<PAGE> 1
As filed with the Securities and Exchange Commission on May 30, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------
CALIBER SYSTEM, INC.
(Exact name of registrant as specified in charter)
Ohio 34-1365496
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
3925 Embassy Parkway, Akron, Ohio 44333
(Address, including ZIP Code, of registrant's principal executive offices)
CALIBER SYSTEM, INC. 401(k) SAVINGS PLAN
(Full title of the plan)
John E. Lynch, Jr.
Vice President, General Counsel and
Secretary
Caliber System, Inc.
3925 Embassy Parkway
Akron, Ohio 44333
(330) 665-5646
(Name, address, including ZIP Code, and telephone number, including area
code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================
Title of securities Amount Proposed maximum Proposed maximum Amount of
to be to be offering price aggregate registration
registered(1) registered(2) per share(3) offering price(3) fee(3)
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common
Stock without par 2,225,000 $ 32.25 $71,756,250 $21,744.32
value
<FN>
(1) Pursuant to Rule 416(c), this registration statement also covers an
indeterminate amount of interests to be offered pursuant to the Caliber
System, Inc. 401(k) Savings Plan.
(2) The total number of shares of common stock reserved and available for
distribution. Pursuant to Rule 416, this Form S-8 Registration
Statement shall be deemed to cover any additional securities issued to
prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(3) The registration fee has been calculated in accordance with Rule 457(h)
based on the average of the high and low prices of the common stock
without par value reported on the New York Stock Exchange on May 22,
1997, which average was $32.25.
</TABLE>
<PAGE> 2
PART II
Pursuant to General Instruction E to Form S-8, the contents of
Registration Statement No. 33-52605 on Form S-8 filed by Caliber System, Inc.
(formerly Roadway Services, Inc., the "Company") with the Securities and
Exchange Commission on March 10, 1994 and amended by Post-Effective Amendment
No. 1 to such Registration Statement filed by the Company on December 28, 1995
are incorporated herein by reference. The Caliber System, Inc. Stock Savings and
Retirement Income Plan and Trust was renamed the Caliber System, Inc. 401(k)
Savings Plan (the "Plan") effective July 1, 1996. Effective October 1, 1996, the
Financial Security Plan and Trust and the Central Freight Lines, Inc. Employees
Profit Sharing and Retirement Plan merged into the Plan pursuant to an
Instrument Merging Plans and Trusts.
ITEM 8. EXHIBITS.
4.1 Second Amended Articles of Incorporation of the Company (filed
as Exhibit 3.1 to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995, and incorporated herein by
reference).
4.2 Restated Amended Code of Regulations of the Company effective
May 10, 1989 (filed as Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, and
incorporated herein by reference).
4.3 Caliber System, Inc. and Keybank National Association Rights
Agreement dated August 22, 1996 including Form of Rights
Certificate (Exhibit A) and Summary of Rights (Exhibit B)
(filed as Exhibit 4.2 to the Company's Current Report on Form
8-K dated August 22, 1996 and Form 8-K/A dated September 12,
1996, and incorporated herein by reference).
4.4 Caliber System, Inc. 401(k) Savings Plan.
(a) Roadway Services, Inc. Stock Savings and Retirement
Income Plan and Trust (filed as Exhibit 4(c) to
Post-Effective Amendment No. 1 to Registration
Statement No. 33-52605 filed by the Company on
December 28, 1995, and incorporated herein by
reference).
(b) Amendment No. 1 to Roadway Services, Inc. Stock
Savings Retirement Income Plan and Trust (filed as
Exhibit 4(d) to Post-Effective Amendment No. 1 to
Registration Statement No. 33-52605 filed by the
Company on December 28, 1995, and incorporated herein
by reference).
(c) Amendment No. 2 to Roadway Services, Inc. Stock
Savings Retirement Income Plan and Trust.
(d) Amendment No. 3 to Roadway Services, Inc. Stock
Savings Retirement Income Plan and Trust.
(e) Amendment No. 4 to Caliber System, Inc. Stock Savings
and Retirement Income Plan and Trust.
(f) The Financial Security Plan and Trust.
(g) Amendment No. 1 to the Financial Security Plan and
Trust.
(h) Amendment No. 2 to the Financial Security Plan and
Trust.
(i) Central Freight Lines, Inc. Employees Profit Sharing
and Retirement Plan.
II - 1
<PAGE> 3
(j) Amendment No. 1 to Central Freight Lines, Inc.
Employees Profit Sharing and Retirement Plan.
(k) Amendment No. 2 to Central Freight Lines, Inc.
Employees Profit Sharing and Retirement Plan.
(l) Amendment No. 3 to Central Freight Lines, Inc.
Employees Profit Sharing and Retirement Plan.
(m) Instrument Merging Plans and Trusts.
23 Consent of Independent Auditors.
24.1 Power of Attorney on behalf of the Company.
24.2 Power of Attorney on behalf of the Plan.
UNDERTAKING:
The undersigned registrant has submitted the Plan and any amendments
thereto to the Internal Revenue Service and has made all changes required by the
Internal Revenue Service in order to qualify the Plan.
II - 2
<PAGE> 4
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 30TH DAY OF MAY 1997.
CALIBER SYSTEM, INC.
By: /s/ John E. Lynch, Jr.
------------------------------------------
Name: John E. Lynch, Jr.
Title: Vice President, General Counsel and
Secretary
II - 3
<PAGE> 5
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* /s/ Daniel J. Sullivan Director, Chairman, President and May 30, 1997
------------------------------ Chief Executive Officer
Daniel J. Sullivan (Principal Executive Officer)
* /s/ Louis J. Valerio Senior Vice President-Finance and May 30, 1997
------------------------------ Chief Financial Officer
Louis J. Valerio (Principal Financial Officer)
* /s/ Kathryn W. Dindo Vice President and Controller May 30, 1997
------------------------------ (Principal Accounting Officer)
Kathryn W. Dindo
* /s/ George B. Beitzel Director May 30, 1997
------------------------------
George B. Beitzel
* /s/ Richard A. Chenoweth Director May 30, 1997
------------------------------
Richard A. Chenoweth
* /s/ Norman C. Harbert Director May 30, 1997
------------------------------
Norman C. Harbert
* /s/ Harry L. Kavetas Director May 30, 1997
------------------------------
Harry L. Kavetas
* /s/ Charles R. Longsworth Director May 30, 1997
------------------------------
Charles R. Longsworth
* /s/ G. James Roush Director May 30, 1997
------------------------------
G. James Roush
* /s/ H. Mitchell Watson, Jr. Director May 30, 1997
------------------------------
H. Mitchell Watson, Jr.
</TABLE>
*This registration statement has been signed on behalf of the above
officers and directors by John E. Lynch, Jr., Vice President, General Counsel
and Secretary of the Company, as attorney-in-fact pursuant to a power of
attorney filed as Exhibit 24.1 to this registration statement.
DATED: May 30, 1997 By: /s/ John E. Lynch, Jr.
------------------------------------
John E. Lynch, Jr., Attorney-in-Fact
II - 4
<PAGE> 6
THE PLAN. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE PLAN HAS CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY
THE UNDERSIGNED, HEREUNTO DULY AUTHORIZED, IN THE CITY OF AKRON, STATE OF OHIO,
ON THIS 30TH DAY OF MAY 1997.
CALIBER SYSTEM, INC. 401(k) SAVINGS PLAN
* By: /s/ Donald C. Brown
----------------------------------
Name: Donald C. Brown
Title: Member of the 401(k) Savings Plan
Administrative Committee
* By: /s/ John P. Chandler
----------------------------------
Name: John P. Chandler
Title: Member of the 401(k) Savings Plan
Administrative Committee
* By: /s/ Thomas R. Warren
----------------------------------
Name: Thomas R. Warren
Title: Member of the 401(k) Savings Plan
Administrative Committee
*This registration statement has been signed on behalf of the Caliber
System, Inc. 401(k) Savings Plan through its Administrative Committee Members by
John E. Lynch, Jr., Vice President, General Counsel and Secretary of the
Company, as attorney-in-fact, pursuant to a power of attorney filed as Exhibit
24.2 to this registration statement.
DATED: May 30, 1997 By: /s/ John E. Lynch, Jr.
----------------------------------
John E. Lynch, Jr., Attorney-in-Fact
II - 5
<PAGE> 7
EXHIBIT INDEX
Exhibit Exhibit
Number Description
------ -----------
4.1 Second Amended Articles of Incorporation of the Company (filed
as Exhibit 3.1 to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995, and incorporated herein by
reference).
4.2 Restated Amended Code of Regulations of the Company effective
May 10, 1989 (filed as Exhibit 3.2 to the Company's Annual
Report on Form 10-K for year ended December 31, 1992, and
incorporated herein by reference).
4.3 Caliber System, Inc. and Keybank National Association Rights
Agreement dated August 22, 1996 including Form of Rights
Certificate (Exhibit A) and Summary of Rights (Exhibit B)
(filed as Exhibit 4.2 to the Company's Current Report on Form
8-K dated August 22, 1996 and Form 8-K/A dated September 12,
1996, and incorporated herein by reference).
4.4 Caliber System, Inc. 401(k) Savings Plan.
(a) Roadway Services, Inc. Stock Savings and Retirement
Income Plan and Trust (filed as Exhibit 4(d) to
Post-Effective Amendment No. 1 to Registration
Statement No. 33-52605 filed by the Company on
December 28, 1995, and incorporated herein by
reference).
(b) Amendment No. 1 to Roadway Services, Inc. Stock
Savings Retirement Income Plan and Trust (filed as
Exhibit 4(c) to Post-Effective Amendment No. 1 to
Registration Statement No. 33-52605 filed by the
Company on December 28, 1995, and incorporated herein
by reference).
(c) Amendment No. 2 to Roadway Services, Inc. Stock
Savings Retirement Income Plan and Trust.
(d) Amendment No. 3 to Roadway Services, Inc. Stock
Savings Retirement Income Plan and Trust.
(e) Amendment No. 4 to Caliber System, Inc. Stock Savings
Retirement Income Plan and Trust.
(f) The Financial Security Plan and Trust.
(g) Amendment No. 1 to the Financial Security Plan and
Trust.
(h) Amendment No. 2 to the Financial Security Plan and
Trust.
(i) Central Freight Lines, Inc. Employees Profit Sharing
and Retirement Plan.
(j) Amendment No. 1 to Central Freight Lines, Inc.
Employees Profit Sharing and Retirement Plan.
(k) Amendment No. 2 to Central Freight Lines, Inc.
Employees Profit Sharing and Retirement Plan.
(l) Amendment No. 3 to Central Freight Lines, Inc.
Employees Profit Sharing and Retirement Plan.
II - 6
<PAGE> 8
(m) Instrument Merging Plans and Trusts.
23 Consent of Independent Auditors.
24.1 Power of Attorney on behalf of the Company.
24.2 Power of Attorney on behalf of the Plan.
II - 7
<PAGE> 1
Exhibit 4.4(c)
AMENDMENT NO. 2
TO THE
ROADWAY SERVICES, INC.
STOCK SAVINGS AND RETIREMENT INCOME
PLAN AND TRUST
(Amended and Restated Effective January 1, 1994)
------------------------------------------------
THIS AMENDMENT NO. 2 is made and executed this 28th day of
December, 1995, by and between Roadway Services, Inc. (hereinafter referred to
as the "Company") and National City Bank, Cleveland, Ohio (hereinafter referred
as the "Trustee"). Except as otherwise specified herein, this Amendment No. 2
shall be effective January 1, 1996.
WITNESSETH:
-----------
WHEREAS, effective January 1, 1979, Roadway Express, Inc.
established the Roadway Express, Inc. Employee Stock Savings Plan and Trust;
WHEREAS, effective July 30, 1982, Roadway Express, Inc. became
a wholly owned subsidiary of Roadway Services, Inc., an Ohio corporation,
pursuant to an Agreement and Plan of Merger and Reorganization, and, effective
January 1, 1983, Roadway Services, Inc. adopted the Plan, the name of which was
changed to the Roadway Services, Inc. Employees Stock Savings Plan and Trust
(Amended and Restated);
WHEREAS, effective January 1, 1989, the name of the Plan was
changed to the Roadway Services, Inc. Stock Savings and Retirement Income Plan
and Trust (Amended and Restated);
WHEREAS, the Plan was last amended and restated effective
January 1, 1994;
<PAGE> 2
2
WHEREAS, on or about January 1, 1996, Roadway Express, Inc.
will, pursuant to a spin-off, no longer be affiliated with the Company;
WHEREAS, Article XIII of the Plan sets forth the
provisions whereby the Plan may be amended; and
WHEREAS, the Company desires to amend the Plan to reflect the
spin-off of Roadway Express, Inc.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed by and between the Company and the
Trustee as follows:
1. Section 1.3 of the Plan is hereby amended by the addition
of a new Subsection (f) at the end thereof to read as follows:
(f) Notwithstanding any other provision of the Plan, a
Participant who is an employee of Roadway Express, Inc. on January 1,
1996 shall not be eligible to receive his entire account balance from
the Plan until he terminates employment with Roadway Express, Inc.
after December 31, 1995. On and after the transfer of accounts from the
Plan to the trust established under the Roadway Express, Inc. 401(k)
Stock Savings Plan (the "REX Savings Plan Trust"), all benefits payable
to a Participant who is an employee of Roadway Express, Inc. on or
after January 1, 1996 on account of participation in the Plan for whom
accounts are transferred pursuant to such Agreement shall be paid from
the REX Savings Plan Trust.
<PAGE> 3
3
2. Section 2.13 of the Plan is hereby amended in its entirety
to read as follows:
2.13 Contributions
-------------------
"Contributions" mean any one or more of After-Tax
Contributions, Before-Tax Contributions, Matching Employer
Contributions and Rollover Contributions, as the context requires.
3. Section 2.36 of the Plan is hereby amended by the addition
of a new Subsection (f) at the end thereof to read as follows:
(f) (Roadway Express, Inc.) An Employee's Period of Service
shall not include service with Roadway Express, Inc. on or after
January 1, 1996.
4. New Sections 2.41A, 2.41B and 2.41C are hereby added to the
Plan immediately following Section 2.41 to read as follows:
2.41A REX Stock
----------------
"REX Stock" means the voting common stock of Roadway Express,
Inc.
2.41B REX Stock Fund
---------------------
"REX Stock Fund" means the Investment Fund described in
Section 7.1, which is invested solely in REX Stock.
2.41C Rollover Contributions
-----------------------------
"Rollover Contributions" means cash or other property
acceptable to the Committee received and held by the Trustee pursuant
to the provisions of Section 4.12.
<PAGE> 4
4
5. Section 2.45 of the Plan is hereby amended by the addition
of the following sentence at the end thereof:
A Participant who is employed by Roadway Express, Inc. on January 1,
1996 shall not be considered to have incurred a Termination of
Employment as a result of the distribution of REX Stock by the Company.
6. The second sentence of Section 4.4 of the Plan is amended
in its entirety to read as follows:
A Participant may, however, in accordance with the percentages
permitted by Sections 4.1 and 4.2, change the percentage of his
Before-Tax Contributions and/or his After-Tax Contributions effective
as of the first pay period of any calendar quarter upon prior written
notice filed with the Plan Administrator within such period established
by the Plan Administrator.
7. The first sentence of Section 4.5 of the Plan is hereby
amended in its entirety to read as follows:
Upon prior written notice filed with the Plan Administrator, within
such period established by the Plan Administrator, a Participant may at
any time suspend his Before-Tax Contributions and/or After-Tax
Contributions effective with the start of the next payroll period
following the expiration of such period, provided such suspension must
be made for not less than one (1) calendar quarter.
8. A new Section 4.12 is hereby added to the Plan immediately
following Section 4.11 to read as follows:
4.12 Rollover Contributions
----------------------------
The Trustee shall, at the direction of the Committee, receive
and thereafter hold and administer as a part of the Trust Fund for a
Covered Employee cash or other property acceptable to the Committee
which shall have been distributed to the Participant from a trust
(which is described in Code Section 401(a) and exempt from tax under
Code Section 501(a)) under another plan in which the Participant was a
participant in a distribution which constitutes an "eligible
<PAGE> 5
5
rollover distribution" under Code Section 401(a)(31) or Code Section
402(c)(4). The Committee may impose such requirements as it deems
necessary to insure, to the extent possible, that the amounts
proposed to be transferred hereto comply with the requirements of this
Section.
9. The first sentence of Subsection (a) of Section 7.1 of the
Plan is hereby amended in its entirety to read as follows:
The Trust Fund will be divided into the Company Stock Fund and such
additional Investment Funds as the Company may in its discretion select
or establish (which may be more fully described in Exhibit B), and
Contributions will be invested in the Investment Funds as provided in
Section 7.5
10. The first sentence of Section 7.2 of the Plan is hereby
amended in its entirety to read as follows:
The Plan Administrator shall establish and maintain, or cause to be
established and maintained, an Account for each Participant, which
Account will reflect, pursuant to Sub-Accounts established and
maintained thereunder, the amount, if any, of the Participant's (a)
Before-Tax Contributions, (b) After-Tax Contributions, (c) Matching
Employer Contributions and (d) Rollover Contributions.
11. The fourth sentence of Subsection 7.4(b) of the Plan is
hereby amended in its entirety to read as follows:
For this purpose, the transfer of funds to or from an Investment Fund
pursuant to Section 7.6, Contributions allocated to an Investment Fund,
and payments, distributions and withdrawals from an Investment Fund to
provide benefits under the Plan for Participants or Beneficiaries will
not be deemed to be income or losses of the Investment Fund.
<PAGE> 6
6
12. Subsection 7.4(d) of the Plan is hereby amended in
its entirety to read as follows:
(d) Except as provided in Section 7.5 or as may
otherwise be provided by the Committee, Contributions shall be credited
to each Participant's Account and allocated in accordance with the
investment option chosen by such Participant to the Investment Funds as
of the first Valuation Date on or after such Contribution is made.
13. Subsection 7.5(b) of the Plan is hereby amended in
its entirety to read as follows:
(b) Each Participant may, by written direction to the Plan
Administrator, direct that Before-Tax Contributions, After-Tax
Contributions and Rollover Contributions made by or for him be invested
in one or more Investment Funds subject to the following limitations:
(i) a Participant may, after the Plan Year in which he
attains age fifty-five (55), direct the investment of all or a
portion of his Before- Tax and After-Tax Contributions; and
(ii) a Participant may, regardless of his age, direct
the investment of his Rollover Contributions and that portion
of his Before-Tax Contributions that have not been used in
determining the allocation of Matching Employer Contributions
to his Account pursuant to Section 5.2.
14. Subsection 7.5(c) of the Plan is hereby amended in its
entirety to read as follows:
(c) An investment direction by a Participant shall remain in
effect and be applicable to all subsequent Before-Tax Contributions,
After-Tax Contributions and Rollover Contributions, as applicable, made
by or on behalf of the Participant unless and until an investment
change is made by him and becomes effective pursuant to Section 7.6.
<PAGE> 7
7
15. Subsection 7.6(a) of the Plan is hereby amended in its
entirety to read as follows:
(a) Each Participant who is eligible to direct the investment
of all or a portion of his Before-Tax Contributions, After-Tax
Contributions and Rollover Contributions pursuant to Section 7.5(b)
may, by written direction to the Plan Administrator, change his
investment direction with respect to such future Contributions and/or
may direct that all or a portion of his Account that is attributable to
such prior Contributions (including earnings and appreciation thereon)
be transferred from one Investment Fund to another Investment Fund.
Notwithstanding the preceding sentence, a Participant who is an
employee of Roadway Express, Inc. on January 1, 1996 shall not be
permitted to change his investment direction on or after January 1,
1996.
16. Subsection 7.8(b) of the Plan is hereby amended by the
addition of the parenthetical "(or such other date as the Plan Administrator may
designate)" after the word "November" each time such word appears therein.
17. The portion of Subsection 8.6(a) preceding the colon is
hereby amended in its entirety to read as follows:
(a) Upon prior written notice filed with the Plan
Administrator, within such period established by the Plan
Administrator, a Participant may withdraw all or a portion of his
Account (rounded to a whole share or unit) as provided and in the order
set forth below:
18. Subsection 8.6(a) of the Plan is hereby amended by the
addition of a new Paragraph (iv) immediately following Paragraph (iii) to read
as follows, and subsequent Paragraphs of Subsection 8.6(a) are redesignated (v)
and (vi) respectively:
<PAGE> 8
8
(iv) A Participant who has withdrawn all amounts
attributable to his After-Tax Contributions may withdraw all
or a portion of his Account attributable to his Rollover
Contributions (including the net earnings thereon).
19. Paragraphs (v) and (vi) (as redesignated by Section 18 of
this Amendment) of Subsection 8.6(a) of the Plan are hereby amended in their
entirety to read as follows:
(v) A Participant who has withdrawn all amounts
described in Paragraphs (i) through (iv) of this Subsection
may withdraw all or a portion of his Account attributable to
Matching Employer Contributions (including earnings and
appreciation thereon); provided, however, that Matching
Employer Contributions (including earnings and appreciation
thereon) that have not been held in his Account for at least
two (2) years may not be so withdrawn unless the Participant
has been a Participant in the Plan for at least five (5)
years;
(vi) A Participant who is least fifty-nine and one-half
(59 1/2) years old, who has withdrawn all amounts described in
Paragraphs (i) through (v) of this Subsection may withdraw all
or a portion of his Account attributable to Before-Tax
Contributions (excluding any income allocable thereto).
20. Subsection 8.7(b) of the Plan is hereby amended in its
entirety to read as follows:
(b) Any Participant who makes a withdrawal pursuant to Section
8.6(a)(v) or 8.6(a)(vi) may not make any After-Tax Contributions or
have any Before-Tax Contributions or Matching Employer Contributions
made for him for twelve (12) months thereafter.
21. Section 8.7 of the Plan is hereby amended by the deletion
of Subsection (c) thereof.
<PAGE> 9
9
22. Subsection 8.7(d) of the Plan is hereby redesignated as
Subsection 8.7(c) and amended by the deletion of the second sentence thereof.
23. Subsection 8.8(a) of the Plan is hereby amended by the
addition of the following new sentence at the end thereof:
Notwithstanding any other provision of this Section, effective December
15, 1995, a Participant who is an employee of Roadway Express, Inc. is
not entitled to a withdrawal on account of Hardship.
24. The first sentence of Section 9.1 of the Plan is hereby
amended in its entirety to read as follows:
The Trustee shall invest Contributions paid to it and earnings thereon
in accordance with Section 9.2.
25. Section 15.4 of the Plan is hereby amended by substituting
the phrase "Employer Matching Contributions" with the phrase "Matching Employer
Contributions".
26. Section 16.4 of the Plan is hereby amended by substituting
the phrase "Employer Matching Contributions" with the phrase "Matching Employer
Contributions" each time such phrase appears therein.
27. Exhibit A to the Plan is hereby amended by the addition of
the parenthetical "(ceased to be an Employer as of January 1, 1996)" after
"Roadway Express, Inc."
<PAGE> 10
10
28. Exhibit B to the Plan is hereby amended by changing the
title of Exhibit B to read
"Additional Investment Funds Pursuant to Section 7.1
As of January 1, 1996"
and by the addition of new Paragraphs (4) and (5) to read as follows:
(4) The REX Stock Fund, to be invested in REX Stock. The REX
Stock Fund shall be subject to the terms and conditions of Exhibit C.
(5) Effective January 1, 1995, the Mutual Beacon Fund that
seeks as its principal investment objective capital appreciation, which
may occasionally be short term. A secondary objective is income. The
general investment policy is to invest in common stock, preferred stock
and corporate debt securities, which may be convertible into common
stock. Although the Fund may invest in securities from any size issuer,
it will tend to invest in securities of issuers with market
capitalizations in excess of $500 million. There are no pre-set limits
as to the percentage of the Fund's portfolio which may be invested in
equity securities, debt securities or cash equivalents.
29. A new Exhibit C is hereby added to the Plan immediately
following Exhibit B to read as follows:
EXHIBIT C
---------
REX Stock Fund
The REX Stock Fund shall be subject to the following terms and
conditions:
(1) 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 the Company Stock Fund.
(2) Subject to the provisions of Section 7.8, a Participant
may, regardless of his age, by written direction to the Plan
Administrator, direct that all or any portion of his Account which is
invested in the REX Stock Fund and not otherwise eligible for
<PAGE> 11
11
diversification pursuant to Section 7.5(b)(i) or (ii), be transferred
solely to the Company Stock Fund. A Participant may not, however,
direct the transfer of any portion of his Account not currently
invested in the REX Stock Fund into the REX Stock Fund.
(3) Each Participant shall be entitled to instruct the Trustee
as to the voting of any full or partial shares of REX Stock allocated
to his Account as of the applicable record date. Prior to such voting,
the Participant shall receive a copy of the proxy solicitation
materials and a blank form to instruct confidentially the Trustee how
to vote the shares of REX Stock allocated to his Account as of the
applicable record date. Upon receipt of such instructions, the Trustee
shall vote the shares (or, as applicable, exercise any dissenter's
rights) as instructed. The Trustee shall vote all other REX Stock in
its possession (including shares for which it does not receive
instruction from Participants) in accordance with Section 9.4(b).
(4) Each Participant shall be entitled to instruct the Trustee
as to the tendering of any full or partial shares of REX Stock
allocated to his Account. Prior to such tendering, the Participant
shall receive a copy of the material relating to such tender decision
and a blank form to instruct confidentially the Trustee whether to
tender the shares of REX Stock allocated to his Account. Upon receipt
of such instructions, the Trustee shall act with respect to such shares
as instructed. The Trustee shall decide whether or not to tender all
other REX Stock in its possession (including shares for which it does
not receive instruction from Participants) in accordance with Section
9.4(b).
(5) 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 Exhibit.
<PAGE> 12
12
IN WITNESS WHEREOF, the Company and the Trustee have
caused this Amendment No. 2 to be executed by their duly
appointed officers.
In the presence of: ROADWAY SERVICES, INC.
By: /s/ Donald C. Brown
- ---------------------- ----------------------------------
Title: V.P. Corporate Support Svcs.
-------------------------------
Date: 12-21-1995
---------------------------------
NATIONAL CITY BANK
By: /s/ Allen E. Loomis
- ---------------------- ---------------------------------
Title: Senior Vice President
------------------------------
Date: 12-28-95
-------------------------------
<PAGE> 1
Exhibit 4.4(d)
AMENDMENT NO. 3
TO THE
ROADWAY SERVICES, INC.
STOCK SAVINGS AND RETIREMENT INCOME PLAN AND TRUST
(Amended and Restated Effective January 1, 1994)
This Amendment No. 3 to the Roadway Services, Inc. Stock
Savings and Retirement Income Plan and Trust (the "Plan") is made and executed
this 3rd day of June, 1996, and, except as otherwise provided, effective as of
January 1, 1994, by and between Caliber System, Inc. (formerly known as Roadway
Services, Inc.) and National City Bank, Cleveland, Ohio.
1. Effective January 2, 1996, the name of the Plan is changed
to "Caliber System, Inc. Stock Savings and Retirement Income Plan and Trust" and
all references to "Roadway Services, Inc." throughout the Plan shall be deemed
to be references to "Caliber System, Inc."
2. The first sentence of Section 2.12(b) of the Plan is
amended in it entirety to read as follows:
Notwithstanding the foregoing provisions of this Section, for
Plan Years beginning on or after January 1, 1989 and before
January 1, 1994, the Compensation of an Employee taken into
account under the Plan shall not exceed $200,000 and,
effective for Plan Years beginning on or after January 1,
1994, such amount shall not exceed $150,000, as such amounts
may be adjusted for increases in the cost of living in
accordance with Code Section 401(a)(17).
<PAGE> 2
2
3. Effective as of January 1, 1996, Section 2.16 of the Plan
is amended in its entirety to read as follows:
2.16 Covered Employee
---------------------
Effective as of January 1, 1996, 'Covered Employee'
means any Employee of an Employer who is in a class or group
to which the Employer has extended eligibility for
participation in the Plan, excluding, however, any Employee
who (a) is included in a collective bargaining unit (either
directly or through an employer's association) unless the
collective bargaining agreement expressly provides that the
Employee is to be eligible under the Plan, (b) is a
non-resident alien (other than an alien who is only
temporarily located outside of the United States) or (c) is a
leased employee (as defined in Section 2.20).
4. Effective as of January 1, 1996, Section 2.28 of the Plan
is amended in its entirety to read as follows:
2.28 Hours of Service
----------------------
(a) Effective as of January 1, 1996, 'Hours of
Service' means an hour for which an Employee is paid, or
entitled to payment, by one or more Controlled Group Members
for the performance of duties as an Employee and, with
respect to an Employee who is designated by his Employer as a
'temporary or casual employee,' shall be determined in
accordance with the provisions of 29 C.F.R. Section
2530.200b-2(a) and (b), which provisions are incorporated
herein by reference.
(b) For purposes of determining the Hours of Service
of an Employee designated by his Employer as a 'temporary or
casual employee,' Hours of Service shall be credited to
eligibility computation periods and Plan Years in accordance
with the provisions of 29 C.F.R. Section 2530.200b-2(c), which
provisions are incorporated herein by reference.
(c) Anything in the Plan to the contrary
notwithstanding, for purposes of determining the Hours of
Service of an Employee designated by his Employer as a
'temporary or casual employee,' such Employee shall be
credited with such Hours of
<PAGE> 3
3
Service not otherwise credited to him under the Plan as may be
required by any applicable law.
5. Effective as of January 1, 1996, new Sections 2.34(c) and
(d) are added to the Plan immediately following
Section 2.34(b) to read as follows:
(c) Effective as of January 1, 1996 and
notwithstanding the provisions of Subsection (a) of this
Section, with respect to an Employee who is designated by his
Employer as a 'temporary or casual employee,' '1-Year Break in
Service' means a Plan Year in which such Employee does not
complete more than 500 Hours of Service.
(d) Effective as of January 1, 1996 and
notwithstanding the provisions of Subsection (b) of this
Section, if an Employee who is designated by his Employer as a
'temporary or casual employee' is absent from work for any
period due to (i) the pregnancy of the Employee, (ii) the
birth of a child of the Employee, (iii) the placement of a
child of the Employee in connection with the adoption of such
child by the Employee, or (iv) caring for a child for a period
beginning immediately following the birth or placement of such
child, such Employee shall receive credit for Hours of Service
equal to:
(A) the number of Hours of Service which
otherwise would normally have been credited to him
but for the absence; or
(B) if the number of Hours of Service under
Subparagraph (A) is not determinable, eight (8) Hours
of Service per normal work day of the absence;
provided, however, that no more than 501 Hours of Service
shall be credited under this Subsection by reason of the
absence. The Hours of Service shall be credited:
(I) in the Plan Year in which the
absence from work begins, if the Employee
would be prevented from incurring a 1-Year
Break in Service in such Year; or
<PAGE> 4
4
(II) in the immediately following Plan
Year.
6. Effective as of January 1, 1996, Section 2.50 of the Plan
is amended in its entirety to read as follows:
2.50 Year of Service
---------------------
Effective as of January 1, 1996, 'Year of Service'
means:
(a) Except as provided in Subsection (b) of this
Section, each portion of an Employee's Period of Service that
equals 365 days (whether or not consecutive); and
(b) With respect to an Employee who is designated by
his Employer as a 'temporary or casual employee,' such
Employee shall be credited with a Year of Service when he is
credited with at least 1,000 Hours of Service in the 12-month
period beginning with his Employment Commencement Date and, if
applicable, his Reemployment Commencement Date, either of
which 12-month periods shall be the 'Initial Eligibility
Computation Period.' Whether or not such an Employee is
entitled to be credited with 1,000 Hours of Service during an
Initial Eligibility Computation Period, such Employee shall be
credited with a Year of Service if he is credited with at
least 1,000 Hours of Service during the Plan Year which
includes the first anniversary of his Employment Commencement
Date or Reemployment Commencement Date (whichever is
applicable) or any Plan Year thereafter.
6. A new Section 16.1(f) is added to the Plan immediately
following Section 16.1(e) to read as follows and subsequent Subsections of
Section 16.1 are redesignated accordingly:
(f) EMPLOYER or EMPLOYERS: The Controlled
Group.
<PAGE> 5
5
7. Section 16.1(m) (as redesignated by Section 6 of this
Amendment) is amended in its entirety to read as follows:
(m) Required Aggregation Group: The group of
qualified plans of an Employer consisting of each plan in
which a Key Employee participates in the plan year containing
the determination date (or any of the four preceding plan
years) plus each other plan which, during this period, enables
any plan in which a Key Employee participates to meet the
requirements of Code Sections 401(a)(4) or 410.
IN WITNESS WHEREOF, the Company and the Trustee have caused
this Amendment No. 3 to be executed by their duly appointed officers.
In the presence of: CALIBER SYSTEM, INC.
/s/ Beth P. Ewing By: /s/ D.C. Brown
- --------------------- ---------------------
Title: V.P. - Human Resources
NATIONAL CITY BANK
/s/ J.M. Buchagen By: /s/ T.A. Busch
- --------------------- ---------------------
Title: Vice President and
Trust Officer
<PAGE> 1
Exhibit 4.4(e)
AMENDMENT NO. 4
TO THE
CALIBER SYSTEM, INC.
STOCK SAVINGS AND RETIREMENT INCOME PLAN AND TRUST
(Amended and Restated Effective January 1, 1994)
THIS AMENDMENT NO. 4 to the Caliber System, Inc. Stock Savings
and Retirement Income Plan and Trust (the "Plan") is made and executed this 30th
day of December, 1996 by and between Caliber System, Inc. and Barclays Global
Investors, National Association, as trustee. Unless otherwise provided, this
Amendment No. 4 shall be effective as of July 1, 1996.
1. The name of the Plan is hereby changed to the "Caliber
System, Inc. 401(k) Savings Plan".
2. Notwithstanding anything in the Plan to the contrary, any
provision within the Plan which requires action by means of written
authorization, written notification or written application shall be deemed
satisfied if such action is taken in accordance with procedures established by
the Plan Administrator.
3. Section 2.3 of the Plan is hereby amended by adding the
phrase "and attributable to periods on or after July 1, 1996" at the end
thereof.
4. Section 2.4 of the Plan is hereby amended by adding the
phrase "and attributable to periods on or after July 1, 1996" at the end
thereof.
<PAGE> 2
5. Section 2.19 of the Plan is hereby amended by redesignating
Subsection (d) as Subsection (c) and by deleting the phrase "any distribution if
it and all Eligible Rollover Distributions to the Participant during the
calendar year are reasonably expected to total less than Two Hundred Dollars
($200), (c)".
6. Section 2.23 of the Plan is hereby amended in its entirety
to read as follows:
'Enrollment Date' means the earliest practicable date
after an Eligible Employee has met the requirements of Section
3.1.
7. Section 2.28 of the Plan is hereby amended in its entirety
to read as follows:
(a) 'Hours of Service' means an hour for which an
Employee is paid, or entitled to payment, by one or more
Controlled Group Members for the performance of duties as an
Employee and such Hours of Service shall be determined in
accordance with the provisions of 29 C.F.R. Section
2530.200b-2(a) and (b), which provisions are incorporated
herein by reference.
(b) Hours of Service shall be credited to eligibility
computation periods and Plan Years in accordance with the
provisions of 29 C.F.R. Section 2530.200b-2(c), which
provisions are incorporated herein by reference. Actual Hours
of Service shall be used whenever an accurate record of hours
are maintained for 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.
(c) Anything in the Plan to the contrary
notwithstanding, for purposes of determining the Hours of
Service, an Employee shall be credited with such Hours of
Service not otherwise credited
2
<PAGE> 3
to him under the Plan as may be required by any applicable
law.
8. Section 2.32 of the Plan is hereby amended by adding the
phrase "and attributable to periods on or after July 1, 1996" at the end
thereof.
9. Section 2.34 of the Plan is hereby deleted in its entirety.
10. A new Section 2.40A is hereby added to the Plan to read as
follows:
2.40A Prior After-Tax Contributions
--------------------------------------
'Prior After-Tax Contributions' means the
contributions provided for in Section 4.1(b) and attributable
to periods prior to July 1, 1996.
11. A new Section 2.40B is hereby added to the Plan to read as
follows:
2.40B Prior Before-Tax Contributions
---------------------------------------
'Prior Before-Tax Contributions' means the
contributions provided for in Section 4.1(a) attributable to
periods prior to July 1, 1996 and which were eligible for
Matching Employer Contributions.
12. A new Section 2.40C is hereby added to the Plan to read as
follows:
2.40C Prior Matching Employer Contributions
----------------------------------------------
'Prior Employer Matching Contributions' means the
contributions provided for in Section 5.1 and attributable to
periods prior to July 1, 1996.
3
<PAGE> 4
13. The first sentence Section 2.45 of the Plan is hereby
amended in its entirety to read as follows:
'Termination of Employment' means the Participant's
cessation of employment with the Controlled Group.
14. Section 2.50 of the Plan is hereby amended in its entirety
to read as follows:
An Employee shall be credited with a Year of Service
when he is credited with at least 1,000 Hours of Service in
the 12-month period beginning with his Employment Commencement
Date and, if applicable, his Reemployment Commencement Date,
either of which 12-month periods shall be the 'Initial
Eligibility Computation Period.' Whether or not an Employee is
entitled to be credited with 1,000 Hours of Service during an
Initial Eligibility Computation Period, such Employee shall be
credited with a Year of Service if he is credited with at
least 1,000 Hours of Service during the Plan Year which
includes the first anniversary of his Employment Commencement
Date or Reemployment Commencement Date (whichever is
applicable) or any Plan Year thereafter.
15. The first sentence of Section 3.1 of the Plan is hereby
amended in its entirety to read as follows:
Any person who was a Participant in the Plan on June
30, 1996 shall continue to be a Participant in the Plan.
16. Subsections 4.1(a) and (b) of the Plan are hereby amended
in their entirety to read as follows:
(a) Upon enrollment pursuant to Section 3.2, a
Participant may agree pursuant to a Salary Reduction Agreement
to have his Employer make Before-Tax Contributions to the
Trust of up to fifteen percent (15%) of his Compensation (in
1/2% increments) through equal pay period reductions;
provided, however, that the Before-Tax Contributions of a
Participant who is eligible to participate in the Caliber
System, Inc. Stock Bonus Plan and Trust may not exceed ten
percent (10%) of his Compensation.
4
<PAGE> 5
(b) Upon enrollment pursuant to Section 3.2, a
Participant may elect to make After-Tax Contributions to the
Trust of up to five percent (5%) of his Compensation (in 1/2%
increments) through percentage payroll deductions.
17. The first sentence of Section 4.2 of the Plan is hereby
amended in its entirety to read as follows:
A Participant's Before-Tax Contributions and/or After-Tax
Contributions with respect to any pay period must each be a
minimum of one percent (1%) of his Compensation and may not,
in the aggregate, exceed fifteen percent (15%) of his
Compensation; provided, however, that the aggregate Before-Tax
Contributions and/or After-Tax Contributions of a Participant
who is eligible to participate in the Caliber System, Inc.
Stock Bonus Plan and Trust may not exceed ten percent (10%) of
his Compensation.
18. The second sentence of Section 4.4 of the Plan is hereby
amended in its entirety to read as follows:
A Participant may, however, in accordance with the percentages
permitted by Sections 4.1 and 4.2, change the percentage of
his Before-Tax Contributions and/or his After-Tax
Contributions upon prior notice provided in accordance with
procedures established by the Plan Administrator to be
effective as soon as practicable following the filing of such
notice.
19. Section 4.4 of the Plan is hereby amended by deleting the
last sentence thereof.
20. Section 4.5 of the Plan is hereby amended in its entirety
to read as follows:
Upon prior notice provided in accordance with procedures
established by the Plan Administrator, a Participant may at
any time suspend his Before- Tax Contributions and/or
After-Tax Contributions effective as soon as practicable. A
Participant who has so suspended his Before-Tax Contributions
and/or After-Tax Contributions may, upon prior
5
<PAGE> 6
notice provided in accordance with procedures established by
the Plan Administrator, resume making such Contributions as
soon as practicable if he is an Eligible Employee on such
date.
21. Subsections 4.7(d) and 4.8(c) of the Plan are hereby
amended by deleting the phrase "prior to March 15 of the following Plan Year,"
each place such phrase occurs and inserting the phrase "prior to the end of the
following Plan Year" in each place thereof.
22. Effective as of October 1, 1996, the first sentence of
Section 4.12 is amended by inserting the phrase "either a conduit individual
retirement account or" immediately after the phrase "distributed to the
Participant from."
23. Effective January 1, 1997, the first sentence of Section
5.1 of the Plan is hereby amended by deleting the phrase "one hundred percent
(100%)" and inserting the phrase "fifty percent (50%)."
24. Subsection 5.2(a) of the Plan is hereby amended in its
entirety to read as follows:
(a) Each Participant who is a Covered Employee of a
particular Employer shall receive an allocation to his Account
of that Employer's Matching Employer Contributions with
respect to a Plan Year, which allocation shall be made only
with respect to the Participant's Before-Tax Contributions and
After-Tax Contributions that do not exceed, in the aggregate,
three and one-half percent (3 1/2%) of his Compensation while
an active Covered Employee during that Plan Year and are
earned prior to his termination of employment with his
Employer. Effective January 1, 1997, seven percent (7%) shall
be substituted for three and one-half percent (3 1/2%) in the
preceding sentence.
6
<PAGE> 7
25. The first sentence of Section 7.2 is hereby amended in its
entirety to read as follows:
The Plan Administrator shall establish and maintain, or cause
to be established and maintained, an Account for each
Participant, which Account will reflect, pursuant to
Sub-Accounts established and maintained thereunder, the
amount, if any, of the Participant's (a) Before-Tax
Contributions, (b) After-Tax Contributions, (c) Matching
Employer Contributions, (d) Prior After-Tax Contributions, (e)
Prior Before-Tax Contributions, (f) Prior Matching Employer
Contributions and (g) Rollover Contributions.
26. Section 7.4 of the Plan is hereby amended by deleting
Subsections (a), (b), (c) and (d) thereof and by deleting the phrase "(e)
Notwithstanding the foregoing," in Subsection (e) thereof.
27. Subsection 7.5(b) of the Plan is hereby amended in its
entirety to read as follows:
(b) Each Participant may, in accordance with
procedures established by the Plan Administrator, direct that
Before-Tax Contributions, Prior Before-Tax Contributions,
After-Tax Contributions, Prior After-Tax Contributions and
Rollover Contributions made by or for him be invested in one
or more Investment Funds; provided, however, that Prior
Before-Tax Contributions and Prior After-Tax Contributions
that have been used in determining the allocation of Prior
Matching Employer Contributions to a Participant's Account
pursuant to Section 5.2 as in effect prior to July 1, 1996
must remain invested in the Company Stock Fund until such
Participant attains age fifty-five (55).
28. Effective as of October 15, 1996, Subsection 7.6(a) of the
Plan is hereby amended by deleting the last sentence thereof.
7
<PAGE> 8
29. Subsection 7.6(b) of the Plan is hereby amended by
deleting the word "irrevocably."
30. Section 7.7 of the Plan is hereby amended in its entirety
to read as follows:
(a) Any investment direction permitted by Section
7.5(b) or change of investments for future Contributions
permitted by Section 7.6 shall be made by a Participant in
accordance with procedures established by the Plan
Administrator and shall specify the portion of the
Contributions (in whole percentages totalling 100% of the
amount agreed to be contributed by the Participant, subject to
the limitations provided in Sections 4.1 and 4.2) to be
invested in each of the Investment Funds.
(b) Such directions shall be effected as soon as
administratively feasible.
31. Section 7.8 of the Plan is hereby amended in its entirety
to read as follows:
(a) Any change in investments for prior Contributions
or transfers to the Company Stock Fund permitted by Section
7.6 shall be made by a Participant in accordance with
procedures established by the Plan Administrator and shall
specify the portion of the Investment Fund (in units, shares,
percentages or dollars, as applicable) to be transferred and
the Investment Fund(s) into which it is to be transferred.
(b) Such directions shall be effected as soon as
administratively feasible, based upon the value of the Account
(or applicable portion thereof) as of the Valuation Date as
determined in accordance with procedures established by the
Plan Administrator or such other date as may be required by
law.
32. Section 7.9 of the Plan is hereby amended in its entirety
to read "[Reserved]."
8
<PAGE> 9
33. The last sentence of Section 7.10 is hereby amended in its
entirety to read as follows:
The Trustee shall vote all other Company Stock in the Company
Stock Fund (including shares for which it does not receive
instructions from Participants) in accordance with
instructions from the Committee.
34. The last sentence of Section 7.11 is hereby amended in its
entirety to read as follows:
The Trustee shall decide whether or not to tender all other
Company Stock in the Company Stock Fund (including shares for
which it does not receive instructions from Participants) in
accordance with instructions from the Committee.
35. Section 8.2 of the Plan is hereby amended in its entirety
to read as follows:
(a) A Participant shall be eligible to receive
distribution of his Account upon his Termination of Employment
(other than by reason of death).
(b) Distributions pursuant to this Section shall be
paid to a Participant as soon as practicable after the
Participant has complied with procedures established by the
Plan Administrator pursuant to Section 8.1.
(c) If a Participant who has a Termination of
Employment should again become an Employee before completion
of the distribution of his Account, such distribution shall
cease until the Participant again has a Termination of
Employment.
36. Section 8.3 of the Plan is hereby amended in its entirety
to read as follows:
(a) In the case of the death of a Participant, the
Participant's Death Beneficiary shall be eligible to receive a
distribution of the Participant's Account. If there is more
than one Death Beneficiary, the Participant's Account shall be
divided in equal shares for each such Death
9
<PAGE> 10
Beneficiary, unless the Participant has provided otherwise.
(b) Distributions pursuant to this Section shall be
paid to a Death Beneficiary as soon as practicable after the
Death Beneficiary has complied with procedures established by
the Plan Administrator pursuant to Section 8.1.
(c) In the case of the death of a Participant, the
Committee may require such proper proof of death and such
evidence of the right of any person to receive a distribution
from the Account of a deceased Participant as the Committee
may deem desirable. The Committee's determination of death and
of the right of any person to receive payment shall be
conclusive.
37. Effective as of October 1, 1996, Subsection 8.4(a) of the
Plan is hereby amended in its entirety to read as follows:
(a) The distribution of a Participant's Account (or
portion thereof) pursuant to this Article shall be as follows:
(i) A Participant's Account may be paid in any of the
following forms:
(A) a single lump sum payment;
(B) a portion paid in a lump sum payment,
and the remainder paid later; or
(C) installments over a period not to exceed
the life expectancy of the Participant and his or her
Beneficiary.
(ii) The Participant's Account will be distributed in
cash unless the Participant (or, if applicable, the Death
Beneficiary) elects a distribution in-kind, subject to the
following procedures and restrictions:
(A) To the extent a distribution consists of
amounts invested in the Company Stock Fund, a
Participant may receive an in-kind distribution of
Company Stock only if such Participant elects to
receive a single lump sum payment under Subparagraph
(a)(i)(A) above or, on or after approximately
10
<PAGE> 11
February 1, 1997, a partial payment under
Subparagraph (a)(i)(B) above. Such an in-kind
distribution will consist of whole shares of Company
Stock and cash in lieu of any fractional share of
Company Stock.
(B) To the extent a distribution consists of
amounts invested in a particular Investment Fund
other than the Company Stock Fund, to effect an
in-kind distribution of the portion of a
Participant's Account invested in such Investment
Funds, the Trustee shall determine the portion of the
Participant's Account that is distributable in whole
shares or investment units, which the Trustee shall
distribute in kind. The portion of the Participant's
Account that is not distributable in whole shares or
investment units (as determined by the Trustee) and
the portion that is attributable to fractional shares
or investment units shall be distributed in cash.
Such in-kind distributions will only be permitted if
the Participant elects a single lump sum distribution
pursuant to Subsection 8.4(a)(i)(A).
The value of the portion of the
Participant's Account distributable pursuant to this
Paragraph shall be the value determined as of the
immediately preceding Valuation Date or such other
date as may be required by law.
38. Subsection 8.4(b) of the Plan is hereby amended by
deleting the word "irrevocably."
39. Subsection 8.5(b)(i) of the Plan is hereby amended by
deleting the phrase "in a lump sum payment" and inserting the phrase "in any
form of payment pursuant to Subsection 8.4(a)(i)" in its place.
11
<PAGE> 12
40. Subsection 8.6(a) of the Plan is hereby amended in its
entirety to read as follows:
(a) In accordance with procedures established by the
Plan Administrator, a Participant may withdraw all or a
portion of his Account as provided below:
(i) A Participant may withdraw all or a part
of the portion of his Account attributable to Prior
After-Tax Contributions (including earnings and
appreciation thereon).
(ii) A Participant may withdraw all or a
portion of his Account attributable to his Rollover
Contributions (including the net earnings thereon).
(iii) A Participant may withdraw all or a
portion of his Account attributable to Prior Matching
Employer Contributions (including earnings and
appreciation thereon); provided, however, that Prior
Matching Employer Contributions (including earnings
and appreciation thereon) that have not been held in
his Account for at least two (2) years may not be so
withdrawn unless the Participant has been a
Participant in the Plan for at least five (5) years
or unless such Prior Matching Employer Contributions
have been withdrawn pursuant to Section 8.7.
Withdrawals pursuant to Subsection 8.6(a) shall be made in
cash unless the Participant elects to receive the portion of
the withdrawal invested in the Company Stock Fund in-kind. Any
such in-kind distribution will consist of whole shares of
Company Stock and cash in lieu of any fractional share of
Company Stock.
41. Section 8.7 of the Plan is hereby deleted in its entirety
and any period of suspension pursuant to the terms of Section 8.7 shall be
deemed terminated as of July 1, 1996. Effective as of October 1, 1996, a new
Section 8.7 is added to
12
<PAGE> 13
the Plan to read as follows:
8.7 Withdrawals on Account of Disability or Attainment
--------------------------------------------------
of Age Fifty-Nine and One-Half (59 1/2)
---------------------------------------
A Participant whom the Committee has determined to be
disabled for a period of at least 12 months or who has
attained age fifty-nine and one-half (59 1/2) may withdraw at
any time and from time to time all or a portion of his Account
as provided and in the order as set forth below, except that
the Participant may instead choose to have amounts taken from
his After-Tax Sub-Account and Prior After-Tax Sub-Account
first:
(a) Rollover Contribution Sub-Account;
(b) Before-Tax Contributions Sub-Account;
(c) Prior Matching Employer Contributions Sub-
Account;
(d) Matching Employer Contributions Sub-Account;
(e Prior Before-Tax Contributions Sub-Account;
(f) After-Tax Contributions Sub-Account;
(g) Prior After-Tax Contributions Sub-Account.
Withdrawals pursuant to this Section shall be made in cash
unless the Participant elects to receive the portion of the
withdrawal invested in the Company Stock Fund in-kind. Any
such in-kind distribution will consist of whole shares of
Company Stock and cash in lieu of any fractional share of
Company Stock.
42. Subsection 8.8(a) of the Plan is hereby amended by
deleting the phrases "attributable to Before-Tax Contributions (excluding any
income allocable thereto)" and "of his Before-Tax Contributions".
43. Section 8.8 of the Plan is hereby amended by adding the
following Subsection (c) to the end thereof to read as follows:
(c) Amounts withdrawn on account of Hardship shall be
withdrawn from a Participant's Account in the order as set
forth below:
(i) After-Tax Contributions;
(ii) Prior After-Tax Contributions;
13
<PAGE> 14
(iii) Rollover Contributions;
(iv) Prior Matching Employer Contributions;
(v) Matching Employer Contributions;
(vi) Prior Before-Tax Contributions (excluding any
earnings);
(vii) Before-Tax Contributions (excluding any
earnings).
44. Subsection 8.11(a) of the Plan is hereby amended by
deleting the phrase "(but not less than $500)".
45. Effective as of October 1, 1996, a new Section 8.13 is
added to the Plan to read as follows:
8.13 Loans
-----------
The following loan provisions will be effective when
the Plan Administrator, in its discretion, determines it is
administratively feasible and desirable to provide loans under
the Plan.
(a) A Participant who is either an Employee of an
Employer or a Controlled Group Member or a "party-in-interest"
(as defined in Section 3(14) of ERISA) may, in accordance with
procedures established by the Plan Administrator, apply for a
loan from his Account. Such procedures shall include action to
prevent a Participant who is otherwise eligible for a loan
from securing a loan if the Administrator has knowledge that
the Participant is in bankruptcy or some similar proceeding.
Each loan shall be charged against the Participant's Account
in the following order (to the extent necessary): Before-Tax
Contributions Sub-Account; Prior Matching Employer
Contributions Sub-Account; Matching Employer Contributions
Sub-Account; Prior Before-Tax Contributions Sub-Account;
Rollover Contributions Sub-Account; After-Tax Contributions
Sub-Account, and finally, against the Prior After-Tax
Contributions Sub-Account.
(b) Each loan shall be in an amount which is not less
than $1,000. A Participant may only have one loan outstanding
at any time. The maximum loan to any Participant (when added
to the outstanding balance of all other loans to the
Participant from all qualified employer plans (as defined in
Code Section 72(p)(4)) of the
14
<PAGE> 15
Controlled Group) shall be an amount which does not exceed the
lesser of:
(i) Fifty Thousand Dollars ($50,000),
reduced by the excess (if any) of (A) the highest
outstanding balance of such other loans during the
one-year period ending on the day before the date on
which such loan is made, over (B) the outstanding
balance of such other loans on the date on which such
loan is made; or
(ii) fifty percent (50%) of the value of such
Participant's Account on the date on which such loan
is made.
(c) For each Participant for whom a loan is
authorized pursuant to this Section, the Participant's
interests will be liquidated first by Sub-Account and then
within each Sub-Account amounts shall be taken on a pro-rata
basis by Investment Fund to the extent necessary to provide
funds for the loan. The Trustee shall establish and maintain a
separate recordkeeping account within the Participant's
Account (the "Loan Sub-Account") (i) which initially shall be
in the amount of the loan, (ii) to which the funds for the
loan shall be deemed to have been allocated and then disbursed
to the Participant, (iii) to which the Note shall be allocated
and (iv) which shall show the unpaid principal of the
promissory note. All payments of principal and interest by a
Participant shall be credited initially to his Loan
Sub-Account and applied against the Note and then credited to
the Participant's Sub-Account in accordance with the
Participant's then current investment direction for future
Contributions; provided, however, that payments of principal
and interest to the Prior Matching Employer Contributions
Sub-Account, the Matching Employer Contributions Sub-Account,
the Prior Before-Tax Contributions Sub-Account, and the Prior
After-Tax Contributions Sub-Account shall be reinvested in the
Company Stock Fund. The Plan Administrator shall value each
Participant's Loan Sub-Account for purposes of Section 7.4 at
such times as the Plan Administrator shall deem appropriate,
but not less frequently than quarterly.
15
<PAGE> 16
(d) Loans made pursuant to this Section:
(i) shall be made available to all
Participants on a reasonably equivalent basis;
(ii) shall not be made available to Highly
Compensated Employees in a percentage amount greater
than the percentage amount made available to other
Participants;
(iii) shall be secured by the Participant's
Loan Sub-Account;
(iv) shall be evidenced by a promissory note
and security agreement (the "Note") which provides
for:
(A) the loan to be secured by the
Participant's Loan Sub-Account;
(B) a rate of interest of one
percent above the prime interest rate as
determined by the Trustee at the time the
loan is processed;
(C) repayment within a specified
period of time, which shall not extend
beyond five (5) years from the date the loan
is made unless the loan proceeds are used to
acquire a dwelling which, within a
reasonable time (determined at the time the
loan is made), is to be used as the
principal residence of the Participant, in
which case the repayment period may extend
to ten (10) years;
(D) repayment in equal payments over
the term of the loan, with payments not less
frequently than monthly; and
(E) for such other terms and
conditions as the Plan Administrator shall
determine, which shall include provision
that:
(I) with respect to a
Participant who is an Employee, the
loan will be repaid pursuant to
authorization by the Participant of
equal payroll deductions over the
repayment period sufficient to
amortize fully the loan within the
repayment period or by check during
16
<PAGE> 17
any period the Participant is
ineligible for payroll deduction;
(II) the loan shall be
prepayable in whole or in specified
increments (as determined from time
to time by the Plan Administrator)
at any time without penalty;
(III) the loan shall be
treated as in default if payments
are more than 90 days late. A
Participant shall then have 30 days
from the time he receives written
notice of the default and a demand
for past due amounts to cure the
default before it becomes final; and
(IV) the Plan 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 such
suspension period, interest shall
continue to accrue. At the end of
such suspension period, all
outstanding loan payments and
interest shall be due unless
otherwise agreed upon by the Plan
Administrator.
(e) Notwithstanding any other provision of the Plan,
a loan made pursuant to this Section shall be a first lien
against the Participant's Loan Sub-Account. Any amount of
principal or interest due and unpaid on the loan at the time
of any Default on the loan, and any interest accruing
thereafter, shall be satisfied by deduction from the
Participant's Loan Sub-Account, and shall be deemed to have
been distributed to the Participant, as follows:
(i) In the case of a Participant who, at the
time of the Default, is an Employee and is not
eligible to receive distribution of his Account under
the provisions of Article VIII, (other than Hardship
withdrawals under Section 8.8) at such time as he
first becomes eligible to receive distribution of his
Account under the provisions of this Article, (other
than Section 8.8); or
(ii) In the case of any other Participant,
immediately upon such Default.
17
<PAGE> 18
If, as a result of the application of the preceding sentence,
an amount of principal or interest on a loan remains
outstanding after Default, interest at the rate specified in
the Note shall continue to accrue on such outstanding amount
until fully satisfied by deduction from the Participant's Loan
Sub-Account as hereinabove provided or by payment by or on
behalf of such Participant.
(f) The Plan Administrator shall have the right to
call any Participant's loan once the Participant's employment
with all Controlled Group Members has terminated or if the
Plan is terminated.
46. Subsection 9.8(a) of the Plan is hereby amended by
deleting the phrase "thirty (30)" and inserting the phrase "ninety (90)" in its
place.
47. Effective as of October 1, 1996, the second sentence in
Section 14.2 of the Plan is hereby amended in its entirety to read as follows:
Notwithstanding the foregoing, this Section shall not preclude
the Trustee from complying with a qualified domestic relations
order (as defined under Code Section 414(p)), the enforcement
of a federal tax levy pursuant to Code Section 6331, or the
collection by the United States on a judgment resulting from
an unpaid tax assessment, in accordance with the Committee's
direction.
48. Exhibit B to the Plan is hereby amended in its entirety to
read as follows:
EXHIBIT B
Additional Investment Funds Pursuant to Section 7.1
As of July 1, 1996
(1) The Income Accumulation Fund
(2) MasterWorks Bond Index Fund
(3) MasterWorks Assets Allocation Fund
18
<PAGE> 19
(4) The REX Stock Fund, to be invested in REX Stock. The
REX Stock Fund shall be subject to the terms and
conditions of Exhibit C.
(5) Mutual Beacon Fund
Additional Investment Funds Pursuant to Section 7.1
As of October 1, 1996
(1) MasterWorks S&P 500 Stock Fund
(2) Vanguard Primecap Fund
(3) MasterWorks LifePath 2000
(4) MasterWorks LifePath 2010
(5) MasterWorks LifePath 2020
(6) MasterWorks LifePath 2030
(7) MasterWorks LifePath 2040
(8) Templeton Foreign Fund
(9) AIM Constellation Fund
49. The last sentence of Item (3) of Exhibit C is hereby
amended in its entirety to read as follows:
The Trustee shall vote all other REX Stock in the REX Stock
Fund (including shares for which it does not receive
instructions from Participants) in accordance with
instructions from the Committee.
50. The last sentence of Item (4) of Exhibit C is hereby
amended in its entirety to read as follows:
The Trustee shall decide whether or not to tender all other
REX Stock in the REX Stock Fund (including shares for which it
does not receive instructions from Participants) in accordance
with instructions from the Committee.
19
<PAGE> 20
IN WITNESS WHEREOF, the Company and the Trustee have caused
this Amendment No. 4 to be executed by their duly appointed officers.
In the presence of: CALIBER SYSTEM, INC.
/s/ Beth P. Ewing By: /s/ Donald C. Brown
- ---------------------- ---------------------------------
Title:
BARCLAYS GLOBAL INVESTORS,
NATIONAL ASSOCIATION
/s/ C.R. Cogan By: /s/ Dolores Upton
- ---------------------- ---------------------------------
Title: Principal
/s/ Robin Hopkins By: /s/ Peter H. Sorensen
- ---------------------- ---------------------------------
Title: Man. Dir.
<PAGE> 1
Exhibit 4.4(f)
THE FINANCIAL
SECURITY PLAN AND TRUST
PLAN AND TRUST AGREEMENT
AS AMENDED AND RESTATED
EFFECTIVE APRIL 1, 1995
<PAGE> 2
The Financial Security Plan and Trust
As Amended and Restated Effective April 1,1995
Viking Freight System, Inc. previously established the Viking Financial Security
Plan effective January 1, 1985 for the benefit of eligible employees of Viking
Freight System, Inc. and its participating affiliates. Effective April 1, 1995,
Roadway Regional Group, Inc. became the sponsor of the Viking Financial Security
Plan at which time such plan is now restated and renamed The Financial Security
Plan for the benefit of Roadway Regional Group, Inc. and its participating
affiliates and concurrent with such actions the Cole Profit Sharing Plan,
originally effective December 29, 1958, is merged into the Plan.
The Plan is intended to constitute a qualified profit sharing plan, as described
in Code section 401(a), which includes a qualified cash or deferred arrangement,
as described in Code section 401(k).
The provisions of this Plan and Trust relating to the Trustee constitute the
trust agreement which is entered into by and between Roadway Regional Group,
Inc. and BZW Barclays Global Investors, National Association. The Trust is
intended to be tax exempt as described under Code section 501(a).
Date: ______________, 19 Viking Freight, Inc. as successor to
Roadway Regional Group, Inc.
By:
--------------------------------
Title:
---------------------------
The trust agreement set forth in those provisions of this Plan and Trust which
relate to the Trustee is hereby executed.
Date: ______________, 19 BZW Barclays Global Investors,
National Association
By:
--------------------------------
Title:
---------------------------
Date: ______________, 19 BZW Barclays Global Investors,
National Association
By:
--------------------------------
Title:
---------------------------
- --------------------------------------------------------------------------------
<PAGE> 3
TABLE OF CONTENTS
1 DEFINITIONS....................................................... 1
-----------
2 ELIGIBILITY....................................................... 11
-----------
2.1 Eligibility............................................. 11
2.2 Ineligible Employees.................................... 11
2.3 Ineligible or Former Participants....................... 11
3 PARTICIPANT CONTRIBUTIONS......................................... 12
-------------------------
3.1 Before-Tax Contribution Election........................ 12
3.2 Changing a Contribution Election........................ 12
3.3 Revoking and Resuming a Contribution Election........... 12
3.4 Contribution Percentage Limits.......................... 12
3.5 Refunds When Contribution Dollar Limit Exceeded......... 13
3.6 Timing, Posting and Tax Considerations.................. 13
4 ROLLOVERS AND TRANSFERS FROM AND TO OTHER QUALIFIED PLANS......... 14
---------------------------------------------------------
4.1 Rollovers............................................... 14
4.2 Transfers From and To Other Qualified Plans............. 14
5 EMPLOYER CONTRIBUTIONS............................................ 15
----------------------
5.1 Viking/RRG Match Contributions.......................... 15
5.2 RSI Stock Match Contributions........................... 15
5.3 Coles Match Contributions............................... 16
5.4 Profit Sharing Contributions............................ 17
6 ACCOUNTING........................................................ 18
----------
6.1 Individual Participant Accounting....................... 18
6.2 Sweep Account is Transaction Account.................... 18
6.3 Trade Date Accounting and Investment Cycle.............. 18
6.4 Accounting for Investment Funds......................... 18
6.5 Payment of Fees and Expenses............................ 18
6.6 Accounting for Participant Loans........................ 19
6.7 Error Correction........................................ 19
6.8 Participant Statements.................................. 20
6.9 Special Accounting During Conversion Period............. 20
6.10 QDROs................................................... 20
7 INVESTMENT FUNDS AND ELECTIONS.................................... 22
------------------------------
7.1 Investment Funds........................................ 22
7.2 Investment Fund Elections............................... 22
7.3 Responsibility for Investment Choice.................... 22
7.4 Default if No Election.................................. 22
7.5 Timing.................................................. 23
7.6 Investment Fund Election Change Fees.................... 23
- --------------------------------------------------------------------------------
i
<PAGE> 4
8 VESTING & FORFEITURES............................................. 24
---------------------
8.1 Fully Vested Accounts................................... 24
8.2 Full Vesting Upon Certain Events........................ 24
8.3 Vesting Schedule........................................ 24
8.4 Forfeitures............................................. 25
8.5 Rehired Employees....................................... 25
9 PARTICIPANT LOANS................................................. 26
-----------------
9.1 Participant Loans Permitted............................. 26
9.2 Loan Application, Note and Security..................... 26
9.3 Spousal Consent......................................... 26
9.4 Loan Approval........................................... 26
9.5 Loan Funding Limits, Account Sources and Funding Order.. 26
9.6 Maximum Number of Loans................................. 27
9.7 Source and Timing of Loan Funding....................... 27
9.8 Interest Rate........................................... 27
9.9 Loan Payment............................................ 28
9.10 Loan Payment Hierarchy.................................. 28
9.11 Repayment Suspension.................................... 28
9.12 Loan Default............................................ 28
9.13 Call Feature............................................ 28
10 IN-SERVICE WITHDRAWALS............................................ 29
----------------------
10.1 In-Service Withdrawals Permitted........................ 29
10.2 In-Service Withdrawal Application and Notice............ 29
10.3 Spousal Consent......................................... 29
10.4 In-Service Withdrawal Approval.......................... 29
10.5 Minimum Amount, Payment Form and Medium................. 30
10.6 Source and Timing of In-Service Withdrawal Funding...... 30
10.7 Hardship Withdrawals.................................... 30
10.8 After-Tax Account Withdrawals........................... 32
10.9 Over Age 59 1/2 Withdrawals............................. 32
11 DISTRIBUTIONS ONCE EMPLOYMENT ENDS, UPON DISABILITY OR
------------------------------------------------------
AS REQUIRED BY LAW ............................................... 34
------------------
11.1 Benefit Information, Notices and Election............... 34
11.2 Spousal Consent......................................... 34
11.3 Payment Form and Medium................................. 35
11.4 Source and Timing of Distribution Funding............... 36
11.5 Deemed Distribution..................................... 36
11.6 Latest Commencement Permitted........................... 36
11.7 Payment Within Life Expectancy.......................... 37
11.8 Incidental Benefit Rule................................. 37
11.9 Payment to Beneficiary.................................. 37
11.10 Beneficiary Designation................................. 38
11.11 QJSA and QPSA Annuity Information and Elections ........ 38
- -------------------------------------------------------------------------------
ii
<PAGE> 5
12 ADP AND ACP TESTS................................................. 41
-----------------
12.1 Contribution Limitation Definitions..................... 41
12.2 ADP and ACP Tests....................................... 44
12.3 Correction of ADP and ACP Tests......................... 44
12.4 Multiple Use Test....................................... 45
12.5 Correction of Multiple Use Test......................... 46
12.6 Adjustment for Investment Gain or Loss.................. 46
12.7 Testing Responsibilities and Required Records........... 46
12.8 Separate Testing........................................ 46
13 MAXIMUM CONTRIBUTION AND BENEFIT LIMITATIONS...................... 47
--------------------------------------------
13.1 "Annual Addition" Defined............................... 47
13.2 Maximum Annual Addition................................. 47
13.3 Avoiding an Excess Annual Addition...................... 47
13.4 Correcting an Excess Annual Addition.................... 47
13.5 Correcting a Multiple Plan Excess....................... 48
13.6 "Defined Benefit Fraction" Defined...................... 48
13.7 "Defined Contribution Fraction" Defined................. 48
13.8 Combined Plan Limits and Correction..................... 48
14 TOP HEAVY RULES................................................... 49
---------------
14.1 Top Heavy Definitions................................... 49
14.2 Special Contributions................................... 50
14.3 Special Vesting......................................... 51
14.4 Adjustment to Combined Limits for Different Plans....... 51
15 PLAN ADMINISTRATION............................................... 52
-------------------
15.1 Plan Delineates Authority and Responsibility............ 52
15.2 Fiduciary Standards..................................... 52
15.3 Plan Sponsor is ERISA Plan Administrator................ 52
15.4 Administrator Duties.................................... 53
15.5 Advisors May be Retained................................ 53
15.6 Delegation of Administrator Duties...................... 54
15.7 Committee Operating Rules............................... 54
16 MANAGEMENT OF INVESTMENTS......................................... 55
-------------------------
16.1 Trust Agreement......................................... 55
16.2 Investment Funds........................................ 55
16.3 Authority to Hold Cash.................................. 56
16.4 Trustee to Act Upon Instructions........................ 56
16.5 Administrator Has Right
to Vote Registered Investment Company Shares............ 56
16.6 Custom Fund Investment Management ...................... 56
16.7 Authority to Segregate Assets........................... 57
16.8 Maximum Permitted Investment in Roadway Stock........... 57
16.9 Participants Have Right to Vote and Tender Roadway Stock 57
16.10 Participants Have Right to Vote and Tender REX Stock.... 58
16.11 Registration and Disclosure for Roadway Stock........... 58
16.12 Registration and Disclosure for REX Stock............... 58
- ------------------------------------------------------------------------------
iii
<PAGE> 6
17 TRUST ADMINISTRATION.............................................. 59
--------------------
17.1 Trustee to Construe Trust............................... 59
17.2 Trustee To Act As Owner of Trust Assets................. 59
17.3 United States Indicia of Ownership...................... 59
17.4 Tax Withholding and Payment............................. 60
17.5 Trust Accounting........................................ 60
17.6 Valuation of Certain Assets............................. 60
17.7 Legal Counsel........................................... 61
17.8 Fees and Expenses....................................... 61
17.9 Trustee Duties and Limitations.......................... 61
18 RIGHTS, PROTECTION, CONSTRUCTION AND JURISDICTION................. 62
-------------------------------------------------
18.1 Plan Does Not Affect Employment Rights.................. 62
18.2 Limited Return of Contributions......................... 62
18.3 Assignment and Alienation............................... 62
18.4 Facility of Payment..................................... 63
18.5 Reallocation of Lost Participant's Accounts............. 63
18.6 Claims Procedure........................................ 63
18.7 Construction............................................ 64
18.8 Jurisdiction and Severability........................... 64
18.9 Indemnification by Employer............................. 64
19 AMENDMENT, MERGER, DIVESTITURES AND TERMINATION................... 65
-----------------------------------------------
19.1 Amendment............................................... 65
19.2 Merger.................................................. 65
19.3 Divestitures............................................ 65
19.4 Plan Termination........................................ 66
19.5 Amendment and Termination Procedures.................... 66
19.6 Termination of Employer's Participation................. 67
19.7 Replacement of the Trustee.............................. 67
19.8 Final Settlement and Accounting of Trustee.............. 67
APPENDIX A - INVESTMENT FUNDS.............................................. 69
APPENDIX B - PAYMENT OF PLAN FEES AND EXPENSES............................. 71
APPENDIX C - LOAN INTEREST RATE............................................ 72
- -------------------------------------------------------------------------------
iv
<PAGE> 7
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 or amounts transferred from the
Predecessor Plan:
(a) "Before-Tax Account". An account created to hold
Before-Tax Contributions.
(b) "Prior Before-Tax Account". An account created to
hold amounts transferred from the Predecessor Plan
designated as "Deferred Match Contributions"
thereunder.
(c) "After-Tax Account". An account created to hold
amounts previously contributed by an eligible
Participant on an after-tax basis under former Plan
provisions and amounts transferred from the
Predecessor Plan designated as "Employee Voluntary
Contributions" thereunder.
(d) "Rollover Account". An account created to hold
Rollover Contributions and amounts transferred from
the Predecessor Plan designated as "Rollover
Contributions" thereunder.
(e) "Viking/RRG Match Account". An account created to
hold Viking/RRG Match Contributions which amounts
prior to April 1, 1995 were designated as "Company
Match Contributions".
(f) "RSI Stock Match". An account created to hold RSI
Stock Match Contributions.
(g) "Coles Match Account". An account created to hold
Coles Match Contributions.
(h) "Profit Sharing Account". An account created to hold
Profit Sharing Contributions.
(i) "Prior Profit Sharing Account". An account created to
hold amounts transferred from the Predecessor Plan
designated as "Regular Employer Contributions" and
"Discretionary Employer Contributions" thereunder.
1.2 "ACP" or "Average Contribution Percentage". The percentage
calculated in accordance with Section 12.1.
- --------------------------------------------------------------------------------
1
<PAGE> 8
1.3 "Administrator". The Plan Sponsor, 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 "Break in Service". The end of five consecutive Plan Years
(or six consecutive Plan Years if absence from employment was
due to a Parental Leave) for which a Participant is credited
with no Hours of Service.
1.7 "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.
1.8 "Coles Employee". A Participant during any period he or she
is an Eligible Employee and employed by Coles Express, Inc.
1.9 "Committee". The administrative committee appointed by the
Plan Sponsor and charged with the general administration of
the Plan in accordance with Section 15.6.
1.10 "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 $150,000, (as adjusted for the
cost of living pursuant to Code sections 401(a)(17) and
415(d)) per Plan Year. For purposes of the preceding
sentence, in the case of a 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.
- -------------------------------------------------------------------------------
2
<PAGE> 9
For purposes of determining HCEs and key employees,
Compensation for the entire Plan Year shall be used. For
purposes of determining ADP and ACP, Compensation shall be
limited to amounts paid to an Eligible Employee while a
Participant.
1.11 "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
an eligible Participant in conjunction with his or
her Code section 401(k) salary deferral election
which shall be treated as made by the Employer on an
eligible Participant's behalf.
(b) "Rollover Contribution". An amount contributed by an
Eligible Employee which originated from another
employer's or an Employer's qualified plan.
(c) "Viking/RRG Match Contribution". An amount
contributed by the Employer on an eligible
Participant's behalf based upon the amount
contributed by the eligible Participant.
(d) "RSI Stock Match Contribution". An amount
contributed by the Employer on an eligible
Participant's behalf based upon the amount
contributed by the eligible Participant.
(e) "Coles Match Contribution". An amount contributed by
the Employer on an eligible Participant's behalf
based upon the amount contributed by the eligible
Participant.
(f) "Profit Sharing Contribution". An amount contributed
by the Employer on an eligible Participant's behalf
and allocated on a pay based formula.
Solely for purposes of the Plan Year ending December 31,
1995, references to Before-Tax Contributions in Sections 3.5,
12 and 13.4 shall include "Deferred Match Contributions" for
the period January 1, 1995 through March 31, 1995 made under
the Predecessor Plan as merged herein effective April 1,1995.
Solely for purposes of Sections 3.5, 12 and 13.4 Viking/RRG
Match Contributions, RSI Stock Match Contributions and Coles
Match Contributions shall be collectively referred to as
"Matching Contributions" and solely for purposes of the Plan
Year ending December 31, 1995 "Matching Contributions" as
referenced therein shall also include "Regular Employer
Contributions" for the period January 1, 1995 through March
31, 1995 made under the Predecessor Plan as merged herein
effective April 1, 1995.
- --------------------------------------------------------------------------------
3
<PAGE> 10
1.12 "Contribution Dollar Limit". The annual limit placed on each
Participant's Before-Tax Contributions, which shall be $7,000
per calendar year (as adjusted 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)).
1.13 "Conversion Period". The period of converting the prior
accounting system of any plan and trust which is merged into
this Plan and Trust subsequent to the Effective Date, to the
accounting system described in Section 6.
1.14 "Direct Rollover". An Eligible Rollover Distribution that is
paid directly to an Eligible Retirement Plan for the benefit
of a Distributee.
1.15 "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 Committee.
1.16 "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.
1.17 "Effective Date". The date upon which the provisions of this
document become effective. This date is April 1,1995, unless
stated otherwise. 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.
1.18 "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;
(b) who is treated as an Employee because he or she is a
Leased Employee;
(c) who is a nonresident alien who (i) either receives
no earned income (within the meaning of Code section
911(d)(2)), from sources within the United States
under Code section 861(a)(3); or (ii) receives such
earned income from such sources within the United
States but such income is
- --------------------------------------------------------------------------------
4
<PAGE> 11
exempt from United States income tax under an
applicable income tax convention; or
(d) who is classified by the Employer as a supplemental
Employee or a temporary Employee.
Notwithstanding an Employee who was classified as a
supplemental Employee and a Participant on July 1, 1992 shall
be included as an Eligible Employee.
1.19 "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.
1.20 "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).
1.21 "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.
1.22 "Employer". The Plan Sponsor and any Subsidiary or other
Related Company of either the Plan Sponsor or a Subsidiary
which adopts this Plan with the approval of the Plan Sponsor.
As of the Effective Date the Employers under the Plan are the
Plan Sponsor, Viking Freight System, Inc. and Coles Express,
Inc.
1.23 "ERISA". The Employee Retirement Income Security Act of 1974,
as amended. Reference to any specific ERISA section shall
include such section, any valid regulation promulgated
thereunder, and any comparable provision of any future
legislation amending, supplementing or superseding such
section.
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5
<PAGE> 12
1.24 "Forfeiture Account". An account holding amounts forfeited by
Participants who have terminated employment with all Related
Companies, invested in interest bearing deposits of the
Trustee, pending disposition as provided in this Plan and
Trust and as directed by the Administrator.
1.25 "HCE" or "Highly Compensated Employee". An Employee described
as a Highly Compensated Employee in Section 12.
1.26 "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 for 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.
Hours credited prior to a Break in Service are included.
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 Plan Sponsor 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.
1.27 "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.
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6
<PAGE> 13
1.28 "Investment Fund" or "Fund". An investment fund as described
in Section 16.2. The Investment Funds authorized by the
Administrator to be offered under the Plan as of the
Effective Date or such other date as stated are set forth in
Appendix A.
1.29 "Leased Employee". An individual who is deemed to be an
employee of any Related Company as provided in Code section
414(n) or (o).
1.30 "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 the 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 the Employer's uniform
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.
1.31 "Loan Account". The record maintained for purposes of
accounting for a Participant's loan and payments of principal
and interest thereon.
1.32 "NHCE" or "Non-Highly Compensated Employee". An Employee
described as a Non-Highly Compensated Employee in Section 12.
1.33 "Normal Retirement Date". The date of a Participant's 59
1/2th birthday.
1.34 "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).
1.35 "Parental Leave". The period of absence from work by reason
of pregnancy, the birth of an Employee's child, the placement
of a child with the Employee in connection with the child's
adoption, or caring for such child immediately after birth or
placement as described in Code section 410(a)(5)(E).
1.36 "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 that he or she shall not be
considered a Participant for purposes of provisions related
to Contributions, other than a Rollover Contribution, until
he or she completes the eligibility requirements as described
in Section 2.1. A Participant's participation continues until
his or her employment with all Related Companies ends and his
or her Account is distributed or forfeited.
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<PAGE> 14
1.37 "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 by any salary credit or decreased by
any salary reduction pursuant to Code sections 125 or
402(e)(3). Pay is limited to $150,000 (as adjusted for the
cost of living pursuant to Code sections 401(a)(17) and
415(d)) per Plan Year.
For purposes of the Contributions described in Section 5.4,
the limitations as described in the second paragraph of
Section 1.10 shall also apply.
1.38 "Plan". The Financial Security Plan set forth in this
document, as from time to time amended.
1.39 "Plan Sponsor". Roadway Regional Group, Inc., a California
corporation or any successor by merger or consolidation or
any successor that otherwise assumes the obligations of the
Plan Sponsor under the Plan.
1.40 "Plan Year". The annual accounting period of the Plan and
Trust which ends on each December 31.
1.41 "Predecessor Plan". Cole Profit Sharing Plan as originally
established effective December 29, 1958 as merged herein
effective April 1, 1995.
1.42 "Predecessor Plan Amounts". With regard to a Participant who
immediately prior to April 1, 1995 was a participant in the
Predecessor Plan, the sum of his or her Prior Before-Tax
Account, After-Tax Account and Prior Profit Sharing Account,
which Accounts hold only amounts transferred from the
Predecessor Plan and earnings thereon plus the portion of his
or her Rollover Account attributable to amounts transferred
from the Predecessor Plan and earnings thereon.
1.43 "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).
1.44 "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 sections 414(b), (c), (m) or (o) and except
that for purposes of Section 13 "within the meaning of Code
sections 414(b), (c), (m) or (o), as modified by Code section
415(h)" shall be substituted for the preceding reference to
"within the meaning of Code section 414(b), (c), (m) or (o)".
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8
<PAGE> 15
1.45 "REX". Roadway Express, Inc.
1.46 "REX Stock". Shares of voting common stock of Roadway
Express, Inc.
1.47 "Roadway". Roadway Services, Inc., (or as may later be
renamed) the parent corporation of the Plan Sponsor.
1.48 "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.
1.49 "RRG Employee". A Participant during any period he or she is
an Eligible Employee and employed by Roadway Regional Group,
Inc.
1.50 "Settlement Date". For each Trade Date, the Trustee's next
business day.
1.51 "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 an 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.
1.52 "Subsidiary". A company which is 50% or more owned, directly
or indirectly, by the Plan Sponsor.
1.53 "Sweep Account". The subsidiary Account for each Participant
through which all transactions are processed, which is
invested in interest bearing deposits of the Trustee.
1.54 "Sweep Date". The cut off date and time for receiving
instructions for transactions to be processed on the next
Trade Date.
1.55 "Taxable Income". Compensation in the amount reported by the
Employer or a Related Company 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 $150,000 (as adjusted for the
cost of living pursuant to Code sections 401(a)(17) and
415(d)) per Plan Year. For purpose
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9
<PAGE> 16
of the preceding sentences, in the case of a 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.
1.56 "Trade Date". Each day the Investment Funds are valued, which
is normally every day the assets of such Funds are traded.
1.57 "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, any unallocated funds
invested in deposit or money market type assets pending
allocation to Participants' Accounts or disbursement to pay
Plan fees and expenses and the Forfeiture Account.
1.58 "Trustee". Wells Fargo Bank, National Association for the
period prior to January 1, 1996. Effective January 1, 1996,
BZW Barclays Global Investors, National Association.
1.59 "Viking Employee". A Participant during any period he or she
is an Eligible Employee and employed by Viking Freight
System, Inc.
1.60 "Year of Vesting Service". A 12 consecutive month period
ending on the last day of a Plan Year in which an Employee is
credited with at least 1,000 Hours of Service.
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<PAGE> 17
2 ELIGIBILITY
-----------
2.1 Eligibility
All Participants as of April 1,1995 shall continue their
eligibility to participate including participants as of March
31, 1995 under the Predecessor Plan. 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> 18
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
any time in such manner and with such advance notice as
prescribed by the Administrator, and such revocation shall be
effective with the first payroll paid after such date.
A Participant who is an Eligible Employee may resume
Contributions by making a new 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.
3.4 Contribution Percentage Limits
The Administrator may establish and change from time to time,
in writing, without the necessity of amending this Plan and
Trust, 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 to satisfy the tests described in Section 12.
As of the Effective Date, the Before-Tax Contribution maximum
percentage is 15%.
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<PAGE> 19
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.
Excess amounts shall first be taken from unmatched Before-Tax
Contributions and then from matched Before-Tax Contributions.
Any Matching Contributions attributable to refunded excess
Before-Tax Contributions as described in this Section,
adjusted for investment gain or loss, shall be forfeited and
used to reduce Contributions made by an Employer as soon as
administratively feasible. Refunds or forfeitures shall not
include investment gain or loss for the period between the
end of the applicable calendar year and the date of
distribution or forfeiture.
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 Contributions made by an
Employer in determining tax deductions under Code section
404(a).
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<PAGE> 20
4 ROLLOVERS AND TRANSFERS FROM AND TO OTHER QUALIFIED PLANS
---------------------------------------------------------
4.1 Rollovers
The Administrator may authorize the Trustee to accept a
rollover contribution, within the meaning of Code section
402(c), 403(a)(4) or 408(d)(3)(A)(ii), in cash (or its
equivalent), directly from an Eligible Employee or 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 and To Other Qualified Plans
The Administrator may instruct the Trustee to receive assets
in cash or in kind directly from another qualified plan or
transfer assets in cash or in kind directly to another
qualified plan; provided that a transfer should not be
directed if:
(a) any amounts are not exempted by Code section
401(a)(11)(B) from the annuity requirements of Code
section 417 unless, in the event of a receipt of
assets, the Plan complies with such requirements or,
in the event of a transfer of assets, the receiving
Plan complies with such requirements; or
(b) any amounts include benefits protected by Code
section 411(d)(6) which would not be preserved under
applicable Plan provisions, in the event of a
receipt of assets or, under the applicable
provisions of the receiving plan, in the event of a
transfer of assets.
The Trustee may refuse the receipt of any transfer if:
(a) the Trustee finds the in-kind assets unacceptable;
or
(b) instructions for posting amounts to Participants'
Accounts are incomplete.
Such amounts shall be posted to the appropriate Accounts of
Participants as of the date received by the Trustee.
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<PAGE> 21
5 EMPLOYER CONTRIBUTIONS
----------------------
For purposes of Section 5.1, the Employer shall mean Roadway Regional
Group, Inc. or Viking Freight System, Inc. For purposes of Section 5.2,
5.3 and 5.4, the Employer shall mean Coles Express, Inc.
5.1 Viking/RRG Match Contributions
(a) Frequency and Eligibility. For each Plan Year, the
Employer shall make Viking/RRG Match Contributions,
as described in the following Allocation Method
paragraph, on behalf of each Participant who
contributed during the Plan Year while he or she was
a RRG Employee or a Viking Employee and was an
Employee on the last day of the Plan Year.
(b) Allocation Method. The Viking/RRG Match
Contributions for each Plan Year shall total 50% of
each eligible Participant's Before-Tax Contributions
for the Plan Year, made while he or she was a RRG
Employee or a Viking Employee, provided that no
Viking/RRG Match Contributions shall be made based
upon a Participant's Contributions in excess of 6%
of his or her Pay while a RRG Employee or a Viking
Employee. 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 Viking/RRG Match Contribution in
cash as soon as administratively feasible, and for
purposes of deducting such Contribution, not later
than the Employer's federal tax filing date,
including extensions. The Trustee shall post such
amount to each Participant's Viking/RRG Match
Account once the total Contribution received has
been balanced against the specific amount to be
credited to each Participant's Viking/RRG Match
Account.
5.2 RSI Stock Match Contributions
(a) Frequency and Eligibility. For each period for which
Participants' Contributions are made, the Employer
shall make RSI Stock Match Contributions, as
described in the following Allocation Method
paragraph, on behalf of each Participant who
contributed during the period while he or she was a
Coles Employee.
(b) Allocation Method. The RSI Stock Match Contributions
for each period shall total 25% of each eligible
Participant's Before-Tax Contributions for the
period, made while he or she was a Coles Employee,
provided that no RSI Stock Match Contributions
shall be made based upon a
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15
<PAGE> 22
Participant's Contributions in excess of 6% of his
or her Pay while a Coles Employee. The Employer may
change the 25% matching rate or the 6% of
considered Pay to any other percentages, including
0%, generally by notifying eligible Participants in
sufficient time to adjust their Contribution
elections prior to the start of the period for
which the new percentages apply.
(c) Timing, Medium and Posting. The Employer shall make
each period's RSI Stock Match Contribution in cash
as soon as administratively feasible, and for
purposes of deducting such Contribution, not later
than the Employer's federal tax filing date,
including extensions. The Trustee shall post such
amount to each Participant's RSI Stock Match Account
once the total Contribution received has been
balanced against the specific amount to be credited
to each Participant's RSI Stock Match Account.
5.3 Coles Match Contributions
(a) Frequency and Eligibility. For each period for which
Participants' Contributions are made, the Employer
shall make Coles Match Contributions, as described
in the following Allocation Method paragraph, on
behalf of each Participant who contributed during
the period while he or she was a Coles Employee.
(b) Allocation Method. The Coles Match Contributions for
each period shall total 25% of each eligible
Participant's Before-Tax Contributions for the
period, made while he or she was a Coles Employee,
provided that no Coles Match Contributions shall be
made based upon a Participant's Contributions in
excess of 6% of his or her Pay while a Coles
Employee. The Employer may change the 25% matching
rate or the 6% of considered Pay to any other
percentages, including 0%, generally by notifying
eligible Participants in sufficient time to adjust
their Contribution elections prior to the start of
the period for which the new percentages apply.
(c) Timing, Medium and Posting. The Employer shall make
each period's Coles Match Contribution in cash as
soon as administratively feasible, and for purposes
of deducting such Contribution, not later than the
Employer's federal tax filing date, including
extensions. The Trustee shall post such amount to
each Participant's Coles Match Account once the
total Contribution received has been balanced
against the specific amount to be credited to each
Participant's Coles Match Account.
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<PAGE> 23
5.4 Profit Sharing Contributions
(a) Frequency and Eligibility. Effective January 1,
1995, for each Plan Year, the Employer may make
Profit Sharing Contributions on behalf of each
Participant who was a Coles Employee at any time
during the Plan Year and was an Employee on the last
day of the Plan Year.
If such Contributions are made, such Contributions
shall also be made on behalf of each Participant who
was a Coles Employee at any time during the Plan
Year but who ceased being an Employee during the
period after having attained age 59 1/2, or by
reason of his or her Disability or death.
(b) Allocation Method. The Profit Sharing Contribution
(including any Forfeiture Account amounts applied as
Profit Sharing Contributions in accordance with
Section 8.4) for each Plan Year, shall be in an
amount determined by the Employer and allocated
among eligible Participants in direct proportion to
their Pay while a Coles Employee.
(c) Timing, Medium and Posting. The Employer shall make
each Plan Year's Profit Sharing Contribution in cash
as soon as administratively feasible, and for
purposes of deducting such Contribution, not later
than the Employer's federal tax filing date,
including extensions. The Trustee shall post such
amount to each Participant's Profit Sharing Account
once the total Contribution received has been
balanced against the specific amount to be credited
to each Participant's Profit Sharing Account.
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<PAGE> 24
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 the Sweep and 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 shall 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, or indirectly, through the Forfeiture
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18
<PAGE> 25
Account as directed by the Administrator, such fees and
expenses shall be paid as set forth below.
(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, periodic installment
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 or charged at the
Investment Fund level and reflected in the net gain or loss
of each Fund) and those that shall be paid by the Employer is
set forth in Appendix B and may be changed from time to time
by the Administrator, in writing, without the necessity of
amending this Plan and Trust.
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 Loan 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, or if the restoration involves an Account
holding amounts contributed by an Employer, the Administrator
may direct the Trustee to use amounts from the Forfeiture
Account.
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<PAGE> 26
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 administratively feasible.
6.9 Special Accounting During Conversion Period
The Administrator and Trustee may use any reasonable
accounting methods in performing their respective duties
during any Conversion Period. 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 Section 11 and Code section
414(p), 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
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20
<PAGE> 27
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> 28
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 Effective Date or such other
date as stated, a list of the Investment Funds offered under
the Plan is set forth in Appendix A, and may be changed from
time to time by the Administrator, in writing, and as agreed
to by the Trustee, without the necessity of amending this
Plan and Trust.
7.2 Investment Fund Elections
Each Participant shall direct the investment of all of his or
her Accounts except for his or her RSI Stock Match Account
which shall be entirely invested in the Investment Fund
specified by the Administrator, which Investment Fund as of
the Effective Date is set forth in Appendix A.
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 any Conversion
Period, 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 set forth in Appendix A, and may be changed from time
to time by the Administrator, in writing, without the
necessity of amending this Plan and Trust.
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
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22
<PAGE> 29
specified as of the Effective Date is set forth in Appendix
A, and may be changed from time to time by the Administrator,
in writing, without the necessity of amending this Plan and
Trust.
7.5 Timing
A Participant shall make his or her initial investment
election upon becoming a Participant and may change his or
her investment election at any time in accordance with the
procedures established by the Administrator and Trustee.
Investment elections received by the Trustee by the Sweep
Date shall 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.
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<PAGE> 30
8 VESTING & FORFEITURES
---------------------
8.1 Fully Vested Accounts
A Participant shall be fully vested in these Accounts at all
times:
Before-Tax Account
Prior Before-Tax Account
After-Tax Account
Rollover Account
Viking/RRG Match Account
RSI Stock Match Account
Coles Match Account
Prior Profit Sharing Account
Notwithstanding, prior to the Effective Date the portion of a
Participant's Prior Profit Sharing Account attributable to
amounts designated as "Discretionary Employer Contributions"
under the Predecessor Plan became vested in accordance with a
vesting schedule then in effect.
8.2 Full Vesting Upon Certain Events
A Participant's entire Account shall become fully vested,
without regard to his or her Years of Vesting Service, once
he or she has attained his or her Normal Retirement Date as
an Employee or upon his or her incurring a Disability or
terminating employment with all Related Companies due to his
or her death.
8.3 Vesting Schedule
In addition to the vesting provided above, a Participant's
Profit Sharing Account shall become vested in accordance with
the following schedule:
YEARS OF VESTING VESTED
SERVICE PERCENTAGE
------- ----------
Less than 5 0%
5 or more 100%
If this vesting schedule is changed, the vested percentage
for each Participant shall not be less than his or her vested
percentage determined as of the last day prior to this
change, and for any Participant with at least three Years of
Vesting Service when the schedule is changed, vesting shall
be determined using the more favorable vesting schedule.
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<PAGE> 31
8.4 Forfeitures
A Participant's non-vested Account balance shall be forfeited
as of the Settlement Date following the Sweep Date on which
the Administrator has reported to the Trustee that the
Participant's employment has terminated with all Related
Companies. Forfeitures from all Employer Contribution
Accounts shall be transferred to and maintained in a single
Forfeiture Account, which shall be invested in interest
bearing deposits of the Trustee. Forfeitures from all
Employer Contribution Accounts shall be accounted for
separately by Account type and further accounted for
separately by each Employer.
An Employer's Forfeiture Account amounts shall be utilized to
restore Accounts for amounts attributable to the Employer
that were previously forfeited, to pay the Employer's Plan
fees and expenses or may increase the amount allocated by the
Employer as Profit Sharing Contributions, as directed by the
Administrator.
8.5 Rehired Employees
(a) Service. If a former Employee is rehired, all Years
of Vesting Service credited when his or her
employment last terminated shall be counted in
determining his or her vested interest.
(b) Account Restoration. If a former Employee is rehired
before he or she has a Break in Service, the amount
forfeited when his or her employment last terminated
shall be restored to his or her Account. The
restoration shall include the interest which would
have been credited had such forfeiture been invested
in the Sweep Account from the date forfeited until
the date the restoration amount is restored. The
amount shall come from the Forfeiture Account to the
extent possible, and any additional amount needed
shall be contributed by the Employer. The vested
interest in his or her restored Account shall then
be equal to:
V% times (AB + D) - D
where:
V% = current vested percentage
AB = current account balance
D = amount previously distributed
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<PAGE> 32
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, except that Spousal
Consent shall be required if any portion of such loan shall
include Predecessor Plan Amounts or amounts attributable to
the Participant's participation in the Plan while a Coles
Employee.
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, Account Sources and Funding Order
The loan amount must meet all of the following limits as
determined as of the Sweep Date the loan is processed and
shall be funded from the Participant's Accounts as follows:
(a) Plan Minimum Limit. The minimum amount for any loan
is $1,000.
(b) Plan Maximum Limit, Account Sources and Funding
Order. Subject to the legal limit described in (c)
below, the maximum a Participant may borrow,
including the outstanding balance of existing Plan
loans, is 100% of the following of the Participant's
Accounts which are fully vested in the priority
order as follows and except that for the period
prior to July 1, 1995 a Participant's Viking/RRG
Match Account shall not be included as an Account
source for funding and "50%" shall be substituted
for the preceding reference to "100%" with regard to
a Participant who is a RRG Employee or a Viking
Employee:
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26
<PAGE> 33
Before-Tax Account
RSI Stock Match Account
Viking/RRG Match Account
Coles Match Account
Prior 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 balance of loans under the Plan
during the 12 month period ending on the day before
the Sweep Date as of 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 regardless of his or her Employer.
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 Account. The available assets shall be
determined first by Account type and then within each Account
used for funding a loan, amounts shall first be taken from
the Sweep Account and then taken by Investment Fund 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.
The loan shall 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 or such other date as stated, the interest
rate is determined as set forth in Appendix C, and may be
changed from time to time by the Administrator, in writing,
without the necessity of amending this Plan and Trust.
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27
<PAGE> 34
9.9 Loan Payment
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, except that the repayment
period may be for any period not to exceed 10 years if the
purpose of the loan is to acquire the Participant's principal
residence.
9.10 Loan Payment Hierarchy
Loan principal payments 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 credited to Accounts for which the
Participant directs investment as described in Section 7 are
credited to the Investment Funds based upon the Participant's
current investment election for new Contributions. Loan
payments credited to Accounts for which the Participant does
not direct investment as described in Section 7 are credited
to the Investment Funds specified by the Administrator for
such Accounts.
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 outstanding principal balance of the
loan and accrued interest thereon 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> 35
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 pursuant to the terms
and conditions 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. The Participant shall be provided the notice
prescribed by Code section 402(f).
Code sections 401(a)(11) and 417 do not apply to in-service
withdrawals under the Plan as described in this Section. An
in-service withdrawal may therefore 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 all or a
portion, if any, of his or her in-service withdrawal
which shall constitute an Eligible Rollover
Distribution; and
(b) the Participant after receiving such notice,
affirmatively elects a Direct Rollover for all or a
portion, if any, of his or her in-service withdrawal
which shall 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.
10.3 Spousal Consent
A Participant is not required to obtain Spousal Consent in
order to make an in-service withdrawal under the Plan,
except that Spousal Consent shall be required if any portion
of such in-service withdrawal shall include Predecessor Plan
Amounts or amounts attributable to the Participant's
participation in the Plan while a Coles Employee.
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.
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29
<PAGE> 36
10.5 Minimum Amount, Payment Form and Medium
There is no minimum amount for any type of in-service
withdrawal.
The form of payment for an in-service withdrawal shall be a
single lump sum and payment shall be made in cash. With
regard to the portion of an in-service withdrawal
representing an Eligible Rollover Distribution, a Participant
may elect a Direct Rollover for all or a portion of such
amount.
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 Account and shall 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 within
each Account used for funding an in-service withdrawal,
amounts shall first be taken from the Sweep Account and then
taken by Investment Fund in direct proportion to the market
value of the Participant's interest in each Investment Fund
(which excludes his or her Loan Account balance) as of the
Trade Date on which the in-service withdrawal is processed.
The in-service withdrawal shall 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 shall be approved.
(b) "Deemed Financial Need". An immediate and heavy
financial need 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;
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30
<PAGE> 37
(3) the payment of unreimbursable tuition and
related educational fees (which effective
January 1, 1995 shall include room and
board) 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
(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 possible
withdrawals (other than hardship
withdrawals) and nontaxable loans available
from this Plan and all other plans
maintained by Related Companies;
(2) the Administrator shall suspend the
Employee from making any contributions to
this Plan and 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
with regard to this Plan and all other
plans maintained by Related Companies, 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 and Funding Order. All available
amounts must first be withdrawn from a Participant's
After-Tax Account. The remaining withdrawal amount
shall come from the following of the Participant's
fully vested Accounts, in the priority order as
follows and except that for the period prior to July
1, 1995 a Participant's Viking/RRG Match Account
shall not be included as an Account source for
funding:
Rollover Account
RSI Stock Match Account
Viking/RRG Match Account
Coles Match Account
Prior Before-Tax Account
Before-Tax Account
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31
<PAGE> 38
The amount that may be withdrawn from a
Participant's Prior Before- Tax Account shall not
include any earnings credited to his or her Prior
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.
(f) Suspension from Further Contributions. Upon making a
Hardship withdrawal, a Participant may not make
additional Before-Tax Contributions (or additional
contributions to all other qualified and
nonqualified plans of deferred compensation and all
stock option or stock purchase plans maintained by
Related Companies) for a period of 12 months from
the date the withdrawal payment is made.
10.8 After-Tax Account Withdrawals
(a) Requirements. A Participant who is an Employee may
withdraw from the Accounts listed in paragraph (b)
below.
(b) Account Sources and Funding Order. The withdrawal
amount shall come from a Participant's After-Tax
Account.
(c) Permitted Frequency. There is no restriction on the
number of After- Tax Account withdrawals permitted
to a Participant.
(d) 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 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 and Funding Order. The withdrawal
amount shall come from the following of the
Participant's fully vested Accounts, in the priority
order as follows, except that the Participant may
instead choose to have amounts taken from his or her
After-Tax Account first:
Rollover Account
Before-Tax Account
RSI Stock Match Account
Viking/RRG Match Account
Profit Sharing Account
Coles Match Account
Prior Profit Sharing Account
Prior Before-Tax Account
After-Tax Account
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32
<PAGE> 39
(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.
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33
<PAGE> 40
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) 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, upon his or her Disability or, if earlier, or 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 shall
constitute an Eligible Rollover Distribution; and
(b) the Participant after receiving such notices,
affirmatively elects a distribution and a Direct
Rollover for all or a portion, if any, of his or her
distribution which shall 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.
Effective January 1, 1996, if a distribution is one to which
Code sections 401(a)(11) and 417 do apply, such distribution
may commence less than 30 days, but more than 7 days, after
the aforementioned notices are provided, if the provisions of
(a) and (b) above are satisfied and the Participant's
election includes Spousal Consent.
11.2 Spousal Consent
A Participant is not required to obtain Spousal Consent in
order to receive a distribution under the Plan, except that
Spousal Consent shall be required if any portion of such
distribution shall include Predecessor Plan Amounts or
amounts attributable to the Participant's participation in
the Plan while a Coles Employee.
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34
<PAGE> 41
11.3 Payment Form and Medium
(a) Benefit Attributable to Participation in the Plan
While a RRG Employee or a Viking Employee: With
regard to a Participant's benefit attributable to
his or her participation in the Plan while a RRG
Employee or a Viking Employee, a Participant shall
be paid such benefit in the form of a single lump
sum. Notwithstanding, if he or she is an Employee at
the time he or she is required by law to commence
distribution, or anytime thereafter, he or she may
instead elect to be paid annually in a lump sum an
amount sufficient to comply with Code section
401(a)(9).
(b) Benefit Attributable to Predecessor Plan Amounts or
Participation in the Plan While a Coles Employee:
With regard to a Participant's benefit attributable
to Predecessor Plan Amounts or his or her
participation in the Plan while a Coles Employee, a
Participant may elect to have such benefit be paid
in (1) a single lump sum or (2) periodic
installments over a period not to exceed the life
expectancy of the Participant and his or her
Beneficiary.
To preserve benefits protected by Code section
411(d)(6), a Participant whose Account includes
Predecessor Plan Amounts, may elect to have his or
her benefit attributable to such Predecessor Plan
Amounts be paid in one of the following forms:
(1) a single life annuity, or
(2) a joint and 50%, 75% or 100% survivor annuity.
Any annuity option permitted shall be provided
through the purchase of a non-transferable single
premium contract from an insurance company which
must conform to the terms of the Plan and which
shall be distributed to the Participant or
Beneficiary in complete satisfaction of the benefit
due.
Notwithstanding the above, with regard to Participant who is
an Employee at the time he or she elects payment of his or
her vested Account balance by reason of his or her
Disability, his or her vested Account balance shall be paid
in the form of a single lump sum.
Distributions other than annuity contracts shall be made in
cash, except to the extent a distribution consists of a loan
call as described in Section 9. 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.
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35
<PAGE> 42
11.4 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 shall 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 within each Account used for funding a
distribution, amounts shall first be taken from the Sweep
Account and then taken by Investment Fund 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.
The distribution shall 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.
11.5 Deemed Distribution
For purposes of Section 8.4, if at the time a Participant's
employment with all Related Companies has terminated, the
Participant's vested Account balance attributable to Accounts
subject to vesting as described in Section 8, is zero, his or
her vested Account balance shall be deemed distributed as of
the Settlement Date following the Sweep Date on which the
Administrator has reported to the Trustee that the
Participant's employment with all Related Companies has
terminated.
11.6 Latest Commencement Permitted
In addition to any other Plan requirements and unless a
Participant elects otherwise, his or her benefit payments
shall 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. A
Participant's failure to elect in such manner as prescribed
by the Administrator to have his or her vested Account
balance paid to him or her, shall be deemed an election by
the Participant to defer his or her distribution.
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, and 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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36
<PAGE> 43
If benefit payments cannot begin at the time required because
the location of the Participant cannot be ascertained (after
a reasonable search), the Administrator may, at any time
thereafter, treat such person's Account as forfeited subject
to the provisions of Section 18.5.
11.7 Payment Within Life Expectancy
The Participant's payment election must be consistent with
the requirement 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, if such Beneficiary is his or her spouse, may 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
With regard to a Participant's benefit attributable to his or
her participation in the Plan while a RRG Employee or a
Viking Employee, payment to a Beneficiary must be completed
by the end of the calendar year that contains the fifth
anniversary of the Participant's death.
With regard to a Participant's benefit attributable to
Predecessor Plan Amounts or his or her participation in the
Plan while a Coles Employee, payment to a Beneficiary must
either: (1) be completed by the end of the calendar year that
contains the fifth anniversary of the Participant's death or
(2) begin by the end of the calendar year that contains the
first anniversary of the Participant's death and be completed
within the period of the Beneficiary's life or life
expectancy, except that:
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37
<PAGE> 44
(a) If the Participant dies after the April 1
immediately following the end of the calendar year
in which he or she attains age 70 1/2, payment to
his or her Beneficiary must be made at least as
rapidly as provided in the Participant's
distribution election;
(b) If the surviving spouse is the Beneficiary, payments
need not begin until the end of the calendar year in
which the Participant would have attained age 70 1/2
and must be completed within the spouse's life or
life expectancy; and
(c) If the Participant and the surviving spouse who is
the Beneficiary die (1) before the April 1
immediately following the end of the calendar year
in which the Participant would have attained age 70
1/2 and (2) before payments have begun to the
spouse, the spouse shall be treated as the
Participant in applying these rules.
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, (or if a
child does not survive the Participant, and that
child leaves issue, the issue shall be entitled to
that child's share, by right of representation) or
(c) Participant's estate.
11.11 QJSA and QPSA Annuity Information and Elections
The following definitions, information and election rules
shall apply to any Participant who is eligible for an annuity
option and who elects an annuity option and only with regard
to the Participant's Predecessor Plan Amounts:
(a) Annuity Starting Date. The first day of the first
period for which an amount is payable as an annuity,
or, in the case of a benefit not payable in the form
of an annuity, the first day on which all events
have occurred which entitle the Participant to such
benefit. Such date shall be a date no earlier than
the expiration of the 30-day period commencing the
day after the information described in the QJSA
Information to a Participant paragraph below is
provided to the
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38
<PAGE> 45
Participant, except that effective January 1, 1996,
"7-day period" shall be substituted for the
preceding reference to "30-day period".
(b) "QJSA". A qualified joint and survivor annuity,
meaning for a married Participant, a form of benefit
payment which is the actuarial equivalent of the
Participant's vested Account balance at the Annuity
Starting Date, payable to the Participant in monthly
payments for life and providing that, if the
Participant's spouse survives him or her, monthly
payments equal to 50% of the amount payable to the
Participant during his or her lifetime shall be paid
to the spouse for the remainder of such person's
lifetime and for a single Participant, a form of
benefit payment which is the actuarial equivalent of
the Participant's vested Account balance at the
Annuity Starting Date, payable to the Participant in
monthly payments for life.
(c) "QPSA". A qualified pre-retirement survivor annuity,
meaning that upon the death of a Participant before
the Annuity Starting Date, the vested portion of the
Participant's Account becomes payable to the
surviving spouse as a life annuity, except to the
extent of any Loan Account balance, unless Spousal
Consent has been given to a different Beneficiary or
the surviving spouse chooses a different form of
payment.
(d) QJSA Information to a Participant. No more than 90
days before the Annuity Starting Date, each
Participant shall be given a written explanation of
(1) the terms and conditions of the QJSA, (2) the
right to a period of at least 30 days after receipt
of the written explanation to make an election to
waive this form of payment and choose an optional
form of payment and the effect of this election, (3)
the right to revoke this election and the effect of
this revocation, and (4) the need for Spousal
Consent.
(e) QJSA Election. A Participant may elect, and such
election shall include Spousal Consent if married,
at any time within the 90 day period ending on the
Annuity Starting Date, to (1) waive the right to
receive the QJSA and elect an optional form of
payment, or (2) revoke or change any such election.
(f) QPSA Beneficiary Information to Participant. Upon
becoming a Participant, and with updates as needed
to insure such information is accurate and readily
available to each Participant who is between the
ages of 32 and 35, each married Participant shall be
given written information stating that (1) his or
her death benefit is payable to his or her surviving
spouse, (2) he or she may choose that the benefit be
paid to a different Beneficiary, (3) he or she has
the right to revoke or change a prior designation
and the effects of such revocation or change, and
(4) the need for Spousal Consent.
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39
<PAGE> 46
(g) QPSA Beneficiary Designation by Participant. A
married Participant may designate, with Spousal
Consent, a non-spouse Beneficiary at any time after
the Participant has been given the information in
the QPSA Beneficiary Information to Participant
paragraph above and upon the earlier of (1) the date
the Participant has terminated employment, or (2)
the beginning of the Plan Year in which the
Participant attains age 35.
(h) QPSA Information to a Surviving Spouse. Each
surviving spouse shall be given a written
explanation of (1) the terms and conditions of being
paid his or her Account balance in the form of a
single life annuity, (2) the right to make an
election to waive this form of payment and choose an
optional form of payment and the effect of this
election, and (3) the right to revoke this election
and the effect of this revocation.
(i) QPSA Election by Surviving Spouse. A surviving
spouse may elect, at any time up to the Annuity
Starting Date, to (1) waive the right to receive a
single life annuity and elect an optional form of
payment, or (2) revoke or change any such election.
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<PAGE> 47
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 shall 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 Matching Contributions
and for the Plan Year ending December 31, 1995
"Employee Voluntary Contributions" for the period
January 1, 1995 through March 31,1995 made under the
Predecessor Plan. In addition, Contributions may
include Before-Tax Contributions, 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
otherwise satisfy the requirements as prescribed
under Code section 401(m) permitting treatment as
Contributions for purposes of the ACP Test.
(g) "Deferrals" shall include Before-Tax Contributions.
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41
<PAGE> 48
(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 the Plan Year
or Lookback Year is a more than 5% Owner (within the
meaning of Code section 414(q)(3)), or (2) a 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 Plan
Sponsor 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 Deferrals, 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 a HCE if (1)
such former Employee was a HCE when he separated
from service, or (2) such former Employee was a HCE
in service at any time after attaining age 55.
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42
<PAGE> 49
The determination of who is a 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 the plans may only be
aggregated if they have the same Plan Year.
(2) If a 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 a HCE is covered by more than one cash
or deferred arrangement, or more than one
arrangement permitting employee or matching
contributions, maintained by the Related
Companies, all such plans shall be
aggregated and treated as one plan (other
than those plans that may not be
permissively aggregated) 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 Plan Sponsor 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.
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43
<PAGE> 50
(m) "NHCE" or "Non-Highly Compensated Employee". An
Employee who is not a HCE.
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:
IF THE NHCE GROUP THEN THE MAXIMUM HCE
AVERAGE PERCENTAGE IS: GROUP AVERAGE PERCENTAGE IS:
---------------------- ----------------------------
Less than 2% 2 times NHCE Group Average %
2% to 8% NHCE Group Average % plus 2%
More than 8% NA - Basic Limitation applies
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. ADP and/or ACP corrections shall be made in
accordance with the leveling method as described below.
(a) ADP Correction. The HCE with the highest Deferral
percentage shall have his or her Deferral percentage
reduced to the lesser of the extent required to meet
the ADP Test or to cause his or her Deferral
percentage to equal that of the HCE with the next
highest Deferral percentage. The process shall be
repeated until the ADP Test is met.
To the extent a HCE's Deferrals were determined to
be reduced as described in the paragraph above,
Before-Tax Contributions shall, by the end of the
next Plan Year, be refunded to the HCE in an amount
equal to the actual Deferrals minus the product of
the maximum percentage and the HCE's Compensation,
except that such amount to be refunded shall be
reduced by Before-Tax Contributions previously
refunded because they exceeded the Contribution
Dollar Limit. Excess amounts shall first be taken
from unmatched Before-Tax Contributions and then
from matched Before-Tax Contributions. Any Matching
Contributions attributable to refunded excess
Before-Tax Contributions
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44
<PAGE> 51
as described in this Section, adjusted for investment gain or loss, shall be
forfeited and used to reduce Contributions made by an Employer as soon as
administratively feasible.
(b) ACP Correction. The HCE with the highest
Contribution percentage shall have his or her
Contribution percentage reduced to the lesser of the
extent required to meet the ACP Test or to cause his
or her Contribution percentage to equal that of the
HCE with the next highest Contribution percentage.
The process shall be repeated until the ACP Test is
met.
To the extent a HCE's Contributions were determined
to be reduced as described in the paragraph above,
Matching Contributions shall, by the end of the next
Plan Year, be refunded to the HCE in an amount equal
to the actual Contributions minus the product of the
maximum percentage and the HCE's Compensation,
except that for the Plan Year ending December 31,
1995, excess amounts shall first be taken from
"Employee Voluntary Contributions" for the period
January 1, 1995 through March 31,1995 made under the
Predecessor Plan, which amounts were not matched.
(c) Investment Fund Sources. Once the amount of excess
Deferrals and/or Contributions is determined and
with regard to excess Contributions allocated by
type of Contribution, amounts shall first be taken
from the Sweep Account and then taken by Investment
Fund in direct proportion to the market value of the
Participant's interest in each Investment Fund
(which excludes his or her Loan Account balance) as
of the Trade Date on which the correction is
processed.
(d) Family Member Correction. To the extent any
reduction is necessary with respect to a 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.
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45
<PAGE> 52
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 or forfeited in accordance with Section 12.3 or
12.5 shall be adjusted for investment gain or loss. Refunds
or forfeitures shall not 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 the 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 demonstrate that the ADP
Test, the ACP Test and the 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 ADP Test, the ACP
Test and Multiple Use Test, 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: 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.
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<PAGE> 53
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) $30,000
(as adjusted for the cost of living pursuant to Code section
415(d)).
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 (or for the Plan Year ending December 31, 1995
"Employee Voluntary Contributions" for the period January 1,
1995 through March 31, 1995 made under the Predecessor Plan),
(however to the extent such Contributions were matched, the
applicable Matching Contributions shall be forfeited in
proportion to the returned matched Contributions) and the
remaining excess, if any, shall be forfeited by the
Participant and together with forfeited Matching
Contributions used to reduce Contributions made by an
Employer as soon as administratively feasible.
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47
<PAGE> 54
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 shall be enforced.
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<PAGE> 55
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(q)(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> 56
(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 from a plan maintained by a non-
related employer) to be made by or on behalf of any
Key Employee unless the Employer makes a
contribution (other than contributions made by an
Employer in accordance with a Participant's salary
deferral election or contributions made by an
Employer based upon the amount contributed by a
Participant) 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
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<PAGE> 57
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 contributions made by an
Employer in accordance with a Participant's salary
deferral election or contributions made by an
Employer based upon the amount contributed by a
Participant) made to this Plan.
14.3 Special Vesting
If the Plan becomes Top Heavy after the Effective Date, all
Employees shall thereafter be vested in all Accounts.
14.4 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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15 PLAN ADMINISTRATION
-------------------
15.1 Plan Delineates Authority and Responsibility
Plan fiduciaries include the Plan Sponsor, 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 Plan Sponsor is ERISA Plan Administrator
The Plan Sponsor 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 Plan
Sponsor, and/or the Committee.
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<PAGE> 59
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, to 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, in-service 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> 60
15.6 Delegation of Administrator Duties
The Plan Sponsor, as Administrator of the Plan, has appointed
a Committee to administer the Plan on its behalf. The Plan
Sponsor 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 Plan Sponsor shall serve at the pleasure of
the Plan Sponsor, but may resign by written notice to the
Plan Sponsor. Committee members shall serve without
compensation from the Plan for such services. Except to the
extent that the Plan Sponsor 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 Plan
Sponsor 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> 61
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 fees and expenses not paid directly by the
Employer. Plan benefits shall 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. 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;
(f) Roadway Stock; and
(g) REX Stock, subject to the limitations as set forth
in Section 16 and Appendix A.
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<PAGE> 62
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.
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.
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<PAGE> 63
(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
assets. Notwithstanding, the authority to vote
proxies and exercise shareholder rights related to
shares of Roadway Stock and REX 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 Plan Sponsor 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 Plan
Sponsor 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 Plan Sponsor 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 as well as the total investment of
Participants' and Beneficiaries' RSI Stock Match Accounts. To
the extent described in Appendix A, the Rex Stock Fund may
also be comprised of Roadway Stock.
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 and the Rex Stock Fund. Prior to such
voting or tendering of Roadway Stock, each Participant or
Beneficiary shall
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57
<PAGE> 64
receive a copy of the proxy solicitation or other
material relating to such vote or tender decision and a 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.
16.10 Participants Have Right to Vote and Tender REX 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 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 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.
16.11 Registration and Disclosure for Roadway Stock
The Administrator shall be responsible for determining the
applicability of (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.
16.12 Registration and Disclosure for REX Stock
The Administrator shall be responsible for determining the
applicability of (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> 65
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 shall 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> 66
17.4 Tax Withholding and Payment
(a) Withholding. 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 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.
(c) Administrator Approval. Approval of any Trustee
accounting shall 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.
17.6 Valuation of Certain Assets
If the Trustee determines the Trust holds any asset which is
not readily tradeable 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.
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<PAGE> 67
17.7 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.
17.8 Fees and Expenses
The Trustee's fees for its services as Trustee shall be such
as may be mutually agreed upon by the Plan Sponsor 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.
17.9 Trustee Duties and Limitations
The Trustee's duties, unless otherwise agreed to by the
Trustee, 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,
investing and reinvesting Trust assets in the Investment
Funds as directed by the Administrator, Participants or
Beneficiaries and those duties as described in this Section
17.
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.
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<PAGE> 68
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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18.4 Facility of Payment
If a Plan benefit is due to be paid to a minor or 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 as described in
Section 8.4 or to reduce Contributions made by an Employer as
soon as 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
amount contributed by the Employer or direct the Trustee to
pay the amount from the Forfeiture Account.
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> 70
(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
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 shall be forthcoming.
</TABLE>
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 Plan
Sponsor 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
Plan Sponsor 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.
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<PAGE> 71
19 AMENDMENT, MERGER, DIVESTITURES AND TERMINATION
-----------------------------------------------
19.1 Amendment
The Plan Sponsor reserves the right to amend this Plan and
Trust at any time, to any extent and in any manner it may
deem necessary or appropriate. The Plan Sponsor (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 Before-Tax or Prior Before-Tax Accounts 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
- --------------------------------------------------------------------------------
65
<PAGE> 72
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 Plan Sponsor 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 Plan Sponsor may, at any time and for any reason,
terminate the Plan in accordance with the 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 who has not yet incurred a Break in Service shall be
fully vested. If no successor plan is established or
maintained, lump sum distributions shall be made in
accordance with the terms of the Plan as in effect at the
time of the Plan's termination or as thereafter amended
provided that a post-termination amendment shall 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 Plan Sponsor 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 Plan
Sponsor 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, 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).
- --------------------------------------------------------------------------------
66
<PAGE> 73
(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 Plan Sponsor. 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 Plan
Sponsor 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 Plan Sponsor. Alternatively, the
Plan Sponsor 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 Plan Sponsor at any time upon at
least 90 days written notice (or less if agreed to by both
parties). In such event, the Plan Sponsor 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 Plan Sponsor'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 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.
(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.
- --------------------------------------------------------------------------------
67
<PAGE> 74
(c) Administrator Approval. Approval of the final
accounting shall 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.
- --------------------------------------------------------------------------------
68
<PAGE> 75
APPENDIX A - INVESTMENT FUNDS
I. Investment Funds Available
The Investment Funds offered under the Plan as of the Effective Date
include this set of daily valued funds:
CATEGORY FUNDS
-------- -----
INCOME Income Accumulation
------
BALANCED Asset Allocation
--------
EQUITY Roadway Stock
------ S&P 500 Stock
AIM, Constellation
Templeton, Foreign
COMBINATION LifePath
-----------
The Plan's Investment Funds also include a Restricted GIC Fund and a
Rex Stock Fund.
In accordance with Section 16.7, the Restricted GIC Fund was
established in July 1991 for the purpose of segregating the Mutual
Benefit GIC which was immediately prior to the date of segregation held
in the Plan's Investment Fund then named the Viking Income Accumulation
Fund for the benefit of Participants and Beneficiaries who at that time
had an investment in the Viking Income Accumulation Fund. The
Restricted GIC Fund is not otherwise designated as available for
investment by Participants or Beneficiaries. A Participant or
Beneficiary's investment in the Restricted GIC Fund shall be restricted
from transfers, loans, in-service withdrawals and distributions until
such time or times as amounts are liquid and are made available for
such purposes in accordance with procedures prescribed by the
Administrator and agreed to by the Trustee.
As a result of the January 12, 1996 spin-off from Roadway of Roadway
Express, Inc., a REX Stock Fund was established under the Plan for the
benefit of Participants and Beneficiaries for whom shares of REX Stock
were received as a result of the Participant's or Beneficiary's
holdings in the Roadway Stock Fund. A Participant or Beneficiary's then
resulting investment in the REX Stock Fund may continue to be invested
in such Fund until such time as the Participant or Beneficiary
otherwise elects to invest such portion of his or her Account or the
Administrator directs liquidation of such Fund or consolidation of such
Fund into the Roadway Stock Fund if at such later time the Fund no
longer holds shares of Rex Stock.
- --------------------------------------------------------------------------------
69
<PAGE> 76
APPENDIX A - INVESTMENT FUNDS
(continued)
No additional shares of Rex Stock may be purchased. To the extent not
otherwise necessary to be maintained in deposit or money market type
assets to handle the Fund's liquidity, earnings in the Rex Stock Fund
shall be used to purchase shares of Roadway Stock to be held in the Rex
Stock Fund. The REX Stock Fund shall be comprised of REX Stock,
sufficient deposit or money market type assets to handle the Fund's
liquidity and disbursement needs and to the extent described in the
preceding sentence, Roadway Stock. The REX Stock Fund is not otherwise
designated as available for investment by Participants or
Beneficiaries. To the extent necessary from time to time to provide for
sufficient deposit or money market type assets to handle the Fund's
liquidity and disbursement needs, shares of Rex Stock shall be
liquidated to the extent necessary and then, as necessary, shares of
Roadway Stock.
II. Default Investment Fund
The default Investment Fund as of the Effective Date is the Income
Accumulation Fund.
III. Accounts For Which Investment is Restricted
A Participant or Beneficiary may direct the investment of his or her
entire Account except for the following Contribution Accounts, which
shall be invested as of the Effective Date as follows:
RSI Stock Match Account Roadway Stock Fund
IV. 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%
- --------------------------------------------------------------------------------
70
<PAGE> 77
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
shall be assessed and billed/collected quarterly from the Participant's
Account.
5) Periodic Installment Payment Fees: A $3.00 per check fee shall be
assessed and billed/collected quarterly from the Participant's Account.
6) 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 shall be assessed monthly and
billed/collected from Accounts quarterly.
- --------------------------------------------------------------------------------
71
<PAGE> 78
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%. Effective January 1, 1996, the
interest rate charged on Participant loans shall be equal to the prime rate
published in the Wall Street Journal at the time the loan is processed, plus 2%.
If multiple prime rates are published in the Wall Street Journal, the prime rate
selected shall be the rate closest to the last prime rate used for this purpose.
- --------------------------------------------------------------------------------
72
<PAGE> 1
Exhibit 4.4(g)
AMENDMENT NO. 1
TO
THE FINANCIAL SECURITY PLAN AND TRUST
Viking Freight, Inc., a California corporation, hereby adopts
this Amendment No. 1 to the Financial Security Plan and Trust (the "Plan").
Words and phrases used herein with initial capital letters which are defined in
the Plan are used herein as so defined. The terms of this amendment shall be
effective as of the dates indicated herein.
Section 1
---------
Effective as of April 1, 1995, Section 1.18 of the Plan is
hereby amended in its entirety to read as follows:
"1.18 '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;
(b) who is treated as an Employee because he or
she is a Leased Employee; or
(c) who is a nonresident alien who either (i)
receives no earned income (within the
meaning of Code section 911(d)(2)) from
sources within the United States under Code
section 861(a)(3); or (ii) receives such
earned income from such sources within the
United States but such income is exempt from
United States income tax under an applicable
income tax convention."
Section 2
---------
Effective as of April 1, 1995, Section 1.29 of the Plan is
hereby amended in its entirety to read as follows:
"1.29 'Leased Employee'. Any person who, pursuant to an agreement
between a Related Company and any other person ("leasing
organization"), has performed services for a Related Company
on a substantially full-time basis for a period of at least
one year, and such services are of a type historically
performed by employees in the business field of the Related
Company. Contributions or benefits provided to a leased
employee by the leasing organization that are attributable to
services performed for a Related
<PAGE> 2
2
Company will be treated as provided by the Related Company. A
leased employee will not be considered an Employee of a
Related Company, however, if (a) leased employees do not
constitute more than 20% of the Related Company's nonhighly
compensated work force (within the meaning of Code section
414(n)(5)(C)(ii) and (b) such leased employee is covered by a
money purchase pension plan maintained by the leasing
organization that provides (i) a nonintegrated employer
contribution rate of at least 10% of compensation, including
amounts contributed pursuant to a salary reduction agreement
which are excludable from the leased employee's gross income
under Code sections 125, 402(e)(3), 402(h), or 403(b), (ii)
immediate participation, and (iii) full and immediate
vesting."
Section 3
---------
Effective as of October 15, 1996, Section 1.58 of the Plan is
hereby amended in its entirety to read as follows:
"1.58 'Trustee'. Barclays Global Investors, National Association."
Section 4
---------
Effective as of April 1, 1995, Section 11.2 of the Plan is
hereby amended in its entirety to read as follows:
"11.2 [Reserved]."
Section 5
---------
Effective as of April 1, 1995, the first two paragraphs of
Section 11.3(b) of the Plan are hereby amended in their entirety to read as
follows:
"(b) Benefit Attributable to Predecessor Plan Amounts or
Participation in the Plan While a Coles Employee:
With regard to a Participant's benefit attributable
to Predecessor Plan Amounts or his or her
participation in the Plan while a Coles Employee, a
Participant may, with Spousal Consent, elect to have
such benefit be paid in (1) a single lump sum or (2)
periodic installments over a period not to exceed the
life expectancy of the Participant and his or her
Beneficiary.
To preserve benefits protected by Code section
411(d)(6), a Participant whose Account includes
Predecessor Plan Amounts may, with Spousal Consent,
elect to have his or her benefit attributable to such
Predecessor Plan Amounts be paid in one of the
following forms:
<PAGE> 3
3
(1) a single life annuity, or
(2) a joint and 50%, 75% or 100% survivor annuity.
Any annuity option permitted shall be provided
through the purchase of a non-transferable single
premium contract from an insurance company which must
conform to the terms of the Plan and which shall be
distributed to the Participant or Beneficiary in
complete satisfaction of the benefit due."
Section 6
---------
Effective as of April 1, 1995, Section 14.2(b) of the Plan is
hereby amended in its entirety to read as follows:
"(b) Overriding Minimum Benefit. Notwithstanding, contributions
shall be permitted on behalf of Key Employees if the Employer
also maintains a defined benefit plan that automatically
provides a benefit which satisfies the Code section 416(c)(1)
minimum benefit requirements, as modified by substituting '3
percent' for '2 percent' and by increasing (but not by more
than 10 percentage points) 20 percent by 1 percentage point
for each year for which such plan was taken into account, 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 contributions made by an Employer in accordance
with a Participant's salary deferral election or contributions
made by an Employer based upon the amount contributed by a
Participant) made to this Plan."
Section 7
---------
Effective as of April 1, 1995, Section 14.3 of the Plan is
hereby amended in its entirety to read as follows:
"14.3 Special Vesting
If the Plan becomes Top Heavy after the Effective
Date, all Employees shall thereafter be fully vested
in all Accounts."
<PAGE> 4
4
EXECUTED this 22nd day of Feb, 1997, to be effective as
indicated herein.
VIKING FREIGHT, INC.
By: /s/ R.G. Marticke
------------------------------
Title: President
The provisions of this amendment that relate to the Trustee
are hereby approved and executed, to be effective as indicated herein.
BARCLAYS GLOBAL INVESTORS,
NATIONAL ASSOCIATION
Date: 3/28 , 1997 By: /s/ Dolores Upton
-------------------- -----------------------------
Title: Principal
Date: 3/28 , 1997 By: /s/ Peter H. Sorensen
-------------------- -----------------------------
Title: Managing Director
<PAGE> 1
Exhibit 4.4(h)
AMENDMENT NO. 2
TO THE
FINANCIAL SECURITY PLAN AND TRUST
THIS AMENDMENT NO. 2 to the Financial Security Plan and Trust
(the "Plan") is made and executed this 30th day of December, 1996 by Viking
Freight, Inc. (hereinafter referred to as the "Company"). Unless otherwise
provided, this Amendment No. 2 shall be effective as of October 1, 1996.
1. Notwithstanding anything in the Plan to the contrary, any
provision within the Plan which requires action by means of written
authorization, written notification or written application shall be deemed
satisfied if such action is taken in accordance with procedures established by
the Plan Administrator.
2. A new Subsection (j) is hereby added to Section 1.1 of the
Plan to read as follows:
(j) 'After-Tax Contribution Account'. An account created
to hold After-Tax Contributions.
3. A new Subsection (g) is hereby added to Section 1.11 of the
Plan to read as follows:
(g) 'After-Tax Contribution'. An amount contributed by an
eligible Participant on an after-tax basis pursuant
to Section 3.7.
<PAGE> 2
4. The first two paragraphs of Section 1.37 of the Plan are
hereby amended in their entirety to read as follows:
'Pay' means the sum of salary paid in the calendar
year to an Eligible Employee by the Employer while a
Participant plus cash incentive compensation and overtime pay
paid to that Eligible Employee, but excluding (a) expense
allowances and other special payments not paid as regular
compensation, (b) payments pursuant to a tax equalization,
relocation or cost of living program, an expatriate program or
any similar programs or arrangements and (c) any part of the
Employer's contributions under this Plan and/or any pension,
welfare, stock bonus, stock ownership or other qualified or
nonqualified plan. Notwithstanding the foregoing, Pay shall
include any salary that would have been paid to such Eligible
Employee had he not signed a salary deferral agreement that
satisfies the requirements of Code Sections 401(k), 125 or
129. Pay is limited to $150,000 (as adjusted for the cost of
living pursuant to Code Sections 401(a)(17) and 415(d)) per
Plan Year.
5. The second sentence of Section 2.1 of the Plan is hereby
amended by deleting the phrase "on the first day of the next month" and
inserting the phrase "as soon as practicable" in its place.
6. The second sentence of Section 3.1 of the Plan is hereby
amended by inserting the phrase "or half percentage" immediately following the
phrase "whole percentage."
7. The first sentence of Section 3.4 of the Plan is hereby
amended by inserting the phrase "and After-Tax Contribution" immediately
following the phrase "Before-Tax Contribution."
2
<PAGE> 3
8. The third sentence of Section 3.4 of the Plan is hereby
amended in its entirety to read as follows:
A Participant's Before-Tax Contributions and/or After-Tax
Contributions pursuant to Section 3.7 (if any), with respect
to any pay period, must each be a minimum of 1% of Pay and may
not, in the aggregate, exceed 15% of Pay.
9. A new Section 3.7 is hereby added to the Plan immediately
following Section 3.6 to read as follows:
3.7 After-Tax Contribution Election
Upon becoming a Participant, an Eligible Employee may
elect to make After-Tax Contributions to the Plan in
an amount up to 5% (in whole or half percentages) of
his or her Pay. The election shall be made as a whole
or half percentage of Pay in such manner and with
such advance notice as prescribed by the
Administrator. A Participant's After-Tax Contribution
Election may be changed, revoked and/or resumed in
the same manner as Before-Tax Contributions.
10. Section 9.3 of the Plan is hereby amended in its entirety
to read as follows:
A Participant is not required to obtain Spousal Consent in
order to take out a loan under the Plan.
11. Subsection 9.5(b) of the Plan is hereby amended by
deleting the listed hierarchy of Accounts and inserting the following in its
place:
Before-Tax Account
RSI Stock Match Account
Viking/RRG Match Account
Coles Match Account
Profit Sharing Account
Prior Profit Sharing Account
Prior Before-Tax Account
3
<PAGE> 4
Rollover Account
After-Tax Account
Prior After-Tax Account
12. Section 10.3 of the Plan is hereby amended in its entirety
to read as follows:
A Participant is not required to obtain Spousal Consent in
order to make an in-service withdrawal under the Plan.
13. The second sentence of Section 10.5 of the Plan is hereby
amended in its entirety to read as follows:
In-service withdrawals shall be in the form of a cash payment
or, if elected by the Participant, the portion of his
withdrawal invested in the common stock of Caliber System,
Inc. may be received in-kind.
14. A new Section 10.10 is hereby added to the Plan
immediately following Section 10.09 to read as follows:
10.10 Rollover Account Withdrawals
A Participant who is an Employee may make a
Rollover Account withdrawal at any time. There is no
minimum amount for such a withdrawal nor is there any
restriction on the number of such withdrawals
permitted to a Participant. A Rollover Account
withdrawal shall not affect a Participant's ability
to make or be eligible to receive further
Contributions.
15. A new Section 10.11 is added to the Plan to read as
follows:
10.11 Disability Withdrawals
A Participant whom the Committee has determined to
have a Disability may withdraw from his fully vested Accounts
at any time and from time to time all or a portion of his
Account, as provided and in the order as set forth below,
except that the Participant may instead choose to
4
<PAGE> 5
have amounts taken from his After-Tax Account and Prior
After-Tax Account first:
(a) Rollover Account;
(b) Before-Tax Account;
(c) RSI Stock Matching Account;
(d) Viking/RRG Match Account;
(e) Coles Match Account;
(f) Profit Sharing Account;
(g) Prior Profit Sharing Account;
(h) Prior Before-Tax Account;
(i) After-Tax Account;
(j) Prior After-Tax Account.
A withdrawal pursuant to this Section shall not affect a
Participant's ability to make or be eligible for further
Contributions.
16. Section 11.2 of the Plan is hereby amended in its entirety
to read as follows:
A Participant is not required to obtain Spousal Consent in
order to receive a distribution under the Plan, except for
distributions in the form of an annuity pursuant to Section
11.3(b) of the Plan.
17. Subsection 11.3(a) of the Plan is hereby amended in its
entirety to read as follows:
(a) A Participant's Account may be paid in any of
the following forms:
(1) a single lump sum payment;
(2) a portion paid in a lump sum payment, and
the remainder paid later;
(3) installments over a period not to exceed the
life expectancy of the Participant and his
or her Beneficiary.
Distributions will normally be made in cash, except to the
extent a distribution consists of a loan call as described in
Section 9. However, a Participant who receives a distribution
pursuant to Subsection (a)(1) above or, on or after
approximately February 1, 1997, pursuant to
5
<PAGE> 6
Subsection (a)(2) above, may elect to receive such
distribution in the form of whole shares of common stock of
Caliber System, Inc. and cash in lieu of fractional shares to
the extent the distribution consists of amounts invested in
such stock.
18. The last two paragraphs of Section 11.3 of the Plan are
hereby deleted in their entirety.
19. The second paragraph of Section 11.6 of the Plan is hereby
amended by inserting the phrase "To the extent required under Code Section
401(a)(9)," at the beginning thereof.
20. A new Subsection 19.5(g) is added to the Plan immediately
following Subsection 19.5(f) to read as follows:
(g) This Plan and any amendment thereto may be executed
in any number of counterparts, each of which shall be
deemed to be an original, and the counterparts shall
constitute one and the same instrument, which shall
be sufficiently evidenced by any one thereof.
21. Section I of Appendix A to the Plan is hereby amended by
adding "Bond Index" as a Fund under the Income category and by adding "Vanguard
Primecap" and "Mutual Beacon" as Funds under the Equity category.
22. Section IV of Appendix A to the Plan is hereby amended in
its entirety to read "[Reserved]."
23. The first sentence of Appendix C to the Plan is hereby
deleted in its entirety. The second sentence of Appendix C is hereby amended by
deleting the phrase "January 1, 1996" and inserting the phrase "October 1, 1996"
and deleting the phrase "plus 2%" and inserting the phrase "plus 1%".
6
<PAGE> 7
IN WITNESS WHEREOF, the Company has caused this Amendment No.
2 to be executed by its duly appointed officers.
In the presence of: VIKING FREIGHT, INC.
/s/ Beth P. Ewing By: /s/ Donald C. Brown
- ---------------------------- -------------------------------
Title:
The provisions of this Amendment No. 2 that relate to the
Trustee are hereby approved and executed, to be effective as indicated herein.
BARCLAYS GLOBAL INVESTORS,
NATIONAL ASSOCIATION
Date: 12/27 , 1996 By: /s/ Dolores Upton
--------------------- -- --------------------------------
Title: Principal
Date: 12/27 , 1996 By: Peter H. Sorensen
--------------------- -- --------------------------------
Title: Man. Dir.
<PAGE> 1
Exhibit 4.4(i)
CENTRAL FREIGHT LINES
EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN
--------------------------------------------
(PS & RP)
AS AMENDED AND RESTATED
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I PURPOSES .......................................................................................1
ARTICLE II DEFINITIONS, PARTICIPATION BY OTHER EMPLOYERS...................................................1
2.01 Defined Terms .........................................................................1
2.02 Service................................................................................7
2.03 Date of Employment; Date of Reemployment...............................................8
2.04 Year of Service .......................................................................8
2.05 Credited Service ......................................................................8
2.06 Hour of Service .......................................................................9
2.07 Break-in-Service .....................................................................12
ARTICLE III PARTICIPATION..................................................................................12
3.01 Participation in the Plan.............................................................12
3.02 Ineligibility to Become or Continue as a Participant..................................13
3.03 Continuance as a Participant..........................................................14
ARTICLE IV CONTRIBUTIONS .................................................................................14
4.01 Employer's Contributions..............................................................14
4.02 Participant Contributions.............................................................15
4.03 Participants Not Employed by Central..................................................18
4.04 Funding Policy; Other Matters.........................................................18
ARTICLE V ACCOUNTS AND ALLOCATIONS.......................................................................19
5.01 Trust Accounts........................................................................19
5.02 Allocations to Accounts...............................................................19
5.03 Transfer Contribution Accounts........................................................20
5.04 Limitations Required by Section 415 of the Code.......................................22
5.05 Limitations Required by Code Section 401(m)...........................................24
5.06 Adjustment for Excessive Contribution Percentage......................................25
5.07 Valuation of Trust Fund...............................................................26
5.08 Investment of Trust Fund..............................................................26
ARTICLE VI ACCOUNTING.....................................................................................26
6.01 Records Reflecting the Interest of Each Participant...................................26
6.02 Statement to Participants.............................................................26
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE VII VESTING AND DISTRIBUTION..............................................................26
7.01 Vesting of Total Account at Normal Retirement Age,
Disability or Death..........................................................26
7.02 Vesting Prior to Normal Retirement Age, Disability or Death...........................27
7.03 In-Service Withdrawals or Distributions...............................................27
7.04 Method and Time of Distribution.......................................................27
7.05 Forfeitures...........................................................................29
7.06 Rehiring..............................................................................30
7.07 Hardship Distributions................................................................30
7.08 Distributions Under Qualified Domestic Relations Order................................32
7.09 Limitations on Benefits...............................................................32
ARTICLE VIII ADMINISTRATION........................................................................32
8.01 Appointment of Plan Administrator.....................................................32
8.02 Administrative Personnel of Plan Administrator........................................32
8.03 Duties and Authority of the Plan Administrator........................................32
8.04 Claims Procedure and Other Rules and Regulations
of the Plan Administrator....................................................33
8.05 Plan Administrator's Duties...........................................................33
8.06 Duties and Authority of Administrative Personnel..................................... 33
8.07 Named Fiduciaries and Allocation of Responsibility....................................33
8.08 Action by Fiduciaries.................................................................34
8.09 Employment of Advisors................................................................34
8.10 Bond..................................................................................35
8.11 Indemnity.............................................................................35
8.12 Applicable Law........................................................................35
8.13 Qualified Domestic Relations Orders...................................................35
ARTICLE IX MISCELLANEOUS PROVISIONS RESPECTING PARTICIPANTS
9.01 Participants to Furnish Required Information..........................................35
9.02 Beneficiaries.........................................................................36
9.03 Contingent Beneficiaries..............................................................37
9.04 Participants' Rights in Trust Fund....................................................37
9.05 Restrictions on Assignment............................................................37
9.06 Benefits Payable to Incompetents......................................................38
9.07 Conditions of Employment Not Affected by Plan.........................................38
9.08 Address for Mailing of Benefits.......................................................38
9.09 Unclaimed Account Procedure...........................................................39
ARTICLE X TRUST FUND AND THE TRUSTEE............................................................39
10.01 The Trust Fund and Its Purpose........................................................39
10.02 Trustee's Duties Governed by Trust Instrument.........................................39
10.03 Benefits Supported Only by the Trust..................................................39
10.04 Trust Fund Applicable Only to Payment of Benefits.....................................39
10.05 Withholding for and Payment of Taxes..................................................40
</TABLE>
ii
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<TABLE>
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<S> <C> <C>
ARTICLE XI MISCELLANEOUS PROVISIONS RESPECTING THE PLAN..........................................40
11.01 Employer's Contribution Irrevocable...................................................40
11.02 Absence of Responsibility.............................................................41
11.03 Amendment of the Plan.................................................................41
11.04 Expenses of Administration............................................................42
11.05 Notice to Employees...................................................................42
11.06 Agreement of Participants.............................................................42
11.07 Action by Employer....................................................................42
11.08 Merger of Plans.......................................................................42
ARTICLE XII TERMINATION OF PLAN...................................................................43
12.01 Termination of Plan...................................................................43
12.02 Distribution on Termination...........................................................43
12.03 Continuance of Plan by Successor......................................................43
12.04 Discontinuance of Contributions.......................................................43
12.05 Partial Termination...................................................................44
ARTICLE XIII TOP-HEAVY PROVISIONS..................................................................44
13.01 Definitions...........................................................................44
13.02 Application of Top-Heavy Rules........................................................46
13.03 Minimum Allocation Requirement........................................................46
13.04 Effect on Allocation Limitations......................................................46
13.05 Effect of Vesting.....................................................................47
</TABLE>
iii
<PAGE> 5
CENTRAL FREIGHT LINES
EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN
--------------------------------------------
CENTRAL FREIGHT LINES INC., a Texas corporation, with its principal
offices located in Waco, McLennan County, Texas, pursuant to the authority
reserved in Section 11.03 of the Central Freight Lines Employees Profit Sharing
and Retirement Plan, hereby amends and restates the Central Freight Lines
Employees Profit Sharing and Retirement Plan (the "Plan"). This amendment and
restatement as to Article III (Participation) is effective January 1, 1994. As
to all other provisions of the Plan, this amendment and restatement is effective
January 1, 1995. The purpose for the amendment and restatement is to allow the
Plan to continue to qualify as a tax qualified profit sharing plan under Section
401(a) and Section 501(a) of the Code.
Contemporaneously herewith CENTRAL FREIGHT LINES INC. has amended and
restated the Central Freight Lines Employees Profit Sharing and Retirement Trust
continuing a trust fund (hereinafter at times referred to as the "Fund"), to
which contributions shall be made and from which benefits shall be paid in
accordance with the terms and conditions thereof.
The purpose and terms and conditions of this Plan as amended and
restated are as follows:
ARTICLE I
PURPOSES
--------
The purpose of this Plan is to reward Employees of CENTRAL FREIGHT
LINES INC. for their loyal and faithful service and to provide Employees with an
opportunity to share in the profits of Central Freight Lines Inc. The benefits
provided by this Plan will continue to be paid from the Trust Fund established
by CENTRAL FREIGHT LINES INC. and will be in addition to any benefits Employees
are entitled to receive under any other announced programs of Central.
This Plan and the separate Trust forming a part hereof are established
and shall be maintained for the exclusive benefit of the eligible Employees and
former Employees of Central and their Beneficiaries. No part of the Trust Fund
shall ever revert to Central, or be used for or diverted to purposes other than
the exclusive benefit of Employees and former Employees of Central and their
Beneficiaries, except as provided in Sections 5.03(a)(ii), 10.05 and 11.01
hereof.
ARTICLE II
DEFINITIONS, PARTICIPATION BY OTHER EMPLOYERS
---------------------------------------------
2.01 Defined Terms. As used herein, unless the context clearly
manifests a different intent, the expressions listed below shall have the
meanings indicated:
(a) "ACCOUNT" or "ACCOUNTS" means any one or all of the
accounts maintained by the Trustee reflecting a Participant's share (or
the undistributed share of a former Participant, Beneficiary or
Alternate Payee) in the Trust Fund. See also Section 5.02(a) hereof.
<PAGE> 6
(b) "ALTERNATE PAYEE" means a spouse, former spouse, child or
other dependent of a Participant to whom benefits are payable under the
Plan pursuant to the terms of a Qualified Domestic Relations Order.
(c) "BENEFICIARY" or "BENEFICIARIES" means the person or
fiduciary to whom a deceased Participant's Capital Accumulation is
payable, as provided in Section 9.02 hereof.
(d) "BOARD" or "BOARD OF DIRECTORS" means the Board of
Directors of Central Freight Lines Inc., as from time to time
constituted.
(e) "CAPITAL ACCUMULATION" means a Participant's vested
interest in the Trust Fund, if any, pursuant to Section 7.01 or 7.02
hereof.
(f) "CENTRAL" means CENTRAL FREIGHT LINES INC., a Texas
corporation, or any successor by merger or consolidation.
(g) "CODE" means the Internal Revenue Code of 1986, as it may
be amended or replaced from time to time.
(h) "COMPENSATION" or "SALARY" with respect to any Participant
means such Participant's wages as defined in Code Section 3401(a) and
all other payments of compensation by Central for a Plan Year for which
Central is required to furnish the Participant a written statement
under Code Sections 6041(d), 6051(a)(3) and 6052. Compensation must be
determined without regard to any rules under Code Section 3401(a) that
limit the remuneration included in wages based on the nature or
location of the employment or the services performed.
For purposes of this Section, the determination of
Compensation shall be made by:
(a) including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which
are not includible in the gross income of the Participant
under Code Sections 125, 402(e)(3), 402(h), 403(b) or 457, and
Employee contributions described in Code Section 414(h)(2)
that are treated as Employer contributions.
For a Participant's initial year of participation,
Compensation shall be recognized as of such Employee's effective date
of participation pursuant to Section 3.01.
Compensation in excess of $200,000 shall be
disregarded. Such amount shall be adjusted at the same time and in such
manner as permitted under Code Section 415(d), except that the dollar
increase in effect on January 1 of any calendar year shall
be effective for the Plan Year beginning with or within such calendar
year and the first adjustment to the $200,000 limitation shall be
effective on January 1, 1990. For any short Plan Year the Compensation
limit shall be an amount equal to the Compensation limit for the
calendar year in which the Plan Year begins multiplied by the ratio
obtained by dividing the number of full
2
<PAGE> 7
months in the short Plan Year by twelve (12). In applying this
limitation, the family group of a Highly Compensated Participant who is
subject to the Family Member aggregation rules of Code Section
414(q)(6) because such Participant is either a "five percent owner" of
Central or one of the ten (10) Highly Compensated Employees paid the
greatest "415 Compensation" during the year, shall be treated as a
single Participant, except that for this purpose Family Members shall
include only the affected Participant's spouse and any lineal
descendants who have not attained age nineteen (19) before the close of
the year. If, as a result of the application of such rules the adjusted
$200,000 limitation is exceeded, then the limitation shall be prorated
among the affected Family Members in proportion to each such Family
Member's Compensation prior to the application of this limitation, or
the limitation shall be adjusted in accordance with any other method
permitted by the Code.
In addition to other applicable limitations set forth
in the Plan, and notwithstanding any other provision to the contrary,
for Plan Years beginning on or after January 1, 1994, the annual
Compensation of each Employee taken into account under the Plan shall
not exceed the OBRA '93 annual compensation limit. The OBRA '93 annual
compensation limit is $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with Code Section
401(a)(17)(B). The cost of living adjustment in effect for a calendar
year applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning in such
calendar year. If a determination period consists of fewer than 12
months, the OBRA '93 annual compensation limit will be multiplied by a
fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994,
any reference in this Plan to the limitation under Code Section
401(a)(17) shall mean the OBRA '93 annual compensation limit set forth
in this provision.
If Compensation for any prior determination period is
taken into account in determining an Employee's benefits accruing in
the current Plan Year, the Compensation for that prior determination
period is subject to the OBRA '93 annual compensation limit in effect
for that prior determination period. For this purpose, for
determination periods beginning before the first day of the first Plan
Year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
If, as a result of such rules, the maximum "annual
addition" limit of Section 5.04(a) would be exceeded for one or more of
the Affected Family Members, the prorated Compensation of all affected
Family Members shall be adjusted to avoid or reduce any excess. The
prorated Compensation of any affected Family Member whose allocation
would exceed the limit shall be adjusted downward to the level needed
to provide an allocation equal to such limit. The prorated Compensation
of affected Family Members not affected by such limit shall then be
adjusted upward on a pro rata basis not to exceed each such affected
Family Member's Compensation as determined prior to application of the
Family Member rule. The resulting allocation shall not exceed such
individual's maximum "annual addition" limit. If, after these
adjustments, an "excess amount" still results, such "excess amount"
shall be disposed of in the manner described in Section 5.04(a) pro
rata among all affected Family Members.
3
<PAGE> 8
(i) "CONTROLLED GROUP MEMBER" means a corporation or other
entity which is a member of a controlled group of corporations, a group
of trades or businesses under common control, or an affiliated service
group (as defined in Sections 414(b), (c) and (m) of the Code),
respectively, and which includes Central.
(j) "DISABILITY" means a physical or mental condition of a
Participant that renders such Participant permanently incapable of
performing the duties to which he is assigned. A Participant will be
considered permanently disabled if, in the opinion of the Plan
Administrator, such Participant is likely to remain so disabled
continuously and permanently. The Plan Administrator, before
determining that a Participant is disabled, may require proof in such
form as it shall decide, including, in all cases where practicable, the
certificate of a duly licensed physician that the Participant has
become disabled as provided therein.
(k) "EMPLOYEE" means any full or part-time employee of
Central.
(l) "EMPLOYER" means Central and any successor which shall
maintain this Plan.
(m) "EMPLOYER CONTRIBUTION ACCOUNT" means the portion of a
Participant's Account consisting of Employer Contributions, net income
attributable to Employer Contributions and Forfeitures allocated to
that Participant, as provided in Subsection 5.02(a) hereof.
(n) "EMPLOYER CONTRIBUTIONS" means amounts contributed to the
Trust Fund by the Employer pursuant to Section 4.01 hereof.
(o) "ENTRY DATE" means each January 1 and July 1 of each Plan
Year.
(p) "ERISA" means the Employee Retirement Income Security Act
of 1974, as it may be amended or replaced from time to time.
(q) "FORFEITURES" means former Participants' Accounts that are
forfeited pursuant to Section 7.05 hereof.
(r) "INCOME OF THE TRUST FUND" means the net gain or loss of
the Trust Fund, as reflected by interest, dividends and realized gains
and losses on securities and on other investment transactions, and by
expenses paid from the Trust Fund.
(s) "LEASED EMPLOYEES" means any person who is not an Employee
of Central and who provides services to Central if:
(i) such services are provided pursuant to an
agreement between Central and the leasing organization;
(ii) such person has performed such services for
Central on a substantially full-time basis for a period of at
least one (1) year; and
(iii) such services are of a type historically
performed, in the business field in which Central conducts
business, by employees.
4
<PAGE> 9
(t) "NORMAL RETIREMENT AGE" means a Participant's attainment
of age sixty (60).
(u) "PARTICIPANT" means an Employee who meets the
prerequisites of Article III hereof and thereby becomes a Participant
hereunder.
(v) "PARTICIPANT CONTRIBUTIONS" means amounts contributed to
the Trust Fund by a Participant, in cash, pursuant to Section 4.02
hereof.
(w) "PLAN" means the Central Freight Lines Employees Profit
Sharing and Retirement Plan.
(x) "PLAN YEAR" means a period of twelve (12) consecutive
calendar months commencing on January 1 and ending on December 31. See
also Section 5.04(c)(3) hereof.
(y) "QUALIFIED DOMESTIC RELATIONS ORDER" means an order which
(i) relates to the provision of child support, alimony payments, or
marital property rights to a spouse, child or other dependent of a
Participant, (ii) is made pursuant to a state domestic relations law
(including a community property law), and (iii) creates or recognizes
the existence of an Alternate Payee's right, or assigns to an Alternate
Payee the right, to receive all or a portion of the benefits payable
with respect to a Participant under the Plan, and (iv) is determined to
meet all applicable requirements pursuant to the procedure established
by the Plan Administrator for determining whether an order is a
qualified domestic relations order within the meaning of Code Section
414(p); and also includes a domestic relations order treated as a
qualified domestic relations order pursuant to the Retirement Equity
Act of 1984.
(z) "REGULATION" or "REGULATIONS" means the Income Tax
Regulations as promulgated by the Secretary of the Treasury, or his
delegate, and as amended from time to time.
(aa) "REQUIRED BEGINNING DATE" means April 1 of the calendar
year following the calendar year in which the Participant attains
70-1/2 years of age.
(bb) "RETIREMENT" means a Participant's separation from
Service at or after Normal Retirement Age.
(cc) "SEVERANCE DATE" means termination of a Participant's
Service prior to Normal Retirement Age for reasons other than
Retirement, Disability or death.
(dd) "TRUST" means the Trust established and created under the
Trust Agreement.
(ee) "TRUST AGREEMENT" or "TRUST INSTRUMENT" means the
agreement provided for by Section 10.01 hereof, provided that if such
agreement be amended or supplemented, such term, as at a particular
date, shall mean such agreement, as amended and supplemented and in
force on such date.
5
<PAGE> 10
(ff) "TRUST FUND" or "FUND" means, as of a particular date,
all assets of whatsoever kind or nature from time to time held by the
Trustee under the provisions of the Trust Instrument. Also see Section
10.01 hereof.
(gg) "TRUSTEE" means the trustee or trustees, acting as such
at the time in question under the Trust Agreement, and its or their
successors.
(hh) "VALUATION DATE" means each date on which the Fund is
valued pursuant to Section 5.07 hereof. See also Subsection 13.01(i)
hereof.
(ii) Whenever a noun, or pronoun in lieu thereof, is used in
this Plan in plural form and there be only one person within the scope
of the word so used, or in singular form and there be more than one
person within the scope of the word so used, such word, or pronoun used
in lieu thereof, shall have a singular or plural meaning, as the case
may be. Likewise, pronouns of one gender shall include the other
gender. The words "herein", "hereof" and "hereunder" shall refer to
this Plan.
(jj) The terms listed below have the meanings stated in the
Sections and Subsections respectively specified:
<TABLE>
<CAPTION>
<S> <C>
"Actual Deferral Percentage" Subsection 4.02(b)(4)(b)(1)
"Annual Addition" Subsection 5.04(c)(1)
"Annual Benefit" Subsection 5.04(c)(2)
"Break-in-Service" Section 2.07
"Contribution Percentage" Section 5.05(b)
"Credited Service" Section 2.05
"Date of Employment" Section 2.03
"Date of Reemployment" Section 2.03
"Determination Date" Subsection 13.01(a)
"Family Member" Subsection 4.02(b)(4)(b)(4)
"Highly Compensated Participant" Subsection 4.02(b)(2)(b)(2)
"Hour of Service" Section 2.06
"Key Employee" Subsection 13.01(b)
"Leave of Absence" Subsection 2.02(b)
"Matching Portion" Subsection 5.02(b)(iii)(a)
</TABLE>
6
<PAGE> 11
<TABLE>
<CAPTION>
<S> <C>
"Maximum Permissible Defined
Contribution Amount" Subsection 5.04(c)(4)
"Named Fiduciaries" Section 8.07
"Non-Highly Compensated Participant" Subsection 4.02(b)(4)(b)(3)
"Non-Key Employee" Subsection 13.01(c)
"Permissive Aggregation Group" Subsection 13.01(g)
"Plan Administrator" Section 8.01
"Remuneration" Subsection 5.04(c)(5)
"Required Aggregation Group" Subsection 13.01(f)
"Salary Reduction Contribution" Subsection 4.02(b)
"Service" Section 2.02
"Super Top-Heavy Plan" Subsection 13.01(e)
"Top-Heavy Group" Subsection 13.01(d)
"Transfer Contributions" Subsection 5.04(c)(1))(E)
"Transfer Contribution Accounts" Subsection 5.03
"Voluntary Contributions" Subsection 4.02(a)
"Year of Service" Section 2.04
</TABLE>
2.02 SERVICE. The term "SERVICE" means employment with Central or with
a Controlled Group Member determined in accordance with the following
provisions:
(a) ABSENCES. Any absence from active employment with a
Controlled Group Member which is not a Leave of Absence, as that term
is defined in Section 2.02(b) below and which does not result from
military service required to be credited as Service under Section
2.02(c) hereof, shall be considered a termination of Service.
(b) LEAVE OF ABSENCE. Absence from active employment with the
consent of a Controlled Group Member, determined on the basis of a
uniform policy applied by the Controlled Group Member without
discrimination shall be considered a "Leave of Absence", if the
Participant returns to active employment with a Controlled Group Member
at or prior to the expiration of such Participant's leave of absence.
(c) MILITARY SERVICE. Absence from active employment with a
Controlled Group Member because of military service shall not terminate
the Service of a Participant, provided such Participant entered
military service directly from employment with a Controlled Group
Member and further provided such Participant returns to active
employment with a Controlled Group Member within sixty (60) days
following discharge, or within such other period of time during which
such Participant has any reemployment rights under any applicable law,
and further provided that at the time of such Participant's return to
active employment the period of such Participant's military service is
required to be credited as Service under any applicable law.
(d) FAILURE TO RETURN AFTER LEAVE. If the Participant does not
return to active employment with a Controlled Group Member prior to the
expiration of such Participant's Leave of Absence, as defined above,
such Participant's Service shall be considered terminated as of (1) the
date
7
<PAGE> 12
on which such Participant's leave expires, or (2) the appropriate date
established pursuant to the Controlled Group Member's policy, with
respect to permitted absences and leaves of absence, for determining
termination of employment.
(e) REEMPLOYMENT. In the event of termination of Service of
any Employee, if such Employee thereafter is reemployed by Central,
such Employee shall, for all purposes of the Plan, be deemed to be a
new Employee as of the Date of Reemployment, subject, however, to the
provisions of Section 2.07 hereof relating to a Break-In-Service,
Section 2.05 hereof relating to Credited Service, and Subsection
3.01(d) hereof relating to commencement of participation. Such
reemployment shall not affect the benefits, if any, to which the
Employee was entitled upon termination of the former employment.
(f) SERVICE WITH A PREDECESSOR OF AN EMPLOYER. The period
during which an Employee was employed by any predecessor business of a
Controlled Group Member shall be included in Year of Service, as
defined in Section 2.04 hereof, to the extent prescribed in the
regulations under Section 414 of the Code.
(g) TERMINATIONS DUE TO DECLINE IN BUSINESS. Termination from
active employment with Central due to a decline in business will not
terminate the Service of a Participant, provided such Participant
returns to active employment with Central within one (1) year of his
termination.
2.03 DATE OF EMPLOYMENT; DATE OF REEMPLOYMENT. For purposes of this
Plan, "DATE OF EMPLOYMENT" means the day on which an Employee first commences
employment with a Controlled Group Member, or with Central, as the case may be,
by performing, or being credited with, such Employee's first Hour of Service, as
defined in Section 2.06 hereof. Upon an Employee's reemployment by a Controlled
Group Member, or by Central, as the case may be, following a termination of
Service resulting in a Break-In-Service, an Employee's "DATE OF REEMPLOYMENT" is
the day on which such Employee performs or is, pursuant to such reemployment,
credited with such Employee's first Hour of Service. In the event a Participant
incurs a sufficient number of consecutive Breaks-In-Service to result in loss of
credit for prior years of Service pursuant to Sections 2.05 and 3.01(d) hereof,
"DATE OF EMPLOYMENT" shall mean "DATE OF REEMPLOYMENT".
2.04 YEAR OF SERVICE. For purposes of this Plan, "YEAR OF SERVICE"
means a twelve (12) consecutive month period commencing on the Date of
Employment or any anniversary thereof during which an Employee has not less than
one thousand (1,000) Hours of Service.
2.05 CREDITED SERVICE. For purposes of vesting under this Plan,
"CREDITED SERVICE" means the number of Years of Service measured from the
Employee's Date of Employment provided that Credited Service shall exclude any
Year of Service which precedes a Break-In-Service if:
(a) as of the first (1st) day of the Break-In-Service, the
Participant did not have any nonforfeitable interest in his Employer
Contribution Account and either (b) or (c) is applicable;
(b) as of or prior to December 31, 1984, the duration of the
consecutive Breaks-In-Service measured in years equals or exceeds the
Participant's Years of Service prior to the Break-In-Service; or
8
<PAGE> 13
(c) for all other Breaks-In-Service, the duration of the
consecutive Breaks-In-Service measured in years equals or exceeds the
greater of five (5) or the Participant's Years of Service prior to the
Breaks-In-Service.
For purposes of this Section 2.05, Years of Service prior to a Break-In-Service
shall be disregarded to the extent of Years of Service prior to a previous
Break-In-Service which did not qualify as Credited Service under the rules of
this Section 2.05.
2.06 HOUR OF SERVICE. For purposes of this Plan, "HOUR OF SERVICE"
means each hour for which such Employee is required by the provisions of
Sections 2.06(a) and 2.06(b) below to receive credit.
(a) With respect to all Employees, except as provided in
Section 2.06(b) below, and according to records of Central, credit
shall be given in accordance with the following rules:
(i) each hour for which the individual is paid, or
entitled to payment, by a Controlled Group Member for the
performance of duties during such period, including hours
which were not originally credited, but for which back pay,
irrespective of mitigation of damages, is either awarded or
agreed to by a Controlled Group Member, and
(ii) each hour for which the individual is directly
or indirectly paid or entitled to payment by a Controlled
Group Member, for reasons other than for the performance of
duties, including, but not limited to, any approved Leave of
Absence with pay, vacation, holiday, illness, terminations due
to a decline in business, and jury duty and also including
hours which were not originally credited, but for which back
pay, irrespective of mitigation of damages, is either awarded
or agreed to by the Controlled Group Member, but excluding
payments under plans maintained solely to comply with
applicable worker's compensation laws, unemployment
compensation or disability insurance laws or payments for
reimbursement of medical or medically-related expenses; hours
shall be credited under this subsection only to the extent an
Employee is paid or otherwise entitled to payment or to credit
for time either by law or pursuant to a policy of the
Controlled Group Member, and nothing herein shall entitle an
Employee to any such payment.
(iii) No more than five hundred one (501) hours need
be credited under clause (ii) above for any single continuous
period of time during which the Employee performs no duties,
whether or not such period occurs in a single computation
period, and the number of hours to be credited shall be
computed in accordance with the clauses (v) and (vi) below, as
modified by applicable Labor Department regulations.
(iv) Hours credited for back pay shall not be
credited under both clauses (i) and (ii).
(v) The number of hours to be credited under clause
(ii) shall be determined with reference to whether or not a
payment is calculated on the basis of units of time. Except as
otherwise provided below, with respect to a payment (described
in clause
9
<PAGE> 14
(ii)) made or due which is calculated on the basis of units of
time, such as hours, days, weeks or months, the number of
hours to be credited shall be the number of regularly
scheduled hours included in the units of time on the basis of
which payment is calculated. With respect to a payment made or
due which is not calculated on the basis of units of time, the
number of hours to be credited shall be equal to the amount of
the payment divided by the Employee's most recent hourly rate
of compensation before the period during which no duties are
performed. For purposes of the preceding sentence, (A) if an
Employee's compensation is determined on the basis of an
hourly rate, such hourly rate shall be the Employee's most
recent hourly rate of compensation, (B) if an Employee's
compensation is determined on the basis of a fixed rate for
specified periods of time (other than hours) such as days,
weeks or months, the Employee's hourly rate of compensation
shall be the Employee's most recent rate of compensation for a
specific period of time (other than hours) divided by the
number of hours regularly scheduled for the performance of
duties during such period of time, and (C) if an Employee's
compensation is not determined on the basis of a fixed rate
for specific periods of time, then the Employee's hourly rate
of compensation shall be the lowest hourly rate of
compensation paid to Employees in the same job classification
as that of the Employee or, if no Employees in the same job
classification have the same hourly rate, the minimum wage as
established from time to time under Section 6(A)(1) of the
Fair Labor Standards Act of 1938, as amended. Notwithstanding
the above, an Employee shall not be credited on account of a
period during which no duties are performed with a number of
hours which is greater than the number of hours regularly
scheduled for the performance of duties during such period.
For purposes of this clause (v), with respect to an Employee
without a regular work schedule, such Employee shall be deemed
to regularly work a forty (40) hour week.
(vi) Except as otherwise provided below, hours shall
be credited to the above-described computation period(s) in
which duties are performed. With respect to hours for which an
Employee is either directly or indirectly paid or entitled to
payment by a Controlled Group Member on account of a period of
time during which no duties are performed, (A) hours credited
to the Employee on account of a payment which is calculated on
the basis of units of time such as hours, days, weeks or
months shall be credited to the computation period or periods
in which the period during which no duties are performed
occurs, beginning with the first unit of time to which the
payment relates, and (B) hours credited to an Employee by
reason of a payment which is not calculated on the basis of
units of time shall be credited to the computation period in
which the period during which no duties are performed occurs,
or if the period during which no duties are performed extends
beyond one computation period, such hours shall be allocated
between not more than the first two computation periods on any
reasonable basis which is consistently applied with respect to
all Employees within the same reasonably defined job
classifications. Hours for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by a
Controlled Group Member shall be credited to the computation
period or periods to which the award or agreement for back pay
pertains, rather than to the computation period in which the
award, agreement or payment is made. For purposes of this
clause (vi), if Hours of Service are to be credited to an
Employee in connection with a period of no more than
thirty-one (31)
10
<PAGE> 15
days which extends beyond one computation period, all such
hours may be credited to the first or second computation
period, provided all Employees within the same reasonably
defined job classifications are consistently treated
similarly.
(b) With respect to salaried Employees, whose hours are not
required to be counted and recorded by the Fair Labor Standards Act of
1938, such Employees shall be credited with fifty (50) hours for each
week in which an hourly-paid Employee would be credited with an Hour of
Service under Section 2.06(a) above; provided, however, that no more
than five hundred one (501) hours need be credited on account of the
provisions of Section 2.06(a)(ii) above for any single continuous
period of time during which the Employee performs no duties, whether or
not such period of time is in a single computation period.
(c) Notwithstanding the foregoing, a Participant whose Service
continues during a period of absence due to a decline in business
pursuant to Section 2.02(g) hereof shall be credited with 40 Hours of
Service for each week during such absence for which he is not paid or
entitled to payment by Central; such Hours of Service shall be credited
upon the Employee's return to active employment by Central.
Solely for purposes of determining whether a Break-In-Service, as
defined in Section 2.07, has occurred in a computation period, an Employee who
is absent from work for maternity or paternity reasons beginning on or after
January 1, 1985, shall receive credit for the Hours of Service which would
otherwise have been credited to such Employee but for such absence, or in any
case in which such hours cannot be determined, eight (8) Hours of Service per
day of such absence. For purposes of this paragraph, an absence from work for
maternity or paternity reasons means an absence solely to the extent initially
caused (i) by reason of the pregnancy of the Employee; (ii) by reason of a birth
of a child of the Employee, (iii) by reason of the placement of a child with the
Employee in connection with the adoption of such child by such Employee, or (iv)
for purposes of caring for such child for a period beginning immediately
following such birth or placement. The Hours of Service credited under this
paragraph shall be credited either (i) only in the Plan Year in which the
absence begins if the crediting is necessary to prevent a Break-In-Service in
that period, or (ii) in all other cases, only in the following Plan Year. No
Service shall be credited under this paragraph unless the Employee furnishes the
Plan Administrator such timely information as the Plan Administrator requires in
order to establish that the absence was for a reason stated in this paragraph
and the number of days of such absence in accordance with procedures established
by the Plan Administrator. The total number of Hours of Service credited
pursuant to this paragraph for any such placement, birth or pregnancy shall not
exceed five hundred one (501) Hours of Service. Nothing herein shall be
construed to give any Employee the right to a leave of absence for maternity or
paternity reasons; Central reserves the right to establish, alter or revoke
policies regarding such leaves of absence at any time.
For purposes of determining a Year of Service or Break-In-Service, each
Employee shall be credited with Hours of Service as hereinabove provided.
2.07 BREAK-IN-SERVICE. For purposes of this Plan, "BREAK-IN-SERVICE"
means a twelve (12) month period commencing with an Employee's Date of
Employment or anniversary thereof during which the Employee has not completed
more than five hundred (500) Hours of Service. A Break-In-Service occurs as of
the last day of any such twelve (12) month period.
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ARTICLE III
PARTICIPATION
-------------
3.01 PARTICIPATION IN THE PLAN.
(a) Subject to Section 3.02 below, an Employee who was a
Participant in this Plan on January 1, 1994 will be eligible to
continue to participate in this Plan.
(b) Subject to Section 3.02 below, an Employee who has
completed one (1) Year of Service with a member of the Controlled Group
other than Central, is twenty-one (21) years of age or older and is
employed by Central, shall be eligible to become a Participant in the
Plan on his Date of Employment. In the event the Employee does not
elect to become a Participant on his Date of Employment, he will be
eligible to become a Participant on any subsequent Entry Date provided
he is still employed by Central on said Entry Date.
(c) Subject to Section 3.02 below, all other Employees will be
eligible to become Participants in this Plan on the first Entry Date
following their completion of one (1) Year of Service provided they
have attained twenty-one (21) years of age and are still in the employ
of Central on such Entry Date. If an Employee does not elect to become
a Participant on the first Entry Date following his meeting the
eligibility requirements, he will be eligible to become a Participant
on any subsequent Entry Date provided he is still employed by Central
as of said subsequent Entry Date.
(d) For purposes of this Section 3.01, should an Employee
incur a Break-In-Service, then Years of Service prior to the
Break-In-Service shall be excluded for purposes of determining when the
Employee is eligible to become a Participant hereunder only if:
(i) as of the first day of the Break-In-Service, the
Employee did not have any nonforfeitable interest in his
Employer Contribution Account, and either (ii) or (iii) hereof
is applicable;
(ii) as of or prior to December 31, 1984, the
duration of the consecutive Breaks-In-Service measured in
years equals or exceeds the Employee's Years of Service prior
to the Break-In-Service; or
(iii) for all other Breaks-In-Service, the duration
of the consecutive Breaks-In-Service measured in years equals
or exceeds the greater of five (5) or the Employee's Years of
Service prior to the Breaks-In-Service.
(e) After becoming a Participant, an Employee shall continue
to be a Participant in accordance with the provisions of Section 3.03
below. Should, however, a person cease to be a Participant pursuant to
Section 3.03 hereof, such person shall be reinstated as a Participant,
subject to Section 3.02 hereof, on the first to occur of the following:
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(i) as of the applicable time specified in Section
3.01(c) above upon completion of a Year of Service after
reemployment, if such person's Years of Service, if any, prior
to such person's Break-In-Service are not required to be taken
into account in accordance with the provisions of Section
3.01(d) above, or
(ii) as of such person's Date of Reemployment if such
person has at least one Year of Service prior to such person's
Break-In-Service that is required to be taken into account in
accordance with the provisions of Section 3.01(d) above, or
(iii) as of the date such person ceases to be
ineligible pursuant to Section 3.02 hereof, in the case of an
individual who ceases to be a Participant pursuant to
Subsection 3.03(c) hereof and does not incur a
Break-In-Service.
3.02 INELIGIBILITY TO BECOME OR CONTINUE AS A PARTICIPANT.
Notwithstanding the provisions of Section 3.01 above,
(a) any Employee who would otherwise become a Participant
shall not become a Participant if:
(i) such Employee is not a full-time or a part-time
Employee of Central;
(ii) such Employee is a "leased employee" as defined
in Code Section 414(N); or
(iii) such Employee is a member of a collective
bargaining unit if retirement benefits covering such unit were
the subject of good faith bargaining and coverage under this
Plan was not agreed to under such bargaining.
(b) any Employee who is a Participant shall cease to
be a Participant if:
(i) such Employee becomes a "leased employee" as
defined in Code Section 414(N); and
(ii) such Employee becomes a member of a collective
bargaining unit if retirement benefits covering such unit were
the subject of good faith bargaining and coverage under this
Plan was not agreed to under such bargain.
3.03 CONTINUANCE AS A PARTICIPANT. A Participant shall continue as a
Participant until whichever of the following dates first occurs:
(a) the date of such Participant's death;
(b) the date the Participant ceases to be employed by a member
of the Controlled Group.
(c) the date such Participant elects to cease participation;
or
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<PAGE> 18
(d) the date the Participant becomes ineligible to participate
in the Plan, pursuant to Section 3.02 hereof.
ARTICLE IV
CONTRIBUTIONS
-------------
4.01 EMPLOYER CONTRIBUTIONS.
(a) Central shall make a Contribution to the Trust Fund for
each taxable year, on or before the date prescribed by the Code for
filing of its federal income tax return for such taxable year
(including extensions of time for filing same). The Contribution shall
be:
(i) an amount equal to twenty-five cents ($.25) for
each one dollar ($1.00) of Salary Reduction Contributions
(limited to a maximum of five percent (5%) of a Participant's
Compensation) made by Participants; and
(ii) such additional amount as the Board may direct
by adopting an appropriate resolution and either claiming such
amount as a deduction on its federal income tax return or
designating such amount in writing to the Trustee;
provided, however, that the total Contribution shall not exceed the
maximum amount deductible from the Employer's income for such taxable
year under Section 404(a)(3)(A) of the Code, plus any carried over
credits which may have accrued under Section 404 of the Code.
(b) Central shall pay to the Trustee its contribution to the
Plan for each Plan Year within the time prescribed by law, including
extensions of time, for the filing of its federal income tax return for
the fiscal year.
Participant Contributions as set out in Section 4.02 below shall be
paid to the Trustee as of the earliest date on which such contributions can
reasonably be segregated from the Employer's general assets, but in any event
within ninety (90) days from the date on which such amounts would have otherwise
been paid to the Participant in cash. The provisions of the Department of Labor
Regulations 2510.3-102 are incorporated herein by reference.
4.02 PARTICIPANT CONTRIBUTIONS.
(a) SALARY REDUCTION CONTRIBUTIONS
(1) Each Participant employed by Central may elect,
subject to a uniform, nondiscriminatory procedure to be
established by the Plan Administrator, to enter into a written
salary reduction agreement with Central under which he may
elect to reduce his Salary, in an amount not to exceed ten
percent (10%) of his Salary, and to have Central contribute
such amount by which his Salary is reduced to the Trust Fund
on his behalf. Any amount so contributed will be treated as a
Salary Reduction Contribution and shall be fully vested at all
times and shall not be subject to forfeiture for any reason.
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<PAGE> 19
(2) The Salary Reduction Contribution made on behalf
of any Participant for any calendar year shall not exceed the
dollar limitation imposed by the Code Section 402(g) (as
adjusted annually in accordance with the method provided in
Code Section 415(d) pursuant to Regulations). In the event the
dollar limitation provided for above is exceeded, the
Committee shall direct the Trustee to distribute such excess
amount, and all income attributable thereto, to the
Participant not later than April 15th following the close of
the Participant's taxable year.
(3) Central reserves the right to amend or revoke the
salary reduction agreement with any Participant at any time if
it is determined by Central that such amendment or revocation
is necessary to ensure that the maximum contribution for any
Plan Year will not exceed the limitations as set out in
subparagraph (2) above, or to ensure that the discrimination
tests of Section 401(k) of the Code, as set forth below in
Subsection 4.01(a)(4), are met.
(4) Limitations on Salary Reduction Contributions.
(a) Maximum Annual Contribution. For each
Plan Year, the annual Salary Reduction Contribution
made by the Employee shall satisfy one of the
following tests:
(1) The "Actual Deferral Percentage"
for the Highly Compensated Participant group
shall not be more than the "Actual Deferral
Percentage" of the Non-Highly Compensated
Participant group multiplied by 1.25, or
(2) The excess of the "Actual
Deferral Percentage" for the Highly
Compensated Participant group over the
"Actual Deferral Percentage" for the
Non-Highly Compensated Participant group
shall not be more than two percentage points
and the "Actual Deferred Percentage" for the
Highly Compensated Participant group shall
not exceed the "Actual Deferred Percentage"
for the Non-Highly Compensated Participant
group multiplied by 2. The provisions of Code
Section 401(k)(3) and Regulation
1.401(k)-1(b) are incorporated herein by
reference.
(b) For purposes of this Paragraph the
following definitions shall apply:
(1) "Actual Deferral Percentage"
means, with respect to the Highly Compensated
Participant group and Non-Highly Compensated
Participant group for a Plan Year, the
average of the ratios, calculated separately
for each Participant in such group, of the
amount of Salary Reduction Contribution made
to the Plan by said Participant for such Plan
Year, to such Participant's Compensation for
such Plan Year. The actual deferral ratio for
each Participant and the "Actual Deferral
Percentage" for each group shall be
calculated to the nearest one-hundredth of
one percent. For purposes of determining the
"Actual Deferral Percentage" of a Highly
Compensated Participant, the Salary Reduction
Contribution and Compensation of such Highly
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<PAGE> 20
Compensated Participant shall include the
Salary Reduction Contributions and
Compensation of Family Members, and such
affected Family Members shall be disregarded
in determining the "Actual Deferred
Percentage" for Non-Highly Compensated
Participants group.
(2) "Highly Compensated Participant"
means any Participant or former Participant
who is a highly compensated employee as
defined in Code Section 414(q). Generally,
any Participant or former Participant is
considered a Highly Compensated Participant
if during the Plan Year or the preceding Plan
Year such Participant or former Participant:
(i) was at any time a
"five percent owner" as defined in
Section 416(i)(1)(B) of the Code;
(ii) received
Compensation from the Employer in
excess of $75,000, as adjusted
pursuant to Code Section 414(q)(1).
In determining whether an individual
has Compensations of more than
$75,000, Compensation from each
employer required to be aggregated
under Code Sections 414(b), (c) and
(m) shall be taken into account;
(iii) received
Compensation from the Employer
in excess of $50,000, as adjusted
pursuant to Code Section
414(q)(1), and was in the top-paid
group of Employees for the Plan
Year. An Employee is in the top-paid
group of Employees for any Plan Year
if such Employee is in the group
consisting of the top twenty (20%)
percent of the Employees when ranked
on the basis of Compensation paid
during the Plan Year. In determining
whether an individual has
Compensation of more than $50,000,
Compensation from each employer
required to be aggregated under Code
Section 414(b), (c) and (m) shall be
taken into account; or
(iv) was at any time an
officer of the Employer (as that
term is defined within the meaning
of Code Section 416) having annual
Compensation greater than 50% of the
amount in effect under Code Section
415(b)(1)(A) for any such Plan Year.
(3) "Non-Highly Compensated
Participant" means any Participant or former
Participant who is not a Highly Compensated
Participant.
(4) "Family Member" means an
individual described in Code Section
414(q)(6)(B).
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<PAGE> 21
(c) For purposes of this Section 4.02(a), a
Highly Compensated Participant and a Non-Highly
Compensated Participant shall include any Employee
eligible to make Salary Reduction Contributions,
whether or not such contributions are made.
(d) For purposes of this Section 4.02(a), if
two or more plans which include Salary Reduction
Contribution arrangements under Code Section 401(k)
are considered one plan for the purposes of Code
Section 401(a)(4) or 410(b), the Salary Reduction
Contribution arrangements included in such plans shall
be treated as one arrangement.
(e) For the purposes of this Section 4.02(a),
if a Highly Compensated Participant is a Participant
under two or more Salary Reduction Contribution
arrangements of Central, all such arrangements shall
be treated as one arrangement for purposes of
determining the deferred percentage with respect to
such Highly Compensated Participant.
(f) Notwithstanding the above, the
determination and treatment of Salary Reduction
Contributions and "Actual Deferred Percentage" of any
Participant shall satisfy such other requirements as
may be prescribed by the Secretary of the Treasury.
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<PAGE> 22
(5) Adjustment to Limits on Salary Reduction
Contributions.
In the event that a Participant's Salary Reduction
Contributions made pursuant to this Section 4.02(a) do not
satisfy one of the tests set forth in Section 4.02(a)(4) above,
then, notwithstanding any Plan provision to the contrary, the
Committee shall adjust either the Employer's Contributions or
the Salary Reduction Contributions pursuant to the options set
forth below:
(a) On or before the 15th day of the third
month following the end of each Plan Year, but in no
event later than the close of the following Plan Year,
each Highly Compensated Participant, beginning with
the Participant having the highest "Actual Deferral
Percentage", shall have his portion of excess Salary
Reduction Contributions (and any income allocable to
such portion) distributed to him until one of the
tests set forth in Section 4.02(a)(4) hereof is
satisfied. However, to the extent provided in
Regulations, each affected Highly Compensated
Participant may elect to treat such distribution as a
Voluntary Employee Contribution pursuant to Section
4.02(b), provided that the limitations of such Section
or of Section 5.04 hereof are not exceeded; or
(b) Within 30 days after the end of the Plan
Year, the Employer shall make a contribution on behalf
of Non-Highly Compensated Participants in an amount
sufficient to satisfy one of the tests set forth in
Section 4.02(a)(4) hereof. Such contribution shall be
deemed a Salary Reduction Contribution made by the
Non-Highly Compensated Participant and shall be
allocated to each Non-Highly Compensated Participant
in the same proportion that each Non-Highly
Compensated Participant's Salary Reduction
Contribution for the year bears to the total Salary
Reduction Contributions of all Non-Highly Compensated
Participants.
(b) VOLUNTARY CONTRIBUTIONS. In order to allow Participants
employed by Central the opportunity to increase their retirement income,
each Participant may elect to make voluntary (after tax) contributions
to the Trust Fund over and above his Salary Reduction Contributions in
an amount of up to five percent (5%) of his Compensation earned while a
Participant hereunder. A Participant's Voluntary Contributions shall be
fully vested at all times and not subject to forfeiture for any reason.
4.03 PARTICIPANTS NOT EMPLOYED BY CENTRAL. Participants in this Plan
who are not employed by Central may not make Voluntary Contributions or Salary
Reduction Contributions to this Plan, nor shall they share in Employer
Contributions.
4.04 FUNDING POLICY; OTHER MATTERS. The provisions of this Article IV
shall be deemed the procedure for establishing and carrying out the funding
policy and method of the Plan. Such funding policy and method shall be
administered by Central and other Named Fiduciaries consistent with the
objectives of the Plan and with the requirements of Title I of ERISA.
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<PAGE> 23
ARTICLE V
ACCOUNTS AND ALLOCATIONS
------------------------
5.01 TRUST ACCOUNTS. The Committee shall create and maintain adequate
records to reflect all transactions of the Trust Fund and to disclose the
interest in the Trust Fund of each Participant, former Participant, Beneficiary
or Alternate Payee who has an undistributed interest in the Fund.
(a) INDIVIDUAL ACCOUNTS. The Plan Administrator shall
establish and maintain individual Accounts for each Participant. The
Account of each Participant shall be maintained in accordance with the
Plan until its complete distribution or forfeiture.
(b) RIGHTS IN TRUST FUND. The maintenance of individual
Accounts for Participants is only for accounting purposes, and a
segregation of the assets of the Trust Fund to each Account shall not be
required. Distribution made from an Account shall be charged to the
Account as of the date paid.
5.02 ALLOCATIONS TO ACCOUNTS.
(a) PARTICIPANT ACCOUNTS. Records shall be maintained to
reflect a Participant's share of contributions, net income and
forfeitures. These records shall consist of an Employer Contribution
Account to which Employer Contributions, net income (or loss)
attributable to Employer Contributions and forfeitures allocated to that
Participant are credited, and an Employee Contribution Account to which
Voluntary Contributions, Salary Reduction Contributions and net income
(or loss) attributable thereto are credited.
(b) ALLOCATION PROCEDURES. Subject to Section 5.04 below,
Accounts shall be adjusted in accordance with the following:
(i) PARTICIPANT CONTRIBUTIONS. The Participant's
Contributions (Voluntary and Salary Reduction) will be
allocated to the Participant's Employee Contribution Account
as they are received by the Trustee.
(ii) INCOME AND LOSS OF THE TRUST FUND. The net income
(or loss) of the Trust Fund will be determined annually as of
each Valuation Date. Such net income (or loss) shall be
allocated to the appropriate Accounts in proportion to the
weighted average balance of the said Accounts as of that
Valuation Date, to the weighted average balance of all such
Accounts of the same date.
(iii) EMPLOYER CONTRIBUTIONS. As of the Valuation
Date, the Employer Contribution for that Plan Year shall be
allocated to the Employer Contribution Accounts of all
Participants (including Participants or Beneficiaries of
Participants who terminated employment with an Employer after
July 1 of that Plan Year because of death or Retirement and who
have made an election to defer distribution of their
Participant Account until the next Plan Year) in the following
manner:
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<PAGE> 24
(a) There will be allocated to the Employer
Contribution Account of each Participant the amount of
$.25 for each $1.00 of Salary Reduction Contributions
made by that Participant, during that Plan Year, up to
a maximum Salary Reduction Contribution Amount of 5%
of that Participant's Salary (the "Matching Portion").
(b) After Salary Reduction Contributions have
been matched, as set out in Paragraph (a) above, any
additional Employer Contribution shall be allocated
among the Employer Contribution Accounts of the
Participants in the following manner: The total amount
of the Employer Contribution remaining shall be
divided by the number of Participants in the Plan on
the Valuation Date for which the contribution is being
made and an equal amount shall be allocated to the
Employer Contribution Account of each Participant. In
the case of a Participant who began participating in
the Plan after July 1 of the Plan Year for which the
Employer Contribution is made, the amount to be
allocated to that Participant's Employer Contribution
Account shall be determined by multiplying the amount
determined hereunder by a fraction, the numerator of
which is the number of days of participation by that
Participant for that Plan Year and the denominator of
which is 365.
(iv) FORFEITURES. As of each Valuation Date,
Forfeitures, if any, occurring during the Plan Year (net of any
amount of Forfeitures allocated to the restoration of prior
Forfeitures pursuant to Section 7.05 hereof) shall be allocated
to the Employer Contribution Account of each Participant
(including Participants or Beneficiaries who terminated
employment with an Employer after July 1 of that Plan Year
because of death or Retirement and who elected to defer
distribution of their Participant Account until the next Plan
Year) in accordance with the ratio of the weighted average
balance of the Employer Contribution Account of a Participant
to the sum of the weighted average balance of the Employer
Contribution Accounts of all Participants for that Plan Year.
(c) Notwithstanding the provisions of Subsection 5.02(b) above,
if a Participant is not employed by Central on the Valuation Date, he
will be entitled to share in the allocation of the Income or Loss of the
Trust Fund, but will not share in Employer Contributions or Forfeitures.
(d) Notwithstanding the provisions of Subsection 5.02(b) above,
if a Participant is not employed by Central, but is employed by a
Controlled Group Member, on the Valuation Date, he will be entitled to
share in the allocation of the Matching Portion as provided in
Subparagraph 5.02(b)(iii)(a) and in the allocation of Income or Loss of
the Trust Fund, but will not share in Employer Contributions provided
for under Subparagraph 5.02(b)(iii)(b) or in Forfeitures.
5.03 Transfer Contribution Accounts. With the consent of the Plan
Administrator, amounts may be transferred to this Plan from other qualified
plans. Amounts transferred shall be set up on a separate account, herein
referred to as Transfer Contribution Account. Such Account shall be fully
20
<PAGE> 25
vested at all times and shall not be subject to forfeiture for any reason. All
Transfer Contributions shall be received and held by this Plan in accordance
with the rules set out in this Section 5.03.
(a) The trust from which such Transfer Contributions are made
must permit the transfer to be made, and the trust must not jeopardize,
the tax exempt status of this Plan or the Trust Fund.
(b) Amounts in a Participant's Transfer Contribution Account
shall be held by the Trustee pursuant to the provisions of this Plan and
may not be withdrawn by, or distributed to the Participant, in whole or
in part, except as provided in paragraphs (c) and (d) of this Section
5.03.
(c) Except as permitted by Regulations (including Regulation
1.411(d)-4), amounts attributable to elective contributions (as defined
in Regulation 1.401(k)-1(g)(3)), including amounts treated as elective
contributions, which are transferred from another qualified plan in a
plan-to-plan transfer shall be subject to the distribution limitations
provided for in Regulation 1.401(k)-1(d).
(d) Upon termination of employment due to retirement at or
after attaining Normal Retirement Age, or such other date as the
Participant or his Beneficiary shall be entitled to receive benefits in
accordance with Section 7.04 below, the fair market value of the
Participant's Transfer Contribution Account shall be used to provide
additional benefits to the Participant or his Beneficiary. Any
distributions of amounts held in a Participant's Transfer Contribution
Account shall be made in a manner which is consistent with and satisfies
the provisions of Section 7.04, including, but not limited to, all
notice and consent requirements of Code Section 411(a)(11) and the
Regulations thereunder. Furthermore, such amounts shall be considered as
a part of a Participant's benefit in determining whether an involuntary
cash-out of benefits without Participant consent, pursuant to Subsection
7.04(d) hereof, may be made.
(e) For purposes of this Section 5.03, the term "qualified
plan" shall mean any tax qualified plan under Code Section 401(a). The
term "amounts transferred from other qualified plans" shall mean: (i)
amounts transferred to this Plan directly from another qualified plan;
(ii) distributions from another qualified plan which are eligible
rollover distributions and which are either transferred by the Employee
to this Plan within sixty (60) days following his receipt thereof or are
transferred pursuant to a direct rollover; (iii) amounts transferred to
this Plan from a conduit individual retirement account provided that the
conduit individual retirement account has no assets other than assets
which (A) were previously distributed to the Employee by another
qualified plan as a lump-sum distribution, (B) were eligible for
tax-free rollover to a qualified plan and (C) were deposited in such
conduit individual retirement account within sixty (60) days of receipt
thereof and other than earnings on said assets; and (iv) amounts
distributed to the Employee from a conduit individual retirement account
meeting the requirements of clause (iii) above, and transferred by the
Employee to this Plan within sixty (60) days of his receipt thereof from
such conduit individual retirement account.
(f) Prior to accepting any transfers to which this Section 5.03
applies, the Plan Administrator may require the Employee to establish
that the amounts to be transferred to this
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<PAGE> 26
Plan meet the requirement of this Section and may also require the
Employee to provide an opinion of counsel satisfactory to the Employer
that the amounts to be transferred meet the requirements of this
Section.
(g) This Plan shall not accept any direct or indirect transfers
(as that term is defined and interpreted under Code Section 401(a)(11)
and the Regulations thereunder) from a defined benefit plan, money
purchase plan (including a target benefit plan), stock bonus or profit
sharing plan which would otherwise have provided for a life annuity form
of payment to the Participant.
(h) Notwithstanding anything herein to the contrary, a transfer
directly to this Plan from another qualified plan (or a transaction
having the effect of such a transfer) shall only be permitted if it will
not result in the elimination or reduction of any protected benefit as
defined in Section 411(d)(6) of the Code.
5.04 LIMITATIONS REQUIRED BY SECTION 415 OF THE CODE. For the purposes
of this Section, the rules of interpretation listed in Subsection 5.04(c) below
shall apply and the expressions set out therein shall have the meanings
respectively indicated.
(a) LIMIT ON ANNUAL ADDITIONS. The Accounts of a Participant
shall not be credited with an Annual Addition as of any Valuation Date
if to do so would cause the amount of Annual Addition to such
Participant's Accounts for the Plan Year to exceed the Maximum
Permissible Defined Contribution Amount. If necessary to comply with the
foregoing limitations, Annual Addition to this Plan shall be reduced.
If, as a result of a reasonable error in estimating a
Participant's Remuneration, or under facts and circumstances which the
Commissioner of Internal Revenue finds justify the availability of the
rules set forth in Subsection 5.04(a), the allocation of Annual
Additions under the terms of this Plan for a particular Participant
would cause the limitations of Section 415 of the Code applicable to
that Participant for the Plan Year to be exceeded, the excess amounts
shall not be deemed to be Annual Additions in that Plan Year if they are
treated as follows:
(i) The excess amounts shall be held unallocated in a
suspense account for the Plan Year and shall be allocated in
the next Plan Year (and succeeding Plan Years, as necessary)
among the Participants in the Plan, subject to the limitations
of Section 415 of the Code.
(ii) In the event of termination of this Plan, the
suspense account described in (i) above shall revert to the
Employer to the extent it may not then be allocated to any
Participant's Accounts.
(b) COMBINED PLAN LIMIT. For any Participant in this Plan who
is participating in or at any time participated in a defined benefit
plan of a Controlled Group Member, Annual Additions hereunder shall be
further reduced to the extent necessary to prevent the sum of the
following fractions, computed as of the close of the Plan Year, from
exceeding 1.0:
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(i) DEFINED BENEFIT PLAN FRACTION. A fraction, the
numerator of which is the projected Annual Benefit of the
Participant under all defined benefit plans of a Controlled
Group Member, and the denominator of which is the lesser of (i)
the product of 1.25 multiplied by the amount specified in Code
Section 415(b)(1)(A) for such Plan Year, or (ii) the product of
1.4 multiplied by the amount specified in Code Section
415(b)(1)(B) for such Plan Year.
(ii) DEFINED CONTRIBUTION PLAN FRACTION. A fraction,
the numerator of which is the sum of all Annual Additions under
all defined contribution plans of a Controlled Group Member for
such Plan Year and all prior Plan Years, and the denominator of
which is the lesser of the following amounts determined for
such Plan Year and for such prior Year of Service with the
Controlled Group Member: (i) the product of 1.25 multiplied by
the amount specified in or determined in accordance with the
provisions of Subsection 5.04(b)(4)(A) hereof in effect for
such Plan Year, or (ii) the product of 1.4 multiplied by the
amount determined in accordance with the provisions of
Subsection 5.04(b)(4)(B) hereof for such Plan Year.
(c) RULES OF INTERPRETATION AND SECTION 5.04 DEFINITIONS.
(1) "Annual Addition" shall include, for any Plan Year, the
sum of the Participant's:
(A) Allocable share of Employer Contributions;
(B) The full amount of a Participant's Voluntary
Contributions and Salary Reduction Contribution;
(C) Contributions described in Section 401(k) of the
Code under any other defined contribution plan maintained by a
Controlled Group Member;
(D) The full amount of a Participant's after-tax
contributions for the Plan Year under any other qualified plan
maintained by a Controlled Group Member;
(E) Forfeitures, if any, allocable to the Participant
for the Plan Year.
Annual Additions shall not include any "Transfer Contributions" (as
provided for in Section 5.03 hereof) and shall not include any
non-vested, forfeited amount restored to a Participant's Account
pursuant to Section 7.05 or Section 9.09 hereof or similar provisions of
any other defined contribution plan of a Controlled Group Member.
(2) "Annual Benefit" shall have the meaning as set out in
Section 415(b)(2) of the Code.
(3) "Plan Year" shall also be the limitation year for purposes
of Section 415(j) of the Code.
(4) "Maximum Permissible Defined Contribution Amount" shall
mean, for any Plan Year, the lesser of:
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<PAGE> 28
(A) Thirty Thousand Dollars ($30,000) or, if greater,
one quarter (1/4) of the amount set forth in Section
415(b)(1)(A) of the Code, as adjusted for cost-of-living
increases pursuant to Code Section 415(d)(1) and Section
415(d)(3), or
(B) Twenty-five percent (25%) of the Participant's
Remuneration for such Plan Year.
(5) "Remuneration" with respect to the Plan Year in question
shall mean all compensation of the Participant from Central for the Plan
Year, as defined in Code Section 415(c)(3).
(6) For purposes of applying the limitations of Code Sections
415(b), (c) and (e) applicable to a Participant for a particular Plan
Year, all qualified defined benefit plans ever maintained by a
Controlled Group Member will be treated as one defined benefit plan and
all qualified defined contribution plans ever maintained by a Controlled
Group Member will be treated as part of this Plan.
5.05 LIMITATIONS REQUIRED BY CODE SECTION 401(m).
(a) The "Contribution Percentage" for the Highly Compensated
Participant group shall not exceed the greater of:
(1) 125% of such percentage for the Non-Highly
Compensated Participant group; or
(2) the lesser of 200% of such percentage for the
Non-Highly Compensated Participant group, or such percentage
for the Non-Highly Compensated Participant group plus 2
percentage points.
(b) For the purposes of this Section and Section 5.06, the
following words shall have the following meanings: "Contribution
Percentage" for a Plan Year means, with respect to the Highly
Compensated Participant group and Non-Highly Compensated Participant
group, the average of the ratios (calculated separately for each
Participant in each group) of:
(1) The sum of all Participant Contributions plus the
Matching Portion of Employer Contributions allocated under the
provisions of Subsection 5.02(b)(iii)(a) above to the Account
of each such Participant for such Plan Year; to
(2) the Participant's Compensation for such Plan Year.
"Highly Compensated Participant" means any Participant or
former Participant who is a highly compensated employee as defined in
Code Section 414(q). Generally, any Participant or former Participant is
considered a Highly Compensated Participant if, during the Plan Year or
the preceding Plan Year, such Participant or former Participant:
(a) was at any time a "five percent owner"
within the meaning of Section 416(i) of the Code,
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<PAGE> 29
(b) received "Compensation" from an Employer
in excess of $75,000.00, as adjusted pursuant to Code Section
414(q)(1). In determining whether an individual has
Compensation of more than $75,000.00, Compensation from such
Employer required to be aggregated under Code Sections 414(b),
(c) and (m) shall be taken into account.
"Non-Highly Compensated Participant" means any Participant or
Family Member who is neither Highly Compensated nor a Family Member.
(c) For purposes of determining the "Contribution Percentage",
the Committee may elect pursuant to Regulations to take into account
Employer Contributions contributed to any plan maintained by the
Employer. In addition, the "Contribution Percentage" for a Highly
Compensated Participant shall be determined by including any
Compensation of Family Members, and such affected Family Members shall
be disregarded in determining the "Contribution Percentage" of
Non-Highly Compensated Participants. In all cases the determination and
treatment of the "Contribution Percentage" of any Participant shall
satisfy such other requirements as may be prescribed by the Secretary of
the Treasury.
(d) For purposes of this Section, if two or more plans of the
Employer to which matching contributions are made are treated as one
plan for purposes of Code Section 410(b), such plans shall be treated as
one plan for purposes of this Section 5.05. In addition, if a Highly
Compensated Participant participates in two or more plans described in
Code Section 401(a) or arrangements described in Code Section 401(k)
which are maintained by the Employer to which such contributions are
made, all such contributions shall be aggregated for purposes of this
Section 5.05.
(e) For purposes of Subsections 5.05(a) and 5.06, a Highly
Compensated Participant and Non-Highly Compensated Participant shall
include any Employee eligible to have Employer Contributions allocated
to his Employer Contribution Account for the Plan Year.
5.06 ADJUSTMENT FOR EXCESSIVE CONTRIBUTION PERCENTAGE.
(a) In the event that the "Contribution Percentage" for the
Highly Compensated Participant group exceeds the "Contribution
Percentage" for the Non-Highly Compensated Participant group pursuant to
Subsection 5.05(a), the Plan Administrator (on or before the fifteenth
day of the third month following the end of the Plan Year, but in no
event later than the close of the following Plan Year) shall direct the
Trustee to distribute to the Highly Compensated Participant group the
amount of "Excess Aggregate Contributions (and any income allocable to
such contributions). Such distribution shall be made on behalf of the
Highly Compensated Participant group in order of their "Contribution
Percentages" beginning with the highest of such percentages.
(b) For the purposes of this section "Excess Aggregate
Contributions" means, with respect to any Plan Year, the excess of:
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<PAGE> 30
(1) the aggregate amount of contributions pursuant to
Subsections 5.05(b)(1) and 5.05(c) actually made on behalf of
the Highly Compensated Participant group for such Plan Year,
over
(2) the maximum amount of such contributions permitted
under the limitations of Subsection 5.05(a).
5.07 VALUATION OF TRUST FUND. A valuation of the Trust Fund shall be
made as of the last day of each Plan Year ("Valuation Date") and as of such
other dates as may be specified by the Plan Administrator.
5.08 INVESTMENT OF TRUST FUND. Any cash received by the Trustee as
Contributions to or as Income of the Trust Fund shall be invested pursuant to
the Trust Agreement.
ARTICLE VI
ACCOUNTING
----------
6.01 RECORDS REFLECTING THE INTEREST OF EACH PARTICIPANT. The Plan
Administrator shall establish and maintain, or cause the Trustee to establish
and maintain, records reflecting the interest, if any, of each Participant,
former Participant, Beneficiary or Alternate Payee under the Plan. The interest
of each Participant shall, at each Valuation Date, be adjusted to give effect to
debits, credits, increments, losses, and other adjustments as herein provided,
so as to reflect the Participant's and each such Participant's current interest
in the Trust Fund.
6.02 STATEMENT TO PARTICIPANTS. As soon as practicable after the close
of the Plan Year, and at such other times as the Plan Administrator decides, the
Plan Administrator shall furnish to each Participant, former Participant,
Beneficiary or Alternate Payee who has an Account hereunder, a statement
showing, as at the most recent Valuation Date, the fair market value of the
Participant's Account balance.
ARTICLE VII
VESTING AND DISTRIBUTION
------------------------
7.01 VESTING OF TOTAL ACCOUNT AT NORMAL RETIREMENT AGE, DISABILITY OR
DEATH. A Participant who terminates Service due to Retirement at or after Normal
Retirement Age, or on account of Disability or death shall be entitled (or such
Participant's Beneficiary shall be entitled) to the full amount of such
Participant's Account as of the Participant's Retirement, Disability or death,
and all such amounts shall become fully vested and nonforfeitable. Such
Participant's Capital Accumulation shall be distributed in accordance with
Section 7.04 hereof.
7.02 VESTING PRIOR TO NORMAL RETIREMENT AGE, DISABILITY OR DEATH. In the
event a Participant's Service terminates for reasons other than Retirement at or
after Normal Retirement Age, Disability or death, the Participant's Capital
Accumulation shall be determined in accordance with the following provisions:
26
<PAGE> 31
(a) A Participant's Employer Contribution Account shall become
vested and nonforfeitable in accordance with the following schedule:
<TABLE>
<CAPTION>
Years of Credited Service Vested Percentage
------------------------- -----------------
<S> <C> <C>
Less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 100%
</TABLE>
(b) A Participant's Employee Contribution Account shall be
fully vested and nonforfeitable at all times.
Such Capital Accumulation shall be distributed in accordance with the
provisions of Section 7.04 hereof.
7.03 IN-SERVICE WITHDRAWALS OR DISTRIBUTIONS. No distributions or
withdrawals of benefits under the Plan shall be permitted so long as a
Participant is employed by a member of the Controlled Group except:
(a) to the extent that distribution of a Participant's Account
is required under the provisions of Subsection 7.04(c) hereof (relating
to a Participant whose Required Beginning Date occurs prior to his
termination of employment);
(b) under Subsection 12.02 hereof (relating to termination of
the Plan);
(c) under Subsection 7.07 hereof (relating to hardship
distributions); or
(d) under Subsection 7.08 hereof (relating to distributions to
an alternate payee under a Qualified Domestic Relations Order).
7.04 METHOD AND TIME OF DISTRIBUTION.
(a) Subject to the provisions of Subsections 7.04(b), (c), (d)
and (e) below, on or after a Participant's Severance Date or other
termination of Service, after all adjustments to such Participant's
Account shall have been made, such Participant's Capital Accumulation
shall be paid to or for the benefit of the Participant, or, in the case
of such Participant's death, to or for the benefit of such Participant's
Beneficiary or Beneficiaries (subject to Subsections 10.05, 12.02, and
13.05 hereof) in the applicable form and at the time set forth below.
(i) Immediate Lump Sum. The Participant's Account
shall be distributed in a single lump sum payment as soon as
practicable following the Participant's termination of Service.
In the event that a Participant or Beneficiary has elected to
receive their distribution in an Immediate Lump Sum, and
termination of Service has occurred:
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<PAGE> 32
(A) in the case of a Participant, because of
Retirement after June 30 of a Plan Year; or
(B) in the case of a Beneficiary, because of
the death of a Participant after June 30 of a Plan
Year;
the Participant or the Beneficiary shall be entitled, by giving
notice to the Plan Administrator, in writing, to defer
distribution of the Immediate Lump Sum into the next following
Plan Year. In the event such election is made, the deferred
Account shall be entitled to share in the allocation of
Employer Contributions for the Plan Year in which the
retirement or death of the Participant occurred.
(ii) DEFERRED LUMP SUM. The Participant's Account
shall be distributed in a single lump sum payment no later than
the sixtieth (60th) day after the close of the Plan Year in
which occurs the latest of:
(A) the date on which the Participant
attains Norman Retirement Age,
(B) the tenth (10th) anniversary of the year
in which the Participant commenced participation in
the Plan, or
(C) the Participant's termination of Service;
provided, however, that distribution may be delayed if the
amounts allocable to a Participant's Capital Accumulation or
the balance thereof cannot be reasonably ascertained or the
Participant (or the Participant's Beneficiary) is unavailable
to receive a distribution, in which case distribution,
retroactive to such date, will be made within sixty (60) days
after such time as the amount of the Participant's Capital
Accumulation can be reasonably ascertained or the Participant
(or the Participant's Beneficiary) becomes available.
(b) A Participant who is entitled to distribution of benefits
hereunder shall receive such Participant's entire Capital Accumulation
in the form of an Immediate Lump Sum as provided in Subsection
7.04(a)(i) above, unless the Participant elects to receive a Deferred
Lump Sum distribution as provided under Subsection 7.04(a)(ii) above.
The Beneficiary of a Participant who dies before distribution of the
Participant's Capital Accumulation has begun shall receive a
distribution of the Participant's Capital Accumulation no later than
December 31 of the calendar year containing the fifth anniversary of the
Participant's death.
(c) Notwithstanding any other provision of this Section 7.04,
if the value of a Participant's Capital Accumulation is greater than
Three Thousand Five Hundred Dollars ($3,500) as of his termination of
Service, his Capital Accumulation shall not be distributed to him
without his consent prior to the earlier to occur of his attaining
Norman Retirement Age or his death. If the value of a Participant's
Capital Accumulation is equal to or less than Three Thousand Five
Hundred Dollars ($3,500) as of his termination of Service, his Capital
Accumulation shall be distributed in the form and at the time provided
in Subsection 7.04(a)(i) hereof.
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<PAGE> 33
(d) Notwithstanding anything to the contrary contained in this
Article VII, a Participant's Capital Accumulation will be distributed to
him, in a lump sum, not later than the Required Beginning Date and the
Participant's participation in the Plan will cease. Alternatively, a
Participant may elect to have distribution of his Capital Accumulation
made over a period certain measured by his life expectancy, recomputed
annually, with the payments commencing not later than the Required
Beginning Date. In the event the Participant elects to receive his
distributions over a period certain, he may continue his participation
in the Plan. All distributions made under this Subsection 7.04(d) shall
comply with Code Section 401(a)(9) and the regulations thereunder.
(e) Notwithstanding any other provision of this Section 7.04,
the Committee may in its discretion require distribution of the entire
Account of a Participant after his Severance Date at any time after the
Participant has attained Normal Retirement Age.
(f) All distributions shall be made in cash.
7.05 FORFEITURES.
(a) If a Participant terminates Service with Central for any
reason other than because of a decline in business, and is not vested in
a portion of his Employer Contribution Account pursuant to Section 7.02
hereof, that portion of his Account in which he is not vested shall be
treated as a Forfeiture as of the last day of the Plan Year in which the
Participant terminated Service if he has not then been reemployed as of
that date. Provided, however, that any such prior Forfeiture shall be
restored to such Participant's Account, if the Participant is rehired
and repays the full amount of the distribution within the earlier of (i)
five (5) years from the Date of Reemployment, or (ii) the close of the
first period of five (5) consecutive One Year Breaks in Service.
(b) If a Participant terminates Service with Central because of
a decline in business and is not vested in a portion of his Employer
Contribution Account pursuant to Section 7.02 hereof, that portion of
his Account in which he is not vested shall be treated as a Forfeiture
as of the last day of the Plan Year in which the Participant terminated
Service if he has not then been reemployed as of that date. In the event
the Participant is rehired by Central within one (1) year of his date of
termination, any Forfeitures will be restored to his Employer
Contribution Account. If the Participant is rehired by Central later
than one (1) year after his termination because of a decline in
business, any prior Forfeiture shall be restored to such Participant's
Account only if the Participant repays the full amount of the
distribution within the earlier of (i) five (5) years from the Date of
Reemployment, or (ii) the close of the first period of five (5)
consecutive One Year Breaks in Service.
(c) Restoration of any prior Forfeiture shall be funded through
an allocation of Forfeitures occurring in the Plan Year in which the
rehiring or repayment occurs or, to the extent such Forfeitures are
inadequate, Central shall contribute sufficient funds to fund such
restoration, as shall be prescribed by the Plan Administrator. The
amount of any restored forfeiture shall be separately accounted for, and
the vesting of the restored amount shall be determined under the
following formula: the vested portion of such amount shall equal
P(AB + D) - D, where
29
<PAGE> 34
"P" is the Participant's vested percentage under this Section based on
the Years of Service then credited to the Participant; "AB" is the
balance of the separate account; and "D" is the amount of the prior
distribution.
7.06 REHIRING.
(a) If an Employee is rehired prior to incurring five (5)
consecutive Breaks-In-Service, prior Years of Service shall be counted
with respect to vesting of both (i) any prior non-vested amount restored
under Section 7.05 hereof and (ii) amounts credited to such Employee
following his reemployment.
(b) An Employee who is rehired after such Employee has five (5)
consecutive Breaks-In-Service shall have no right to restoration of his
prior Forfeiture, and such Employee's nonforfeitable rights in
contributions allocated to his Employer Contribution Account subsequent
to his reemployment shall be determined on the basis of such Employee's
Credited Service which is not disregarded under Section 2.05 hereof.
7.07 HARDSHIP DISTRIBUTIONS.
(a) The Plan Administrator, at the election of a Participant,
may direct the Trustee to distribute to any Participant in any one Plan
Year up to the lesser of 100% of his Capital Accumulation valued as of
the last Valuation Date or the amount necessary to satisfy any immediate
and heavy financial need of the Participant. Any distribution made
pursuant to this Section 7.07 shall be deemed to be made as of the first
day of the Plan Year or, if later, the Valuation Date immediately
preceding the date of distribution, and the Participant's Capital
Accumulation shall be reduced accordingly. Withdrawal under this Section
7.07 shall be authorized only if the distribution is on account of:
(1) Expenses for medical care described in Code
Section 213(d) previously incurred by the Participant, his
spouse, or any of his dependents (as defined in Code Section
152) or necessary for these persons to obtain medical care;
(2) The costs directly related to the purchase of a
principal residence for the Participant (excluding mortgage
payments);
(3) Payment of tuition and related educational fees
for the next twelve (12) months of post-secondary education for
the Participant, his spouse, children or dependents; or
(4) Payments necessary to prevent the eviction of the
Participant from his principal residence or foreclosure on the
mortgage of the Participant's principal residence.
(b) No distribution shall be made pursuant to this Section 7.07
unless the Plan Administrator, based upon the Participant's
representation and such other facts as are known to the Plan
Administrator determines that all of the following conditions are
satisfied:
30
<PAGE> 35
(1) The distribution is not in excess of the amount of
the immediate and heavy financial need of the Participant. The
amount of the immediate and heavy financial need may include
any amounts necessary to pay any federal, state or local income
taxes or penalties reasonably anticipated to result from the
distribution;
(2) The Participant has obtained all distributions,
other than hardship distributions, and all nontaxable (at the
time of the loan) loans currently available under all plans
maintained by all members of the Controlled Group;
(3) The Plan provides that the Participant's Salary
Reduction Contributions and Voluntary Employee Contributions
will be suspended for at least twelve (12) months after receipt
of the hardship distribution or, the Participant, pursuant to a
legally enforceable agreement, will suspend his Salary
Reduction Contributions and Voluntary Employee Contributions to
the Plan and all other plans maintained by the Employer for at
least twelve (12) months after receipt of the hardship
distribution; and
(4) The Plan, and all other plans maintained by the
Employer, provide that the Participant may not make Salary
Reduction Contributions for the Participant's taxable year
immediately following the taxable year of the hardship
distribution in excess of the applicable limit under Code
Section 402(g) for such next taxable year less the amount of
such Participant's Salary Reduction Contributions for the
taxable year of the hardship distribution.
(c) Notwithstanding the above, distributions from the
Participant's Capital Accumulation pursuant to this Section 7.07 shall
be limited to the Participant's total Voluntary Contributions and Salary
Reduction Contributions as of the date of distribution, reduced by the
amount of any previous distributions pursuant to this Section.
(d) Any distribution made pursuant to this Section shall be in
a lump sum and will satisfy all notice and consent requirements of Code
Section 411(a)(11) and the Regulations thereunder.
7.08 DISTRIBUTIONS UNDER QUALIFIED DOMESTIC RELATIONS ORDER. All rights
and benefits, including elections, provided to a Participant in this Plan shall
be subject to the rights afforded to any "alternate payee" under a "qualified
domestic relations order." Furthermore, a distribution to an "alternate payee"
shall be permitted if such distribution is authorized by a "qualified domestic
relations order", even if the affected Participant has not terminated Employment
and has not reached the "earliest retirement age" under the Plan. For the
purposes of this Section, "alternate payee", "qualified domestic relations
order" and "earliest retirement age" shall have the meaning set forth under Code
Section 414(p).
7.09 LIMITATIONS ON BENEFITS. All of the provisions of this Article VII
are subject to Section 10.05 hereof, relating to the Trustee's authority to
withhold for payment of taxes, and are subject to the rights of any Alternate
Payee.
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<PAGE> 36
ARTICLE VIII
ADMINISTRATION
--------------
8.01 APPOINTMENT OF PLAN ADMINISTRATOR. Central shall be the Plan
Administrator of the Plan. The Plan Administrator shall perform the day-to-day
administration of the Plan.
8.02 ADMINISTRATIVE PERSONNEL OF THE PLAN ADMINISTRATOR. The Plan
Administrator may employ such agents and such professional, clerical and other
administrative personnel as may reasonably be required for the purpose of
assisting in the administering of the Plan. Such administrative personnel may
operate in individual or in committee form and shall carry out the duties and
responsibilities assigned by the Plan Administrator. Expenses necessarily
incurred for such purposes shall be paid as provided in Section 11.04 hereof.
8.03 DUTIES AND AUTHORITY OF THE PLAN ADMINISTRATOR. The Plan
Administrator is authorized to take such actions as may be necessary to carry
out the provisions and purposes of the Plan and shall have the authority to
control and manage the operation and administration of the Plan. In order to
effectuate the purposes of the Plan, the Plan Administrator shall have the
power to construe and interpret the Plan, to supply any omissions therein, to
reconcile and correct any errors or inconsistencies, to decide any questions in
the administration and application of the Plan, and to make equitable
adjustments for any mistakes or errors made in the administration of the Plan;
and all such actions or determinations made by the Plan Administrator, and the
application of rules and regulations to a particular case or issue by the Plan
Administrator, in good faith, shall not be subject to review by anyone, but
shall be final, binding and conclusive on all persons interested hereunder. In
construing the Plan and in exercising its power under provisions requiring
approval, the Plan Administrator shall attempt to ascertain the purpose of the
provisions in question and when such purpose is known or reasonably
ascertainable, such purpose shall be given effect to the extent feasible.
Likewise, the Plan Administrator is authorized to determine all questions with
respect to the individual rights of all Participants, former Participants, and
their Beneficiaries under this Plan, including, but not limited to, all issues
with respect to eligibility, Compensation, Service, valuation of Accounts,
allocation of Employer Contributions and Trust earnings, and Retirement or
other termination of Service, hardship distributions and shall direct the
Trustee concerning the allocation, payment and distribution of all funds held
in trust for purposes of the Plan. The Plan Administrator, in the exercise of
any discretionary powers hereunder, shall not exercise that discretion so as to
discriminate in favor of Employees who are officers, shareholders, or highly
compensated Employees.
8.04 CLAIMS PROCEDURE AND OTHER RULES AND REGULATIONS OF THE PLAN
ADMINISTRATOR. The Plan Administrator shall have authority to make, and from
time to time revise, rules and regulations for the administration of the Plan,
including the authority to establish, maintain and communicate to the Employees,
a reasonable claims procedure, in accordance with law. Such claims procedure
shall provide the manner in which written claims for benefits shall be made,
written notice of disposition of a claim shall be made, and written application
for appeal of the denial of a claim shall be made. Failure of a Participant to
file a claim will not result in a forfeiture of any interest in the
Participant's Account.
8.05 PLAN ADMINISTRATOR'S DUTIES. The Plan Administrator shall exercise
such authority and responsibility as it deems appropriate to comply with the
provisions of federal law and governmental regulations issued thereunder
including, but not limited to, keeping records of Participants' Service,
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<PAGE> 37
accrued benefits and the percentage of such benefits which are nonforfeitable
under the Plan, notification to Participants, annual registration with the
Internal Revenue Service and annual reports to the Department of Labor. The Plan
Administrator shall be the designated agent for service of legal process.
8.06 DUTIES AND AUTHORITY OF ADMINISTRATIVE PERSONNEL. Administrative
personnel appointed pursuant to Section 8.03 hereof, shall be responsible for
such matters as the Plan Administator shall delegate to them by written
instrument, including, but not limited to communication to Employees at the
direction of the Plan Administator, reports to the Plan Administator involving
questions of eligibility and the amount of Compensation of Participants and
former Participants, assisting Participants and Beneficiaries in the completion
of forms prescribed by the Plan Administator, and maintenance of records
concerning former Participants and Beneficiaries. No administrative personnel
may make any decision as to Plan policy, interpretations, practices or
procedures unless the authority to make such decision has been delegated to them
in writing by the Plan Administator and they accept their fiduciary
responsibilities in accordance with the provisions of Section 8.09 hereof. All
administrative personnel shall, except as provided in the next preceding
sentence, perform their allocated function within the policies, interpretations,
rules, practices and procedures established by the Plan Administator.
8.07 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY. ERISA requires
that certain persons, who are deemed to be "fiduciaries" as defined in Section
3(21)(A) of ERISA, be designated as "Named Fiduciaries" in the Plan. Central and
the Trustee are hereby designated Named Fiduciaries. Each Named Fiduciary shall
have only the powers, duties and responsibilities specifically allocated to such
fiduciary pursuant to the terms of this Plan. Each Named Fiduciary may, by
written instrument, allocate some or all of such Named Fiduciary's
responsibilities to another fiduciary or designate another person to carry out
some or all of such Named Fiduciary's fiduciary responsibilities. Each fiduciary
to whom responsibilities are allocated by a Named Fiduciary will be furnished a
copy of the Plan and their acceptance of such responsibility will be made by
agreeing in writing to act in the capacity designated. No Named Fiduciary shall
be liable for an act or omission of any person (who is allocated a fiduciary
responsibility) except to the extent that the Named Fiduciary did not act in
accordance with the standard contained in Subsection 8.08(b) hereof with respect
to the allocation or designation, continuation thereof, or implementation or
establishment of the allocation or designation procedures. Any person or group
of persons may serve in more than one fiduciary capacity with respect to the
Plan.
8.08 ACTION BY FIDUCIARIES.
(a) Any action herein permitted or required to be taken by
Central shall be by resolution of its board of directors or by written
instrument signed by a person, group of persons or committee authorized
by resolution of such board of directors as having authority to take
such action. Any action herein permitted or required to be taken by the
Plan Administator shall be in like manner.
(b) Each fiduciary with respect to the Plan shall perform all
of such fiduciary's duties and responsibilities and exercise such
fiduciary's powers hereunder with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent man
acting in like capacity and familiar with such matters would use in the
conduct of an enterprise of like character and with like aims, and no
fiduciary shall be liable for any act or failure to act on such
fiduciary's part which conforms to that standard, unless such fiduciary
knowingly participates in or knowingly
33
<PAGE> 38
undertakes to conceal an act or omission of another fiduciary of the
Plan, with the knowledge that such act or omission is a breach of
fiduciary responsibility, or knowing of a breach of fiduciary
responsibility, such fiduciary fails to make reasonable efforts under
the circumstances to remedy the breach, or by failing to carry out such
fiduciary's specific responsibilities, in accordance with such standard,
such fiduciary has enabled another fiduciary of the Plan to commit a
breach.
(c) Each fiduciary shall furnish or cause to be furnished to
each other fiduciary all information needed for the proper performance
of such fiduciary's duties. Each fiduciary warrants that any directions
given, information furnished or action taken by such fiduciary shall be
in accordance with the provisions of the Plan or the Trust Instrument,
as the case may be, authorizing or providing for such direction,
information or action.
8.09 EMPLOYMENT OF ADVISORS. A named Fiduciary may appoint such
accountants, counsel, and actuaries and other advisors as such Named Fiduciary
deems necessary or desirable in connection with the administration of the Plan.
A Named Fiduciary shall be entitled to rely, in accordance with the standard
contained in Section 8.08(b) hereof, upon, and shall not be liable for any act
or failure to act on such Named Fiduciary's part in such reliance or in
reliance, in accordance with such standard, on any opinion or reports, which
shall be furnished to such Named Fiduciary by any such accountant with respect
to accounting matters, counsel with respect to legal matters, or actuary with
respect to actuarial matters.
8.10 BOND. The Plan Administrator shall see that the appropriate
fiduciaries are bonded as required by federal law or regulation. Except as
required by the Board or by state or federal statute, irrespective of this
provision, no bond or other security shall be required of any fiduciary.
8.11 INDEMNITY. Central shall indemnify each member of the Board, and
the Plan Administator and each individual or entity who is allocated fiduciary
responsibility hereunder against any and all claims, loss, damages, expenses,
including counsel fees to the extent approved by the Board (which approval shall
not be unreasonably withheld), or otherwise provided by law, and liability,
including any amounts paid in settlement, with the approval of such Board,
arising from any action or failure to act, except when the same is judicially
determined to be due to the fraud, recklessness, or willful or intentional
misconduct of such member.
8.12 APPLICABLE LAW. The execution, construction, administration and
enforcement of the Plan, the Trust Instrument and the Trust Fund shall be
governed by the laws of the State of Texas, to the extent not preempted by
federal law.
8.13 QUALIFIED DOMESTIC RELATIONS ORDERS. The Plan Administator shall
establish a written procedure for determining whether a domestic relations order
is a Qualified Domestic Relations Order and shall see that Qualified Domestic
Relations Orders pertaining to this Plan are complied with.
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ARTICLE IX
MISCELLANEOUS PROVISIONS RESPECTING PARTICIPANTS
------------------------------------------------
9.01 PARTICIPANTS TO FURNISH REQUIRED INFORMATION.
(a) Each Participant shall furnish to the Plan Administator
such information as the Plan Administator considers necessary or
desirable for purposes of the day-to-day operations of the Plan, and
the provisions of the Plan respecting any payments hereunder are
conditional upon the Participant's furnishing promptly such true, full
and complete information as the Plan Administator may reasonably
request.
(b) Each Participant shall submit proof of such Participant's
age and marital status to the Plan Administator at such time as
required by the Plan Administator. The Plan Administator shall, if such
proof of age and marital status are not submitted as required, use as
conclusive evidence thereof, such information as is deemed by it to be
reliable, regardless of the source of such information. Any adjustment
required by reason of lack of proof or the misstatement of the age of
persons entitled to benefits hereunder, by the Participant or
otherwise, shall be in such manner as the Plan Administator deems
equitable.
(c) Any notice or information which according to the terms of
the Plan or the rules of the Plan Administator must be filed with
Central, shall be deemed so filed if addressed and either delivered in
person or mailed, postage fully prepaid, to the
Plan Administator. If mailed, any such notice or information shall be
addressed as follows:
CENTRAL FREIGHT LINES INC.
P. O. Box 2638
Waco, Texas 76702-2638
ATTN: Central Freight Lines Employee Plans Committee
Whenever a provision herein requires that a Participant (or the
Participant's Beneficiary) give notice to the Plan Administator within
a specified number of days or by a certain date, and the last day of
such period, or such date, falls on a Saturday, Sunday or corporate
holiday, the Participant (or the Participant's Beneficiary) will be
deemed in compliance with such provision if notice is delivered in
person to the Plan Administator or is mailed, properly addressed,
postage prepaid, and postmarked on or before the business day next
following such Saturday, Sunday or corporate holiday. The Plan
Administator may, in its sole discretion, modify or waive any specified
requirement notice; provided, however, that such modification or waiver
must be administratively feasible, must be in the best interest of the
Participant, and must be made on the basis of rules of the Plan
Administator which are applied uniformly to all Participants.
9.02 BENEFICIARIES.
(a) Subject to the provisions of Subsection 9.02(b) hereof,
each Participant may, on a form provided for that purpose, signed and
filed with the Plan Administator at any time prior to complete
distribution of such Participant's Capital Accumulation, designate a
Beneficiary or Beneficiaries, including such Participant's estate, to
receive the benefit, if any, which may be payable, in event of such
Participant's death, pursuant to any of the provisions of the Plan, and
each such designation may be revoked by such Participant by signing and
filing with the Plan Administator a new designation of beneficiary form
prior to such complete distribution. Subject to Subsection 9.02(b)
hereof, if a deceased Participant failed to name a Beneficiary in the
manner above prescribed, or subject to Section 9.03, if the Beneficiary
or Beneficiaries named by a deceased Participant predeceases the
Participant, the amount payable with respect
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to such Participant pursuant to Section 7.01 hereof, if any, may,
subject to the adjustment otherwise provided hereunder, be paid, in the
discretion of the Plan Administator, to (i) the Participant's spouse, or
if none, (ii) all or any one or more of the persons comprising the group
consisting of the Participant's lineal descendants, the Participant's
ancestors, or the Participant's heirs at law, and the Plan Administator
may pay the entire amount to any member of such group or apportion such
amount among any two or more of them in such shares as the Plan
Administator, in its sole discretion, shall determine, or (iii) the
estate of such deceased Participant. Any payment made to any person
pursuant to the power and discretion conferred upon the Plan
Administator by the preceding sentence shall operate as a complete
discharge of all obligations under the Plan in respect of such deceased
Participant and shall not be subject to review by anyone, but shall be
final, binding and conclusive on all persons ever interested hereunder.
(b) The provisions of this Subsection 9.02(b) shall apply to
all married Participants. The amount payable with respect to a
Participant pursuant to Section 7.01 hereof, if any, on account of the
Participant's death shall be paid to the Participant's surviving
spouse, unless the surviving spouse has irrevocably consented to the
designation of a Beneficiary other than the spouse (and to any change
in the designation of Beneficiary involving a Beneficiary other than
the spouse, unless the spouse's consent expressly permits the
Participant to change the designation of Beneficiary without further
consent of the spouse) in a writing which acknowledges the effect of
the consent and which is witnessed by a notary public. If such spousal
consent is obtained or if such spousal consent may not be obtained
because the spouse cannot be located, or if such spouse does not
survive the Participant, then the provisions of Subsection 9.02(a) and
Section 9.03 hereof shall apply.
9.03 CONTINGENT BENEFICIARIES. In the event of the death, prior to the
complete payment of the amount payable with respect to a Participant pursuant to
Section 7.02 hereof, of a Beneficiary who survives the Participant, the balance
of such amount shall be payable to the contingent Beneficiary designated by the
Participant to receive such balance, or if no person was so named, then to a
person designated by the Beneficiary of the deceased Participant to receive such
balance; provided, however, that if no person so designated be living upon the
occurrence of such contingency, then such balance shall be payable, in the
discretion of the Plan Administator, to either (i) all or any one or more of the
persons comprising the group consisting of the Participant's lineal descendants,
the Participant's ancestors or the Participant's heirs at law, or (ii) the
estate of the Participant. Any payment made to any person pursuant to the power
and discretion conferred upon the Plan Administator by the preceding sentence
shall operate as a complete discharge of all obligations under the Plan in
respect to such deceased Beneficiary and shall not be subject to review by
anyone, but shall be final, binding and conclusive on all persons ever
interested hereunder.
9.04 PARTICIPANTS' RIGHTS IN TRUST FUND. No Participant or other person
shall have any right, title or interest in, to or under the Trust Fund, or any
part of the assets thereof, except and to the extent expressly provided in the
Plan.
9.05 RESTRICTIONS ON ASSIGNMENT. The benefits provided hereunder are
intended for the personal security of persons entitled to payment under the
Plan, and are not subject in any manner to the debts or obligations of the
persons to whom they are payable. The interest of a Participant or such
Participant's Beneficiary or Beneficiaries may not be sold, transferred,
assigned or encumbered
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in any manner, either voluntarily or involuntarily, and any attempt so to
anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the
same shall be null and void; neither shall the Trust Fund nor any benefits
thereunder or hereunder be liable for or subject to the debts, contracts,
liabilities, engagements or torts of any person to whom such benefits or funds
are payable, nor shall they be subject to garnishment, attachment or other legal
or equitable process nor shall they be an asset in bankruptcy. All of the
provisions of this Section 9.05, however, are subject to Sections 9.06 and 10.05
hereof. This Section 9.05 shall not apply to the extent benefits are
transferable or assignable pursuant to a Qualified Domestic Relations Order.
9.06 BENEFITS PAYABLE TO INCOMPETENTS. Whenever and so often as any
person entitled to payments hereunder shall be under a legal disability, or in
the sole judgment of the Plan Administator shall otherwise be unable to apply
such payments in furtherance of such person's own interests and advantage, the
Plan Administator, in the exercise of its discretion, may direct all or any
portion of such payments to be made in any one or more of the following ways:
(i) directly to such person; (ii) to the guardian of his or her person or of
such person's estate, even though appointed by a court other than a Texas court;
(iii) to such person's spouse or to any other person, to be expended for such
person's benefit; (iv) to a custodian under any applicable Uniform Gifts to
Minors Act; or (v) by the Plan Administator itself, receiving and expending, or
directing the expenditure of the same for the benefit of such incompetent
person. If the Plan Administator wishes to direct payments to a custodian under
any applicable Uniform Gifts to Minors Act, it may as a precondition to the
commencement of such payments require an opinion of counsel for the ward or
other person seeking the custodial distribution that such distribution is
authorized under said Uniform Gifts to Minors Act. The decision of the Plan
Administator will, in each case, be final, binding and conclusive upon all
persons ever interested hereunder, and except in the case of clause (v) above,
the Plan Administator shall not be obliged to see to the proper application or
expenditure of any payments so made. Any payment made pursuant to the power
herein conferred upon the Plan Administator shall operate as a complete
discharge of the obligations of the Trustee and of the Plan Administator, to the
extent of amounts so paid.
9.07 CONDITIONS OF EMPLOYMENT NOT AFFECTED BY PLAN. Neither the Plan
nor the Trust nor the Trust Instrument shall ever confer on any Employee,
including any Participant, any right to be retained in the Service of Central,
and nothing herein or in the Trust Instrument contained shall ever be construed
as in any way limiting or restricting the right of Central to discharge any
Employee, regardless of whether such Employee be a Participant, or from time to
time to change such Employee's position or the basis or amount of such
Employee's compensation.
9.08 ADDRESS FOR MAILING OF BENEFITS.
(a) Each Participant and other person entitled to benefits
hereunder shall file with the Plan Administator from time to time in
writing such Participant's post office address and each change of
address. Any check representing payment hereunder and any communication
addressed to a Participant, an Employee, a former Employee or
Beneficiary, at such person's last address filed with the Plan
Administator, or if no such address has been filed, then at such
person's last address as indicated on the records of the Employer,
shall be deemed to have been delivered to such person on the date on
which such check or communication is deposited, postage prepaid, in the
United States mail.
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(b) If the Plan Administator, for any reason, is in doubt as
to whether payments are being received by the person entitled thereto,
it shall, by certified mail, return receipt requested, addressed to the
person concerned, at his address last known to the Plan Administator,
notify such person that all unmailed and future payments shall be
henceforth withheld until he provides the Plan Administator with
evidence of his continued life and his proper mailing address.
9.09 UNCLAIMED ACCOUNT PROCEDURE. Neither the Trustee nor the Plan
Administator shall be obliged to search for, or ascertain the whereabouts of any
Participant or Beneficiary. The Plan Administator shall notify the Participant
or Beneficiary that such Participant or Beneficiary is entitled to a
distribution under this Plan. Such notice shall be in writing, at such
Participant's or Beneficiary's last known address, and shall quote the
provisions of this Subsection. Any distribution or payment which is not claimed
by the person entitled thereto within a period of three (3) full years after
such person is entitled thereto, or such shorter period as may be necessary to
prevent escheat under state escheat laws, shall be forfeited. Such forfeited
amounts shall be added to Forfeitures and reallocated as herein provided. Should
such person make a claim for such forfeited benefit which is approved by the
Plan Administator, such benefit shall be reinstated by Central immediately
contributing to the Plan an amount equal to the amount previously forfeited (but
without interest on such amount for the period from the date of such Forfeiture
to the date of such contribution). Such special contribution shall be specially
allocated for the benefit of such Participant or Beneficiary. Immediately upon
receipt of such contribution and allocation to such Participant or Beneficiary,
the Plan Administator shall instruct the Trustee to distribute in a lump sum,
directly to such Participant or Beneficiary, the amount of such contribution
specially allocated to such Participant or Beneficiary.
ARTICLE X
TRUST FUND AND THE TRUSTEE
--------------------------
10.01 THE TRUST FUND AND ITS PURPOSE. A Trust Fund known as the Central
Freight Lines Employees Profit Sharing and Retirement Trust has been created and
will be maintained for the purposes of the Plan and the moneys thereof will be
invested in accordance with the terms of the Trust Instrument which forms a part
of the Plan. All Contributions will be paid into the Trust Fund, and all
benefits under the Plan will be paid from the Trust Fund.
10.02 TRUSTEE'S DUTIES GOVERNED BY TRUST INSTRUMENT. The Trustee's
obligations, duties and responsibilities are governed solely by the terms of the
Trust Instrument, reference to which is hereby made for all purposes.
10.03 BENEFITS SUPPORTED ONLY BY THE TRUST. Any person having any claim
under the Plan will look solely to the assets of the Trust Fund for
satisfaction. In no event will any Employer or any of its officers, Employees,
agents, members of its board of directors, the Trustee, any successor trustee,
or any member of the Plan Administator, be liable in their individual capacities
to any person whomsoever, under the provisions of the Plan or Trust or of the
Trust Instrument, absent a breach of fiduciary responsibility as set out in
Section 8.10 hereof.
10.04 TRUST FUND APPLICABLE ONLY TO PAYMENT OF BENEFITS. The Trust Fund
will be used and applied only in accordance with the provisions of the Plan to
provide the benefits thereof, except as
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provided in Subsection 5.04(a)(ii), Section 11.01 and Section 11.04 (regarding
payment of administrative expenses), and no part of the corpus or income of the
Trust Fund will be used for, or diverted to, purposes other than for the
exclusive benefit of Participants and other persons thereunder entitled to
benefits.
10.05 WITHHOLDING FOR AND PAYMENT OF TAXES. If any assets of the Trust
Fund, or any benefits payable under the Plan by the Trustee, shall become liable
for the payment of any estate, inheritance, income, or other tax, charge or
assessment, which in the Trustee's or the Plan Administrator's opinion, the
Trustee shall or may be required to pay, the Trustee shall have full power and
authority to pay or withhold such tax, charge or assessment out of any moneys or
other property in Trustee's hands for the account of the person whose interests
hereunder are liable for such tax, but, except as provided below with respect to
withholding required under Section 3405 of the Code, with respect to such
payments, at least ten (10) days prior to making any such payment, the Trustee
shall notify the Plan Administator of Trustee's intention to make such payment
and, with respect to such withholding, the Trustee shall notify the Plan
Administator of the amount withheld within ten (10) days of payment of benefits
under the Plan. The Trustee also, prior to making any payment to any Beneficiary
hereunder, may require such releases or other documents from any lawful taxing
authority and may require such indemnity from such Beneficiary as Trustee shall
deem necessary for Trustee's protection. The Trust shall provide any notices
required by Code Section 3405 with respect to federal income tax withholding
from distributions hereunder, and shall withhold and pay any federal income tax
required under Code Section 3405, upon receipt of proper instructions from the
Plan Administator.
ARTICLE XI
MISCELLANEOUS PROVISIONS RESPECTING THE PLAN
--------------------------------------------
11.01 EMPLOYER'S CONTRIBUTION IRREVOCABLE. Central shall have no right,
title or interest in the Trust Fund or in any part thereof, and no Contribution
made thereto shall ever revert to Central except as provided in Subsection
5.04(a)(ii) and as provided herein. The adoption of this Amendment and
Restatement and the continuance of the Plan are contingent upon and subject to
obtaining a determination by the Internal Revenue Service that the Plan
continues to qualify under the provisions of Section 401(a) of the Code, and
that this Trust entered into, and made a part thereof, will continue to be
exempt from tax under the provisions of Section 501(a) of the Code, so as to
establish the deductibility for income tax purposes under Section 404(a) of the
Code, of the contributions made by Central. Central will promptly make every
reasonable effort to cause the Plan to receive such determination; but should it
fail to secure such determination, it is agreed and understood that Central may
recover contributions, or any investment into which they have been converted,
plus any gain and minus any loss thereon, if the Plan Administator directs the
Trustee to return such amounts. If the Plan Administator in good faith
determines that (a) a contribution was made by reason of a mistake of fact, or
(b) a contribution is deductible under Section 404 of the Code, but the Internal
Revenue Service disallows such deduction, the amount of the excess contribution,
less losses attributable thereto may, upon direction of the Plan Administator,
be returned to Central. All payments of returned contributions under this
Section shall be made within one (1) year from the date of denial of
qualification of the Plan, the payment of such mistaken contribution, or the
disallowance by the Internal Revenue Service of the deduction, whichever is
applicable. The amount of the excess contribution shall be the excess of (1) the
amount contributed over (2) the amount that would have been contributed had
there not occurred a mistake of fact or had the deduction not been disallowed.
Furthermore, if the
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withdrawal of the amount attributable to the mistaken contribution would cause
the balance of the Account of a Participant to be reduced to an amount which is
less than the balance which would have been in said Account had the mistaken
amount not been contributed, then the amount to be returned to Central under
this Section will be reduced so as to avoid any such reduction. Earnings
attributable to such excess contribution shall not be returned, and, as
aforesaid, losses shall reduce the amount otherwise returnable hereunder to
Central.
11.02 ABSENCE OF RESPONSIBILITY. Neither Central nor any of the
officers, Employees, members of the Board nor agents of Central or any Employer,
nor the Trustee, nor the Plan Administator, guarantee in any manner the payment
of benefits hereunder.
11.03 AMENDMENT OF THE PLAN. When authorized by resolution of its
Board, the Plan may be amended by Central at any time and from time to time in
any respect whatever, by instrument supplemental hereto, specifying such
amendment, amendments, or by restatement of the Plan, subject only to the
following limitations:
(a) Under no condition shall such amendment, amendments, or
restatements result in or permit the return or repayment to Central of
any property held or acquired by the Trustee or the proceeds thereof,
or result in, or permit the distribution of, any such property for the
benefit of anyone other than the Participants and their Beneficiaries
or estate except to the extent provided by Subsection 5.04(a)(ii),
Section 11.01, Section 11.04 hereof, with respect to expenses of
administration, and this Section 11.03.
(b) Under no condition shall such amendment, amendments, or
restatements increase the duties or responsibilities, or decrease the
compensation, privileges, and immunities of the Trustee without the
Trustee's written consent.
(c) Under no condition shall such amendment change the vesting
schedule to one which would result in the Capital Accumulation
(determined as of the later of the date of the adoption of the
amendment or of the effective date of the amendment) of any Participant
being less than such nonforfeitable percentage computed under the Plan
without regard to such amendment; no amendment shall change the vesting
schedule unless each Participant with three (3) or more Years of
Service is permitted to elect, within the election period described
below, to have his nonforfeitable percentage computed under the Plan
without regard to the amendment. The election period described herein
shall begin no later than the date upon which the amendment is adopted
and shall end no later than the latest of the following dates: (1) the
date which is sixty (60) days after the day the amendment is adopted;
(2) the date which is sixty (60) days after the day the amendment
becomes effective; or (3) the date which is sixty (60) days after the
day the Participant is issued a written notice of the amendment by
Central. In the event of an amendment, each other Employer will be
deemed to have consented to and adopted the amendment unless an
Employer notifies Central and the Plan Administator to the contrary in
writing within thirty (30) days after receipt of a copy of the
amendment, in which case the rejection if not acquiesced in by Central
will constitute a withdrawal from this Plan and its related Trust by
that Employer.
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Subject to the foregoing limitations, any amendment or restatement may
be made retroactive which, in the judgment of Central, is necessary or advisable
so as to qualify the Plan or Trust for exemption from taxes based on income and
so as to permit the Contributions made thereto to be deducted for the purposes
of taxes based on income or which, in the judgment of Central, is necessary or
advisable for any other reason, provided that such retroactive amendment does
not deprive a Participant without such Participant's consent of a right to
receive benefits hereunder which have already fully vested and matured in such
Participant.
11.04 EXPENSES OF ADMINISTRATION. Except to the extent paid by Central,
the Trustee shall pay all expenses incurred in the administration of the Plan,
including expenses of the Plan Administator and expenses and compensation of the
Trustee and the expenses of counsel. The Trustee, as directed by the Plan
Administator, shall reimburse the Employer for expenses properly and actually
paid or incurred on behalf of the Plan, including those for services rendered to
the Plan by the Employer's Employees, other than those Employees who are
fiduciaries with respect to the Plan. The Plan Administator may contract or make
reasonable arrangements with the Employer for office space, or legal,
accounting, or other services necessary for operation of the Plan, if no more
than reasonable compensation is paid therefor. Notwithstanding the preceding
provisions of this Section 11.04, brokerage fees, commissions, stock transfer
taxes and other charges and expenses incurred in connection with the purchase,
sale or distribution of securities or property, and direct expenses incurred in
the production and collection of income, shall be paid from the Trust Fund by
the Trustee.
11.05 NOTICE TO EMPLOYEES. Notice of the Plan and of any amendment
thereto, of eligibility of each Employee, and notice of such other matters as
may be required by law or this instrument, shall be given by Central to the
Employees in such form as the Plan Administator may deem appropriate and
reasonable, and in conformity to lawful requirements.
11.06 AGREEMENT OF PARTICIPANTS. Each Participant, by becoming such,
for himself or herself, and such Participant's heirs, executors, administrators,
legal representatives and Beneficiaries, ipso facto, approves and agrees to be
bound by the provisions of this Plan and the Trust Instrument.
11.07 ACTION BY EMPLOYER. Any written action herein permitted or
required to be taken by Central shall be by resolution of its board of directors
or by written instrument executed by a person or group of persons who has been
authorized by resolution of its board of directors as having authority to take
such action.
11.08 MERGER OF PLANS. In the case of any merger or consolidation of
this Plan or the Trust Fund with, or transfer of the assets or liabilities of
the Plan or Trust Fund to any other plan, the terms of such merger,
consolidation or transfer shall be such that each Participant would receive (in
the event of termination of this Plan or its successor immediately thereafter) a
benefit which is not less than such Participant would have received in the event
of termination of this Plan immediately before such merger, consolidation or
transfer.
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ARTICLE XII
TERMINATION OF PLAN
-------------------
12.01 TERMINATION OF PLAN. The Plan may be terminated in its entirety
at any time by Central by resolution of its Board, duly certified by an officer
of Central authorized by its Board to certify such resolution specifying such
termination. Such resolution shall be delivered to Central and to the Trustee.
Such termination may be so made without consent being obtained from the Trustee,
the Plan Administator, the Participants or their Beneficiaries, Employees or any
other interested person. The Plan shall automatically terminate upon dissolution
of Central unless provision is specifically made by its successors, if any, for
the continuation of the Plan.
12.02 DISTRIBUTION ON TERMINATION. Upon termination of the Plan as
provided in Section 12.01 hereof, the Plan Administator shall, as soon as
practicable, notify each Participant of such termination and of the fact that
all assets then in the hands of the Trustee will be distributed to each
Participant in the allotted proportions with full vesting in the Participants of
the Contributions paid to the Trust Fund. The Plan Administator shall, as soon
as feasible, advise the Trustee of the termination of the Plan, and the Trustee
shall proceed, as rapidly as feasible, to make the appropriate distribution to
each Participant, less any amounts necessary or proper to pay the expenses of
such distribution and liquidation and subject to Sections 7.09, 9.06 and 10.05
hereof. Upon completion of liquidation and distribution of the assets of the
Trust to the Participants, the Trustee shall thereby complete the Trustee's
duties, and the Trust shall terminate.
12.03 CONTINUANCE OF PLAN BY SUCCESSOR. Subject to the approval of the
Board, in the event of the consolidation or merger of Central, or the sale by
Central of its assets, the resulting successor person or persons, firm or
corporation may continue this Plan by delivery of written notice adopting the
Plan to the Plan Administator, Board and the Trustee, and by executing a proper
supplemental Trust Agreement with the Trustee. If, within one hundred eighty
(180) days from the effective date of such consolidation, merger or sale of
assets, such successor does not adopt this Plan, as provided herein, it shall
automatically be terminated and the Trust Fund shall be distributed exclusively
to the Participants or their Beneficiaries in the manner provided for in this
Plan for terminations in general.
12.04 DISCONTINUANCE OF CONTRIBUTIONS. In the event that the board of
directors of Central decides that it is impossible or inadvisable to continue to
make its Contributions as herein provided, said board shall have the power to
direct a discontinuance of the Employer's Contribution to the Trust Fund by
appropriate resolution.
After the date specified in a resolution of discontinuance of
Contributions, Central shall not be required to make further Contributions under
the Plan. Nevertheless, upon any such discontinuance, the Plan and Trust shall
remain in existence, and all provisions, other than the provisions relating to
Contributions, shall remain in effect as to Central. Upon the complete
discontinuance of Contributions under the Plan which is merely a temporary
cessation of Employer Contributions, all amounts credited to the Participants'
Accounts, shall upon such discontinuance, become fully vested and
nonforfeitable. Any previously unallocated funds at such time shall be allocated
upon such discontinuance in the manner prescribed in Article V hereof, as
appropriate. In all other respects, however, the Participants shall be treated
as though the Plan were in full force and effect.
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12.05 PARTIAL TERMINATION. Upon a partial termination of the Plan, the
Plan Administator shall notify each affected Participant. The rights of each
Participant and Beneficiary affected by such partial termination to the amounts
credited to his Account shall be fully vested and nonforfeitable as of the date
of such partial termination. Such amounts shall either be distributed to such
affected Participants and Beneficiaries, as in the case of a complete
termination of the Plan, under Section 12.02 hereof, or held, as in the case of
a discontinuance of Contributions, under Section 12.04 hereof, as directed by
the Plan Administator.
ARTICLE XIII
TOP-HEAVY PROVISIONS
--------------------
13.01 DEFINITIONS. For purposes of this Article, the following
expressions shall have the meanings respectively indicated:
(a) "Determination Date" shall mean for purposes of
determining whether a plan is top-heavy for a particular Plan Year, the
last day of the preceding Plan Year.
(b) "Key Employee" shall mean any Employee or former Employee
of Central (including a Beneficiary of any deceased Key Employee) who
is a key employee of Central as defined by Section 416(i) of the Code.
(c) "Non-Key Employee" shall mean any Employee of Central
(including a Beneficiary of any deceased Non-Key Employee) who is not a
Key Employee.
(d) "Top-Heavy Plan" shall mean for any Plan Year, a plan
under which, as of the Determination Date, the aggregate of the
accounts of Key Employees under the plan exceeds sixty percent (60%) of
the aggregate of the accounts of all employees under such plan or, in
the case of a defined benefit plan, the present value of the cumulative
accrued benefits under the plan for Key Employees exceeds sixty percent
(60%) of the present value of the cumulative accrued benefits under the
plan for all employees, all as determined in accordance with the
provisions of Code Section 416(9). The determination of whether a plan
is top-heavy shall be made after aggregating all other plans of Central
and Controlled Group Members in the Required Aggregation Group and
after aggregating any other such plan of Central or an affiliate in the
Permissive Aggregation Group if such permissive aggregation thereby
eliminates the top heavy status of any plan within such Permissive
Aggregation Group. Except as set forth below, in determining the
present value of the cumulative accrued benefit of any Employee or the
amount of any account of any Employee, the present value or amount of
account shall include any plan distributions made during the five (5)
year period ending on the Determination Date, including distributions
upon plan termination if the plan would have been in the Required
Aggregation Group if it had not been terminated. Notwithstanding the
preceding sentence, the accrued benefit or account balance for any
former Participant who has not performed any services for Central for
the five (5) year period preceding the last Determination Date shall
not be included in the determination set forth in the preceding
sentence. In determining whether a plan is top-heavy, if any individual
is a Non-Key Employee with respect to any plan for any plan year, but
such employee was a Key Employee with respect to such plan for any
prior plan
44
<PAGE> 48
year, any accrued benefit for such individual (and the account of such
individual) shall not be taken into account. In determining whether a
plan is top heavy, the present value of accrued benefits shall be
determined on the basis of an interest rate of five percent (5%) and
using a unisex mortality assumption that is ninety percent (90%) male
and ten percent (10%) female, based on the 1971 Group Annuity Mortality
Table, and the same actuarial assumptions shall be used for all defined
benefit plans that are included in an aggregation group. The accrued
benefit of each Non-Key Employee shall be determined by using the
method used for benefit accrual under all plans of Central, or if there
is no such method, no more rapidly than under the slowest method of
benefit accrual permitted under Code Section 411(b)(1) (C). Only those
plans of Central in which Determination Dates fall within the same
calendar year shall be aggregated in order to determine whether such
plans are Top-Heavy Plans.
(e) "Super Top-Heavy Plan" means for any plan year, a plan
that, as of the Determination Date, would meet the test specified above
for being a Top-Heavy Plan if ninety percent (90%) were substituted for
sixty percent (60%) in each place it appears in Subsection 13.01(d)
hereof.
(f) "Required Aggregation Group" means each plan of Central in
which a Key Employee is a participant, and each other plan of Central
which enables any plan in which a Key Employee participates to meet the
requirements of Code Section 401(a)(4) or 410. In the case of a
Required Aggregation Group, each plan in the group will be considered a
Top-Heavy Plan if the Required Aggregation Group is a Top-Heavy Group.
No plan in the Required Aggregation Group will be considered a
Top-Heavy Plan if the Required Aggregation Group is not a Top-Heavy
Group.
(g) "Permissive Aggregation Group" includes the Required
Aggregation Group and any other plan not required to be included in the
Required Aggregation Group, if the resulting group, taken as a whole,
would continue to satisfy the provisions of Code Section 401(a)(4) and
410. In the case of a Permissive Aggregation Group, only a plan that is
part of the Required Aggregation Group will be considered a Top-Heavy
Plan if the Permissive Aggregation Group is a Top-Heavy Group. No plan
in the Permissive Aggregation Group will be considered a Top-Heavy Plan
if the Permissive Aggregation Group is not a Top-Heavy Group.
(h) "Top-Heavy Group" means a Required or Permissive
Aggregation Group, if applicable, in which, as of the Determination
Date, the sum of the present value of the accumulated accrued benefits
of Key Employees under all defined benefit plans included in the group,
and the aggregate of the accounts of Key Employees under all defined
contribution plans included in the group, exceeds sixty percent (60%)
of a similar sum determined for all Participants.
(i) "Valuation Date" shall mean for purposes of determining
the value of plan accounts under this Section 13.01 the same date as
the Determination Date.
13.02 APPLICATION OF TOP-HEAVY RULES. Notwithstanding anything
contained herein to the contrary, in the event that this Plan is a Top-Heavy
Plan, as determined pursuant to Code Section 416 and this Article XIII, for any
Plan Year, the provisions of this Article XIII shall become operative with
respect to such Plan Year.
44
<PAGE> 49
13.03 MINIMUM ALLOCATION REQUIREMENT. Notwithstanding the provisions of
Section 5.02(b) hereof, relating to allocations of Employer Contributions, for
any Plan Year in which this Plan is a Top-Heavy Plan, the Plan Administator
shall cause a minimum allocation of Contributions to be made for such Plan Year
to the Employer Contribution Account of each Non-Key Employee (who is a Plan
Participant who has not separated from Service at the end of such Plan Year and
who would not otherwise be entitled to an allocation of Contributions equal to
or in excess of the amount determined under this Section 13.03); the balance of
Contributions shall be allocated in accordance with such Section, taking into
account any allocation under this Section. The amount of such minimum allocation
shall be equal to the lesser of (a) and (b) where:
(a) is an amount equal to three percent (3%) of such Non-Key
Employee's Remuneration, and
(b) is an amount equal to the largest percentage of
Remuneration of all allocations of Contributions to be made hereunder
for such Plan Year with respect to any Key Employee.
Notwithstanding anything herein to the contrary, in any Plan Year in
which a Non-Key Employee is a Participant in both this Plan and a defined
benefit pension plan of Central, and both such plans are Top-Heavy Plans,
Central shall not be required to provide a Non-Key Employee with both the full
separate minimum defined benefit plan benefit and the full separate defined
contribution plan allocations. Therefore, for Non-Key Employees who are
participating in a defined benefit plan maintained by Central and the minimum
benefits under Internal Revenue Code Section 416(c)(2) are accruing to a Non-Key
Employee under such plan, no minimum allocation shall be made under the Plan on
behalf of the Non-Key Employee.
13.04 EFFECT ON ALLOCATION LIMITATIONS. In the event Section 13.02
above is applicable, then the multiplier of 1.25 in Subsections 5.03(b)(i) and
5.03(b)(ii) hereof shall be reduced to 1.0 unless
(a) All plans required to be aggregated and any other plans
which may be permissively aggregated pursuant to Code Section 416(9)
are not Super Top-Heavy, and
(b) The Account of each Non-Key Employee who is a Participant
receives an extra contribution allocation (in addition to the minimum
contribution allocation set forth above) equal to not less than one
percent (1%) of such Non-Key Employee's Compensation.
13.05 Effect on Vesting. Notwithstanding the provisions of Section 7.02
hereof, for any Plan Year in which this Plan is a Top-Heavy Plan, a
Participant's Capital Accumulation shall be a percentage of his Account
determined on the basis of the Participant's number of years of Credited
Service, as defined in Section 2.05 hereof, according to the following schedule:
45
<PAGE> 50
<TABLE>
<CAPTION>
Years of Credited Service Nonforfeitable Percentage
------------------------- -------------------------
<S> <C> <C>
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 100%
</TABLE>
Notwithstanding the foregoing, if the Plan shall cease to be a Top-Heavy Plan in
any subsequent Plan Year, the Board of Directors of Central shall direct the
Plan Administator either to (a) continue to apply the above vesting schedule or
(b) revert to the vesting schedule previously applicable under Section 7.02
hereof. Reversion to said vesting schedule shall be treated as a Plan amendment
and shall be subject to the provisions of Subsection 11.03(c) hereof.
IN WITNESS WHEREOF, Central has caused this instrument to be executed,
sealed and attested, this 20th day of September, 1994, and effective as of the
dates stated above.
CENTRAL FREIGHT LINES INC.
By: /s/ C. Tom Clowe
-----------------------------
C. Tom Clowe, President
ATTEST:
/s/ Douglas E. Quicksall
- --------------------------------
Asst. Secretary
46
<PAGE> 1
Exhibit 4.4(j)
AMENDMENT NO. 1
TO THE
CENTRAL FREIGHT LINES, INC.
EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN
------------------------
This Amendment No. 1 is made and executed this 1st day of
April, 1996, generally effective as of January 1, 1995, by Central Freight
Lines, Inc. (hereinafter referred to as the "Company").
W I T N E S S E T H:
--------------------
WHEREAS, the Central Freight Lines, Inc. Employees Profit
Sharing and Retirement Plan (the "Plan") was amended and restated in its
entirety generally effective as of January 1, 1994;
WHEREAS, Section 11.03 of the Plan sets forth the provisions
whereby such Plan may be amended; and
WHEREAS, the Company desires to amend the Plan.
NOW, THEREFORE, in consideration of the premises, the Company
amends the Plan as follows:
1. The first paragraph of the Preamble to the Plan is amended by adding
the following sentence to the end thereof:
"The Plan is also intended to meet the
requirements of Section 404(c) of ERISA."
<PAGE> 2
2
2. The second paragraph of the Preamble to the Plan is deleted in its
entirety and replaced with the following:
"CENTRAL FREIGHT LINES, INC. has entered into a Trust
Agreement with VANGUARD FIDUCIARY TRUST COMPANY and a Special
Trust Agreement with TEXAS NATIONAL BANK, N.A. to which
contributions shall be made and from which benefits shall be
paid in accordance with the terms and conditions of the Plan."
3. A new Section 2.01(b) is added to the Plan immediately following
Section 2.01(a) to read as follows and subsequent Subsections are renumbered
accordingly:
"(b) 'ALLOCATION DATE' means December 31 of each Plan
Year."
4. Section 2.01(j) of the Plan (as renumbered by Section 3 of this
Amendment) is deleted in its entirety and replaced with the following:
"(j) 'CONTROLLED GROUP MEMBER' means Central and any
and all other corporations, trades and/or businesses, the
employees of which, together with Employees of Central, are
required by Code Section 414 to be treated as if they were
employed by a single employer."
5. Section 2.01(ii) of the Plan (as renumbered by Section 3 of this
Amendment) is deleted and replaced with the following:
"(ii) 'VALUATION DATE' means each date on which the
New York Stock Exchange is open for business. See also
Subsection 13.01(i) hereof."
<PAGE> 3
3
6. Section 2.05 of the Plan is amended by adding the following sentence
after the second sentence thereof:
"For purposes of this Section 2.05 only, the term
Employee shall also include Leased Employees."
7. Section 4.02(a)(2) of the Plan is amended by adding the following
sentence at the end thereof:
"The amount of any excess Salary Reduction Contributions to be
distributed pursuant to this Subsection shall be reduced by
the amount of Salary Reduction Contributions, if any, which
exceeded the limits of Code Section 401(k)(3) and Section
4.02(a)(4) of the Plan and were previously distributed to the
Participant for the Plan Year beginning with or within the
taxable year or were recharacterized as a Voluntary Employee
Contribution pursuant to Section 4.02(a)(5)(a)."
8. The last sentence of Section 4.02(a)(4)(b)(1) of the Plan is deleted
and replaced with the following:
"For purposes of determining the 'Actual Deferral Percentage'
of a Highly Compensated Participant who is either a
five-percent owner (as defined in Code Section 416(i)(1)) or
one of the ten (10) most Highly Compensated Participants, the
Salary Reduction Contribution and Compensation of such Highly
Compensated Participant shall include the Salary Reduction
Contributions and Compensation of Family Members, and such
affected Family Members shall be disregarded in determining
the 'Actual Deferral Percentage' for the Non-Highly
Compensated Participants group."
9. Section 4.02(a)(5)(a) of the Plan is amended by adding the following
sentence after the first sentence therein:
"The amount of any excess Salary Reduction Contributions to be
distributed or recharacterized pursuant to this Subsection
shall be reduced by the amount of Salary Reduction
Contributions, if any, which exceeded the limits of Code
Section 402(g) and Section 4.02(a)(2) of the Plan and were
<PAGE> 4
4
previously distributed to the Participant for the
Participant's taxable year ending with or within the Plan Year
in accordance with Code Section 401(g)(2)."
10. A new Section 4.02(a)(5)(c) is added to the Plan as follows:
"(c) Notwithstanding the foregoing provisions of this
Subsection, in the case of a Highly Compensated Participant
whose 'Actual Deferral Percentage' is determined under the
family aggregation rules set forth in Subsection
4.02(a)(4)(b)(1) of this Section, the determination and
correction of the amount of excess Salary Reduction
Contributions (and any income allocable to such portion) shall
be made by reducing the 'Actual Deferral Percentage' in
accordance with the 'leveling' method described in Regulation
1.401(k)-1(f)(2) and allocating the excess Salary Reduction
Contributions (and any income allocable to such portion) for
the family group among its members in proportion to the Salary
Reduction Contributions of each member of the family group
that is combined to determine the 'Actual Deferral
Percentage'."
11. The second sentence of Section 5.02(a) of the Plan is deleted in
its entirety and replaced with the following:
"These records shall consist of an Employer Contribution
Account to which Employer Contributions, net income (or loss)
attributable to Employer Contributions and forfeitures
allocated to that Participant are credited, and an Employee
Contribution Account which shall consist of a separate
Voluntary Contributions Sub-account to which Voluntary
Contributions and net income (or loss) attributable thereto
are credited and a separate Salary Reduction Contributions
Sub- account to which Salary Reduction Contributions and net
income (or loss) attributable thereto are credited."
<PAGE> 5
5
12. Section 5.02(b)(ii) of the Plan is deleted in its entirety and
replaced with the following:
"(ii) INCOME AND LOSS OF THE TRUST FUND. The net
income (or loss) of all assets in the Trust Fund, other than
real estate, will be determined as of each Valuation Date.
Such net income (or loss) shall be allocated to the
appropriate Accounts in proportion to the weighted average
balance of said Accounts as of that Valuation Date to the
weighted average balance of all such Accounts as of the same
date. The net income of all real estate in the Trust Fund will
be determined as of the Allocation Date. Such net income (or
loss) shall be allocated to the appropriate Accounts in
proportion to the weighted average balance of said Accounts as
of that Allocation Date to the weighted average balance of all
such Accounts."
13. Sections 5.02(b)(iii) and (iv) of the Plan are amended by
substituting the word "Allocation" for the word "Valuation" in each instance
where the word "Valuation" appears.
14. Section 5.02(b)(iii)(b) of the Plan is amended by deleting the last
full sentence thereof.
15. Section 5.02(c) of the Plan is deleted in its entirety and replaced
with the following:
"(c) Except for those Participants who terminated
employment with an Employer after July 1 of that Plan Year
because of death or Retirement and who have made an election
to defer distribution of their Participant Account until the
next Plan Year, if a Participant is not employed by Central on
the Allocation Date, he will not share in Employer
Contributions or in Forfeitures."
<PAGE> 6
6
16. Section 5.02(d) of the Plan is deleted in its entirety and replaced
with the following:
"(d) Notwithstanding the provisions of Subsection
5.02(c) above, if a Participant is not employed by Central,
but is employed by a Controlled Group Member, on the
Allocation Date, he will be entitled to share in the
allocation of the Matching Portion as provided in Subparagraph
5.02(b)(iii)(a), but will not share in Employer Contributions
provided for under Subparagraph 5.02(b)(iii)(b) or in
Forfeitures."
17. Section 5.04(a) of the Plan is amended by substituting the word
"Allocation" for the word "Valuation" in the first sentence thereof. Section
5.04(a) is further amended by deleting subsections (i) and (ii) in their
entirety and replacing them with the following:
"(i) The Participant's Voluntary Contributions, plus
earnings attributable thereto, are distributed to the
Participant until one of the tests set forth in this Section
5.40 is satisfied.
(ii) The Participant's Salary Reduction
Contributions, plus earnings attributable thereto, are
distributed to the Participant until one of the tests set
forth in this Section 5.04 is satisfied; and
(iii) Any remaining excess amounts shall be held
unallocated in a suspense account for the Plan Year and shall
be allocated in the next Plan Year (and succeeding Plan Years,
as necessary) among the Participants in the Plan, subject to
the limitations of Code Section 415.
(iv) In the event of termination of this Plan, any
amount held in a suspense account described in Paragraph (iii)
above shall revert to the Employer to the extent it may not
then be allocated to any Participant's Accounts."
<PAGE> 7
7
18. Section 5.04(c)(1) of the Plan is deleted in its entirety and
replaced with the following:
"(1) 'Annual Addition' shall include, for any Plan Year, the
sum of:
(A) all contributions made by a Controlled Group
Member that are allocated to the Participant's account
pursuant to a defined contribution plan maintained by a
Controlled Group Member;
(B) all employee contributions made by the
Participant to a defined contribution plan maintained by a
Controlled Group Member;
(C) all forfeitures allocated to the Participant's
account pursuant to a defined contribution plan maintained by
a Controlled Group Member;
(D) any amount allocated to an individual medical
benefit account (as defined in Code Section 415(l)(2)) of the
Participant that is part of a pension or annuity plan
maintained by a Controlled Group Member; and
(E) any amount attributable to medical benefits
allocated to the Participant's account established under Code
Section 419A(d)(1) if the Participant is or was a key-employee
(as such term is defined in Code Section 416(i)) during such
Plan Year or any preceding Plan Year."
19. Section 5.05(b)(1) of the Plan is amended by inserting the word
"Voluntary" immediately preceding the first appearance of the word
"Contributions" and by inserting the phrase "provided for in Subsection 4.02(b)"
immediately following the first appearance of the word "Contributions".
<PAGE> 8
8
20. Section 5.05(b) of the Plan is amended by deleting the definition
of a "Highly Compensated Participant" in its entirety and replacing it with the
following:
"'Highly Compensated Participant' shall have
the same meaning as in Subsection 4.02(b)(2)(b)(2)."
21. The second sentence of Section 5.05(c) of the Plan is deleted and
replaced with the following:
"In addition, the 'Contribution Percentage' for a Highly
Compensated Participant who is either a five-percent owner (as
defined in Code Section 416(i)(1)) or one of the ten (10) most
Highly Compensated Participants shall be determined by
including the Compensation of Family Members, and such
affected Family Members shall be disregarded in determining
the 'Contribution Percentage' of Non-Highly Compensated
Participants."
22. A new Section 5.06(c) is added to the Plan immediately following
Section 5.06(b) to read as follows:
"(c) In the case of a Highly Compensated Participant
whose Contribution Percentage is determined by including
Family Members, the determination and correction of the amount
of Excess Aggregate Contributions shall be made by reducing
the Contribution Percentage in accordance with the 'leveling'
method described in Regulation 1.401(m)-1(e)(2) and allocating
the Excess Aggregate Contributions for the family group among
its members in proportion to the contributions of each member
of the family group that is combined to determine the
Contribution Percentage."
23. Section 5.07 of the Plan is deleted in its entirety and replaced
with the following:
"5.07 VALUATION OF TRUST FUND. A valuation of all
assets of the Trust Fund, other than real estate, shall be
made as of each Valuation Date. A valuation of any real estate
<PAGE> 9
9
held in the Trust Fund shall be made as of December 31 of each
Plan Year and at such other dates as may be specified by the
Plan Administrator."
24. A new Section 5.09 of the Plan is added as follows:
" 5.09 MULTIPLE USE OF THE ALTERNATIVE LIMITATION.
(a) Notwithstanding the foregoing provisions of this
Article, if, after the application of Sections 4.02(a)(2),
4.02(a)(4) and 5.05, the sum of the 'Actual Deferral
Percentage' and the 'Contribution Percentage' for the group of
Highly Compensated Participants (as defined in Section
4.02(b)(2)) exceeds the aggregate limit (as defined in
Subsection (b) of this Section), then the contributions made
for such Plan Year for Highly Compensated Participants will be
reduced so that the aggregate limit is not exceeded. Such
reductions shall be made first in Voluntary Contributions then
in Salary Reduction Contributions (but only to the extent that
they are not matched by Employer Contributions) and then in
the Matching Portion of Employer Contributions. Reductions in
contributions shall be made in the manner provided in Section
4.02(a)(5) or 5.06, as applicable. The amount by which each
such Highly Compensated Participant's Salary Reduction
Contributions or the Matching Portion of Employer
Contributions are reduced shall be treated as an excess Salary
Reduction Contribution or an Excess Aggregate Contribution
under Section 4.02(a)(5) or 5.06, as applicable. For the
purposes of this Section, the 'Actual Deferral Percentage' and
the 'Contribution Percentage' of the Highly Compensated
Participants are determined after any reductions required to
meet those tests under Sections 4.02(a)(5) and 5.06.
Notwithstanding the foregoing provisions of this Section, no
reduction shall be required by this Subsection if either (i)
the 'Actual Deferral Percentage' of the Highly Compensated
Participants does not exceed 1.25 multiplied by the 'Actual
Deferral Percentage' of the Non-Highly Compensated
Participants, or (ii) the 'Contribution Percentage' of the
Highly Compensated Participants does not exceed 1.25
multiplied by the 'Contribution Percentage' of the Non-Highly
Compensated Participants.
<PAGE> 10
10
(b) For purposes of this Section, the term' aggregate
limit' means the sum of (i) one hundred twenty-five percent
(125%) of the greater of (A) the 'Actual Deferral Percentage'
of the Non-Highly Compensated Participants for the Plan Year,
or (B) the 'Contribution Percentage' of the Non-Highly
Compensated Participants, and (ii) the lesser of (A) two
hundred percent (200%) of, or (B) two (2) plus the lesser of
such 'Actual Deferral Percentage' or 'Contribution
Percentage'. If it would result in a larger aggregate limit,
the word 'lesser' is substituted for the word 'greater' in
part (i) of this Subsection, and the word 'greater' is
substituted for the word 'lesser' in part (ii)(B) of this
Subsection."
25. The second sentence of Section 6.01 of the Plan is deleted in its
entirety and replaced with following:
"The interest of each Participant shall be adjusted from time
to time to give effect to debits, credits, increments, losses,
and other adjustments as herein provided, so as to reflect the
Participants' and each such Participant's current interest in
the Trust Fund."
26. Section 6.02 of the Plan is amended by deleting the phrase ",as at
the most recent Valuation Date,".
27. Section 7.04(a)(i) of the Plan is amended by adding the following
paragraph to the end thereof:
"In the event that the amount allocable to a
Participant's Capital Accumulation includes a portion of the
real estate owned by the Plan, that portion of a Participant's
Capital Accumulation, other than the portion invested in the
real estate owned by the Plan, will be distributed
immediately, and the remaining balance will be distributed
within sixty (60) days after such time as the real estate
owned by the Plan has been sold."
<PAGE> 11
11
28. Section 7.04(a)(ii) of the Plan is amended by deleting the proviso
following Subparagraph (C) thereof.
29. The second sentence of Section 7.04(c) of the Plan is amended by
adding the phrase "(and never exceeded $3,500 at the time of any previous
withdrawal or distribution)" after the parenthetical "($3,500)".
30. The last sentence of Section 7.04(d) of the Plan is deleted and
replaced with the following:
"If a Participant dies before his entire Capital Accumulation
has been distributed but after the distribution has commenced,
then the remaining portion of such Capital Accumulation will
be distributed at least as rapidly as under the method of
distribution being used as of the date of the Participant's
death."
31. Section 7.04(e) of the Plan is deleted in its entirety and replaced
with the following:
"(e) Distributions under the Plan shall be made in a
manner that satisfies Code Section 401(a)(9) and Treasury
Regulations issued thereunder, including Treasury Regulation
ss. 1.401(a)(9)-2, which provisions are hereby incorporated
into the Plan by reference, provided that such provisions
shall override the other distribution provisions of the Plan
only to the extent that such other Plan provisions provide for
distribution that is less rapid than required under such
provisions of the Code and Regulations. Nothing contained in
this Section shall be construed as providing any optional form
of payment that is not available under the other distribution
provisions of the Plan."
<PAGE> 12
12
32. Section 7.07(a)(3) of the Plan is amended by inserting the phrase
"and room and board expenses" immediately after the phrase "educational fees".
33. A new Section 7.10 is added to the Plan immediately following
Section 7.09 to read as follows:
"7.10 Direct Rollovers.
----------------
(a) Notwithstanding any other provision of this
Article, if a Participant, spouse or alternate payee (as
defined in Code Section 414(p)) is eligible to receive a
distribution or withdrawal from the Plan that constitutes an
'eligible rollover distribution' (as defined in Subsection (c)
of this Section) and such individual elects to have all or a
portion (but not less than $500) of such distribution or
withdrawal paid directly to an 'eligible retirement plan' (as
defined in Subsection (d) of this Section) and specifies the
eligible retirement plan to which the distribution or
withdrawal is to be paid, such distribution or withdrawal (or
portion thereof) shall be made in the form of a direct
rollover to the eligible retirement plan so specified. A
direct rollover is a payment made by the Plan directly to the
eligible retirement plan. The Plan Administrator shall
prescribe reasonable procedures for elections to be made
pursuant to this Section.
(b) The Plan Administrator shall provide a
Participant, spouse or alternate payee who will receive an
eligible rollover distribution with a written notice
describing his rights under this Section and such other
information required to be provided under Code Section 402(f),
no less than thirty (30) days nor more than ninety (90) days
before the date scheduled for payment of such distribution;
provided, however, that a Participant, spouse or alternate
payee may elect to waive such 30-day requirement if (i) he is
clearly informed by the Plan Administrator of his rights, if
applicable, to a period of at least 30 days after receiving
the written notice to consider whether or not to elect a
distribution or withdrawal and/or to elect a particular form
of benefit and (ii), after receiving the written
<PAGE> 13
13
notice, he affirmatively elects the distribution or
withdrawal. Nothing contained in this Subsection shall be
construed to accelerate the timing of a distribution or
withdrawal otherwise provided in the Plan.
(c) For purposes of this Section, the term 'eligible
rollover distribution' means any distribution or withdrawal of
all or any portion of the Participant's Account, except (a)
any distribution required under Code Section 401(a)(9), (b)
any distribution if it and all other eligible rollover
distributions to the Participant during the calendar year are
reasonably expected to total less than Two Hundred Dollars
($200), (c) the portion of a distribution not includible in
gross income (determined without regard to the exclusion for
net unrealized appreciation described in Code Section
402(e)(4)), and (d) such other amounts specified in Treasury
regulations or Internal Revenue Service rulings, notices or
announcements issued under Code Section 402(c).
(d) For purposes of this Section, the term 'eligible
retirement plan' means an individual retirement account or
annuity described in Code Section 408, a defined contribution
plan that meets the requirements of Code Section 401(a) and
that accepts rollovers, or an annuity plan described in Code
Section 403(a); provided, however, that with respect to a
spouse (but not a spouse who is an alternate payee) who
receives a distribution after a Participant's death, an
'eligible retirement plan' shall mean only an individual
retirement account or annuity described in Code Section 408.
(e) This Section is intended to comply with the
provisions of Code Section 401(a)(31) and shall be interpreted
in accordance with such Code Section and Treasury regulations
issued thereunder."
<PAGE> 14
14
34. The second sentence of Section 9.02(a) is deleted in its entirety
and replaced with the following:
"Subject to Subsection 9.02(b) hereof, if a deceased
Participant failed to name a Beneficiary in the manner above
prescribed, or subject to Section 9.03, if the Beneficiary or
Beneficiaries named by a deceased Participant predeceases the
Participant, the amount payable with respect to such
Participant pursuant to Section 7.01 hereof, if any, shall be
paid to (i) the Participant's spouse, or if none, (ii) the
estate of such deceased Participant."
35. The third sentence of Section 9.02(a) is amended by deleting the
phrase "and discretion".
36. The proviso in the first sentence of Section 9.03 is deleted in its
entirety and replaced with the following:
"provided, however, that if no person so designated be living
upon the occurrence of such contingency, then such balance
shall be payable to the estate of the Participant."
37. The second sentence of Section 9.03 is amended by deleting the
phrase "and discretion".
38. The first sentence of Section 10.01 of the Plan is amended by
deleting the phrase "known as the Central Freight Lines Employees Profit Sharing
and Retirement Trust".
39. Section 13.03(b) of the Plan is amended by adding the parenthetical
"(plus elective deferrals under Code Section 402(g)(3))" after the word
"Contributions".
<PAGE> 15
15
IN WITNESS WHEREOF, the Company has caused this Amendment No.
1 to be executed by its duly appointed officer, effective as of January 1, 1994.
In the presence of: CENTRAL FREIGHT LINES, INC.
/s/ Laura Rameos By: /s/ Ronald S. Pelzel
- ------------------------- --------------------------------
Title:
- -------------------------
Dated: April 1, 1996
-------------------
<PAGE> 1
Exhibit 4.4(k)
AMENDMENT NO. 2
TO THE
CENTRAL FREIGHT LINES, INC.
EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN
THIS AMENDMENT NO. 2 to the Central Freight Lines, Inc.
Employees Profit Sharing and Retirement Plan (the "Plan") is made and executed
this 30th day of December, 1996 by Central Freight Lines, Inc. (hereinafter
referred to as the "Company"). Unless otherwise provided, this Amendment No. 2
shall be effective as of October 1, 1996.
1. Notwithstanding anything in the Plan to the contrary, any
provision within the Plan which requires action by means of written
authorization, written notification or written application shall be deemed
satisfied if such action is taken in accordance with procedures established by
the Plan Administrator.
2. The first two paragraphs of Section 2.01(i) of the Plan are
hereby deleted in their entirety and replaced by the following:
'COMPENSATION' or 'SALARY' means the sum of salary
paid to an Employee by all Controlled Group Members in the
calendar year plus cash incentive compensation and overtime
pay paid to that Employee, but excluding (i) expense
allowances and other special payments not paid as regular
compensation, (ii) payments pursuant to a tax equalization,
relocation or cost of living program, an expatriate program or
any similar programs or arrangements and (iii) any part of the
Employer's contributions under this Plan and/or any pension,
welfare, stock bonus, stock ownership or other qualified or
nonqualified plan. Notwithstanding the foregoing, Compensation
shall
<PAGE> 2
include any salary that would have been paid to such Employee
had he not signed a salary deferral agreement that satisfies
the requirements of Code Sections 401(k), 125 or 129.
3. Section 2.01(p) of the Plan is hereby amended in its
entirety to read as follows:
'ENTRY DATE' means the earliest practicable date
after an Employee has met the requirements of Section 3.01(b)
or 3.01(c).
4. Section 2.01(u) of the Plan is hereby amended by deleting
the phrase "sixty (60)" and inserting the phrase "fifty- nine and one-half (59
1/2)" at the end thereof.
5. Section 2.04 of the Plan is hereby amended in its entirety
to read as follows:
2.04 YEAR OF SERVICE. For purposes of determining
eligibility for participation in the Plan, 'YEAR OF SERVICE'
means a twelve (12) consecutive month period commencing on the
Date of Employment during which an Employee is credited with
at least one thousand (1,000) Hours of Service (the 'Initial
Eligibility Computation Period'). Whether or not an Employee
is credited with one thousand (1,000) Hours of Service during
an Initial Eligibility Computation Period, such Employee shall
be credited with a YEAR OF SERVICE if he is credited with at
least one thousand (1,000) Hours of Service during the Plan
Year beginning during the Initial Eligibility Computation
Period or any Plan Year thereafter.
For all other purposes, 'YEAR OF SERVICE' means a twelve (12)
consecutive month period ending on the last day of a Plan Year
in which an Employee is credited with at least one thousand
(1,000) Hours of Service. For purposes of vesting, with regard
to an Employee on October 1, 1996 who was an Employee at any
time during the period January 1, 1996 through September 30,
1996, such Employee shall be credited with a Year of Service
for the twelve (12) consecutive month period ending on the
anniversary of his Date of Employment or Date of Reemployment
occurring in 1997, if he is credited
2
<PAGE> 3
with at least one thousand (1,000) Hours of Service during
such period, and a Year of Service for the twelve (12)
consecutive month period ending on December 31, 1997, if he is
credited with at least one thousand (1,000) Hours of Service
during such period.
6. The first sentence of Section 2.05 of the Plan is hereby
amended by deleting the phrase "measured from the Employee's Date of Employment"
and inserting the phrase "as determined pursuant to Section 2.04."
7. Section 2.07 of the Plan is hereby amended in its entirety
to read as follows:
2.07 BREAK-IN-SERVICE. For purposes of this Plan,
'BREAK-IN-SERVICE' means a Plan Year during which an Employee
has not completed an Hour of Service. A Break-in-Service
occurs as of the last day of such Plan Year.
8. The first sentence of Subsection 4.02(a)(1) of the Plan is
hereby amended by deleting the phrase "ten percent (10%)" and inserting the
phrase "fifteen percent (15%)."
9. The first sentence of Subsection 4.02(b) of the Plan is
hereby amended by deleting the phrase "over and above his Salary Reduction
Contributions."
10. A new Subsection 4.02(c) is added to the Plan to read as
follows:
(c) A Participant's Salary Reduction and/or Voluntary
Contributions with respect to any pay period must be made in
whole or half percentages, must each be a minimum of one
percent (1%) of his Compensation and may not, in the
aggregate, exceed fifteen percent (15%) of his Compensation.
3
<PAGE> 4
11. Subsection 5.02(b)(iv) of the Plan is hereby amended in
its entirety to read as follows:
(iv) FORFEITURES. As of each Allocation Date,
Forfeitures, if any, occurring during the Plan Year (net of
any amount of Forfeitures allocated to the restoration of
prior Forfeitures pursuant to Section 7.05 hereof) shall be
added to Employer Contributions (other than the Matching
Portion) and allocated as Employer Contributions.
12. Subsection 5.02(c) of the Plan is hereby amended by
deleting the phrase "after July 1 of that Plan Year" and deleting the phrase
"and who have made an election to defer distribution of their Participant
Account until the next Plan Year."
13. Subsection 5.03(b) of the Plan is hereby amended in its
entirety to read as follows:
(b) Subject to Subsection 5.03(c), amounts in a
Participant's Transfer Contribution Account shall be held by
the Trustee pursuant to the provisions of this Plan and may be
withdrawn at the request of the Participant in accordance with
procedures established by the Plan Administrator, in whole or
in part, in the form of cash payments or in common stock of
Caliber System, Inc. to the extent invested in such stock.
14. Section 7.03 of the Plan is hereby amended by adding
Subsections (e) and (f) at the end thereof to read as follows:
(e) under Subsection 7.12 hereof (relating to
withdrawals on account of disability or
attainment of age fifty-nine and one-half
(59 1/2)); or
(f) under Subsection 5.03(b) hereof (relating to
withdrawals or distributions of amounts held
in a Participant's Transfer Contribution Account).
4
<PAGE> 5
15. Subsection 7.04(a)(i) of the Plan is hereby amended by
deleting the sentence "In the event such election is made, the deferred Account
shall be entitled to share in the allocation of Employer Contributions for the
Plan Year in which the retirement or death of the Participant occurred."
16. Subsection 7.04(a) of the Plan is hereby amended by adding
the following Subparagraphs (iii) and (iv) at the end thereof to read as
follows:
(iii) PARTIAL LUMP SUM. The Participant's Account may
be distributed in a partial lump sum payment, with the
remainder paid later.
(iv) INSTALLMENT PAYMENTS. The Participant's Account
may be distributed in installments over a period not to exceed
the life expectancy of the Participant and his Beneficiary.
17. Subsection 7.04(c) of the Plan is hereby amended in its
entirety to read "[Reserved]."
18. Subsection 7.04(d) of the Plan is hereby amended by
inserting the phrase "to the extent required by Code Section 401(a)(9),"
immediately following the phrase "in this Article VII," in the first sentence
thereof.
19. Subsection 7.04(f) of the Plan is hereby amended in its
entirety to read as follows:
(f) Distributions shall be in the form of a cash
payment or, if elected by the Participant, the portion of his
Capital Accumulation invested in the common stock of Caliber
System, Inc. may be received in-kind only if the Participant
elects to receive an immediate lump sum payment under
Subsection 7.04(a)(i).
5
<PAGE> 6
20. Subsection 7.05(b) of the Plan is hereby amended by
deleting the last sentence thereof.
21. Subsection 7.07(c) of the Plan is hereby amended in its
entirety to read as follows:
Distributions from the Participant's Capital Accumulation
pursuant to this Section 7.07 shall come from the following
fully vested Accounts in the following order: Voluntary
Contributions Accounts; Transfer Contribution Account;
Employer Contribution Account (the Matching Portion); Employer
Contribution Account (other than the Matching Portion); and
Salary Reduction Contributions Account (excluding earnings).
22. Subsection 7.10(a) of the Plan is hereby amended by
deleting the phrase "(but not less than $500)."
23. Subsection 7.10(c) of the Plan is hereby amended by
redesignating Subsection (d) as Subsection (c) and by deleting the phrase "any
distribution if it and all other eligible rollover distributions to the
Participant during the calendar year are reasonably expected to total less than
Two Hundred Dollars ($200), (c)."
24. A new Section 7.11 is added to the Plan to read as
follows:
7.11 Loans
-----------
The following loan provisions will be effective when
the Plan Administrator, in its discretion, determines it is
administratively feasible and desirable to provide loans under
the Plan.
(a) A Participant who is either an Employee of an
Employer or a Controlled Group Member or a "party-in-interest"
(as defined in Section 3(14) of ERISA) may, in accordance with
procedures
6
<PAGE> 7
established by the Plan Administrator, apply for a loan from
his Account. Such procedures shall include action to prevent a
Participant who is otherwise eligible for a loan from securing
a loan if the Administrator has knowledge that the Participant
is in bankruptcy or some similar proceeding. Each loan shall
be charged against the Participant's fully vested Account in
the following order (to the extent necessary): Salary
Reduction Contributions Account; Employer Contribution Account
(the Matching Portion); Employer Contribution Account (other
than the Matching Portion); Transfer Contribution Account; and
finally, against the Voluntary Contributions Accounts.
(b) Each loan shall be in an amount which is not less
than $1,000. A Participant may only have one loan outstanding
at any time. The maximum loan to any Participant (when added
to the outstanding balance of all other loans to the
Participant from all qualified employer plans (as defined in
Code Section 72(p)(4)) of the Controlled Group) shall be an
amount which does not exceed the lesser of:
(i) Fifty Thousand Dollars ($50,000), reduced
by the excess (if any) of (A) the highest
outstanding balance of such other loans during the
one-year period ending on the day before the date on
which such loan is made, over (B) the outstanding
balance of such other loans on the date on which
such loan is made; or
(ii) fifty percent (50%) of the vested value of
such Participant's Account on the date on which such
loan is made.
(c) For each Participant for whom a loan is
authorized pursuant to this Section, the Participant's
interests will be liquidated first by Account and then within
each Account amounts shall be taken on a pro-rata basis by
Investment Fund to the extent necessary to provide funds for
the loan. The Trustee shall establish and maintain a separate
recordkeeping account within the Participant's Account (the
"Loan Sub-Account") (i) which initially shall be in the amount
of the loan, (ii) to which the funds for the loan shall be
deemed to have been allocated and then disbursed to the
Participant, (iii) to which the Note shall be allocated and
(iv) which shall show the unpaid principal of the promissory
note from
7
<PAGE> 8
time to time. All payments of principal and interest by a
Participant shall be credited initially to his Loan
Sub-Account and applied against the Note and then credited to
the Participant's Account in the inverse order from which the
loan was funded and invested in the Investment Funds pursuant
to the Participant's direction regarding investment of
Contributions under Section 5.08. The Plan Administrator shall
value each Participant's Loan Sub-Account for purposes of
Section 5.07 at such times as the Plan Administrator shall
deem appropriate, but not less frequently than quarterly.
(d) Loans made pursuant to this Section:
(i) shall be made available to all
Participants on a reasonably equivalent basis;
(ii) shall not be made available to Highly
Compensated Employees in a percentage amount greater
than the percentage amount made available to other
Participants;
(iii) shall be secured by the Participant's
Loan Sub-Account;
(iv) shall be evidenced by a promissory note
and security agreement (the "Note") which provides
for:
(A) the loan to be secured by the
Participant's Loan Sub-Account;
(B) a rate of interest of one
percent above the prime interest rate as
determined by the Trustee at the time the
loan is processed;
(C) repayment within a specified
period of time, which shall not extend
beyond five (5) years from the date the loan
is made unless the loan proceeds are used to
acquire a dwelling which, within a
reasonable time (determined at the time the
loan is made), is to be used as the
principal residence of the Participant, in
which case the repayment period may extend
to ten (10) years;
(D) repayment in equal payments over
the term of the loan, with payments not less
frequently than monthly; and
8
<PAGE> 9
(E) for such other terms and
conditions as the Plan Administrator shall
determine, which shall include provision
that:
(I) with respect to a
Participant who is an Employee, the
loan will be repaid pursuant to
authorization by the Participant of
equal payroll deductions over the
repayment period sufficient to
amortize fully the loan within the
repayment period or by check during
any period the Participant is
ineligible for payroll deduction;
(II) the loan shall be
prepayable in whole or in specified
increments (as determined from time
to time by the Plan Administrator)
at any time without penalty;
(III) the loan shall be
treated as in default if payments
are more than 90 days late. A
Participant shall then have 30 days
from the time he receives written
notice of the default and a demand
for past due amounts to cure the
default before it becomes final; and
(IV) the Plan 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 such
suspension period, interest shall
continue to accrue. At the end of
such suspension period, all
outstanding loan payments and
interest shall be due unless
otherwise agreed upon by the Plan
Administrator.
(e) Notwithstanding any other provision of the Plan,
a loan made pursuant to this Section shall be a first lien
against the Participant's Loan Sub-Account. Any amount of
principal or interest due and unpaid on the loan at the time
of any Default on the loan, and any interest accruing
thereafter, shall be satisfied by deduction from the
Participant's Loan Sub-Account, and shall be
9
<PAGE> 10
deemed to have been distributed to the Participant, as
follows:
(i) In the case of a Participant who, at the
time of the Default, is an Employee and is not
eligible to receive distribution of his Account under
the provisions of Article VII, (other than Hardship
withdrawals under Section 7.07) at such time as he
first becomes eligible to receive distribution of his
Account under the provisions of this Article, (other
than Section 7.07); or
(ii) In the case of any other Participant,
immediately upon such Default.
If, as a result of the application of the preceding sentence,
an amount of principal or interest on a loan remains
outstanding after Default, interest at the rate specified in
the Note shall continue to accrue on such outstanding amount
until fully satisfied by deduction from the Participant's Loan
Sub-Account as hereinabove provided or by payment by or on
behalf of such Participant.
(f) The Plan Administrator shall have the right to
call any Participant's loan once the Participant's employment
with all Controlled Group Members has terminated or if the
Plan is terminated.
25. A new Section 7.12 is added to the Plan to read as
follows:
7.12 Withdrawals on Account of Disability or Attainment
--------------------------------------------------
of Age Fifty-Nine and One-Half (59 1/2)
---------------------------------------
A Participant whom the Committee has determined to
have a Disability or who has attained age fifty-nine and
one-half (59 1/2) may withdraw at any time or from time to
time all or a portion of his Capital Accumulation in the form
of a cash payment or in common stock of Caliber System, Inc.
to the extent invested in such stock, as provided and in the
order as set forth below, except that the Participant may
instead choose to have amounts taken from his Voluntary
Contributions Account first:
(a) Transfer Contribution Account;
(b) Salary Reduction Contributions Account;
10
<PAGE> 11
(c) Employer Contribution Account (the Matching
Portion);
(d) Employer Contribution Account (other than
the Matching Portion);
(e) Voluntary Contributions Account.
26. A new Section 10.06 is added to the Plan to read as
follows:
10.06 Voting and Tender of Common Stock of Caliber
--------------------------------------------
System, Inc. and Roadway Express, Inc.
--------------------------------------
Each Participant or Beneficiary shall be entitled
to instruct the Trustee as to the voting or tendering of any
full or partial shares of common stock of Caliber System, Inc.
or Roadway Express, Inc. held on his or her behalf. Prior to
such voting or tendering of such 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
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.
With regard to shares for which the Trustee receives
no voting or tendering instructions from Participants or
Beneficiaries, the Committee designated under the Caliber
System, Inc. 401(k) Savings Plan shall instruct the Trustee
with respect to how to vote or tender such shares and the
Trustee shall act with respect to such shares as instructed.
11
<PAGE> 12
IN WITNESS WHEREOF, the Company has caused this Amendment No.
2 to be executed by its duly appointed officer.
In the presence of: CENTRAL FREIGHT LINES, INC.
/s/ Beth P. Ewing By: /s/ Donald C. Brown
- ----------------------------- ------------------------------
Title:
Dated: 12/30/96
---------------------
<PAGE> 1
Exhibit 4.4(l)
AMENDMENT NO. 3
TO THE
CENTRAL FREIGHT LINES, INC.
EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN
--------------
This Amendment No. 3 to the Central Freight Lines, Inc.
Employees Profit Sharing and Retirement Plan (the "Plan") is made and executed
this 27 day of February, 1997, generally effective as of January 1, 1997, by
Viking Freight, Inc. (the "Company").
W I T N E S S E T H:
WHEREAS, the Plan was amended and restated in its entirety
generally effective as of January 1, 1994;
WHEREAS, the Plan was merged into the Caliber System, Inc.
401(k) Savings Plan as of October 1, 1996;
WHEREAS, Section 11.03 of the Plan sets forth the provisions
whereby the Plan may be amended;
WHEREAS, the Company is the corporate successor by merger to
Central Freight Lines, Inc.; and
WHEREAS, the Company desires to amend the Plan in order to
reflect the corporate succession and change in sponsorship of the Plan from
Central Freight Lines, Inc. to the Company.
NOW, THEREFORE, in consideration of the above premises, the
Company amends the Plan as follows:
<PAGE> 2
Following the merger of Central Freight Lines, Inc.
into Viking Freight, Inc. (the "Company") as the Southwestern Division
of the Company ("Viking Southwestern"), it is the intent of the Company
to continue the Plan as a portion of the Caliber System, Inc. 401(k)
Savings Plan for the benefit of employees and former employees of
Viking Southwestern only. Accordingly, on and after January 1, 1997,
(a) an Employee or former Employee of Viking Southwestern who was a
Participant in the Plan as of December 31, 1996 will continue as a
Participant in the Plan as long a portion of the Trust Fund is credited
to his Account and held for his benefit by the Trustee, (b) only
Employees of Viking Southwestern are eligible to become Participants in
the Plan, (c) only Employees of Viking Southwestern may make
Participant Contributions to the Plan, (d) Employer Contributions will
be made by the Company, (e) Employer Contributions will be allocated in
accordance with the Plan only to Participants who were Employees of
Viking Southwestern during the Plan Year for which such Contribution is
made, (f) the Plan Administrator of the Plan will be the Company, and
(g) the Plan Administrator will interpret all provisions of the Plan in
a manner consistent with the intent of this Amendment.
2
<PAGE> 3
IN WITNESS WHEREOF, the Company has caused this Amendment No.
3 to be executed by its duly appointed officer.
In the presence of: VIKING FREIGHT, INC.
/s/ William Slabaugh By: /s/ R.G. Marticke
- ---------------------- -----------------------------
Title:
- ----------------------
Dated: /s/ Feb 27, 1997
---------------------
3
<PAGE> 1
Exhibit 4.4(m)
INSTRUMENT MERGING PLANS AND TRUST
----------------------------------
Caliber System, Inc. (the "Company") hereby ratifies the actions,
previously taken and effective as of October 1, 1996, to merge the defined
contribution plans known respectively as the Financial Security Plan and the
Central Freight Lines, Inc. Employee Profit Sharing Plan and Trust (the
foregoing, plans are hereinafter referred to as the "Merging Plans") and the
Caliber System, Inc. Stock Savings and Retirement Income Plan and Trust (the
"Surviving Plan") (the Merging Plans and the Surviving Plan are hereinafter
referred to collectively as the "Plans") and individually as (a "Plan"), each
amended through the date hereof, and any trust or trusts related thereto (the
"Trusts").
I.
The Merging Plans have been merged into the Surviving Plan, and such
merged plan shall, from and after the merger ratified hereby, comprise a single
plan (the "Merged Plan") within the meaning of Treasury Regulations Section
1.414(l) - l(b)(1). The Merged Plan shall be known as the Caliber System, Inc.
401(k) Savings Plan. The terms and conditions and all other provisions of the
Merged Plan, as applicable to different categories of participants covered on
the effective date of the merger under the different Plans, shall continue to be
expressed in the separate documents and instruments comprising such Plan, as in
effect immediately prior to the merger, unless and until such documents and
instruments are amended or superseded in accordance with the terms thereof.
II.
The Trusts shall continue to be maintained pursuant to the instrument
or instruments currently applicable thereto (the "Trust Agreements"), and the
trustee or trustees of the Trusts shall continue to hold, administer and
disburse the assets of the Trusts (as in existence before the merger), and any
additional amounts hereafter transferred to any such trustee by the Company as
a contribution to the Merged Plan, pursuant to the terms of the Trust Agreement
to which each such trustee is a party. Notwithstanding the foregoing, however,
all of the assets of the Merged Plan shall be available to pay benefits to all
participants and beneficiaries under the Merged Plan, and each of the Trust
Agreements shall be deemed to have been amended to the extent necessary to
effectuate this sentence. Without limiting the generality of the foregoing,
references in the Trust Agreements to any of the Plans are hereby deemed to be
references to the Merged Plan.
<PAGE> 2
III.
Each participant in the Merged Plan shall, immediately after the
merger, have an account balance equal to the sum of the account balances the
participant had in the Plans immediately prior to the merger.
EXECUTED at Akron, Ohio, on this 28th day of October 1996.
CALIBER SYSTEM, INC.
By: Donald C. Brown
--------------------------------
Title: V.P.- Human Resources
-----------------------------
2
<PAGE> 1
Exhibit 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Caliber System, Inc. 401(k) Savings Plan of our
reports (a) dated January 23, 1997 (except Note K, as to which the date is
March 27, 1997), with respect to the consolidated financial statements and
schedule of Caliber System, Inc. included in its Annual Report (Form 10-K) for
the year ended December 31, 1996, and (b) dated May 31, 1996, with respect to
the financial statements and schedules of the Roadway Services, Inc. Stock
Savings and Retirement Income Plan and Trust (Amended and Restated) included in
the Plan's Annual Report (Form 11-K) for the year ended December 31, 1995,
both filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Akron, Ohio
May 23, 1997
<PAGE> 1
Exhibit 24.1
DIRECTORS AND OFFICERS OF
CALIBER SYSTEM, INC.
401(k) SAVINGS PLAN
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of Caliber System, Inc., an Ohio corporation (the "Company"),
hereby constitutes and appoints Daniel J. Sullivan, Louis J. Valerio, John E.
Lynch, Jr., and Kathryn W. Dindo, 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 or her behalf and in his or
her name, place and stead, in any and all capacities, under the Securities Act
of 1933, one or more Registration Statements on Form S-8 relating to the
registration, offer and sale of such number of shares of common stock, without
par value, as shall be determined from time to time, issued and to be issued or
acquired in connection with the Company's 401(k) Savings 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 May, 1997.
----
/s/ GEORGE B. BEITZEL /s/ CHARLES R. LONGSWORTH
- ---------------------------- --------------------------------
George B. Beitzel Charles R. Longsworth
/s/ RICHARD A. CHENOWETH /s/ G. JAMES ROUSH
- ---------------------------- --------------------------------
Richard A. Chenoweth G. James Roush
/s/ KATHRYN W. DINDO /s/ DANIEL J. SULLIVAN
- ---------------------------- --------------------------------
Kathryn W. Dindo Daniel J. Sullivan
/s/ NORMAN C. HARBERT /s/ LOUIS J. VALERIO
- ---------------------------- --------------------------------
Norman C. Harbert Louis J. Valerio
/s/ HARRY L. KAVETAS /s/ H. MITCHELL WATSON, JR.
- ---------------------------- --------------------------------
Harry L. Kavetas H. Mitchell Watson, Jr.
<PAGE> 1
Exhibit 24.2
CALIBER SYSTEM, INC.
401(k) SAVINGS PLAN
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned members of
the Caliber System, Inc. 401(k) Savings Plan Administrative Committee,
constituting all of the members in office at the date hereof, hereby constitutes
and appoints Daniel J. Sullivan, Louis J. Valerio, John E. Lynch, Jr., and
Kathryn W. Dindo, 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 Company's 401(k) Savings 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 May, 1997.
----
/s/ DONALD C. BROWN /s/ JOHN P. CHANDLER
- ---------------------------- --------------------------------
Donald C. Brown John P. Chandler
/s/ THOMAS R. WARREN
- ----------------------------
Thomas R. Warren
