<PAGE> 1
As filed with the Securities and Exchange Commission on December 28, 1995
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)
OHIO 34-1365496
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
1077 Gorge Boulevard, Akron, Ohio 44310
(Address of Principal Executive Offices Including Zip Code)
VIKING FINANCIAL SECURITY PLAN
(Full Title of the Plan)
Douglas A. Wilson
P.O. Box 88
1077 Gorge Boulevard, 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
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price per offering registration
registered registered (1) share (2) price (2) fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of
Common Stock,
without par value 150,000 $49.56 $7,434,000 $1,486.80
- -----------------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Pursuant to Rule 416(c) of the Securities Act of 1933 (the "Securities Act"), an indeterminate amount of interests in the
Viking Financial Security Plan (the "Plan") are deemed to be registered hereby.
(2) Estimated solely for the purpose of calculating the amount of the registration fee, pursuant to paragraph (h) of Rule 457 of
the General Rules and Regulations under the Securities Act, on the basis of the average of the high and low prices of the
common stock, without par value, on the New York Stock Exchange on December 26, 1995.
</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 Viking Financial Security Plan (the "Plan") with the
Securities and Exchange Commission (the "Commission") are incorporated herein
by reference:
(1) Annual Report of the Company on Form 10-K for the year ended
December 31, 1994;
(2) Annual Report of the Plan on Form 11-K for the year ended
December 31, 1994;
(3) Quarterly Reports of the Company on Form 10-Q for the quarters
ended March 25, 1995; June 17, 1995; and September 9, 1995;
(4) Current Reports of the Company on Form 8-K dated January 17,
1995; August 23, 1995; and November 17, 1995; and
(5) The description of the Company's common stock without par
value contained in the Company's Registration Statement filed
pursuant to Section 12 of the Securities Exchange Act of 1934
(the "Exchange Act"), including any amendments and reports
filed for the purpose of updating that description.
All documents that shall be filed by the Company and the Plan pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
filing of this post-effective amendment to registration statement and prior to
the filing of a post-effective amendment indicating that all securities offered
under the Plan have been sold or deregistering all securities then remaining
unsold thereunder shall be deemed to be incorporated herein by reference and
shall be deemed to be a part hereof from the date of filing thereof.
ITEM 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 incurred by him after the date of settlement in
conducting litigation to a finalconclusion. The foregoing right of
indemnification shall not be exclusive of other rights to which any
II-1
<PAGE> 3
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) Viking Financial Security Plan.
(d) Form of Amendment No. 1 to the Viking Financial Security Plan.
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
this Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in this Registration
Statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar value
of securities offered would not exceed that
which was registered) and any deviation from
the low or high and of the estimated maximum
offering range may be reflected in the form
of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no
more than 20 percent change in the maximum
aggregate offering price set forth
in the "Calculation of Registration Fee"
table in the effective registration statement;
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<PAGE> 4
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in this Registration Statement shall be deemed to be
a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be in the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by
it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE> 5
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING THIS REGISTRATION STATEMENT ON FORM S-8 AND
HAS DULY CAUSED THIS TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY
THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF AKRON, STATE OF
OHIO, ON THIS 14TH DAY OF DECEMBER 1995.
ROADWAY SERVICES, INC.
By: /s/ John M. Glenn
-----------------
Name: John M. Glenn
Title: Vice President and General Counsel
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<PAGE> 6
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> <C>
* Daniel J. Sullivan Director; Chairman of the Board,
------------------
Daniel J. Sullivan President, and December 14, 1995
Chief Executive Officer
(Principal Executive Officer)
* Douglas A. Wilson Senior Vice President- December 14, 1995
-----------------
Douglas A. Wilson Finance and Planning,
Secretary, and Chief Financial Officer
(Principal Financial Officer)
* Roy E. Griggs Vice President and December 14, 1995
-------------
Roy E. Griggs Controller (Principal
Accounting Officer)
Director December 14, 1995
--------------------
George B. Beitzel
* Richard A. Chenoweyh Director December 14, 1995
--------------------
Richard A. Chenoweth
* Norman C. Harbert Director December 14, 1995
-----------------
Norman C. Harbert
Director December 14, 1995
---------------------
Charles R. Longsworth
* Robert E. Mercer Director December 14, 1995
----------------
Robert E. Mercer
* G. James Roush Director December 14, 1995
--------------
G. James Roush
* William Sword Director December 14, 1995
-------------
William Sword
Director December 14, 1995
-----------------------
H. Mitchell Watson, Jr.
* Sarah Roush Werner Director December 14, 1995
------------------
Sarah Roush Werner
</TABLE>
*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: December 14, 1995 By: /s/ John M. Glenn
---------------------------------
John M. Glenn, Attorney-in-Fact
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<PAGE> 7
THE PLAN. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE TRUSTEES (OR OTHER PERSONS WHO ADMINISTER THE EMPLOYEE BENEFIT PLAN) HAVE
DULY CAUSED THIS AMENDMENT TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF AKRON, STATE OF
OHIO, ON DECEMBER 14, 1995.
VIKING FINANCIAL SECURITY PLAN
*By: Randolph C. Bangham
--------------------------------------------------------
Name: Randolph C. Bangham
Title: Chairman of the Viking Financial Security Plan Committee
* This registration statement has been signed on behalf of the Viking
Financial Security Plan by John M. Glenn, Vice President and General Counsel of
the registrant, as attorney-in-fact pursuant to a power of attorney filed as
Exhibit 24(b) to this registration statement.
DATED: December 14, 1995 By: /s/ John M. Glenn
-------------------------------
John M. Glenn, Attorney-in-Fact
II-6
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Pagination by
sequential
Exhibit Exhibit numbering
Number Description system
------ ----------- ------
<S> <C> <C>
4(a) Restated Amended Articles of Incorporation of the Company (filed as Exhibit
4(a) to Post-Effective Amendment No. 2 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) Viking Financial Security Plan.
(d) Form of Amendment No. 1 to the Viking Financial Security Plan.
23 Consent of Independent Auditors.
24(a) Power of Attorney on behalf of the Company.
(b) Power of Attorney on behalf of the Plan.
</TABLE>
II-7
<PAGE> 1
Exhibit 4(c)
VIKING
FINANCIAL SECURITY PLAN
Plan and Trust Agreement
Second Complete
Amendment and Restatement
Generally Effective July 1, 1992
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
1 DEFINITIONS 1
-----------
2 ELIGIBILITY 9
-----------
2.1 Eligibility 9
2.2 Ineligible Employees 9
2.3 Ineligible or Former Participants 9
3 PARTICIPANT CONTRIBUTIONS 10
-------------------------
3.1 Before-Tax Contribution Election 10
3.2 Changing a Contribution Election 10
3.3 Revoking and Resuming a Contribution Election 10
3.4 Contribution Percentage Limits 10
3.5 Refunds When Contribution Dollar Limit Exceeded 11
3.6 Timing, Posting and Tax Considerations 11
4 ROLLOVERS & TRUST-TO-TRUST TRANSFERS 12
------------------------------------
4.1 Rollovers 12
4.2 Transfers From Other Qualified Plans 12
5 EMPLOYER CONTRIBUTIONS 13
----------------------
5.1 Company Match Contributions 13
6 ACCOUNTING 14
----------
6.1 Individual Participant Accounting 14
6.2 Sweep Account is Transaction Account 14
6.3 Trade Data Accounting and Investment Cycle 14
6.4 Accounting for Investment Funds 14
6.5 Payment of Fees and Expenses 14
6.6 Accounting for Participant Loans 15
6.7 Error Correction 15
6.8 Participant Statements 15
6.9 Special Accounting During Conversion Period 16
6.10 QDROs 16
7 INVESTMENT FUNDS AND ELECTIONS 17
------------------------------
7.1 Investment Funds 17
7.2 Investment Fund Elections 17
7.3 Responsibility for Investment Choice 17
7.4 Default if No Election 17
7.5 Timing 18
7.6 Investment Fund Election Change Fees 18
8 VESTING 19
-------
8.1 Fully Vested Contribution Accounts 19
</TABLE>
i
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<TABLE>
<S> <C> <C>
9 PARTICIPANT LOANS 20
-----------------
9.1 Participant Loans Permitted 20
9.2 Loan Application, Note and Security 20
9.3 Spousal Consent 20
9.4 Loan Approval 20
9.5 Loan Funding Limits 20
9.6 Maximum Number of Loans 21
9.7 Source and Timing of Loan Funding 21
9.8 Interest Rate 21
9.9 Repayment 21
9.10 Repayment Hierarchy 22
9.11 Repayment Suspension 22
9.12 Loan Default 22
9.13 Call Feature 22
10 IN-SERVICE WITHDRAWALS 23
-----------------------
10.1 In-Service Withdrawals Permitted 23
10.2 In-Service Withdrawal Application and Notice 23
10.3 Spousal Consent 23
10.4 In-Service Withdrawal Approval 23
10.5 Minimum Amount, Payment Form and Medium 23
10.6 Source and Timing of In-Service Withdrawal Funding 24
10.7 Hardship Withdrawals 24
10.8 After-Tax Account Withdrawals 25
10.9 Rollover Account Withdrawals 26
10.10 Over Age 59 1/2 Withdrawals 26
11 DISTRIBUTIONS ONCE EMPLOYMENT ENDS, UPON DISABILITY OR AS
---------------------------------------------------------
REQUIRED BY LAW 27
---------------
11.1 Benefit Information, Notices and Election 27
11.2 Spousal Consent 27
11.3 Payment Form and Medium 27
11.4 Distribution of Small Amounts 28
11.5 Source and Timing of Distribution Funding 28
11.6 Latest Commencement Permitted 28
11.7 Payment Within Life Expectancy 29
11.8 Incidental Benefit Rule 29
11.9 Payment to Beneficiary 29
11.10 Beneficiary Designation 29
12 ADP AND ACP TESTS 30
-----------------
12.1 Contribution Limitation Definitions 30
12.2 ADP and ACP Tests 33
12.3 Correction of ADP and ACP Tests 33
12.4 Multiple Use Test 34
12.5 Correction of Multiple Use Test 34
12.6 Adjustment for Investment Gain or Loss 34
12.7 Testing Responsibilities and Required Records 34
12.8 Separate Testing 35
</TABLE>
ii
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<TABLE>
<S> <C> <C>
13 MAXIMUM CONTRIBUTION AND BENEFIT LIMITATIONS 36
--------------------------------------------
13.1 "Annual Addition" Defined 36
13.2 Maximum Annual Addition 36
13.3 Avoiding an Excess Annual Addition 36
13.4 Correcting an Excess Annual Addition 36
13.5 Correcting a Multiple Plan Excess 37
13.6 "Defined Benefit Fraction" Defined 37
13.7 "Defined Contribution Fraction" Defined 37
13.8 Combined Plan Limits and Correction 37
14 TOP HEAVY RULES 38
---------------
14.1 Top Heavy Definitions 38
14.2 Special Contributions 39
14.3 Adjustment to Combined Limits for Different Plans 40
15 PLAN ADMINISTRATION 41
-------------------
15.1 Plan Delineates Authority and Responsibility 41
15.2 Fiduciary Standards 41
15.3 Company is ERISA Plan Administrator 41
15.4 Administrator Duties 42
15.5 Advisors May be Retained 42
15.6 Delegation of Administrator Duties 43
15.7 Committee Operating Rules 43
16 MANAGEMENT OF INVESTMENTS 44
-------------------------
16.1 Trust Agreement 44
16.2 Investment Funds 44
16.3 Authority to Hold Cash 45
16.4 Trustee to Act Upon Instructions 45
16.5 Administrator Has Right to
Vote Registered Investment Company Shares 45
16.6 Custom Fund Investment Management 45
16.7 Authority to Segregate Assets 46
16.8 Maximum Permitted Investment in Roadway Stock 46
16.9 Participants Have Right to Vote and Tender Roadway
Stock 46
16.10 Registration and Disclosure for Roadway Stock 47
17 TRUST ADMINISTRATION 48
--------------------
17.1 Trustee to Construe Trust 48
17.2 Trustee To Act As Owner of Trust Assets 48
17.3 United States Indicia of Ownership 48
17.4 Tax Withholding and Payment 49
17.5 Trustee Duties and Limitations 49
17.6 Trust Accounting 49
17.7 Valuation of Certain Assets 50
17.8 Legal Counsel 50
17.9 Fees and Expenses 50
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
18 RIGHTS, PROTECTION, CONSTRUCTION AND JURISDICTION 51
-------------------------------------------------
18.1 Plan Does Not Affect Employment Rights 51
18.2 Limited Return of Contributions 51
18.3 Assignment and Alienation 51
18.4 Facility of Payment 52
18.5 Reallocation of Lost Participant's Accounts 52
18.6 Claims Procedure 52
18.7 Construction 53
18.8 Jurisdiction and Severability 53
18.9 Indemnification by Employer 53
19 AMENDMENT, MERGER, DIVESTITURES AND TERMINATION 54
-----------------------------------------------
19.1 Amendment 54
19.2 Merger 54
19.3 Divestitures 54
19.4 Plan Termination 55
19.5 Amendment and Termination Procedures 55
19.6 Termination of Employer's Participation 56
19.7 Replacement of the Trustee 56
19.8 Final Settlement and Accounting of Trustee 56
APPENDIX A - INVESTMENT FUNDS 58
APPENDIX B - PAYMENT OF PLAN FEES AND EXPENSES 59
APPENDIX C - LOAN INTEREST RATE 60
</TABLE>
iv
<PAGE> 6
1 DEFINITIONS
-----------
When capitalized, the words and phrases below have the following
meanings unless different meanings are clearly required by the context:
1.1 "Account". The records maintained for purposes of accounting
for a Participant's interest in the Plan. "Account" may refer to
one or all of the following accounts which have been created on
behalf of a Participant to hold specific types of Contributions
under the Plan:
(a) "Before-Tax Account". An account created to hold
Before-Tax Contributions.
(b) "After-Tax Account". An account created to hold
After-Tax Contributions.
(c) "Rollover Account" . An account created to hold Rollover
Contributions.
(d) "Company Match Account". An account created to hold Company
Match Contributions.
1.2 "ACP" or "Average Contribution Percentage". The percentage
calculated in accordance with Section 12.1.
1.3 "Administrator". The Company, which may delegate all or a
portion of the duties of the Administrator under the Plan to a
Committee in accordance with Section 15.6.
1.4 "ADP" or "Average Deferral Percentage". The percentage
calculated in accordance with Section 12.1.
1.5 "Beneficiary". The person or persons who is to receive benefits
after the death of the Participant pursuant to the "Beneficiary
Designation" paragraph in Section 11.
1.6 "Code". The Internal Revenue Code of 1986, as amended. Reference
to any specific Code section shall include such section, any
valid regulation promulgated thereunder, and any comparable
provision of any future legislation amending, supplementing or
superseding such section.
1.7 "Committee". The administrative committee appointed by the
Company and charged with the general administration of the Plan
pursuant to Section 15.6.
1.8 "Company". Viking Freight System, Inc., a California
corporation or any successor by merger or consolidation or any
successor that otherwise assumes the obligations of the Company
under the Plan.
1
<PAGE> 7
1.9 "Compensation". The sum of a Participant's Taxable Income
and salary reductions, if any, pursuant to Code sections
125, 402(e)(3), 402(h), 403(b), 414(h)(2) or 457.
For purposes of determining benefits under this Plan,
Compensation is limited to $200,000 (as indexed for the
cost of living pursuant to Code sections 401(a)(17) and
415(d)) per Plan Year. For purposes of determining
benefits under this Plan for Plan Years beginning after
December 31, 1993, Compensation is limited to $150,000 (as
indexed for the cost of living pursuant to Code sections
401(a)(17) and 415(d)) per Plan Year.
For purposes of the preceding sentences, in the case of an
HCE who is a 5% Owner or one of the 10 most highly
compensated Employees, (i) such HCE and such HCE's family
group (as defined below) shall be treated as a single
employee and the Compensation of each family group member
shall be aggregated with the Compensation of such HCE, and
(ii) the limitation on Compensation shall be allocated
among such HCE and his or her family group members in
proportion to each individual's Compensation before the
application of this sentence. For purposes of this
Section, the term "family group" shall mean an Employee's
spouse and lineal descendants who have not attained age 19
before the close of the year in question.
For the purpose of determining HCEs and key employees,
Compensation for the entire Plan Year shall be used. For
the purpose of determining ADP and ACP, Compensation shall
be limited to amounts paid to an Eligible Employee while a
Participant.
1.10 "Contribution". An amount contributed to the Plan by the
Employer or an Eligible Employee, and allocated by
contribution type to Participants' Accounts, as described
in Section 1.1. Specific types of contribution include:
(a) "Before-Tax Contribution". An amount contributed by
the Employer on an eligible Participant's behalf in
conjunction with a Participant's Code section 401(k)
salary deferral election.
(b) "After-Tax Contribution". An amount previously
contributed by a Participant on an after-tax basis
under former Plan provisions, which continue to be
accounted for in the Plan.
(c) "Rollover Contribution". An amount contributed by an
Eligible Employee which originated from another
employer's qualified plan and any amount formerly
contributed by an Eligible Employee which originated
as a result of the termination of the Employee Stock
Ownership Plan previously sponsored by the Company or
a Related Company.
2
<PAGE> 8
(d) "Company Match Contribution". An amount contributed by the
Employer on an eligible Participant's behalf based upon the
amount contributed by the eligible Participant.
1.11 "Contribution Dollar Limit". The annual limit placed on each
Participant's Before-Tax Contributions, which shall be $7,000 per
calendar year (as indexed for the cost of living pursuant to Code
sections 402(g)(5) and 415(d)). For purposes of this Section, a
Participant's Before-Tax Contributions 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(e)(3); (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)).
1.12 "Direct Rollover". A payment from the Plan to an Eligible Retirement Plan
specified by a Distributee.
1.13 "Disability". The inability of a Participant to perform the duties
assigned to him or her by his or her Employer for an extended period by
reason of a mental or physical condition, as determined by the Company's
Executive Committee.
1.14 "Distributee". An Employee or former Employee, the surviving spouse of an
Employee or former Employee and a spouse or former spouse of an Employee
or former Employee determined to be an alternate payee under a QDRO.
1.15 "Effective Date". July 1, 1992, unless stated otherwise. The date upon
which the provisions of this document become effective. In general, the
provisions of this document only apply to Participants who are Employees
on or after the Effective Date. However, investment and distribution
provisions apply to all Participants with Account balances to be invested
or distributed after the Effective Date.
1.16 "Eligible Employee". An Employee of an Employer except any Employee:
(a) whose compensation and conditions of employment are covered by a
collective bargaining agreement to which an Employer is a party
unless the agreement calls for the Employee's participation in the
Plan; or
(b) who is treated as an Employee because he or she is a Leased
Employee; or
(c) who is classified as a supplemental Employee.
3
<PAGE> 9
Notwithstanding an Employee who was classified as a
supplemental Employee and a Participant on January 1, 1985
shall be included as an Eligible Employee.
1.17 "Eligible Retirement Plan" . An individual retirement
account described in Code section 408(a), an individual
retirement annuity described in Code section 408(b), an
annuity plan described in Code section 403(a), or a
qualified trust described in Code section 401(a), that
accepts a Distributee's Eligible Rollover Distribution,
except that with regard to an Eligible Rollover
Distribution to a surviving spouse, an Eligible Retirement
Plan is an individual retirement account or individual
retirement annuity.
1.18 "Eligible Rollover Distribution". A distribution of all
or any portion of the balance to the credit of a
Distributee, excluding a distribution that is one of a
series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of a Distributee or the joint lives (or joint
life expectancies) of a Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten
years or more; a distribution to the extent such
distribution is required under Code section 401(a)(9); and
the portion of a distribution that is not includible in
gross income (determined without regard to the exclusion
for net unrealized appreciation with respect to Employer
securities).
1.19 "Employee". An individual who is:
(a) directly employed by any Related Company and for whom
any income for such employment is subject to
withholding of income or social security taxes, or
(b) a Leased Employee.
1.20 "Employer". The Company and any Subsidiary or other
Related Company of either the Company or a Subsidiary
which adopts this Plan with the approval of the Company.
1.21 "ERISA". The Employee Retirement Income Security Act of
1974, as amended. Reference to any specific section shall
include such section, any valid regulation promulgated
thereunder, and any comparable provision of any future
legislation amending, supplementing or superseding such
section.
1.22 "Execution Date". The date on which this Plan and Trust
document is executed .
1.23 "HCE" or "Highly Compensated Employee". An Employee
described as a Highly Compensated Employee in Section 12.
4
<PAGE> 10
1.24 "Hour of Service". Each hour for which an Employee is entitled to:
(a) payment for the performance of duties for any Related Company;
(b) payment from any Related Company for any period during which no
duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, sickness,
incapacity (including disability), layoff, leave of absence, jury
duty or military service;
(c) back pay, irrespective of mitigation of damages, by award or
agreement with any Related Company (and these hours shall be
credited to the period to which the agreement pertains); or
(d) no payment, but is on a Leave of Absence (and these hours shall be
based upon his or her normally scheduled hours per week or a 40 hour
week if there is no regular schedule).
The crediting of hours for which no duties are performed shall be in
accordance with Department of Labor regulation sections 2530.200b-2(b)
and (c). Actual hours shall be used whenever an accurate record of hours
are maintained far an Employee. Otherwise, an equivalent number of hours
shall be credited for each payroll period in which the Employee would be
credited with at least 1 hour. The payroll period equivalencies are 45
hours weekly, 90 hours biweekly, 95 hours semimonthly and 190 hours
monthly.
An Employee's service with a predecessor or acquired company shall only
be counted in the determination of his or her Hours of Service for
eligibility and/or vesting purposes if (1) the Company directs that
credit for such service be granted, or (2) a qualified plan of the
predecessor or acquired company is subsequently maintained by any
Employer or Related Company.
Effective January 1, 1993, the Company has directed that an Employee's
service with Cole Express, Inc. or Cole Enterprises prior to June 24,
1992, shall be counted in the determination of his or her Hours of
Service for eligibility and/or vesting purposes.
1.25 "Ineligible". The Plan status of an individual during the period in which
he or she is (1) an Employee of a Related Company which is not then an
Employer, (2) an Employee, but not an Eligible Employee, or (3) not an
Employee.
1.26 "Investment Fund" or "Fund". An investment fund as described in Section
16.2. The Investment Funds authorized by the Administrator to be offered
as of the Execution Date to Participants and Beneficiaries are as set
forth in Appendix A.
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<PAGE> 11
1.27 "Leased Employee". An individual who is deemed to be an employee of any
Related Company as provided in Code section 414(n) or (o).
1.28 "Leave of Absence". A period during which an individual is deemed to be
an Employee, but is absent from active employment, provided that the
absence:
(a) was approved by an Employer in keeping with its established uniform
policies as to sick or personal leave;
(b) was due to layoff followed by a return to work within the
requirements of uniform Employer policies; or
(c) was due to military service in the United States armed forces and
the individual returns to active employment within the period during
which he or she retains employment rights under federal law.
1.29 "NHCE" or "Non-Highly Compensated Employee". An Employee described as
a Non-Highly Compensated Employee in Section 12.
1.30 "Normal Retirement Date". The date of a Participant's 59 1/2th birthday.
1.31 "Owner". A person with an ownership interest in the capital, profits,
outstanding stock or voting power of a Related Company within the meaning
of Code section 318 or 416 (which exclude indirect ownership through a
qualified plan).
1.32 "Participant". An Eligible Employee who begins to participate in the Plan
after completing the eligibility requirements as described in Section
2.1. An Eligible Employee who makes a Rollover Contribution prior to
completing the eligibility requirements as described in Section 2.1 shall
also be considered a Participant except for purposes of provisions
related to Contributions (other than a Rollover Contribution). A
Participant's participation continues until his or her employment with
all Related Companies ends and his or her Account is distributed or
forfeited.
1.33 "Pay". All cash compensation paid to an Eligible Employee by an Employer
while a Participant during the current period. Pay excludes
reimbursements or other expense allowances, cash and non-cash fringe
benefits, moving expenses, deferred compensation and welfare benefits.
Pay is neither increased nor decreased by any salary credit or reduction
pursuant to Code sections 125 or 402(e)(3). Pay is limited to $200,000
(as indexed for the cost of living pursuant to Code sections 401(a)(17)
and 415(d)) per Plan Year. Pay is limited to $150,000 (as indexed for the
cost of living pursuant to Code sections 401(a)(17) and 415(d)) per Plan
Year effective for Plan Years beginning after December 31, 1993.
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<PAGE> 12
1.34 "Plan". The Viking Financial Security Plan set forth in this
document, as from time to time amended.
1.35 "Plan Year". The annual accounting period of the Plan and
Trust which ends on each December 31.
1.36 "QDRO". A domestic relations order which the Administrator
has determined to be a qualified domestic relations order
within the meaning of Code section 414(p).
1.37 "Related Company" . With respect to any Employer, that
Employer and any corporation, trade or business which is,
together with Roadway and that Employer, a member of the
same controlled group of corporations, a trade or business
under common control, or an affiliated service group within
the meaning of Code section 414(b), (c), (m) or (o).
1.38 "Roadway". Roadway Services, Inc., the parent corporation of
the Company.
1.39 "Roadway Stock". Shares of common stock of Roadway Services,
Inc., its successors or assigns, or any corporation with or
into which said corporation may be merged, consolidated or
reorganized, or to which a majority of its assets may be
sold.
1.40 "Settlement Date". For each Trade Date, the Trustee's next
business day.
1.41 "Spousal Consent". The written consent given by a spouse to
a Participant's election or waiver of a specified form of
benefit, including a loan or in-service withdrawal, or
Beneficiary designation. The spouse's consent must
acknowledge the effect on the spouse of the Participant's
election, waiver or designation and be duly witnessed by a
Plan representative or notary public. Spousal Consent shall
be valid only with respect to the spouse who signs the
Spousal Consent and only for the particular choice made by
the Participant which requires Spousal Consent. A
Participant may revoke (without Spousal Consent) a prior
election, waiver or designation that required Spousal
Consent at any time before payments begin. Spousal Consent
also means a determination by the Administrator that there
is no spouse, the spouse cannot be located, or such other
circumstances as may be established by applicable law.
1.42 "Subsidiary". A company which is 50% or more owned, directly
or indirectly, by the Company.
1.43 "Sweep Account". The subsidiary Account for each Participant
through which all transactions are processed, which is
invested in interest bearing deposits of the Trustee.
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<PAGE> 13
1.44 "Sweep Date". The cut off date and time for receiving
instructions for transactions to be processed on the next
Trade Date.
1.45 "Taxable Income". Compensation in the amount reported by
the Employer as "Wages, tips, other compensation" on Form W-2,
or any successor method of reporting under Code section 6041(d).
Taxable Income is limited to $200,000 (as indexed for the
cost of living pursuant to Code sections 401(a)(17) and
415(d)) per Plan Year. Taxable Income is limited to
$150,000 (as indexed for the cost of living pursuant to
Code sections 401(a)(17) and 415(d)) per Plan Year
effective for Plan Years beginning after December 31,
1993.
For purposes of the preceding sentences, in the case of an
HCE who is a 5% Owner or one of the 10 most highly
compensated Employees, (i) such HCE and such HCE's family
group (as defined below) shall be treated as a single
employee and the Taxable Income of each family group
member shall be aggregated with the Taxable Income of such
HCE, and (ii) the limitation on Taxable Income shall be
allocated among such HCE and his or her family group
members in proportion to each individual's Taxable Income
before the application of this sentence. For purposes of
this Section, the term "family group" shall mean an
Employee's spouse and lineal descendants who have not
attained age 19 before the close of the year in question.
1.46 "Trade Date". Each day the Investment Funds are valued,
which is normally every day the assets of such Funds are
traded.
1.47 "Trust". The legal entity created by those provisions of
this document which relate to the Trustee. The Trust is
part of the Plan and holds the Plan assets which are
comprised of the aggregate of Participants' Accounts and
any unallocated funds invested in deposit or money market
type assets pending allocation to Participants' Accounts
or disbursement to pay Plan fees and expenses.
1.48 "Trustee". Wells Fargo Bank, National Association.
8
<PAGE> 14
2 ELIGIBILITY
-----------
2.1 Eligibility
All Participants as of July 1, 1992 shall continue their eligibility
to participate. Each other Eligible Employee shall become a
Participant on the first day of the next month after the date he or
she attains age 21, and completes a 12 month eligibility period in
which he or she is credited with at least 1,000 Hours of Service.
The initial eligibility period begins on the date an Employee first
performs an Hour of Service. Subsequent eligibility periods begin
with the start of each Plan Year beginning after the first Hour of
Service is performed.
2.2 Ineligible Employees
If an Employee completes the above eligibility requirements, but is
Ineligible at the time participation would otherwise begin (if he or
she were not Ineligible), he or she shall become a Participant on
the first subsequent date on which he or she is an Eligible
Employee.
2.3 Ineligible or Former Participants
A Participant may not make or share in Plan Contributions during the
period he or she is Ineligible, nor generally be eligible for a new
Plan loan, except if such Ineligible Participant is an Employee, but
he or she shall continue to participate for all other purposes. An
Ineligible Participant or former Participant shall automatically
become an active Participant on the date he or she again becomes an
Eligible Employee.
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<PAGE> 15
3 PARTICIPANT CONTRIBUTIONS
-------------------------
3.1 Before-Tax Contribution Election
Upon becoming a Participant, an Eligible Employee may elect to
reduce his or her Pay by an amount which does not exceed the
Contribution Dollar Limit, within the limits described in the
Contribution Percentage Limits paragraph of this Section 3, and have
such amount contributed to the Plan by the Employer as a Before-Tax
Contribution. The election shall be made as a whole percentage of
Pay in such manner and with such advance notice as prescribed by the
Administrator. In no event shall an Employee's Before-Tax
Contributions under the Plan and comparable contributions to all
other plans, contracts or arrangements of all Related Companies
exceed the Contribution Dollar Limit for the Employee's taxable year
beginning in the Plan Year.
3.2 Changing a Contribution Election
A Participant who is an Eligible Employee may change his or her
Before-Tax Contribution election at any time in such manner and with
such advance notice as prescribed by the Administrator, and such
election shall be effective with the first payroll paid after such
date. Participants' Contribution election percentages shall
automatically apply to Pay increases or decreases.
3.3 Revoking and Resuming a Contribution Election
A Participant may revoke his or her Contribution election at the
same time in which a Participant may change his or her election in
such manner and with such advance notice as prescribed by the
Administrator, and such election shall be effective with the first
payroll paid after such date.
A Participant may resume Contributions by making a new Contribution
election at the same time in which a Participant may change his or
her election in such manner and with such advance notice as
prescribed by the Administrator, and such election shall be
effective with the first payroll paid after such date.
3.4 Contribution Percentage Limits
The Administrator may establish and change from time to time,
without the necessity of amending this Plan and Trust document, the
minimum, if applicable, and maximum Before-Tax Contribution
percentages, prospectively or retrospectively (for the current Plan
Year), for all Participants. In addition, the Administrator may
establish any lower percentage limits for Highly Compensated
Employees as it deems necessary. As of the Effective Date, the
Before-Tax Contribution maximum percentage is 15%.
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<PAGE> 16
Irrespective of the limits that may be established by the
Administrator in accordance with this paragraph, in no event shall
the contributions made by or on behalf of a Participant for a Plan
Year exceed the maximum allowable under Code section 415.
3.5 Refunds When Contribution Dollar Limit Exceeded
A Participant who makes Before-Tax Contributions for a calendar year to
this Plan and comparable contributions to any other qualified defined
contribution plan in excess of the Contribution Dollar Limit may notify
the Administrator in writing by the following March 1 (or as late as
April 14 if allowed by the Administrator) that an excess has occurred. In
this event, the amount of the excess specified by the Participant,
adjusted for investment gain or loss, shall be refunded to him or her by
April 15 and shall not be included as an Annual Addition under Code
section 415 for the year contributed. Refunds shall not include
investment gain or loss for the period between the end of the applicable
Plan Year and the date of distribution. However, for Plan Years ending
before December 31, 1993, refunds shall include investment gain or loss
for the period between the end of the applicable Plan Year and the date
of distribution. Any Company Match Contributions attributable to
refunded excess Before-Tax Contributions as described in this Section,
adjusted for investment gain or loss, shall be removed from the
Participant's Account and used to reduce subsequent Contributions under
the Plan as soon as is administratively feasible.
3.6 Timing, Posting and Tax Considerations
Participants' Contributions, other than Rollover Contributions, may only
be made through payroll deduction. Such amounts shall be paid to the
Trustee in cash and posted to each Participant's Account(s) as soon as
such amounts can reasonably be separated from the Employer's general
assets and balanced against the specific amount made on behalf of each
Participant. In no event, however, shall such amounts be paid to the
Trustee more than 90 days after the date amounts are deducted from a
Participant's Pay. Before-Tax Contributions shall be treated as Employer
Contributions in determining tax deductions under Code section 404(a).
11
<PAGE> 17
4 ROLLOVERS & TRUST-TO-TRUST TRANSFERS
------------------------------------
4.1 Rollovers
The Administrator may authorize the Trustee to accept a rollover
contribution in cash (or its equivalent), within the meaning of Code
section 402(c), 403(a)(4) or 408(d)(3)(A)(ii), directly from an
Eligible Employee or effective January 1, 1993, as a Direct Rollover
from another qualified plan on behalf of the Eligible Employee, even
if he or she is not yet a Participant. The Employee shall be
responsible for furnishing satisfactory evidence, in such manner as
prescribed by the Administrator, that the amount is eligible for
rollover treatment. A rollover contribution received directly from
an Eligible Employee must be paid to the Trustee in cash (or its
equivalent) within 60 days after the date received by the Eligible
Employee from a qualified plan or conduit individual retirement
account. Contributions described in this paragraph shall be posted
to the applicable Employee's Rollover Account as of the date
received by the Trustee.
If it is later determined that an amount contributed pursuant to the
above paragraph did not in fact qualify as a rollover contribution
under Code section 402(c), 403(a)(4) or 408(d)(3)(A)(ii), the
balance credited to the Employee's Rollover Account shall
immediately be (1) segregated from all other Plan assets, (2)
treated as a nonqualified trust established by and for the benefit
of the Employee, and (3) distributed to the Employee. Any such
nonqualifying rollover shall be deemed never to have been a part of
the Plan.
4.2 Transfers From Other Qualified Plans
The Administrator may instruct the Trustee to receive assets in cash
or in kind directly from another qualified plan. The Trustee may
refuse the receipt of any transfer if:
(a) the Trustee finds the in-kind assets unacceptable;
(b) instructions for posting amounts to Participants' Accounts are
incomplete;
(c) any amounts are not exempted by Code section 401(a)(11)(B) from
the annuity requirements of Code section 417; or
(d) any amounts include benefits protected by Code section 411(d)(6)
which would not be preserved under applicable Plan provisions.
Such amounts shall be posted to the appropriate Accounts of
Participants as of the date received by the Trustee.
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<PAGE> 18
5 EMPLOYER CONTRIBUTIONS
----------------------
5.1 Company Match Contributions
(a) Frequency and Eligibility. For each Plan Year, the Employer
shall make Company Match Contributions on behalf of each
Participant who contributed during the Plan Year and was an
Employee on the last day of the Plan Year.
(b) Allocation Method. The Company Match Contributions for each
period shall total 50% of each eligible Participant's
Before-Tax Contributions for the Plan Year, provided that no
Company Match Contributions shall be made based upon a
Participant's Contributions in excess of 6% of his or her Pay.
The Employer may change the 50% matching rate or the 6% of
considered Pay to any other percentages, including 0%,
generally by notifying eligible Participants no later than the
due date, including extensions, for filing the Employer's
federal income tax return for the applicable year.
(c) Timing, Medium and Posting. The Employer shall make each Plan
Year's Company Match Contribution in cash as soon as is
feasible, and not later than the Employer's federal tax filing
date, including extensions, for deducting such Contribution.
The Trustee shall post such amount to each Participant's
Company Match Account once the total Contribution received has
been balanced against the specific amount to be credited to
each Participant's Company Match Account.
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6 ACCOUNTING
----------
6.1 Individual Participant Accounting
The Administrator shall maintain an individual set of Accounts for
each Participant in order to reflect transactions both by type of
Contribution and investment medium. Financial transactions shall be
accounted for at the individual Account level by posting each
transaction to the appropriate Account of each affected Participant.
Participant Account values shall be maintained in shares for the
Investment Funds and in dollars for their Sweep and Participant loan
Accounts. At any point in time, the Account value shall be
determined using the most recent Trade Date values provided by the
Trustee.
6.2 Sweep Account is Transaction Account
All transactions related to amounts being contributed to or
distributed from the Trust shall be posted to each affected
Participant's Sweep Account. Any amount held in the Sweep Account
will be credited with interest up until the date on which it is
removed from the Sweep Account.
6.3 Trade Date Accounting and Investment Cycle
Participant Account values shall be determined as of each Trade
Date. For any transaction to be processed as of a Trade Date, the
Trustee must receive instructions for the transaction by the Sweep
Date. Such instructions shall apply to amounts held in the Account
on that Sweep Date. Financial transactions of the Investment Funds
shall be posted to Participants' Accounts as of the Trade Date,
based upon the Trade Date values provided by the Trustee, and
settled on the Settlement Date.
6.4 Accounting for Investment Funds
Investments in each Investment Fund shall be maintained in shares.
The Trustee is responsible for determining the share values of each
Investment Fund as of each Trade Date. To the extent an Investment
Fund is comprised of collective investment funds of the Trustee, or
any other fiduciary to the Plan, the share values shall be
determined in accordance with the rules governing such collective
investment funds, which are incorporated herein by reference. All
other share values shall be determined by the Trustee. The share
value of each Investment Fund shall be based on the fair market
value of its underlying assets.
6.5 Payment of Fees and Expenses
Except to the extent Plan fees and expenses related to Account
maintenance, transaction and Investment Fund management and
maintenance, as set forth below, are paid by the Employer directly
such fees and expenses shall be paid as set forth below.
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<PAGE> 20
(a) Account Maintenance: Account maintenance fees and expenses, may
include but are not limited to, administrative, Trustee, government
annual report preparation, audit, legal, nondiscrimination testing,
and fees for any other special services. Account maintenance fees
shall be charged to Participants on a per Participant basis provided
that no fee shall reduce a Participant's Account balance below zero.
(b) Transaction: Transaction fees and expenses, may include but are not
limited to, recurring payment, Investment Fund election change and
loan fees. Transaction fees shall be charged to the Participant's
Account involved in the transaction provided that no fee shall reduce
a Participant's Account balance below zero.
(c) Investment Fund Management and Maintenance: Management and
maintenance fees and expenses related to the Investment Funds shall
be charged at the Investment Fund level and reflected in the net gain
or loss of each Fund.
As of the Effective Date, a breakdown of which Plan fees and expenses
shall generally be borne by the Trust (and charged to individual
Participants' Accounts) and those that shall be paid by the Employer,
directly or indirectly, is set forth in Appendix B and may be changed
from time to time, without the necessity of amending this Plan and Trust
document.
The Trustee shall have the authority to pay any such fees and expenses,
which remain unpaid by the Employer for 60 days, from the Trust.
6.6 Accounting for Participant Loans
Participant loans shall be held in a separate Account of the Participant
and accounted for in dollars as an earmarked asset of the borrowing
Participant's Account.
6.7 Error Correction
The Administrator may correct any errors or omissions in the
administration of the Plan by restoring any Participant's Account balance
with the amount that would be credited to the Account had no error or
omission been made. Funds necessary for any such restoration shall be
provided through payment made by the Employer, or by the Trustee to the
extent the error or omission is attributable to actions or inactions of
the Trustee.
6.8 Participant Statements
The Administrator shall provide Participants with statements of their
Accounts as soon after the end of each quarter of the Plan Year as is
administratively feasible.
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<PAGE> 21
6.9 Special Accounting During Conversion Period
The Administrator and Trustee may use any reasonable accounting methods
in performing their respective duties during the period of converting the
prior accounting system of the Plan and Trust to conform to the
individual Participant accounting system described in this Section. This
includes, but is not limited to, the method for allocating net investment
gains or losses and the extent, if any, to which contributions received
by and distributions paid from the Trust during this period share in such
allocation.
6.10 QDROs
(a) Period of QDRO Determination. During any period of time the
Administrator, a court of competent jurisdiction or other
appropriate person, is determining whether a domestic relations
order qualifies as a QDRO, the Administrator shall separately
account for the amounts which would be payable to the alternate
payee (as defined in Code section 414(p)) if the order is determined
to be a QDRO The Administrator may do so by establishing a
separate Account for the alternate payee.
If the domestic relations order is determined to be a QDRO, if not
already established as described above, a separate Account shall be
established for the amounts which are payable to the alternate payee.
A determination that a domestic relations order is a QDRO made after
the close of the 18 month period beginning with the date payments are
specified to begin shall be applied prospectively only.
Any such separate Account established shall be valued and accounted
for in the same manner as any other Account.
(b) Distributions Pursuant to QDROs If a QDRO so provides, the portion
of a Participant's Account payable to an alternate payee and
credited to his or her separate Account may be distributed, in a
form as permissible under the Distributions Once Employment Ends
Section, to the alternate payee at the time specified in the QDRO,
regardless of whether the Participant is entitled to a distribution
from the Plan at such time.
(c) Participant Loans. Except to the extent required by law, an
alternate payee, on whose behalf a separate Account has been
established, shall not be entitled to borrow from such Account. If a
QDRO specifies that the alternate payee is entitled to any portion
of the Account of a Participant who has an outstanding loan balance,
all outstanding loans shall generally continue to be held in the
Participant's Account and shall not be divided between the
Participant's and alternate payee's Accounts.
(d) Investment Direction. Where a separate Account has been established
on behalf of an alternate payee and has not yet been distributed, the
alternate payee may direct the investment of such Account in the same
manner as if he or she were a Participant.
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<PAGE> 22
7 INVESTMENT FUNDS AND ELECTIONS
------------------------------
7.1 Investment Funds
Except for Participants' Sweep and loan Accounts, the Trust shall be
maintained in various Investment Funds. The Administrator shall
select the Investment Funds offered to Participants and may change
the number or composition of the Investment Funds, subject to the
terms and conditions agreed to with the Trustee. As of the Execution
Date, a list of the Investment Funds offered to Participants is set
forth in Appendix A, and may be changed from time to time, without
the necessity of amending this Plan and Trust document.
7.2 Investment Fund Elections
Each Participant shall direct the investment of all of his or her
Contribution Accounts.
A Participant shall make his or her investment election in any
combination of one or any number of the Investment Funds offered in
accordance with the procedures established by the Administrator and
Trustee. However, during the period of converting the prior
accounting system of the Plan and Trust to conform to the individual
Participant accounting system described in Section 6, Trust assets
may be held in any investment vehicle permitted by the Plan, as
directed by the Administrator, irrespective of Participant
investment elections.
The Administrator may set a maximum percentage of the total election
that a Participant may direct into any specific Investment Fund,
which maximum, if any, as of the Effective Date, is as set forth in
Appendix A, and may be changed from time to time, without the
necessity of amending this Plan and Trust document.
7.3 Responsibility for Investment Choice
Each Participant shall be solely responsible for the selection of
his or her Investment Fund choices. No fiduciary with respect to the
Plan is empowered to advise a Participant as to the manner in which
his or her Accounts are to be invested, and the fact that an
Investment Fund is offered shall not be construed to be a
recommendation for investment.
7.4 Default if No Election
The Administrator shall specify an Investment Fund for the
investment of that portion of a Participant's Account which is not
yet held in an Investment Fund and for which no valid investment
election is on file. The Investment Fund specified as of the
Execution Date is as set forth in Appendix A, and may be changed
from time to time, without the necessity of amending this Plan and
Trust document.
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<PAGE> 23
7.5 Timing
A Participant shall make his or her initial investment
election upon becoming a Participant and may change his or
her ejection at any time in accordance with the procedures
established by the Administrator and Trustee. Investment
elections received by the Trustee by the Sweep Date will
be effective on the following Trade Date.
7.6 Investment Fund Election Change Fees
A reasonable processing fee may be charged directly to a
Participant's Account for Investment Fund election changes
in excess of a specified number per year as determined by
the Administrator.
18
<PAGE> 24
8 VESTING
-------
8.1 Fully Vested Contribution Accounts
A Participant shall be fully vested in all Accounts at all times.
19
<PAGE> 25
9 PARTICIPANT LOANS
-----------------
9.1 Participant Loans Permitted
Loans to Participants are permitted pursuant to the terms and
conditions set forth in this Section.
9.2 Loan Application, Note and Security
A Participant shall apply for any loan in such manner and with such
advance notice as prescribed by the Administrator. All loans shall
be evidenced by a promissory note, secured only by the portion of
the Participant's Account from which the loan is made, and the Plan
shall have a lien on this portion of his or her Account.
9.3 Spousal Consent
A Participant is not required to obtain Spousal Consent in order to
take out a loan under the Plan.
9.4 Loan Approval
The Administrator, or the Trustee if otherwise authorized by the
Administrator and agreed to by the Trustee, is responsible for
determining that a loan request conforms to the requirements
described in this Section and granting such request.
9.5 Loan Funding Limits
The loan amount must meet all of the following limits as determined
as of the Sweep Date the loan is processed:
(a) Plan Minimum Limit. The minimum amount for any loan is $1,000.
(b) Plan Maximum Limit. Subject to the legal limit described in (c)
below, the maximum a Participant may borrow, including the
outstanding balance of existing Plan loans, is 50% of the
following Accounts which are fully vested:
Before-Tax Account
Rollover Account
After-Tax Account
(c) Legal Maximum Limit. The maximum a Participant may borrow,
including the outstanding balance of existing Plan loans, is
50% of his or her vested Account balance, not to exceed
$50,000. However, the $50,000 maximum is reduced by the
Participant's highest outstanding
20
<PAGE> 26
balance of loans under the Plan during the 12 month period ending on
the day before the Sweep Date on which the loan is made over the
outstanding balance of such loans on the date on which the loan is
made. For purposes of this paragraph, the loans of all the qualified
plans of the Related Companies shall be treated as loans under this
Plan.
9.6 Maximum Number of Loans
A Participant may have only one loan outstanding at any given time.
9.7 Source and Timing of Loan Funding
A loan to a Participant shall be made solely from the assets of his or
her own Accounts. The available assets shall be determined first by
Account type and then by investment type within each type of Account. The
hierarchy for loan funding by type of Account shall be the order listed
in the preceding Plan Maximum Limit paragraph. Within each Account used
for funding a loan, amounts shall first be taken from the Sweep Account
and then taken by type of investment in direct proportion to the market
value of the Participant's interest in each Investment Fund as of the
Trade Date on which the loan is processed.
Loans will be funded on the Settlement Date following the Trade Date as of
which the loan is processed. The Trustee shall make payment to the
Participant as soon thereafter as administratively feasible.
9.8 Interest Rate
The interest rate charged on Participant loans shall be a fixed
reasonable rate of interest, determined by the Administrator, which
provides the Plan with a return commensurate with the prevailing interest
rate charged by persons in the business of lending money for loans which
would be made under similar circumstances. As of the Effective Date, the
interest rate is determined as set forth in Appendix C, and may be
changed from time to time, without the necessity of amending this Plan
and Trust document.
9.9 Repayment
Substantially level amortization shall be required of each loan with
payments made at least monthly, generally through payroll deduction.
Loans may be prepaid in full or in part at any time. The Participant may
choose the loan repayment period, not to exceed 5 years. However, the
term may be for any period not to exceed 10 years if the purpose of the
loan is to acquire the Participant's principal residence.
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<PAGE> 27
9.10 Repayment Hierarchy
Loan principal repayments shall be credited to the Participant's Accounts
in the inverse of the order used to fund the loan. Loan interest shall be
credited to the Participant's Accounts in direct proportion to the
principal payment. Loan payments are credited by investment type based
upon the Participant's current investment election for new Contributions.
9.11 Repayment Suspension
The Administrator may agree to a suspension of loan payments for up to 12
months for a Participant who is on a Leave of Absence without pay. During
the suspension period interest shall continue to accrue on the
outstanding loan balance. At the expiration of the suspension period all
outstanding loan payments and accrued interest thereon shall be due
unless otherwise agreed upon by the Administrator.
9.12 Loan Default
A loan is treated as a default if scheduled loan payments are more than
90 days late. A Participant shall then have 30 days from the time he or
she receives written notice of the default and a demand for past due
amounts to cure the default before it becomes final.
In the event of default, the Administrator may direct the Trustee to
report the default as a taxable distribution. As soon as a Plan
withdrawal or distribution to such Participant would otherwise be
permitted, the Administrator may instruct the Trustee to execute upon its
security interest in the Participant's Account by distributing the note
to the Participant.
9.13 Call Feature
The Administrator shall have the right to call any Participant loan once
a Participant's employment with all Related Companies has terminated or
if the Plan is terminated.
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<PAGE> 28
10 IN-SERVICE WITHDRAWALS
----------------------
10.1 In-Service Withdrawals Permitted
In-service withdrawals to a Participant who is an Employee
are permitted pursuant to the terms and conditions set forth
in this Section and as required by law as set forth in
Section 11.
10.2 In-Service Withdrawal Application and Notice
A Participant shall apply for any in-service withdrawal in
such manner and with such advance notice as prescribed by
the Administrator. Effective for in-service withdrawals
applied for after December 31, 1992, the Participant shall
be provided the notice prescribed by Code section 402(f).
If an in-service withdrawal is one to which Code sections
401(a)(11) and 417 do not apply, such in-service withdrawal
may commence less than 30 days after the aforementioned
notice is provided, if:
(a) the Participant is clearly informed that he or she has
the right to a period of at least 30 days after receipt
of such notice to consider his or her option to elect
or not elect a Direct Rollover for the portion, if any,
of his or her in-service withdrawal which will
constitute an Eligible Rollover Distribution; and
(b) the Participant after receiving such notice,
affirmatively elects a Direct Rollover for the portion,
if any, of his or her in-service withdrawal which will
constitute an Eligible Rollover Distribution or
alternatively elects to have such portion made payable
directly to him or her, thereby not electing a Direct
Rollover.
10.3 Spousal Consent
A Participant is not required to obtain Spousal Consent in
order to make an in-service withdrawal under the Plan.
10.4 In-Service Withdrawal Approval
The Administrator, or the Trustee if otherwise authorized by
the Administrator and agreed to by the Trustee, is
responsible for determining that an in-service withdrawal
request conforms to the requirements described in this
Section and granting such request.
10.5 Minimum Amount, Payment Form and Medium
There is no minimum amount for any type of withdrawal.
23
<PAGE> 29
For withdrawals made after December 31, 1992, with regard
to the portion of a withdrawal representing an Eligible
Rollover Distribution, a Participant may elect a Direct
Rollover. The form of payment for an in-service withdrawal
shall be a single lump sum and payment shall be made in
cash.
10.6 Source and Timing of In-Service Withdrawal Funding
An in-service withdrawal to a Participant shall be made
solely from the assets of his or her own Accounts and will
be based on the Account values as of the Trade Date the
in-service withdrawal is processed. The available assets
shall be determined first by Account type and then by
investment type within each type of Account. Within each
Account used for funding an in-service withdrawal, amounts
shall first be taken from the Sweep Account and then taken
by type of investment in direct proportion to the market
value of the Participant's interest in each Investment
Fund (which excludes Participant loans) as of the Trade
Date on which the in-service withdrawal is processed.
In-Service withdrawals will be funded on the Settlement
Date following the Trade Date as of which the in-service
withdrawal is processed. The Trustee shall make payment as
soon thereafter as administratively feasible.
10.7 Hardship Withdrawals
(a) Requirements. A Participant who is an Employee may
request the withdrawal of up to the amount necessary
to satisfy a financial need including amounts
necessary to pay any federal, state or local income
taxes or penalties reasonably anticipated to result
from the withdrawal. Only requests for withdrawals
(1) on account of a Participant's "Deemed Financial
Need", and (2) which are "Deemed Necessary" to
satisfy the financial need will be approved.
(b) "Deemed Financial Need". Financial commitments
relating to:
(1) the payment of unreimbursable medical expenses
described under Code section 213(d) incurred
(or to be incurred) by the Employee, his or her
spouse or dependents;
(2) the purchase (excluding mortgage payments) of
the Employee's principal residence;
(3) the payment of unreimbursable tuition and
related educational fees for up to the next 12
months of post-secondary education for the
Employee, his or her spouse or dependents;
(4) the payment of amounts necessary for the
Employee to prevent losing his or her principal
residence through eviction or foreclosure on
the mortgage; or
24
<PAGE> 30
(5) any other circumstance specifically permitted under Code
section 401(k)(2)(B)(i)(IV).
(c) "Deemed Necessary". A withdrawal is "deemed necessary" to satisfy
the financial need only if the withdrawal amount does not exceed the
financial need and all of these conditions are met:
(1) the Employee has obtained all other possible withdrawals and
nontaxable loans available from all plans maintained by Related
Companies;
(2) the Administrator shall suspend the Employee from making any
contributions to this Plan, all other qualified and
nonqualified plans of deferred compensation and all stock
option or stock purchase plans maintained by Related
Companies for 12 months from the date the withdrawal payment
is made; and
(3) the Administrator shall reduce the Contribution Dollar Limit
for the Employee for the calendar year next following the
calendar year of the withdrawal by the amount of the
Employee's Before-Tax Contributions for the calendar year of
the withdrawal.
(d) Account Sources for Withdrawal. All available amounts must first be
withdrawn from a Participant's After-Tax Account. The remaining
withdrawal amount shall come only from the Participant's fully vested
Accounts, in the following priority order:
Rollover Account
Before-Tax Account
The amount that may be withdrawn from a Participant's Before-Tax
Account shall not include any earnings credited to his or her
Before-Tax Account after the start of the first Plan Year beginning
after December 31, 1988.
(e) Permitted Frequency. There is no restriction on the number of
Hardship withdrawals permitted to a Participant.
10.8 After-Tax Account Withdrawals
(a) Requirements. A Participant who is an Employee may withdraw up to
the entire balance from his or her After-Tax Account.
(b) Permitted Frequency. There is no restriction on the number of After-
Tax Account withdrawals permitted to a Participant.
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<PAGE> 31
(c) Suspension from Further Contributions. An After-Tax
Account withdrawal shall not affect a Participant's
ability to make or be eligible to receive further
Contributions.
10.9 Rollover Account Withdrawals
No in-service withdrawals are permitted from a
Participant's Rollover Account except as provided
elsewhere in this Section.
10.10 Over Age 59 1/2 Withdrawals
(a) Requirements. A Participant who is an Employee and
over age 59 1/2 may withdraw from the Accounts listed
in paragraph (b) below.
(b) Account Sources for Withdrawal. The withdrawal amount
shall come only from the Participant's fully vested
Accounts, in the following priority order with the
exception that the Participant may instead choose to
have amounts taken from his or her After-Tax Account
first:
Rollover Account
Before-Tax Account
Company Match Account
After-Tax Account
(c) Permitted Frequency. There is no restriction on the
number of Over Age 59 1/2 withdrawals permitted to a
Participant.
(d) Suspension from Further Contributions. An Over Age
59 1/2 withdrawal shall not affect a Participant's
ability to make or be eligible to receive further
Contributions.
26
<PAGE> 32
11 DISTRIBUTIONS ONCE EMPLOYMENT ENDS, UPON DISABILITY OR AS REQUIRED BY
---------------------------------------------------------------------
LAW
---
11.1 Benefit Information, Notices and Election
A Participant, or his or her Beneficiary in the case of his or her
death, shall be provided with information regarding all optional
times and forms of distribution available, to include the notices
prescribed by Code section 402(f), effective January 1, 1993, and
Code section 411(a)(11). Subject to the other requirements of this
Section, a Participant, or his or her Beneficiary in the case of his
or her death, may elect, in such manner and with such advance notice
as prescribed by the Administrator, to have his or her vested
Account balance paid to him or her beginning upon any Settlement
Date following the Participant's termination of employment with all
Related Companies, effective October 25, 1994, upon his or her
Disability or, if earlier, at the time required by law as set forth
in Section 11.6.
If a distribution is one to which Code sections 401(a)(11) and 417
do not apply, such distribution may commence less than 30 days after
the aforementioned notices are provided, if:
(a) the Participant is clearly informed that he or she has the
right to a period of at least 30 days after receipt of such
notices to consider the decision as to whether to elect a
distribution and if so to elect a particular form of
distribution and to elect or not elect a Direct Rollover for
all or a portion, if any, of his or her distribution which will
constitute an Eligible Rollover Distribution; and
(b) the Participant after receiving such notice, affirmatively
elects a distribution and a Direct Rollover for all or a
portion, if any, of his or her distribution which will
constitute an Eligible Rollover Distribution or alternatively
elects to have all or a portion made payable directly to him or
her, thereby not electing a Direct Rollover for all or a
portion thereof.
11.2 Spousal Consent
A Participant is not required to obtain Spousal Consent in order to
receive a distribution under the Plan.
11.3 Payment Form and Medium
A Participant shall be paid in the form of a single lump sum.
Notwithstanding, a Participant who is an Employee at the time he or
she is required by law to commence distribution, or anytime
thereafter, may instead elect to be paid annually in a lump sum an
amount sufficient to comply with Code section 401(a)(9).
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<PAGE> 33
Distributions shall generally be made in cash. For distributions
made after December 31, 1992, with regard to the portion of a
distribution representing an Eligible Rollover Distribution, a
Distributee may elect a Direct Rollover for all or a portion of
such amount.
11.4 Distribution of Small Amounts
If, at the time a Participant's employment with all Related
Companies ends, the Participant's vested Account balance is
$3,500 or less and at the time of any earlier withdrawal or
distribution, the Participant's vested Account balance did not
exceed $3,500, the Participant's benefit will be paid as a single
lump sum, without his or her consent, after his or her employment
with all Related Companies ends in accordance with procedures
prescribed by the Administrator.
11.5 Source and Timing of Distribution Funding
A distribution to a Participant shall be made solely from the
assets of his or her own Accounts and will be based on the
Account values as of the Trade Date the distribution is
processed. The available assets shall be determined first by
Account type and then by investment type within each type of
Account. Within each Account used for funding a distribution,
amounts shall first be taken from the Sweep Account and then
taken by type of investment in direct proportion to the market
value of the Participant's interest in each Investment Fund as of
the Trade Date on which the distribution is processed.
Distributions will be funded on the Settlement Date following the
Trade Date as of which the distribution is processed. The Trustee
shall make payment as soon thereafter as administratively
feasible.
11.6 Latest Commencement Permitted
In addition to any other Plan requirements and unless a
Participant elects otherwise, his or her benefit payments will
begin not later than 60 days after the end of the Plan Year in
which the Participant's employment with all Related Companies
ends (other than by reason of death) or the Participant attains
his or her Normal Retirement Date, whichever is later. However,
if the amount of the payment or the location of the Participant
or his or her Beneficiary (after a reasonable search) cannot be
ascertained by that deadline, payment shall be made no later than
60 days after the earliest date on which such amount or location
is ascertained but in no event later than as described below.
Benefit payments shall begin by the April 1 immediately following
the end of the calendar year in which the Participant attains age
70 1/2 (whether or not he or she is an Employee), except that
distribution for an Employee who was born before July 1, 1917 and
who is not a 5% owner, does not need to begin until his or her
employment with all Related Companies ends.
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<PAGE> 34
11.7 Payment Within Life Expectancy
The Participant's payment election must be consistent with the
requirements of Code section 401(a)(9) and Treasury regulations
issued thereunder, including Treasury regulation section
1.401(a)(9)-2, which provisions are incorporated by reference,
provided that such provisions shall override the other
distribution provisions of the Plan only to the extent that they
are inconsistent with such other Plan provisions. All payments
are to be completed within a period not to exceed the lives or
the joint and last survivor life expectancy of the Participant
and his or her Beneficiary. The life expectancies of a
Participant and his or her Beneficiary may not be recomputed
annually.
11.8 Incidental Benefit Rule
The Participant's payment election must be consistent with the
requirement that, if the Participant's spouse is not his or her
sole primary Beneficiary, the minimum annual distribution for
each calendar year, beginning with the year in which he or she
attains age 70 1/2 (or such later date as provided otherwise in
Section 11), shall not be less than the quotient obtained by
dividing (a) the Participant's vested Account balance as of the
last Trade Date of the preceding year by (b) the applicable
divisor as determined under the incidental benefit requirements
of Code section 401(a)(9) and the Treasury regulations
incorporated herein pursuant to Section 11.7.
11.9 Payment to Beneficiary
Payment to a Beneficiary must be completed by the end of the
calendar year that contains the fifth anniversary of the
Participant's death.
11.10 Beneficiary Designation
Each Participant may complete a beneficiary designation form
indicating the Beneficiary who is to receive the Participant's
remaining Plan interest at the time of his or her death. The
designation may be changed at any time. However, a Participant's
spouse shall be the sole primary Beneficiary unless the
designation includes Spousal Consent for another Beneficiary. If
no proper designation is in effect at the time of a Participant's
death or if the Beneficiary does not survive the Participant, the
Beneficiary shall be, in the order listed, the:
(a) Participant's surviving spouse,
(b) Participant's children, in equal shares, PER STIRPES (by
right of representation), or
(c) Participant's estate.
29
<PAGE> 35
12 ADP AND ACP TESTS
-----------------
12.1 Contribution Limitation Definitions
The following definitions are applicable to this Section 12 (where a
definition is contained in both Sections 1 and 12, for purposes of
Section 12 the Section 12 definition shall be controlling):
(a) "ACP" or "Average Contribution Percentage". The Average
Percentage calculated using Contributions allocated to
Participants as of a date within the Plan Year.
(b) "ACP Test". The determination of whether the ACP is in
compliance with the Basic or Alternative Limitation for a
Plan Year (as defined in Section 12.2).
(c) "ADP" or "Average Deferral Percentage". The Average Percentage
calculated using Deferrals allocated to Participants as of a
date within the Plan Year.
(d) "ADP Test". The determination of whether the ADP is in
compliance with the Basic or Alternative Limitation for a Plan
Year (as defined in Section 12.2).
(e) "Average Percentage". The average of the calculated percentages
for Participants within the specified group. The calculated
percentage refers to either the "Deferrals" or "Contributions"
(as defined in this Section) actually paid on each such
Participant's behalf for the Plan Year, divided by his or her
Compensation for the portion of the Plan Year in which he or
she was an Eligible Employee while a Participant. (Before-Tax
Contributions to this Plan or comparable contributions to plans
of Related Companies which will be refunded solely because they
exceed the Contribution Dollar Limit are included in the
percentage for the HCE Group but not for the NHCE Group.)
(f) "Contributions" shall include Company Match Contributions. In
addition, Contributions may include Before-Tax Contributions,
but only to the extent that (1) the Employer elects to use
them, (2) they are not used or counted in the ADP Test, and (3)
they are necessary to meet the ACP Test Alternative Lmitation
(defined in Section 12.2(b)) or the Multiple Use Test.
(g) "Deferrals" shall include Before-Tax Contributions. In
addition, Deferrals may include Company Match Contributions,
but only to the extent that (1) the Employer elects to use
them, (2) they are not used or counted in the ACP Test, and
(3) such Contributions are fully vested when made and not
withdrawable by an Employee before he or she attains age 59 1/2.
30
<PAGE> 36
(h) "Family Member". An Employee who is, at any time during the Plan
Year or Lookback Year, a spouse, lineal ascendant or descendant,
or spouse of a lineal ascendant or descendant of (1) an active or
former Employee who at any time during Plan Year or Lookback Year
is a more than 5% Owner (within the meaning of Code section
414(q)(3)), or (2) an HCE who is among the 10 Employees with the
highest Compensation for such Year.
(i) "HCE" or "Highly Compensated Employee". With respect to each
Employer and its Related Companies, an Employee during the Plan
Year or Lookback Year who (in accordance with Code section
414(q)):
(1) Was a more than 5% Owner at any time during the Lookback
Year or Plan Year;
(2) Received Compensation during the Lookback Year (or in the
Plan Year if among the 100 Employees with the highest
Compensation for such Year) in excess of (i) $75,000 (as
adjusted for such Year pursuant to Code sections 414(q)(1)
and 415(d)), or (ii) $50,000 (as adjusted for such Year
pursuant to Code sections 414(q)(1) and 415(d)) in the case
of a member of the "top-paid group" (within the meaning of
Code section 414(q)(4)) for such Year), provided, however,
that if the conditions of Code section 414(q)(12)(B)(ii)
are met, the Company may elect for any Plan Year to apply
clause (i) by substituting $50,000 for $75,000 and not to
apply clause (ii);
(3) Was an officer of a Related Company and received
Compensation during the Lookback Year (or in the Plan Year
if among the 100 Employees with the highest Compensation
for such Year) that is greater than 50% of the dollar
limitation in effect under Code section 415(b)(1)(A) and
(d) for such Year (or if no officer has Compensation in
excess of the threshold, the officer with the highest
Compensation), provided that the number of officers shall
be limited to 50 Employees (or, if less, the greater of
three Employees or 10% of the Employees); or
(4) Was a Family Member at any time during the Lookback Year or
Plan Year, in which case the Contributions and Compensation
of the HCE and his or her Family Members shall be
aggregated and they shall be treated as a single HCE.
A former Employee shall be treated as an HCE if (1) such former
Employee was an HCE when he separated from service, or (2) such
former Employee was an HCE in service at any time after attaining
age 55.
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<PAGE> 37
The determination of who is an HCE, including the determinations
of the number and identity of Employees in the top-paid group,
the top 100 Employees and the number of Employees treated as
officers shall be made in accordance with Code section 414(q).
(j) "HCE Group" and "NHCE Group". With respect to each Employer and
its Related Companies, the respective group of HCEs and NHCEs who
are eligible to have amounts contributed on their behalf for the
Plan Year, including Employees who would be eligible but for
their election not to participate or to contribute, or because
their Pay is greater than zero but does not exceed a stated
minimum.
(1) If the Related Companies maintain two or more plans which
are subject to (i) the ADP Test and are considered as one
plan for purposes of Code sections 401(a)(4) or 410(b),
or (ii) the ACP Test and are considered as one plan for
purposes of Code section 410(b), all such plans shall be
aggregated and treated as one plan for purposes of meeting
the ADP and ACP Tests, provided that, for Plan Years
beginning after December 31, 1989, plans may only be
aggregated if they have the same Plan Year.
(2) If an HCE, who is one of the top 10 paid Employees or a more
than 5% Owner, has any Family Members, the Deferrals,
Contributions and Compensation of such HCE and his or her
Family Members shall be combined and treated as a single
HCE. Such amounts for all other Family Members shall be
removed from the NHCE Group percentage calculation and be
combined with the HCE's.
(3) If an HCE is covered by more than one cash or deferred
arrangement maintained by the Related Companies, all such
plans shall be aggregated and treated as one plan for
purposes of calculating the separate percentage for the HCE
which is used in the determination of the Average
Percentage.
(k) "Lookback Year". Pursuant to Code section 414(q), the Company
elects as the Lookback Year the 12 months ending immediately
prior to the start of the Plan Year.
(l) "Multiple Use Test". The test described in Section 12.4 which a
Plan must meet where the Alternative Limitation (described in
Section 12.2(b)) is used to meet both the ADP and ACP Tests.
(m) "NHCE" on "Non-Highly Compensated Employee". An Employee who
is not an HCE.
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<PAGE> 38
12.2 ADP and ACP Tests
For each Plan Year, the ADP and ACP for the HCE Group must meet
either the Basic or Alternative Limitation when compared to the
respective ADP and ACP for the NHCE Group, defined as follows:
(a) Basic Limitation. The HCE Group Average Percentage may not
exceed 1.25 times the NHCE Group Average Percentage.
(b) Alternative Limitation. The HCE Group Average Percentage
is limited by reference to the NHCE Group Average
Percentage as follows:
<TABLE>
<CAPTION>
IF THE NHCE GROUP THEN THE MAXIMUM HCE
AVERAGE PERCENTAGE IS: GROUP AVERAGE PERCENTAGE IS:
---------------------- ----------------------------
<S> <C>
Less than 2% 2 times NHCE Group Average %
2% to 8% NHCE Group Average % plus 2%
More than 8% NA - Basic Limitation applies
</TABLE>
12.3 Correction of ADP and ACP Tests
If the ADP or ACP Tests are not met, the Administrator shall
determine, no later than the end of the next Plan Year, a maximum
percentage to be used in place of the calculated percentage for
all HCEs that would reduce the ADP and/or ACP for the HCE group
by a sufficient amount to meet the ADP and ACP Tests.
(a) ADP Correction. Before-Tax Contributions shall, by the end
of the next Plan Year, be refunded (including amounts
previously refunded because they exceeded the Contribution
Dollar Limit) to the Participant in an amount equal to the
actual Deferrals minus the product of the maximum
percentage and the HCE's Compensation. Any Company Match
Contributions attributable to refunded excess Before-Tax
Contributions as described in this Section, adjusted for
investment gain or loss, shall be removed from the
Participant's Account and used to reduce subsequent
Contributions under the Plan as soon as is administratively
feasible.
(b) ACP Correction. Company Match Contributions shall, by the
end of the next Plan Year, be refunded to the Participant
in an amount equal to the actual Contributions minus the
product of the maximum percentage and the HCE's
Compensation.
(c) Investment Fund Sources. Once the amount of excess
Deferrals and/or Contributions is determined amounts shall
then be taken by type of investment in direct proportion to
the market value of the Participant's interest in each
Investment Fund (which excludes Participant loans) at the
time the correction is made.
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<PAGE> 39
(d) Family Member Correction. To the extent any reduction
is necessary with respect to an HCE and his or her
Family Members that have been combined and treated for
testing purposes as a single Employee, the excess
Deferrals and Contributions from the ADP and/or ACP
Test shall be prorated among each such Participant in
direct proportion to his or her Deferrals or
Contributions included in each Test.
12.4 Multiple Use Test
If the Alternative Limitation (defined in Section 12.2) is
used to meet both the ADP and ACP Tests, the ADP and ACP
for the HCE Group must also comply with the requirements of
Code section 401(m)(9). Such Code section requires that the
sum of the ADP and ACP for the HCE Group (as determined
after any corrections needed to meet the ADP and ACP Tests
have been made) not exceed the sum (which produces the most
favorable result) of:
(a) the Basic Limitation (defined in Section 12.2) applied
to either the ADP or ACP for the NHCE Group, and
(b) the Alternative Limitation applied to the other NHCE
Group percentage.
12.5 Correction of Multiple Use Test
If the multiple use limit is exceeded, the Administrator
shall determine a maximum percentage to be used in place of
the calculated percentage for all HCEs that would reduce
either or both the ADP or ACP for the HCE Group by a
sufficient amount to meet the multiple use limit. Any
excess shall be handled in the same manner that the
distribution of excess Deferrals or Contributions are
handled.
12.6 Adjustment for Investment Gain or Loss
Any excess Deferrals or Contributions to be refunded to a
Participant in accordance with Section 12.3 or 12.5 shall
be adjusted for investment gain or loss. Refunds shall not
include investment gain or loss for the period between the
end of the applicable Plan Year and the date of
distribution. However, for Plan Years ending before
December 31, 1993, refunds shall include investment gain or
loss for the period between the end of the applicable Plan
Year and the date of distribution.
12.7 Testing Responsibilities and Required Records
The Administrator shall be responsible for ensuring that
the Plan meets the ADP Test, the ACP Test and Multiple Use
Test, and that the Contribution Dollar Limit is not
exceeded. In carrying out its responsibilities, the
Administrator shall have sole discretion to limit or reduce
Deferrals or Contributions at any time. The Administrator
shall maintain records which are sufficient to
34
<PAGE> 40
demonstrate that the ADP Test, the ACP Test and Multiple
Use Test, have been met for each Plan Year for at least as
long as the Employer's corresponding tax year is open to
audit.
12.8 Separate Testing
(a) Multiple Employers: The determination of HCEs,
NHCEs, and the performance of the testing and any
corrective action resulting therefrom shall be made
separately with regard to the Employees of each
Employer (and its Related Companies) that is not a
Related Company with the other Employer(s).
(b) Collective Bargaining Units: For Plan Years beginning
after December 31, 1992, the performance of the ADP
Test, and if applicable, the ACP Test and Multiple
Use Test, and any corrective action resulting
therefrom shall be applied separately to Employees
who are eligible to participate in the Plan as a
result of a collective bargaining agreement.
In addition, separate testing may be applied, at the
discretion of the Administrator and to the extent permitted
under Treasury regulations, to any group of Employees for
whom separate testing is permissible.
35
<PAGE> 41
13 MAXIMUM CONTRIBUTION AND BENEFIT LIMITATIONS
--------------------------------------------
13.1 "Annual Addition" Defined
The sum of all amounts allocated to the Participant's Account for a
Plan Year which are contributions (except for rollovers or transfers
from another qualified plan), forfeitures and, if the Participant is
a Key Employee (pursuant to Section 14) for the applicable or any
prior Plan Year, medical benefits provided pursuant to Code section
419A(d)(1). For purposes of this Section 13.1, "Account" also
includes a Participant's account in all other defined contribution
plans currently or previously maintained by any Related Company. The
Plan Year refers to the year to which the allocation pertains,
regardless of when it was allocated. The Plan Year shall be the Code
section 415 limitation year.
13.2 Maximum Annual Addition
The Annual Addition to a Participant's accounts under this Plan and
any other defined contribution plan maintained by any Related
Company for any Plan Year shall not exceed the lesser of (1) 25% of
his or her Taxable Income or (2) the greater of $30,000 or
one-quarter of the dollar limitation in effect under Code section
415(b)(1)(A).
13.3 Avoiding an Excess Annual Addition
If, at any time during a Plan Year, the allocation of any additional
Contributions would produce an excess Annual Addition for such year,
Contributions to be made for the remainder of the Plan Year shall be
limited to the amount needed for each affected Participant to
receive the maximum Annual Addition.
13.4 Correcting an Excess Annual Addition
Upon the discovery of an excess Annual Addition to a Participant's
Account (resulting from forfeitures, allocations, reasonable error
in determining Participant compensation or the amount of elective
contributions, or other facts and circumstances acceptable to the
Internal Revenue Service) the excess amount (adjusted to reflect
investment gains) shall first be returned to the Participant to the
extent of his or her Before-Tax Contributions for the Plan Year
(however to the extent such Before-Tax Contributions were matched,
the applicable Company Match Contributions shall be forfeited in
proportion to the returned matched Before-Tax Contributions) and the
remaining excess, if any, shall be forfeited by the Participant and
together with forfeited Company Match Contributions used to reduce
subsequent Contributions under the Plan as soon as is
administratively feasible.
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<PAGE> 42
13.5 Correcting a Multiple Plan Excess
If a Participant, whose Account is credited with an excess Annual
Addition, received allocations to more than one defined
contribution plan, the excess shall be corrected by reducing the
Annual Addition to this Plan only after all possible reductions
have been made to the other defined contribution plans.
13.6 "Defined Benefit Fraction" Defined
The fraction, for any Plan Year, where the numerator is the
"projected annual benefit" and the denominator is the greater of
125% of the "protected current accrued benefit" or the normal
limit which is the lesser of (1) 125% of the maximum dollar
limitation provided under Code section 415(b)(1)(A) for the Plan
Year or (2)140% of the amount which may be taken into account
under Code section 415(b)(1)(B) for the Plan Year, where a
Participant's:
(a) "projected annual benefit" is the annual benefit provided
by the Plan determined pursuant to Code section
415(e)(2)(A), and
(b) "protected current accrued benefit" in a defined benefit
plan in existence (1) on July 1, 1982, shall be the
accrued annual benefit provided for under Public Law
97-248, section 235(g)(4), as amended, or (2) on May 6,
1986, shall be the accrued annual benefit provided
for under Public Law 99-514, section 1106(i)(3).
13.7 "Defined Contribution Fraction" Defined
The fraction where the numerator is the sum of the Participant's
Annual Addition for each Plan Year to date and the denominator is
the sum of the "annual amounts" for each year in which the
Participant has performed service with a Related Company. The
"annual amount" for any Plan Year is the lesser of (1) 125% of
the Code section 415(c)(1)(A) dollar limitation (determined
without regard to subsection (c)(6)) in effect for the Plan Year
and (2)140% of the Code section 415(c)(1)(B) amount in effect for
the Plan Year, where:
(a) each Annual Addition is determined pursuant to the Code
section 415(c) rules in effect for such Plan Year, and
(b) the numerator is adjusted pursuant to Public Law 97-248,
section 235(g)(3), as amended, or Public Law 99-514,
section 1106(i)(4).
13.8 Combined Plan Limits and Correction
If a Participant has also participated in a defined benefit plan
maintained by a Related Company, the sum of the Defined Benefit
Fraction and the Defined Contribution Fraction for any Plan Year
may not exceed 1.0. If the combined fraction exceeds 1.0 for any
Plan Year, the Participant's benefit under any defined benefit
plan (to the extent it has not been distributed or used to
purchase an annuity contract) shall be limited so that the
combined fraction does not exceed 1.0 before any defined
contribution limits will be enforced.
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14 TOP HEAVY RULES
---------------
14.1 Top Heavy Definitions
When capitalized, the following words and phrases have the following
meanings when used in this Section:
(a) "Aggregation Group". The group consisting of each qualified
plan of an Employer (and its Related Companies) (1) in which a
Key Employee is a participant or was a participant during the
determination period (regardless of whether such plan has
terminated), or (2) which enables another plan in the group to
meet the requirements of Code sections 401(a)(4) or 410(b). The
Employer may also treat any other qualified plan as part of the
group if the group would continue to meet the requirements of
Code sections 401(a)(4) and 410(b) with such plan being taken
into account.
(b) "Determination Date". The last Trade Date of the preceding Plan
Year or, in the case of the Plan's first year, the last Trade
Date of the first Plan Year.
(c) "Key Employee". A current or former Employee (or his or her
Beneficiary) who at any time during the five year period ending
on the Determination Date was:
(1) an officer of a Related Company whose Compensation (i)
exceeds 50% of the amount in effect under Code section
415(b)(1)(A) and (ii) places him within the following
highest paid group of officers:
NUMBER OF EMPLOYEES NUMBER OF
NOT EXCLUDED UNDER CODE HIGHEST PAID
SECTION 414(G)(8) OFFICERS INCLUDED
----------------------- -----------------
Less than 30 3
30 to 500 10% of the number of
Employees not excluded
under Code section
414(q)(8)
More than 500 50
(2) a more than 5% Owner,
(3) a more than 1% Owner whose Compensation exceeds
$150,000, or
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<PAGE> 44
(4) a more than 0.5% Owner who is among the 10 Employees
owning the largest interest in a Related Company and whose
Compensation exceeds the amount in effect under Code section
415(c)(1)(A)
(d) "Plan Benefit". The sum as of the Determination Date of (1) an
Employee's Account, (2) the present value of his or her other
accrued benefits provided by all qualified plans within the
Aggregation Group, and (3) the aggregate distributions made within
the five year period ending on such date. Plan Benefits shall
exclude rollover contributions and plan to plan transfers made after
December 31, 1983 which are both employee initiated and from a plan
maintained by a non-related employer.
(e) "Top Heavy". The Plan's status when the Plan Benefits of Key
Employees account for more than 60% of the Plan Benefits of all
Employees who have performed services at any time during the five
year period ending on the Determination Date. The Plan Benefits of
Employees who were, but are no longer, Key Employees (because they
have not been an officer or Owner during the five year period), are
excluded in the determination.
14.2 Special Contributions
(a) Minimum Contribution Requirement. For each Plan Year in which the
Plan is Top Heavy, the Employer shall not allow any contributions
(other than a Rollover Contribution) to be made by or on behalf of
any Key Employee unless the Employer makes a contribution (other
than Before-Tax and Company Match Contributions) on behalf of all
Participants who were Eligible Employees as of the last day of the
Plan Year in an amount equal to at least 3% of each such
Participant's Taxable Income. The Administrator shall remove any
such contributions (including applicable investment gain or loss)
credited to a Key Employee's Account in violation of the foregoing
rule and return them to the Employer or Employee to the extent
permitted by the Limited Return of Contributions paragraph of
Section 18.
(b) Overriding Minimum Benefit. Notwithstanding, contributions shall be
permitted on behalf of Key Employees if the Employer also maintains
a defined benefit plan which automatically provides a benefit which
satisfies the Code section 416(c)(1) minimum benefit requirements,
including the adjustment provided in Code section 416(h)(2) (A), if
applicable. If this Plan is part of an aggregation group in which a
Key Employee is receiving a benefit and no minimum is provided in
any other plan, a minimum contribution of at least 3% of Taxable
Income shall be provided to the Participants specified in the
preceding paragraph. In addition, the Employer may offset a defined
benefit minimum by contributions (other than Before-Tax and Company
Match Contributions) made to this Plan.
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<PAGE> 45
14.3 Adjustment to Combined Limits for Different Plans
For each Plan Year in which the Plan is Top Heavy, 100%
shall be substituted for 125% in determining the Defined
Benefit Fraction and the Defined Contribution Fraction.
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<PAGE> 46
15 PLAN ADMINISTRATION
-------------------
15.1 Plan Delineates Authority and Responsibility
Plan fiduciaries include the Company, the Administrator, the
Committee and/or the Trustee, as applicable, whose specific duties
are delineated in this Plan and Trust. In addition, Plan fiduciaries
also include any other person to whom fiduciary duties or
responsibility is delegated with respect to the Plan. Any person or
group may serve in more than one fiduciary capacity with respect to
the Plan. To the extent permitted under ERISA section 405, no
fiduciary shall be liable for a breach by another fiduciary.
15.2 Fiduciary Standards
Each fiduciary shall:
(a) discharge his or her duties in accordance with this Plan and
Trust to the extent they are consistent with ERISA;
(b) use that degree of care, skill, prudence and diligence that a
prudent person acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like
character and with like aims;
(c) act with the exclusive purpose of providing benefits to
Participants and their Beneficiaries, and defraying reasonable
expenses of administering the Plan;
(d) diversify Plan investments, to the extent such fiduciary is
responsible for directing the investment of Plan assets, so as
to minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so; and
(e) treat similarly situated Participants and Beneficiaries in a
uniform and nondiscriminatory manner.
15.3 Company is ERISA Plan Administrator
The Company is the plan administrator, within the meaning of ERISA
section 3(16) and Code section 414(g), which is responsible for
compliance with all reporting and disclosure requirements, except
those that are explicitly the responsibility of the Trustee under
applicable law. The Administrator and/or Committee shall have any
necessary authority to carry out such functions through the actions
of the Administrator, duly appointed officers of the Company, and/or
the Committee.
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<PAGE> 47
15.4 Administrator Duties
The Administrator shall have the sole and absolute discretion to interpret
the provisions of the Plan and Trust; other than the provisions which
relate to the Trustee, (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 determination or findings
with respect to the benefits payable thereunder and the person entitled
thereto as may be required for the purpose of the Plan. In furtherance
thereof, but without limiting the foregoing, the Administrator is hereby
granted the following specific authorities, which it shall discharge in
its sole and absolute discretion in accordance with the terms of the Plan
(as interpreted, the extent necessary, by the Administrator):
(a) determine who is eligible to participate, if a contribution
qualifies as a rollover contribution, the allocation of
Contributions, and the eligibility for loans, withdrawals and
distributions;
(b) determine the fact of a Participant's death and of any Beneficiary's
right to receive the deceased Participant's interest based upon such
proof and evidence as it deems necessary;
(c) establish and review at least annually a funding policy bearing in
mind both the short-run and long-run needs and goals of the Plan. To
the extent Participants may direct their own investments, the
funding policy shall focus on which Investment Funds are available
for Participants to use; and
(d) adjudicate claims pursuant to the claims procedure described in
Section 18.
Actions taken in good faith by the Administrator shall be conclusive and
binding on all interested parties, and shall be given the maximum possible
deference allowed by law.
15.5 Advisors May be Retained
The Administrator may retain such agents and advisors (including attorneys,
accountants, actuaries, consultants, record keepers, investment counsel and
administrative assistants) as it considers necessary to assist it in the
performance of its duties. The Administrator shall also comply with the
bonding requirements of ERISA section 412.
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<PAGE> 48
15.6 Delegation of Administrator Duties
The Company, as Administrator of the Plan, has appointed a Committee to
administer the Plan on its behalf. The Company shall provide the Trustee
with the names and specimen signatures of any persons authorized to serve
as Committee members and act as or on its behalf. Any Committee member
appointed by the Company shall serve at the pleasure of the Company, but
may resign by written notice to the Company. Committee members shall serve
without compensation from the Plan for such services. Except to the extent
that the Company otherwise provides, any delegation of duties to a
Committee shall carry with it the full discretionary authority of the
Administrator to complete such duties.
15.7 Committee Operating Rules
(a) Actions of Majority. Any act delegated by the Company to the
Committee may be done by a majority of its members. The majority may
be expressed by a vote at a meeting or in writing without a meeting,
and a majority action shall be equivalent to an action of all
Committee members.
(b) Meetings. The Committee shall hold meetings upon such notice, place
and times as it determines necessary to conduct its functions
properly.
(c) Reliance by Trustee. The Committee may authorize one or more of its
members to execute documents on its behalf and may authorize one or
more of its members or other individuals who are not members to give
written direction to the Trustee in the performance of its duties.
The Committee shall provide such authorization in writing to the
Trustee with the name and specimen signatures of any person
authorized to act on its behalf. The Trustee shall accept such
direction and rely upon it until notified in writing that the
Committee has revoked the authorization to give such direction. The
Trustee shall not be deemed to be on notice of any change in the
membership of the Committee, parties authorized to direct the
Trustee in the performance of its duties, or the duties delegated to
and by the Committee until notified in writing.
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<PAGE> 49
16 MANAGEMENT OF INVESTMENTS
-------------------------
16.1 Trust Agreement
All Plan assets shall be held by the Trustee in trust, in
accordance with those provisions of this Plan and Trust
which relate to the Trustee, for use in providing Plan
benefits and paying Plan expenses not paid directly by
the Employer. Plan benefits will be drawn solely from the
Trust and paid by the Trustee as directed by the
Administrator. Notwithstanding, the Administrator may
appoint, with the approval of the Trustee, another
trustee to hold and administer Plan assets which do not
meet the requirements of Section 16.2.
16.2 Investment Funds
The Administrator is hereby granted authority to direct
the Trustee to invest Trust assets in one or more
Investment Funds. The number and composition of Investment
Funds may be changed from time to time, without the
necessity of amending this Plan and Trust document. The
Trustee may establish reasonable limits on the number of
Investment Funds as well as the acceptable assets for any
such Investment Fund. Each of the Investment Funds may be
comprised of any of the following:
(a) shares of a registered investment company, whether
or not the Trustee or any of its affiliates is an
advisor to, or other service provider to, such
company, provided an investment in such is exempt
from the prohibited transaction restrictions of the
Code and ERISA;
(b) collective investment funds maintained by the
Trustee, or any other fiduciary to the Plan, which
are available for investment by trusts which are
qualified under Code sections 401(a) and 501(a);
(c) individual equity and fixed income securities which
are readily tradeable on the open market;
(d) guaranteed investment contracts issued by a bank or
insurance company;
(e) interest bearing deposits of the Trustee; and
(f) Roadway Stock.
Any Investment Fund assets invested in a collective
investment fund, shall be subject to all the provisions
of the instruments establishing and governing such fund.
These instruments, including any subsequent amendments,
are hereby adopted by the Plan and are incorporated
herein by reference.
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<PAGE> 50
16.3 Authority to Hold Cash
The Trustee shall have the authority to cause the investment
manager of each Investment Fund to maintain sufficient
deposit or money market type assets in each Investment Fund
to handle the Fund's liquidity and disbursement needs. Each
Participant's and Beneficiary's Sweep Account, which is used
to hold assets pending investment or disbursement, shall
consist of interest bearing deposits of the Trustee.
16.4 Trustee to Act Upon Instructions
The Trustee shall carry out instructions to invest assets in
the Investment Funds as soon as practicable after such
instructions are received from the Administrator,
Participants, or Beneficiaries. Such instructions shall
remain in effect until changed by the Administrator,
Participants or Beneficiaries.
16.5 Administrator Has Right to Vote Registered Investment Company Shares
The Administrator shall be entitled, but not required, to
vote proxies or exercise any shareholder rights relating to
shares held on behalf of the Plan in a registered investment
company. Notwithstanding, the authority to vote proxies and
exercise shareholder rights related to such shares held in a
Custom Fund is vested as provided otherwise in Section 16.
16.6 Custom Fund Investment Management
The Administrator may designate, with the consent of the
Trustee, an investment manager for any Investment Fund
established by the Trustee solely for Participants of this
Plan (a "Custom Fund"). The investment manager may be the
Administrator, Trustee or an investment manager pursuant to
ERISA section 3(38). The Administrator shall advise the
Trustee in writing of the appointment of an investment
manager and shall cause the investment manager to acknowledge
to the Trustee in writing that the investment manager is a
fiduciary to the Plan.
A Custom Fund shall be subject to the following:
(a) Guidelines. Written guidelines, acceptable to the
Trustee, shall be established for a Custom Fund. If a
Custom Fund consists solely of collective investment
funds or shares of a registered investment company (and
sufficient deposit or money market type assets to
handle the Fund's liquidity and disbursement needs),
its underlying instruments shall constitute the
guidelines.
(b) Authority of Investment Manager. The investment
manager of a Custom Fund shall have the authority to
vote or execute proxies, exercise shareholder rights,
manage, acquire, and dispose of Trust
45
<PAGE> 51
assets. Notwithstanding, the authority to vote proxies
and exercise shareholder rights related to shares of
Roadway Stock held in a Custom Fund is vested as
provided otherwise in Section 16.
(c) Custody and Trade Settlement. Unless otherwise agreed
to by the Trustee, the Trustee shall maintain custody
of all Custom Fund assets and be responsible for the
settlement of all Custom Fund trades. For purposes of
this section, shares of a collective investment fund,
shares of a registered investment company and
guaranteed investment contracts issued by a bank or
insurance company, shall be regarded as the Custom
Fund assets instead of the underlying assets of such
instruments.
(d) Limited Liability of Co-Fiduciaries. Neither the
Administrator nor the Trustee shall be obligated to
invest or otherwise manage any Custom Fund assets for
which the Trustee or Administrator is not the
investment manager nor shall the Administrator or
Trustee be liable for acts or omissions with regard to
the investment of such assets except to the extent
required by ERISA.
16.7 Authority to Segregate Assets
The Company may direct the Trustee to split an Investment
Fund into two or more funds in the event any assets in the
Fund are illiquid or the value is not readily determinable.
In the event of such segregation, the Company shall give
instructions to the Trustee on what value to use for the
split-off assets, and the Trustee shall not be responsible
for confirming such value.
16.8 Maximum Permitted Investment in Roadway Stock
If the Company provides for a Roadway Stock Fund the Fund
shall be comprised of Roadway Stock and sufficient deposit
or money market type assets to handle the Fund's liquidity
and disbursement needs. The Fund may be as large as
necessary to comply with Participants' and Beneficiaries'
investment elections.
16.9 Participants Have Right to Vote and Tender Roadway Stock
Each Participant or Beneficiary shall be entitled to
instruct the Trustee as to the voting or tendering of any
full or partial shares of Roadway Stock held on his or her
behalf in the Roadway Stock Fund. Prior to such voting or
tendering of Roadway Stock, each Participant or Beneficiary
shall receive a copy of the proxy solicitation or other
material relating to such vote or tender decision and a
blank form for the Participant or Beneficiary to complete
which confidentially instructs the Trustee to vote or
tender such shares in the manner indicated by the
Participant or Beneficiary. Upon receipt of such
instructions, the Trustee shall act with respect to such
shares as instructed. The Administrator shall instruct the
Trustee with respect to how to vote or tender any shares
for which instructions are not received from Participants
or Beneficiaries.
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<PAGE> 52
16.10 Registration and Disclosure for Roadway Stock
The Administrator shall be responsible for determining the
applicability (and, if applicable, complying with) the
requirements of the Securities Act of 1933, as amended, the
California Corporate Securities Law of 1968, as amended, and
any other applicable blue sky law. The Administrator shall
also specify what restrictive legend or transfer
restriction, if any, is required to be set forth on the
certificates for the securities and the procedure to be
followed by the Trustee to effectuate a resale of such
securities.
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<PAGE> 53
17 TRUST ADMINISTRATION
-------------------
17.1 Trustee to Construe Trust
Subject to the authority of the Administrator, the Trustee
shall have the discretionary authority to construe those
provisions of this Plan and Trust which relate to the
Trustee and to do all things necessary or convenient to the
administration of the Trust, whether or not such powers are
specifically set forth in this Plan and Trust. Actions
taken in good faith by the Trustee shall be conclusive and
binding on all interested parties, and shall be given the
maximum possible deference allowed by law.
17.2 Trustee To Act As Owner of Trust Assets
Subject to the specific conditions and limitations set
forth in this Plan and Trust, the Trustee shall have all
the power, authority, rights and privileges of an absolute
owner of the Trust assets and, not in limitation but in
amplification of the foregoing, may:
(a) receive, hold, manage, invest and reinvest, sell,
tender, exchange, dispose of, encumber, hypothecate,
pledge, mortgage, lease, grant options respecting,
repair, alter, insure, or distribute any and all
property in the Trust;
(b) borrow money, participate in reorganizations, pay
calls and assessments, vote or execute proxies,
exercise subscription or conversion privileges,
exercise options and register any securities in the
Trust in the name of the nominee, in federal book
entry form or in any other form as will permit title
thereto to pass by delivery;
(c) renew, extend the due date, compromise, arbitrate,
adjust, settle, enforce or foreclose, by judicial
proceedings or otherwise, or defend against the same,
any obligations or claims in favor of or against the
Trust; and
(d) lend on behalf of the Trust, directly or through a
collective investment fund, any securities, including
securities held in such collective investment fund to
brokers, dealers or other borrowers and to permit
such securities to be transferred into the name and
custody and be voted by the borrower or others.
17.3 United States Indicia of Ownership
The Trustee shall not maintain the indicia of ownership of
any Trust assets outside the jurisdiction of the United
States, except as authorized by ERISA section 404(b).
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<PAGE> 54
17.4 Tax Withholding and Payment
(a) Withholding. Effective for taxable distributions made on or before
December 31, 1992 the Trustee shall calculate and withhold federal
(and, if applicable, state) income taxes in accordance with the
Participant's withholding election or as required by law if no
election is made. Effective for taxable distributions made after
December 31, 1992, the Trustee shall calculate and withhold federal
(and, if applicable, state) income taxes with regard to any Eligible
Rollover Distribution that is not paid as a Direct Rollover in
accordance with the Participant's withholding election or as
required by law if no election is made or the election is less than
the amount required by law. With regard to any taxable distribution
that is not an Eligible Rollover Distribution, the Trustee shall
calculate and withhold federal (and, if applicable, state) income
taxes in accordance with the Participant's withholding election or
as required by law if no election is made.
(b) Taxes Due From Investment Funds. The Trustee shall pay from the
Investment Fund any taxes or assessments imposed by any taxing or
governmental authority on such Fund or its income, including related
interest and penalties.
17.5 Trustee Duties and Limitations
Unless otherwise agreed to by the Trustee, the Trustee's duties shall be
confined to construing, as provided herein, the terms of the Plan and
Trust as they relate to the Trustee, receiving funds on behalf of and
making payments from the Trust, safeguarding and valuing Trust assets, and
investing and reinvesting Trust assets in the Investment Funds as directed
by the Administrator or Participants. The Trustee shall have no duty or
authority to ascertain whether Contributions are in compliance with the
Plan, to enforce collection or to compute or verify the accuracy or
adequacy of any amount to be paid to it by the Employer. The Trustee shall
not be liable for the proper application of any part of the Trust with
respect to any disbursement made at the direction of the Administrator.
17.6 Trust Accounting
(a) Annual Report. Within 60 days (or other reasonable period) following
the close of the Plan Year, the Trustee shall provide the
Administrator with an annual accounting of Trust assets and
information to assist the Administrator in meeting ERISA's annual
reporting and audit requirements.
(b) Periodic Reports. The Trustee shall maintain records and provide
sufficient reporting to allow the Administrator to properly monitor
the Trust's assets and activity.
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<PAGE> 55
(c) Administrator Approval. Approval of any Trustee
accounting will automatically occur 90 days after
such accounting has been received by the
Administrator, unless the Administrator files a
written objection with the Trustee within such time
period. Such approval shall be final as to all
matters and transactions stated or shown therein and
binding upon the Administrator.
17.7 Valuation of Certain Assets
If the Trustee determines the Trust holds any asset which
is not readily tradable and listed on a national
securities exchange registered under the Securities
Exchange Act of 1934, as amended, the Trustee may engage a
qualified independent appraiser to determine the fair
market value of such property, and the appraisal fees
shall be paid from the Investment Fund containing the
asset.
17.8 Legal Counsel
The Trustee may consult with legal counsel of its choice,
including counsel for the Employer or counsel of the
Trustee, upon any question or matter arising under this
Plan and Trust. When relied upon by the Trustee, the
opinion of such counsel shall be evidence that the Trustee
has acted in good faith.
17.9 Fees and Expenses
The Trustee's fees for its services as Trustee shall be
such as may be mutually agreed upon by the Company and the
Trustee. Trustee fees and all reasonable expenses of
counsel and advisors retained by the Trustee shall be paid
in accordance with Section 6.
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<PAGE> 56
18 RIGHTS, PROTECTION, CONSTRUCTION AND JURISDICTION
-------------------------------------------------
18.1 Plan Does Not Affect Employment Rights
The Plan does not provide any employment rights to any Employee. The
Employer expressly reserves the right to discharge an Employee at
any time, with or without cause, without regard to the effect such
discharge would have upon the Employee's interest in the Plan.
18.2 Limited Return of Contributions
Except as provided in this paragraph, (1) Plan assets shall not
revert to the Employer nor be diverted for any purpose other than
the exclusive benefit of Participants or their Beneficiaries; and
(2) a Participant's vested interest shall not be subject to
divestment. As provided in ERISA section 403(c)(2), the actual
amount of a Contribution made by the Employer (or the current value
of the Contribution if a net loss has occurred) may revert to the
Employer if:
(a) such Contribution is made by reason of a mistake of fact;
(b) initial qualification of the Plan under Code section 401(a) is
not received and a request for such qualification is made
within the time prescribed under Code section 401(b) (the
existence of and Contributions under the Plan are hereby
conditioned upon such qualification); or
(c) such Contribution is not deductible under Code section 404
(such Contributions are hereby conditioned upon such
deductibility) in the taxable year of the Employer for which
the Contribution is made.
The reversion to the Employer must be made (if at all) within one
year of the mistaken payment of the Contribution, the date of denial
of qualification, or the date of disallowance of deduction, as the
case may be. A Participant shall have no rights under the Plan with
respect to any such reversion.
18.3 Assignment and Alienation
As provided by Code section 401(a)(13) and to the extent not
otherwise required by law, no benefit provided by the Plan may be
anticipated, assigned or alienated, except:
(a) to create, assign or recognize a right to any benefit with
respect to a Participant pursuant to a QDRO, or
(b) to use a Participant's vested Account balance as security for a
loan from the Plan which is permitted pursuant to Code section
4975.
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<PAGE> 57
18.4 Facility of Payment
If a Plan benefit is due to be paid to a minor on if the
Administrator reasonably believes that any payee is legally
incapable of giving a valid receipt and discharge for any
payment due him or her, the Administrator shall have the
payment of the benefit, or any part thereof, made to the
person (or persons or institution) whom it reasonably
believes is caring for or supporting the payee, unless it
has received due notice of claim therefor from a duly
appointed guardian or conservator of the payee. Any payment
shall to the extent thereof, be a complete discharge of any
liability under the Plan to the payee.
18.5 Reallocation of Lost Participant's Accounts
If the Administrator cannot locate a person entitled to
payment of a Plan benefit after a reasonable search, the
Administrator may at any time thereafter treat such
person's Account as forfeited and use such amount to reduce
subsequent Contributions under the Plan as soon as is
administratively feasible. If such person subsequently
presents the Administrator with a valid claim for the
benefit, such person shall be paid the amount treated as
forfeited, plus the interest that would have been earned in
the Sweep Account to the date of determination. The
Administrator shall pay the amount through an additional
Employer Contribution.
18.6 Claims Procedure
(a) Right to Make Claim. An interested party who
disagrees with the Administrator's determination of
his or her right to Plan benefits must submit a
written claim and exhaust this claim procedure
before legal recourse of any type is sought. The
claim must include the important issues the
interested party believes support the claim. The
Administrator, pursuant to the authority provided in
this Plan, shall either approve or deny the claim.
(b) Process for Denying a Claim. The Administrator's
partial or complete denial of an initial claim must
include an understandable, written response covering
(1) the specific reasons why the claim is being
denied (with reference to the pertinent Plan
provisions) and (2) the steps necessary to perfect
the claim and obtain a final review.
(c) Appeal of Denial and Final Review. The interested
party may make a written appeal of the
Administrator's initial decision, and the
Administrator shall respond in the same manner and
form as prescribed for denying a claim initially.
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<PAGE> 58
(d) Time Frame. The initial claim, its review, appeal and final review
shall be made in a timely fashion, subject to the following time
table:
<TABLE>
<CAPTION>
Days to Respond
Action From Last Action
------ ----------------
<S> <C>
Administrator determines benefit NA
Interested party files initial request 60 days
Administrator's initial decision 90 days
Interested party requests final review 60 days
Administrator's final decision 60 days
</TABLE>
However, the Administrator may take up to twice the maximum response
time for its initial and final review if it provides an explanation
within the normal period of why an extension is needed and when its
decision will be forthcoming.
18.7 Construction
Headings are included for reading convenience. The text shall control if
any ambiguity or inconsistency exists between the headings and the text.
The singular and plural shall be interchanged wherever appropriate.
References to Participant shall include Beneficiary when appropriate and
even if not otherwise already expressly stated.
18.8 Jurisdiction and Severability
The Plan and Trust shall be construed, regulated and administered under
ERISA and other applicable federal laws and, where not otherwise
preempted, by the laws of the State of California. If any provision of
this Plan and Trust shall become invalid or unenforceable, that fact shall
not affect the validity or enforceability of any other provision of this
Plan and Trust. All provisions of this Plan and Trust shall be so
construed as to render them valid and enforceable in accordance with their
intent.
18.9 Indemnification by Employer
The Employers hereby agree to indemnify all Plan fiduciaries against any
and all liabilities resulting from any action or inaction, (including a
Plan termination in which the Company fails to apply for a favorable
determination from the Internal Revenue Service with respect to the
qualification of the Plan upon its termination), in relation to the Plan
or Trust (1) including (without limitation) expenses reasonably incurred
in the defense of any claim relating to the Plan or its assets, and
amounts paid in any settlement relating to the Plan or its assets, but (2)
excluding liability resulting from actions or inactions made in bad faith,
or resulting from the negligence or willful misconduct of the Trustee.
The Company shall have the right, but not the obligation, to conduct the
defense of any action to which this Section applies. The Plan fiduciaries
are not entitled to indemnity from the Plan assets relating to any such
action.
53
<PAGE> 59
19 AMENDMENT, MERGER, DIVESTITURES AND TERMINATION
-----------------------------------------------
19.1 Amendment
The Company reserves the night to amend this Plan and Trust at any
time, to any extent and in any manner it may deem necessary or
appropriate. The Company (and not the Trustee) shall be responsible
for adopting any amendments necessary to maintain the qualified
status of this Plan and Trust under Code sections 401(a) and 501(a).
If the Committee is acting as the Administrator in accordance with
Section 15.6, it shall have the authority to adopt Plan and Trust
amendments which have no substantial adverse financial impact upon
any Employer or the Plan. All interested parties shall be bound by
any amendment, provided that no amendment shall:
(a) become effective unless it has been adopted in accordance with
the procedures set forth in Section 19.5;
(b) except to the extent permissible under ERISA and the Code, make
it possible for any portion of the Trust assets to revert to an
Employer or to be used for, or diverted to, any purpose other
than for the exclusive benefit of Participants and
Beneficiaries entitled to Plan benefits and to defray
reasonable expenses of administering the Plan;
(c) decrease the rights of any Employee to benefits accrued
(including the elimination of optional forms of benefits) to
the date on which the amendment is adopted, or if later, the
date upon which the amendment becomes effective, except to the
extent permitted under ERISA and the Code; nor
(d) permit an Employee to be paid the balance of his or her Pre-Tax
Account unless the payment would otherwise be permitted under
Code section 401(k).
19.2 Merger
This Plan and Trust may not be merged or consolidated with, nor may
its assets or liabilities be transferred to, another plan unless
each Participant and Beneficiary would, if the resulting plan were
then terminated, receive a benefit just after the merger,
consolidation or transfer which is at least equal to the benefit
which would be received if either plan had terminated just before
such event.
19.3 Divestitures
In the event of a sale by an Employer which is a corporation of: (1)
substantially all of the Employer's assets used in a trade or
business to an unrelated corporation, or (2) a sale of such
Employer's interest in a subsidiary
54
<PAGE> 60
to an unrelated entity or individual, lump sum distributions shall be
permitted from the Plan, except as provided below, to Participants with
respect to Employees who continue employment with the corporation
acquiring such assets or who continue employment with such subsidiary, as
applicable.
Notwithstanding, distributions shall not be permitted if the purchaser
agrees, in connection with the sale, to be substituted as the Company as
the sponsor of the Plan or to accept a transfer of the assets and
liabilities representing the Participants' benefits into a plan of the
purchaser or a plan to be established by the purchaser.
19.4 Plan Termination
The Company may, at any time and for any reason, terminate the Plan in
accordance with procedures set forth in Section 19.5, or completely
discontinue contributions. Upon either of these events, or in the event of
a partial termination of the Plan within the meaning of Code section
411(d)(3), the Accounts of each affected Employee shall be fully vested.
If no successor plan is established or maintained, lump sum distributions
will be made in accordance with the terms of the Plan as in effect at the
time of the Plan's termination or a: thereafter amended provided that a
post-termination amendment will not be effective to the extent that it
violates Section 19.1 unless it is required in order to maintain the
qualified status of the Plan upon its termination. The Trustee's and
Employer's authority shall continue beyond the Plan's termination date
until all Trust assets have been liquidated and distributed.
19.5 Amendment and Termination Procedures
The following procedural requirements shall govern the adoption of any
amendment or termination (a "Change") of this Plan and Trust:
(a) The Company may adopt any Change by action of its board of directors
in accordance with its normal procedures.
(b) The Committee, if acting as Administrator in accordance with Section
15.6, may adopt any amendment within the scope of its authority
provided under Section 19.1 and in the manner specified in Section
15.7(a).
(c) Any Change must be (1) set forth in writing, and (2) signed and dated
by an executive officer of the Company or, in the case of an
amendment adopted by the Committee, at least one of its members.
(d) If the effective date of any Change is not specified in the document
setting forth the Change, it shall be effective as of the date it is
signed by the last person whose signature is required under clause
(2) above,
55
<PAGE> 61
except to the extent that another effective date is
necessary to maintain the qualified status of this
Plan and Trust under Code sections 401(a) and 501(a).
(e) A copy of any Change shall be provided to the Trustee.
(f) No Change affecting the Trustee in its role as
Trustee under the Plan or in any other capacity shall
become effective until it is accepted and signed by
the Trustee (which acceptance shall not unreasonably
be withheld).
19.6 Termination of Employer's Participation
Any Employer may, at any time and for any reason,
terminate its Plan participation by action of its board of
directors in accordance with its normal procedures.
Written notice of such action shall be signed and dated by
an executive officer of the Employer and delivered to the
Company. If the effective date of such action is not
specified, it shall be effective on, or as soon as
reasonably practicable, after the date of delivery. Upon
the Employer's request, the Company may instruct the
Trustee and Administrator to spin off all affected
Accounts and underlying assets into a separate qualified
plan under which the Employer shall assume the powers and
duties of the Company. Alternatively, the Company may
treat the event as a partial termination described above
or continue to maintain the Accounts under the Plan.
19.7 Replacement of the Trustee
The Trustee may resign as Trustee under this Plan and
Trust or may be removed by the Company at any time upon at
least 90 days written notice (or less if agreed to by both
parties). In such event, the Company shall appoint a
successor trustee by the end of the notice period. The
successor trustee shall then succeed to all the powers and
duties of the Trustee under this Plan and Trust. If no
successor trustee has been named by the end of the notice
period, the Company's chief executive officer shall become
the trustee, or if he or she declines, the Trustee may
petition the court for the appointment of a successor
trustee.
19.8 Final Settlement and Accounting of Trustee
(a) Final Settlement. As soon as is administratively
feasible after its resignation or removal as Trustee,
the Trustee shall transfer to the successor trustee
all property currently held by the Trust. However,
the Trustee is authorized to reserve such sum of
money as it may deem advisable for payment of its
accounts and expenses in connection with the
settlement of its accounts or other fees or expenses
payable by the Trust. Any balance remaining after
payment of such fees and expenses shall be paid to
the successor trustee.
56
<PAGE> 62
(b) Final Accounting. The Trustee shall provide a final
accounting to the Administrator within 90 days of the
date Trust assets are transferred to the successor
trustee.
(c) Administrator Approval. Approval of the final
accounting will automatically occur 90 days after such
accounting has been received by the Administrator,
unless the Administrator files a written objection with
the Trustee within such time period. Such approval shall
be final as to all matters and transactions stated or
shown therein and binding upon the Administrator.
57
<PAGE> 63
APPENDIX A - INVESTMENT FUNDS
I. Investment Funds Available
The Investment Funds offered to Participants and Beneficiaries
as of the Execution Date include this set of daily valued funds:
<TABLE>
<CAPTION>
CATEGORY FUNDS
-------- -----
<S> <C>
INCOME Viking Income Accumulation
BALANCED Asset Allocation
EQUITY Roadway Stock
S&P 500 Stock
</TABLE>
II. Default Investment Fund
The default Investment Fund as of the Execution Date is the
Income Accumulation Fund.
III. Maximum Percentage Restrictions Applicable to Certain Investment
Funds
As of the Effective Date, a Participant or Beneficiary may not
elect to invest more than the following percentages in these
Investment Funds:
Roadway Stock Fund 50%
58
<PAGE> 64
APPENDIX B - PAYMENT OF PLAN FEES AND EXPENSES
As of the Effective Date, payment of Plan fees and expenses shall be as
follows:
1) Investment Management Fees: These are paid by Participants in
that management fees reduce the investment return reported and
credited to Participants.
2) Recordkeeping Fees: These are paid by the Employer on a quarterly
basis.
3) Loan Fees: A $3.50 per month fee is assessed and billed/collected
quarterly from the Account of each Participant who has an
outstanding loan balance for loans entered into on or after April
1, 1991. For loans entered into prior to April 1, 1991, these are
paid by the Employer on a quarterly basis.
4) Investment Fund Election Changes: For each Investment Fund
election change by a Participant, in excess of 4 changes per
year, a $10 fee will be assessed and billed/collected quarterly
from the Participant's Account.
5) Additional Fees Paid by Employer: All other Plan related fees and
expenses shall be paid by the Employer. To the extent that the
Administrator later elects that any such fees shall be borne by
Participants, estimates of the fees shall be determined and
reconciled, at least annually, and the fees will be assessed
monthly and billed/collected from Accounts quarterly.
59
<PAGE> 65
APPENDIX C - LOAN INTEREST RATE
As of the Effective Date, the interest rate charged on Participant loans shall
be equal to the Trustee's prime rate, plus 2%.
60
<PAGE> 1
Exhibit 4(d)
AMENDMENT NO. 1
TO THE
VIKING FINANCIAL SECURITY PLAN
(Second Complete Amendment and Restatement
Generally Effective July 1, 1992)
THIS AMENDMENT NO. 1 to the Viking Financial Security Plan
(Second Complete Amendment and Restatement Generally Effective July 1, 1992) is
made by Viking Freight System, Inc., effective January 1, 1996.
1. The second sentence of Section 1.26 of the Plan is
hereby amended in its entirety to read as follows:
The Investment Funds authorized by the Administrator to be
offered to Participants and Beneficiaries are as set forth in
Appendix A.
2. New Sections 1.37A and 1.38B are hereby added to the
Plan to read as follows:
1.37A "REX Stock". The voting common stock of
Roadway Express, Inc.
1.37B "REX Stock Fund". The Investment Fund described
in Section 1.26, which is invested solely in REX
Stock.
3. The final sentence of Section 7.1 is hereby amended
in its entirety to read as follows:
A list of the Investment Funds offered to Participants is set
forth in Appendix A, and may be changed from time to time,
without the necessity of amending this Plan and Trust document.
<PAGE> 2
2
4. Part I. of Appendix A to the Plan is hereby amended
in its entirety to read as follows:
I. Investment Funds Available as of January 1, 1996
The Investment Funds offered to Participants and
Beneficiaries as of January 1, 1996 include this set
of daily valued funds:
<TABLE>
<CAPTION>
CATEGORY FUNDS
-------- -----
<S> <C>
INCOME Viking Income Accumulation
BALANCED Asset Allocation
EQUITY Roadway Stock
S&P 500 Stock
REX Stock
5. A new Appendix D is hereby added to the Plan to read
as follows:
APPENDIX D - REX
STOCK FUND
The REX Stock Fund shall be subject to the following terms and
conditions:
I. Dividends, interest and other distributions other
than REX Stock received by the Trustee in respect of the REX Stock
Fund shall be invested solely in Roadway Stock.
II. A Participant may not direct the transfer of any portion
of his Account not currently invested in the REX Stock Fund into the
REX Stock Fund.
III. Each Participant or Beneficiary shall be entitled to
instruct the Trustee as to the voting or tendering of any full or
partial shares of REX Stock held on his or her behalf in the REX Stock
Fund. Prior to such voting or tendering of REX Stock, each Participant
or Beneficiary shall receive a copy of the proxy solicitation or other
material relating to such vote or tender decision and a blank form for
the Participant or Beneficiary to complete which confidentially
instructs the Trustee to vote or tender such shares in the manner
indicated by the Participant or Beneficiary. Upon receipt of such
instructions, the Trustee shall act with respect to such shares as
instructed. The Administrator shall instruct the Trustee with respect
to how to vote or tender any
</TABLE>
<PAGE> 3
3
shares for which instructions are not received from Participant or
Beneficiaries.
IV. The operation and administration of the REX Stock Fund
shall be subject to the provisions of the Plan to the extent not
inconsistent with the provisions of this Appendix.
IN WITNESS WHEREOF, Viking Freight System, Inc. has caused
this Amendment No. 1 to be executed by its duly appointed officers.
<TABLE>
<S> <C>
In the presence of: VIKING FREIGHT SYSTEM, INC.
_________________________ By:_________________________
Title:______________________
Date:_______________________
</TABLE>
<PAGE> 1
Exhibit 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the Viking Financial Security Plan of Viking Freight
System, Inc. of our reports (a) dated January 24, 1995, with respect to the
consolidated financial statements of Roadway Services, Inc. incorporated by
reference in its Annual Report (Form 10-K) and the related financial statement
schedule included therein and (b) dated June 13, 1995, with respect to the
financial statements and schedules of the Viking Financial Security Plan of
Viking Freight System, Inc. included in the Plan's Annual Report (Form 11-K),
both for the year ended December 31, 1994, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Akron, Ohio
December 27, 1995
<PAGE> 1
Exhibit 24(a)
DIRECTORS AND OFFICERS OF
ROADWAY SERVICES, INC.
VIKING FINANCIAL SECURITY PLAN
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 shall be determined from time to time,
issued and to be issued or acquired in connection with the Viking Financial
Security Plan (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 attorney and any such
substitute.
EXECUTED this 14th day of December, 1995.
<TABLE>
<S> <C>
/s/ G. James Roush
----------------------------------------------------- ----------------------------------------------------
George B. Beitzel G. James Roush
/s/ Richard A. Chenoweth /s/ Daniel J. Sullivan
----------------------------------------------------- ----------------------------------------------------
Richard A. Chenoweth Daniel J. Sullivan
/s/ Roy E. Griggs /s/ William Sword
----------------------------------------------------- ----------------------------------------------------
Roy E. Griggs William Sword
/s/ Norman C. Harbert
----------------------------------------------------- ----------------------------------------------------
Norman C. Harbert H. Mitchell Watson Jr.
/s/ Sarah Roush Werner
----------------------------------------------------- ----------------------------------------------------
Charles R. Longsworth Sarah Roush Werner
/s/ Robert E. Mercer /s/ Douglas A. Wilson
----------------------------------------------------- ----------------------------------------------------
Robert E. Mercer Douglas A. Wilson
</TABLE>
<PAGE> 1
Exhibit 24(b)
VIKING FINANCIAL SECURITY PLAN
REGISTRATION STATEMENT ON FORM S-8
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned members
of the Viking Financial Security Plan Committee 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 participations and participation interests in the Viking Financial
Security Plan, 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 attorney and any such substitute.
EXECUTED this 14th day of December, 1995.
<TABLE>
<S> <C>
/s/ Randolph C. Bangham /s/ Ronald G. Pelzel
- ---------------------------------------- -------------------------------------
Randolph C. Bangham Ronald G. Pelzel
/s/ D. H. Hess
- ----------------------------------------
D. H. Hess
</TABLE>
