneficiary
"Beneficiary" means the Participant's Death Beneficiary or any other
person entitled to receive benefits under this Plan by reason of a
Participant's death.
2.6 Board of Directors
"Board of Directors" means the Board of Directors of the Company.
2.7 Code
"Code" means the Internal Revenue Code of 1986, as amended.
2.8 Committee or Administrative Committee
"Committee" or "Administrative Committee" means the committee
established by the Company under Section 11.6 to administer the Plan. The
Committee shall be a Named Fiduciary hereunder.
<PAGE> 11
6
2.9 Company
"Company" means Roadway Services, Inc., an Ohio corporation. The
Company shall be the Plan Administrator and a Named Fiduciary hereunder.
2.10 Company Stock
"Company Stock" means the voting common stock of the Company.
2.11 Company Stock Fund
"Company Stock Fund" means the Investment Fund described in Section
7.1, which is invested solely in Company Stock.
2.12 Compensation
(a) "Compensation" means the sum of salary paid to an Employee by all
Controlled Group Members in the calendar year plus cash incentive compensation
and overtime pay paid to that Employee, but excluding (i) expense allowances
and other special payments not paid as regular compensation, (ii) payments
pursuant to a tax equalization, relocation or cost of living program, an
expatriate program or any similar programs or arrangements and (iii) any part
of the Employer's contributions under this Plan and/or any pension, welfare,
stock bonus, stock ownership or other qualified or nonqualified plan.
Notwithstanding the foregoing, Compensation shall include any salary that would
have been paid to such Employee had he not signed a salary deferral agreement
that satisfies the requirements of Code Section 401(k), 125 or 129.
(b) Notwithstanding the foregoing, effective January 1, 1989,
Compensation of any Employee taken into account for any purpose for any Plan
Year shall not exceed the limitation in effect for such Year under Code Section
401(a)(17). For purposes of the preceding sentence, in the case of a Highly
Compensated Employee who is a five percent (5%) owner (as such term is defined
in Code
<PAGE> 12
7
Section 416(i)(1)) or one of the ten (10) most Highly Compensated Employees,
(i) such Highly Compensated Employee and his family members (which, for this
purpose shall mean an Employee's Spouse and lineal descendants who have not
attained age nineteen (19) before the close of the Year in question) shall be
treated as a single Employee, and the Compensation of such family members shall
be aggregated with the Compensation of such Highly Compensated Employee, and
(ii) the limitation on Compensation described in the first sentence of this
Subsection shall be allocated among such Highly Compensated Employee and his
family members in proportion to each individual's Compensation.
2.13 Contributions
"Contributions" mean any one or more of After-Tax Contributions,
Before-Tax Contributions and Matching Employer Contributions, as the context
requires.
2.14 Controlled Group
"Controlled Group" means the Employers and any and all other
corporations, trades and/or businesses, the employees of which, together with
Employees of an Employer, are required by Code Section 414 to be treated as if
they were employed by a single employer. For purposes of Sections 5.6 and 5.7,
"Controlled Group" shall be interpreted in accordance with Code Section 415(h).
2.15 Controlled Group Member
"Controlled Group Member" means each corporation or unincorporated
trade or business that is or was a member of the Controlled Group, but, except
as provided in Section 2.36(d), only during such period as it is or was such a
member of the Controlled Group.
<PAGE> 13
8
2.16 Covered Employee
"Covered Employee" means any Employee of an Employer who is in a
class or group to which the Employer has extended eligibility for participation
in the Plan, excluding, however, any Employee who (a) is designated by his
Employer as a temporary or casual Employee, (b) is included in a collective
bargaining unit (either directly or through an employer's association) unless
the collective bargaining agreement expressly provides that the Employee is to
be eligible under the Plan, (c) is a non-resident alien (other than an alien
who is only temporarily located outside of the United States) or (d) is a
leased employee (as defined in Section 2.20).
2.17 Death Beneficiary
"Death Beneficiary" means a Participant's Spouse or, if he has no
Spouse or if his Spouse consents to the designation, such person or persons
other than, or in addition to, his Spouse as may be designated by the
Participant as his Death Beneficiary under the Plan. A Participant's
designation required by this Section may be made, revoked or changed (without
the consent of any previously designated Death Beneficiary, except as provided
in this Section) only by an instrument (in the form provided by the Plan
Administrator) that is signed by the Participant, that, if he has a Spouse,
includes his Spouse's written consent to the action to be taken pursuant to
such instrument (unless such action results in the Spouse being named as the
Participant's sole Death Beneficiary), and that is filed with the Plan
Administrator before the Participant's death. A Spouse's consent required by
this Section shall be signed by the Spouse, shall acknowledge the effect of
such consent, shall be witnessed by a notary public and shall be effective only
with respect to such Spouse. A Spouse's consent is
<PAGE> 14
9
not required if it is established to the satisfaction of the Committee that the
consent cannot be obtained because there is no Spouse, because the Spouse
cannot be located, or because of such other circumstances as the Secretary of
the Treasury may prescribe by regulations. In default of such a designation
and at any other time when there is no existing Death Beneficiary designated by
the Participant, his Death Beneficiary shall be determined by the Committee in
the following order: (a) his Spouse, (b) his children, (c) his parents, (d)
his siblings and (d) his estate. For purposes of the preceding sentence,
"children," "parents" and "siblings" shall only include those individuals
living at the time of the Participant's death and not the decendents of any
child, parent or sibling, as applicable. If a person designated by a
Participant as his Death Beneficiary ceases to exist on or after the date of
the Participant's death, the Death Beneficiary shall be that person's estate or
such other person designated by that person pursuant to this Section.
2.18 Eligible Employee
"Eligible Employee" means an Employee who is eligible for
participation in the Plan in accordance with Article III.
2.19 Eligible Rollover Distribution
"Eligible Rollover Distribution" means any distribution or withdrawal
of all or any portion of the Participant's Account, except (a) any distribution
required under Code Section 401(a)(9), (b) any distribution if it and all other
Eligible Rollover Distributions to the Participant during the calendar year are
reasonably expected to total less than Two Hundred Dollars ($200), (c) the
portion of a distribution not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation described in Code
Section 402(e)(4)), and (d) such
<PAGE> 15
10
other amounts specified in Treasury regulations or Internal Revenue Service
rulings, notices or announcements issued under Code Section 402(c).
2.20 Employee
"Employee" means any person who is subject to the dominion and control
of a Controlled Group Member with respect to the type, kind, nature and scope
of services furnished and, to the extent required by Code Section 414(n), any
person who is a "leased employee" of a Controlled Group Member. For purposes
of this Section, a "leased employee" means any person who, pursuant to an
agreement between a Controlled Group Member and any other person ("leasing
organization"), has performed services for the Controlled Group Member on a
substantially full-time basis for a period of at least one year, and such
services are of a type historically performed by employees in the business
field of the Controlled Group Member. Contributions or benefits provided to a
leased employee by the leasing organization that are attributable to services
performed for a Controlled Group Member will be treated as provided by the
Controlled Group Member. A leased employee will not be considered an Employee
of a Controlled Group Member, however, if (a) leased employees do not
constitute more than twenty percent (20%) of the Controlled Group Member's
nonhighly compensated work force (within the meaning of Code Section
414(n)(5)(C)(ii)) and (b) such leased employee is covered by a money purchase
pension plan maintained by the leasing organization that provides (i) a
nonintegrated employer contribution rate of at least ten percent (10%) of
Compensation, (ii) immediate participation and (iii) full and immediate
vesting.
<PAGE> 16
11
2.21 Employer
"Employer" means the Company and any other Controlled Group Member
that adopts the Plan as specified in Article XV. However, any person that
adopts the Plan and thereafter ceases to exist, ceases to be a member of the
Controlled Group or withdraws or is eliminated from the Plan, shall not
thereafter be an Employer. The Employers under the Plan are listed on Exhibit
A.
2.22 Employment Commencement Date
"Employment Commencement Date" means the date on which an Employee
first performs an Hour of Service for a Controlled Group Member.
2.23 Enrollment Date
"Enrollment Date" means each January 1, April 1, July 1 or October 1.
2.24 ERISA
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
2.25 Fiduciary
"Fiduciary" means any person who (a) exercises any discretionary
authority or discretionary control respecting management of the Plan or
exercises any authority or control respecting management or disposition of the
Trust Fund, (b) renders investment advice for a fee or other compensation,
direct or indirect, with respect to the Trust Fund, or has authority or
responsibility to do so, or (c) has any discretionary authority or
discretionary responsibility in the administration of the Plan or the Trust
Fund. The term "Fiduciary" shall also include any person to whom a Named
Fiduciary delegates any of his fiduciary responsibilities hereunder in
accordance with the provisions of the Plan, as long as such designation is in
effect.
<PAGE> 17
12
2.26 Hardship
"Hardship" means an immediate and heavy financial need on the part of
a Participant for:
(a) expenses for medical care described in Code Section 213(d)
previously incurred by the Participant, his Spouse, or any dependents of the
Participant (as defined in Code Section 152), or expenses necessary for these
persons to obtain such medical care;
(b) costs directly related to the purchase (excluding mortgage
payments) of a principal residence for the Participant;
(c) the payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the Participant, his Spouse,
his children or his dependents (as defined in Code Section 152);
(d) payments necessary to prevent the eviction of the Participant
from his principal residence or foreclosure on the mortgage of the
Participant's principal residence; or
(e) any other financial need that the Commissioner of Internal
Revenue, through the publication of revenue rulings, notices and other
documents of general applicability, may from time to time designate as a deemed
immediate and heavy financial need as provided in Treasury Regulations Section
1.401(k)-1(d)(2)(iv)(C).
2.27 Highly Compensated Employee
(a) "Highly Compensated Employee" means, for a particular Plan Year,
unless the Company otherwise elects to use one of the simplified methods
provided under Code Section 414(q)(12) or under section 4 of Revenue Procedure
93-42, 1993-31 I.R.B. 32, any Employee:
(i) who, during the preceding Plan Year, (A) was at any time a five
percent (5%) owner (as such term is defined in Code Section 416(i)(1)),
(B) received compensation from the
<PAGE> 18
13
Controlled Group in excess of the amount in effect for such Plan Year
under Code Section 414(q)(1)(B), (C) received compensation from the
Controlled Group in excess of the amount in effect for such Plan Year
under Code Section 414(q)(1)(C) and was in the top-paid group of
Employees for such Plan Year, or (D) was at any time an officer (limited
to no more than fifty (50) Employees or, if lesser, the greater of three
(3) Employees or ten percent (10%) of the Employees) and received
compensation greater than fifty percent (50%) of the amount in effect
under Code Section 415(b)(1)(A) for such Year; or
(ii) who during the particular Plan Year (but not the prior Plan
Year) (A) was at any time a five percent (5%) owner (as such term is
defined in Code Section 416(i)(1)) or (B) was included in the
Subparagraph (B), (C) or (D) of Paragraph (i) of this Subsection and was
in the group consisting of the one hundred (100) Employees paid the
greatest compensation by the Controlled Group during such Plan Year.
(b) "Highly Compensated Employee" shall include a former Employee
whose Termination of Employment occurred prior to the Plan Year and who was a
Highly Compensated Employee for the Plan Year in which his Termination of
Employment occurred or for any Plan Year ending on or after his fifty-fifth
(55th) birthday.
(c) For the purposes of this Section, (i) the term "compensation"
shall mean the sum of an Employee's compensation under Section 5.6(c) and the
Employee's Before-Tax Contributions (subject to the limitations described in
Section 2.12(b)) and (ii) the term "top-paid group of Employees" shall mean
that group of Employees of the Controlled Group consisting of the top twenty
percent (20%) of such Employees when ranked on the basis of compensation paid
by the Controlled Group during the Plan Year.
<PAGE> 19
14
2.28 Hours of Service
"Hours of Service" means an hour for which an Employee is paid, or
entitled to payment, by one or more Controlled Group Members for the
performance of duties as an Employee.
2.29 Instrument of Adoption
"Instrument of Adoption" means the instrument referred to in Section
15.1 by which a corporation or other business organization, among other things,
adopts the Plan and designates a group or groups of its Employees as Covered
Employees under the Plan.
2.30 Investment Funds
"Investment Funds" means any of the funds provided for in Section 7.1.
2.31 Investment Manager
"Investment Manager" means the investment manager(s) acting pursuant
to Article X. Each Investment Manager (a) must be either registered as an
investment adviser under the Investment Advisers Act of 1940, a bank as defined
thereunder or an insurance company qualified to manage, acquire or dispose of
Plan assets under the laws of more than one state, and (b) must acknowledge in
writing that he is a Fiduciary with respect to the Plan.
2.32 Matching Employer Contributions
"Matching Employer Contributions" means the contributions provided for
in Section 5.1.
2.33 Named Fiduciary
"Named Fiduciary," within the meaning of ERISA, means the Committee,
the Company, the Trustee and each other person designated as a Named Fiduciary
by the Committee pursuant to the power of delegation reserved to the Committee
in Section 11.2.
<PAGE> 20
15
2.34 1-Year Break in Service
(a) "1-Year Break in Service" means a twelve (12) month period
beginning on an Employee's Severance Date and ending on the first anniversary
of such Date, provided that during such period the Employee does not perform an
Hour of Service.
(b) If an Employee is absent from work for any period due to (i) the
pregnancy of the Employee, (ii) the birth of a child of the Employee, (iii) the
placement of a child with the Employee in connection with the adoption of such
child by the Employee, or (iv) caring for a child for a period beginning
immediately following the birth or placement of such child, such Employee shall
not, solely by reason of such absence, be considered to have incurred a Period
of Severance until the expiration of the twenty-four (24) consecutive month
period commencing on the first day of such absence and shall incur a 1-Year
Break in Service if he does not perform an Hour of Service during the twelve
(12) month period immediately following such twenty-four (24) month period.
2.35 Participant
"Participant" means an Employee who has become and continues to be a
Participant in accordance with the provisions of Article III, or any former
Employee who was a Participant while employed by an Employer and who continues
to have a vested interest in the Plan.
2.36 Period of Service
(a) "Period of Service" means, except as provided in Subsection (c)
of this Section, the total of an Employee's periods of Service commencing with
his Employment Commencement Date or Reemployment Commencement Date, if
applicable, and ending on his next following Severance Date.
<PAGE> 21
16
(b) If an Employee, whose Period of Severance occurs as a result of a
quit, discharge, or retirement, performs an Hour of Service for a Controlled
Group Member within the twelve (12) consecutive month period beginning on his
Severance Date, the period beginning on his Severance Date and ending on the
date on which he performs an Hour of Service shall be taken into account in
determining his Period of Service hereunder. Notwithstanding the foregoing, if
an Employee's Period of Severance occurs as a result of a quit, discharge or
retirement during a period of absence referred to in Section 2.37(a)(ii), the
period beginning on his Severance Date (i.e., the date of the quit, discharge,
or retirement) and ending on the date on which he performs an Hour of Service
shall not be taken into account in determining his Period of Service unless he
performs such Hour of Service within twelve (12) months of the date on which
the Employee was first absent.
(c) In the case of any Employee who incurs a Period of Severance that
includes at least one 1-Year Break in Service and who later again becomes an
Employee, any Period of Service before such Period of Severance (a "Prior
Period of Service") shall not be taken into account in determining his Period
of Service hereunder if at the beginning of such Period of Severance he did not
have a nonforfeitable right to a benefit under the Plan and the length of his
Period of Severance equals or exceeds five (5) years; and the length of his
Prior Period of Service shall not include any time that is not required to be
counted under this Section by reason of any prior Period of Severance that
included at least one 1-Year Break in Service.
(d) (Controlled Group Member) A Covered Employee's Period of Service
shall include any employment with a Controlled Group
<PAGE> 22
17
Member who is not an Employer prior to the date that entity became a Controlled
Group Member, provided that such Covered Employee was employed by such
Controlled Group Member immediately prior to becoming a Covered Employee.
(e) Notwithstanding anything in the Plan to the contrary, an Employee
shall be credited with such Periods of Service not otherwise credited to him
under the Plan as may be required by applicable law.
2.37 Period of Severance and Severance Date
(a) "Period of Severance" means, except as provided in Section
2.34(b), the period commencing with the earlier of (i) the date on which an
Employee separates from Service by reason of quitting, retirement, death or
discharge, or (ii) the date twelve (12) months after the date an Employee
remains absent from Service (with or without pay) for any reason other than
quitting, retirement, death or discharge, and ending, if applicable, with the
date such Employee resumes Service.
(b) "Severance Date" means the date on which an Employee's Period of
Severance commences.
2.38 Plan
"Plan" means the Roadway Services, Inc. Stock Savings and Retirement
Income Plan and Trust, the terms and provisions of which are hereinafter set
forth, as the same may be amended from time to time.
2.39 Plan Administrator
"Plan Administrator" means, as defined in ERISA Section 3(16)(A) and
Code Section 414(g), the Company, which may delegate all or any part of its
powers, duties and authorities in such capacity (without ceasing to be the Plan
Administrator) as hereinafter provided.
<PAGE> 23
18
2.40 Plan Year
"Plan Year" means a twelve (12) month period coinciding with the
Company's federal income taxable year which is currently January 1 through
December 31 of each year.
2.41 Reemployment Commencement Date
"Reemployment Commencement Date" means the date following an
Employee's 1-Year Break in Service on which he again performs an Hour of
Service for a Controlled Group Member.
2.42 Salary Reduction Agreement
"Salary Reduction Agreement" means the arrangement provided for in
Section 3.2(c).
2.43 Service
"Service" means employment with any Controlled Group Member.
2.44 Spouse
"Spouse" means the person to whom an Employee is legally married at
the specified time; provided, however, that a former Spouse may be treated as a
Spouse or surviving Spouse to the extent required under the terms of a
"qualified domestic relations order" (as such term is defined in Code Section
414(p)).
2.45 Termination of Employment
"Termination of Employment" means the earlier of a Participant's
cessation of active employment with the Controlled Group through quit,
discharge, death or retirement or the date that is twelve (12) months after his
last day worked with the Controlled Group.
2.46 Trust
"Trust" means the trust portion of this Plan, established for the
holding, investment, administration and distribution of the Trust Fund, which
shall be referred to as the Roadway Services,
<PAGE> 24
19
Inc. Stock Savings and Retirement Income Trust, as it may be amended from time
to time.
2.47 Trust Fund
"Trust Fund" means the assets held by the Trustee under the provisions
of the Plan.
2.48 Trustee
"Trustee" means National City Bank, Cleveland, Ohio, or any successor
Trustee.
2.49 Valuation Date
"Valuation Date" means the last business day of each calendar month
and such other dates selected by the Committee.
2.50 Year of Service
"Year of Service" means each portion of an Employee's Period of
Service that equals 365 days (whether or not consecutive).
<PAGE> 25
20
ARTICLE III
ELIGIBILITY FOR PARTICIPATION
3.1 Conditions of Eligibility
Any person who was a Participant in the Plan on
December 31, 1993 shall continue to be a Participant in the Plan as hereby
restated. Each other Employee shall become an Eligible Employee on the first
Enrollment Date following the date on which he meets the following
requirements: (a) he is a Covered Employee, (b) he has attained age twenty-one
(21) and is credited with at least one (1) Year of Service, and (c) he has
satisfied any additional eligibility requirements included in his Employer's
Instrument of Adoption.
3.2 Enrollment
Any Eligible Employee described in Section 3.1 may enroll as a
Participant in the Plan on the Enrollment Date on which he is initially
eligible or on any subsequent Enrollment Date by filing with the Plan
Administrator, within such period established by the Plan Administrator before
such Date, an enrollment form prescribed by the Plan Administrator which form
shall include (a) the effective date on which the Eligible Employee is to
become a Participant, (b) his election, commencing on or after such effective
date, to have Before-Tax Contributions and/or After-Tax Contributions made by
or for him to the Trust Fund, (c) his authorization, if any, to his Employer to
withhold from his Compensation, any designated Before-Tax Contributions and to
pay the same to the Trust Fund (his "Salary Reduction Agreement"), (d) his
authorization, if any, to his Employer to withhold from his Compensation any
designated After-Tax Contributions and to pay the same to the Trust, and (e)
his direction that Contributions made by
<PAGE> 26
21
or for him be invested in the Investment Funds as permitted by Section 7.5.
3.3 Duration of Participation
An Employee or former Employee shall remain a Participant so long as
(a) he meets the requirements of Section 3.1, or (b) a portion of the Trust
Fund is credited to his Account and held for his benefit by the Trustee.
However, a Participant who ceases to meet the requirements of Section 3.1, may
make no further After-Tax Contributions and may have no Before-Tax
Contributions or Matching Employer Contributions made for him until he again
becomes an Eligible Employee and he again enrolls as a contributing Participant
pursuant to Section 3.2. If an Eligible Employee ceases to be an Eligible
Employee and later again becomes an Eligible Employee, he may again, subject to
the foregoing limitations of this Section, participate in the Plan on the day
he so again becomes an Eligible Employee.
3.4 Participation Due to Administrative Error
Any Employee of an Employer who was allowed to participate in the Plan
through an administrative error but who is not a Covered Employee (as defined
in Section 2.16) shall be considered an Eligible Employee for purposes of his
initial participation in the Plan, but shall cease to be considered an Eligible
Employee (and, therefore, shall cease to meet the requirements of Section 3.1)
on the date such error is discovered. Notwithstanding the foregoing, this
Section shall only apply to an Employee who is not a Highly Compensated
Employee.
<PAGE> 27
22
ARTICLE IV
BEFORE-TAX AND AFTER-TAX CONTRIBUTIONS
4.1 Amount of Before-Tax and After-Tax Contributions
(a) Except as provided in Subsection (d) of this Section, upon
enrollment pursuant to Section 3.2, a Participant may agree pursuant to a
Salary Reduction Agreement to have his Employer make Before-Tax Contributions
to the Trust of up to ten percent (10%) of his Compensation (in 1/2%
increments) through equal pay period reductions.
(b) Upon enrollment pursuant to Section 3.2, a Participant may elect
to make After-Tax Contributions to the Trust of up to three and a half percent
(3 1/2%) of his Compensation (in 1/2% increments) through percentage payroll
deductions.
(c) Notwithstanding the foregoing, if a Participant's Before-Tax
Contributions and/or After-Tax Contributions must be reduced to comply with the
requirements of Section 4.7 or 4.8, as applicable, or the requirements of
applicable law, his Before-Tax Contributions and/or After-Tax Contributions as
so reduced will be the maximum percentages of his Compensation permitted by
such Section or law and the increment requirements listed above shall not
apply.
4.2 Maximum and Minimum Contributions
A Participant's Before-Tax Contributions and/or After-Tax
Contributions with respect to any pay period must equal at least one and
one-half percent (1 1/2%) of his Compensation and may not, in the aggregate,
exceed ten percent (10%) of his Compensation. The Committee shall have the
discretion to reduce or suspend the Before-Tax Contributions and/or to reduce,
suspend or increase After-Tax Contributions of any Employee to satisfy any of
the limits expressed in this Article.
<PAGE> 28
23
4.3 Payments to Trustee
Before-Tax Contributions and After-Tax Contributions that are made by
or for a Participant shall be transmitted by the Employers to the Trustee as
soon as practicable, but in no event later than thirty (30) days after the end
of the calendar month in which such Contributions would otherwise have been
paid to the Participant.
4.4 Changes in Contributions
The percentage or percentages designated by a Participant pursuant to
Section 4.1 shall continue in effect, notwithstanding any changes in the
Participant's Compensation. A Participant may, however, in accordance with the
percentages permitted by Sections 4.1 and 4.2, change the percentage of his
Before-Tax Contributions and/or his After-Tax Contributions effective as of the
first pay period of any calendar quarter upon prior written notice filed with
the Plan Administrator within such period established by the Plan
Administrator. Notwithstanding the foregoing, the Plan Administrator may,
pursuant to uniform nondiscriminatory procedures, increase a Participant's
After-Tax Contributions for the remainder of the Plan Year if such
Participant's Before-Tax Contributions are ceased as a result of the
application of Section 4.6.
4.5 Suspension and Resumption of Contributions
Upon prior written notice filed with the Plan Administrator, within
such period established by the Plan Administrator, a Participant may at any
time suspend his Before-Tax Contributions and/or After-Tax Contributions
effective with the start of the next payroll period following the expiration of
such period, provided such suspension must be made for not less than one (1)
calendar quarter. A Participant who has so suspended his
<PAGE> 29
24
Before-Tax Contributions and/or After-Tax Contributions may, upon prior written
notice filed with the Plan Administrator, within such period established by the
Plan Administrator, resume making such Contributions as of the first full pay
period following such period of suspension if he is an Eligible Employee on
such date.
4.6 Excess Deferrals
(a) Notwithstanding the foregoing provisions of this Article, a
Participant's Before-Tax Contributions for any taxable year of such Participant
shall not exceed the limitation in effect under Code Section 402(g). Except as
otherwise provided in this Section, a Participant's Before-Tax Contributions
for purposes of this Section shall include (i) any employer contribution made
under any qualified cash or deferred arrangement as defined in Code Section
401(k) to the extent not includible in gross income for the taxable year under
Code Section 402(a)(8) (determined without regard to Code Section 402(g)), (ii)
any employer contribution to the extent not includible in gross income for the
taxable year under Code Section 402(h)(1)(B) (determined without regard to Code
Section 402(g)) and (iii) any employer contribution to purchase an annuity
contract under Code Section 403(b) under a salary reduction agreement within
the meaning of Code Section 3121(a)(5)(D).
(b) In the event that a Participant's Before-Tax Contributions exceed
the amount described in Subsection (a) of this Section (hereinafter called
"excess deferrals"), such excess deferrals (and any income allocable thereto)
shall be distributed to the Participant by April 15 following the close of the
taxable year in which such excess deferrals occurred if (and only if), by April
15 of such taxable year the Participant (i) allocates the amount of such excess
deferrals among the plans under which the
<PAGE> 30
25
excess deferrals were made and (ii) notifies the Plan Administrator of the
portion allocated to this Plan.
(c) In the event that a Participant's Before-Tax Contributions under
this Plan exceed the amount described in Subsection (a) of this Section, or in
the event that a Participant's Before-Tax Contributions made under this Plan do
not exceed such amount but he allocates a portion of his excess deferrals to
his Before-Tax Contributions made to this Plan, Matching Employer
Contributions, if any, made with respect to such Before-Tax Contributions (and
any income allocable thereto) shall be applied to reduce subsequent Matching
Employer Contributions required under the Plan.
4.7 Excess Before-Tax Contributions
(a) Notwithstanding the provisions of this Article and Article V, for
any Plan Year,
(i) the actual deferral percentage (as defined in Subsection (b) of
this Section) for the group of Highly Compensated Eligible Employees (as
defined in Subsection (c) of this Section) for such Plan Year shall not
exceed the actual deferral percentage for all other Eligible Employees
for such Plan Year multiplied by 1.25, or
(ii) the excess of the actual deferral percentage for the group of
Highly Compensated Eligible Employees for such Plan Year over the actual
deferral percentage for all other Eligible Employees for such Plan Year
shall not exceed two (2) percentage points, and the actual deferral
percentage for the group of Highly Compensated Eligible Employees for
such Plan Year shall not exceed the actual deferral percentage for all
other Eligible Employees for such Plan Year multiplied by two (2).
<PAGE> 31
26
If two or more plans that include cash or deferred arrangements are considered
as one plan for purposes of Code Sections 401(a)(4) or 410(b), such
arrangements included in such plans shall be treated as one arrangement for the
purposes of this Subsection; and if any Highly Compensated Eligible Employee is
a participant under two or more cash or deferred arrangements of the Controlled
Group, all such arrangements shall be treated as one cash or deferred
arrangement for purposes of determining the deferral percentage with respect to
such Highly Compensated Eligible Employee.
(b) For the purposes of this Section, the actual deferral percentage
for a specified group of Eligible Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Eligible Employee in such
group) of (i) the amount of Before-Tax Contributions actually paid to the Trust
for each such Eligible Employee for such Plan Year (including any "excess
deferrals" described in Plan Section 4.6(b)) to (ii) the Eligible Employee's
compensation for such Plan Year. For the purposes of this Subsection, the term
"compensation" shall mean the sum of an Eligible Employee's compensation under
Section 5.6(c) and his Before-Tax Contributions (subject to the limitations
described in Section 2.12(b)).
In the case of a Highly Compensated Eligible Employee who is either a
5-percent owner (as defined in Code Section 416(i)(1)) or one of the ten (10)
most Highly Compensated Employees, the combined actual deferral ratio for the
family group (as such term is hereinafter defined), which shall be treated as
one Highly Compensated Eligible Employee, shall be determined by combining the
Before-Tax Contributions and compensation of all members of the family group
who are Eligible Employees. For purposes of this Subsection, the term "family
group" shall mean any Highly
<PAGE> 32
27
Compensated Eligible Employee described in the preceding sentence and such
Employee's Spouse and lineal ascendants or descendants and the spouses of such
lineal ascendants or descendants. For the purposes of determining "the actual
deferral percentage for all other Eligible Employees" as referred to in
Subsection (a) of this Section, the Before-Tax Contributions and compensation
of all members of the family group shall be disregarded.
(c) For the purposes of this Section, the term "Highly Compensated
Eligible Employee" for a particular Plan Year shall mean any Highly Compensated
Employee who is an Eligible Employee.
(d) In the event that excess contributions (as such term is
hereinafter defined) are made to the Trust for any Plan Year, then, prior to
March 15 of the following Plan Year, such excess contributions (and any income
allocable thereto) shall be distributed to the Highly Compensated Eligible
Employees on the basis of the respective portions of the excess contributions
attributable to each such Eligible Employee. For the purposes of this
Subsection, the term "excess contributions" shall mean, for any Plan Year, the
excess of (i) the aggregate amount of Before-Tax Contributions actually paid to
the Trust on behalf of Highly Compensated Eligible Employees for such Plan Year
over (ii) the maximum amount of such Before-Tax Contributions permitted for
such Plan Year under Subsection (a) of this Section, determined by reducing
Before-Tax Contributions made on behalf of Highly Compensated Eligible
Employees in order of the actual deferral percentages (as defined in Subsection
(b) of this Section) beginning with the highest of such percentages.
Notwithstanding the foregoing provisions of this Subsection, in the
case of a Highly Compensated Eligible Employee whose actual deferral ratio is
determined under the family
<PAGE> 33
28
aggregation rules set forth in Subsection (b) of this Section, the
determination and correction of the amount of excess contributions shall be
made by reducing the actual deferral ratio in accordance with the "leveling"
method described in Treasury Regulations Section 1.401(k)-1(f)(2) and
allocating the excess contributions for the family group among its members in
proportion to the Before-Tax Contributions of each member of the family group
that is combined to determine the actual deferral ratio.
(e) Matching Employer Contributions made with respect to a
Participant's excess contributions (and any income allocable thereto) shall be
applied to reduce subsequent Matching Employer Contributions required under the
Plan.
4.8 Excess Matching Employer and After-Tax Contributions
(a) Notwithstanding the foregoing provisions of this Article or the
provisions of Article V, for any Plan Year the contribution percentage (as
defined in Subsection (b) of this Section) for the group of Highly Compensated
Eligible Employees (as defined in Plan Section 4.7(c)) for such Plan Year shall
not exceed the greater of (i) one hundred twenty-five percent (125%) of the
contribution percentage for all other Eligible Employees, or (ii) the lesser of
two hundred percent (200%) of the contribution percentage for all other
Eligible Employees or the contribution percentage for all other Eligible
Employees plus two (2) percentage points. If two or more plans of the
Controlled Group to which matching employer contributions, employee after-tax
contributions or Before-Tax Contributions (as defined in Section 4.6(a)) are
made are treated as one plan for purposes of Code Section 410(b), such plans
shall be treated as one plan for purposes of this Subsection; and if a Highly
Compensated Eligible Employee participates in two or more plans of the
Controlled Group to which such contributions
<PAGE> 34
29
are made, all such contributions shall be aggregated for purposes of this
Subsection.
(b) For the purposes of this Section, the contribution percentage for
a specified group of Eligible Employees for a Plan Year shall be the average of
the ratios (calculated separately for each Eligible Employee in such group) of
(i) the sum of the Matching Employer Contributions and After-Tax Contributions
paid under the Plan by or on behalf of each such Eligible Employee for such
Plan Year to (ii) the Eligible Employee's compensation (as defined in Section
4.7(b)) for such Plan Year.
In the case of a Highly Compensated Eligible Employee who is either a
5-percent owner (as defined in Code Section 416(i)(1)) or one of the ten (10)
most Highly Compensated Employees, the combined contribution ratio for the
family group (as such term is defined in Section 4.7(b)), which shall be
treated as one Highly Compensated Employee, shall be determined by combining
the Matching Employer Contributions and compensation of all members of the
family group who are Eligible Employees. For the purposes of determining "the
contribution percentage for all other Eligible Employees" as referred to in
Subsection (a) of this Section, the compensation of all members of the family
group shall be disregarded.
(c) In the event that excess aggregate contributions (as such term is
hereinafter defined) are made to the Trust for any Plan Year, then, prior to
March 15 of the following Plan Year, such excess aggregate contributions (and
any income allocable thereto) shall be forfeited (if forfeitable) and applied
as provided in Section 5.4 or (if not forfeitable) shall be distributed to the
Highly Compensated Eligible Employees on the basis of the respective portions
of the excess contributions attributable to
<PAGE> 35
30
each such Eligible Employee. For the purposes of this Subsection, the term
"excess aggregate contributions" shall mean, for any Plan Year, the excess of
(i) the aggregate amount of the Matching Employer Contributions and After-Tax
Contributions actually paid to the Trust by or on behalf of Highly Compensated
Eligible Employees for such Plan Year over (ii) the maximum amount of such
Matching Employer Contributions and After-Tax Contributions permitted for such
Plan Year under Subsection (a) of this Section, determined by reducing Matching
Employer Contributions and After-Tax Contributions made by or on behalf of
Highly Compensated Eligible Employees in order of their contribution
percentages (as defined in Subsection (b) of this Section) beginning with the
highest of such percentages.
Notwithstanding the foregoing provisions of this Subsection, in the
case of a Highly Compensated Eligible Employee whose contribution percentage is
determined under the family aggregation rules set forth in Subsection (b) of
this Section, the determination and correction of the amount of excess
aggregate contributions shall be made by reducing the contribution ratio in
accordance with the "leveling" method described in Treasury Regulation Section
1.401(k)-1(f)(2) and allocating the excess aggregate contributions for the
family group among its members in proportion to the Matching Employer
Contributions and After-Tax Contributions of each member of the family group
that is combined to determine the contribution ratio.
(d) The determination of excess aggregate contributions under this
Section shall be made after (i) first determining the excess deferrals under
Section 4.6 and (ii) then determining the excess contributions under Section
4.7.
<PAGE> 36
31
4.9 Multiple Use of the Alternative Limitation
(a) Notwithstanding the foregoing provisions of this Article or the
provisions of Article V, if, after the application of Sections 4.6, 4.7 and
4.8, the sum of the actual deferral percentage and the contribution percentage
for the group of Highly Compensated Eligible Employees (as defined in Section
4.7(c)) exceeds the aggregate limit (as defined in Subsection (b) of this
Section), then the contributions made for such Plan Year for Highly Compensated
Eligible Employees will be reduced so that the aggregate limit is not exceeded.
Such reductions shall be made first in After-Tax Contributions (but only to the
extent that they are not matched by Matching Employer Contributions) then in
Before-Tax Contributions (but only to the extent that they are not matched by
Matching Employer Contributions) and then in Matching Employer Contributions.
Reductions in contributions shall be made in the manner provided in Section 4.7
or 4.8, as applicable. The amount by which each such Highly Compensated
Eligible Employee's contributions are reduced shall be treated as an excess
contribution or an excess aggregate contribution under Section 4.7 or 4.8, as
applicable. For the purposes of this Section, the actual deferral percentage
and contribution percentage of the Highly Compensated Eligible Employees are
determined after any reductions required to meet those tests under Sections 4.7
and 4.8. Notwithstanding the foregoing provisions of this Section, no
reduction shall be required by this Subsection if either (i) the actual
deferral percentage of the Highly Compensated Eligible Employees does not
exceed 1.25 multiplied by the actual deferral percentage of the non-Highly
Compensated Eligible Employees, or (ii) the contribution percentage of the
Highly Compensated Eligible
<PAGE> 37
32
Employees does not exceed 1.25 multiplied by the contribution percentage of the
non-Highly Compensated Eligible Employees.
(b) For purposes of this Section, the term "aggregate limit" means
the sum of (i) one hundred twenty-five percent (125%) of the greater of (A) the
actual deferral percentage of the non-Highly Compensated Eligible Employees for
the Plan Year, or (B) the contribution percentage of the non-Highly Compensated
Eligible Employees for the Plan Year, and (ii) the lesser of (A) two hundred
percent (200%) of, or (B) two (2) plus the lesser of such actual deferral
percentage or contribution percentage. If it would result in a larger
aggregate limit, the word "lesser" is substituted for the word "greater" in
part (i) of this Subsection, and the word "greater" is substituted for the word
"lesser" in part (ii)(B) of this Subsection.
4.10 Monitoring Procedures
(a) In order to ensure that at least one of the actual deferral
percentages specified in Section 4.7(a) and at least one of the contribution
percentages specified in Section 4.8(a) and the aggregate limit specified in
Section 4.9(b) are satisfied for each Plan Year, the Committee shall monitor
(or cause to be monitored) the amount of Before-Tax Contributions, After-Tax
Contributions and Matching Employer Contributions being made to the Plan by or
for each Eligible Employee during each Plan Year. In the event that the
Committee determines that neither of such actual deferral percentages, neither
of such contribution percentages or such aggregate limit will be satisfied for
a Plan Year, and if the Committee in its sole discretion determines that it is
necessary or desirable, the Before-Tax Contributions, After-Tax Contributions
and/or the Matching Employer Contributions made thereafter by or for each
Highly Compensated Eligible Employee (as defined in
<PAGE> 38
33
Section 4.7(c)) may be reduced (pursuant to non-discriminatory rules adopted by
the Committee) to the extent necessary to decrease the actual deferral
percentage and/or the contribution percentage for Highly Compensated Eligible
Employees for such Plan Year to a level that satisfies either of the actual
deferral percentages, either of the contribution percentages and/or the
aggregate limit. In the case of Section 4.8, such reductions shall be made
first in the After-Tax Contributions, if any, to be made by the Highly
Compensated Eligible Employees.
(b) In order to ensure that excess deferrals (as such term is defined
in Section 4.6(b)) shall not be made to the Plan for any taxable year for any
Participant, the Committee shall monitor (or cause to be monitored) the amount
of Before-Tax Contributions being made to the Plan for each Participant during
each taxable year and may take such action (pursuant to non-discriminatory
rules adopted by the Committee) to prevent Before-Tax Contributions made for
any Participant under the Plan for any taxable year from exceeding the maximum
amount applicable under Section 4.6(a).
(c) The actions permitted by this Section are in addition to, and not
in lieu of, any other actions that may be taken pursuant to other Sections of
the Plan or that may be permitted by applicable law or regulation in order to
ensure that the limitations described in Sections 4.6 through 4.8 are met.
4.11 Testing Procedures
In applying the limitations set forth in Sections 4.7, 4.8 and 4.9,
the Committee may, at its option, utilize such testing procedures as may be
permitted under Code Sections 401(a)(4), 401(k), 401(m) or 410(b), including,
without limitation, (a) aggregation of the Plan with one or more other
qualified plans of the Controlled Group, (b) restructuring of the Plan or any
other
<PAGE> 39
34
qualified plan of the Controlled Group into one or more component plans, (c)
inclusion of qualified matching contributions, qualified nonelective
contributions or elective deferrals described in, and meeting the requirements
of, Treasury Regulations under Code Sections 401(k) and 401(m) to any other
qualified plan of the Controlled Group in applying the limitations set forth in
Sections 4.7, 4.8 and 4.9, or (d) any permissible combination thereof.
<PAGE> 40
35
ARTICLE V
MATCHING EMPLOYER CONTRIBUTIONS
5.1 Amount of Matching Employer Contributions
Subject to the provisions of the Plan, each Employer shall, as and to
the extent it lawfully may, contribute to the Trust on account of each Plan
Year an amount equal to one hundred percent (100%) of the Before-Tax and
After-Tax Contributions described in Section 5.2. The Company may provide for
Matching Employer Contributions to be made in whole or partial payments, at any
time during such Year or within the time following the close of such Year that
is prescribed by law for filing its federal income tax return (including
extensions thereof). Notwithstanding any provision of the Plan to the
contrary, in no event shall an Employee's Matching Employer Contributions on
account of any Plan Year exceed the maximum amount deductible for such Year for
purposes of federal taxes on income under applicable provisions of the Code,
and such Contributions shall be made on the condition that they are deductible
under applicable provisions of the Code.
5.2 Allocation of Matching Employer Contributions
(a) Each Participant who is a Covered Employee of a particular
Employer shall receive an allocation to his Account of that Employer's Matching
Employer Contributions with respect to a Plan Year, which allocation shall be
made only with respect to the Participant's Before-Tax Contributions and
After-Tax Contributions that:
(i) do not exceed, in the aggregate, three and one-half percent (3
1/2%) of his Compensation while an active Covered Employee during that
Plan Year;
(ii) are made after the initial pay period in which he completes a
Period of Service of eighteen (18) months and are
<PAGE> 41
36
earned prior to his termination of employment with his Employer; and
(iii), if made prior to the Plan Year in which the Participant attains
age fifty-six (56), are invested only in the Company Stock Fund.
For purposes of this Subsection, Matching Employer Contributions shall be
applied first to a Participant's After-Tax Contributions and then, if
applicable, to a Participant's Before-Tax Contributions.
(b) As of each Valuation Date, Matching Employer Contributions
(including earnings and appreciation thereon) that have been made pursuant to
Section 5.1 for pay periods ending on or prior to such Valuation Date shall be
allocated to the Accounts of Participants as provided in Subsection (a) of this
Section.
5.3 Investment of Matching Employer Contributions
All Matching Employer Contributions shall be invested by the Trustee
in the Company Stock Fund.
5.4 Reduction of Matching Employer Contributions
The amount of Matching Employer Contributions determined to be payable
to the Trust shall be reduced by amounts that have been forfeited or held in a
suspense account in accordance with the terms of the Plan.
5.5 Return of Contributions to Employers
(a) Except as specifically provided in this Section or in the other
Sections of the Plan, the Trust Fund shall never inure to the benefit of the
Employers and shall be held for the exclusive purposes of providing benefits to
Employees, Participants and their Beneficiaries and defraying reasonable
expenses of administering the Plan.
<PAGE> 42
37
(b) If a Matching Employer Contribution to the Trust is made by an
Employer by a mistake of fact, the excess of the amount contributed over the
amount that would have been contributed had there not occurred a mistake of
fact shall be returned to such Employer within one (1) year after the payment
of such Contribution. If a Matching Employer Contribution to the Trust is made
by an Employer (all of which Contributions are conditioned upon their
deductibility under Code Section 404 (or any successor thereto) pursuant to
Section 5.1), and if such Contribution is not fully deductible under such Code
Section, such Contribution, to the extent the deduction therefor is disallowed,
shall be returned to the Employer within one (1) year after the disallowance of
the deduction. Earnings attributable to Matching Employer Contributions
returned to an Employer pursuant to this Subsection may not be returned, but
losses attributable thereto shall reduce the amount to be returned; provided,
however, that if the withdrawal of the amount attributable to the mistaken or
non-deductible Contribution would cause the balance of the Account of any
Participant to be reduced to less than the balance that would have been in such
Account had the mistaken or non-deductible amount not have been contributed,
the amount to be returned to the Employer pursuant to this Section shall be
limited so as to avoid such reduction.
5.6 Provisions Pursuant to Code Section 415(c)
(a) Notwithstanding any other provision of the Plan, the annual
additions (as defined in Subsection (b) of this Section) to a Participant's
Account in any Plan Year (which shall be the limitation year) shall in no event
exceed the lesser of thirty thousand dollars ($30,000) (or, if greater,
one-fourth ( 1/4) of the
<PAGE> 43
38
dollar limitation in effect under Code Section 415(b)(1)(A)), or twenty-five
percent (25%) of his compensation for such Plan Year.
(b) For purposes of this Section, the term "annual additions" means
the sum for any Plan Year of:
(i) all contributions made by the Controlled Group that are allocated
to the Participant's account pursuant to a defined contribution plan
maintained by a Controlled Group Member,
(ii) all employee contributions made by the Participant to a defined
contribution plan maintained by a Controlled Group Member,
(iii) all forfeitures allocated to the Participant's account pursuant
to a defined contribution plan maintained by a Controlled Group Member,
(iv) any amount allocated to an individual medical benefit account
(as defined in Code Section 415(c)(2)) of the Participant that is part of
a pension or annuity plan, and
(v) any amount attributable to medical benefits allocated to the
Participant's account established under Code Section 419A(d)(1) if the
Participant is or was a key-employee (as such term is defined in Code
Section 416(i)) during such Plan Year or any preceding Plan Year.
(c) For the purposes of this Section, the term "compensation" shall
mean compensation within the meaning of Code Section 415(c)(3) and regulations
thereunder.
(d) If a Participant's annual additions would exceed the limitations
of Subsection (a) of this Section for a Plan Year as a result of the allocation
of forfeitures, a reasonable error in estimating the Participant's
Compensation, or a reasonable error in determining the amount of Before-Tax
Contributions that may be made
<PAGE> 44
39
with respect to the Participant under the limitations of this Section (or other
facts and circumstances that the Commissioner of Internal Revenue finds justify
application of the following rules of this Subsection), After-Tax Contributions
(if any) made by the Participant for such Plan Year that constitute part of the
annual addition (together with any gains attributable thereto) shall be
returned to the Participant to the extent necessary to effectuate such
reduction. If the return of all such After-Tax Contributions is not sufficient
to effectuate such reduction, Before-Tax Contributions (if any) made by the
Participant for such Plan Year that constitute part of the annual addition
(together with any gains attributable thereto) shall be returned to the
Participant to the extent necessary to effectuate such reduction. If the
return of all such After-Tax Contributions and Before-Tax Contributions is not
sufficient to effectuate such reduction, Contributions allocable to such
Participant's Account for such year shall, to the extent necessary to
effectuate such reduction, be allocated among the remaining Participants in
accordance with Section 5.2(b) exclusive of those Participants whose Accounts
have received the maximum permitted by law for tax deduction purposes.
In the event that the provisions of this Section make it impossible to
allocate any Contributions in accordance with Section 5.2(b), such
Contributions shall be allocated to a suspense account. Amounts allocated to
the suspense account shall be reallocated to Participant Accounts in accordance
with Section 5.2(b) as of the first Valuation Date upon which it is possible to
do so without violating the limitations of this Section until the suspense
account is exhausted. Investment gains and losses and other income shall not
be allocated to the suspense account during
<PAGE> 45
40
the period such suspense account is required to be maintained pursuant to this
Subsection.
In the event of the termination of this Plan while there exists a
balance in the suspense account, to the extent such balance cannot be allocated
to Participant Accounts without violating the limitations of this Section, such
balance shall revert to the applicable Employer.
5.7 Provision Pursuant to Code Section 415(e)
(a) Notwithstanding any other provision of the Plan, if an individual
is a participant in both a defined benefit plan and a defined contribution plan
maintained by the Controlled Group, the sum of the defined benefit plan
fraction and the defined contribution plan fraction for any Plan Year may not
exceed 1.00. If a reduction is necessary to avoid exceeding the limitation set
forth in this Section, the affected participant's benefits under the defined
benefit plan shall be reduced to the extent necessary to avoid exceeding such
limitation. For purposes hereof,
(i) The defined benefit plan fraction for any Plan Year is a
fraction, (A) the numerator of which is the projected annual benefit of
the participant under the plan (determined as of the close of the Year),
and (B) the denominator of which is the lesser of (I) the product of
1.25, multiplied by the dollar limitation in effect under Code Section
415(b)(1)(A) for such Year, or (II) the product of 1.4, multiplied by the
amount which may be taken into account under Code Section 415(b)(1)(B)
with respect to such participant under the plan for such Year; and
(ii) The defined contribution plan fraction for any Plan Year is a
fraction, (A) the numerator of which is the sum of the annual additions
to the participant's account as of the
<PAGE> 46
41
close of the Year and for all prior Years, and (B) the denominator of
which is the sum of the lesser of the following amounts determined for
such Year and for each prior year of service with the Controlled Group
(regardless of whether a plan is in existence during such Year):
(I) the product of 1.25, multiplied by the dollar limitation in
effect under Code Section 415(c)(1)(A) for such Year and each such prior
year of service, or
(II) the product of 1.4, multiplied by the amount which may be taken
into account under Code Section 415(c)(1)(B) with respect to such
participant under such plan for such Year and each prior year of service.
(b) A participant's projected annual benefit for purposes of
Subsection (a) of this Section is equal to the annual benefit to which he would
be entitled under the terms of the defined benefit plan, assuming he will
continue employment until reaching normal retirement age as determined under
the terms of such plan (or current age, if later), his compensation for the
Plan Year under consideration will remain the same until the date he attains
such age, and all other relevant factors used to determine benefits under the
plan for the Plan Year under consideration will remain constant for all future
Plan Years.
5.8 Definitions
(a) For purposes of applying the limitations set forth in Sections
5.6 and 5.7, all qualified defined contribution plans (whether or not
terminated) ever maintained by one or more Controlled Group Members will be
treated as one defined contribution plan, and all qualified defined benefit
plans (whether or not terminated) ever maintained by one or more Controlled
Group Members will be treated as one defined benefit plan.
<PAGE> 47
42
(b) For purposes of applying the limitations set forth in Section
5.6, allocations under the defined contribution plans that must be treated as
though they constituted a single defined contribution plan under Subsection (a)
of this Section shall be made in the following order:
(i) contributions under the Roadway Services, Inc. Employee Stock
Ownership Plan and Trust (Amended and Restated);
(ii) forfeitures reallocated under Section 4.8 of the Roadway
Services, Inc. Stock Bonus Plan and Trust (Amended and Restated);
(iii) contributions under the Roadway Services, Inc. Stock Bonus Plan
and Trust (Amended and Restated);
(iv) Before-Tax Contributions under the Plan;
(v) Matching Employer Contributions under the Plan; and
(vi) After-Tax Contributions under the Plan.
5.9 Funding Policy
The Committee, as a Named Fiduciary, shall (a) determine, establish
and carry out a funding policy and method consistent with the objectives of the
Plan and the requirements of applicable law, and (b) furnish from time to time
to the person responsible for the investment of the assets held in the Trust
information such Committee may have relative to the Plan's probable short-term
and long-term financial needs, including any probable need for short-term
liquidity, and such Committee's opinion (if any) with respect thereto.
5.10 No Duty to Enforce Payment
Neither the Trustee nor the Committee nor any other person shall be
under any duty to inquire into the correctness of the amount contributed and
paid over to the Trustee hereunder, nor shall the Trustee or the Committee or
any other person be under any
<PAGE> 48
43
duty to enforce the payment of the Contributions to be made hereunder by any
Employer.
<PAGE> 49
44
ARTICLE VI
VESTING
6.1 Immediate Vesting
All amounts allocated to a Participant's Account shall be fully vested
at all times. Notwithstanding the Participant's nonforfeitable right
hereunder, no distribution with respect to a Participant or Beneficiary shall
be made prior to the time authorized under Article VIII.
<PAGE> 50
45
ARTICLE VII
INVESTMENTS
7.1 Investment Funds
(a) The Trust Fund will be divided into the Company Stock Fund and
such additional Investment Funds as the Company may in its discretion select or
establish (which may be more fully described in Exhibit B), and Before-Tax
Contributions, After-Tax Contributions and Matching Employer Contributions will
be invested in the Investment Funds as provided in Section 7.5. Subject to the
provisions of Article X and to other applicable provisions of the Plan, the
Trustee shall hold, manage, administer, value, invest, reinvest, account for
and otherwise deal with each Investment Fund separately. The Trustee shall
invest and reinvest the principal and income of each such Fund and will keep
each Fund invested, without distinction between principal and income, as
required under the terms of the Plan.
(b) Dividends, interest and other distributions received by the
Trustee in respect of each Investment Fund shall be reinvested in the same
Investment Fund.
(c) The Trustee, in its sole discretion, may keep such portion of
each Investment Fund invested in interest-bearing cash or cash equivalents
either pending the selection and purchase of suitable investments under such
Fund or as the Trustee may from time to time deem to be necessary or advisable
to maintain sufficient liquidity to meet the obligations of the Plan or for
other reasons.
(d) The Committee shall adopt, and may amend from time to time,
general rules of uniform application that shall provide for the administration
of each Investment Fund, including, but not limited to, rules providing for (i)
the method of valuing each such
<PAGE> 51
46
Investment Fund as of each applicable Valuation Date, (ii) procedures pursuant
to which a Participant may elect to have all or a designated part of his
Account invested in any Investment Fund (if more than one such Investment Fund
is established), (iii) the method of changing any such election by either the
Participant or his Death Beneficiary and the frequency with which such
elections may be made, (iv) the Investment Fund in which a Participant's
Account shall be invested in the absence of an effective election, and (v) any
other matters that the Committee deems necessary or advisable in the
administration of any Investment Fund.
7.2 Account; Sub-Account
The Plan Administrator shall establish and maintain, or cause to be
established and maintained, an Account for each Participant, which Account will
reflect, pursuant to Sub-Accounts established and maintained thereunder, the
amount, if any, of the Participant's (a) Before-Tax Contributions, (b)
After-Tax Contributions and (c) Matching Employer Contributions. The Plan
Administrator shall also maintain, or cause to be maintained, separate records
that will show (i) the portion of each such Sub-Account invested in each
Investment Fund and (ii) the amount of Contributions thereto, payments and
withdrawals therefrom and the amount of income and losses attributable thereto.
The interest of each Participant in the Trust Fund at any time shall consist of
his Account balance (as determined pursuant to Section 7.4) as of the last
preceding Valuation Date plus any amounts credited to his Account and minus
debits to such Account since that Date.
7.3 Reports
The Plan Administrator shall cause reports to be made quarterly to
each Participant and to the Death Beneficiary of each deceased Participant,
indicating the value of the Participant's
<PAGE> 52
47
Account as of the last Valuation Date within the immediately preceding calendar
quarter. In addition, the Plan Administrator shall cause such a report to be
made to each Participant who (a) requests such a report in writing (provided
that only one report shall be furnished to a Participant upon such a request in
any twelve (12) month period) or (b) has a Termination of Employment.
7.4 Valuation of Investment Funds
(a) The balance of each Participant's Account shall be expressed in
terms of the number of shares or investment units, as applicable, including
fractional shares or units, that have been allocated pursuant to this Section
to each Investment Fund in such Participant's Account.
(b) The Trustee will, as of the close of business on each Valuation
Date, determine or cause to be determined the value of each Investment Fund.
Each such valuation will be made on the basis of the net income or loss to each
such Investment Fund between the current Valuation Date and the last preceding
Valuation Date. The net income or loss of an Investment Fund shall include
interest income, dividends and other income of such Fund and shall be reduced
by any expenses paid (including the fees and expenses of the Trustee and
Investment Manager(s), if any, that are to be charged to such Investment Fund
in accordance with the terms of the Plan) and other losses of such Fund. For
this purpose, the transfer of funds to or from an Investment Fund pursuant to
Section 7.6, Before-Tax Contributions, After-Tax Contributions and Matching
Employer Contributions allocated to an Investment Fund, and payments,
distributions and withdrawals from an Investment Fund to provide benefits under
the Plan for Participants or Beneficiaries will not be deemed to be income or
losses of the Investment Fund. A similar valuation will be made at any other
time upon the written
<PAGE> 53
48
direction of the Committee to the Trustee or when the Trustee deems it
appropriate to make such a valuation.
(c) As of each Valuation Date, the net income or loss of each
Investment Fund determined pursuant to Subsection (b) of this Section shall be
allocated to the Accounts of Participants in such Investment Fund in proportion
to the ratio of the number of shares or units in such Fund held in such Account
at any time since the immediately prior Valuation Date to the total shares or
units in such Fund at any time since the immediately prior Valuation Date.
(d) Except as provided in Section 7.5 or as may otherwise be provided
by the Committee, Before-Tax Contributions, After- Tax Contributions and
Matching Employer Contributions shall be credited to each Participant's Account
and allocated in accordance with the investment option chosen by such
Participant to the Investment Funds as of the first Valuation Date on or after
such Contribution is made.
(e) Notwithstanding the foregoing, the Committee may, in accordance
with the applicable requirements of the Code and ERISA, (i) adopt such
accounting procedures as it considers appropriate and equitable to establish a
proportionate crediting of net income or loss of an Investment Fund and of
Contributions made to an Investment Fund as of each Valuation Date and (ii)
adopt such valuation procedures as it considers appropriate and equitable to
determine the value of the shares or units, as applicable, of an Investment
Fund that are necessary to effectuate the transactions contemplated by the
Plan.
7.5 Investment of Contributions
(a) All Matching Employer Contributions shall be invested in the
Company Stock Fund.
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49
(b) Each Participant may, by written direction to the Plan
Administrator, direct that Before-Tax Contributions and After- Tax
Contributions made by or for him be invested in one or more Investment Funds
subject to the following limitations
(i) a Participant may, after the Plan Year in which he attains age
fifty-five (55), direct the investment of all or a portion of his
Before-Tax and After-Tax Contributions;
(ii) a Participant may, regardless of his age, direct the investment
of that portion of his Before-Tax Contributions that have not been used
in determining the allocation of Matching Employer Contributions to his
Account pursuant to Section 5.2.
(c) An investment direction by a Participant shall remain in effect
and be applicable to all subsequent Before-Tax Contributions and After-Tax
Contributions, as applicable, made by or on behalf of the Participant unless
and until an investment change is made by him and becomes effective pursuant to
Section 7.6.
7.6 Change of Investments
(a) Each Participant who is eligible to direct the investment of all
or a portion of his Before-Tax and After-Tax Contributions pursuant to Section
7.5(b) may, by written direction to the Plan Administrator, change his
investment direction with respect to such future Contributions and/or may
direct that all or a portion of his Account that is attributable to such prior
Contributions (including earnings and appreciation thereon) be transferred from
one Investment Fund to another Investment Fund.
(b) Notwithstanding the limitations of Section 7.5, any Participant
entitled to a distribution of his Account pursuant to Article VIII may, by
written direction to the Plan Administrator, irrevocably direct that any
portion of his Account not invested in
<PAGE> 55
50
the Company Stock Fund be transferred to the Company Stock Fund prior to the
distribution of his Account.
7.7 Investment Direction and Change Procedures-Future
Contributions
(a) Any investment direction permitted by Section 7.5(b) or change of
investments for future Contributions permitted by Section 7.6 shall be made by
a Participant by providing written direction to the Plan Administrator (on a
form provided by the Plan Administrator) which shall specify the portion of the
Contributions (in whole or half percentages of Compensation up to the amount
agreed to be contributed by the Participant, not exceeding ten percent (10%))
to be invested in each of the Investment Funds.
(b) Such written directions received and acknowledged by the Plan
Administrator, within such period established by the Plan Administrator prior
to the first day of any January, April, July or October, shall be effected
during such month. Any such written direction not effected in any month
described in this Subsection because it was not timely received or acknowledged
with respect to such month shall be effected during the next succeeding
January, April, July or October, as applicable.
7.8 Investment Direction and Change Procedures-Prior Contributions
(a) Any change of investments for prior Contributions or transfers to
the Company Stock Fund permitted by Section 7.6 shall be made by a Participant
by providing written direction to the Plan Administrator (on a form provided by
the Plan Administrator) which shall specify the portion of the Investment Fund
(in units or shares, as applicable) to be transferred and the Investment
Fund(s) into which it is to be transferred.
(b) Such written directions received and acknowledged by the Plan
Administrator, within such period established by the Plan
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51
Administrator prior to the first day of any February, May, August, or November,
shall be effected during such month, based upon the number of shares or units
in the Account (or applicable portion thereof) as of the end of the immediately
preceding calendar quarter or such other date as may be required by law. Any
such written direction not effected in any month described in this Subsection
because it was not timely received or acknowledged with respect to such month
shall be effected during the next succeeding February, May, August, or
November, as applicable.
(c) A Participant who has made a direction pursuant to this Section
may revoke such direction at least two (2) business days prior to the first day
of the month for which such direction would become effective. Such revocation
shall be made pursuant to procedures established by the Plan Administrator.
7.9 Directions to the Trustee
The Plan Administrator shall give appropriate and timely directions to
the Trustee in order to permit the Trustee to give effect to the investment
choice and investment change elections made under Sections 7.5 and 7.6 and to
provide funds for distributions pursuant to Article VIII.
7.10 Voting of Allocated Company Stock
Each Participant shall be entitled to instruct the Trustee as to the
voting of any full or partial shares of Company Stock allocated to his Account
as of the applicable record date. Prior to such voting, the Participant shall
receive a copy of the proxy solicitation materials and a blank form to instruct
confidentially the Trustee how to vote the shares of Company Stock allocated to
his Account as of the applicable record date. Upon receipt of such
instructions, the Trustee shall vote the shares (or, as applicable, exercise
any dissenter's rights) as instructed. The Trustee shall
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52
vote all other Company Stock in its possession (including shares for which it
does not receive instruction from Participants) in accordance with Section
9.4(b).
7.11 Tender of Allocated Company Stock
Each Participant shall be entitled to instruct the Trustee as to the
tendering of any full or partial shares of Company Stock allocated to his
Account. Prior to such tendering, the Participant shall receive a copy of the
material relating to such tender decision and a blank form to confidentially
instruct the Trustee whether to tender the shares of Company Stock allocated to
his Account. Upon receipt of such instructions, the Trustee shall act with
respect to such shares as instructed. The Trustee shall decide whether or not
to tender all other Company Stock in its possession (including shares for which
it does not receive instruction from Participants) in accordance with Section
9.4(b).
<PAGE> 58
53
ARTICLE VIII
DISTRIBUTIONS AND WITHDRAWALS
8.1 Distributions Only As Provided
(a) A Participant's Account shall only be distributable as provided
in this Article. A Participant or Death Beneficiary who is eligible to receive
a distribution or withdrawal under the Plan shall obtain a blank application
for that purpose from the Plan Administrator and file with such Plan
Administrator his application in writing on such form, furnishing such
information as the Committee may reasonably require, including any authority in
writing that the Committee may request authorizing it to obtain pertinent
information, certificates, transcripts and/or other records from any public
office. No application for a distribution pursuant to Section 8.2 or 8.3 may
be made prior to the Participant's Termination of Employment.
(b) The Plan Administrator shall provide a Participant who has
requested a distribution pursuant to Section 8.2(a) or 8.10 or a withdrawal
pursuant to Section 8.6 or 8.8 with a general description of the optional forms
of benefit available under the Plan and the right to defer receipt of such
distribution or withdrawal within the period provided in Section 8.11(b)
(unless such period is waived as permitted in Section 8.11(b)).
8.2 Distributions upon Termination of Employment (Other than
Death)
(a) A Participant shall be eligible to receive distribution of his
Account in a single lump sum payment upon his Termination of Employment (other
than by reason of death).
(b) Distributions pursuant to this Section shall be paid to a
Participant as soon as practicable after the Participant has filed an
application with the Plan Administrator pursuant to
<PAGE> 59
54
Section 8.1, but in no event before the end of the second month following the
month of the Participant's Termination of Employment.
(c) Notwithstanding the provisions of Subsection (b) of this Section,
(i) if the value of the Account of a Participant who is eligible for a
distribution under Subsection (a) of this Section does not exceed $3,500 (and
never exceeded $3,500 at the time of any previous withdrawal or distribution),
such Account shall be paid to him in a lump sum payment after such Termination
of Employment and (ii) if distribution of the Account of a Participant who has
a Termination of Employment has not been made solely because the Participant
has not filed his application pursuant to Section 8.1, his Account shall be
paid to him no later than the date provided in Section 8.5(b)(i).
(d) If a Participant who has a Termination of Employment should again
become an Employee before completion of the distribution of his Account, such
distribution shall cease until the Participant again has a Termination of
Employment.
8.3 Distribution upon Death
(a) In the case of the death of a Participant, the Participant's
Death Beneficiary shall be eligible to receive a distribution of the
Participant's Account in a single lump sum payment. If there is more than one
Death Beneficiary, the Participant's Account shall be divided in equal shares
for each such Death Beneficiary, unless the Participant has provided otherwise.
(b) Distributions pursuant to this Section shall be paid to a Death
Beneficiary as soon as practicable after the Death Beneficiary has filed an
application with the Plan Administrator pursuant to Section 8.1, but in no
event before the end of the second month following the month of the
Participant's death.
<PAGE> 60
55
(c) Notwithstanding the provisions of Subsection (b) of this Section,
(i) if the value of the Account of a Participant who died does not exceed
$3,500 (and never exceeded $3,500 at the time of any previous withdrawal or
distribution), such Account shall be paid to his Death Beneficiary in a lump
sum payment after the date of death and (ii) if distribution of the Account of
a Participant who died has not been made solely because the Death Beneficiary
has not filed his application pursuant to Section 8.1, such Account shall be
paid to the Death Beneficiary no later than the date provided in Section
8.5(b)(ii).
(d) In the case of the death of a Participant, the Committee may
require such proper proof of death and such evidence of the right of any person
to receive a distribution from the Account of a deceased Participant as the
Committee may deem desirable. The Committee's determination of death and of
the right of any person to receive payment shall be conclusive.
8.4 Form and Valuation of Distribution
(a) The distribution of a Participant's Account (or portion thereof)
pursuant to this Article shall be as follows:
(i) The portion of such Account that is invested in the Company Stock
Fund shall be distributed by transfer of whole shares of Company Stock
allocated to such Account, cash in lieu of any fractional share of
Company Stock and cash for any uninvested dividends allocable to such
Participant. The value of such Company Stock shall be the value
determined as of the immediately preceding Valuation Date or such other
date as may be required by law.
(ii) The portion of the Participant's Account that is invested in any
of the Investment Funds other than the Company
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56
Stock Fund shall, at the Participant's (or, if applicable, the Death
Beneficiary's) election, be distributed in cash or, to the extent
provided below, in kind. To effect a distribution in kind, the Trustee
shall determine the portion of the Participant's Account that is
distributable in whole shares or investment units, which the Trustee
shall distribute in kind. The portion of the Participant's Account that
is not distributable in whole shares or investment units (as determined
by the Trustee) and the portion that is attributable to fractional shares
or investment units shall be distributed in cash.
The value of the portion of the Participant's Account distributable
pursuant to this Paragraph shall be the value determined as of the
immediately preceding Valuation Date or such other date as may be
required by law.
(iii) The portion of the Participant's Account that is attributable
to Contributions that have not yet been invested in any Investment Fund
shall be distributed in cash. The value of such Contributions shall be
the pro-rata value of any applicable investment or account in which such
Contributions were held as of the immediately preceding Valuation Date or
such other date required by law.
(b) Any Participant who is entitled to a distribution of his Account
pursuant to this Article may, by written direction to the Plan Administrator,
irrevocably elect to have any portion of his Account not invested in the
Company Stock Fund transferred to the Company Stock Fund before such
distribution is made.
(c) The Plan Administrator may postpone the distribution to a
Participant to allow an election pursuant to Subsection (b) of this Section to
take effect.
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8.5 Latest Time of Distributions
(a) The distribution of a Participant's Account shall begin as
provided in the preceding Sections of this Article, but (subject to the consent
requirements of Section 8.1) in no event later than the sixtieth (60th) day
after the close of the Plan Year in which the latest of the following events
occur:
(i) the date the Participant attains age sixty-five (65);
(ii) the tenth (10th) anniversary of the year in which the
Participant commenced participation in the Plan; or
(iii) the date of the Participant's Termination of Employment.
(b)(i) Notwithstanding any other provision of the Plan, to the extent
required under Code Section 401(a)(9), the entire interest of each
Participant under the Plan shall be distributed to him in a lump sum
payment not later than April 1 of the calendar year following the
calendar year in which he attains age seventy and one-half (70 1/2).
(ii) If a Participant dies before the distribution of his interest
under the Plan has begun, the entire interest of the Participant shall be
distributed to his Death Beneficiary by the December 31 of the year in
which occurs the fifth (5th) anniversary of such Participant's death;
provided, however, that such five (5) year rule shall not be applicable
to any portion of the Participant's interest under the Plan that is
payable to the Participant's surviving Spouse as his Death Beneficiary if
such distributions to such surviving Spouse begin not later than the
December 31 of the calendar year in which the Participant would have
attained age seventy and one-half (70 1/2).
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(c) Distributions under the Plan shall be made in a manner that
satisfies Code Section 401(a)(9) and Treasury Regulations issued thereunder,
including Treasury Regulation Section 1.401(a)(9)-2, which provisions are
hereby incorporated into the Plan by reference, provided that such provisions
shall override the other distribution provisions of the Plan only to the extent
that such other Plan provisions provide for distribution that is less rapid
than required under such provisions of the Code and Regulations. Nothing
contained in this Section shall be construed as providing any optional form of
payment that is not available under the other distribution provisions of the
Plan.
8.6 Withdrawal Requested by Participant
(a) Upon prior written notice filed with the Plan Administrator,
within such period established by the Plan Administrator, a Participant may
withdraw all or a portion of his Account as provided and in the order set forth
below:
(i) A Participant may withdraw all or a part of the portion of his
Account attributable to After-Tax Contributions credited to his Account
before January 1, 1987 (excluding earnings and appreciation thereon);
(ii) A Participant who has withdrawn all such pre-1987 After-Tax
Contributions may withdraw all or a part of his Account attributable to
the remaining After-Tax Contributions credited to his Account (including
earnings and appreciation thereon);
(iii) A Participant who has withdrawn all such pre-1987 and post-1986
After-Tax Contributions may withdraw all or part of his Account
attributable to the earnings and appreciation on his pre-1987 After-Tax
Contributions;
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(iv) A Participant who has withdrawn all amounts attributable to his
After-Tax Contributions may withdraw all or a part of his Account
attributable to Matching Employer Contributions (including earnings and
appreciation thereon); provided, however, that Matching Employer
Contributions (including earnings and appreciation thereon) that have not
been held in his Account for at least two (2) years may not be so
withdrawn unless the Participant has been a Participant in the Plan for
at least five (5) years;
(v) A Participant who is at least fifty-nine and one-half (59 1/2)
years old, who has withdrawn all amounts described in Paragraphs (i)
through (iv) of this Subsection may withdraw all or a part of his Account
attributable to Before-Tax Contributions (excluding any income allocable
thereto).
(b) Any withdrawal requested pursuant to this Section prior to a
Participant's Termination of Employment will continue to be processed pursuant
to this Section notwithstanding a Participant's subsequent Termination of
Employment.
8.7 Suspension of Contributions Upon Withdrawal
(a) Any Participant who makes a withdrawal pursuant to Sections
8.6(a)(i) through 8.6(a)(iii) may not make any After-Tax Contributions or have
any Before-Tax Contributions or Matching Employer Contributions made for him
for six (6) months thereafter.
(b) Any Participant who makes a withdrawal pursuant to Section
8.6(a)(iv) or 8.6(a)(v) may not make any After-Tax Contribution or have any
Before-Tax Contributions or Matching Employee Contributions made for him for
twelve (12) months thereafter.
(c) A Participant's Contributions that have been suspended pursuant
to this Section will resume as of the first pay period
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following such period of suspension if he is a Covered Employee on that date.
8.8 Hardship Withdrawals
(a) A Participant who is an Employee and who has obtained all
available withdrawals under the Plan, other than Hardship withdrawals, and all
nontaxable loans currently available under all plans maintained by the
Controlled Group, may request, on a form provided by and filed with the Plan
Administrator, a withdrawal on account of Hardship of all or a portion of his
Account attributable to Before-Tax Contributions (excluding any income
allocable thereto). Upon making a determination that the Participant is
entitled to a withdrawal on account of Hardship, the Plan Administrator shall
direct the Trustee to distribute to such Participant from his Account, the
amount of his Before-Tax Contributions determined by the Plan Administrator to
be necessary to alleviate such Hardship (including amounts necessary to pay any
taxes or penalties reasonably anticipated to result from such withdrawal).
(b) If a withdrawal on account of Hardship is made to a Participant
pursuant to this Section, the following rules shall apply notwithstanding any
other provision of the Plan (or any other plan maintained by the Controlled
Group) to the contrary:
(i) the Participant's Before-Tax Contributions and After-Tax
Contributions (or any comparable contributions to any other qualified or
non-qualified plan, other than a health or welfare benefit plan,
maintained by the Controlled Group) shall be suspended for a period of
twelve (12) months following receipt of the Hardship withdrawal, and
(ii) the amount of the Participant's Before-Tax Contributions (and
any comparable contributions to any other
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61
plan maintained by the Controlled Group) for the Participant's taxable
year immediately following the taxable year of the Hardship withdrawal
shall not be in excess of the applicable limit under Code Section 402(g)
for such next taxable year less the amount of such Participant's
Before-Tax Contributions (and any comparable contributions to any other
plan, other than health or welfare benefit plan, maintained by the
Controlled Group) for the taxable year of the Hardship withdrawal.
8.9 Distributions Pursuant to Qualified Domestic Relations Orders
Notwithstanding anything in the Plan to the contrary, if a qualified
domestic relations order (as defined in Code Section 414(p)) so provides, the
portion of the Participant's Account payable to the alternate payee(s) (as
defined in Code Section 414(p)) may be paid to such alternate payee(s) at any
time on or after the date on which the Committee receives such order,
regardless of whether the Participant is entitled to a distribution from the
Plan at such time. The portion of the Participant's Account so payable shall
be valued on the Valuation Date specified in such order.
8.10 Distribution on Sale of Assets or Disposition of Business
In the event that a Participant's Termination of Employment is caused
by the disposition by an Employer of substantially all of the assets of a trade
or business, or its interest in a subsidiary, and such Participant continues
employment with the entity acquiring such assets or such subsidiary, the
Participant, if he so elects on an application filed with the Plan
Administrator pursuant to Section 8.1, shall be entitled to a distribution of
his Account pursuant to Section 8.2 only if such purchaser is not deemed to
"maintain" the Plan in accordance with regulations issued under Code Section
401(k)(10).
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8.11 Direct Rollovers
(a) If a Participant, Spouse or alternate payee (as defined in Code
Section 414(p)) is eligible to receive a distribution or withdrawal from the
Plan that constitutes an Eligible Rollover Distribution and such individual
elects to have all or a portion (but not less than $500) of such distribution
or withdrawal paid directly to an "eligible retirement plan" (as defined in
Subsection (c) of this Section) and specifies the eligible retirement plan to
which the distribution or withdrawal is to be paid, such distribution or
withdrawal (or portion thereof) shall be made in the form of a direct rollover
to the eligible retirement plan so specified. A direct rollover is a payment
made by the Plan directly to the eligible retirement plan. The Committee shall
prescribe reasonable procedures for elections to be made pursuant to this
Section.
(b) The Plan Administrator shall provide a Participant, Spouse or
alternate payee who will receive an Eligible Rollover Distribution with a
written notice describing his rights under this Section, such other information
required to be provided under Code Section 402(f), and, if applicable, the
information required under Section 8.1(b) no less than thirty (30) days nor
more than ninety (90) days before the date scheduled for payment of such
Distribution; provided, however, that a Participant, Spouse or alternate payee
may elect to waive such 30-day requirement if (i) he is clearly informed by the
Plan Administrator of his rights, if applicable, to a period of at least 30
days after receiving the written notice to consider whether or not to elect a
distribution or withdrawal and/or to elect a particular form of benefit and
(ii), after receiving the written notice, he affirmatively elects the
distribution or withdrawal. Nothing contained in this
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63
Subsection shall be construed to accelerate the timing of a distribution or
withdrawal otherwise provided in the Plan.
(c) For purposes of this Section, the term "eligible retirement plan"
means an individual retirement account or annuity described in Code Section
408, a defined contribution plan that meets the requirements of Code Section
401(a) and that accepts rollovers, or an annuity plan described in Code Section
403(a); provided, however, that with respect to a Spouse (but not a Spouse who
is an alternate payee) who receives a distribution after a Participant's death,
an "eligible retirement plan" shall mean only an individual retirement account
or annuity described in Code Section 408.
(d) This Section is intended to comply with the provisions of Code
Section 401(a)(31) and shall be interpreted in accordance with such section and
Treasury regulations issued thereunder. This Section shall be effective for
distributions under the Plan on or after January 1, 1993.
8.12 Prohibited Distributions
The Company reserves the right to withhold authorization of any
distribution of an Account or to restrict the transfer of any shares of Company
Stock distributed from an Account to the extent necessary to satisfy the
requirements of any federal or state law or regulation applicable to securities
of the Company.
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64
ARTICLE IX
PROVISIONS RELATING TO THE TRUSTEE
AND THE ADMINISTRATION OF THE TRUST FUND
9.1 Duties of the Trustee
The Trustee shall invest Before-Tax Contributions, After-Tax
Contributions and Matching Employer Contributions paid to it and earnings
thereon in accordance with Section 9.2. The Trustee in its relation to the
Plan shall be entitled to all of the rights, privileges, immunities and
benefits conferred upon it by the Plan and shall be subject to all of the
duties imposed upon it by the Plan.
9.2 The Trust Fund
(a) The Trust Fund shall be held by the Trustee for the exclusive
benefit of the Participants and their Beneficiaries.
(b) The Trustee shall receive, hold and manage the Trust Fund in the
manner and for the uses and purposes herein provided. It is authorized in its
discretion except as otherwise expressly stated:
(i) To invest the cash contributed or accruing to the Trust Fund in
the Investment Funds pursuant to the provisions of this Plan and as
directed by Participants pursuant to Article VII. The Trustee shall not
make any other investment of cash held in the Trust Fund except as
provided in Section 7.1 and Paragraph (ii) of this Subsection.
(ii) Pending investment in the Investment Funds, to invest the cash
in securities issued or guaranteed by the United States or in any money
market fund selected by the Trustee for this purpose.
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9.3 Payment of Benefits
All payments of benefits provided for by the Plan shall be made solely
out of the Trust Fund in accordance with instructions given to the Trustee by
the Plan Administrator pursuant to the terms of the Plan, and neither the Plan
Administrator, any Employer, the Committee nor the Trustee shall be otherwise
liable for any benefits payable under the Plan.
9.4 Powers of the Trustee
(a) The Trustee accepts the Trust hereby created but only upon the
express terms and conditions of this Plan, including the following:
(i) Whenever, in the administration of the Plan, a certification is
required to be given to the Trustee, or the Trustee shall deem it
necessary that a matter be proved prior to taking, suffering or omitting
any action hereunder, such certification shall be duly made and said
matter may be deemed to be conclusively proved by an instrument,
delivered to the Trustee, signed in the name of the Company, by any
executive officer of the Company who is authorized to execute such
instrument; or if the matters shall concern the authority of the
Committee, in the name of the Committee by any Committee member who is
authorized to execute such instrument; but in its discretion the Trustee
may in lieu thereof accept other evidence of the matter or may require
such further evidence as to it may seem reasonable. The Company shall
provide the Trustee from time to time with a current list of the names of
such executive officers and Committee members who are authorized to
execute instruments pursuant to this Paragraph. Generally, the Trustee
shall be protected in acting upon any notice, resolution, order,
certificate, opinion, telegram,
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66
letter or other document believed by the Trustee to be genuine and to
have been signed by the proper party.
(ii) All monies deposited with the Trustee under any provisions
hereof may be deposited by the Trustee in its banking department. The
Trustee shall be under no duty to invest any such monies except as
prescribed in Section 9.2.
(iii) The Trustee may consult with legal counsel (who may be counsel
for the Company) with respect to the construction of the Plan or its
duties hereunder, or with respect to any legal proceeding or any question
of law, and shall be fully protected with respect to any action taken or
omitted by it in good faith pursuant to the advice of such counsel.
(iv) The Trustee may make any payments required to be made by it
hereunder as directed by the Plan Administrator pursuant to Article VIII
to (or on behalf of) the persons to whom such payments are to be made
according to the certification of the Plan Administrator. The Trustee
shall not be required to make any investigation to determine the
identities or mailing addresses of any persons entitled to distributions
of Accounts under this Plan and shall be entitled to withhold making
payments until the identities and mailing addresses of persons entitled
to such distributions are certified to it by the Plan Administrator. In
the event that any disputes shall arise as to the identities or rights of
persons entitled to distributions of Accounts hereunder, the Trustee may
withhold payment of such distributions until such disputes shall have
been determined by arbitration or by a court of competent jurisdiction or
shall have been settled by written stipulation of the parties concerned.
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67
(v) The Trustee shall keep full records of the administration of the
Trust which the Plan Administrator shall have the right to examine at any
time during the Trustee's regular business hours. Within ninety (90)
days following the close of the fiscal year of the Trust, the Trustee
will furnish the Plan Administrator with a statement of its account, and
the Plan Administrator shall promptly notify the Trustee in writing of
its approval or disapproval thereof. Failure by the Plan Administrator
to disapprove within ninety (90) days after its receipt of any such
statement shall be considered an approval thereof. The approval by the
Plan Administrator of any statement of account shall be binding, as to
all matters embraced in the statement, on all parties to the Plan and on
all Participants to the same extent as if the account of the Trustee had
been settled by judgment or decree in an action for a judicial settlement
of its accounts in a court of competent jurisdiction in which the
Trustee, the Plan Administrator, the Committee and all persons having or
claiming any interest in the Trust Fund were parties; provided, however,
that nothing herein contained shall deprive the Trustee of its right to
have its accounts judicially settled if it so desires.
(vi) The Trustee, with the consent of the Company or Committee, is
authorized to accept, compromise or otherwise settle any obligation or
liability due to or from it as Trustee hereunder, including any claim
that may be asserted for taxes under present or future laws, or to
enforce or contest the same by appropriate legal proceedings; but it
shall not be required to institute or continue litigation unless it is in
possession of funds suitable for that purpose or unless it has been
indemnified to its satisfaction against its counsel fees and
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68
all other expenses and liabilities to which it may in its judgment be
subjected by such action; provided further that the Trustee shall be
entitled, out of the recoveries of any litigation, to reimbursement for
its expenses in connection therewith.
(vii) A third party dealing with the Trustee shall not be required to
make any inquiry whether the Committee or Plan Administrator has
instructed the Trustee, or the Trustee is otherwise authorized to take or
omit any action, or to follow the application by the Trustee of any money
or property which may be paid or delivered to the Trustee.
(viii) The Trustee shall use ordinary care and reasonable diligence
in the exercise of its powers and the performance of its duties
hereunder. It shall not be liable for any action taken or omitted upon
the instructions of the Plan Administrator or the Committee or, in the
absence of such instructions, for the omission of any action as to which
the Committee is required or authorized to instruct it under the Plan, or
for any mistake or judgment or other action made, taken or omitted by it
in good faith; or for any failure of contributions to meet liabilities
under the Plan; or for any loss, unless resulting from its own
imprudence; and it shall not be required to give any bond or other
security for the faithful performance of its duties hereunder. If at any
time the Committee or Plan Administrator should fail to give instructions
to the Trustee as herein provided for, the Trustee may act and shall be
protected in acting, without such instructions, as in its discretion
seems appropriate and advisable under the circumstances for the carrying
out of the purposes of this Plan.
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(b) Subject to the prior written instructions of the Committee, the
Trustee shall have the following powers, and in all instances shall be bound to
follow the instructions of the Committee as to the exercise of the powers
subject to the rights of Participants as provided in Sections 7.5, 7.6, 7.10
and 7.11:
(i) To consent to and participate in any plan of reorganization,
consolidation, merger, extension or other similar plan affecting property
held in the Trust Fund.
(ii) To deposit property held in the Trust Fund with any protective,
reorganization or other similar committee; to delegate discretionary
power thereto and to pay its reasonable share of such committee's
expenses and compensation and any assessments levied with respect to any
properties so deposited.
(iii) To hold all shares of Company Stock in bulk or bearer form,
deposit them with any depository, and hold them in its own name or in the
name of a nominee without the addition of words indicating that such
Company Stock is held in a fiduciary capacity, but, notwithstanding any
other provision hereunder, the Trustee shall be liable for any loss that
may result from any Company Stock being held hereunder other than in its
name as Trustee.
(iv) To exercise all stock and subscription rights pertaining to
stock held in the Trust Fund.
(v) To exercise voting rights with respect to stock held in the Trust
Fund and in connection therewith to grant proxies, discretionary or
otherwise.
(vi) To do, generally, all such acts, execute all such instruments,
take all such proceedings and exercise all such rights and privileges
with relation to property constituting
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the Trust Fund as if the Trustee were the absolute owner thereof.
9.5 Compensation and Expenses
The Trustee shall be entitled to receive such reasonable compensation
for its services as may be agreed upon by it and the Company. Such
compensation and the expenses of the Trustee and the Investment Manager, if
any, and other expenses necessary for the proper administration of the Plan
shall be paid by the Trustee from the Trust Fund, unless the Company
determines, in its sole discretion, that all or any part of such compensation
and expenses shall be paid by the Employers. Notwithstanding the foregoing,
expenses incurred in connection with the investment of the Trust Fund, such as
brokerage fees, shall be paid from the Trust Fund and shall not be paid by the
Employers. Taxes, if any, on any property held by the Trustee shall be paid
out of the Trust Fund and taxes, if any, other than transfer taxes, on
distributions to a Participant or Death Beneficiary shall be paid by the
Participant or the Death Beneficiary, respectively.
9.6 No Diversion of the Trust Fund
Except as otherwise specifically provided in the Plan, it shall be and
it is hereby made impossible, at any time prior to the satisfaction of all
liabilities with respect to the Employees and their Beneficiaries under the
Plan, for any part of the corpus or income of the Trust Fund to be (within the
taxable year or thereafter) used for, or diverted to, purposes other than the
exclusive benefit of the Employees or their Beneficiaries.
9.7 Risk of Loss
(a) Neither the Trustee, the Plan Administrator, the Employers, the
Committee nor any Investment Manager in any manner guarantees the Trust Fund or
any part thereof against loss or
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depreciation. All persons having any interest in the Trust Fund shall look
solely to the Trust Fund for payment with respect to such interest.
(b) Neither the Trustee, the Plan Administrator, the Employers, the
Committee, any Investment Manager, nor any officer or employee of any of them
is authorized to advise a Participant as to the manner in which contributions
to the Plan and income thereon should be invested and reinvested. Subject to
the limitations of Section 7.5, the election of the Investment Fund or Funds in
which a Participant participates is his sole responsibility, and the fact that
designated Investment Funds are available to Participants for investment shall
not be construed as a recommendation for the investment of contributions
hereunder in all or any of such Funds.
(c) Any decision by a Participant to invest in any Investment Fund
pursuant to Article VII shall, to the extent permitted under applicable law,
constitute an exercise of control over the assets allocated to his Account by
such Participant (to the extent of such exercise of control) within the meaning
of ERISA Section 404(c), and each Participant who so exercises such control
shall, by his exercise and as allowed under applicable law, release and agree
(on his behalf and on the behalf of his heirs and beneficiaries) to indemnify
and hold harmless the Trustee, the Plan Administrator, each Employer, the
Committee, any Fiduciary, and any officer or employee of any of them, from and
against any demand, loss, liability, cost, or expense (including reasonable
attorneys' fees) caused by or arising out of such exercise, including without
limitation any diminution in value, opportunity costs, or losses incurred from
such exercise.
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9.8 Resignation or Removal of the Trustee
(a) The Trustee may resign at any time upon delivering to the Company
and the Committee a written notice of its resignation, to take effect no less
than thirty (30) days after the delivery thereof, unless such period shall be
waived.
(b) Any Trustee appointed hereunder may be removed by the Company by
delivery of a written notice of removal to the Trustee, to take effect at a
date specified therein, which shall not be less than thirty (30) days after
delivery of such notice to the Trustee, unless such period shall be waived,
provided that no removal of a Trustee shall become effective until a successor
Trustee has been appointed, as hereinafter provided, to which the Trustee may
transfer and deliver the Trust Fund.
(c) In case of the resignation or removal of the Trustee, the Trustee
shall have the right to a settlement of its accounts, which may be made at the
option of the Trustee either by (i) judicial settlement in an action instituted
by the Trustee in a court of competent jurisdiction, or (ii) agreement of
settlement between the Trustee and the Company.
(d) Upon such settlement, the Trustee shall transfer to the successor
Trustee the Trust Fund as it may then be constituted and true copies of such of
its records as relate to the Trust, and shall execute all documents necessary
for transferring the assets of the Trust. The Trustee shall thereupon be
discharged from further accountability for all matters embraced in its
settlement.
(e) The Company covenants that it will, upon its receipt or giving of
notice of the resignation or removal of a Trustee, forthwith appoint a bank or
trust company organized under the laws of the United States, or of a state
thereof, as successor Trustee. Any successor Trustee so appointed may qualify
as such by
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executing, acknowledging and delivering to the Company, the Committee and to
the resigning or removed Trustee an instrument accepting such appointment; and
upon delivery to it of the Trust Fund, such successor, without further act,
shall become vested with all the estate, rights, powers, discretion and duties
of its predecessor Trustee with like effect as if originally named as Trustee
herein.
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ARTICLE X
INVESTMENT MANAGER
10.1 Appointment
The Company shall have exclusive authority and responsibility at any
time or from time to time to appoint, continue, or discharge one or more
Investment Managers under the Plan with respect to all or any specified portion
of the Trust Fund (including with respect to one or more Investment Funds).
10.2 Written Agreement
The appointment of any person to serve in the capacity of Investment
Manager under the Plan shall be by written agreement between such person and
the Company and such written agreement shall set forth the terms and conditions
of such person's appointment, including, without limitation, the portion or
portions of the Trust Fund that such person will manage.
10.3 Qualifications
No person may be appointed (or continue) as an Investment Manager
under the Plan if that person is not qualified under the terms of ERISA or
applicable state law to serve in such capacity.
10.4 Notification of the Trustee
The Company shall notify the Trustee in writing of any appointment,
modification of appointment or revocation of appointment of an Investment
Manager under the Plan, and the Trustee may rely upon such appointment
continuing in effect until the Trustee receives written notice from the Company
of its revocation or modification.
10.5 Powers and Duties
(a) Any Investment Manager appointed by the Company shall have such
duties and functions as specified by the Company in its notice of appointment.
Unless otherwise specified in such notice
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of appointment, the Investment Manager shall have control over (but not custody
of) all assets in the Trust Fund to which he or it has been appointed except
such amounts of cash and short-term obligations as the Trustee may from time to
time deem to be advisable to maintain sufficient liquidity to meet the
obligations of the Plan (such as making distributions to Participants), all of
which shall remain under the control (as well as the custody) of the Trustee.
(b) During the period the appointment of an Investment Manager is in
effect, the Investment Manager (and not the Trustee) shall, with respect to the
investments over which the Investment Manager has control and to the extent
delegated to such Investment Manager and permitted by law, have the
corresponding powers and be subject to the corresponding duties and limitations
conferred or imposed upon the Trustee (except as such powers, duties, and
limitations may be altered by any agreement as to investment management entered
into between the Company and the Investment Manager), but the Trustee shall
make and accept such deliveries of securities and disburse and receive such
funds to or from the Trust Fund as the Investment Manager may direct in writing
or by electronic communication (supported by later written confirmation).
(c) In addition to the foregoing powers, the Investment Manager may
designate the broker or brokers through which sales and purchases are to be
made, provided that no greater brokerage fees are incurred than those
chargeable by other brokers in the community for like or comparable services.
10.6 Compensation
The Investment Manager shall receive such reasonable compensation as
may be agreed upon by it and the Company, and upon the receipt by the Trustee
of written instructions from the Company
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as to any amount so approved, the Trustee shall make payment thereof to the
Investment Manager from the Trust Fund, unless the Company makes such payments
directly.
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ARTICLE XI
ADMINISTRATION OF THE PLAN AND FIDUCIARY RESPONSIBILITIES
11.1 Responsibility for Administration
Except to the extent that particular responsibilities are otherwise
assigned or delegated to other Fiduciaries under the Plan, the Committee shall
be responsible for the administration of the Plan. Each other Fiduciary shall
have only such powers, duties, responsibilities and authorities as are
specifically conferred upon him pursuant to provisions of the Plan. Any person
may serve in more than one fiduciary capacity with respect to the Plan or Trust
Fund, if pursuant to the Plan, he is assigned or delegated any multiple
fiduciary capacities.
11.2 Named Fiduciaries
For the purposes of the Plan, the Named Fiduciaries shall be the
Committee, the Company and the Trustee. The Company may, by written
instrument, designate any other person or persons as a Named Fiduciary or Named
Fiduciaries to perform functions specified in such instrument (or in a
delegation pursuant to Section 11.3) that relate to the administration of the
Plan, provided such designee accepts such designation. Such a designation may
be terminated at any time by notice from the Company to the designee or by
notice from the designee to the Company.
11.3 Delegation of Fiduciary Responsibilities
(a) The Committee or the Company may delegate to any person or
persons any one or more of its powers, functions, duties and/or
responsibilities with respect to the Plan or the Trust Fund.
(b) Any delegation pursuant to Subsection (a) of this Section, (i)
shall be signed on behalf of the Committee or the Company, and be delivered to
and accepted in writing by the delegatee, (ii) shall contain such provisions
and conditions
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relating to such delegation as the Committee or the Company deems appropriate,
(iii) shall specify the powers, functions, duties and/or responsibilities
therein delegated, (iv) may be amended from time to time by written agreement
signed on behalf of the Committee or the Company and by the delegatee and (v)
may be revoked (in whole or in part) at any time by written notice from one
party to the other. A fully executed copy of any instrument relating to any
delegation (or revocation of any delegation) under the Plan shall be filed with
each of the Named Fiduciaries.
11.4 Immunities
Except as otherwise provided in Section 11.5 or by applicable law, (a)
no Fiduciary shall have the duty to discharge any duty, function or
responsibility that is specifically assigned exclusively to another Fiduciary
or Fiduciaries by the terms of the Plan or is delegated exclusively to another
Fiduciary or Fiduciaries pursuant to procedures for such delegation provided
for in the Plan; (b) no Fiduciary shall be liable for any action taken or not
taken with respect to the Plan or Trust Fund except for his own negligence or
willful misconduct; (c) no Fiduciary shall be personally liable upon any
contract or other instrument made or executed by him or on his behalf in the
administration of the Plan or Trust Fund; (d) no Fiduciary shall be liable for
the neglect, omission or wrongdoing of another Fiduciary; and (e) any Fiduciary
may rely and shall be fully protected in acting upon the advice of counsel, who
may be counsel for any Controlled Group Member, upon the records of a
Controlled Group Member, upon the opinion, certificate, valuation, report,
recommendation or determination of the certified public accountants appointed
to audit a Controlled Group Member's financial statements, or upon any
certificate, statement or other representation made by an Employee, a
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Participant, a Beneficiary or the Trustee concerning any fact required to be
determined under any of the provisions of the Plan.
11.5 Limitation on Exculpatory Provisions
Notwithstanding any other provision of the Plan, no provision of the
Plan shall be construed to relieve (or have the effect of relieving) any
Fiduciary from any responsibility or liability for any obligation,
responsibility or duty imposed on such Fiduciary by Part 4 of Title 1 of ERISA.
11.6 Administrative Committee - Organization
The Company shall appoint the Committee to perform the duties
hereinafter set forth. The Committee shall consist of two (2) or more
individuals who have accepted appointment thereto. The members of the
Committee shall serve at the discretion of the Company and may resign by
delivering written resignation to the Company. Vacancies in the Committee
arising for any reason shall be filled by the Company, provided that any
vacancy unfilled for thirty (30) days may be filled by a majority vote of the
remaining members of the Committee.
11.7 Compensation
The members of the Committee shall serve without compensation, but all
reasonable expenses of the Committee shall be paid from the Trust Fund unless
the Company makes such payments directly.
11.8 Qualification
Members of the Committee shall not be disqualified from acting because
of any interest, benefit or advantage, inasmuch as it is recognized that the
members may be Employees of the Employer and Participants in the Plan;
provided, however, that no member of the Committee shall have any right to vote
upon or decide any matter relating solely to his own rights under the Plan.
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11.9 Interpretation of the Plan and Findings of Facts
The Committee shall have sole and absolute discretion to interpret the
provisions of the Plan (including, without limitation, by supplying omissions
from, correcting deficiencies in, or resolving inconsistencies or ambiguities
in, the language of the Plan), to determine the rights and status under the
Plan of Participants and other persons, to decide disputes arising under the
Plan and to make any determinations and findings with respect to the benefits
payable thereunder and the persons entitled thereto as may be required for the
purposes of the Plan. In furtherance of, but without limiting, the foregoing,
the Committee is hereby granted the following specific authorities, that it
shall discharge in its sole and absolute discretion in accordance with the
terms of the Plan (as interpreted, to the extent necessary, by the Committee):
(i) to resolve all questions arising under the provisions of the Plan
as to any individual's entitlement to become a Participant;
(ii) to determine the amount of benefits, if any, payable to any
person under the Plan; and
(iii) to conduct the review procedures specified in Article XII.
All decisions of the Committee as to the facts of any case, as to the
interpretation of any provision of the Plan or its application to any case, and
as to any other interpretative matter or other determination or question under
the Plan shall be final and binding on all parties affected thereby, subject to
the provisions of Article XII.
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11.10 Operation of the Committee
(a) (i) The Committee shall act only by a majority vote of its
members present at a meeting at which a quorum is present or by the
unanimous written consent of all of its members without a meeting. A
quorum for any meeting of the Committee shall be a majority of its
members in office at that time. No member shall act by proxy unless by
proxy given in writing to another Committee member.
(ii) The Committee may appoint a chairman from among its members and
a secretary. It shall authorize one (1) or more of its members to
execute any document on its behalf, in which event the Committee shall
notify the Trustee in writing of such action and the names of its members
so designated. The Trustee thereafter shall accept and rely upon any
document executed by such members as representing action by the Committee
until the Committee shall file with the Trustee a written revocation of
such designation.
(iii) Consistent with the foregoing, the Committee may adopt such
by-laws and regulations as it deems desirable for the conduct of its
affairs and it may appoint such accountants, counsel, specialists and
other persons as it deems necessary or desirable in connection with its
duties and responsibilities under the Plan.
(b) The Committee shall keep a record of all of its proceedings and
acts and all such books of account, records and other data as may be necessary
for administration of the Plan as provided herein. The Committee shall notify
the Trustee and the Board of Directors of any action taken by the Committee
and, when necessary or required, any other interested person.
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11.11 Plan Administrator's Actions
Any periods of time or procedures required to be established by the
Plan Administrator pursuant to this Plan shall be established in a uniform
nondiscriminatory manner.
11.12 Correction of Errors
Notwithstanding anything herein to the contrary, the Plan
Administrator and/or the Committee may take such actions or permit such actions
to be taken as are necessary and reasonably calculated to correct an
administrative error made by an Employer, the Plan Administrator, the Committee
or any other Fiduciary.
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ARTICLE XII
CLAIMS PROCEDURES
12.1 Claims
(a) Any Participant or Beneficiary who believes that he is entitled
to receive a benefit under the Plan that he has not received may file a written
claim with the Committee (on the form furnished by the Committee) specifying
the basis for his claim and the facts upon which he relies in making such
claim. Such claim must be signed by the claimant or his authorized
representative and shall be deemed filed when delivered to any member of the
Committee.
(b) Unless such claim is allowed in full, within ninety (90) days
after such claim is filed (plus an additional period of ninety (90) days if
required for processing and if notice of the extension is given to the claimant
within the first 90-day period), the Committee shall cause written notice to be
mailed to the claimant of the total or partial denial of such claim. Such
notice shall be written in a manner calculated to be understood by the claimant
and shall state:
(i) The specific reason(s) for the denial of the claim;
(ii) Specific reference(s) to pertinent Plan provisions on which the
denial of the claim was based;
(iii) A description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why
such material or information is necessary; and
(iv) An explanation of the review procedures specified in Section
12.2.
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(c) If notice of denial of a claim is not furnished within the time
specified above, the claim shall be deemed to have been denied in full.
12.2 Review of Claims
(a) Within sixty (60) days after the denial of his claim, the
claimant may appeal such denial by filing with the Committee a written request
for a review of such claim (on the form provided by the Committee). If the
claimant does not file such a request with the Committee within such 60-day
period, the claimant shall be conclusively presumed to have accepted as final
and binding the initial decision of the Committee on his claim.
(b) If such an appeal is so filed within such 60 days, the Committee
shall (i) conduct a full and fair review of such claim and (ii) mail or deliver
to the claimant a written decision on the matter based on the facts and
pertinent provisions of the Plan within a period of sixty (60) days after the
receipt of the request for review unless special circumstances require an
extension of time, in which case such decision shall be rendered not later than
one hundred twenty (120) days after receipt of such request. If an extension
of time for review is required, written notice of the extension shall be
furnished to the claimant prior to the commencement of the extension.
(c) Such decision (i) shall be written in a manner calculated to be
understood by the claimant, (ii) shall state the specific reason(s) for the
decision, (iii) shall make specific reference(s) to pertinent provisions of the
Plan on which the decision is based and (iv) shall, to the extent permitted by
applicable law, be final and binding on all interested persons.
(d) During such full review, the claimant or his duly authorized
representative shall be given an opportunity to review
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documents that are pertinent to the claimant's claim and to submit issues and
comments in writing.
(e) If the decision on review is not furnished within such 60-day or
120-day period, as the case may be, the claim shall be deemed denied in full on
review.
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ARTICLE XIII
AMENDMENT AND TERMINATION
13.1 Right to Amend or Terminate
Subject to the limitations of Sections 5.5(a) and 9.6, the Company has
reserved, and does hereby reserve, the right at any time, without the consent
of any other Employer or of the Participants, Beneficiaries or any other
person, (a) to terminate the Plan, in whole or in part or as to any or all of
the Employers or as to any designated group of Employees, Participants and
their Beneficiaries, or (b) to amend the Plan, in whole or in part. No such
termination or amendment shall decrease the amount of Employer Matching
Contributions to be made by an Employer on account of any period preceding such
termination. Except as provided in Section 15.2, the Plan may be amended only
by the Company. No amendment shall increase the duties or liabilities of the
Trustee without the Trustee's written consent.
13.2 Procedure for Termination or Amendment
Any termination or amendment of the Plan pursuant to Section 13.1
shall be expressed in an instrument executed by the Company and shall become
effective as of the date designated in such instrument or, if no date is so
designated, on the date of its execution.
13.3 Distribution Upon Termination
If the Plan shall be terminated by the Company as to all Employers,
Before-Tax Contributions, After-Tax Contribution and Employer Matching
Contributions to the Plan shall cease and, as soon as practicable after such
termination, the Trustee shall make distribution (if such distribution is
permitted by applicable law) to each Employee as if the Plan had not been
terminated.
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13.4 Amendment Changing Vesting Schedule
(a) If any Plan amendment changes any vesting schedule under the
Plan, each Participant having not less than three (3) years of service shall be
permitted to elect, during the election period described in Subsection (b) of
this Section, to have his nonforfeitable percentage computed under the Plan
without regard to such amendment.
(b) Such election period shall begin on the date the Plan amendment
is adopted and shall end no earlier than the latest of the following dates:
(i) the date that is sixty (60) days after the day the Plan amendment is
adopted, (ii) the date that is sixty (60) days after the day the Plan amendment
becomes effective, or (iii) the date that is sixty (60) days after the day the
Participant is issued written notice of the Plan amendment by the Committee or
the Company.
(c) For purposes of Subsection (a) of this Section, a Participant
shall be considered to have completed three (3) years of service if such
Participant has completed three (3) years of service, whether or not
consecutive, without regard to the exceptions of Code Section 411(a)(4), prior
to the expiration of the election period described in Subsection (b) of this
Section.
(d) Notwithstanding the foregoing, the election provided in
Subsection (a) of this Section will not be provided to any Participant whose
nonforfeitable percentage under the Plan, as amended, cannot be less than such
percentage determined without regard to such amendment.
13.5 Nonforfeitable Amounts
Notwithstanding any other provision of the Plan, upon the termination
or partial termination of the Plan or upon complete discontinuance of
contributions under the Plan, the rights of all
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Employees to benefits accrued to the date of such termination or partial
termination or discontinuance, to the extent then funded, or the amounts
credited to the Employees' Accounts, shall be nonforfeitable.
13.6 Prohibition on Decreasing Accrued Benefits
No amendment to the Plan (other than an amendment described in Code
Section 412(c)(8)) shall have the effect of decreasing the accrued benefit of
any Participant. For purposes of the preceding sentence, a Plan amendment that
has the effect of (a) eliminating or reducing an early retirement benefit or a
retirement-type subsidy (as defined in regulations of the Secretary of the
Treasury) or (b) eliminating an optional form of benefit (except as permitted
by any such regulations) with respect to benefits attributable to service
before the amendment, shall be treated as decreasing accrued benefits;
provided, however, that in the case of a retirement-type subsidy this sentence
shall apply only with respect to a Participant who satisfies (either before or
after the amendment) the preamendment conditions for the subsidy.
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ARTICLE XIV
MISCELLANEOUS
14.1 Employment Not Affected
Nothing contained in this Plan shall constitute or be construed as a
contract of employment between any Employer and any Employee or Participant and
all Employees shall remain subject to discipline, discharge and layoff to the
same extent as if the Plan had never gone into effect. An Employer by adopting
the Plan, making contributions to the Trust Fund or taking any other action
with respect to the Plan does not obligate itself to continue the employment of
any Participant or Employee for any period or, except as expressly provided in
the Plan, to make any payments into the Trust Fund.
14.2 Inalienability
No right or interest of any kind of a Participant or Beneficiary in
the Trust Fund may be assigned, alienated, transferred, pledged or anticipated
or subject to encumbrance, garnishment, attachment, execution or levy of any
kind, voluntary or involuntary, or any other legal or equitable process and any
attempt so to assign, alienate, transfer, pledge, anticipate, encumber,
garnish, attach or levy shall be void. Notwithstanding the foregoing, this
Section shall not preclude the Trustee from complying with a qualified domestic
relations order (as defined under Code Section 414(p)). The Committee shall
develop procedures to determine whether a domestic relations order is qualified
under Code Section 414(p).
14.3 Incapacity to Receive Payment
In the event that the Committee finds that any Participant or
Beneficiary entitled to receive benefits hereunder is (at the time such
benefits are payable) unable to care for his affairs
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because of a physical, mental, or legal incompetence, the Committee may, in its
sole discretion, cause any payment due him, for which prior claim has not been
made by a duly qualified guardian or other legal representative, to be paid to
such one or more persons as may be chosen by the Committee from among the
following: the institution maintaining or responsible for the maintenance of
such Participant or Beneficiary, his spouse, his children, or other relatives
by blood or marriage. Any payment made pursuant to this Section shall be a
complete discharge of all liability under the Plan with respect of such
payment.
14.4 Unclaimed Benefits
Subject to the provisions of Article XII, when an Account is
distributable to any distributee and is unclaimed by either a Participant, a
former Participant or a Beneficiary, the Committee, upon request of the Trustee
or at its own instance, shall mail by registered or certified mail to such
distributee (at his last known address) a written demand for his current
address, or for satisfactory evidence of his continued life, or both. If such
distributee shall fail to furnish such information to the Committee within five
(5) years from the date of such demand, then such Account shall be forfeited
and applied to reduce Matching Employer Contributions required under the Plan;
provided, however, that such Account shall be reinstated (without provision for
interest or earnings thereon) upon a proper claim therefore made by the
Participant or if applicable, the Beneficiary.
14.5 Dissolution, Merger or Consolidation of the Company
In the event of a dissolution, merger or consolidation of the Company,
provision may be made by the successor person for the continuance of this Plan.
In such event, such successor person shall be substituted as the Company under
the Plan upon the
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execution of an instrument authorizing such substitution, executed on behalf of
the Company and such successor. A copy of such instrument, accompanied by a
duly certified copy of a resolution of the Board of Directors authorizing such
substitution, shall be delivered to the Trustee and shall constitute authority
to the Trustee to recognize such substituted person in place of the Company
hereunder.
14.6 Action by the Company
Wherever the Company is authorized to act under the Plan (including
but not limited to any delegation of its fiduciary powers and responsibilities
under the Plan), such action shall be taken, unless otherwise provided in the
Plan, by written instrument executed by an officer of the Company. The Trustee
may rely on any instrument so executed as being validly authorized and as
properly evidencing the action of the Company.
14.7 Limitation to Rights Created Under the Plan
Except as otherwise provided by controlling law, neither the Company,
any Employer, the Trustee, the Committee, nor a Participant shall have any
legal or equitable right or claim against the other unless the same is
specifically provided for herein or conferred by affirmative action in
accordance herewith.
14.8 Recourse Against Officers, Directors or Stockholders
Except as otherwise provided by controlling law, no recourse under any
provision of this Plan shall be had against an agent, Employee, officer,
director or stockholder of a Controlled Group Member, past, present or future;
and all such agents, Employees, officers, directors and stockholders are hereby
released from all liability hereunder, as a condition of and a part of the
consideration for the execution hereof, the contributions hereunder
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92
by the Company or an Employer, and the participation in the Plan by the
Participants.
14.9 Interpretation
(a) The Plan shall be governed, construed and administered according
to the laws of the State of Ohio, except to the extent preempted by applicable
federal law.
(b) Headings have been inserted in this Plan for purposes of
convenience only and shall not be taken as limiting or extending the meaning of
any provision.
14.10 Severability
If any provision of this Plan or the application thereof to any
circumstance or person is invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions of the Plan or the
application of such provision to other circumstances or persons, and the Plan
and the application of such provisions to other circumstances or persons shall
not be affected thereby.
14.11 Counterparts
This Plan may be executed in any number of counterparts, each of which
shall be deemed an original, and the counterparts shall constitute one and the
same instrument, which shall be sufficiently evidenced by any one thereof.
14.12 Plan Merger or Transfer of Assets
There shall not be any merger or consolidation of the Plan with, or
the transfer of assets or liabilities of the Plan to any other plan (other than
as permitted in Section 8.4 or 8.11), unless each Participant of the Plan would
(if Plan then terminated) receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the benefit he
would have been entitled to receive immediately before the merger,
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consolidation or transfer (if the Plan had then terminated). The Company
reserves the right to merge or consolidate this Plan with, and to transfer the
assets of the Plan to, any other Plan, without the consent of any other
Employer. Notwithstanding the foregoing, this Plan shall not be a direct or
indirect transferee of a pension plan or any retirement plan that at any time
provided for benefits in the form of a life annuity.
14.13 Indemnification
In addition to any rights of indemnification under the Certificate of
Incorporation or Code of Regulations of the Company, under any provisions of
law, or under any other agreement that may be given to the Committee, the Board
of Directors or any other person to whom any power, authority or responsibility
of the Company is delegated pursuant to this Plan (other than the Trustee), the
Company shall satisfy any liability actually and reasonably incurred by such
person, including expenses, reasonable attorneys' fees, judgments, fines and
amounts paid in settlement. This right to indemnification shall apply in
connection with any threatened, pending or completed action, suit or proceeding
that is related to the exercise or failure to exercise by such person any of
the powers, authorities, responsibilities or discretion provided under the Plan
or reasonably believed by such person to be provided hereunder and any action
taken by such person in connection therewith, but only if such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interest of the Participants or, with respect to any criminal actions
or proceedings, if he had no reasonable cause to believe his conduct was
unlawful. The termination of any suit, action or proceeding by judgment,
order, settlement, conviction or a plea of nolo contendere or its equivalent,
shall not, of itself, create a
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presumption that such person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interest of the
Participants or, with respect to any criminal action or proceedings, that he
had no reasonable cause to believe that his conduct was unlawful.
14.14 Service of Process/Necessary Parties
(a) The Plan Administrator shall serve as the agent upon whom legal
process may be served under ERISA.
(b) In any action or other judicial proceeding affecting the Trust,
the Trustee and the Company shall be included as necessary parties.
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ARTICLE XV
ADOPTION OF PLAN BY CONTROLLED GROUP MEMBERS
15.1 Adoption Procedure
Any Controlled Group Member may become an Employer under the Plan
provided that (a) the Board of Directors approves the adoption of the Plan by
the Controlled Group Member and designates the Controlled Group Member as an
Employer; (b) the Controlled Group Member executes an Instrument of Adoption
adopting the Plan, together with all amendments then in effect, upon
appropriate resolutions of the board of directors of the Controlled Group
Member; and (c) the Instrument of Adoption provides that the Controlled Group
Member agrees to be bound by any other terms and conditions that may be
required by the Board of Directors, provided that such terms and conditions are
not inconsistent with the purposes of the Plan.
15.2 Additional Terms and Conditions Relating to Instruments
Each Instrument of Adoption executed by an Employer may contain such
terms and conditions governing the application of the Plan to its Employees
covered by such Instrument as may be specified by such Employer and approved by
the Company and, without limiting the generality of the foregoing, may specify
the Employees of the Employer who will be considered Covered Employees under
the Plan, any greater or lesser Matching Employer Contributions, greater or
lesser Before-Tax Contributions, greater or lesser After-Tax Contributions,
additional eligibility requirements for membership in the Plan and any other
provision that such Employer (with the approval of the Company) shall consider
necessary or appropriate to carry out the provisions of the Plan as to its
Employees covered by such Instrument. In the event of inconsistency between
the other provisions of the Plan and such
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terms and conditions set forth in any Instrument of Adoption, the latter shall
control as to the Employees (or former Employees) covered by such Instrument;
provided, however, that if such inconsistency results from changes made in
provisions of the Plan to comply with applicable law, then such provisions of
the Plan shall control as to the Employees (or former Employees) covered by
such Instrument. Notwithstanding the foregoing, no Instrument of Adoption
shall increase the duties or liabilities of the Trustee without the Trustee's
written consent.
15.3 Effect of Adoption by a Controlled Group Member
A Controlled Group Member that adopts the Plan pursuant to an
Instrument of Adoption will be deemed to be Employer for all purposes
hereunder, unless otherwise specified in the Instrument of Adoption or
resolutions of the Board of Directors designating the Controlled Group Member
as an Employer. In addition, the Board of Directors may provide, in its
discretion and by appropriate resolutions, that the Employees of such
Controlled Group Member will receive credit for their employment with the
Controlled Group Member prior to the date it became a Controlled Group Member
for purposes of determining either or both the eligibility of such Employees to
participate in the Plan and the vested and nonforfeitable interest of such
Employees in their Account balances, provided that such credit will be applied
in a uniform and nondiscriminatory manner with respect to all such Employees.
15.4 Withdrawal of an Employer
Any Employer (other than the Company) that adopts the Plan may elect
separately to withdraw from the Plan. Any such withdrawal shall be expressed
in an instrument executed by the withdrawing Employer and filed with the
Company. No such withdrawal shall decrease the amount of Employer Matching
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Contributions to be made by the Employer on account of periods preceding such
withdrawal. In the event of such a withdrawal of an Employer, or in the event
the Plan is terminated as to an Employer (but not all the Employers) pursuant
to Section 13.1, such Employer (herein called "former Employer") shall cease to
be an Employer, and Employer Matching Contributions of such former Employer and
After-Tax and Before-Tax Contributions of Employees of such former Employer
shall cease. The interests in the Trust Fund of Participants who are or were
Employees of such former Employer shall be distributed as specified in Article
VIII.
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ARTICLE XVI
TOP-HEAVY PLAN PROVISIONS
16.1 Definitions
For purposes of this Article, the following terms when used with
initial capital letters, shall have the following respective meanings:
(a) Aggregation Group: Permissive Aggregation Group or Required
Aggregation Group, as the context shall require.
(b) Compensation: Compensation as defined in Section 5.6(c) (subject
to the limitations described in Section 2.12(b)).
(c) Defined Benefit Plan: A qualified plan as defined in Code
Section 414(j).
(d) Defined Contribution Plan: A qualified plan as defined in Code
Section 414(i).
(e) Determination Date: For any Plan Year, last day of the
immediately preceding Plan Year.
(f) Extra Top-Heavy Group: An Aggregation Group if, as of a
Determination Date, the aggregate present value of accrued benefits for Key
Employees in all plans in the Aggregation Group (whether Defined Benefit Plans
or Defined Contribution Plans) is more than ninety (90%) of the aggregate
present value of all accrued benefits for all employees in such plans.
(g) Extra Top-Heavy Plan: See Section 16.3.
(h) Former Key Employee: A Non-Key Employee with respect to a Plan
Year who was a Key Employee in a prior Plan Year. Such term shall also include
his Beneficiary in the event of his death.
(i) Key Employee: Any Employee or former Employee who is or was a
Participant and who, at any time during the current Plan Year or any of the
preceding four (4) Plan Years, is (i) an officer
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of an Employer (limited to no more than fifty (50) Employees or, if lesser, the
greater of three (3) Employees or ten percent (10%) of the Employees) with
annual Compensation greater than fifty percent (50%) of the dollar amount in
effect under Code Section 415(b)(1)(A) for such Plan Year, (ii) one of the ten
(10) Employees owning (or considered owning within the meaning of Code Section
318) the largest interests in an Employer and having annual Compensation
exceeding the applicable dollar amount referred to in Section 5.6(a), (iii) a
five percent (5%) owner (as such term is defined in Code Section
416(i)(1)(B)(i)), or (iv) a one percent (1%) owner (as such term is defined in
Code Section 416(i)(1)(B)(ii)) with annual Compensation of more than One
Hundred Fifty Thousand Dollars ($150,000). For purposes of Paragraph (ii) of
this Subsection, if two Employees have the same interest in an Employer, the
Employee having greater annual Compensation shall be treated as having a larger
interest. The term "Key Employee" shall also include such Employee's
Beneficiary in the event of his death. For purposes of this Subsection,
"Compensation" has the meaning given such term by Code Section 414(q)(7).
(j) Non-Key Employee: Any Employee or former Employee who is or was
a Participant and who is not a Key-Employee. Such term shall also include his
Beneficiary in the event of his death.
(k) Permissive Aggregation Group: A group of qualified plans of an
Employer consisting of the plans in the Required Aggregation Group, plus one or
more plans designated from time to time by the Committee that are not part of
the Required Aggregation Group but that satisfy the requirements of Code
Sections 401(a)(4) and 410 when considered with the Required Aggregation Group.
(l) Required Aggregation Group: The group of qualified plan of an
Employer consisting of each plan in which a Key Employee
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participates, plus each other plan that enables a plan in which a Key Employee
participates to meet the requirements of Code Sections 401(a)(4) and 410.
(m) Top-Heavy Account Balance: A Participant's (including a
Participant who has received a total distribution from this Plan) or a
Beneficiary's aggregate balance standing to his account as of the Valuation
Date of the Trust Fund coinciding with or immediately preceding the
Determination Date (as adjusted by the amount of any Employer Matching
Contributions made or due to be made after such Valuation Date but before the
expiration of the extended payment period in Code Section 412(c)(10)),
provided, however, that such balance shall include the aggregate distributions
made to such Participant or Beneficiary during the five (5) consecutive Plan
Years ending with the Plan Year that includes the Determination Date (including
distributions under a terminated plan that if it had not been terminated would
have been included in a Required Aggregation Group), and provided further that
if an Employee or former Employee has not performed services for any Employer
maintaining the Plan at any time during the five (5) year period ending on the
Determination Date, his account (and/or the account of his Beneficiary) shall
not be taken into account.
(n) Top-Heavy Group: An Aggregation Group if, as of a Determination
Date, the aggregate present value of accrued benefits for Key Employees in all
plans in the Aggregation Group (whether Defined Benefit Plans or Defined
Contribution Plans) is more than sixty percent (60%) of the aggregate present
value of accrued benefits for all employees in such plans.
(o) Top-Heavy Plan: See Section 16.2.
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16.2 Determination of Top-Heavy Status
(a) Except as provided by Subsections (b) and (c) of this Section,
the Plan shall be a Top-Heavy Plan if, as of a Determination Date:
(i) the aggregate of Top-Heavy Account Balances for Key Employees is
more than sixty percent (60%) of the aggregate of all Top-Heavy Account
Balances, excluding for this purpose the aggregate Top-Heavy Account
Balances of Former Key Employees; or
(ii) if the Plan is included in a Required Aggregate Group that is a
Top-Heavy Group.
(b) If the Plan is included in a Required Aggregation Group that is
not a Top-Heavy Group, the Plan shall not be a Top-Heavy Plan notwithstanding
the fact that the Plan would otherwise be a Top-Heavy Plan under Paragraph (i)
of Subsection (a) of this Section.
(c) If the Plan is included in a Permissive Aggregation Group that is
not a Top-Heavy Group, the Plan shall not be a Top-Heavy Plan notwithstanding
the fact that the Plan would otherwise be a Top-Heavy Plan under Subsection (a)
of this Section.
16.3 Determination of Extra Top-Heavy Status
(a) Except as provided by Subsections (a) and (b) of this Section,
the Plan shall be an Extra Top-Heavy Plan if, as of the Determination Date:
(i) the aggregate of Top-Heavy Account Balances for Key Employees is
more than ninety percent (90%) of the aggregate of all Top-Heavy Account
Balances, excluding for this purpose the aggregate Top-Heavy Account
Balances of Former Key Employees; or
<PAGE> 107
102
(ii) if the Plan is included in a Required Aggregation Group that is
an Extra Top-Heavy Group.
(b) If the Plan is included in a Required Aggregation Group that is
not an Extra Top-Heavy Group, the Plan shall not be an Extra Top-Heavy Plan
notwithstanding the fact that the Plan would otherwise be an Extra Top-Heavy
Plan under Paragraph (i) of Subsection (a) of this Section.
(c) If the Plan is included in a Permissive Aggregation Group that is
not an Extra Top-Heavy Group, the Plan shall not be an Extra Top-Heavy Plan
notwithstanding the fact that the Plan would otherwise be an Extra Top-Heavy
Plan under Subsection (a) of this Section.
16.4 Requirements
Notwithstanding any other provisions of the Plan to the contrary, if
the Plan is Top-Heavy for any Plan Year, the Plan shall then satisfy the
following requirements for any such Plan Year:
(a) A Participant shall continue to have a nonforfeitable right to
all amounts allocated to his Account.
(b)(i) Each Non-Key Employee who is eligible to share in any Employer
Matching Contributions for such Plan Year (or who would have been
eligible to share in any such Employer Matching Contributions if a
Before-Tax Contribution or After-Tax Contribution had been made for him
during such Plan Year) shall be entitled to receive an allocation of such
Employer Matching Contributions, that is at least equal to three percent
(3%) of his Compensation for such Plan Year.
(ii) The three percent (3%) minimum contribution requirement under
Paragraph (i) of this Subsection for a
<PAGE> 108
103
Non-Key Employee shall be increased to four percent (4%) if the Employer
maintains a Defined Benefit Plan that does not cover such Non-Key
Employee.
(iii) The percentage minimum contribution requirement set forth in
Paragraphs (i) and (ii) of this Subsection with respect to a Plan Year
shall not exceed the percentage at which Employer Matching Contributions
are made (or required to be made) under the Plan for such Plan Year for
the Key Employee for whom such percentage is the highest for such Year.
(iv) The percentage minimum contribution requirement set forth in
Paragraphs (ii) and (iii) of this Subsection may also be reduced or
eliminated in accordance with Section 16.5(b).
(v) For the purpose of Paragraph (iii) of this Subsection,
contributions taken into account shall include like contributions under
all other Defined Contribution Plans in the Required Aggregation Group,
excluding any such plan in the Required Aggregation Group if that plan
enables a Defined Benefit Plan in such Required Aggregation Group to meet
the requirements of Code Sections 401(a)(4) or 410.
(vi) For the purpose of this Subsection, the term "Employer Matching
Contributions" shall include Before-Tax Contributions made for an
Employee.
(c) If the Employer maintains a Defined Benefit Plan that could or
does provide benefits to Participants in this Plan:
(i) If the Plan is not an Extra Top-Heavy Plan (but is a Top-Heavy
Plan), then the percentage minimum contribution requirement in Paragraph
(i) of Section (b) of this Section shall be seven and one-half percent (7
1/2%) for a Non-Key Employee who is covered by this Plan and the Defined
Benefit Plan.
<PAGE> 109
104
(ii) If the Plan is an Extra Top-Heavy Plan, then parts (i) and (ii)
of Section 5.7(a) shall be calculated by substituting "1.0" for "1.25"
for each place such "1.25" figure appears, and Code Section
415(e)(6)(B)(I) shall be calculated by substituting "$41,500" for
"$51,875" for each place such "$51,875" amount appears.
16.5 Coordination With Other Plans
(a) In applying this Article, an Employer and all Controlled Group
Members shall be treated as a single employer, and the qualified plans
maintained by such single employer shall be taken into account.
(b) In the event that another Defined Contribution Plan or Defined
Benefit Plan maintained by the Controlled Group provides contributions or
benefits on behalf of Participants in this Plan, such other plan(s) shall be
taken into account in determining whether this Plan satisfies Section 16.4; and
the minimum contribution required for a Non-Key Employee in this Plan under
Section 16.4(c) will be reduced or eliminated, in accordance with the
requirements of Code Section 416 and the regulations thereunder, if a minimum
contribution or benefit is made or accrued in whole or in part in respect of
such other plan(s).
(c) Principles similar to those specifically applicable to this Plan
under this Article, and in general as provided for in Code Section 416 and the
regulations thereunder, shall be applied to the other plan(s) required to be
taken into account under this Article in determining whether this Plan and such
other plan(s) meet the requirements of such Code Section 416 and the
regulations thereunder.
* * * * * *
<PAGE> 110
105
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Amendment and Restatement of the Plan to be executed by their duly appointed
officers, effective January 1, 1994.
In the presence of: ROADWAY SERVICES, INC.
By:
- ------------------------------ ---------------------------
Title:
NATIONAL CITY BANK
By:
- ------------------------------ ---------------------------
Title:
<PAGE> 111
EXHIBIT A
Employers Pursuant to Section 2.21
As of January 1, 1994
The Company
Summit Information Systems, Inc.
Roadway Express, Inc.
Roadway Global Air, Inc.
Roadway Logistics Systems, Inc.
MediQuik Express, Inc.
Pivot Systems, Inc.
ROLS Dedicated Transportation, Inc.
Roadway Package System, Inc.
Roadway Tire Co.
Roberts Transportation Services, Inc.
Roberts Express, Inc.
Spartan Express, Inc.
<PAGE> 112
EXHIBIT B
Additional Investment Funds Pursuant to Section 7.1
As of January 1, 1994
(1) The Merrill Lynch Ready Assets Trust, a no-load money market fund
seeking preservation of capital, liquidity, and the highest possible current
income consistent with the foregoing objectives available from investing in a
diversified portfolio of short-term money market securities and managed by
Merrill Lynch Asset Management, Inc.
(2) The Intermediate Term Portfolio of the Merrill Lynch Corporate
Bond Fund, Inc., a professionally managed, diversified, open-end investment
company consisting of the Intermediate Term Portfolio and two other Portfolios.
The Intermediate Term Portfolio invests primarily in bonds rated in the four
highest categories with a maximum remaining maturity not to exceed ten years
and seeks to provide as high a level of current income as is consistent with
the foregoing investment policies and prudent investment management. Fund
Asset Management, Inc. is the Investment Advisor of this Fund.
(3) The Phoenix Balanced Fund Series (the "Balanced Series") that
seeks as its investment objectives, reasonable income, long-term capital growth
and conservation of capital. The Balanced Series may invest in any type of
security. Normally, it will invest in common stocks and fixed income
securities; however, it may invest in securities convertible to common stocks.
At least twenty-five percent (25%) of its assets will be invested in fixed
income senior securities. The Balanced Series may also engage in certain
option transactions and enter into financial futures contracts and related
options of hedging purposes and may invest in deferred or zero coupon debt
obligations.
<PAGE> 1
Exhibit 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Stock Savings and Retirement Income Plan and Trust
of Roadway Services, Inc. for the registration of 1,700,000 shares of its
Common Stock of our reports (a) dated January 25, 1994, with respect to the
consolidated financial statements and schedules of Roadway Services, Inc. and
subsidiaries included or incorporated by reference in its Annual Report (Form
10-K) for the year ended December 31, 1993 and (b) dated May 21, 1993, with
respect to the financial statements of the Roadway Services, Inc. Stock Savings
and Retirement Income Plan and Trust included in the Plan's Annual Report (Form
11-K) for the year ended December 31, 1992, filed with the Securities and
Exchange Commission.
ERNST & YOUNG
March 8, 1994
<PAGE> 1
Exhibit 24(a)
DIRECTORS AND OFFICERS OF
ROADWAY SERVICES, INC.
STOCK SAVINGS AND RETIREMENT INCOME PLAN AND TRUST
(AMENDED AND RESTATED)
REGISTRATION STATEMENT ON FORM S-8
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of Roadway Services, Inc., an Ohio corporation (the "Company"),
hereby constitutes and appoints John M. Glenn and Douglas A. Wilson, and each
of them, with full power of substitution and resubstitution, as the true and
lawful attorney-in-fact and agent of the undersigned, to sign and file on his
behalf and in his name, place and stead, in any and all capacities, under the
Securities Act of 1933, one or more Registration Statements on Form S-8
relating to the registration, offer and sale of such number of shares of common
stock, without par value, as they or either of them shall determine from time
to time, issued and to be issued or acquired in connection with the Company's
Stock Savings and Retirement Income Plan and Trust (Amended and Restated) (the
"Plan") and participation interests in the Plan, and any and all amendments and
exhibits thereto, including post-effective amendments, and any and all
applications or other documents to be filed with the Securities and Exchange
Commission or any state regulatory authority, including any state securities
regulatory board or commission, pertaining to the securities subject to such
registrations, with full power and authority to do and perform any and all acts
and things whatsoever required and necessary to be done in the premises, hereby
ratifying and approving the acts of said attorneys and either of them and any
such substitute.
EXECUTED this 28th day of February, 1994.
<TABLE>
<S> <C>
JOSEPH M. CLAPP ROBERT E. MERCER
- ------------------------------------- ---------------------------------------
Joseph M. Clapp Robert E. Mercer
DANIEL J. SULLIVAN
- ------------------------------------- ---------------------------------------
Daniel J. Sullivan G. James Roush
GEORGE B. BEITZEL
- ------------------------------------- ---------------------------------------
George B. Beitzel William Sword
- ------------------------------------- ---------------------------------------
Richard A. Chenoweth Sarah Roush Werner
NORMAN C. HARBERT DOUGLAS A. WILSON
- ------------------------------------- ---------------------------------------
Norman C. Harbert Douglas A. Wilson
CHARLES R. LONGSWORTH ROY E. GRIGGS
- ------------------------------------- ---------------------------------------
Charles R. Longsworth Roy E. Griggs
</TABLE>
<PAGE> 1
Exhibit 24(b)
ROADWAY SERVICES, INC.
EMPLOYEE STOCK SAVINGS PLAN AND TRUST
(AMENDED AND RESTATED)
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
members of the Roadway Services, Inc. Employee Stock Savings Plan and Trust
(Amended and Restated) Committee hereby constitutes and appoints John M. Glenn,
Douglas A. Wilson and Janet Coquillette, and each of them, with full power of
substitution and resubstitution, as the true and lawful attorney-in-fact and
agent of the undersigned, to sign and file on his behalf and in his name, place
and stead, in any and all capacities, under the Securities Act of 1933, one or
more Registration Statements on Form S-8 relating to the registration, offer
and sale of participations and participation interests in the Roadway Services,
Inc. Employee Stock Savings Plan and Trust (Amended and Restated), as the same
may from time to time hereafter be amended or restated (the "Plan"), and any
and all amendments and exhibits thereto, including post-effective amendments,
and any and all applications or other documents to be filed with the Securities
and Exchange Commission or any state regulatory authority including any state
securities regulatory board or commission pertaining to the securities subject
to such registrations, with full power and authority to do and perform any and
all acts and things whatsoever required and necessary to be done in the
premises, hereby ratifying and approving the acts of said attorneys and any of
them and any such substitute.
EXECUTED this 7th day of December, 1988.
<TABLE>
<S> <C>
J. DAWSON CUNNINGHAM DOUGLAS A. WILSON
- ----------------------------------- ------------------------------------
J. Dawson Cunningham Douglas A. Wilson
A. C. SNELSON
- -----------------------------------
A. C. Snelson
</TABLE>
