<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
(MARK ONE)
(x) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934.
For the period ended June 21, 1997
-----------------
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934.
For the transition period from ____________ to __________.
Commission file number 0-10716
CALIBER SYSTEM, INC.
--------------------
(Exact name of company as specified in its charter)
Ohio 34-1365496
- ------------------------------- -----------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
3925 Embassy Parkway, P.O. Box 5459, Akron, Ohio 44334-0459
- ------------------------------------------------ ----------
(Address of principal executive offices) (Zip Code)
Company's telephone number, including area code is (330) 665-5646
Indicate by check mark whether the company (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the company was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes x No
----
The number of shares of common stock without par value outstanding as of July
19, 1997 was 38,935,452.
- 1-
<PAGE> 2
INDEX
CALIBER SYSTEM, INC.
FORM 10-Q
PERIOD ENDED JUNE 21, 1997
PART I - FINANCIAL INFORMATION
- ------------------------------
Item 1. Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets--June 21, 1997 and
December 31, 1996
Condensed Consolidated Statements of Income--Twelve
weeks and twenty-four weeks ended June 21, 1997 and
June 15, 1996
Condensed Consolidated Statements of Cash
Flows--Twenty-four weeks ended June 21, 1997 and June
15, 1996
Notes to Condensed Consolidated Financial Statements
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
PART II - OTHER INFORMATION
- ---------------------------
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
SIGNATURES
- ----------
-2-
<PAGE> 3
PART I - FINANCIAL INFORMATION
CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)
CALIBER SYSTEM, INC.
<TABLE>
<CAPTION>
ASSETS JUNE 21, DECEMBER 31,
1997 1996
----------- ---------
(dollars in thousands)
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 23,148 $ 38,829
Accounts receivable 302,280 365,033
Prepaid expenses and supplies 59,659 72,813
Deferred income taxes 68,960 47,801
---------- ----------
TOTAL CURRENT ASSETS 454,047 524,476
PROPERTY AND EQUIPMENT, NET 819,283 848,319
Cost in excess of net assets of businesses
acquired, net of amortization 4,933 5,015
Other assets 45,764 54,357
---------- ----------
TOTAL OTHER ASSETS 50,697 59,372
---------- ----------
TOTAL ASSETS $1,324,027 $1,432,167
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Short-term debt $ 115,000 $ 230,000
Accounts payable 337,051 262,313
Salaries and wages 57,742 80,259
Other current liabilities 55,897 57,469
---------- ----------
TOTAL CURRENT LIABILITIES 565,690 630,041
LONG-TERM LIABILITIES
Long-term debt 200,000 200,000
Self-insurance accruals 41,299 40,809
Deferred income taxes 26,174 22,670
---------- ----------
TOTAL LONG-TERM LIABILITIES 267,473 263,479
SHAREHOLDERS' EQUITY
Serial preferred stock - without par value:
Authorized - 40,000,000 shares; Issued - none -- --
Common stock - without par value:
Authorized - 200,000,000 shares; Issued - 40,896,414 shares 39,898 39,898
Additional capital 51,243 50,735
Retained earnings 456,975 503,496
---------- ----------
548,116 594,129
Treasury stock, at cost
(1997 - 1,687,000 shares, 1996 - 1,605,000 shares) 57,252 55,482
---------- ----------
TOTAL SHAREHOLDERS' EQUITY 490,864 538,647
---------- ----------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $1,324,027 $1,432,167
========== ==========
</TABLE>
See notes to condensed consolidated financial statements.
-3-
<PAGE> 4
CONDENSED CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
CALIBER SYSTEM, INC.
<TABLE>
<CAPTION>
TWELVE WEEKS ENDED TWENTY-FOUR WEEKS ENDED
(SECOND QUARTER) (FIRST HALF)
--------------------------- ---------------------------
JUNE 21, JUNE 15, JUNE 21, JUNE 15,
1997 1996 1997 1996
----------- ----------- ----------- -----------
(dollars in thousands, except per share data)
<S> <C> <C> <C> <C>
REVENUE $ 574,676 $ 615,901 $ 1,215,872 $ 1,197,975
OPERATING EXPENSES
Salaries, wages and benefits 204,700 241,010 452,126 471,033
Purchased transportation 185,453 181,332 375,163 347,823
Operating supplies and expenses 109,933 131,535 239,091 242,330
Operating taxes and licenses 10,775 13,426 24,261 25,469
Insurance and claims 10,917 13,848 28,837 25,042
Provision for depreciation 27,938 33,336 57,908 66,683
Restructuring charge - - 85,000 -
----------- ----------- ----------- -----------
TOTAL OPERATING EXPENSES 549,716 614,487 1,262,386 1,178,380
----------- ----------- ----------- -----------
OPERATING INCOME (LOSS) 24,960 1,414 (46,514) 19,595
Other expense, net (2,403) (1,370) (2,528) (2,602)
----------- ----------- ----------- -----------
INCOME (LOSS) BEFORE INCOME TAXES 22,557 44 (49,042) 16,993
Income tax provision (benefit) 8,972 (176) (13,403) 7,152
----------- ----------- ----------- -----------
NET INCOME (LOSS) $ 13,585 $ 220 $ (35,639) $ 9,841
=========== =========== =========== ===========
EARNINGS (LOSS) PER SHARE $ 0.34 $ 0.01 $ (0.91) $ 0.25
=========== =========== =========== ===========
DIVIDENDS DECLARED PER SHARE $ 0.10 $ 0.18 $ 0.28 $ 0.36
=========== =========== =========== ===========
AVERAGE SHARES OUTSTANDING 39,208 39,525 39,228 39,515
=========== =========== =========== ===========
</TABLE>
See notes to condensed consolidated financial statements.
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<PAGE> 5
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
CALIBER SYSTEM, INC.
<TABLE>
<CAPTION>
Twenty-Four Weeks Ended
(First Half)
-------------------------
June 21, June 15,
1997 1996
---------- ----------
(dollars in thousands)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) $ (35,639) $ 9,841
Restructuring charge 85,000 -
Other adjustments 76,854 32,651
--------- ---------
NET CASH PROVIDED BY OPERATING ACTIVITIES 126,215 42,492
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of property and equipment (49,665) (126,769)
Sales of property and equipment 20,793 4,345
Proceeds from sale of investment 15,995 -
Net advances to discontinued operations - (10,227)
--------- ---------
NET CASH USED IN INVESTING ACTIVITIES (12,877) (132,651)
CASH FLOWS FROM FINANCING ACTIVITIES
Dividends paid (14,019) (20,725)
Increase (decrease) in short-term debt, net (115,000) 87,200
--------- ---------
NET CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES (129,019) 66,475
--------- ---------
CASH FLOWS USED IN CONTINUING OPERATIONS (15,681) (23,684)
CASH FLOWS USED IN DISCONTINUED OPERATIONS - (3,102)
--------- ---------
NET DECREASE IN CASH AND CASH EQUIVALENTS (15,681) (26,786)
--------- ---------
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR $ 38,829 $ 34,908
--------- ---------
CASH AND CASH EQUIVALENTS AT END OF SECOND QUARTER $ 23,148 $ 8,122
========= =========
</TABLE>
See notes to condensed consolidated financial statements.
-5-
<PAGE> 6
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
CALIBER SYSTEM, INC.
Note A - Basis of Presentation
- ------------------------------
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the twenty-four weeks ended June 21, 1997
are not necessarily indicative of the results that may be expected for the year
ending December 31, 1997.
In February 1997, the Financial Accounting Standards Board issued Statement No.
128, Earnings Per Share, which is required to be retroactively adopted on
December 31, 1997 with all prior periods being restated. Under the new
requirements for calculating primary earnings per share, the dilutive effect of
stock options will be excluded. This statement will not change earnings per
share as reported for the quarter or first half ended June 21, 1997.
For further information, refer to consolidated financial statements and
footnotes thereto included in the company's annual report on Form 10-K for the
year ended December 31, 1996.
Note B - Viking Restructuring
- -----------------------------
The company announced a major restructuring of Viking's operations on March 27,
1997, which included terminating operations at its former Coles Express unit in
the Northeast and Spartan Express in the Southeast and Midwest. Operations at
these divisions ceased on March 27, 1997. In connection with the Viking
restructuring, the company recorded in 1996 a non-cash $225 million asset
impairment charge related to the write-down of goodwill of $82 million and
property and equipment of $143 million. First quarter 1997 results included a
restructuring charge of $85 million for employee-related costs, including
severance and benefits, costs related to lease terminations, additional non -
cash asset impairments and other expenses resulting from the restructuring.
Subsequent to the end of the second quarter, the company finalized the sale of
Viking's Southwestern Division, which is now operating under the name Central
Freight Lines, Inc. Caliber received $43 million in cash, retained certain
properties that will be sold at a later date, and transferred approximately $22
million in liabilities to Central Freight Lines, Inc. The total value of this
transaction, including the anticipated proceeds from the retained properties, is
estimated at approximately $80 million. This transaction is not anticipated to
materially impact earnings.
-6-
<PAGE> 7
Results of operations at the former Coles, Spartan, and Southwestern Division
from the beginning of the quarter until shut down or sale of operations are
included in the consolidated second quarter results. Revenue associated with
these divisions was $49.9 million, expenses were $66 million, resulting in $16.1
million of transition costs attributable to operating losses at the former
Southwestern Division and to other non-recurring costs related to the closing of
the former Coles and Spartan divisions.
Assets held for sale from the restructuring are included in property and
equipment in the accompanying condensed consolidated balance sheet. In the
second quarter, the company received $16.2 million from the sale of certain
Viking property and equipment, and paid $13.2 million primarily in severance and
related costs associated with the restructuring.
Note C - Deferred Income Taxes
- ------------------------------
Net deferred tax assets increased to $43 million at June 21, 1997 from $25
million at December 31, 1996, reflecting the tax effects of the restructuring
charge. The company has determined that no valuation allowance is required on
net deferred tax assets based on the ability to recover taxes previously paid.
Note D - Accounting Period
- --------------------------
The company operates on a 13 four-week period calendar with 12 weeks in each of
the first three quarters and 16 weeks in the fourth quarter.
-7-
<PAGE> 8
Item 2. Management's Discussion and Analysis of Financial Condition
- --------------------------------------------------------------------
and Results of Operations
-------------------------
Consolidated revenue for the second quarter ended June 21, 1997 decreased 6.7%
to $574.7 million over second quarter 1996 revenue of $615.9 million as a
result of the Viking restructuring announced on March 27, 1997. Excluding
Viking, revenue increased 14% for the quarter, from $389.6 million in 1996 to
$443.4 million in 1997. For the twenty-four weeks constituting the company's
first half, consolidated revenue was $1,215.9 million, an increase of $17.9
million or 1.5% from $1,198.0 million for the first half of 1996. First half
revenues excluding Viking amounted to $883.5 million for 1997, a 16.2% increase
over comparable 1996 first half revenues of $760.4 million. First half 1997
revenues benefited from three more shipping days than first half 1996.
All business units except Viking experienced revenue improvements over second
quarter 1996 levels. The general strength of the economy has contributed to
increased demand for transportation services. Revenue at RPS, the company's
small package carrier, increased to $338.7 million or 12.0% over second quarter
revenue of $302.5 million last year. Package volume increased 13% over last
year; however, lower package weights and a greater percentage of overnight
ground packages in RPS's mix reduced revenue yields even though indexed rates
were up slightly over last year. On-time service at RPS continues to run at
record levels and approximates 96%. Second quarter net revenues at Caliber
Logistics, which are included in consolidated revenues, increased 34%, while
gross revenues increased 35%. Roberts' Express, the company's expedited carrier,
reported revenue growth of 6% over the second quarter last year.
The company announced a major restructuring of Viking's operations on March 27,
1997, which included terminating operations at its former Coles Express unit in
the Northeast and Spartan Express in the Southeast and Midwest. As a result of
the Viking restructuring, the company recorded in 1996 a non-cash $225 million
asset impairment charge related to the write-down of goodwill of $82 million and
property and equipment of $143 million. First quarter 1997 results included a
restructuring charge of $85 million for employee-related costs, including
severance and benefits, costs related to lease terminations, additional non -
cash asset impairments and other expenses resulting from the restructuring.
In the second quarter, the company received $16.2 million from the sale of
certain Viking property and equipment and paid $13.2 million primarily in
severance and related costs associated with the restructuring.
Subsequent to the end of the second quarter, the company finalized the sale of
Viking's Southwestern Division, which is now operating under the name Central
Freight Lines, Inc. Caliber received $43 million in cash, retained certain
properties that will be sold at a later date, and transferred approximately $22
million in liabilities to Central Freight Lines, Inc. The total value of this
transaction, including the anticipated proceeds from the retained properties, is
estimated at approximately $80 million. This transaction is not anticipated to
materially impact earnings.
-8-
<PAGE> 9
Results of operations at the former Coles, Spartan, and Southwestern Division
from the beginning of the quarter until shut down or sale of operations are
included in the consolidated second quarter results. Revenue associated with
these divisions was $49.9 million, expenses were $66 million, resulting in $16.1
million of transition costs attributable to operating losses at the former
Southwestern Division and to other non-recurring costs related to the closing of
the former Coles and Spartan Divisions.
Viking's ongoing operations now provide regional freight service to customers in
12 western states through 43 terminals. Second quarter revenue from Viking's
ongoing operations amounted to $81.4 million. Viking's ongoing operations
reported $80 million of operating expenses, resulting in a second quarter
operating profit of $1.4 million in the first full quarter since the unit's
restructuring as a regional carrier. In total, Viking reported operating losses
of $14.7 million in the second quarter of 1997 compared to $33.3 million for the
same period last year.
Without Viking, second quarter operating expenses were $403.7 million in 1997
compared to $355 million in the second quarter of 1996, an increase of 13.7%.
This change resulted primarily from higher business volumes at RPS and
Logistics, which reported operating expense increases of 11.7% and 33.3%,
respectively.
Excluding the restructuring charge and related transition costs, operating
income was $41.1 million for the quarter and $54.6 million for the first half,
compared to 1996 second quarter operating income of $1.4 million and first half
1996 operating income of $19.6 million.
Second quarter operating income without Viking was $39.7 million, an increase of
14.4% over $34.7 million last year. RPS reported a 15% rise in second quarter
operating income to $32.3 million from $28.2 million for the same period last
year. RPS's second quarter margins increased from 9.3% in 1996 to 9.5% in 1997.
Roberts continues to maintain excellent margins, while Logistic's margins have
improved over 1996 for both the second quarter and first half.
For the first half, operating income was $86.3 million without Viking, a 29.2%
improvement compared to $66.8 million in the first half of 1996. Growth in first
half operating income was due primarily to RPS, where operating income rose 27%
from $55.9 million in 1996 to $71 million in 1997. First half margins at RPS
improved from 9.48% to 10.48%. RPS's first half operating income was positively
impacted by a $5.3 million change in employee benefits. Excluding the impact of
the change in employee benefits, RPS's first half margin was 9.7% compared to
9.48% in the first half of 1996.
The change in "other expense, net" of $1 million for the second quarter and $0.1
million for the first half consisted primarily of additional net interest
expense of $3.1 million for the quarter and $6.7 million for the first half over
1996 levels offset by a gain on the sale of investment of $2.3 million for the
quarter and $7.6 million for the first half.
The consolidated income tax benefit rate was 27.3% for the first half. The
income tax expense rate related to ongoing operations was 39.5% for the first
half. Both rates differed from the U.S. federal statutory rate due primarily to
state income taxes and non-deductible operating costs.
-9-
<PAGE> 10
Net income from ongoing operations (net income excluding transition costs) for
the second quarter was $24.3 million or $0.62 per share. Including the Viking
transition costs, the company's net income for the quarter was $13.6 million or
$0.34 per share, compared to net income of $220,000 or $0.01 per share for the
second quarter of 1996. Transition costs negatively impacted net income for the
quarter by $10.7 million or $0.28 per share. Net income from ongoing operations
was positively affected by the gain on sale of investment of $1.8 million or
$0.05 per share.
Net income for the first half from ongoing operations was $31.5 million or $0.80
per share. Including the second quarter net transition costs of $10.7 million or
$0.28 per share and the first quarter restructuring charge of $56.4 million or
$1.43 per share, net loss for the first half was $35.6 million or $0.91 per
share compared to net income of $9.8 million or $0.25 per share in 1996. First
half net income from ongoing operations was positively impacted by the gain on
sale of investment of $4.6 million or $0.12 and by the one-time after tax change
in RPS's employee benefits of $2.8 million or $0.07 per share.
For the first half, net cash provided by operating activities of $126.2 million
was sufficient to fund net property additions of $28.9 million and dividends of
$14 million and to reduce outside borrowings. The company is party to bank
credit facilities providing for up to $300 million of term loans and up to $25
million of borrowings under revolving credit. Both agreements are unsecured and
interest is based on variable rates. Outstanding bank borrowings, which are
classified as short-term debt on the accompanying balance sheet, amounted to
$115 million at the end of the second quarter with $210 available for future
borrowings subject to the limitations of the loan covenants. Outstanding bank
borrowings as of July 18, 1997 (the end of the seventh accounting period) have
been further reduced to $50 million as a result of the proceeds from the sale
of Viking's Southwestern Division and cash flows from operating activities. The
bank loan agreements contain covenants requiring the company to maintain a
minimum level of consolidated net worth and limiting, among other things, the
ratio of debt to earnings, the incurrence of secured debt and sales of certain
of the company's assets.
1997 capital expenditures are currently estimated to approximate $125 million,
of which 60% is expected to be for technology and highly automated equipment,
30% for real estate and 10% for revenue and support equipment. The company
anticipates that through available borrowings and cash flows from operations, it
will be able to fund the remaining short-term cash requirements from the Viking
restructuring, capital expenditures during 1997 and provide adequate levels of
working capital and funds for the payment of dividends and interest. In March
1997, the Board of Directors reduced the quarterly dividend from $0.18 per share
to $0.10 per share payable August 1, 1997. The future amount of cash dividends
is subject to the discretion of the Board. Future dividend decisions will be
affected by a number of factors, including the company's future operating
results, financial conditions and other factors.
The foregoing contains forward-looking statements that are based on current
expectations and are subject to a number of risks and uncertainties. Actual
results could differ materially from current expectations due to a number of
factors, including general economic conditions; competitive initiatives and
pricing pressures; availability and cost of capital; shifts in market demand;
weather conditions; the performance and needs of industries serviced by the
company's businesses; actual future costs including employee wages and benefits;
actual costs of continuing investments in technology; the timing and amount of
capital expenditures; and actual costs and effects of the restructuring of the
business served by Viking.
-10-
<PAGE> 11
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
- -----------------------------------------------------------
At the annual meeting of shareholders on May 14, 1997, the following proposals
were voted upon:
Concerning Election of Directors
<TABLE>
<CAPTION>
Nominees for Director Votes Cast For Votes Withheld
- --------------------- -------------- --------------
<S> <C> <C>
George B. Beitzel 34,458,582 1,186,568
Richard A. Chenoweth 34,509,199 1,135,951
Norman C. Harbert 34,525,173 1,119,977
Harry L. Kavetas 34,513,343 1,131,807
Charles R. Longsworth 34,479,279 1,165,871
G. James Roush 34,528,753 1,116,397
Daniel J. Sullivan 34,134,678 1,510,472
H. Mitchell Watson, Jr. 34,464,209 1,180,941
</TABLE>
Concerning Ratification of the Designation of Independent Auditors
Votes Cast For: 35,142,050
Votes Cast Against: 309,157
Abstentions: 193,943
Broker Non-Votes: N/A
Item 6. Exhibits and Reports on Form 8-K
- -----------------------------------------
(a) Exhibits
--------
10.1 Trust Agreement between Caliber System, Inc. and Bank One Trust
Company, N.A., dated April 30, 1997
10.2 Rider No. 1 to Caliber System, Inc. Long-Term Stock Award
Incentive Plan effective January 2, 1996
-11-
<PAGE> 12
10.3 Rider No. 2 to Caliber System, Inc. Long-Term Stock Award
Incentive Plan effective January 2, 1996
27 Financial Data Schedule
(b) Reports on Form 8-K Filed During the Second Quarter of 1997
-----------------------------------------------------------
On April 21, 1997, a Current Report on Form 8-K was filed by the
registrant to report First Quarter results.
On April 30, 1997, a Current Report on Form 8-K was filed by the
registrant to announce an agreement in principal to sell the operations
of Viking Freight, Inc.'s Southwestern Division.
On May 28, 1997, a Current Report on Form 8-K was filed by the
registrant to announce the signing of a definitive agreement to sell
the operations of Viking Freight, Inc.'s Southwestern Division.
-12-
<PAGE> 13
SIGNATURES
- ----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CALIBER SYSTEM, INC.
---------------------------
(Registrant)
Date: August 1, 1997 By [Louis J. Valerio]
--------------- --------------------
Louis J. Valerio
Senior Vice President-Finance and
Chief Financial Officer
Date: August 1, 1997 By [Kathryn W. Dindo]
---------------- --------------------
Kathryn W. Dindo
Vice President and Controller
-13-
<PAGE> 14
EXHIBIT INDEX
10.1 Trust Agreement between Caliber System, Inc. and Bank One Trust Company,
N.A. dated April 30, 1997
10.2 Rider No. 1 to Caliber System, Inc. Long-Term Stock Award Incentive Plan
effective January 2, 1996 (filed as Exhibit 10.1 to the Registrant's
Quarterly Report on Form 10-Q dated March 23, 1996, and incorporated
herein by reference).
10.3 Rider No. 2 to Caliber System, Inc. Long-Term Stock Award Incentive Plan
effective January 2, 1996 (filed as Exhibit 10.1 to the Registrant's
Quarterly Report on Form 10-Q dated March 23, 1996, and incorporated
herein by reference).
27 Financial Data Schedule
<PAGE> 1
Exhibit 10.1
- --------------------------------------------------------------------------------
TRUST AGREEMENT
Between
CALIBER SYSTEM, INC.
and
BANK ONE TRUST COMPANY, N.A.
-----------------
April 30, 1997
-----------------
- --------------------------------------------------------------------------------
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C>
I. TRUST FUND........................................................................................... 2
II. PAYMENTS TO TRUST BENEFICIARIES...................................................................... 5
III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO
A TRUST BENEFICIARY WHEN THE COMPANY IS INSOLVENT............................................. 8
IV. PAYMENTS TO COMPANY.................................................................................. 10
V. INVESTMENT OF TRUST FUND............................................................................. 11
VI. INCOME OF THE TRUST.................................................................................. 13
VII. ACCOUNTING BY TRUSTEE................................................................................ 13
VIII. RESPONSIBILITY AND INDEMNIFICATION OF TRUSTEE........................................................ 14
IX. AMENDMENTS, ETC., TO MANAGEMENT RETENTION AGREEMENTS
AND EXHIBITS......................................................................................... 19
X. REPLACEMENT OF TRUSTEE............................................................................... 21
XI. AMENDMENT OR TERMINATION OF AGREEMENT................................................................ 22
XII. SPECIAL DISTRIBUTIONS................................................................................ 24
XIII. GENERAL PROVISIONS................................................................................... 26
XIV. NOTICES.............................................................................................. 29
</TABLE>
<PAGE> 3
TRUST AGREEMENT
---------------
This trust agreement ("Agreement") made as of the 30th day of April,
1997 by and between Caliber System, Inc., an Ohio corporation (the "Company"),
and Bank One Trust Company, N.A. (the "Trustee").
WITNESSETH:
-----------
WHEREAS, certain employees of the Company, or of an affiliate of the
Company, listed on Exhibit A (the "Participants") and their beneficiaries may
become entitled to benefits under the provisions of certain management retention
agreements listed on Exhibit B (the "Management Retention Agreements"), as the
same have been or in the future may be amended or restated, or any successor
thereto;
WHEREAS, the Management Retention Agreements provide for certain
severance, retention and/or other benefits in the event of a Change in Control
(as that term is defined in Section 1.7), and the Company wishes to assure the
payment to the Participants and their beneficiaries (the Participants and their
respective beneficiaries are collectively referred to as the "Trust
Beneficiaries") of amounts due under such agreements (the amounts so payable are
collectively referred to as the "Benefits");
WHEREAS, the Company wishes to establish a trust (the "Trust") and to
transfer to the Trust assets which shall be held subject to the claims of the
creditors of the Company to the extent set forth in Article III until (i) paid
in full to all Trust Beneficiaries as Benefits in such manner and as specified
<PAGE> 4
in this Agreement unless the Company is Insolvent (as that term is defined
below) at the time that such Benefits become payable or (ii) otherwise disposed
of pursuant to the terms of this Agreement; and
WHEREAS, the Company shall be considered "Insolvent" for purposes of
this Agreement at such time as the Company (i) is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code, as amended from
time to time, or (ii) is unable to pay its debts as they become due.
NOW, THEREFORE, the parties establish the Trust and agree that the
Trust shall be comprised, held and disposed of as follows:
I. TRUST FUND
----------
1.1 Subject to the claims of creditors to the extent set forth in
Article III, the Company shall deposit with the Trustee in trust One Hundred
Dollars ($100), which shall become the principal of this Trust, to be held,
administered and disposed of by the Trustee as provided in this Agreement.
1.2 This Trust shall be irrevocable. In the event that a Change in
Control has occurred, the Chief Executive Officer of the Company (the "CEO") or
the Secretary of the Company shall notify the Trustee promptly. The Trustee
shall be entitled to rely upon such notice as to whether and when a Change in
Control has occurred and shall not be required to make any independent
verification of a Change in Control.
1.3 The principal of the Trust and any earnings shall be
held in trust separate and apart from other funds of the Company
<PAGE> 5
and shall be used exclusively for the uses and purposes set forth in this
Agreement. No Trust Beneficiary shall have any preferred claim on, or any
beneficial ownership interest in, any assets of the Trust prior to the time that
such assets are paid to a Trust Beneficiary as Benefits. Any rights created
under the Management Retention Agreements and this Agreement shall be mere
unsecured contractual rights of Trust Beneficiaries with respect to the Company.
The obligation of the Trustee to pay Benefits pursuant to this Agreement
constitutes merely an unfunded and unsecured promise to pay such benefits.
1.4 (a) The Company may at any time or from time to time make
additional deposits of cash or other property as may be acceptable to the
Trustee in the Trust, or make provision for cash or other property as may be
acceptable to the Trustee to be transferred to the Trust, such as by means of a
letter of credit or otherwise, to augment the principal to be held, administered
and disposed of by the Trustee, but no payment of all or any portion of the
principal of the Trust or earnings shall be made to the Company or any other
person or entity on behalf of the Company except as expressly provided in this
Agreement.
(b) Within 30 days following the occurrence of a Potential
Change in Control (as that term is defined in this Section 1.4), the Company
shall make a contribution to the Trust that is sufficient, taking into account
the assets of the Trust prior to such contribution, to provide for the payment
of all Benefits and any other amounts payable or reimbursable pursuant to the
terms of this Agreement.
3
<PAGE> 6
(c) Within 30 days after the end of each calendar year ending
after a Change in Control, the Company shall make an additional contribution to
the Trust that is sufficient, taking into account the assets of the Trust prior
to such contribution, to provide for the payment of all Benefits and any other
amounts payable or reimbursable pursuant to the terms of this Agreement.
(d) A "Potential Change in Control" means the occurrence of
any of the following events:
(i) The Company enters into a letter of intent,
agreement in principle or other agreement, the consummation of which would
constitute a Change in Control;
(ii) any person (including the Company) makes a
public announcement (including, without limitation, an announcement made by
filing a Schedule 13D or Schedule 14D-1 (or any successor schedule, form, report
or item), each as promulgated pursuant to the Securities Exchange Act of 1934
(the "Exchange Act")) stating a present intention to take actions that, if
consummated, would constitute a Change in Control; or
(iii) any "person," as such term is used in
Sections 3(a)(9) and 13(d) of the Exchange Act, becomes a "beneficial owner," as
such term is used in Rule 13d-3 promulgated under the Exchange Act, of 20% or
more of the combined power of all the voting stock of the Company then
outstanding.
1.5 Not later than the date of a Change in Control, the
Company shall (a) specify the nature, estimated amounts, methods of computation
and timing of the Benefits to which each
4
<PAGE> 7
Trust Beneficiary may become entitled, subject to Article IX, in an exhibit
("Exhibit C") which shall become a part of this Agreement and be incorporated by
this reference, (b) provide any corresponding revisions to Exhibits A and B that
may be required and (c) provide the Trustee with copies of the Management
Retention Agreements and any amendments.
1.6 The Trust is intended to be a grantor trust, within the meaning of
section 671 of the Internal Revenue Code of 1986, as amended (the "Code"), or
any successor provision, and shall be construed accordingly. The purpose of the
Trust is to assure that the Company's obligations to the Participants pursuant
to the Management Retention Agreements are fulfilled. The Trust is neither
intended nor designed to qualify under section 401(a) of the Code or to be
subject to the provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA").
1.7 As used in this Agreement, the term "Change in Control" has the
meaning set forth in section 1(d) of the Second Amended and Restated Management
Retention Agreement dated March 18, 1997 between the Company and its then CEO.
II. PAYMENTS TO TRUST BENEFICIARIES
-------------------------------
2.1 Provided that the Company is not Insolvent and commencing with the
earlier to occur of (a) appropriate notice to the Trustee by the Company, or (b)
the date of a Change in Control, the Trustee shall make payments of Benefits to
each Trust Beneficiary from the assets of the Trust in compliance and conformity
with the terms of the Management Retention Agreements and in accordance with
Exhibit C, and subject to Article IX.
5
<PAGE> 8
2.2 The Trustee shall continue to pay Benefits to the Trust
Beneficiaries until the assets of the Trust are depleted, subject to Section
11.2. If any current payment by the Trustee under the terms of this Agreement
would deplete the assets of the Trust below the amount necessary to provide
adequately for Benefits known to the Trustee to be payable in the future, the
Trustee shall nevertheless make the current payment when due. If, after
application of the preceding sentence, amounts in the Trust are not sufficient
to provide for full payment of the Benefits to which any Trust Beneficiary is
entitled as provided in this Agreement, the Company shall make the balance of
each such payment directly to the Trust Beneficiary as it becomes due.
2.3 The Company may make payments of Benefits directly to each or any
Trust Beneficiary. The Company shall notify the Trustee of its decision to pay
Benefits directly at least 3 days prior to the time amounts are due to be paid
to a Trust Beneficiary.
2.4 Nothing in this Agreement shall in any way diminish any rights of
any Trust Beneficiary to pursue such Trust Beneficiary's rights as a general
creditor of the Company with respect to Benefits or otherwise, and the rights of
each Trust Beneficiary under the respective Management Retention Agreement shall
in no way be affected or diminished by any provision of this Agreement or action
taken pursuant to this Agreement, except that any payment actually received by
any Trust Beneficiary shall reduce dollar-per-dollar amounts otherwise due to
such Trust Beneficiary pursuant to such Management Retention Agreement.
6
<PAGE> 9
2.5 The Trustee shall withhold from any payment to a Trust Beneficiary
the amount required by law to be so withheld under federal, state and local tax
withholding requirements, and shall pay over to the appropriate government
authority the amounts withheld. Unless notified by the Company, the Trustee
shall be entitled to treat the payment of any Benefit as "supplemental wages"
under Treas. Reg. Section 31.3402(g)-1 or any successor provision and as
"supplemental compensation" under applicable state and local withholding tax
provisions. On or before the date of a Change in Control, the Company shall
furnish the Trustee with a schedule which lists for each Participant the
withholding rates then applicable to supplemental wages or supplemental
compensation for federal, state and local tax purposes in the event of the
termination of each of the Participant's employment with the Company immediately
following the Change in Control.
7
<PAGE> 10
III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS TO
--------------------------------------------------
A TRUST BENEFICIARY WHEN THE COMPANY IS INSOLVENT
-------------------------------------------------
3.1 At all times during the continuance of this Trust, the principal
and income of the Trust shall be subject to claims of creditors of the Company
as set forth in this Section 3.1. The Board of Directors of the Company (the
"Board") and the CEO shall have the duty to inform the Trustee in writing if
either the Board or the CEO believes that the Company is Insolvent. If the
Trustee receives a notice in writing from the Board or the CEO stating that the
Company is Insolvent or if a person claiming to be a creditor of the Company
alleges in writing to the Trustee that the Company has become Insolvent, the
Trustee shall independently determine within 30 days after receipt of such
notice whether the Company is Insolvent. In making this determination, the
Trustee may engage the outside accountants of the Company, or other qualified
accountants, as may be dictated by prudence, to render an opinion as to the
solvency of the Company and shall be fully protected under Section 8.7 in
relying upon the advice of such accountants. In addition, the Company shall
provide the Trustee or its agents, including the outside accountants of the
Company, with any information reasonably requested, and otherwise cooperate with
the Trustee or its agents in making the determination. Pending such
determination, or if the Trustee has actual knowledge or has determined that the
Company is Insolvent, the Trustee shall discontinue or refrain from making
payments to any Trust Beneficiary and hold the Trust assets for the benefit of
the general creditors of the Company. The Trustee shall pay any undistributed
principal and income in
8
<PAGE> 11
the Trust to the extent necessary to satisfy the claims of the creditors of the
Company as a court of competent jurisdiction may direct. If the Trustee has
discontinued or refrained from making payments to any Trust Beneficiary pursuant
to this Section 3.1, the Trustee shall pay or resume payments to such Trust
Beneficiary in accordance with this Agreement if the Trustee has determined that
the Company is not Insolvent, or is no longer Insolvent (if the Trustee
initially determined the Company to be Insolvent), or pursuant to the order of a
court of competent jurisdiction. Unless the Trustee has actual knowledge of
Insolvency, or has received notice from the Board, the CEO or a person claiming
to be a creditor of the Company alleging that the Company is Insolvent, the
Trustee shall have no duty to inquire as to whether the Company is Insolvent and
may rely on information concerning the Insolvency of the Company that has been
furnished to the Trustee by any creditor of the Company or by any person (other
than an employee or director of the Company) acting with apparent or actual
authority with respect to the Company.
3.2. If the Trustee is precluded from paying Benefits from the Trust
assets pursuant to Section 3.1 and such prohibition is subsequently removed, the
Trustee shall pay the aggregate amount of all Benefits that would have been paid
to the Trust Beneficiaries in accordance with this Agreement during the period
of such prohibition, less the aggregate amount of Benefits otherwise paid to any
Trust Beneficiary by the Company during any such period, together with interest
on the delayed amount
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<PAGE> 12
determined at a rate equal to the rate actually earned (including, without
limitation, market appreciation or depreciation, plus receipt of interest and
dividends) during such period with respect to the assets of the Trust
corresponding to such net amount delayed.
IV. PAYMENTS TO COMPANY
-------------------
4.1 The Company shall have no right or power to direct the Trustee to
return any of the Trust assets to the Company before all payments of Benefits
have been made to all Trust Beneficiaries as provided in this Agreement.
4.2 For purposes of this Agreement, the term "Executives" shall mean at
all times the CEO, the President, the Chief Financial Officer, the General
Counsel and the Vice President (responsible for human resources) of the Company.
Notwithstanding the above, after a Change in Control, the term "Executives"
shall not mean the persons from time to time holding the positions referred to
above, but shall mean those specific persons who constituted the "Executives"
immediately prior to the Change in Control. In the event that, following a
Change in Control, an Executive resigns from such position or is unable to serve
due to death or disability, then the four remaining Executives shall appoint a
successor who shall constitute an Executive under this Agreement. Except as
otherwise expressly provided, the Executives shall be considered to have
"agreed" or "consented" to, or "approved" or "requested", a proposed action or
decision under the terms of this Agreement when three or more of the Executives
so indicate in writing to the Trustee.
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<PAGE> 13
V. INVESTMENT OF TRUST FUND
------------------------
5.1 Prior to the date of a Change in Control, the Trustee shall invest
and reinvest the assets of the Trust as the Company shall prescribe in writing
from time to time.
5.2 On or after the date of a Change in Control, or in the absence of
the instructions from the Company specified in Section 5.1, the provisions of
this Section 5.2 shall apply to the investment of the Trust assets. The
investment objective of the Trustee shall be to preserve the principal of the
Trust while obtaining a reasonable total rate of return, measurement of which
shall include, without limitation, market appreciation or depreciation plus
receipt of interest and dividends. The Trustee shall be mindful, in the course
of its management of the Trust, of the liquidity demands on the Trust.
5.3 The Trustee shall have the sole power to invest the assets of the
Trust, in accordance with the provisions of Sections 5.1 and 5.2. The Trustee
shall not be liable for any failure to maximize income on such portion of the
Trust assets as may be from time to time invested or reinvested as set forth
above, nor for any loss of principal or income due to the liquidation of any
investment that the Trustee, in its sole discretion, believes necessary to make
payments or to reimburse expenses under the terms of this Agreement. The Trustee
shall have the right to invest assets of the Trust for short-term investment
periods, pending distribution, or long-term investment of such assets, as the
Trustee may deem proper in the
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<PAGE> 14
circumstances. In addition, the Trustee shall have the authority, in its sole
discretion:
(a) to invest and reinvest the Trust assets in any kind of
real or personal property without regard to any law restricting investment by
trustees, including, but not limited to, securities of any open-end management
type investment company or investment trust registered under the Investment
Company Act of 1940, as amended, which would be regarded by prudent businessmen
as a safe investment. The fact that the Trustee, any affiliate of the Trustee or
any affiliate of BANK ONE CORPORATION is providing services to and receiving
remuneration from the foregoing investment company or trust as investment
advisor, custodian, transfer agent, registrar, or otherwise shall not preclude
the Trustee from investing in the securities of such investment company or
investment trust.
(b) to invest and reinvest or otherwise deposit the Trust
assets in savings accounts, time deposit accounts, certificates of deposit,
money market funds, or other evidences of deposit issued by Trustee and/or any
other national bank, savings and loan institution, state member bank, state
non-member bank, or other depository institution which now or in the future is
an affiliate or subsidiary of Trustee or of BANK ONE CORPORATION.
5.4 In no event may the Trustee invest in securities (including stock
or rights to acquire stock) or obligations issued by the Company, other than a
de minimis amount held in common investment vehicles in which the Trustee
invests.
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<PAGE> 15
The Trustee is not authorized and shall not disclose the name, address, or
security positions of the beneficial owners of the Trust in response to requests
concerning shareholder communications under Section 14 of the Securities
Exchange Act of 1934, the rules and regulations thereunder, or any similar
statute, regulation, or rule in effect from time to time.
VI. INCOME OF THE TRUST
-------------------
6.1 During the continuance of this Trust, all net income of
the Trust shall be retained in the Trust.
VII. ACCOUNTING BY TRUSTEE
---------------------
7.1 The Trustee shall maintain such books, records and
accounts as may be necessary for the proper administration of the Trust assets,
including such specific records as shall be agreed upon in writing by the
Company and the Trustee. Within 60 days following the close of each calendar
year that includes or commences after the date of this Trust until the
termination of this Trust or the removal or resignation of the Trustee (and
within 60 days after the date of such termination, removal or resignation), the
Trustee shall render to the Company an accounting with respect to the Trust
assets as of the end of the then most recent calendar year (and as of the date
of such termination, removal or resignation, as the case may be). The Trustee
shall furnish to the Company on a quarterly basis (or as the Company shall
direct from time to time) and in a timely manner such information regarding the
Trust as the Company shall require for purposes of preparing its statements of
financial condition. Upon the written request of the Company or, on or
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<PAGE> 16
after the date of a Change in Control, an Executive, the Trustee shall deliver
to the Executive or the Company, as the case may be, a written report setting
forth the amount held in the Trust and a record of the deposits made to the
Trust by the Company.
VIII. RESPONSIBILITY AND INDEMNIFICATION OF TRUSTEE
---------------------------------------------
8.1 The duties and responsibilities of the Trustee shall be
limited to those expressly set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Trustee.
8.2 In addition to and without limiting any other provision of this
Agreement, on or after the date of a Change in Control, the Trustee shall, in
its sole discretion, based upon the information furnished to it by the Company
and/or the Participants and any additional information that it may reasonably
request, (a) make all decisions regarding whether a Trust Beneficiary is
eligible for the payment of Benefits, the nature, amount and timing of such
benefits, and any other decisions pertinent to the exercise of the Trustee's
duties and responsibilities under this Agreement, and (b) exercise any power or
discretion granted pursuant to the Management Retention Agreements to the Board,
any committee of the Board, or to any other committee, entity or person. On or
before the date of a Change in Control, the Company shall furnish the Trustee
with calculations and supporting schedules showing in detail the payments
required under this Agreement in the event of the termination of each of the
Participant's employment with the Company immediately following the Change in
Control, and at any
14
<PAGE> 17
time thereafter. The Trustee shall determine amounts due under this Agreement in
a manner consistent with these calculations and supporting schedules. In
connection with the exercise of the duties, responsibilities, power and
discretion of the Trustee under this Agreement, the Trustee may employ legal
counsel to aid its determinations and shall be fully protected under Section 8.7
in relying upon the advice of counsel in making such determinations.
8.3 If all or any part of the Trust assets are at any time attached,
garnished, or levied upon by any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in case any order, judgment or decree
shall be made or entered by a court affecting such property or any part of such
property, then and in any of such events the Trustee shall be authorized, in its
sole discretion, to rely upon and comply with any such order, judgment or
decree, and it shall not be liable to the Company or any Trust Beneficiary by
reason of such compliance even though such order, judgment or decree
subsequently may be reversed, modified, annulled, set aside or vacated.
8.4 The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent man 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; provided, however, that the
Trustee shall incur no liability to anyone for any action taken pursuant to a
direction, request, or approval given by the Company or any
15
<PAGE> 18
Executive or Trust Beneficiary contemplated by and complying with the terms of
this Agreement. The Trustee shall discharge its responsibility for the
investment, management and control of the Trust assets solely in the interest of
the Trust Beneficiaries and for the exclusive purpose of assuring that, to the
extent of available Trust assets, and in accordance with the terms of this
Agreement, all payments of Benefits are made when due to the Trust
Beneficiaries.
8.5 The Trustee may consult with legal counsel (who shall not be
counsel for the Company) to be selected by it.
8.6 The Trustee shall be entitled to compensation for its services as
set forth in Schedule A attached hereto and made a part hereof (the "Fee
Schedule"), for reimbursement of its out of pocket expenses as provided in this
Agreement, and for all other necessary and proper disbursements made or incurred
by the Trustee in the performance of its duties and obligations under this
Agreement. The Company shall promptly pay or reimburse the Trustee for the
payment of any expense or liability incurred by the Trustee in connection with
the performance of its duties, including but not limited to the following
payments on the account of the Company: delivery charges, insurance, interest,
taxes, management, accountant and legal fees, and other operating expenses of
the Trustee. Such compensation and reimbursement shall be paid in the manner
provided by Section 8.7.
8.7 The Company agrees to indemnify and hold harmless the Trustee from
and against any and all damages, losses, claims or expenses as incurred
(including expenses of investigation and
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<PAGE> 19
fees and disbursements of counsel to the Trustee and any taxes imposed on the
Trust assets or income of the Trust) arising out of or in connection with the
performance by the Trustee of its duties, other than such damages, losses,
claims or expenses arising out of the Trustee's gross negligence or willful
misconduct. The Trustee shall not be required to undertake or to defend any
litigation arising in connection with this Agreement unless it be first
indemnified by the Company against its prospective costs, expenses and
liabilities (including, without limitation, attorneys' fees and expenses), and
the Company agrees to indemnify the Trustee and be primarily liable for such
costs, expenses, and liabilities. Any amount payable to the Trustee under
Section 8.6 or this Section 8.7 shall be paid by the Company promptly upon
demand by the Trustee or, in the event that the Company fails to make such
payment within 30 days of such demand, from the Trust assets. In the event that
payment is made to the Trustee from the Trust assets, the Trustee shall promptly
notify the Company in writing of the amount of such payment. The Company agrees
that, upon receipt of such notice, it will deliver to the Trustee to be held in
the Trust an amount in cash equal to any payments made from the Trust assets to
the Trustee pursuant to Section 8.6 or this Section 8.7. The failure of the
Company to transfer any such amount shall not in any way impair the Trustee's
right to indemnification, reimbursement and payment pursuant to Section 8.6 or
this Section 8.7. The Company's indemnity shall be a continuing obligation of
the Company, its
17
<PAGE> 20
successors and assigns, notwithstanding the termination of this Agreement.
8.8 The Trustee may vote any stock or other securities and exercise any
right appurtenant to any stock, other securities or other property it holds,
either in person or by general or limited proxy, power of attorney or other
instrument.
8.9 The Trustee may hold securities in bearer form and may register
securities and other property held in the Trust fund in its own name or in the
name of a nominee, combine certificates representing securities with
certificates of the same issue held by the Trustee in other fiduciary
capacities, and deposit, or arrange for deposit of, property with any
depository; provided that the books and records of the Trustee shall at all
times show that all such securities are part of the assets of the Trust.
8.10 The Trustee may exercise all rights appurtenant to any letter of
credit made payable to the Trustee of the Trust for the benefit of the Trust in
accordance with the terms of such letter of credit.
8.11 The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals, who may be agents,
accountants, actuaries, investment advisors, financial consultants, or otherwise
act in a professional capacity, as the case may be, for the Company or with
respect to any Management Retention Agreement, to assist the Trustee in
performing any of its duties.
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<PAGE> 21
8.12 The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law unless expressly provided otherwise in this
Agreement.
8.13 Notwithstanding any other provision of this Agreement, in the
event of the termination of the Trust, or the resignation or discharge of the
Trustee, the Trustee shall have the right to a settlement of its accounts in
accordance with the procedures set forth in Section 7.1, which may be made, at
the option of the Trustee, either (a) by a judicial settlement in a court of
competent jurisdiction, or (b) by agreement of settlement, release and indemnity
from the Company to the Trustee.
IX. AMENDMENTS, ETC., TO MANAGEMENT RETENTION
AGREEMENTS AND EXHIBITS
-----------------------------------------
9.1 On or after the date of a Change in Control, the provisions of
this Section 9.1 shall apply.
9.1.1 Not later than 45 calendar days after the end of each
calendar year and at such other time as may in the judgment of the Company be
appropriate in view of a change in circumstances, the Company and each
Participant shall agree upon and furnish any amendment to Exhibit C (but only
with respect to such Participant's Benefits) as shall be required to reflect:
(a) any required change in the amounts of Benefits as a
result of any change in such Participant's compensation (or otherwise) during
the prior calendar year, or
(b) any amendment, restatement or other change in or to the
Management Retention Agreements, which agreements to amendments to such Exhibit
C shall be furnished to the Trustee by the Company or the Participants and
thereafter be deemed to be a
19
<PAGE> 22
part of this Agreement; provided, however, that in the event of the failure of
the Company and any Participant to reach such agreement, the provisions of
Section 9.1.2 shall control.
9.1.2 The Company shall, and any Trust Beneficiary may,
promptly furnish the Trustee true and correct copies of any amendment,
restatement or successor to any of the Management Retention Agreements. Upon
written notification to the Trustee by the Company or any Participant of the
failure of the Company and such Participant to agree as provided in Section
9.1.1, the Trustee shall, to the extent necessary in the sole judgment of the
Trustee, (a) recompute the amount payable in accordance with Exhibit C to any
Trust Beneficiary, and (b) notify the Company and the Participant in writing of
its computations. In making these determinations, the Trustee may employ legal
counsel and shall be fully protected under Section 8.7 in relying upon the
advice of counsel in relying on such determinations. Thereafter, this Agreement
and all Exhibits shall be amended to the extent of such Trustee determinations
without further action; provided, however, that the failure of the Company to
furnish any such amendment, restatement, successor or compensation information
shall in no way diminish the rights of any Trust Beneficiary.
9.2 Amendments to Exhibit A (and directly corresponding amendments to
Exhibit B) that modify one or more lists of Participants shall be made only in
accordance with Section 1.5. No amendment to Exhibit A (and no amendment to
Exhibit B that would delete a Participant in a Management Retention Agreement)
20
<PAGE> 23
may be made on or after the date on which a Change in Control occurs, except in
accordance with Article XI.
X. REPLACEMENT OF TRUSTEE
----------------------
10.1 The Trustee may resign and be discharged from its
duties after providing not less than 90 days' notice in writing to the Company.
On or after the date of a Change in Control, the Trustee shall also provide
notice of its resignation to all of the Executives. Prior to the date of a
Change in Control, the Trustee may be removed at any time upon notice in writing
by the Company. On or after such date, removal shall also require the agreement
of the Executives. Prior to the date of a Change in Control, a replacement or
successor trustee shall be appointed by the Company. On or after such date,
appointment shall also require the agreement of the Executives. No such removal
or resignation shall become effective until the effectiveness of the acceptance
of the trust by a successor trustee designated in accordance with this Article
X. If, after making reasonable efforts to appoint a successor trustee, the
Trustee has been unable to do so, the Trustee shall petition a court of
competent jurisdiction to appoint a successor trustee. Upon the acceptance of
the trust by a successor trustee, the Trustee shall release all of the moneys
and other property in the Trust to its successor, who after such time shall for
all purposes of this Agreement be considered to be the "Trustee." In the event
of its removal or resignation, the Trustee shall duly file with the Company and,
after the Trust becomes irrevocable, all of the Executives, a written statement
or statements of accounts and
21
<PAGE> 24
proceedings as provided in Section 7.1 for the period since the last previous
accounting of the Trust.
XI. AMENDMENT OR TERMINATION OF AGREEMENT
-------------------------------------
11.1 This Agreement may be amended at any time and to any
extent by a written instrument executed by the Trustee and the Company;
provided, however, that no amendment shall have the effect of (a) making the
Trust revocable or (b) altering Section 11.2.
11.2 The Trust shall terminate upon the earliest to occur of (i) a
joint determination by the Trustee and the Executives made on or after the fifth
anniversary of a Change in Control that no Trust Beneficiary is or will be
entitled to any further payment of Benefits or (ii) such time as the Trustee
shall have received consents from all of the Executives to the termination of
this Agreement. Notwithstanding the previous sentence, if payments under an
Management Retention Agreement with respect to any Trust Beneficiary are the
subject of litigation or arbitration, the Trust shall not terminate and the
funds held in the Trust with respect to such Trust Beneficiary shall continue to
be held by the Trustee until the final resolution of such litigation or
arbitration. The Trustee may assume that no Management Retention Agreement is
the subject of such litigation or arbitration unless the Trustee receives
written notice from a Trust Beneficiary or the Company with respect to such
litigation or arbitration. The Trustee may rely upon written notice from a Trust
Beneficiary as to the final resolution of such litigation or arbitration.
22
<PAGE> 25
11.3 Upon a termination of the Trust as provided in Section 11.2, any
assets remaining in the Trust, less all payments, expenses, taxes and other
charges under this Agreement as of such date of termination, shall be returned
to the Company. Delivery and release of Trust assets shall be made provided the
Trustee shall have no liability for shipping or insurance costs associated
therewith and full payment has been made to Trustee of all of its compensation,
costs, expenses and other amounts hereunder.
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XII. SPECIAL DISTRIBUTIONS
---------------------
12.1 It is intended that (a) the creation of, and transfer
of assets to the Trust will not cause any of the Plans to be other than
"unfunded" for purposes of title I of ERISA; (b) transfers of assets to the
Trust will not be transfers of property for purposes of section 83 of the Code,
or any successor provision thereto, nor will such transfers cause a currently
taxable benefit to be realized by a Trust Beneficiary pursuant to the "economic
benefit" doctrine; and (c) pursuant to section 451 of the Code, or any successor
provision thereto, amounts will be includible as compensation in the gross
income of a Trust Beneficiary in the taxable year or years in which such amounts
are actually distributed or made available to such Trust Beneficiary by the
Trustee.
12.2 Notwithstanding anything to the contrary contained in any Plan, if
the Trustee obtains an opinion of tax counsel selected by the Trustee to the
effect that based upon any of the following occurring after the date of this
Agreement:
(a) change in the federal tax or revenue laws, (b) a
decision in a controlling case, (c) a published ruling or similar
announcement issued by the Internal Revenue Service, (d) a regulation
issued by the Secretary of the Treasury, (e) a decision by a court of
competent jurisdiction involving a Trust Beneficiary, or (f) a closing
agreement made under section 7121 of the Code, or any successor
provision thereto, that is approved by the Internal Revenue Service and
involves a Trust Beneficiary, it is more likely than not that an
24
<PAGE> 27
amount is includible in the gross income of a Trust Beneficiary in a
taxable year that is prior to the taxable year or years in which such
amount would, but for this Section 12.2, otherwise actually be
distributed or made available to such Trust Beneficiary by the Trustee,
then the Trustee shall distribute to each affected Trust Beneficiary an
amount equal to the amount which, after taking into account the federal,
state and local income tax consequences of the special distribution
itself, is equal to the sum of any federal, state and local income
taxes, interest due thereon, and penalties assessed with respect thereto
which are attributable to amounts that are so includible in the gross
income of such Trust Beneficiary. The Trustee shall seek such an opinion
of tax counsel if and only if requested to do so by the Executives.
12.3 Notwithstanding anything to the contrary contained in any Plan, if
a Trust Beneficiary provides evidence satisfactory to the Trustee demonstrating
that, as a result of an assertion by the Internal Revenue Service, a final
nonappealable binding determination has been made with respect to a taxable year
of such Trust Beneficiary that an amount is includible in the gross income of
such Trust Beneficiary in a taxable year that is prior to the taxable year in
which such amount would, but for this Section 12.3, otherwise actually be
distributed or made available to such Trust Beneficiary by the Trustee, then the
Trustee shall distribute to such Trust Beneficiary an amount equal to the amount
which, after taking into account the federal, state and
25
<PAGE> 28
local income tax consequences of the special distribution itself, is equal to
the sum of any federal, state and local income taxes, interest due thereon, and
penalties assessed with respect thereto which are attributable to amounts that
are so includible in the gross income of such Trust Beneficiary.
XIII. GENERAL PROVISIONS
-------------------
13.1 The Company shall, at any time and from time to time, upon the
reasonable request of the Trustee, provide information, execute and deliver such
further instruments and do such further acts as may be necessary or proper to
effectuate the purposes of this Trust.
13.2 Each Exhibit referred to in this Agreement shall become a part of
this Agreement and is expressly incorporated by reference.
13.3 This Agreement sets forth the entire understanding of the parties
with respect to its subject matter and supersedes any and all prior agreements,
arrangements and understandings. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and legal
representatives.
13.4 This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
13.5 In the event that any provision of this Agreement or the
application of any provision to any person or circumstances shall be determined
by a court of competent jurisdiction to be invalid or unenforceable to any
extent, the remainder of this Agreement, or the application of such provision to
persons or
26
<PAGE> 29
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected, and each provision of this Agreement shall be valid and
enforced to the maximum extent permitted by law.
13.6 (a) The preamble to this Agreement shall be considered a part of
the agreement of the parties as if set forth in a section of this Agreement.
(b) The headings and table of contents contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
13.7 The right of any Trust Beneficiary to any benefit or to any payment
may not be anticipated, assigned (either at law or in equity), alienated or
subject to attachment, garnishment, levy, execution or other legal or equitable
process except as required by law. Any attempt by any Trust Beneficiary. to
anticipate, alienate, assign, sell, transfer, pledge, encumber or charge the
same shall be void. The Trust assets shall not in any manner be subject to the
debts, contracts, liabilities, engagements or torts of any Trust Beneficiary.
13.8 Any dispute between the Participants and the Company or the Trustee
as to the interpretation or application of the provisions of this Agreement and
amounts payable may, at the election of any party to such dispute (or, if more
than one Participant is such a party, at the election of two-thirds of such
Participants), be determined by binding arbitration in accordance with the rules
of the American Arbitration Association
27
<PAGE> 30
then in effect. Judgment may be entered on the arbitrator's award in any court
of competent jurisdiction. All fees and expenses of such arbitration shall be
paid by the Trustee and considered an expense of the Trust under Section 8.7.
13.9 Each Participant is an intended beneficiary under this Trust, and
as an intended beneficiary shall be entitled to enforce all terms and provisions
with the same force and effect as if such person had been a party to the
Agreement.
13.10 The Trustee shall be permitted to withhold from any payment due to
a Participant the amount required by law to be so withheld under federal, state
and local withholding requirements or otherwise, and shall pay over to the
appropriate government authority the amounts so withheld. The Trustee may rely
on reasonable instructions from the Company as to any required withholding and
shall be fully protected under Section 8.7 in relying on such instructions.
13.11 Notwithstanding any other provision, the parties' respective
rights and obligations under Section shall survive any termination or expiration
of this Agreement.
13.12 The Trustee shall not be responsible or liable for any failure or
delay in the performance of its obligations under this Agreement arising out of
or caused directly or indirectly, by circumstances beyond its reasonable
control, including without limitation: acts of God; earthquakes; fires; floods;
wars; civil or military disturbances; sabotage; epidemics; riots; interruptions;
loss or malfunction of utilities or communication services; accidents; labor
disputes; acts of civil or military
28
<PAGE> 31
authority; governmental action; or inability to obtain labor, material,
equipment or transportation.
13.13 The Company shall provide, and the Trustee shall receive, a
certified resolution of the Board of Directors of the Company as conclusive
proof of the names and authority of the persons entitled to act hereunder,
including Committee members, if applicable.
XIV. NOTICES
-------
14.1 For all purposes of this Agreement, any communication, including
without limitation, any notice, consent, report, demand or waiver required or
permitted to be given shall be in writing and, unless otherwise provided in this
Agreement, shall be deemed to have been duly given when hand delivered or
dispatched by telegram or electronic facsimile transfer (confirmed in writing by
mail simultaneously dispatched), or two business days after having been mailed
by United States registered or certified mail, return receipt requested, postage
prepaid, or one business day after having been dispatched by a nationally
recognized overnight courier service to the appropriate party at the address
specified below:
If to the Company, to: Caliber System, Inc.
---------------------- 3560 West Market Street
Akron, Ohio 44333
Attention: Secretary
If to the Trustee, to: Bank One Trust Company, N.A.
---------------------- 50 South Main Street
Akron, OH 44308
Attention: Paul J. Kipfstuhl
If to a Participant, to: the address of such Participant as
------------------------ listed next to such Participant's
name on Exhibit A,
29
<PAGE> 32
provided, however, that if any party or such party's successors shall have
designated a different address by notice to the other parties, then to the last
address so designated.
IN WITNESS WHEREOF, the Company and the Trustee caused this
Agreement to be executed on its behalf as of the date first above
written.
Attested CALIBER SYSTEM, INC.
By: By:
------------------------- -------------------------------
Its: Its:
--------------------- ---------------------------
Attested BANK ONE TRUST COMPANY, N.A.
By: By:
------------------------- -------------------------------
Its: Its:
--------------------- ---------------------------
30
<PAGE> 1
Exhibit 10.2
RIDER NO. 1
TO
CALIBER SYSTEM, INC.
LONG-TERM STOCK AWARD
INCENTIVE PLAN
(AMENDED AND RESTATED AS OF JANUARY 2, 1996)
1. Effective July 1, 1996, all references in the Plan to the Caliber
System, Inc. Stock Savings and Retirement Income Plan or Stock Savings and
Retirement Income Plan shall be deemed to be references to the Caliber System,
Inc. 401(k) Savings Plan or 401(k) Savings Plan.
2. Effective January 2, 1996, Paragraph 3.3 of the Plan is hereby
amended in its entirety to read as follows:
3.3 For each Officer, a provisional cash account will be carried for
amounts equal to dividends that would be payable on the number of Stock Credits
credited to his account as of December 31 of the previous year as if such shares
had been distributed. As of the end of the then current Plan Year, such cash
credits accumulated in the account of each Officer under this Plan, less all
amounts previously converted to credits for shares of Caliber Common Stock
hereunder, shall be converted to Stock Credits equal to the number of shares of
Caliber Common Stock which could have been purchased had the cash been so
applied. Said conversion shall be at the average of the fair market values for
said Caliber Common Stock on the dividend payment dates; provided, however, that
the value of the common stock of REX received as a dividend upon the spin-off of
REX from Caliber shall be determined based on the average of the closing price
of the common stock of REX on the first 15 trading days after the spin-off of
REX from Caliber and the value of Stock Credits to be added pursuant to this
sentence shall be determined based on the average of the closing price of
Caliber Common Stock on the first 15 trading days after the spin-off of REX from
Caliber.
3. Effective January 1, 1997, Paragraph 5.3 of the Plan is hereby
amended in its entirety to read as follows:
5.3 After December 31, 1995, but prior to March 16, 2000, Basic Stock
Credits awarded may be converted by a participant, a trustee of any trust
to which Basic Stock Credits have been transferred, or a beneficiary who
received Basic Stock Credits as a result of the death of a participant but
excluding any ("Alternate Payee" as such term is defined in Section
414(p)(8) of the Internal Revenue Code of 1986) up to a maximum of fifty
percent (50%) of their value to cash on terms established by Caliber from
time to time.
4. Effective January 2, 1996, Paragraph 5.4 of the Plan is hereby
amended in its entirety to read:
5.4 [Reserved]
5. Effective January 2, 1996, Subparagraph 5.4.1 of the Plan is hereby
amended in its entirety to read:
5.4.1 [Reserved]
<PAGE> 1
Exhibit 10.3
RIDER NO. 2
TO THE
CALIBER SYSTEM, INC.
LONG-TERM STOCK AWARD INCENTIVE PLAN
(AMENDED AND RESTATED AS OF JANUARY 2, 1996)
--------------------------------------------
1. A new Section 1.4A is added to the Plan immediately following Section
1.4 to read as follows:
1.4A The term "Change in Control" means the occurrence of any of the
following events:
1.4A.1 any "person," as such term is used in Sections 3(a)(9)
and 13(d) of the Securities Exchange Act of 1934, as amended (the "1934
Act"), becomes a "beneficial owner," as such term is used in Rule 13d-3
promulgated under the 1934 Act, of 20% or more of the combined voting
power of all the Voting Securities of Caliber then outstanding;
1.4A.2 the majority of the Board of Directors of Caliber (the
"Board") consists of individuals other than Incumbent Directors, which
term means the members of the Board on March 1, 1997; provided that any
person becoming a director subsequent to such date whose election or
nomination for election was supported by three-quarters of the
directors who then comprised the Incumbent Directors shall be
considered to be an Incumbent Director;
1.4A.3 Caliber adopts any plan of liquidation providing for
the distribution of all or substantially all of its assets;
1.4A.4 all or substantially all of the assets of Caliber are
disposed of pursuant to a merger, consolidation or other transaction
(unless the holders of the Voting Securities of Caliber immediately
prior to such merger, consolidation or other transaction beneficially
own, directly or indirectly, in substantially the same proportion as
they owned the Voting Securities of Caliber, all of the Voting
Securities or other ownership interests of the entity or entities, if
any, that succeed to the business of Caliber); or
1.4A.5 Caliber combines with another company and is the
surviving corporation but, immediately after the combination, the
holders of the Voting Securities of Caliber immediately prior to the
<PAGE> 2
combination hold, directly or indirectly, 50% or less of the Voting
Securities of the combined company (there being excluded from the
Voting Securities held by such holders of the Voting Securities, but
not from the Voting Securities of the combined company, any securities
received by Related Entities of such other company in exchange for
securities of such other company).
For purposes of this Section, the term "Voting Securities" means any shares
of capital stock or other securities of Caliber that are generally entitled
to vote in elections for directors; and the term "Related Entities" means a
person or entity that directly or indirectly controls, is controlled by, or
is under common control with the person or other entity specified.
2. Section 3.2 of the Plan is amended by the addition of a new sentence
at the end thereof to read as follows:
Notwithstanding the preceding sentence, Stock Credits earned since the
preceding December 31 through the date of a Change in Control shall be
entered on the date of the Change in Control for Officers employed by
Caliber or an Affiliate on the date immediately preceding the Change
in Control and for a pro rata fraction of the award for Officers
terminated on account of death, disability or retirement.
3. Section 3.3 of the Plan is amended by the addition of a new sentence
at the end thereof to read as follows:
Upon the occurrence of a Change in Control, the cash credits provided
for in the first sentence of this Section shall be converted to Stock
Credits equal to the number of shares of Caliber Common Stock which
could have been purchased had the cash been so applied. Said conversion
shall be at the average of the fair market values for said Caliber
Common Stock on the dividend payment dates.
4. Section 5.5 of the Plan is amended in its entirety to read as
follows:
5.5 Notwithstanding anything to the contrary contained herein,
in the event of a Change in Control, any Stock Credit awards made to an
Officer under the Plan shall immediately vest and become subject to
immediate distribution. Subject to the provisions of Section 5.2.3,
distribution under this
<PAGE> 3
Section shall be made in the form of shares of Caliber Common Stock and
cash in lieu of fractional shares unless the Compensation Committee of
the Board determines that it is necessary to adjust the form of such
distribution to take into account the occurrence of the Change in
Control.
5. Section 7.3 of the Plan is amended in its entirety to read as
follows:
7.3 Notwithstanding anything to the contrary contained herein,
in the event of a Change in Control, any Stock Credit awards made to an
Expatriate under the Plan shall immediately vest and become subject to
immediate distribution. Subject to the provisions of Section 7.2.3,
distribution under this Section shall be made in the form of shares of
Caliber Common Stock and cash in lieu of fractional shares unless the
Compensation Committee of the Board determines that it is necessary to
adjust the form of such distribution to take into account the
occurrence of the Change in Control.
IN WITNESS WHEREOF, this Rider has been executed this 10th day
of April, 1997 on behalf of Caliber System, Inc. by its duly authorized officer.
ATTEST CALIBER SYSTEM, INC.
/s/ Tammy L. Youngblood By /s/ Donald C. Brown
- ----------------------------- ---------------------------------
Title: V.P - Human Resources
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> OTHER
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> MAR-30-1997
<PERIOD-END> JUN-21-1997
<EXCHANGE-RATE> 1
<CASH> 23,148
<SECURITIES> 0
<RECEIVABLES> 302,280
<ALLOWANCES> 45,920
<INVENTORY> 0
<CURRENT-ASSETS> 454,047
<PP&E> 1,590,912
<DEPRECIATION> 771,629
<TOTAL-ASSETS> 1,324,027
<CURRENT-LIABILITIES> 565,690
<BONDS> 200,000
<COMMON> 39,898
0
0
<OTHER-SE> 450,966
<TOTAL-LIABILITY-AND-EQUITY> 1,324,027
<SALES> 0
<TOTAL-REVENUES> 574,676
<CGS> 0
<TOTAL-COSTS> 549,716
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 22,557
<INCOME-TAX> 8,972
<INCOME-CONTINUING> 13,585
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 13,585
<EPS-PRIMARY> .34
<EPS-DILUTED> .34
</TABLE>
