<PAGE> 1
As filed with the Securities and Exchange Commission on June 4, 1997
Registration No. 33-80685
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------
ROADWAY EXPRESS, INC.
(Exact name of registrant as specified in charter)
Delaware 34-0492670
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
1077 Gorge Blvd., Akron, Ohio 44310
(Address, including ZIP Code, of registrant's principal executive offices)
ROADWAY EXPRESS, INC. 401(k) STOCK SAVINGS PLAN
(Full title of the plan)
John M. Glenn
Vice President - General Counsel and
Secretary
Roadway Express, Inc.
P.O. Box 471
1077 Gorge Blvd.
Akron, Ohio 44309-0471
(330) 384-1717
(Name, address, including ZIP Code, and telephone number, including area
code, of agent for service)
===============================================================================
<PAGE> 2
Part II of this registration statement is hereby amended and restated
in its entirety as hereinafter set forth in order to include the following as
new Exhibits:
4.3 Roadway Express, Inc. 401(k) Stock Savings Plan (definitive
form).
4.4 Amendment No. 1 to Roadway Express, Inc. 401(k) Stock Savings
Plan.
4.5 Amendment No. 2 to Roadway Express, Inc. 401(k) Stock Savings
Plan.
4.6 Amendment No. 3 to Roadway Express, Inc. 401(k) Stock Savings
Plan.
24.1 Powers of Attorney on behalf of certain directors and officers
of the Company.
24.2 Powers of Attorney on behalf of the Plan committee members.
<PAGE> 3
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by Roadway Express, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(1) Annual Report of the Company on Form 10-K for the Year ended
December 31, 1996;
(2) Quarterly Report of the Company on Form 10-Q for the Period
ended March 29, 1997;
(3) Current Report of the Company on Form 8-K dated February 21,
1997; and
(4) The description of the Company's common stock, $.01 par value
per share, contained in the Company's Registration Statement
on Form 10 filed pursuant to Section 12 of the Securities
Exchange Act of 1934 (the "Exchange Act"), including any
amendments and reports filed for the purpose of updating that
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated herein by reference and to
be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. (Securities to be offered are registered under Section
12 of the Exchange Act.)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Delaware law, a corporation may include in its certificate of
incorporation ("Certificate") a provision that eliminates or limits the personal
liability of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duties as a director, but no such provision may
eliminate or limit the liability of a director (i) for any breach of his duty of
loyalty, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law (the "DGCL") (dealing with illegal
redemptions and stock repurchases), or (iv) for any transaction from which the
director derived an improper personal benefit. The Company's Certificate limits
personal liability of directors to the fullest extent permitted by Delaware law.
Delaware law also provides that a corporation (a) must indemnify its
directors, officers, employees, and agents for all expenses of litigation when
they are successful on the merits or otherwise; (b) may indemnify such persons
for the expenses, judgments, fines, and amounts paid in settlement of litigation
(other than a derivative suit) even if they are not successful on the merits, if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation (and, in the case of
criminal proceedings, have no reason to believe that their conduct was
unlawful); and (c) may indemnify such persons for the expenses of a derivative
suit even if they are not successful on the merits if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, provided that no such indemnification may be made
on behalf of a person adjudged to be liable in a derivative suit, unless the
Delaware Chancery Court determines that, despite such
II - 1
<PAGE> 4
adjudication but in view of all of the circumstances, such person is entitled to
indemnification. In any such case, indemnification may be made only upon
determination by (i) a majority of the disinterested directors, (ii) independent
legal counsel or (iii) the shareholders that indemnification is proper because
the applicable standard of conduct was met. The advancement of litigation
expenses to a director or officer is also authorized upon receipt by the board
of directors of an undertaking to repay such amounts if it is ultimately
determined that such person is not entitled to be indemnified for them.
The Company's Certificate authorizes mandatory indemnification to the
full extent permitted by Delaware law, and it authorizes the Company to enter
into indemnification agreements with directors, officers and other persons
entitled to indemnification thereunder. The Company's Certificate further
authorizes the Company to provide by agreement for indemnification greater or
different than set forth in the Company's Certificate. The Company has entered
into indemnifications agreements with its directors and certain officers that
indemnify such persons to the maximum extent permitted by applicable law. In
addition, the Company has obtained directors' and officers' reimbursement and
liability insurance. The risks covered by such policies include certain
liabilities under the securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Second Restated Certificate of Incorporation of Roadway Express,
Inc. (filed as Exhibit 4.1 to the Company's Form S-8 Registration
Statement No. 333-2562 filed March 20, 1996, and incorporated
herein by reference).
4.2 Restated Amended By-laws of Roadway Express, Inc. (filed as
Exhibit 4.2 to the Company's Form S-8 Registration Statement No.
333-2562 filed March 20, 1996, and incorporated herein by
reference).
4.3 Roadway Express, Inc. 401(k) Stock Savings Plan. *
4.4 Amendment No. 1 to Roadway Express, Inc. 401(k) Stock Savings
Plan. *
4.5 Amendment No. 2 to Roadway Express, Inc. 401(k) Stock Savings
Plan. *
4.6 Amendment No. 3 to Roadway Express, Inc. 401(k) Stock Savings
Plan. *
5 Opinion of counsel.
23 Consent of Ernst & Young LLP, Independent Auditors. * (Consent of
counsel is included in Exhibit 5.)
24.1 Powers of Attorney on behalf of certain directors and officers of
the Company. *
24.2 Powers of Attorney on behalf of the Plan committee members. *
- --------------------------------------------------------------------
* Filed with this post-effective amendment to registration statement.
II - 2
<PAGE> 5
UNDERTAKING:
The undersigned registrant will submit the Plan and any amendments
thereto to the Internal Revenue Service (the "IRS") in a timely manner and will
make all changes required by the IRS in order to qualify the Plan.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high and of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in this registration statement shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be in the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the
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<PAGE> 6
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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<PAGE> 7
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 ON FORM S-8 AND HAS DULY CAUSED THIS
POST-EFFECTIVE AMENDMENT TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY
THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF AKRON, STATE OF OHIO,
ON MAY 30, 1997.
ROADWAY EXPRESS, INC.
By: /s/ John M. Glenn
-----------------------
Name: John M. Glenn
Title: Vice President-General Counsel
and Secretary
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
POST-EFFECTIVE AMENDMENT TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
--------- -----
<S> <C> <C>
* /s/ Michael W. Wickham President, Director May 30, 1997
--------------------------------- (Principal Executive Officer)
Michael W. Wickham
* /s/ J. Dawson Cunningham Vice President-Finance and May 30, 1997
--------------------------------- Administration, Treasurer
J. Dawson Cunningham (Principal Financial and
Accounting Officer)
* /s/ Frank P. Doyle Director May 30, 1997
---------------------------------
Frank P. Doyle
* /s/ Phillip J. Meek Director May 30, 1997
---------------------------------
Phillip J. Meek
* /s/ Robert E. Mercer Director May 30, 1997
---------------------------------
Robert E. Mercer
* /s/ Carl Schafer Director May 30, 1997
---------------------------------
Carl Schafer
* /s/ William Sword Director May 30, 1997
---------------------------------
William Sword
* /s/ Sarah Roush Werner Director May 30, 1997
---------------------------------
Sarah Roush Werner
</TABLE>
* This post-effective amendment to registration statement has been
signed on behalf of the above officers and directors by John M. Glenn, 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 post-effective
amendment to registration statement.
DATED: May 30, 1997 By: /s/ John M. Glenn
------------------------------
John M. Glenn, Attorney-in-Fact
II - 5
<PAGE> 8
THE PLAN. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE PLAN HAS DULY CAUSED THIS POST-EFFECTIVE AMENDMENT TO REGISTRATION STATEMENT
TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE
CITY OF AKRON, STATE OF OHIO, ON MAY 30, 1997.
<TABLE>
<S> <C>
ROADWAY EXPRESS, INC. 401(k) STOCK SAVINGS PLAN
* By: /s/ J. Dawson Cunningham
------------------------------------------------
Name: J. Dawson Cunningham
Title: 401(k) Stock Savings Plan Committee Member
* By: /s/ Thomas V. Lopienski
------------------------------------------------
Name: Thomas V. Lopienski
Title: 401(k) Stock Savings Plan Committee Member
* By: /s/ James D. Staley
------------------------------------------------
Name: James D. Staley
Title: 401(k) Stock Savings Plan Committee Member
</TABLE>
* This post-effective amendment to registration statement has been
signed on behalf of the Roadway Express, Inc. 401(k) Stock Savings Plan through
its Committee Members by John M. Glenn, 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 post-effective amendment to registration
statement.
DATED: May 30, 1997 By: /s/ John M. Glenn
---------------------------------
John M. Glenn, Attorney-in-Fact
II - 6
<PAGE> 9
EXHIBIT INDEX
Exhibit
Number Exhibit Description
------- --------------------
4.1 Second Restated Certificate of Incorporation of Roadway
Express, Inc. (filed as Exhibit 4.1 to the Company's Form S-8
Registration Statement No. 333-2562 filed March 20, 1996, and
incorporated herein by reference).
4.2 Restated Amended By-laws of Roadway Express, Inc. (filed as
Exhibit 4.2 to the Company's Form S-8 Registration Statement
No. 333-2562 filed March 20, 1996, and incorporated herein by
reference).
4.3 Roadway Express, Inc. 401(k) Stock Savings Plan. *
4.4 Amendment No. 1 to Roadway Express, Inc. 401(k) Stock Savings
Plan. *
4.5 Amendment No. 2 to Roadway Express, Inc. 401(k) Stock Savings
Plan. *
4.6 Amendment No. 3 to Roadway Express, Inc. 401(k) Stock Savings
Plan. *
5 Opinion of counsel.
23 Consent of Ernst & Young LLP, Independent Auditors. * (Consent
of counsel is included in Exhibit 5.)
24.1 Powers of Attorney on behalf of certain directors and officers
of the Company. *
24.2 Powers of Attorney on behalf of the Plan committee members. *
- --------------------------------------------------------------------
* Filed with this post-effective amendment to registration statement.
II - 7
<PAGE> 1
Exhibit 4.3
ROADWAY EXPRESS, INC. 401(k) STOCK SAVINGS PLAN
(Effective January 1, 1996)
THIS PLAN is made and executed this 19th day of January, 1996
by Roadway Express, Inc., a Delaware corporation.
W I T N E S S E T H:
WHEREAS, Roadway Express, Inc. is a wholly-owned subsidiary
of Roadway Services, Inc.;
WHEREAS, on or about January 1, 1996, Roadway Express, Inc.
will, pursuant to a spin-off, no longer be affiliated with Roadway Services,
Inc.;
WHEREAS, on or after the spin-off of Roadway Express, Inc.,
Roadway Services, Inc. will be known as Caliber System, Inc.; and
WHEREAS, the Company desires to establish a new qualified
employee benefits plan for its employees;
NOW, THEREFORE, in consideration of the premises the Company
hereby establishes the Roadway Express, Inc. 401(k) Stock Savings Plan to read
as follows:
ARTICLE I
---------
PRELIMINARY MATTERS
-------------------
1.1 Qualified Plan
- -------------------
The Plan is a profit-sharing plan maintained by the Company
for the exclusive benefit of Participants and their Beneficiaries. The Plan is
permitted to acquire and hold shares of common stock of the Company, and is
intended to comply with the provisions of the Code that govern tax-qualified
plans and ERISA.
1.2 Discretionary Powers
- -------------------------
All discretionary powers granted hereunder shall be exercised
in a uniform nondiscriminatory manner.
1.3 Construction
- -----------------
(a) Unless the context otherwise indicates, the masculine
wherever used herein shall include the feminine and neuter, the singular shall
include the plural and words such as "herein", "hereof", "hereby", "hereunder"
and words of similar import refer to the Plan as a whole and not to any
particular part thereof.
<PAGE> 2
(b) Wherever the word "person" appears in the Plan, it shall
refer to both natural and legal persons.
(c) A number of the provisions of the Plan are designed to
contain provisions required or contemplated by certain federal laws and/or
regulations thereunder. All such provisions are intended to have the meaning
required or contemplated by such provisions of such law or regulations and shall
be construed in accordance with valid regulations and valid published
governmental rulings and interpretations of such provisions. In applying such
provisions of the Plan, each Fiduciary may rely (and shall be protected in
relying) on any determination or ruling made by any agency of the United States
Government that has authority to issue regulations, rulings or determinations
with respect to the federal law thus involved.
ARTICLE II
----------
DEFINITIONS
-----------
2.1 Generally
- --------------
The following terms, when used with initial capital letters,
unless the context clearly indicates otherwise, shall have the following
respective meanings.
2.2 Account and Sub-Account
- ---------------------------
"Account" and "Sub-Account" mean the records maintained by
the Plan Administrator in the manner provided in Section 7.2 to determine the
interest of each Participant in the Trust Fund.
2.3 After-Tax Contributions
- ----------------------------
"After-Tax Contributions" means the contributions provided
for in Section 4.1(b) and any other comparable after-tax amounts transferred to
the Plan pursuant to Section 4.13.
2.4 Before-Tax Contributions
- -----------------------------
"Before-Tax Contributions" means the contributions provided
for in Section 4.1(a) and any other comparable before-tax amounts transferred to
the Plan pursuant to Section 4.13.
2.5 Beneficiary
- ---------------
"Beneficiary" means the Participant's Death Beneficiary or
any other person entitled to receive benefits under this Plan by reason of a
Participant's death.
2.6 Board of Directors
- ----------------------
"Board of Directors" means the Board of Directors of the
Company.
2.7 Caliber Stock
- -----------------
"Caliber Stock" means the voting common stock of Caliber
System, Inc.
<PAGE> 3
2.8 Caliber Stock Fund
- -----------------------
"Caliber Stock Fund" means the Investment Fund described in
Section 7.1, which is invested in Caliber Stock.
2.9 Code
- --------
"Code" means the Internal Revenue Code of 1986, as amended.
2.10 Committee or Administrative Committee
- -------------------------------------------
"Committee" or "Administrative Committee" means the committee
established by the Company under Section 9.6 to administer the Plan. The
Committee shall be a Named Fiduciary hereunder.
2.11 Company
- -------------
"Company" means Roadway Express, Inc., a Delaware
corporation. The Company shall be the Plan Administrator and a Named Fiduciary
hereunder.
2.12 Company Stock
- -------------------
"Company Stock" means the voting common stock of the Company.
2.13 Company Stock Fund
- ------------------------
"Company Stock Fund" means the Investment Fund described in
Section 7.1, which is invested in Company Stock.
2.14 Compensation
- ------------------
(a) "Compensation" means the sum of salary paid to an Employee
by all Controlled Group Members in the calendar year plus cash incentive
compensation and overtime pay paid to that Employee, but excluding (i) expense
allowances and other special payments not paid as regular compensation, (ii)
payments pursuant to a tax equalization, relocation or cost of living program,
an expatriate program or any similar programs or arrangements and (iii) any part
of the Employer's contributions under this Plan and/or any pension, welfare,
stock bonus, stock ownership or other qualified or nonqualified plan.
Notwithstanding the foregoing, Compensation shall include any salary that would
have been paid to such Employee had he not signed a salary deferral agreement
that satisfies the requirements of Code Section 401(k), 125 or 129.
(b) Notwithstanding the foregoing, Compensation of any
Employee taken into account for any purpose for any Plan Year shall not exceed
$150,000, as adjusted by the Secretary of the Treasury for increases in the cost
of living in accordance with Code Section 401(a)(17). For purposes of
determining the Compensation of an Employee as limited by the preceding
sentence, in the case of a Highly Compensated Employee who is a five percent
(5%) owner (as such term is defined in Code Section 416(i)(1)) or one of
<PAGE> 4
the ten (10) most Highly Compensated Employees, (i) such Highly Compensated
Employee and his family members (which, for this purpose shall mean an
Employee's Spouse and lineal descendants who have not attained age nineteen (19)
before the close of the Year in question) shall be treated as a single Employee,
and the Compensation of such family members shall be aggregated with the
Compensation of such Highly Compensated Employee, and (ii) the limitation on
Compensation described in the first sentence of this Subsection shall be
allocated among such Highly Compensated Employee and his family members in
proportion to each individual's Compensation.
2.15 Contributions
- ------------------
"Contributions" mean any one or more of After-Tax
Contributions, Before-Tax Contributions, Matching Employer Contributions,
Rollover Contributions, Qualified Nonelective Contributions and Profit Sharing
Contributions, as the context requires.
2.16 Controlled Group
- ----------------------
"Controlled Group" means the Employers and any and all other
corporations, trades and/or businesses, the employees of which, together with
Employees of an Employer, are required by Code Section 414 to be treated as if
they were employed by a single employer. For purposes of Sections 5.9 and 5.10,
"Controlled Group" shall be interpreted in accordance with Code Section 415(h).
2.17 Controlled Group Member
- ----------------------------
"Controlled Group Member" means each corporation or
unincorporated trade or business that is or was a member of the Controlled
Group, but, except as provided in Section 2.39(d), only during such period as it
is or was such a member of the Controlled Group.
2.18 Covered Employee
- ----------------------
"Covered Employee" means any Employee of an Employer who is
in a class or group to which the Employer has extended eligibility for
participation in the Plan, excluding, however, any Employee who (a) is
designated by his Employer as a temporary or casual Employee, (b) is included in
a collective bargaining unit (either directly or through an employer's
association) unless the collective bargaining agreement expressly provides that
the Employee is to be eligible under the Plan, (c) is a non-resident alien
(other than an alien who is only temporarily located outside of the United
States) or (d) is a leased employee (as defined in Section 2.23).
2.19 Death Beneficiary
- -----------------------
<PAGE> 5
"Death Beneficiary" means a Participant's Spouse or, if he has
no Spouse or if his Spouse consents to the designation, such person or persons
other than, or in addition to, his Spouse as may be designated by the
Participant as his Death Beneficiary under the Plan. A Participant's designation
required by this Section may be made, revoked or changed (without the consent of
any previously designated Death Beneficiary, except as provided in this Section)
only by an instrument (in the form provided by the Plan Administrator) that is
signed by the Participant, that, if he has a Spouse, includes his Spouse's
written consent to the action to be taken pursuant to such instrument (unless
such action results in the Spouse being named as the Participant's sole Death
Beneficiary), and that is filed with the Plan Administrator before the
Participant's death. A Spouse's consent required by this Section shall be signed
by the Spouse, shall acknowledge the effect of such consent, shall be witnessed
by a notary public and shall be effective only with respect to such Spouse. A
Spouse's consent is not required if it is established to the satisfaction of the
Committee that the consent cannot be obtained because there is no Spouse,
because the Spouse cannot be located, or because of such other circumstances as
the Secretary of the Treasury may prescribe by regulations. In default of such a
designation and at any other time when there is no existing Death Beneficiary
designated by the Participant, his Death Beneficiary shall be determined by the
Committee in the following order: (a) his Spouse, (b) his children, (c) his
parents, (d) his siblings and (d) his estate. For purposes of the preceding
sentence, "children," "parents" and "siblings" shall only include those
individuals living at the time of the Participant's death and not the
descendants of any child, parent or sibling, as applicable. If a person
designated by a Participant as his Death Beneficiary ceases to exist on or after
the date of the Participant's death, the Death Beneficiary shall be that
person's estate or such other person designated by that person pursuant to this
Section.
2.20 Effective Date
- -------------------
"Effective Date" means January 1, 1996; provided, however,
that the Plan shall be effective upon its execution for purposes of transfers
pursuant to Section 4.13.
2.21 Eligible Employee
- -----------------------
"Eligible Employee" means an Employee who is eligible for
participation in the Plan in accordance with Article III.
2.22 Eligible Rollover Distribution
- ------------------------------------
"Eligible Rollover Distribution" means any distribution or
withdrawal of all or any portion of the Participant's Account, except (a) any
distribution required under Code Section 401(a)(9), (b) any
<PAGE> 6
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).
2.23 Employee
- -------------
"Employee" means any person who is subject to the dominion and
control of a Controlled Group Member with respect to the type, kind, nature and
scope of services furnished and, to the extent required by Code Section 414(n),
any person who is a "leased employee" of a Controlled Group Member. For purposes
of this Section, a "leased employee" means any person who, pursuant to an
agreement between a Controlled Group Member and any other person ("leasing
organization"), has performed services for the Controlled Group Member on a
substantially full-time basis for a period of at least one year, and such
services are of a type historically performed by employees in the business field
of the Controlled Group Member. Contributions or benefits provided to a leased
employee by the leasing organization that are attributable to services performed
for a Controlled Group Member will be treated as provided by the Controlled
Group Member. A leased employee will not be considered an Employee of a
Controlled Group Member, however, if (a) leased employees do not constitute more
than twenty percent (20%) of the Controlled Group Member's nonhighly compensated
work force (within the meaning of Code Section 414(n)(5)(C)(ii)) and (b) such
leased employee is covered by a money purchase pension plan maintained by the
leasing organization that provides (i) a nonintegrated employer contribution
rate of at least ten percent (10%) of Compensation, (ii) immediate participation
and (iii) full and immediate vesting.
2.24 Employer
- -------------
"Employer" means the Company and any other Controlled Group
Member that adopts the Plan as specified in Article XIII. However, any person
that adopts the Plan and thereafter ceases to exist, ceases to be a member of
the Controlled Group or withdraws or is eliminated from the Plan, shall not
thereafter be an Employer. The Employers under the Plan are listed on Exhibit A.
2.25 Employer Contributions
- ----------------------------
"Employer Contributions" means Matching Employer
Contributions as described in Section 5.1, Qualified Nonelective Contributions
as described in Section 5.3 and Profit Sharing Contributions as described in
Section 5.5.
<PAGE> 7
2.26 Employment Commencement Date
- ----------------------------------
"Employment Commencement Date" means the date on which an
Employee first performs an Hour of Service for a Controlled Group Member.
2.27 Enrollment Date
- ---------------------
"Enrollment Date" means each January 1, April 1, July 1 or
October 1.
2.28 ERISA
- -----------
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
2.29 Fiduciary
- ---------------
"Fiduciary" means any person who (a) exercises any
discretionary authority or discretionary control respecting management of the
Plan or exercises any authority or control respecting management or disposition
of the Trust Fund, (b) renders investment advice for a fee or other
compensation, direct or indirect, with respect to the Trust Fund, or has
authority or responsibility to do so, or (c) has any discretionary authority or
discretionary responsibility in the administration of the Plan or the Trust
Fund. The term "Fiduciary" shall also include any person to whom a Named
Fiduciary delegates any of his fiduciary responsibilities hereunder in
accordance with the provisions of the Plan, as long as such designation is in
effect.
2.30 Hardship
- -------------
"Hardship" means an immediate and heavy financial need on the
part of a Participant for:
(a) expenses for medical care described in Code Section
213(d) previously incurred by the Participant, his Spouse, or any dependents of
the Participant (as defined in Code Section 152), or expenses necessary for
these persons to obtain such medical care;
(b) costs directly related to the purchase (excluding
mortgage payments) of a principal residence for the Participant;
(c) the payment of tuition, related educational fees, and
room and board expenses for the next twelve (12) months of post-secondary
education for the Participant, his Spouse, his children or his dependents (as
defined in Code Section 152);
(d) payments necessary to prevent the eviction of the
Participant from his principal residence or foreclosure on the mortgage of the
Participant's principal residence; or
(e) any other financial need that the Commissioner of
Internal Revenue, through the publication of revenue rulings, notices and other
documents of general applicability, may from time to time
<PAGE> 8
designate as a deemed immediate and heavy financial need as provided in Treasury
Regulations Section 1.401(k)-1(d)(2)(iv)(C).
2.31 Highly Compensated Employee
- ---------------------------------
(a) "Highly Compensated Employee" means, for a particular
Plan Year, any Employee:
(i) who, during the preceding Plan Year, (A) was at any time
a five percent (5%) owner (as such term is defined in Code Section
416(i)(1)), (B) received compensation from the Controlled Group in
excess of the amount in effect for such Plan Year under Code Section
414(q)(1)(B), (C) received compensation from the Controlled Group in
excess of the amount in effect for such Plan Year under Code Section
414(q)(1)(C) and was in the top-paid group of Employees for such Plan
Year, or (D) was at any time an officer (limited to no more than fifty
(50) Employees or, if lesser, the greater of three (3) Employees or
ten percent (10%) of the Employees) and received compensation greater
than fifty percent (50%) of the amount in effect under Code Section
415(b)(1)(A) for such Year; or
(ii) who during the particular Plan Year (but not the prior
Plan Year) (A) was at any time a five percent (5%) owner (as such term
is defined in Code Section 416(i)(1)) or (B) was included in the
Subparagraph (B), (C) or (D) of Paragraph (i) of this Subsection and
was in the group consisting of the one hundred (100) Employees paid the
greatest compensation by the Controlled Group during such Plan Year.
(b) "Highly Compensated Employee" shall include a former
Employee whose Termination of Employment occurred prior to the Plan Year and who
was a Highly Compensated Employee for the Plan Year in which his Termination of
Employment occurred or for any Plan Year ending on or after his fifty-fifth
(55th) birthday.
(c) For the purposes of this Section, (i) the term
"compensation" shall mean the sum of an Employee's compensation under Section
5.9(c) and the Employee's Before-Tax Contributions (subject to the limitations
described in Section 2.14(b)) and (ii) the term "top-paid group of Employees"
shall mean that group of Employees of the Controlled Group consisting of the top
twenty percent (20%) of such Employees when ranked on the basis of compensation
paid by the Controlled Group during the Plan Year.
2.32 Hours of Service
- ---------------------
"Hours of Service" means an hour for which an Employee is
paid, or entitled to payment, by one or more Controlled Group Members for the
performance of duties as an Employee.
<PAGE> 9
2.33 Instrument of Adoption
- ----------------------------
"Instrument of Adoption" means the instrument referred to in
Section 13.1 by which a corporation or other business organization, among other
things, adopts the Plan and designates a group or groups of its Employees as
Covered Employees under the Plan.
2.34 Investment Funds
- ----------------------
"Investment Funds" means any of the funds provided for in
Section 7.1.
2.35 Matching Employer Contributions
- -------------------------------------
"Matching Employer Contributions" means the contributions
provided for in Section 5.1 or any other comparable matching contributions
transferred to the Plan pursuant to Section 4.13.
2.36 Named Fiduciary
- ---------------------
"Named Fiduciary," within the meaning of section 402 of ERISA,
means the Committee, the Company, the Trustee and each other person designated
as a Named Fiduciary by the Committee pursuant to the power of delegation
reserved to the Committee in Section 9.2.
2.37 1-Year Break in Service
- ----------------------------
(a) "1-Year Break in Service" means a twelve (12) month period
beginning on an Employee's Severance Date and ending on the first anniversary of
such Date, provided that during such period the Employee does not perform an
Hour of Service.
(b) If an Employee is absent from work for any period due to
(i) the pregnancy of the Employee, (ii) the birth of a child of the Employee,
(iii) the placement of a child with the Employee in connection with the adoption
of such child by the Employee, or (iv) caring for a child for a period beginning
immediately following the birth or placement of such child, such Employee shall
not, solely by reason of such absence, be considered to have incurred a Period
of Severance until the expiration of the twenty-four (24) consecutive month
period commencing on the first day of such absence and shall incur a 1-Year
Break in Service if he does not perform an Hour of Service during the twelve
(12) month period immediately following such twenty-four (24) month period.
2.38 Participant
- ----------------
"Participant" means an Employee who has become and continues
to be a Participant in accordance with the provisions of Article III, or any
former Employee who was a Participant while employed by an Employer and who
continues to have a vested interest in the Plan. "Participant" shall also mean
any Employee who was a participant in the Roadway Services, Inc. Stock Savings
and Retirement Income Plan
<PAGE> 10
and Trust, as amended and restated, on December 31, 1995 and whose account
balance in such plan has been transferred to the Plan after the Effective Date;
provided, however, that such an Employee who does not otherwise meet the
requirements for participation contained in Article III shall not be entitled to
make Before-Tax or After-Tax Contributions pursuant to Article IV or to receive
an allocation of Matching Employer Contributions, Qualified Nonelective
Contributions or Profit Sharing Contributions pursuant to Article V.
2.39 Period of Service
- ----------------------
(a) "Period of Service" means, except as provided in
Subsections (c) or (e) of this Section, the total of an Employee's periods of
Service commencing with his Employment Commencement Date (or Reemployment
Commencement Date, if applicable) and ending on his next following Severance
Date.
(b) If an Employee, whose Period of Severance occurs as a
result of a quit, discharge, or retirement, performs an Hour of Service for a
Controlled Group Member within the twelve (12) consecutive month period
beginning on his Severance Date, the period beginning on his Severance Date and
ending on the date on which he performs an Hour of Service shall be taken into
account in determining his Period of Service hereunder. Notwithstanding the
foregoing, if an Employee's Period of Severance occurs as a result of a quit,
discharge or retirement during a period of absence referred to in Section
2.40(a)(ii), the period beginning on his Severance Date (i.e., the date of the
quit, discharge, or retirement) and ending on the date on which he performs an
Hour of Service shall not be taken into account in determining his Period of
Service unless he performs such Hour of Service within twelve (12) months of the
date on which the Employee was first absent.
(c) In the case of any Employee who incurs a Period of
Severance that includes at least one 1-Year Break in Service and who later again
becomes an Employee, any Period of Service before such Period of Severance (a
"Prior Period of Service") shall not be taken into account in determining his
Period of Service hereunder if at the beginning of such Period of Severance he
did not have a nonforfeitable right to a benefit under the Plan and the length
of his Period of Severance equals or exceeds five (5) years; and the length of
his Prior Period of Service shall not include any time that is not required to
be counted under this Section by reason of any prior Period of Severance that
included at least one 1-Year Break in Service.
(d) (Controlled Group Member) A Covered Employee's Period of
Service shall include any employment with a Controlled Group Member who is not
an Employer prior to the date that entity became
<PAGE> 11
a Controlled Group Member, provided that such Covered Employee was employed by
such Controlled Group Member immediately prior to becoming a Covered Employee.
(e) (Predecessor Employer) Notwithstanding anything in this
Section to the contrary, an Employee's Period of Service shall include service
with the Predecessor Employer prior to January 1, 1996.
(f) Notwithstanding anything in the Plan to the contrary, an
Employee shall be credited with such Periods of Service not otherwise credited
to him under the Plan as may be required by applicable law and no Employee shall
be credited with a Period of Service more than once for the same period of
employment unless otherwise required by applicable law.
2.40 Period of Severance and Severance Date
- -------------------------------------------
(a) "Period of Severance" means, except as provided in Section
2.37(b), the period commencing with the earlier of (i) the date on which an
Employee separates from Service by reason of quitting, retirement, death or
discharge, or (ii) the date twelve (12) months after the date an Employee
remains absent from Service (with or without pay) for any reason other than
quitting, retirement, death or discharge, and ending, if applicable, with the
date such Employee resumes Service.
(b) "Severance Date" means the date on which an Employee's
Period of Severance commences.
2.41 Plan
- ---------
"Plan" means the Roadway Express, Inc. 401(k) Stock Savings
Plan, the terms and provisions of which are hereinafter set forth, as the same
may be amended from time to time.
2.42 Plan Administrator
- ------------------------
"Plan Administrator" means, as defined in ERISA Section
3(16)(A) and Code Section 414(g), the Company, which may delegate all or any
part of its powers, duties and authorities in such capacity (without ceasing to
be the Plan Administrator) as hereinafter provided.
2.43 Plan Year
- ---------------
"Plan Year" means a twelve (12) month period beginning
January 1 and ending December 31 of each year.
2.44 Predecessor Employer
- --------------------------
"Predecessor Employer" means, for the periods prior to
January 1, 1996, Roadway Services, Inc. and any and all other corporations,
trades and/or businesses, the employees of which, together with
<PAGE> 12
Employees of the Company, were required by Code Section 414 to be treated as if
they were employed by a single employer.
2.45 Prior Plans
- -----------------
"Prior Plans" means the Roadway Services, Inc. Stock Savings
and Retirement Income Plan and Trust, as amended and restated, and the Roadway
Services, Inc. Stock Bonus Plan and Trust, as amended and restated, as each are
in effect on the Effective Date.
2.46 Profit Sharing Contributions
- ----------------------------------
"Profit Sharing Contributions" means Employer contributions
as specified in Section 5.5.
2.47 Qualified Nonelective Contributions
- -----------------------------------------
"Qualified Nonelective Contributions" means contributions
made by an Employer pursuant to Section 5.3 that (a) Participants eligible to
share therein may not elect to receive in cash until distribution from the Plan,
(b) are nonforfeitable when made, (c) are distributable only in accordance with
the distribution rules applicable to Before-Tax Contributions and (d) are paid
to the Trust Fund during the Plan Year for which made or within the time
following the close of such Plan Year which is prescribed by law for the filing
by an Employer of its federal income tax return (including extensions thereof).
2.48 Reemployment Commencement Date
- -----------------------------------
"Reemployment Commencement Date" means the date following an
Employee's 1-Year Break in Service on which he again performs an Hour of Service
for a Controlled Group Member.
2.49 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.
2.50 Salary Reduction Agreement
- --------------------------------
"Salary Reduction Agreement" means the arrangement provided
for in Section 3.2(c).
2.51 Service
- ------------
"Service" means employment with any Controlled Group Member.
2.52 Spin-off
- --------------
"Spin-off" means the day upon which the spin-off of the
Company from Roadway Services, Inc. occurs.
<PAGE> 13
2.53 Spouse
- ------------
"Spouse" means the person to whom an Employee is legally
married at the specified time; provided, however, that a former Spouse may be
treated as a Spouse or surviving Spouse to the extent required under the terms
of a "qualified domestic relations order" (as such term is defined in Code
Section 414(p)).
2.54 Stock Bonus Portion
- -------------------------
"Stock Bonus Portion" means the portion of each Participant's
Account which is attributable to his former account balance in the Roadway
Services, Inc. Stock Bonus Plan and Trust, as amended and restated and
transferred to the Plan pursuant to Section 4.13.
2.55 Termination of Employment
- ------------------------------
"Termination of Employment" means the earlier of a
Participant's cessation of active employment with the Controlled Group through
quit, discharge, death or retirement or the date that is twelve (12) months
after his last day worked with the Controlled Group.
2.56 Totally and Permanently Disabled
- -------------------------------------
"Totally and Permanently Disabled" means a physical or mental
condition of a Participant resulting from a bodily injury or disease or mental
disorder, arising after the date the Participant's Service commences, which
renders him incapable of continuing in the employment of his present Employer.
The total and permanent disability of a Participant shall be determined by the
Committee based upon appropriate medical advice and examination.
2.57 Trust
- ----------
"Trust" means the trust established under the Trust Agreement
for the holding, investment, administration and distribution of the Trust Fund.
2.58 Trust Agreement
- ---------------------
"Trust Agreement" means the Trust Agreement between the
Company and the Trustee providing, among other things, for the Trust and the
establishment of the Trust Fund, as such Trust Agreement shall be amended from
time to time, or any trust agreement superseding the same. The Trust Agreement
is hereby incorporated into the Plan by reference.
2.59 Trust Fund
- ----------------
"Trust Fund" means the assets held by the Trustee under the
provisions of the Trust Agreement, without distinction as to principal or
interest.
<PAGE> 14
2.60 Trustee
- -------------
"Trustee" means the trustee or trustees appointed pursuant to
the Trust Agreement,and any successor Trustee thereto.
2.61 Valuation Date
- --------------------
"Valuation Date" means the last business day of each calendar
month and such other dates selected by the Committee.
2.62 Year of Service
- ---------------------
"Year of Service" means each portion of an Employee's Period
of Service that equals 365 days (whether or not consecutive).
ARTICLE III
-----------
ELIGIBILITY FOR PARTICIPATION
-----------------------------
3.1 Conditions of Eligibility
- ------------------------------
(a) Any Employee who was a participant in the Roadway
Services, Inc. Stock Savings and Retirement Income Plan and Trust, as amended
and restated, on December 31, 1995 and who is a Covered Employee on the
Effective Date shall be an Eligible Employee under the Plan.
(b) Each other Employee shall become an Eligible Employee on
the first Enrollment Date following the date on which he meets the following
requirements: (1) he is a Covered Employee, (2) he has attained age twenty-one
(21) and is credited with at least one (1) Year of Service, and (3) he has
satisfied any additional eligibility requirements included in his Employer's
Instrument of Adoption.
3.2 Enrollment
- --------------
Any Eligible Employee described in Section 3.1 may enroll as a
Participant in the Plan on the Enrollment Date on which he is initially eligible
or on any subsequent Enrollment Date by satisfying any enrollment procedures
established by the Plan Administrator and within such period established by the
Plan Administrator before such Date. These procedures shall govern the filing of
information, including (a) a Participant's election, commencing on or after the
effective date on which the Eligible Employee is to become a Participant, to
have Before-Tax Contributions and/or After-Tax Contributions made by or for him
to the Trust Fund, (b) his authorization, if any, to his Employer to withhold
from his Compensation, any designated Before-Tax Contributions and to pay the
same to the Trust Fund (his "Salary Reduction Agreement"), (c) his
authorization, if any, to his Employer to withhold from his Compensation any
designated After-Tax Contributions
<PAGE> 15
and to pay the same to the Trust, (d) his direction that Contributions made by
or for him be invested in the Investment Funds as permitted by Section 7.5, and
(e) any other information required by the Plan Administrator.
3.3 Duration of Participation
- ------------------------------
An Employee or former Employee shall remain a Participant so
long as (a) he meets the requirements of Section 3.1, or (b) a portion of the
Trust Fund is credited to his Account and held for his benefit by the Trustee.
However, a Participant who ceases to meet the requirements of Section 3.1, may
make no further After-Tax Contributions and may have no Before-Tax Contributions
or Matching Employer Contributions made for him until he again becomes an
Eligible Employee and he again enrolls as a contributing Participant pursuant to
Section 3.2. If an Eligible Employee ceases to be an Eligible Employee and later
again becomes an Eligible Employee, he may again, subject to the foregoing
limitations of this Section, participate in the Plan on the day he so again
becomes an Eligible Employee.
3.4 Participation Due to Administrative Error
- ---------------------------------------------
Any Employee of an Employer who was allowed to participate in
the Plan through an administrative error but who is not a Covered Employee (as
defined in Section 2.18) shall be considered an Eligible Employee for purposes
of his initial participation in the Plan, but shall cease to be considered an
Eligible Employee (and, therefore, shall cease to meet the requirements of
Section 3.1) on the date such error is discovered. Notwithstanding the
foregoing, this Section shall only apply to an Employee who is not a Highly
Compensated Employee.
ARTICLE IV
----------
PARTICIPANT CONTRIBUTIONS
-------------------------
4.1 Amount of Before-Tax and After-Tax Contributions
- -----------------------------------------------------
(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 fourteen and one-half percent
(14 1/2%) of his Compensation (in 1/2% increments) through equal pay period
reductions.
(b) Upon enrollment pursuant to Section 3.2, a Participant may
elect to make After-Tax Contributions to the Trust of up to four and a half
percent (4 1/2%) of his Compensation (in 1/2% increments) through equal pay
period reductions.
(c) Notwithstanding the foregoing, if a Participant's
Before-Tax Contributions and/or After-Tax Contributions must be reduced to
comply with the requirements of Section 4.7 or 4.8, as applicable, or the
requirements of applicable law, his Before-Tax Contributions and/or After-Tax
Contributions as so reduced will
<PAGE> 16
be the maximum percentages of his Compensation permitted by such Section or law
and the increment requirements listed above shall not apply.
4.2 Maximum and Minimum Contributions
- --------------------------------------
A Participant's Before-Tax Contributions and/or After-Tax
Contributions with respect to any pay period must equal at least one and
one-half percent (1 1/2%) of his Compensation and may not, in the aggregate,
exceed fourteen and one-half percent (14 1/2%) of his Compensation. The
Committee shall have the discretion to reduce or suspend the Before-Tax
Contributions and/or to reduce, suspend or increase After-Tax Contributions of
any Employee to satisfy any of the limits expressed in this Article.
4.3 Payments to Trustee
- -----------------------
Before-Tax Contributions and After-Tax Contributions that are
made by or for a Participant shall be transmitted by the Employers to the
Trustee as soon as practicable, but in no event later than thirty (30) days
after the end of the calendar month in which such Contributions would otherwise
have been paid to the Participant.
4.4 Changes in Contributions
- ----------------------------
The percentage or percentages designated by a Participant
pursuant to Section 4.1 shall continue in effect, notwithstanding any changes in
the Participant's Compensation. A Participant may, however, in accordance with
the percentages permitted by Sections 4.1 and 4.2, change the percentage of his
Before-Tax Contributions and/or his After-Tax Contributions effective as of the
first pay period of any calendar quarter upon prior notice filed with the Plan
Administrator within such period established by the Plan Administrator.
Notwithstanding the foregoing, the Plan Administrator may, pursuant to uniform
nondiscriminatory procedures, increase the Participant's After-Tax Contributions
for the remainder of the Plan Year if such Participant's Before-Tax
Contributions are ceased as a result of the application of Section 4.6.
4.5 Suspension and Resumption of Contributions
- ----------------------------------------------
Upon prior notice filed with the Plan Administrator, within
such period established by the Plan Administrator, a Participant may at any time
suspend his Before-Tax Contributions and/or After-Tax Contributions effective
with the start of the next payroll period following the expiration of such
period, provided such suspension must be made for not less than one (1) calendar
quarter. A Participant who has so suspended his Before-Tax Contributions and/or
After-Tax Contributions may, upon prior notice filed with the Plan
<PAGE> 17
Administrator, within such period established by the Plan Administrator, resume
making such Contributions as of the first full pay period following such period
of suspension if he is an Eligible Employee on such date.
4.6 Excess Deferrals
- ---------------------
(a) Notwithstanding the foregoing provisions of this Article,
a Participant's Before-Tax Contributions for any taxable year of such
Participant shall not exceed the limitation in effect under Code Section 402(g).
Except as otherwise provided in this Section, a Participant's Before-Tax
Contributions for purposes of this Section shall include (i) any employer
contribution made under any qualified cash or deferred arrangement as defined in
Code Section 401(k) to the extent not includible in gross income for the taxable
year under Code Section 402(e)(3) (determined without regard to Code Section
402(g)), (ii) any employer contribution to the extent not includible in gross
income for the taxable year under Code Section 402(h)(1)(B) (determined without
regard to Code Section 402(g)) and (iii) any employer contribution to purchase
an annuity contract under Code Section 403(b) under a salary reduction agreement
within the meaning of Code Section 3121(a)(5)(D).
(b) In the event that a Participant's Before-Tax Contributions
exceed the amount described in Subsection (a) of this Section (hereinafter
called "excess deferrals"), such excess deferrals (and any income allocable
thereto) shall be distributed to the Participant by April 15 following the close
of the taxable year in which such excess deferrals occurred if (and only if), by
April 15 of such taxable year the Participant (i) allocates the amount of such
excess deferrals among the plans under which the excess deferrals were made and
(ii) notifies the Plan Administrator of the portion allocated to this Plan.
(c) In the event that a Participant's Before-Tax Contributions
under this Plan exceed the amount described in Subsection (a) of this Section,
or in the event that a Participant's Before-Tax Contributions made under this
Plan do not exceed such amount but he allocates a portion of his excess
deferrals to his Before-Tax Contributions made to this Plan, Matching Employer
Contributions, if any, made with respect to such Before-Tax Contributions (and
any income allocable thereto) shall be applied to reduce subsequent Matching
Employer Contributions required under the Plan.
4.7 Excess Before-Tax Contributions
- -----------------------------------
(a) Notwithstanding the provisions of this Article and Article
V, for any Plan Year,
(i) the actual deferral percentage (as defined in Subsection
(b) of this Section) for the group of Highly Compensated Eligible
Employees (as defined in Subsection (c) of this Section) for such Plan
Year shall not exceed the actual deferral percentage for all other
Eligible Employees for such Plan Year multiplied by 1.25, or
<PAGE> 18
(ii) the excess of the actual deferral percentage for the
group of Highly Compensated Eligible Employees for such Plan Year over
the actual deferral percentage for all other Eligible Employees for
such Plan Year shall not exceed two (2) percentage points, and the
actual deferral percentage for the group of Highly Compensated Eligible
Employees for such Plan Year shall not exceed the actual deferral
percentage for all other Eligible Employees for such Plan Year
multiplied by two (2).
If two or more plans that include cash or deferred arrangements are considered
as one plan for purposes of Code Sections 401(a)(4) or 410(b), such arrangements
included in such plans shall be treated as one arrangement for the purposes of
this Subsection; and if any Highly Compensated Eligible Employee is a
participant under two or more cash or deferred arrangements of the Controlled
Group, all such arrangements shall be treated as one cash or deferred
arrangement for purposes of determining the deferral percentage with respect to
such Highly Compensated Eligible Employee.
(b) For the purposes of this Section, the actual deferral
percentage for a specified group of Eligible Employees for a Plan Year shall be
the average of the ratios (calculated separately for each Eligible Employee in
such group) of (i) the amount of Before-Tax Contributions and, at the election
of an Employer, any Qualified Nonelective Contributions, actually paid to the
Trust for each such Eligible Employee for such Plan Year (including any "excess
deferrals" described in Plan Section 4.6(b)) to (ii) the Eligible Employee's
compensation for such Plan Year. For the purposes of this Subsection, the term
"compensation" shall mean the sum of an Eligible Employee's compensation under
Section 5.9(c) and his Before-Tax Contributions (subject to the limitations
described in Section 2.14(b)).
In the case of a Highly Compensated Eligible Employee who is
either a 5-percent owner (as defined in Code Section 416(i)(1)) or one of the
ten (10) most Highly Compensated Employees, the combined actual deferral ratio
for the family group (as such term is hereinafter defined), which shall be
treated as one Highly Compensated Eligible Employee, shall be determined by
combining the Before-Tax Contributions (and Qualified Nonelective Contributions,
if any) and compensation of all members of the family group who are Eligible
Employees. For purposes of this Subsection, the term "family group" shall mean
any Highly Compensated Eligible Employee described in the preceding sentence and
such Employee's Spouse and lineal ascendants or descendants and the spouses of
such lineal ascendants or descendants. For the purposes of determining "the
actual deferral percentage for all other Eligible Employees" as referred to in
Subsection (a) of this Section, the Before-Tax Contributions (and Qualified
Nonelective Contributions, if any) and compensation of all members of the family
group shall be disregarded.
<PAGE> 19
(c) For the purposes of this Section, the term "Highly
Compensated Eligible Employee" for a particular Plan Year shall mean any Highly
Compensated Employee who is an Eligible Employee.
(d) In the event that excess contributions (as such term is
hereinafter defined) are made to the Trust for any Plan Year, then, prior to
March 15 of the following Plan Year, such excess contributions (and any income
allocable thereto) shall be distributed to the Highly Compensated Eligible
Employees on the basis of the respective portions of the excess contributions
attributable to each such Eligible Employee. For the purposes of this
Subsection, the term "excess contributions" shall mean, for any Plan Year, the
excess of (i) the aggregate amount of Before-Tax Contributions actually paid to
the Trust on behalf of Highly Compensated Eligible Employees for such Plan Year
over (ii) the maximum amount of such Before-Tax Contributions permitted for such
Plan Year under Subsection (a) of this Section, determined by reducing
Before-Tax Contributions made on behalf of Highly Compensated Eligible Employees
in order of the actual deferral percentages (as defined in Subsection (b) of
this Section) beginning with the highest of such percentages.
Notwithstanding the foregoing provisions of this Subsection,
in the case of a Highly Compensated Eligible Employee whose actual deferral
ratio is determined under the family aggregation rules set forth in Subsection
(b) of this Section, the determination and correction of the amount of excess
contributions shall be made by reducing the actual deferral ratio in accordance
with the "leveling" method described in Treasury Regulations Section
1.401(k)-1(f)(2) and allocating the excess contributions for the family group
among its members in proportion to the Before-Tax Contributions of each member
of the family group that is combined to determine the actual deferral ratio.
(e) Matching Employer Contributions made with respect to a
Participant's excess contributions (and any income allocable thereto) shall be
applied to reduce subsequent Matching Employer Contributions required under the
Plan.
4.8 Excess Matching Employer and After-Tax Contributions
- --------------------------------------------------------
(a) Notwithstanding the foregoing provisions of this Article
or the provisions of Article V, for any Plan Year the contribution percentage
(as defined in Subsection (b) of this Section) for the group of Highly
Compensated Eligible Employees (as defined in Plan Section 4.7(c)) for such Plan
Year shall not exceed the greater of (i) one hundred twenty-five percent (125%)
of the contribution percentage for all other Eligible Employees, or (ii) the
lesser of two hundred percent (200%) of the contribution percentage for all
other Eligible Employees or the contribution percentage for all other Eligible
Employees plus two (2) percentage points. If two or more plans of the Controlled
Group to which matching employer contributions, employee after-tax
<PAGE> 20
contributions or Before-Tax Contributions (as defined in Section 4.6(a)) are
made are treated as one plan for purposes of Code Section 410(b), such plans
shall be treated as one plan for purposes of this Subsection; and if a Highly
Compensated Eligible Employee participates in two or more plans of the
Controlled Group to which such contributions are made, all such contributions
shall be aggregated for purposes of this Subsection.
(b) For the purposes of this Section, the contribution
percentage for a specified group of Eligible Employees for a Plan Year shall be
the average of the ratios (calculated separately for each Eligible Employee in
such group) of (i) the sum of the Matching Employer Contributions, After-Tax
Contributions and, at the election of an Employer, any Qualified Nonelective
Contributions paid under the Plan by or on behalf of each such Eligible Employee
for such Plan Year to (ii) the Eligible Employee's compensation (as defined in
Section 4.7(b)) for such Plan Year.
In the case of a Highly Compensated Eligible Employee who is
either a 5-percent owner (as defined in Code Section 416(i)(1)) or one of the
ten (10) most Highly Compensated Employees, the combined contribution ratio for
the family group (as such term is defined in Section 4.7(b)), which shall be
treated as one Highly Compensated Employee, shall be determined by combining the
Matching Employer Contributions (and Qualified Nonelective Contributions, if
applicable) and compensation of all members of the family group who are Eligible
Employees. For the purposes of determining "the contribution percentage for all
other Eligible Employees" as referred to in Subsection (a) of this Section, the
Matching Employer Contributions (and Qualified Nonelective Contributions, if
applicable) and compensation of all members of the family group shall be
disregarded.
(c) In the event that excess aggregate contributions (as such
term is hereinafter defined) are made to the Trust for any Plan Year, then,
prior to March 15 of the following Plan Year, such excess aggregate
contributions (and any income allocable thereto) shall be forfeited (if
forfeitable) and applied as provided in Section 5.7 or (if not forfeitable)
shall be distributed to the Highly Compensated Eligible Employees on the basis
of the respective portions of the excess contributions attributable to each such
Eligible Employee. For the purposes of this Subsection, the term "excess
aggregate contributions" shall mean, for any Plan Year, the excess of (i) the
aggregate amount of the Matching Employer Contributions and After-Tax
Contributions actually paid to the Trust by or on behalf of Highly Compensated
Eligible Employees for such Plan Year over (ii) the maximum amount of such
Matching Employer Contributions and After-Tax Contributions permitted for such
Plan Year under Subsection (a) of this Section, determined by reducing Matching
Employer Contributions and After-Tax
<PAGE> 21
Contributions made by or on behalf of Highly Compensated Eligible Employees in
order of their contribution percentages (as defined in Subsection (b) of this
Section) beginning with the highest of such percentages.
Notwithstanding the foregoing provisions of this Subsection,
in the case of a Highly Compensated Eligible Employee whose contribution
percentage is determined under the family aggregation rules set forth in
Subsection (b) of this Section, the determination and correction of the amount
of excess aggregate contributions shall be made by reducing the contribution
ratio in accordance with the "leveling" method described in Treasury Regulation
Section 1.401(m)-1(e)(2) and allocating the excess aggregate contributions for
the family group among its members in proportion to the Matching Employer
Contributions and After-Tax Contributions of each member of the family group
that is combined to determine the contribution ratio.
(d) The determination of excess aggregate contributions under
this Section shall be made after (i) first determining the excess deferrals
under Section 4.6 and (ii) then determining the excess contributions under
Section 4.7.
4.9 Multiple Use of the Alternative Limitation
- -----------------------------------------------
(a) Notwithstanding the foregoing provisions of this Article
or the provisions of Article V, if, after the application of Sections 4.6, 4.7
and 4.8, the sum of the actual deferral percentage and the contribution
percentage for the group of Highly Compensated Eligible Employees (as defined in
Section 4.7(c)) exceeds the aggregate limit (as defined in Subsection (b) of
this Section), then the contributions made for such Plan Year for Highly
Compensated Eligible Employees will be reduced so that the aggregate limit is
not exceeded. Such reductions shall be made first in After-Tax Contributions
(but only to the extent that they are not matched by Matching Employer
Contributions) then in Before-Tax Contributions (but only to the extent that
they are not matched by Matching Employer Contributions) and then in Matching
Employer Contributions. Reductions in contributions shall be made in the manner
provided in Section 4.7 or 4.8, as applicable. The amount by which each such
Highly Compensated Eligible Employee's contributions are reduced shall be
treated as an excess contribution or an excess aggregate contribution under
Section 4.7 or 4.8, as applicable. For the purposes of this Section, the actual
deferral percentage and contribution percentage of the Highly Compensated
Eligible Employees are determined after any reductions required to meet those
tests under Sections 4.7 and 4.8. Notwithstanding the foregoing provisions of
this Section, no reduction shall be required by this Subsection if either (i)
the actual deferral percentage of the Highly Compensated Eligible Employees does
not exceed 1.25 multiplied by the actual deferral percentage of the non-Highly
Compensated Eligible Employees, or (ii) the
<PAGE> 22
contribution percentage of the Highly Compensated Eligible Employees does not
exceed 1.25 multiplied by the contribution percentage of the non-Highly
Compensated Eligible Employees.
(b) For purposes of this Section, the term "aggregate limit"
means the sum of (i) one hundred twenty-five percent (125%) of the greater of
(A) the actual deferral percentage of the non-Highly Compensated Eligible
Employees for the Plan Year, or (B) the contribution percentage of the
non-Highly Compensated Eligible Employees for the Plan Year, and (ii) the lesser
of (A) two hundred percent (200%) of, or (B) two (2) plus the lesser of such
actual deferral percentage or contribution percentage. If it would result in a
larger aggregate limit, the word "lesser" is substituted for the word "greater"
in part (i) of this Subsection, and the word "greater" is substituted for the
word "lesser" in part (ii)(B) of this Subsection.
4.10 Monitoring Procedures
- --------------------------
(a) In order to ensure that at least one of the actual
deferral percentages specified in Section 4.7(a) and at least one of the
contribution percentages specified in Section 4.8(a) and the aggregate limit
specified in Section 4.9(b) are satisfied for each Plan Year, the Committee
shall monitor (or cause to be monitored) the amount of Before-Tax Contributions,
After-Tax Contributions and Matching Employer Contributions being made to the
Plan by or for each Eligible Employee during each Plan Year. In the event that
the Committee determines that neither of such actual deferral percentages,
neither of such contribution percentages or such aggregate limit will be
satisfied for a Plan Year, and if the Committee in its sole discretion
determines that it is necessary or desirable, the Before-Tax Contributions,
After-Tax Contributions and/or the Matching Employer Contributions made
thereafter by or for each Highly Compensated Eligible Employee (as defined in
Section 4.7(c)) may be reduced (pursuant to non-discriminatory rules adopted by
the Committee) to the extent necessary to decrease the actual deferral
percentage and/or the contribution percentage for Highly Compensated Eligible
Employees for such Plan Year to a level that satisfies either of the actual
deferral percentages, either of the contribution percentages and/or the
aggregate limit. In the case of Section 4.8, such reductions shall be made first
in the After-Tax Contributions, if any, to be made by the Highly Compensated
Eligible Employees.
(b) In order to ensure that excess deferrals (as such term is
defined in Section 4.6(b)) shall not be made to the Plan for any taxable year
for any Participant, the Committee shall monitor (or cause to be monitored) the
amount of Before-Tax Contributions being made to the Plan for each Participant
during each taxable year and may take such action (pursuant to
non-discriminatory rules adopted by the Committee) to prevent Before-Tax
Contributions made for any Participant under the Plan for any taxable year from
exceeding the maximum amount applicable under Section 4.6(a).
<PAGE> 23
(c) The actions permitted by this Section are in addition to,
and not in lieu of, any other actions that may be taken pursuant to other
Sections of the Plan or that may be permitted by applicable law or regulation in
order to ensure that the limitations described in Sections 4.6 through 4.9 are
met.
4.11 Testing Procedures
- -----------------------
In applying the limitations set forth in Sections 4.7, 4.8 and
4.9, the Committee may, at its option, utilize such testing procedures as may be
permitted under Code Sections 401(a)(4), 401(k), 401(m) or 410(b), including,
without limitation, (a) aggregation of the Plan with one or more other qualified
plans of the Controlled Group, (b) restructuring of the Plan or any other
qualified plan of the Controlled Group into one or more component plans, (c)
inclusion of qualified matching contributions, qualified nonelective
contributions or elective deferrals described in, and meeting the requirements
of, Treasury Regulations under Code Sections 401(k) and 401(m) to any other
qualified plan of the Controlled Group in applying the limitations set forth in
Sections 4.7, 4.8 and 4.9, or (d) any permissible combination thereof.
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 Covered Employee 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 Covered Employee was a participant or from an individual
retirement account described in Code Section 408(d)(3)(A)(ii) or in a
distribution which constitutes an "eligible 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 4.12.
4.13 Transfers to this Plan from Other Plans
- ---------------------------------------------
The Trustee shall, at the direction of the Company, receive
and thereafter hold and administer as a part of the Trust Fund for a Participant
all cash and other property which may be transferred to the Trustee from a trust
held under another plan in which the Participant was a participant, which meets
the requirements of sections 401(a) and 501(a) of the Code ("a qualified trust")
and which is not subject to the survivor annuity requirements of section
401(a)(11) of the Code.
<PAGE> 24
ARTICLE V
---------
EMPLOYER CONTRIBUTIONS
----------------------
5.1 Amount of Matching Employer Contributions
- ----------------------------------------------
Subject to the provisions of the Plan, each Employer shall, as
and to the extent it lawfully may, contribute to the Trust on account of each
Plan Year an amount of cash or Company Stock equal in value to one hundred
percent (100%) of the Before-Tax and After-Tax Contributions described in
Section 5.2. The Company may provide for Matching Employer Contributions to be
made in whole or partial payments, at any time during such Year or within the
time following the close of such Year that is prescribed by law for filing its
federal income tax return (including extensions thereof). Notwithstanding any
provision of the Plan to the contrary, in no event shall an Employee's Matching
Employer Contributions on account of any Plan Year exceed the maximum amount
deductible for such Year for purposes of federal taxes on income under
applicable provisions of the Code, and such Contributions shall be made on the
condition that they are deductible under applicable provisions of the Code.
5.2 Allocation of Matching Employer Contributions
- -------------------------------------------------
(a) Each Participant who is a Covered Employee of a particular
Employer shall receive an allocation to his Account of that Employer's Matching
Employer Contributions with respect to a Plan Year, which allocation shall be
made only with respect to the Participant's Before-Tax Contributions and
After-Tax Contributions that:
(i) do not exceed, in the aggregate, four and one-half percent
(4 1/2%) of his Compensation while an active Covered Employee during
that Plan Year;
(ii) are earned prior to his Termination of Employment with
his Employer; and
(iii) if made prior to the end of the calendar quarter in
which the Participant attains age fifty-five (55), are invested only in
the Company Stock Fund.
For purposes of this Subsection, Matching Employer Contributions shall be
applied first to a Participant's After-Tax Contributions and then, if
applicable, to a Participant's Before-Tax Contributions.
(b) As of each Valuation Date, Matching Employer Contributions
(including earnings and appreciation thereon) that have been made pursuant to
Section 5.1 for pay periods ending on or prior to such Valuation Date shall be
allocated to the Accounts of Participants as provided in Subsection (a) of this
Section.
<PAGE> 25
5.3 Qualified Nonelective Contributions
- ----------------------------------------
For any Plan Year, an Employer, in its discretion, may make a
Qualified Nonelective Contribution (1) in such amount, (2) for such Participants
and (3) in such proportions among such Participants as such Employer shall
determine. Qualified Nonelective Contributions may be made in cash or Company
Stock and shall be made within the time prescribed by law for making Qualified
Nonelective Contributions. Each Employer shall designate to the Trustee the Plan
Year for which and the Participants for whom any Qualified Nonelective
Contribution is made.
5.4 Allocation of Qualified Nonelective Contributions
- -----------------------------------------------------
Qualified Nonelective Contributions shall be allocated to the
Accounts of Participants who are designated by an Employer as eligible to share
therein in such amounts as such Employer directs.
5.5 Profit Sharing Contributions
- ---------------------------------
Each Employer may, in its discretion, contribute to the Trust
on account of each Plan Year an amount determined by such Employer as its Profit
Sharing Contribution for such year. The Profit Sharing Contribution of each
Employer may be made in cash or Company Stock and shall be made during the Plan
Year for which made or within the time following the close of such Plan Year
which is prescribed by law for the filing by each such Employer of its federal
income tax return (including extensions thereof).
5.6 Allocation of Profit Sharing Contributions
- ----------------------------------------------
Each Employer's Profit Sharing Contributions made for a Plan
Year shall be allocated and credited to the Accounts of those Employees of the
Employer who either (a) are Participants on the last day of such Plan Year or
(b) terminated employment with the Controlled Group during such Plan Year by
reason of death or Total and Permanent Disability. There shall be credited to
the Account of each such Employee as of the last day of each Plan Year, a
portion of the Profit Sharing Contribution (if any) of such Employee's Employer
for such Plan Year equal to either (1) the amount of such Profit Sharing
Contribution multiplied by a fraction, the numerator of which is the Employee's
Compensation for such Plan Year and the denominator of which is the total
Compensation for such Plan Year of all Employees of such Employer described in
the preceding sentence or (2) at the Employer's discretion, the amount of such
Profit Sharing Contribution divided by the total number of Employees described
in (a) and (b) above.
<PAGE> 26
5.7 Reduction of Matching Employer Contributions
- -------------------------------------------------
The amount of Matching Employer Contributions determined to be
payable to the Trust shall be reduced by amounts that have been forfeited or
held in a suspense account in accordance with the terms of the Plan.
5.8 Return of Contributions to Employers
- ----------------------------------------
(a) Except as specifically provided in this Section or in the
other Sections of the Plan, the Trust Fund shall never inure to the benefit of
the Employers and shall be held for the exclusive purposes of providing benefits
to Employees, Participants and their Beneficiaries and defraying reasonable
expenses of administering the Plan.
(b) If a Matching Employer Contribution to the Trust is made
by an Employer by a mistake of fact, the excess of the amount contributed over
the amount that would have been contributed had there not occurred a mistake of
fact shall be returned to such Employer within one (1) year after the payment of
such Contribution. If a Matching Employer Contribution to the Trust is made by
an Employer (all of which Contributions are conditioned upon their deductibility
under Code Section 404 (or any successor thereto) pursuant to Section 5.1), and
if such Contribution is not fully deductible under such Code Section, such
Contribution, to the extent the deduction therefor is disallowed, shall be
returned to the Employer within one (1) year after the disallowance of the
deduction. Earnings attributable to Matching Employer Contributions returned to
an Employer pursuant to this Subsection may not be returned, but losses
attributable thereto shall reduce the amount to be returned; provided, however,
that if the withdrawal of the amount attributable to the mistaken or
non-deductible Contribution would cause the balance of the Account of any
Participant to be reduced to less than the balance that would have been in such
Account had the mistaken or non-deductible amount not have been contributed, the
amount to be returned to the Employer pursuant to this Section shall be limited
so as to avoid such reduction.
5.9 Provisions Pursuant to Code Section 415(c)
- ----------------------------------------------
(a) Notwithstanding any other provision of the Plan, the
annual additions (as defined in Subsection (b) of this Section) to a
Participant's Account in any Plan Year (which shall be the limitation year)
shall in no event exceed the lesser of thirty thousand dollars ($30,000) (or, if
greater, one-fourth (1/4) of the dollar limitation in effect under Code Section
415(b)(1)(A)), or twenty-five percent (25%) of his compensation for such Plan
Year.
<PAGE> 27
(b) For purposes of this Section, the term "annual additions"
means the sum for any Plan Year of:
(i) all contributions made by the Controlled Group that are
allocated to the Participant's account pursuant to a defined
contribution plan maintained by a Controlled Group Member,
(ii) all employee contributions made by the Participant to a
defined contribution plan maintained by a Controlled Group Member,
(iii) all forfeitures allocated to the Participant's account
pursuant to a defined contribution plan maintained by a Controlled
Group Member,
(iv) any amount allocated to an individual medical benefit
account (as defined in Code Section 415(l)(2)) of the Participant that
is part of a pension or annuity plan maintained by a Controlled Group
Member, and
(v) any amount attributable to medical benefits allocated to
the Participant's account established under Code Section 419A(d)(1) if
the Participant is or was a key-employee (as such term is defined in
Code Section 416(i)) during such Plan Year or any preceding Plan Year.
(c) For the purposes of this Section, the term "compensation"
shall mean compensation within the meaning of Code Section 415(c)(3) and
regulations thereunder.
(d) If a Participant's annual additions would exceed the
limitations of Subsection (a) of this Section for a Plan Year as a result of the
allocation of forfeitures, a reasonable error in estimating the Participant's
Compensation, or a reasonable error in determining the amount of Before-Tax
Contributions that may be made with respect to the Participant under the
limitations of this Section (or other facts and circumstances that the
Commissioner of Internal Revenue finds justify application of the following
rules of this Subsection), After-Tax Contributions (if any) made by the
Participant for such Plan Year that constitute part of the annual addition
(together with any gains attributable thereto) shall be returned to the
Participant to the extent necessary to effectuate such reduction. If the return
of all such After-Tax Contributions is not sufficient to effectuate such
reduction, Before-Tax Contributions (if any) made by the Participant for such
Plan Year that constitute part of the annual addition (together with any gains
attributable thereto) shall be returned to the Participant to the extent
necessary to effectuate such reduction. If the return of all such After-Tax
Contributions and Before-Tax Contributions is not sufficient to effectuate such
reduction, Contributions allocable to such Participant's Account for such year
shall, to the extent necessary to effectuate such reduction, be allocated among
<PAGE> 28
the remaining Participants in accordance with Section 5.2(b) exclusive of those
Participants whose Accounts have received the maximum permitted by law for tax
deduction purposes.
In the event that the provisions of this Section make it
impossible to allocate any Contributions in accordance with Section 5.2(b), such
Contributions shall be allocated to a suspense account. Amounts allocated to the
suspense account shall be reallocated to Participant Accounts in accordance with
Section 5.2(b) as of the first Valuation Date upon which it is possible to do so
without violating the limitations of this Section until the suspense account is
exhausted. Investment gains and losses and other income shall not be allocated
to the suspense account during the period such suspense account is required to
be maintained pursuant to this Subsection.
In the event of the termination of this Plan while there
exists a balance in the suspense account, to the extent such balance cannot be
allocated to Participant Accounts without violating the limitations of this
Section, such balance shall revert to the applicable Employer.
5.10 Provision Pursuant to Code Section 415(e)
- ----------------------------------------------
(a) Notwithstanding any other provision of the Plan, if an
individual is a participant in both a defined benefit plan and a defined
contribution plan maintained by the Controlled Group, the sum of the defined
benefit plan fraction and the defined contribution plan fraction for any Plan
Year may not exceed 1.00. If a reduction is necessary to avoid exceeding the
limitation set forth in this Section, the affected participant's benefits under
the defined benefit plan shall be reduced to the extent necessary to avoid
exceeding such limitation. For purposes hereof,
(i) The defined benefit plan fraction for any Plan Year is a
fraction, (A) the numerator of which is the projected annual benefit of
the participant under the plan (determined as of the close of the
Year), and (B) the denominator of which is the lesser of (I) the
product of 1.25, multiplied by the dollar limitation in effect under
Code Section 415(b)(1)(A) for such Year, or (II) the product of 1.4,
multiplied by the amount which may be taken into account under Code
Section 415(b)(1)(B) with respect to such participant under the plan
for such Year; and
(ii) The defined contribution plan fraction for any Plan Year
is a fraction, (A) the numerator of which is the sum of the annual
additions to the participant's account as of the close of the Year and
for all prior Years, and (B) the denominator of which is the sum of the
lesser of the following amounts determined for such Year and for each
prior year of service with the Controlled Group (regardless of whether
a plan is in existence during such Year):
<PAGE> 29
(I) the product of 1.25, multiplied by the dollar
limitation in effect under Code Section 415(c)(1)(A) for such
Year and each such prior year of service, or
(II) the product of 1.4, multiplied by the amount
which may be taken into account under Code Section
415(c)(1)(B) with respect to such participant under such plan
for such Year and each prior year of service.
(b) A participant's projected annual benefit for purposes of
Subsection (a) of this Section is equal to the annual benefit to which he would
be entitled under the terms of the defined benefit plan, assuming he will
continue employment until reaching normal retirement age as determined under the
terms of such plan (or current age, if later), his compensation for the Plan
Year under consideration will remain the same until the date he attains such
age, and all other relevant factors used to determine benefits under the plan
for the Plan Year under consideration will remain constant for all future Plan
Years.
5.11 Definitions
- ----------------
(a) For purposes of applying the limitations set forth in
Sections 5.9 and 5.10, all qualified defined contribution plans (whether or not
terminated) ever maintained by one or more Controlled Group Members will be
treated as one defined contribution plan, and all qualified defined benefit
plans (whether or not terminated) ever maintained by one or more Controlled
Group Members will be treated as one defined benefit plan.
(b) For purposes of applying the limitations set forth in
Section 5.9, allocations under the defined contribution plans that must be
treated as though they constituted a single defined contribution plan under
Subsection (a) of this Section shall be made in the following order:
(i) before-tax contributions under the Plan;
(ii) matching employer contributions under the Plan;
(iii) profit-sharing contributions under the Plan; and
(iv) after-tax contributions under the Plan.
5.12 Funding Policy
- --------------------
The Committee, as a Named Fiduciary, shall (a) determine,
establish and carry out a funding policy and method consistent with the
objectives of the Plan and the requirements of applicable law, and (b) furnish
from time to time to the person responsible for the investment of the assets
held in the Trust information such Committee may have relative to the Plan's
probable short-term and long-term financial needs, including any probable need
for short-term liquidity, and such Committee's opinion (if any) with respect
thereto.
<PAGE> 30
5.13 No Duty to Enforce Payment
- --------------------------------
Neither the Trustee nor the Committee nor any other person
shall be under any duty to inquire into the correctness of the amount
contributed and paid over to the Trustee hereunder, nor shall the Trustee or the
Committee or any other person be under any duty to enforce the payment of the
Contributions to be made hereunder by any Employer.
ARTICLE VI
----------
VESTING
-------
6.1 Immediate Vesting
- ----------------------
All amounts allocated to a Participant's Account shall be
fully vested at all times. Notwithstanding the Participant's nonforfeitable
right hereunder, no distribution with respect to a Participant or Beneficiary
shall be made prior to the time authorized under Article VIII.
ARTICLE VII
-----------
INVESTMENTS
-----------
7.1 Investment Funds
- ---------------------
(a) The Trust Fund will be divided into the Company Stock
Fund, the Caliber 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). Contributions will be invested in the Investment Funds as provided
in Section 7.5. Subject to other applicable provisions of the Plan, the Trustee
shall hold, manage, administer, value, invest, reinvest, account for and
otherwise deal with each Investment Fund separately. The Trustee shall invest
and reinvest the principal and income of each such Fund and will keep each Fund
invested, without distinction between principal and income, as required under
the terms of the Plan.
(b) Dividends, interest and other distributions received by
the Trustee in respect of each Investment Fund shall be reinvested in the same
Investment Fund; provided, however, that, dividends, interest and other
distributions received by the Trustee in respect of the Caliber Stock Fund shall
be invested solely in the Company Stock Fund.
(c) The Trustee, in its sole discretion, may keep such portion
of each Investment Fund invested in interest-bearing cash or cash equivalents
either pending the selection and purchase of suitable investments under such
Fund or as the Trustee may from time to time deem to be necessary or advisable
to maintain sufficient liquidity to meet the obligations of the Plan or for
other reasons.
<PAGE> 31
(d) The Committee shall adopt, and may amend from time to
time, general rules of uniform application that shall provide for the
administration of each Investment Fund, including, but not limited to, rules
providing for (i) the method of valuing each such Investment Fund as of each
applicable Valuation Date, (ii) procedures pursuant to which a Participant may
elect to have all or a designated part of his Account invested in any Investment
Fund (if more than one such Investment Fund is established), (iii) the method of
changing any such election by either the Participant or his Death Beneficiary
and the frequency with which such elections may be made, (iv) the Investment
Fund in which a Participant's Account shall be invested in the absence of an
effective election, and (v) any other matters that the Committee deems necessary
or advisable in the administration of any Investment Fund.
7.2 Account; Sub-Account
- ------------------------
The Plan Administrator shall establish and maintain, or cause
to be established and maintained, an Account for each Participant, which Account
will reflect, pursuant to Sub-Accounts established and maintained thereunder,
the amount, if any, of the Participant's (a) Before-Tax Contributions, (b)
After-Tax Contributions, (c) Matching Employer Contributions, (d) Rollover
Contributions, (e) Qualified Nonelective Contributions, (f) Profit Sharing
Contributions and (g) Stock Bonus Portion. The Plan Administrator shall also
maintain, or cause to be maintained, separate records that will show (i) the
portion of each such Sub-Account invested in each Investment Fund and (ii) the
amount of Contributions thereto, payments and withdrawals therefrom and the
amount of income and losses attributable thereto. The interest of each
Participant in the Trust Fund at any time shall consist of his Account balance
(as determined pursuant to Section 7.4) as of the last preceding Valuation Date
plus any amounts credited to his Account and minus debits to such Account since
that Date.
7.3 Reports
- -----------
The Plan Administrator shall cause reports to be made
quarterly to each Participant and to the Death Beneficiary of each deceased
Participant, indicating the value of the Participant's Account as of the last
Valuation Date within the immediately preceding calendar quarter. In addition,
the Plan Administrator shall cause such a report to be made to each Participant
who (a) requests such a report in writing (provided that only one report shall
be furnished to a Participant upon such a request in any twelve (12) month
period) or (b) has a Termination of Employment.
<PAGE> 32
7.4 Valuation of Investment Funds
- ----------------------------------
(a) The balance of each Participant's Account shall be
expressed in terms of the number of shares or investment units, as applicable,
including fractional shares or units, that have been allocated pursuant to this
Section to each Investment Fund in such Participant's Account.
(b) The Trustee will, as of the close of business on each
Valuation Date, determine or cause to be determined the value of each Investment
Fund. Each such valuation will be made on the basis of the net income or loss to
each such Investment Fund between the current Valuation Date and the last
preceding Valuation Date. The net income or loss of an Investment Fund shall
include interest income, dividends and other income of such Fund and shall be
reduced by any expenses paid (including the fees and expenses of the Trustee and
investment managers, if any, that are to be charged to such Investment Fund in
accordance with the terms of the Plan) and other losses of such Fund. For this
purpose, the transfer of funds to or from an Investment Fund pursuant to
Sections 7.5, 7.6, 7.7 or 7.8, Contributions allocated to an Investment Fund,
and payments, distributions and withdrawals from an Investment Fund to provide
benefits under the Plan for Participants or Beneficiaries will not be deemed to
be income or losses of the Investment Fund. A similar valuation will be made at
any other time upon the written direction of the Committee to the Trustee or
when the Trustee deems it appropriate to make such a valuation.
(c) As of each Valuation Date, the net income or loss of each
Investment Fund determined pursuant to Subsection (b) of this Section shall be
allocated to the Accounts of Participants in such Investment Fund in proportion
to the ratio of the number of shares or units in such Fund held in such Account
at any time since the immediately prior Valuation Date to the total shares or
units in such Fund at any time since the immediately prior Valuation Date.
(d) Except as provided in Sections 7.5, 7.6, 7.7 or 7.8, 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 soon as practicable
after such Contribution is made.
(e) Notwithstanding the foregoing, the Committee may, in
accordance with the applicable requirements of the Code and ERISA, (i) adopt
such accounting procedures as it considers appropriate and equitable to
establish a proportionate crediting of net income or loss of an Investment Fund
and of Contributions made to an Investment Fund as of each Valuation Date and
(ii) adopt such valuation procedures as it considers
<PAGE> 33
appropriate and equitable to determine the value of the shares or units, as
applicable, of an Investment Fund that are necessary to effectuate the
transactions contemplated by the Plan.
7.5 Investment of Contributions
- --------------------------------
(a)(1) All Matching Employer Contributions made to the Plan
pursuant to Section 5.1, Qualified Nonelective Contributions and Profit
Sharing Contributions shall be invested in the Company Stock Fund.
(2) Matching employer contributions made by Roadway Services,
Inc. to the Roadway Services, Inc. Stock Savings and Retirement Income
Plan and Trust which have been transferred to the Plan pursuant to
Section 4.13 shall remain invested in the Caliber Stock Fund and the
Company Stock Fund; provided, however, that a Participant may elect to
transfer any portion of such matching employer contributions invested
in the Caliber Stock Fund to the Company Stock Fund.
(b) Except as provided in Paragraphs (1) through (3) of this
Subsection, each Participant may, pursuant to Sections 7.6, 7.7 and
7.8, direct that Before-Tax Contributions, After-Tax Contributions and
Rollover Contributions made by or for him be invested in one or more
Investment Funds.
(1) Before-Tax Contributions and After-Tax Contributions made
pursuant to Section 4.1 and Rollover Contributions made pursuant to
Section 4.12 may not be invested in the Caliber Stock Fund;
(2) Until a Participant attains age fifty-five (55), that
portion of his Before-Tax Contributions and After-Tax Contributions
that have been used in determining the allocation of Matching Employer
Contributions to his Account pursuant to Section 5.2 shall remain
invested in the Company Stock Fund;
(3) Until a Participant attains age fifty-five (55), that
portion of his Before-Tax Contributions and After-Tax Contributions
which have been transferred to the Plan pursuant to Section 4.13 and
were used in determining the allocation of matching employer
contributions to his account under the Roadway Services, Inc. Stock
Savings and Retirement Income Plan and Trust shall remain invested in
the Company Stock Fund and the Caliber Stock Fund; provided, however,
that a Participant, prior to attaining age fifty-five (55), may elect
to transfer any portion of such Before-Tax Contributions and After-Tax
Contributions invested in the Caliber Stock Fund to the Company Stock
Fund; and
(c)(1) A Participant's Stock Bonus Portion not previously
diversified or eligible for diversification pursuant to Subsections
5.5(b) or (c) of the Roadway Services, Inc. Stock Bonus Plan and Trust
shall remain invested in the Company Stock Fund or the Caliber Stock
Fund; provided, however, that a Participant, may elect to transfer any
portion of his Stock Bonus Portion invested in the Caliber Stock Fund
to the Company Stock Fund.
<PAGE> 34
(2) A Participant's Stock Bonus Portion diversified or
eligible to be diversified prior to the Effective Date pursuant to
Subsections 5.5(b) or (c) of the Roadway Services, Inc. Stock Bonus
Plan and Trust may, pursuant to Sections 7.6 and 7.8, be invested in
one or more Investment Funds (other than the Caliber Stock Fund). A
Participant who has made a diversification election of his Stock Bonus
Portion prior to the Effective Date may, pursuant to Sections 7.6 and
7.8, direct that any remaining amount of the one-half (1/2) permitted
to be diversified (including earnings and appreciation thereon) be
invested in one or more of the other Investment Funds (other than the
Caliber Stock Fund).
(3) The Stock Bonus Portion of a Participant who attains age
fifty-five (55) on or after the Effective Date, may make an initial
diversification election pursuant to Sections 7.6 and 7.8 to transfer
an amount equal to up to one-half (1/2) of his Stock Bonus Portion to
one or more Investment Funds (other than the Caliber Stock Fund). A
Participant who has made a diversification election of his Stock Bonus
Portion pursuant to the preceding sentence may, pursuant to Sections
7.6 and 7.8, direct that any remaining amount of the one-half (1/2)
permitted to be diversified (including earnings and appreciation
thereon) be invested in one or more of the other Investment Funds
(other than the Caliber Stock Fund).
7.6 Change of Investments
- --------------------------
(a)(1) Each Participant who is eligible to direct the
investment of all or a portion all or a portion of his Before-Tax
Contributions, After-Tax Contributions and Rollover Contributions
pursuant to Subsection 7.5(b) (except as provided in Subsection 7.8(c))
may, by 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;
provided, however, that a Participant may not direct the transfer of
any portion of his Account into the Caliber Stock Fund.
(2) Each Participant who is eligible to diversify or has
diversified any portion of his Stock Bonus Portion pursuant to
Paragraphs 7.5(c)(2) or (3) may, by direction to the Plan
Administrator, direct that all or a portion of his Stock Bonus Portion
which is attributable to the amount eligible to be diversified or to
the prior amount diversified pursuant to Paragraphs 7.5(c)(2) or (3)
(including earnings and appreciation thereon) be transferred from one
Investment Fund to another Investment Fund; provided, however, that a
Participant may not direct the transfer of any portion of his Account
into the Caliber Stock Fund.
<PAGE> 35
(b) Notwithstanding the limitations of Section 7.5, any
Participant entitled to a distribution of his Account pursuant to Article VIII
may, by direction to the Plan Administrator, irrevocably direct that any portion
of his Account not invested in the Company Stock Fund be transferred to the
Company Stock Fund prior to the distribution of his Account.
7.7 Investment Direction and Change Procedures-Future
- ------------------------------------------------------
Contributions
-------------
(a) Any change of investments for a Participant's future
Contributions permitted by Paragraph 7.6(a)(1) shall be made by a Participant by
providing direction to the Plan Administrator (on a form or in a manner provided
by the Plan Administrator) which shall specify the portion of such Contributions
to be invested in each of the Investment Funds.
(b) Such directions received and acknowledged by the Plan
Administrator, within such period established by the Plan Administrator prior to
the first day of any January, April, July or October (or such other date as the
Plan Administrator may designate) shall be effected during such month. Any such
direction not effected in any month described in this Subsection because it was
not timely received or acknowledged with respect to such month shall be effected
during the next succeeding January, April, July or October, (or such other date
as the Plan Administrator may designate) as applicable.
7.8 Investment Direction and Change Procedures-Prior Contributions
- ------------------------------------------------------------------
(a) Any direction to transfer all or a portion of a
Participant's Account among the Investment Funds relating to a Participant's
prior Contributions permitted by Paragraph 7.6(a)(1) and/or all or a portion of
a Participant's Stock Bonus Portion among the Investments Funds permitted by
Paragraph 7.6(a)(2) shall be made by a Participant by providing direction to the
Plan Administrator (on a form or in a manner provided by the Plan Administrator)
which shall specify the portion of the Investment Fund (in units or shares, as
applicable) to be transferred and the Investment Fund(s) into which it is to be
transferred and, in the case of a transfer of a Participant's Stock Bonus
Portion, the percentage of the Participant's Stock Bonus Portion to be
transferred.
(b) Except as provided in Subsection (c) of this Section, such
directions received and acknowledged by the Plan Administrator, within such
period established by the Plan Administrator prior to the first day of any
February, May, August, or November (or such other date as the Plan Administrator
may designate), shall be effected during such month, based upon the number of
shares or units in the Account (or applicable portion thereof) as of the end of
the immediately preceding calendar quarter or such other date as may be required
by law or designated by the Plan Administrator. Any such direction not effected
in any month described in this Subsection because it was not timely received or
acknowledged with respect to such month shall
<PAGE> 36
be effected during the next succeeding February, May, August, or November (or
such other date as the Plan Administrator may designate), as applicable.
(c) Notwithstanding Subsection (b) of this Section, any
direction to transfer, pursuant to Paragraphs 7.5(a)(2), 7.5(b)(3) or 7.5(c)(1),
all or a portion of a Participant's Account invested in the Caliber Stock Fund
to the Company Stock Fund which are received and acknowledged by the Plan
Administrator within such period established by the Plan Administrator prior to
the first day of any January, April, July or October (or such other date as the
Plan Administrator may designate), shall be effected during such month, based
upon the number of shares in the Account (or applicable portion thereof) as of
the end of the immediately preceding calendar quarter or such other date as may
be required by law or designated by the Plan Administrator. Any such direction
not effected in any month described in this Subsection because it was not timely
received or acknowledged with respect to such month shall be effected during the
next succeeding January, April, July, or October (or such other date as the Plan
Administrator may designate), as applicable.
(d) A Participant who has made a direction pursuant to this
Section may revoke such direction at least two (2) business days prior to the
first day of the month for which such direction would become effective. Such
revocation shall be made pursuant to procedures established by the Plan
Administrator.
7.9 Directions to the Trustee
- -----------------------------
The Plan Administrator shall give appropriate and timely
directions to the Trustee in order to permit the Trustee to give effect to the
investment choice and investment change elections made under Sections 7.5, 7.6,
7.7 and 7.8 and to provide funds for distributions pursuant to Article VIII.
7.10 Voting of Allocated Company Stock and Caliber Stock
- ---------------------------------------------------------
(a) All voting rights on shares of Company Stock and Caliber
Stock held by the Trustee shall be exercised by the Trustee only as directed by
the Participants (and Beneficiaries) acting in their capacity as Named
Fiduciaries in accordance with the following provisions of this Section 7.10.
The number of shares of Company Stock and Caliber Stock credited to a
Participant's Account shall be determined as of the most recent Valuation Date
for which information is readily available.
(b) As soon as practicable before each annual or special
shareholders' meeting of the Company or Caliber System, Inc., the Trustee shall
furnish or cause to be furnished to each Participant a copy of the proxy
solicitation material sent generally to shareholders, together with a form to be
returned to the Trustee requesting confidential instructions from the
Participant, acting in his capacity as a Named Fiduciary, on how the shares of
Company Stock or Caliber Stock credited to such Participant's Account and,
separately, a proportionate share
<PAGE> 37
(based on the amount of any shares credited to his Account) of any Non-Directed
Shares and Unallocated Shares (as defined below) of Company Stock or Caliber
Stock held by the Trustee (including fractional shares to 1/1000th of a share)
are to be voted by the Trustee. For purposes of this Section 7.10, "Non-Directed
Shares" shall mean those shares credited to Participants' Accounts for which
instructions are not timely received by the Trustee, as well as shares of
Company Stock or Caliber Stock credited to Participants' Accounts after the
Valuation Date used under this Section 7.10 for purposes of determining the
number of shares credited to each Participant's Account and "Unallocated Shares"
shall mean any shares of Company Stock or Caliber Stock not credited to the
Participants' Accounts. The Company shall cooperate with the Trustee to insure
that Participants receive the requisite information with respect to Company
Stock in a timely manner. The materials furnished to the Participants shall
include a notice from the Trustee explaining each Participant's right to
instruct the Trustee with respect to the voting of shares of Company Stock or
Caliber Stock credited to his Account, and, separately, with respect to
Non-Directed Shares and Unallocated Shares. Upon timely receipt of such
instructions, the Trustee (after combining votes of fractional shares to give
effect to the greatest extent to Participants' instructions) shall vote the
shares as instructed.
(c) With respect to all corporate matters submitted to
shareholders, each Participant who has shares of Company Stock or Caliber Stock
credited to his Account, acting as a Named Fiduciary shall be entitled to direct
the voting of shares of Company Stock or Caliber Stock (including fractional
shares to 1/1000th of a share) credited to his Account. With respect to shares
of Company Stock or Caliber Stock credited to the Account of a deceased
Participant, such Participant's Beneficiary shall be entitled to direct the
voting with respect to such shares as if such Beneficiary were the Participant.
(d) Each Participant who has shares of Company Stock or
Caliber Stock credited to his Account and who is entitled to vote on any matter
presented for a vote by the shareholders, as a Named Fiduciary, shall be
entitled to separately direct the Trustee with respect to the vote of a portion
of the Non-Directed Shares and the Unallocated Shares. Such direction shall
apply to such number of votes equal to the total number of votes attributable to
Non-Directed Shares and Unallocated Shares multiplied by a fraction, the
numerator of which is the number of shares of Company Stock or Caliber Stock
credited to the Participant's Account and the denominator of which is the total
number of shares of Company Stock or Caliber Stock credited to the Accounts of
all such Participants who have timely provided directions to the Trustee with
respect to Non-Directed Shares and Unallocated Shares under this Subsection (d).
Fractional shares shall be rounded to the nearest 1/1000th of a share.
<PAGE> 38
(e) The instructions received by the Trustee from Participants
or Beneficiaries shall be held by the Trustee in strict confidence and shall not
be divulged or released to any person including directors, officers or employees
of the Company or any Controlled Group Member or Caliber System, Inc. except as
otherwise required by law.
7.11 Tender of Allocated Company Stock or Caliber Stock
- --------------------------------------------------------
(a) APPLICABILITY. Except as otherwise expressly provided in
the Plan, the Trustee shall not sell, alienate, encumber, pledge, transfer or
otherwise dispose of or tender or withdraw, any shares of Company Stock or
Caliber Stock held by it under the Plan. All tender or exchange decisions with
respect to Company Stock or Caliber Stock shall be made by the Trustee only as
directed by the Participants (and Beneficiaries), acting in their capacity as
Named Fiduciaries, in accordance with the following provisions of this Section
7.11. The number of shares of Company Stock or Caliber Stock credited to a
Participant's Account shall be determined as of the most recent Valuation Date
for which information is readily available.
(b) INSTRUCTIONS TO TRUSTEE. In the event an offer shall be
received by the Trustee (including a tender offer for shares of Company Stock or
Caliber Stock subject to Section 14(d)(1) of the Securities Exchange Act of 1934
or subject to Rule 13e-4 promulgated under such Act, as those provisions may
from time to time be amended) to purchase or exchange any shares of Company
Stock or Caliber Stock held by the Trustee, the Trustee shall advise each
Participant who has shares of Company Stock or Caliber Stock credited to his
Account in writing of the terms of the offer as soon as practicable after its
commencement and shall furnish each Participant with a form by which he may
instruct the Trustee confidentially whether or not to tender or exchange shares
of Company Stock or Caliber Stock credited to such Participant's Account and,
separately, based on Company Stock or Caliber Stock credited to such
Participant's Account, a proportionate share of any Non-Directed Shares and any
Unallocated Shares (as defined below) of Company Stock or Caliber Stock held by
the Trustee (including fractional shares to 1/1000th of a share). For purposes
of this Section 7.11, "Non-Directed Shares" shall mean those shares of Company
Stock or Caliber Stock credited to Participants' Accounts for which instructions
are not timely received by the Trustee as well as shares of Company Stock or
Caliber Stock credited to Participants' Accounts after the Valuation Date used
under this Section 7.11 for purposes of determining the number of shares
credited to each Participant's Account and "Unallocated Shares" shall mean any
shares of Company Stock or Caliber Stock not credited to the Participants'
Accounts. The materials furnished to the Participants shall include:
<PAGE> 39
(1) a notice from the Trustee explaining
Participants' rights to instruct the Trustee with respect to shares of Company
Stock or Caliber Stock credited to their Accounts, and, separately, with respect
to Non-Directed Shares and Unallocated Shares, as provided herein; and
(2) such related documents as are prepared by any
person and provided to the shareholders of the Company pursuant to the
Securities Exchange Act of 1934.
The Company and the Trustee may also provide Participants with such other
material concerning the tender or exchange offer as the Trustee or the Company
in their discretion determine to be appropriate; provided, however, that prior
to any distribution of materials by the Company, the Trustee shall be furnished
with complete copies of all such materials. The Company shall cooperate with the
Trustee to insure that Participants receive the requisite information with
respect to Company Stock in a timely manner.
(c) TRUSTEE ACTION ON PARTICIPANT INSTRUCTIONS: ALLOCATED
SHARES. Each Participant who has shares of Company Stock or Caliber Stock
credited to his Account, as a Named Fiduciary, shall be entitled to direct the
Trustee whether or not to tender or exchange shares of Company Stock or Caliber
Stock credited to his Account (including fractional shares to 1/1000th of a
share). With respect to shares of Company Stock or Caliber Stock credited to the
Account of a deceased Participant, such Participant's Beneficiary shall be
entitled to direct the Trustee whether or not to tender or exchange such shares
as if such Beneficiary were the Participant.
(d) TRUSTEE ACTION ON PARTICIPANT INSTRUCTIONS: NON-DIRECTED
AND UNALLOCATED SHARES. Each Participant who has shares of Company Stock or
Caliber Stock credited to his Account and who is entitled to direct the Trustee
whether or not to tender or exchange shares of Company Stock or Caliber Stock
credited to his Account, as a Named Fiduciary, shall be entitled to separately
direct the Trustee with respect to the tender or exchange of a portion of the
Non-Directed Shares and the Unallocated Shares. Such directions shall apply to
such number of Non-Directed Shares and Unallocated Shares equal to the total
number of Non-Directed Shares and Unallocated Shares multiplied by a fraction,
the numerator of which is the number of shares of Company Stock or Caliber Stock
credited to the Participant's Account and the denominator of which is the total
number of shares of Company Stock or Caliber Stock credited to the Accounts of
all such Participants who have timely provided directions to the Trustee with
respect to Non-Directed Shares and Unallocated Shares under this Subsection (d).
Fractional shares shall be rounded to the nearest 1/1000th of a share.
(e) CONFIDENTIALITY. The instructions received by the Trustee
from Participants or Beneficiaries shall be held by the Trustee in strict
confidence and shall not be divulged or released to any person, including
<PAGE> 40
directors, officers or employees of the Company or any Controlled Group Member
or Caliber System, Inc., except as otherwise required by law.
(f) WITHDRAWAL OF SHARES. In the event, under the terms of a
tender offer or otherwise, any shares of Company Stock or Caliber Stock tendered
for sale, exchange or transfer pursuant to such offer may be withdrawn from such
offer, the Trustee shall follow such instructions respecting the withdrawal of
such shares from such offer in the same manner and in the same proportion as
shall be timely received by the Trustee from Participants entitled under this
Section 7.11 to give instructions as to the sale, exchange or transfer of shares
of Company Stock or Caliber Stock pursuant to such offer, acting in their
capacity as Named Fiduciaries.
(g) PARTIAL OFFERS. In the event that an offer for fewer than
all of the shares of Company Stock or Caliber Stock held by the Trustee shall be
received by the Trustee, the total number of shares of Company Stock or Caliber
Stock that the Plan sells, exchanges or transfers pursuant to such offer shall
be allocated among Participants' Accounts on a pro rata basis in accordance with
the directions received from Participants with respect to shares of Company
Stock or Caliber Stock credited to their Accounts and Non-Directed Shares and
Unallocated Shares.
(h) MULTIPLE OFFERS. In the event an offer shall be received
by the Trustee and instructions shall be solicited from Participants pursuant to
Subsections (a) to (g) hereof regarding such offer, and, prior to the
termination of such offer, another offer is received by the Trustee for the
shares of Company Stock or Caliber Stock subject to the first offer, the Trustee
shall use its best efforts under the circumstances to solicit instructions from
the Participants in their capacity as Named Fiduciaries:
(1) with respect to shares of Company Stock or
Caliber Stock tendered for sale, exchange or transfer pursuant to the first
offer, whether to withdraw such tender, if possible, and, if withdrawn, whether
to tender any shares of Company Stock or Caliber Stock so withdrawn for sale,
exchange or transfer pursuant to the second offer, and
(2) with respect to shares of Company Stock or
Caliber Stock not tendered for sale, exchange or transfer pursuant to the first
offer, whether to tender or not to tender such shares of Company Stock or
Caliber Stock for sale, exchange or transfer pursuant to the second offer.
The Trustee shall follow all such instructions received in a timely manner from
Participants in the same manner and in the same proportion as provided in
Subsections (a) to (g) hereof. With respect to any further offer for any Company
Stock or Caliber Stock received by the Trustee and subject to any earlier offer
(including successive
<PAGE> 41
offers from one or more existing offerors), the Trustee shall act in the same
manner as described above in this Subsection (h).
(i) NO IMPACT ON ACCOUNT. A Participant's instructions to the
Trustee to tender or exchange shares of Company Stock or Caliber Stock shall not
be deemed a withdrawal or suspension from the Plan or a forfeiture of any
portion of the Participant's Account. Funds received in exchange for tendered
shares of Company Stock or Caliber Stock shall be used by the Trustee to
purchase Company Stock (or other employer securities within the meaning of
Section 407(d) of ERISA) as soon as practicable. In the interim, the Trustee
shall invest such funds in short-term investments permitted under the Plan.
(j) TENDER BY COMPANY. Subject to any provisions in the Plan
to the contrary, in the event the Company initiates a tender or exchange offer,
the Trustee may, in its sole discretion, enter into an agreement with the
Company not to tender or exchange any shares of Company Stock in such offer, in
which event, the foregoing provisions of this Section 7.11 shall have no effect
with respect to such offer and the Trustee shall not tender or exchange any
shares of Company Stock in such offer.
ARTICLE VIII
------------
DISTRIBUTIONS AND WITHDRAWALS
-----------------------------
8.1 Distributions Only As Provided
- -----------------------------------
(a) A Participant's Account shall only be distributable as
provided in this Article. A Participant or Death Beneficiary who is eligible to
receive a distribution or withdrawal under the Plan shall obtain a blank
application for that purpose from the Plan Administrator and file with such Plan
Administrator his application in writing on such form, furnishing such
information as the Committee may reasonably require, including any authority in
writing that the Committee may request authorizing it to obtain pertinent
information, certificates, transcripts and/or other records from any public
office. No application for a distribution pursuant to Section 8.2 or 8.3 may be
made prior to the Participant's Termination of Employment.
(b) The Plan Administrator shall provide a Participant who has
requested a distribution pursuant to Section 8.2(a) or 8.11 or a withdrawal
pursuant to Section 8.7 or 8.9 with a general description of the optional forms
of benefit available under the Plan and the right to defer receipt of such
distribution or withdrawal within the period provided in Section 8.12(b) (unless
such period is waived as permitted in Section 8.12(b)).
8.2 Distributions upon Termination of Employment (Other than Death)
- -------------------------------------------------------------------------------
(a) A Participant shall be eligible to receive a distribution
of his Account, as provided in Section 8.4, due to his Termination of Employment
(other than by reason of death). A distribution pursuant to this
<PAGE> 42
Subsection shall be paid to a Participant as soon as practicable after the
Participant has filed his application with the Plan Administrator pursuant to
Section 8.1; provided, however, that a distribution on account of Total and
Permanent Disability shall be paid to a Participant as soon as practicable after
a determination has been made by the Committee pursuant to Section 2.56 and the
Participant has filed his application with the Plan Administrator pursuant to
Section 8.1.
(b) Notwithstanding the provisions of Subsection (a) of this
Section, (i) if the value of the Account of a Participant who is eligible for a
distribution under Subsection (a) of this Section does not exceed $3,500 (and
never exceeded $3,500 under this Plan or the Prior Plans at the time of any
previous withdrawal or distribution), such Account shall be paid to him in a
lump sum payment after such Termination of Employment or after the Committee has
made a determination of Total and Permanent Disability, and (ii) if distribution
of the Account of a Participant who has a Termination of Employment or is
determined to be Totally and Permanently Disabled has not been made solely
because the Participant has not filed his application pursuant to Section 8.1,
his Account shall be paid to him no later than the date provided in Section
8.6(b)(i).
(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.
8.3 Distribution upon Death
- ---------------------------
(a) In the case of the death of a Participant, the
Participant's Death Beneficiary shall be eligible to receive a distribution of
the Participant's Account as provided in Section 8.4. Distributions pursuant to
this Subsection shall be paid to a Death Beneficiary as soon as practicable
after the Death Beneficiary has filed an application with the Plan Administrator
pursuant to Section 8.1.
(b) Notwithstanding the provisions of Subsection (a) of this
Section, (i) if the value of the Account of a Participant who died does not
exceed $3,500 (and never exceeded $3,500 under this Plan or the Prior Plans at
the time of any previous withdrawal or distribution), such Account shall be paid
to his Death Beneficiary in a lump sum payment after the date of death and (ii)
if distribution of the Account of a Participant who died has not been made
solely because the Death Beneficiary has not filed his application pursuant to
Section 8.1, such Account shall be paid to the Death Beneficiary no later than
the date provided in Section 8.6(b)(ii).
(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
<PAGE> 43
Participant as the Committee may deem desirable. The Committee's determination
of death and of the right of any person to receive payment shall be conclusive.
8.4 Distribution Options
- -------------------------
(a) Except as provided in Subsection (b) of this Section, all
distributions of a Participant's Account hereunder shall be made in a single
lump sum payment.
(b) (i) A Participant may elect to receive his Account in ten
(10) successive annual installments. The Death Beneficiary of a
Participant may elect to receive the entire portion of the
Participant's Account in ten (10) successive annual installments.
(ii) The elections permitted by this Subsection shall be
effective by giving written notice thereof to the Committee. No
election hereunder shall be revocable at any time less than six (6)
months prior to Retirement or the time death benefits are scheduled to
commence, as applicable.
(iii) The payment date of the first such installment shall be
as soon as practicable after the Participant or Death Beneficiary has
filed his application with the Plan Administrator pursuant to Section
8.1, and payment dates of the succeeding nine (9) payments shall be
annually thereafter during the month in which falls the anniversary of
the first payment date; provided, however, that, in the case of
Retirement on account of Total and Permanent Disability, the payment
date of the first such installment shall be as soon as practicable
after a determination has been made by the Committee pursuant to
Section 2.56 and the Participant has filed his application with the
Plan Administrator pursuant to Section 8.1 and made his election
pursuant to Paragraph (ii) of this Section. A Participant may not elect
to postpone commencement of such installment payments if the exercise
of such election will cause benefits under the Plan with respect to
such Participant in the event of his death to be more than "incidental"
under Code Section 401(a)(9) and regulations promulgated thereunder.
(iv) Such annual installments shall be paid in equal portions
of the aggregate amount vested in the Participant's Account immediately
prior to commencement of the installment payments, and any additional
amounts as may be credited to him in any year during the nine (9) year
distribution period shall be paid to him on the next installment
payment date as specified in Paragraph (iii) of this Subsection.
8.5 Form and Valuation of Distribution
- ---------------------------------------
(a) The distribution of a Participant's Account (or portion
thereof) pursuant to this Article shall be as follows:
<PAGE> 44
(i) The portion of such Account that is invested in the
Company Stock Fund or the Caliber Stock Fund shall be distributed in
kind. A distribution in kind shall occur by the transfer of whole
shares of Company Stock or Caliber Stock allocated to such Account, as
applicable, cash in lieu of any fractional share of Company Stock or
Caliber Stock, as applicable, and cash for any uninvested dividends
allocable to such Participant. The value of such Company Stock or
Caliber Stock, as applicable, shall be the value determined as of the
immediately preceding Valuation Date or such other date as may be
required by law.
(ii) The portion of the Participant's Account that is invested
in any of the Investment Funds other than the Company Stock Fund or the
Caliber Stock Fund shall, at the Participant's (or, if applicable, the
Death Beneficiary's) election, be distributed in cash or, to the extent
available and provided below, in kind. To effect a distribution in
kind, the Trustee shall determine the portion of the Participant's
Account that is distributable in whole shares, which the Trustee shall
distribute in kind. The portion of the Participant's Account that is
not distributable in whole shares (as determined by the Trustee) and
the portion that is attributable to fractional shares shall be
distributed in cash.
The value of the portion of the Participant's Account
distributable pursuant to this Paragraph shall be the value determined
as of the immediately preceding Valuation Date or such other date as
may be required by law.
(iii) The portion of the Participant's Account that is
attributable to Contributions that have not yet been invested in any
Investment Fund shall be distributed in cash. The value of such
Contributions shall be the pro-rata value of any applicable investment
or account in which such Contributions were held as of the immediately
preceding Valuation Date or such other date required by law.
(b) Any Participant who is entitled to a distribution of his
Account pursuant to this Article may, by direction to the Plan Administrator,
irrevocably elect to have any portion of his Account not invested in the Company
Stock Fund transferred to the Company Stock Fund before such distribution is
made.
(c) The Plan Administrator may postpone the distribution to
a Participant to allow an election pursuant to Subsection (b) of this Section to
take effect.
8.6 Latest Time of Distributions
- ---------------------------------
(a) The distribution of a Participant's Account shall begin as
provided in the preceding Sections of this Article, but (subject to the consent
requirements of Section 8.1) in no event later than the sixtieth (60th) day
after the close of the Plan Year in which the latest of the following events
occur:
<PAGE> 45
(i) the date the Participant attains age sixty-five (65);
(ii) the tenth (10th) anniversary of the year in which the
Participant commenced participation in the Plan; or
(iii) the date of the Participant's Termination of
Employment.
(b)(i) Notwithstanding any other provision of the Plan, to the
extent required under Code Section 401(a)(9), distribution of a
Participant's Account must commence not later than April 1 of the
calendar year following the calendar year in which a Participant
attains age 70 1/2. Such distribution shall be paid over the life of
the Participant or the lives of the Participant and his Beneficiary (or
over a period not extending beyond the life expectancy of the
Participant or the life expectancy of the Participant and his
Beneficiary). If a Participant dies before such Participant's entire
Account has been distributed but after the distribution has commenced,
then the remaining portion of such Account will be distributed at least
as rapidly as under the method of distribution being used as of the
date of the Participant's death.
(ii) If a Participant dies before the distribution of such
Participant's Account has begun, then the entire Account will be
distributed within five years after the death of such Participant,
unless (i) any portion of the Participant's Account is payable to (or
for the benefit of) his Beneficiary, whereupon such portion will be
distributed over the life of such Beneficiary (or over a period not
extending beyond the life expectancy of such Beneficiary) and will
begin not later than one year after the date of the Participant's death
(or such later date as the Secretary of the Treasury may by regulations
prescribe), or (ii) any portion of the Participant's Account is payable
to (or for the benefit of) a Beneficiary who is the surviving Spouse of
the Participant, whereupon such portion will be distributed over the
life of the surviving Spouse (or over a period not extending beyond the
life expectancy of the surviving Spouse) and begin not later than the
date on which the Participant would have attained age 70 1/2 (provided
that if the surviving Spouse dies before the distribution to such
Spouse begins, then the five year distribution requirement is to be
applied as if the surviving Spouse were the Participant).
(c) Distributions under the Plan shall be made in a manner
that satisfies Code Section 401(a)(9) and Treasury Regulations issued
thereunder, including Treasury Regulation Section 1.401(a)(9)-2, which
provisions are hereby incorporated into the Plan by reference, provided that
such provisions shall override the other distribution provisions of the Plan
only to the extent that such other Plan provisions provide for distribution
that is less rapid than required under such provisions of the Code and
Regulations. Nothing contained in this Section shall be
<PAGE> 46
construed as providing any optional form of payment that is not available under
the other distribution provisions of the Plan.
8.7 Withdrawal Requested by Participant
- ----------------------------------------
(a) Upon prior 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 down to the nearest whole
share or unit) as provided and in the order set forth below:
(i) A Participant may withdraw all or a part of the portion of
his Account attributable to After-Tax Contributions credited to his
Account before January 1, 1987 (excluding earnings and appreciation
thereon);
(ii) A Participant who has withdrawn all such pre-1987
After-Tax Contributions may withdraw all or a part of his Account
attributable to the remaining After-Tax Contributions credited to his
Account (including earnings and appreciation thereon);
(iii) A Participant who has withdrawn all such pre-1987 and
post-1986 After-Tax Contributions may withdraw all or part of his
Account attributable to the earnings and appreciation on his pre-1987
After-Tax Contributions;
(iv) A Participant who has withdrawn all amounts attributable
to his After-Tax Contributions may withdraw all or a part of his
Account attributable to Rollover Contributions (including the net
earnings thereon);
(v) A Participant who has withdrawn all amounts attributable
to his After-Tax Contributions may withdraw all or a part of his
Account attributable to Matching Employer Contributions (including
earnings and appreciation thereon); provided, however, that Matching
Employer Contributions (including earnings and appreciation thereon)
that have not been held in his Account for at least two (2) years may
not be so withdrawn unless the Participant has been a Participant in
the Plan for at least five (5) years. Withdrawals permitted pursuant to
above provision shall first distribute all or a part of the shares of
Caliber Stock attributable to Matching Employer Contributions from a
Participant's Account before any shares of Company Stock attributable
to Matching Employer Contributions from a Participant's Account are
distributed. No portion of a Participant's Stock Bonus Portion may be
withdrawn while the Participant is an Employee;
<PAGE> 47
(vi) A Participant who is at least fifty-nine and one-half (59
1/2) years old, who has withdrawn all amounts described in Paragraphs
(i) through (v) of this Subsection may withdraw all or a part of his
Account attributable to Before-Tax Contributions (excluding any income
allocable thereto).
(b) Any withdrawal requested pursuant to this Section prior
to a Participant's Termination of Employment will continue to be processed
pursuant to this Section notwithstanding a Participant's subsequent Termination
of Employment.
8.8 Suspension of Contributions Upon Withdrawal
- ------------------------------------------------
(a) Any Participant who makes a withdrawal pursuant to
Sections 8.7(a)(i) through 8.7(a)(iii) or has made a withdrawal pursuant to
similar provisions in the Roadway Services, Inc. Stock Savings and Retirement
Income Plan and Trust may not make any After-Tax Contributions or have any
Before-Tax Contributions or Matching Employer Contributions made for him for six
(6) months thereafter.
(b) Any Participant who makes a withdrawal pursuant to Section
8.7(a)(v) or 8.7(a)(vi) or has made a withdrawal pursuant to similar provisions
in the Roadway Services, Inc. Stock Savings and Retirement Income Plan and Trust
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.
(c) A Participant's Contributions that have been suspended
pursuant to this Section will resume as of the first pay period after the period
of suspension if he is a Covered Employee on that date.
8.9 Hardship Withdrawals
- -------------------------
(a) A Participant who is an Employee and who has obtained all
available withdrawals under the Plan, other than Hardship withdrawals, and all
nontaxable loans currently available under all plans maintained by the
Controlled Group, may request, a withdrawal on account of Hardship of all or a
portion of his Account attributable to Before-Tax Contributions (excluding any
income allocable thereto). Upon making a determination that the Participant is
entitled to a withdrawal on account of Hardship, the Plan Administrator shall
direct the Trustee to distribute to such Participant from his Account, the
amount of his Before-Tax Contributions determined by the Plan Administrator to
be necessary to alleviate such Hardship (including amounts necessary to pay any
taxes or penalties reasonably anticipated to result from such withdrawal).
(b) If a withdrawal on account of Hardship is made to a
Participant pursuant to this Section, the following rules
<PAGE> 48
shall apply notwithstanding any other provision of the Plan (or any other plan
maintained by the Controlled Group) to the contrary:
(i) the Participant's Before-Tax Contributions and After-Tax
Contributions (or any comparable contributions to any other qualified
or non-qualified plan, other than a health or welfare benefit plan,
maintained by the Controlled Group) shall be suspended for a period of
twelve (12) months following receipt of the Hardship withdrawal, and
(ii) the amount of the Participant's Before-Tax Contributions
(and any comparable contributions to any other plan maintained by the
Controlled Group) for the Participant's taxable year immediately
following the taxable year of the Hardship withdrawal shall not be in
excess of the applicable limit under Code Section 402(g) for such next
taxable year less the amount of such Participant's Before-Tax
Contributions (and any comparable contributions to any other plan,
other than health or welfare benefit plan, maintained by the Controlled
Group) for the taxable year of the Hardship withdrawal.
8.10 Distributions Pursuant to Qualified Domestic Relations Orders
- -------------------------------------------------------------------
Notwithstanding anything in the Plan to the contrary, if a
qualified domestic relations order (as defined in Code Section 414(p)) so
provides, the portion of the Participant's Account payable to the alternate
payee(s) (as defined in Code Section 414(p)) may be paid to such alternate
payee(s) at any time on or after the date on which the Committee receives such
order, regardless of whether the Participant is entitled to a distribution from
the Plan at such time. The portion of the Participant's Account so payable shall
be valued on the Valuation Date specified in such order.
8.11 Distribution on Sale of Assets or Disposition of Business
- --------------------------------------------------------------
In the event that a Participant's Termination of Employment is
caused by the disposition by an Employer of substantially all of the assets of a
trade or business, or its interest in a subsidiary, and such Participant
continues employment with the entity acquiring such assets or such subsidiary,
the Participant, if he so elects on an application filed with the Plan
Administrator pursuant to Section 8.1, shall be entitled to a distribution of
his Account other than the Stock Bonus Portion pursuant to Section 8.2 only if
such purchaser is not deemed to "maintain" the Plan in accordance with
regulations issued under Code Section 401(k)(10).
8.12 Direct Rollovers
- ---------------------
(a) If a Participant, Spouse or alternate payee (as defined in
Code Section 414(p)) is eligible to receive a distribution or withdrawal from
the Plan that constitutes an Eligible Rollover Distribution and such individual
elects to have all or a portion (but not less than $500) of such distribution or
withdrawal paid directly
<PAGE> 49
to an "eligible retirement plan" (as defined in Subsection (c) of this Section)
and specifies the eligible retirement plan to which the distribution or
withdrawal is to be paid, such distribution or withdrawal (or portion thereof)
shall be made in the form of a direct rollover to the eligible retirement plan
so specified. A direct rollover is a payment made by the Plan directly to the
eligible retirement plan. The Committee shall prescribe reasonable procedures
for elections to be made pursuant to this Section.
(b) The Plan Administrator shall provide a Participant, Spouse
or alternate payee who will receive an Eligible Rollover Distribution with a
written notice describing his rights under this Section, such other information
required to be provided under Code Section 402(f), and, if applicable, the
information required under Section 8.1(b) no less than thirty (30) days nor more
than ninety (90) days before the date scheduled for payment of such
Distribution; provided, however, that a Participant, Spouse or alternate payee
may elect to waive such 30- day requirement if (i) he is clearly informed by the
Plan Administrator of his rights, if applicable, to a period of at least 30 days
after receiving the written notice to consider whether or not to elect a
distribution or withdrawal and/or to elect a particular form of benefit and
(ii), after receiving the written notice, he affirmatively elects the
distribution or withdrawal. Nothing contained in this Subsection shall be
construed to accelerate the timing of a distribution or withdrawal otherwise
provided in the Plan.
(c) For purposes of this Section, the term "eligible
retirement plan" means an individual retirement account or annuity described in
Code Section 408, a defined contribution plan that meets the requirements of
Code Section 401(a) and that accepts rollovers, or an annuity plan described in
Code Section 403(a); provided, however, that with respect to a Spouse (but not a
Spouse who is an alternate payee) who receives a distribution after a
Participant's death, an "eligible retirement plan" shall mean only an individual
retirement account or annuity described in Code Section 408.
(d) This Section is intended to comply with the provisions
of Code Section 401(a)(31) and shall be interpreted in accordance with such Code
Section and Treasury regulations issued thereunder.
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 administer 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 apply on a form or in a manner provided by the Plan Administrator
for a loan from his Account. If the Plan Administrator determines that the
Participant is not in bankruptcy or similar proceedings and is entitled to a
loan in accordance with the provisions of this Section, the
<PAGE> 50
Plan Administrator shall direct the Trustee to make a loan to the Participant
from his Account. Each loan shall be charged against the Participant's Account
in the following order: first, against the Participant's Rollover Contributions
Sub-Account (if any); second, to the extent necessary, against the Participant's
Qualified Nonelective Contributions Sub-Account (if any); third, to the extent
necessary, against the Participant's Matching Employer Contributions Sub-Account
(if any); fourth, to the extent necessary, against the Participant's Profit
Sharing Contributions Sub-Account (if any); fifth, to the extent necessary,
against the Participant's Before-Tax Contributions Sub-Account, and finally, to
the extent necessary, against the Participant's 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
Section 72(p)(4) of the Code) of the Controlled Group) shall be an amount which
does not exceed the lesser of:
(1) $50,000, reduced by the excess (if any) of (i)
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 (ii) the outstanding balance of such other loans on the date on
which such loan is made; or
(2) 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 Plan Administrator shall (1) direct the Trustee to
liquidate the Participant's interests in the Investment Funds on a pro rata
basis, to the extent necessary to provide funds for the loan, (2) direct the
Trustee to disburse such funds to the Participant upon the Participant's
execution of the Note referred to in Subsection (d)(4) of this Section and the
transmission to the Trustee of such executed Note, and (3) 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 and interest on the promissory
note from 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 invested in the Investment Funds pursuant to the Participant's
direction regarding investment of Contributions under Sections 7.5, 7.6, 7.7 and
7.8. 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.
<PAGE> 51
(d) Loans made pursuant to this Section:
(1) Shall be made available to all Participants
on a reasonably equivalent basis;
(2) Shall not be made available to Highly
Compensated Employees in a percentage amount greater than the percentage amount
made available to other Participants;
(3) Shall be secured by the Participant's Loan
Sub-Account;
(4) Shall be evidenced by a promissory note and
security agreement (the "Note") executed by the Participant which provides for:
(i) the loan to be secured by the Participant's
Loan Sub-Account;
(ii) a reasonable rate of interest, determined
by the Plan 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;
(iii) repayment within a specified period of time,
which shall not extend beyond 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 15 years;
(iv) repayment in equal payments over the term
of the loan, with payments not less frequently than monthly;
and
(v) for such other terms and conditions as the
Plan Administrator shall determine, which shall include
provision that:
(A) 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
and such payroll deductions will not result in a
reduction of the Participant's compensation below a
reasonable level, as determined by the Plan
Administrator;
(B) 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; and
<PAGE> 52
(C) the loan shall become due and
payable 60 days after the first to occur of the
following default events (a "Default"):
(I) the Participant's failure
to make required payments on the Note;
(II) the Participant's death;
(III) in the case of a Participant
who is an Employee at the time the loan is
made, revocation of his payroll deduction
authorization;
(IV) in the case of a Participant
who is not an Employee at the time the loan is
made, commencement of distribution of his
Account;
(V) the filing of a petition,
the entry of an order or the appointment of
a receiver, liquidator, trustee or other
person in a similar capacity, with respect
to the Participant, pursuant to any state or
federal law relating to bankruptcy,
moratorium, reorganization, insolvency or
liquidation, or any assignment by the
Participant for the benefit of his
creditors; or
(VI) the failure to pay the
administrative fees charged for the loan, if
any.
(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:
(1) 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 8.9) at such time as he first
becomes eligible to receive distribution of his Account under the
provisions of this Article, (other than Section 8.9); or
(2) 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.
<PAGE> 53
(f) All principal and interest paid with respect to any loan
shall be allocated to the Sub-Accounts that funded such loan, pro rata based on
the portion of the loan that was funded by each such Sub-Account. All loan
repayments shall be invested in the Investment Funds pursuant to the
Participant's direction under Sections 7.5, 7.6, 7.7 and 7.8.
ARTICLE IX
----------
ADMINISTRATION OF THE PLAN AND FIDUCIARY RESPONSIBILITIES
---------------------------------------------------------
9.1 Responsibility for Administration
- --------------------------------------
Except to the extent that particular responsibilities are
otherwise assigned or delegated to other Fiduciaries under the Plan, the
Committee shall be responsible for the administration of the Plan. Each other
Fiduciary shall have only such powers, duties, responsibilities and authorities
as are specifically conferred upon him pursuant to provisions of the Plan. Any
person may serve in more than one fiduciary capacity with respect to the Plan or
Trust Fund, if pursuant to the Plan, he is assigned or delegated any multiple
fiduciary capacities.
9.2 Named Fiduciaries
- ---------------------
For the purposes of the Plan, the Named Fiduciaries shall be
the Committee, the Company and the Trustee, and for purposes of Sections 7.10
and 7.11 only, Participants and their Beneficiaries shall be Named Fiduciaries.
The Company may, by written instrument, designate any other person or persons as
a Named Fiduciary or Named Fiduciaries to perform functions specified in such
instrument (or in a delegation pursuant to Section 9.3) that relate to the
administration of the Plan, provided such designee accepts such designation.
Such a designation may be terminated at any time by notice from the Company to
the designee or by notice from the designee to the Company.
9.3 Delegation of Fiduciary Responsibilities
- --------------------------------------------
(a) The Committee or the Company may delegate to any person or
persons any one or more of its powers, functions, duties and/or responsibilities
with respect to the Plan or the Trust Fund.
(b) Any delegation pursuant to Subsection (a) of this Section,
(i) shall be signed on behalf of the Committee or the Company, and be delivered
to and accepted in writing by the delegatee, (ii) shall contain such provisions
and conditions relating to such delegation as the Committee or the Company deems
appropriate, (iii) shall specify the powers, functions, duties and/or
responsibilities therein delegated, (iv) may be amended from time to time by
written agreement signed on behalf of the Committee or the Company and by the
delegatee and (v) may be revoked (in whole or in part) at any time by written
notice from one party to the other. A fully
<PAGE> 54
executed copy of any instrument relating to any delegation (or revocation of any
delegation) under the Plan shall be filed with each of the Named Fiduciaries.
9.4 Immunities
- ---------------
Except as otherwise provided in Section 9.5 or by applicable
law, (a) no Fiduciary shall have the duty to discharge any duty, function or
responsibility that is specifically assigned exclusively to another Fiduciary or
Fiduciaries by the terms of the Plan or is delegated exclusively to another
Fiduciary or Fiduciaries pursuant to procedures for such delegation provided for
in the Plan; (b) no Fiduciary shall be liable for any action taken or not taken
with respect to the Plan or Trust Fund except for his own negligence or willful
misconduct; (c) no Fiduciary shall be personally liable upon any contract or
other instrument made or executed by him or on his behalf in the administration
of the Plan or Trust Fund; (d) no Fiduciary shall be liable for the neglect,
omission or wrongdoing of another Fiduciary; and (e) any Fiduciary may rely and
shall be fully protected in acting upon the advice of counsel, who may be
counsel for any Controlled Group Member, upon the records of a Controlled Group
Member, upon the opinion, certificate, valuation, report, recommendation or
determination of the certified public accountants appointed to audit a
Controlled Group Member's financial statements, or upon any certificate,
statement or other representation made by an Employee, a Participant, a
Beneficiary or the Trustee concerning any fact required to be determined under
any of the provisions of the Plan.
9.5 Limitation on Exculpatory Provisions
- ----------------------------------------
Notwithstanding any other provision of the Plan, no provision
of the Plan shall be construed to relieve (or have the effect of relieving) any
Fiduciary from any responsibility or liability for any obligation,
responsibility or duty imposed on such Fiduciary by Part 4 of Subtitle B of
Title 1 of ERISA.
9.6 Administrative Committee - Organization
- -------------------------------------------
The Company shall appoint the Committee to perform the duties
hereinafter set forth. The Committee shall consist of two (2) or more
individuals who have accepted appointment thereto. The members of the Committee
shall serve at the discretion of the Company and may resign by delivering
written resignation to the Company. Vacancies in the Committee arising for any
reason shall be filled by the Company, provided that any vacancy unfilled for
thirty (30) days may be filled by a majority vote of the remaining members of
the Committee.
9.7 Compensation
- ----------------
The members of the Committee shall serve without compensation,
but all reasonable expenses of the Committee shall be paid from the Trust Fund
unless the Company makes such payments directly.
<PAGE> 55
9.8 Qualification
- ------------------
Members of the Committee shall not be disqualified from acting
because of any interest, benefit or advantage, inasmuch as it is recognized that
the members may be Employees of the Employer and Participants in the Plan;
provided, however, that no member of the Committee shall have any right to vote
upon or decide any matter relating solely to his own rights under the Plan.
9.9 Interpretation of the Plan and Findings of Facts
- ----------------------------------------------------
The Committee shall have sole and absolute discretion to
interpret the provisions of the Plan (including, without limitation, by
supplying omissions from, correcting deficiencies in, or resolving
inconsistencies or ambiguities in, the language of the Plan), to determine the
rights and status under the Plan of Participants and other persons, to decide
disputes arising under the Plan and to make any determinations and findings with
respect to the benefits payable thereunder and the persons entitled thereto as
may be required for the purposes of the Plan. In furtherance of, but without
limiting, the foregoing, the Committee is hereby granted the following specific
authorities, that it shall discharge in its sole and absolute discretion in
accordance with the terms of the Plan (as interpreted, to the extent necessary,
by the Committee):
(i) to resolve all questions arising under the provisions of
the Plan as to any individual's entitlement to become a Participant;
(ii) to determine the amount of benefits, if any, payable to
any person under the Plan; and
(iii) to conduct the review procedures specified in Article
X.
All decisions of the Committee as to the facts of any case, as to the
interpretation of any provision of the Plan or its application to any case, and
as to any other interpretative matter or other determination or question under
the Plan shall be final and binding on all parties affected thereby, subject to
the provisions of Article X.
9.10 Operation of the Committee
- -------------------------------
(a) (i) The Committee shall act only by a majority vote of its
members present at a meeting at which a quorum is present or by the
unanimous written consent of all of its members without a meeting. A
quorum for any meeting of the Committee shall be a majority of its
members in office at that time. No member shall act by proxy unless by
proxy given in writing to another Committee member.
(ii) The Committee may appoint a chairman from among its
members and a secretary. It shall authorize one (1) or more of its
members to execute any document on its behalf, in which event the
Committee shall notify the Trustee in writing of such action and the
names of its members so designated. The Trustee thereafter shall accept
and rely upon any document executed by such members as
<PAGE> 56
representing action by the Committee until the Committee shall file
with the Trustee a written revocation of such designation.
(iii) Consistent with the foregoing, the Committee may adopt
such by-laws and regulations as it deems desirable for the conduct of
its affairs and it may appoint such accountants, counsel, specialists
and other persons as it deems necessary or desirable in connection with
its duties and responsibilities under the Plan.
(b) The Committee shall keep a record of all of its
proceedings and acts and all such books of account, records and other data as
may be necessary for administration of the Plan as provided herein. The
Committee shall notify the Trustee and the Board of Directors of any action
taken by the Committee and, when necessary or required, any other interested
person.
9.11 Plan Administrator's Actions
- ---------------------------------
Any periods of time or procedures required to be established
by the Plan Administrator pursuant to this Plan shall be established in a
uniform nondiscriminatory manner.
9.12 Correction of Errors
- -------------------------
Notwithstanding anything herein to the contrary, the Plan
Administrator and/or the Committee may take such actions or permit such actions
to be taken as are necessary and reasonably calculated to correct an
administrative error made by an Employer, the Plan Administrator, the Committee
or any other Fiduciary.
ARTICLE X
---------
CLAIMS PROCEDURES
-----------------
10.1 Claims
- ------------
(a) Any Participant or Beneficiary who believes that he is
entitled to receive a benefit under the Plan that he has not received may file a
written claim with the Committee (on the form furnished by the Committee)
specifying the basis for his claim and the facts upon which he relies in making
such claim. Such claim must be signed by the claimant or his authorized
representative and shall be deemed filed when delivered to any member of the
Committee.
(b) Unless such claim is allowed in full, within ninety (90)
days after such claim is filed (plus an additional period of ninety (90) days if
required for processing and if notice of the extension is given to the claimant
within the first 90-day period), the Committee shall cause written notice to be
mailed to the claimant of the total or partial denial of such claim. Such notice
shall be written in a manner calculated to be understood by the claimant and
shall state:
<PAGE> 57
(i) The specific reason(s) for the denial of the claim;
(ii) Specific reference(s) to pertinent Plan provisions on
which the denial of the claim was based;
(iii) A description of any additional material or
information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary; and
(iv) An explanation of the review procedures specified in
Section 10.2.
(c) If notice of denial of a claim is not furnished within
the time specified above, the claim shall be deemed to have been denied in full.
10.2 Review of Claims
- ----------------------
(a) Within sixty (60) days after the denial of his claim, the
claimant may appeal such denial by filing with the Committee a written request
for a review of such claim (on the form provided by the Committee). If the
claimant does not file such a request with the Committee within such 60-day
period, the claimant shall be conclusively presumed to have accepted as final
and binding the initial decision of the Committee on his claim.
(b) If such an appeal is so filed within such 60 days, the
Committee shall (i) conduct a full and fair review of such claim and (ii) mail
or deliver to the claimant a written decision on the matter based on the facts
and pertinent provisions of the Plan within a period of sixty (60) days after
the receipt of the request for review unless special circumstances require an
extension of time, in which case such decision shall be rendered not later than
one hundred twenty (120) days after receipt of such request. If an extension of
time for review is required, written notice of the extension shall be furnished
to the claimant prior to the commencement of the extension.
(c) Such decision (i) shall be written in a manner calculated
to be understood by the claimant, (ii) shall state the specific reason(s) for
the decision, (iii) shall make specific reference(s) to pertinent provisions of
the Plan on which the decision is based and (iv) shall, to the extent permitted
by applicable law, be final and binding on all interested persons.
(d) During such full review, the claimant or his duly
authorized representative shall be given an opportunity to review documents that
are pertinent to the claimant's claim and to submit issues and comments in
writing.
(e) If the decision on review is not furnished within such
60-day or 120-day period, as the case may be, the claim shall be deemed denied
in full on review.
<PAGE> 58
ARTICLE XI
----------
AMENDMENT AND TERMINATION
-------------------------
11.1 Right to Amend or Terminate
- ---------------------------------
Subject to the limitations of Section 5.5(a), the Company has
reserved, and does hereby reserve, the right at any time, without the consent of
any other Employer or of the Participants, Beneficiaries or any other person,
(a) to terminate the Plan, in whole or in part or as to any or all of the
Employers or as to any designated group of Employees, Participants and their
Beneficiaries, or (b) to amend the Plan, in whole or in part. No such
termination or amendment shall decrease the amount of Matching Employer
Contributions to be made by an Employer on account of any period preceding such
termination. Except as provided in Section 13.2, the Plan may be amended only by
the Company. No amendment shall increase the duties or liabilities of the
Trustee without the Trustee's written consent.
11.2 Procedure for Termination or Amendment
- -------------------------------------------
Any termination or amendment of the Plan pursuant to Section
11.1 shall be expressed in an instrument executed by the Company and shall
become effective as of the date designated in such instrument or, if no date is
so designated, on the date of its execution.
11.3 Distribution Upon Termination
- ----------------------------------
If the Plan shall be terminated by the Company as to all
Employers, Before-Tax Contributions, After-Tax Contribution and Matching
Employer Contributions to the Plan shall cease and, as soon as practicable after
such termination, the Trustee shall make distribution (if such distribution is
permitted by applicable law) to each Employee as if the Plan had not been
terminated.
11.4 Amendment Changing Vesting Schedule
- ----------------------------------------
(a) If any Plan amendment changes any vesting schedule under
the Plan, each Participant having not less than three (3) years of service shall
be permitted to elect, during the election period described in Subsection (b) of
this Section, to have his nonforfeitable percentage computed under the Plan
without regard to such amendment.
(b) Such election period shall begin on the date the Plan
amendment is adopted and shall end no earlier than the latest of the following
dates: (i) the date that is sixty (60) days after the day the Plan amendment is
adopted, (ii) the date that is sixty (60) days after the day the Plan amendment
becomes effective, or (iii) the date that is sixty (60) days after the day the
Participant is issued written notice of the Plan amendment by the Committee or
the Company.
<PAGE> 59
(c) For purposes of Subsection (a) of this Section, a
Participant shall be considered to have completed three (3) years of service if
such Participant has completed three (3) years of service, whether or not
consecutive, without regard to the exceptions of Code Section 411(a)(4), prior
to the expiration of the election period described in Subsection (b) of this
Section.
(d) Notwithstanding the foregoing, the election provided in
Subsection (a) of this Section will not be provided to any Participant whose
nonforfeitable percentage under the Plan, as amended, cannot be less than such
percentage determined without regard to such amendment.
11.5 Nonforfeitable Amounts
- ---------------------------
Notwithstanding any other provision of the Plan, upon the
termination or partial termination of the Plan or upon complete discontinuance
of contributions under the Plan, the rights of all Employees to benefits accrued
to the date of such termination or partial termination or discontinuance, to the
extent then funded, or the amounts credited to the Employees' Accounts, shall be
nonforfeitable.
11.6 Prohibition on Decreasing Accrued Benefits
- -----------------------------------------------
No amendment to the Plan (other than an amendment described in
Code Section 412(c)(8)) shall have the effect of decreasing the accrued benefit
of any Participant. For purposes of the preceding sentence, a Plan amendment
that has the effect of (a) eliminating or reducing an early retirement benefit
or a retirement-type subsidy (as defined in regulations of the Secretary of the
Treasury) or (b) eliminating an optional form of benefit (except as permitted by
any such regulations) with respect to benefits attributable to service before
the amendment, shall be treated as decreasing accrued benefits; provided,
however, that in the case of a retirement-type subsidy this sentence shall apply
only with respect to a Participant who satisfies (either before or after the
amendment) the preamendment conditions for the subsidy.
ARTICLE XII
-----------
MISCELLANEOUS
-------------
12.1 Employment Not Affected
- -----------------------------
Nothing contained in this Plan shall constitute or be
construed as a contract of employment between any Employer and any Employee or
Participant and all Employees shall remain subject to discipline, discharge and
layoff to the same extent as if the Plan had never gone into effect. An Employer
by adopting the Plan, making contributions to the Trust Fund or taking any other
action with respect to the Plan does not obligate itself to continue the
employment of any Participant or Employee for any period or, except as expressly
provided in the Plan, to make any payments into the Trust Fund.
<PAGE> 60
12.2 Inalienability
- --------------------
No right or interest of any kind of a Participant or
Beneficiary in the Trust Fund may be assigned, alienated, transferred, pledged
or anticipated or subject to encumbrance, garnishment, attachment, execution or
levy of any kind, voluntary or involuntary, or any other legal or equitable
process and any attempt so to assign, alienate, transfer, pledge, anticipate,
encumber, garnish, attach or levy shall be void. Notwithstanding the foregoing,
this Section shall not preclude the Trustee from complying with a qualified
domestic relations order (as defined under Code Section 414(p)). The Committee
shall develop procedures to determine whether a domestic relations order is
qualified under Code Section 414(p).
12.3 Incapacity to Receive Payment
- ----------------------------------
In the event that the Committee finds that any Participant or
Beneficiary entitled to receive benefits hereunder is (at the time such benefits
are payable) unable to care for his affairs because of a physical, mental, or
legal incompetence, the Committee may, in its sole discretion, cause any payment
due him, for which prior claim has not been made by a duly qualified guardian or
other legal representative, to be paid to such one or more persons as may be
chosen by the Committee from among the following: the institution maintaining or
responsible for the maintenance of such Participant or Beneficiary, his spouse,
his children, or other relatives by blood or marriage. Any payment made pursuant
to this Section shall be a complete discharge of all liability under the Plan
with respect of such payment.
12.4 Unclaimed Benefits
- -----------------------
Subject to the provisions of Article X, when an Account is
distributable to any distributee and is unclaimed by either a Participant, a
former Participant or a Beneficiary, the Committee, upon request of the Trustee
or at its own instance, shall mail by registered or certified mail to such
distributee (at his last known address) a written demand for his current
address, or for satisfactory evidence of his continued life, or both. If such
distributee shall fail to furnish such information to the Committee within five
(5) years from the date of such demand, then such Account shall be forfeited and
applied to reduce Matching Employer Contributions required under the Plan;
provided, however, that such Account shall be reinstated (without provision for
interest or earnings thereon) upon a proper claim therefore made by the
Participant or if applicable, the Beneficiary.
<PAGE> 61
12.5 Dissolution, Merger or Consolidation of the Company
- ---------------------------------------------------------
In the event of a dissolution, merger or consolidation of the
Company, provision may be made by the successor person for the continuance of
this Plan. In such event, such successor person shall be substituted as the
Company under the Plan upon the execution of an instrument authorizing such
substitution, executed on behalf of the Company and such successor. A copy of
such instrument, accompanied by a duly certified copy of a resolution of the
Board of Directors authorizing such substitution, shall be delivered to the
Trustee and shall constitute authority to the Trustee to recognize such
substituted person in place of the Company hereunder.
12.6 Action by the Company
- --------------------------
Wherever the Company is authorized to act under the Plan
(including but not limited to any delegation of its fiduciary powers and
responsibilities under the Plan), such action shall be taken, unless otherwise
provided in the Plan, by written instrument executed by an officer of the
Company. The Trustee may rely on any instrument so executed as being validly
authorized and as properly evidencing the action of the Company.
12.7 Limitation to Rights Created Under the Plan
- -------------------------------------------------
Except as otherwise provided by controlling law, neither the
Company, any Employer, the Trustee, the Committee, nor a Participant shall have
any legal or equitable right or claim against the other unless the same is
specifically provided for herein or conferred by affirmative action in
accordance herewith.
12.8 Recourse Against Officers, Directors or Stockholders
- ---------------------------------------------------------
Except as otherwise provided by controlling law, no recourse
under any provision of this Plan shall be had against an agent, Employee,
officer, director or stockholder of a Controlled Group Member, past, present or
future; and all such agents, Employees, officers, directors and stockholders are
hereby released from all liability hereunder, as a condition of and a part of
the consideration for the execution hereof, the contributions hereunder by the
Company or an Employer, and the participation in the Plan by the Participants.
12.9 Interpretation
- -------------------
(a) The Plan shall be governed, construed and administered
according to the laws of the State of Ohio, except to the extent preempted by
applicable federal law.
(b) Headings have been inserted in this Plan for purposes of
convenience only and shall not be taken as limiting or extending the meaning of
any provision.
12.10 Severability
- ------------------
If any provision of this Plan or the application thereof to
any circumstance or person is invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions of the Plan or the
<PAGE> 62
application of such provision to other circumstances or persons, and the Plan
and the application of such provisions to other circumstances or persons shall
not be affected thereby.
12.11 Counterparts
- -------------------
This Plan may be executed in any number of counterparts, each
of which shall be deemed an original, and the counterparts shall constitute one
and the same instrument, which shall be sufficiently evidenced by any one
thereof.
12.12 Plan Merger or Transfer of Assets
- ----------------------------------------
There shall not be any merger or consolidation of the Plan
with, or the transfer of assets or liabilities of the Plan to any other plan
(other than as permitted in Section 8.5 or 8.12), unless each Participant of the
Plan would (if Plan then terminated) receive a benefit immediately after the
merger, consolidation or transfer which is equal to or greater than the benefit
he would have been entitled to receive immediately before the merger,
consolidation or transfer (if the Plan had then terminated). The Company
reserves the right to merge or consolidate this Plan with, and to transfer the
assets of the Plan to, any other Plan, without the consent of any other
Employer. Notwithstanding the foregoing, this Plan shall not be a direct or
indirect transferee of a pension plan or any retirement plan that at any time
provided for benefits in the form of a life annuity.
12.13 Indemnification
- ---------------------
In addition to any rights of indemnification under the
Certificate of Incorporation or Code of Regulations of the Company, under any
provisions of law, or under any other agreement that may be given to the
Committee, the Board of Directors or any other person to whom any power,
authority or responsibility of the Company is delegated pursuant to this Plan
(other than the Trustee), the Company shall satisfy any liability actually and
reasonably incurred by such person, including expenses, reasonable attorneys'
fees, judgments, fines and amounts paid in settlement. This right to
indemnification shall apply in connection with any threatened, pending or
completed action, suit or proceeding that is related to the exercise or failure
to exercise by such person any of the powers, authorities, responsibilities or
discretion provided under the Plan or reasonably believed by such person to be
provided hereunder and any action taken by such person in connection therewith,
but only if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the Participants or,
with respect to any criminal actions or proceedings, if he had no reasonable
cause to believe his conduct was unlawful. The termination of any suit, action
or proceeding by judgment, order, settlement, conviction or a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
such person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to
<PAGE> 63
the best interest of the Participants or, with respect to any criminal action
or proceedings, that he had no reasonable cause to believe that his conduct was
unlawful.
12.14 Service of Process/Necessary Parties
- -------------------------------------------
(a) The Plan Administrator shall serve as the agent upon whom
legal process may be served under ERISA.
(b) In any action or other judicial proceeding affecting the
Trust, the Trustee and the Company shall be included as necessary parties.
ARTICLE XIII
------------
ADOPTION OF PLAN BY CONTROLLED GROUP MEMBERS
--------------------------------------------
13.1 Adoption Procedure
- ------------------------
Any Controlled Group Member may become an Employer under the
Plan provided that (a) the Board of Directors approves the adoption of the Plan
by the Controlled Group Member and designates the Controlled Group Member as an
Employer; (b) the Controlled Group Member executes an Instrument of Adoption
adopting the Plan, together with all amendments then in effect, upon appropriate
resolutions of the board of directors of the Controlled Group Member; and (c)
the Instrument of Adoption provides that the Controlled Group Member agrees to
be bound by any other terms and conditions that may be required by the Board of
Directors, provided that such terms and conditions are not inconsistent with the
purposes of the Plan.
13.2 Additional Terms and Conditions Relating to Instruments
- -------------------------------------------------------------
Each Instrument of Adoption executed by an Employer may
contain such terms and conditions governing the application of the Plan to its
Employees covered by such Instrument as may be specified by such Employer and
approved by the Company and, without limiting the generality of the foregoing,
may specify the Employees of the Employer who will be considered Covered
Employees under the Plan, any greater or lesser Matching Employer Contributions,
greater or lesser Before-Tax Contributions, greater or lesser After-Tax
Contributions, additional eligibility requirements for membership in the Plan
and any other provision that such Employer (with the approval of the Company)
shall consider necessary or appropriate to carry out the provisions of the Plan
as to its Employees covered by such Instrument. In the event of inconsistency
between the other provisions of the Plan and such terms and conditions set forth
in any Instrument of Adoption, the latter shall control as to the Employees
covered by such Instrument; provided, however, that if such inconsistency
results from changes made in provisions of the Plan to comply with applicable
law, then such provisions of the Plan shall
<PAGE> 64
control as to the Employees covered by such Instrument. Notwithstanding the
foregoing, no Instrument of Adoption shall increase the duties or liabilities of
the Trustee without the Trustee's written consent.
13.3 Effect of Adoption by a Controlled Group Member
- -----------------------------------------------------
A Controlled Group Member that adopts the Plan pursuant to an
Instrument of Adoption will be deemed to be Employer for all purposes hereunder,
unless otherwise specified in the Instrument of Adoption or resolutions of the
Board of Directors designating the Controlled Group Member as an Employer. In
addition, the Board of Directors may provide, in its discretion and by
appropriate resolutions, that the Employees of such Controlled Group Member will
receive credit for their employment with the Controlled Group Member prior to
the date it became a Controlled Group Member for purposes of determining either
or both the eligibility of such Employees to participate in the Plan and the
vested and nonforfeitable interest of such Employees in their Account balances,
provided that such credit will be applied in a uniform and nondiscriminatory
manner with respect to all such Employees.
13.4 Withdrawal of an Employer
- ------------------------------
Any Employer (other than the Company) that adopts the Plan may
elect separately to withdraw from the Plan. Any such withdrawal shall be
expressed in an instrument executed by the withdrawing Employer and filed with
the Company. No such withdrawal shall decrease the amount of Matching Employer
Contributions to be made by the Employer on account of periods preceding such
withdrawal. In the event of such a withdrawal of an Employer, or in the event
the Plan is terminated as to an Employer (but not all the Employers) pursuant to
Section 11.1, such Employer (herein called "former Employer") shall cease to be
an Employer, and Matching Employer Contributions of such former Employer and
After-Tax and Before-Tax Contributions of Employees of such former Employer
shall cease. The interests in the Trust Fund of Participants who are or were
Employees of such former Employer shall be distributed as specified in Article
VIII.
ARTICLE XIV
-----------
TOP-HEAVY PLAN PROVISIONS
-------------------------
14.1 Definitions
- -----------------
For purposes of this Article, the following terms when used
with initial capital letters, shall have the following respective meanings:
(a) AGGREGATION GROUP: Permissive Aggregation Group or
Required Aggregation Group, as the context shall require.
<PAGE> 65
(b) COMPENSATION: Compensation as defined in Section 5.9(c)
(subject to the limitations described in Section 2.14(b)).
(c) DEFINED BENEFIT PLAN: A qualified plan as defined in
Code Section 414(j).
(d) DEFINED CONTRIBUTION PLAN: A qualified plan as defined
in Code Section 414(i).
(e) DETERMINATION DATE: For any Plan Year, last day of the
immediately preceding Plan Year.
(f) EXTRA TOP-HEAVY GROUP: An Aggregation Group if, as of a
Determination Date, the aggregate present value of accrued benefits for Key
Employees in all plans in the Aggregation Group (whether Defined Benefit Plans
or Defined Contribution Plans) is more than ninety percent (90%) of the
aggregate present value of all accrued benefits for all employees in such plans.
(g) EXTRA TOP-HEAVY PLAN: See Section 14.3.
(h) FORMER KEY EMPLOYEE: A Non-Key Employee with respect to
a Plan Year who was a Key Employee in a prior Plan Year. Such term shall also
include his Beneficiary in the event of his death.
(i) KEY EMPLOYEE: Any Employee or former Employee who is or
was a Participant and who, at any time during the current Plan Year or any of
the preceding four (4) Plan Years, is (i) an officer of an Employer (limited to
no more than fifty (50) Employees or, if lesser, the greater of three (3)
Employees or ten percent (10%) of the Employees) with annual Compensation
greater than fifty percent (50%) of the dollar amount in effect under Code
Section 415(b)(1)(A) for such Plan Year, (ii) one of the ten (10) Employees
owning (or considered owning within the meaning of Code Section 318) the largest
interests in an Employer and having annual Compensation exceeding the applicable
dollar amount referred to in Section 5.6(a), (iii) a five percent (5%) owner (as
such term is defined in Code Section 416(i)(1)(B)(i)), or (iv) a one percent
(1%) owner (as such term is defined in Code Section 416(i)(1)(B)(ii)) with
annual Compensation of more than One Hundred Fifty Thousand Dollars ($150,000).
For purposes of Paragraph (ii) of this Subsection, if two Employees have the
same interest in an Employer, the Employee having greater annual Compensation
shall be treated as having a larger interest. The term "Key Employee" shall also
include such Employee's Beneficiary in the event of his death. For purposes of
this Subsection, "Compensation" has the meaning given such term by Code Section
414(q)(7).
(j) NON-KEY EMPLOYEE: Any Employee or former Employee who
is or was a Participant and who is not a Key Employee. Such term shall also
include his Beneficiary in the event of his death.
(k) PERMISSIVE AGGREGATION GROUP: A group of qualified
plans of an Employer consisting of the plans in the Required Aggregation Group,
plus one or more plans designated from time to time by the
<PAGE> 66
Committee that are not part of the Required Aggregation Group but that satisfy
the requirements of Code Sections 401(a)(4) and 410 when considered with the
Required Aggregation Group.
(l) REQUIRED AGGREGATION GROUP: The group of qualified plan of
an Employer consisting of each plan in which a Key Employee 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)
and 410.
(m) TOP-HEAVY ACCOUNT BALANCE: A Participant's (including a
Participant who has received a total distribution from this Plan) or a
Beneficiary's aggregate balance standing to his account as of the Valuation Date
of the Trust Fund coinciding with or immediately preceding the Determination
Date (as adjusted by the amount of any Matching Employer Contributions made or
due to be made after such Valuation Date but before the expiration of the
extended payment period in Code Section 412(c)(10)), provided, however, that
such balance shall include the aggregate distributions made to such Participant
or Beneficiary during the five (5) consecutive Plan Years ending with the Plan
Year that includes the Determination Date (including distributions under a
terminated plan that if it had not been terminated would have been included in a
Required Aggregation Group), and provided further that if an Employee or former
Employee has not performed services for any Employer maintaining the Plan at any
time during the five (5) year period ending on the Determination Date, his
account (and/or the account of his Beneficiary) shall not be taken into account.
(n) TOP-HEAVY GROUP: An Aggregation Group if, as of a
Determination Date, the aggregate present value of accrued benefits for Key
Employees in all plans in the Aggregation Group (whether Defined Benefit Plans
or Defined Contribution Plans) is more than sixty percent (60%) of the aggregate
present value of accrued benefits for all employees in such plans.
(o) TOP-HEAVY PLAN: See Section 14.2.
14.2 Determination of Top-Heavy Status
- ---------------------------------------
(a) Except as provided by Subsections (b) and (c) of this
Section, the Plan shall be a Top-Heavy Plan if, as of a Determination Date:
(i) the aggregate of Top-Heavy Account Balances for Key
Employees is more than sixty percent (60%) of the aggregate of all
Top-Heavy Account Balances, excluding for this purpose the aggregate
Top-Heavy Account Balances of Former Key Employees; or
(ii) if the Plan is included in a Required Aggregation Group
that is a Top-Heavy Group.
<PAGE> 67
(b) If the Plan is included in a Required Aggregation Group
that is not a Top-Heavy Group, the Plan shall not be a Top-Heavy Plan
notwithstanding the fact that the Plan would otherwise be a Top-Heavy Plan under
Paragraph (i) of Subsection (a) of this Section.
(c) If the Plan is included in a Permissive Aggregation
Group that is not a Top-Heavy Group, the Plan shall not be a Top-Heavy Plan
notwithstanding the fact that the Plan would otherwise be a Top-Heavy Plan under
Subsection (a) of this Section.
14.3 Determination of Extra Top-Heavy Status
- --------------------------------------------
(a) Except as provided by Subsections (a) and (b) of this
Section, the Plan shall be an Extra Top-Heavy Plan if, as of the Determination
Date:
(i) the aggregate of Top-Heavy Account Balances for Key
Employees is more than ninety percent (90%) of the aggregate of all
Top-Heavy Account Balances, excluding for this purpose the aggregate
Top-Heavy Account Balances of Former Key Employees; or
(ii) if the Plan is included in a Required Aggregation Group
that is an Extra Top-Heavy Group.
(b) If the Plan is included in a Required Aggregation Group
that is not an Extra Top-Heavy Group, the Plan shall not be an Extra Top-Heavy
Plan notwithstanding the fact that the Plan would otherwise be an Extra
Top-Heavy Plan under Paragraph (i) of Subsection (a) of this Section.
(c) If the Plan is included in a Permissive Aggregation Group
that is not an Extra Top-Heavy Group, the Plan shall not be an Extra Top-Heavy
Plan notwithstanding the fact that the Plan would otherwise be an Extra
Top-Heavy Plan under Subsection (a) of this Section.
14.4 Requirements
- -----------------
Notwithstanding any other provisions of the Plan to the
contrary, if the Plan is Top-Heavy for any Plan Year, the Plan shall then
satisfy the following requirements for any such Plan Year:
(a) A Participant shall continue to have a nonforfeitable
right to all amounts allocated to his Account.
(b)(i) Each Non-Key Employee who is eligible to share in any
Matching Employer Contributions for such Plan Year (or who would have
been eligible to share in any such Matching Employer Contributions if a
Before-Tax Contribution or After-Tax Contribution had been made for him
during such Plan Year) shall be entitled to receive an allocation of
such Matching Employer Contributions, that is at least equal to three
percent (3%) of his Compensation for such Plan Year.
<PAGE> 68
(ii) The three percent (3%) minimum contribution requirement
under Paragraph (i) of this Subsection for a Non-Key Employee shall be
increased to four percent (4%) if the Employer maintains a Defined
Benefit Plan that does not cover such Non-Key Employee.
(iii) The percentage minimum contribution requirement set
forth in Paragraphs (i) and (ii) of this Subsection with respect to a
Plan Year shall not exceed the percentage at which Matching Employer
Contributions are made (or required to be made) under the Plan for such
Plan Year for the Key Employee for whom such percentage is the highest
for such Year.
(iv) The percentage minimum contribution requirement set forth
in Paragraphs (ii) and (iii) of this Subsection may also be reduced or
eliminated in accordance with Section 14.5(b).
(v) For the purpose of Paragraph (iii) of this Subsection,
contributions taken into account shall include like contributions under
all other Defined Contribution Plans in the Required Aggregation Group,
excluding any such plan in the Required Aggregation Group if that plan
enables a Defined Benefit Plan in such Required Aggregation Group to
meet the requirements of Code Sections 401(a)(4) or 410.
(vi) For the purpose of this Subsection, the term "Matching
Employer Contributions" shall include Before-Tax Contributions made for
an Employee.
(c) If the Employer maintains a Defined Benefit Plan that
could or does provide benefits to Participants in this Plan:
(i) If the Plan is not an Extra Top-Heavy Plan (but is a
Top-Heavy Plan), then the percentage minimum contribution requirement
in Paragraph (i) of Section (b) of this Section shall be seven and
one-half percent (7 1/2%) for a Non-Key Employee who is covered by this
Plan and the Defined Benefit Plan.
(ii) If the Plan is an Extra Top-Heavy Plan, then parts (i)
and (ii) of Section 5.10(a) shall be calculated by substituting "1.0"
for "1.25" for each place such "1.25" figure appears, and Code Section
415(e)(6)(B)(i)(I) shall be calculated by substituting "$41,500" for
"$51,875" for each place such "$51,875" amount appears.
14.5 Coordination With Other Plans
- -----------------------------------
(a) In applying this Article, an Employer and all Controlled
Group Members shall be treated as a single employer, and the qualified plans
maintained by such single employer shall be taken into account.
<PAGE> 69
(b) In the event that another Defined Contribution Plan or
Defined Benefit Plan maintained by the Controlled Group provides contributions
or benefits on behalf of Participants in this Plan, such other plan(s) shall be
taken into account in determining whether this Plan satisfies Section 14.4; and
the minimum contribution required for a Non-Key Employee in this Plan under
Section 14.4(c) will be reduced or eliminated, in accordance with the
requirements of Code Section 416 and the regulations thereunder, if a minimum
contribution or benefit is made or accrued in whole or in part in respect of
such other plan(s).
(c) Principles similar to those specifically applicable to
this Plan under this Article, and in general as provided for in Code Section 416
and the regulations thereunder, shall be applied to the other plan(s) required
to be taken into account under this Article in determining whether this Plan and
such other plan(s) meet the requirements of such Code Section 416 and the
regulations thereunder.
<PAGE> 70
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by
its duly appointed officer, effective January 1, 1996.
In the presence of: ROADWAY EXPRESS, INC.
/s/ G. P. Bembenic By: /s/ J. Dawson Cunningham
- ------------------- ---------------------------
Name: J. Dawson Cunningham
Title: Vice President - Finance
and Administration
<PAGE> 71
EXHIBIT A
---------
Employers Pursuant to Section 2.24
As of January 1, 1996
The Company
Roadway Managed Return Services, Inc.
<PAGE> 72
EXHIBIT B
---------
Additional Investment Funds Pursuant to Section 7.1
As of January 1, 1996
1. "VICTORY FINANCIAL RESERVES FUND".
The investment objective of The Victory Financial Reserves
Fund is to seek current income with liquidity and to maintain a stable
share price of $1.00. The fund invests in high quality U.S.
dollar-denominated money market instruments. All securities will have a
maturity of 13 months or less with a dollar-weighted average maturity
of 90 days or less.
2. "VICTORY INTERMEDIATE INCOME FUND".
The investment objective of The Victory Intermediate Income
Fund is to seek to provide a high level of current income. The fund
invests in investment-grade debt securities issued by corporations and
obligations of the U.S. Government and its agencies or
instrumentalities. The fund may also invest in preferred stock and
intends to maintain a dollar weighted average portfolio maturity of
approximately three to eight years.
3. THE "AMERICAN BALANCED FUND".
The American Balanced Fund seeks conservation of capital,
current income and long-term growth of capital and income by investing
in stocks, bonds, and other fixed-income securities. The fund
emphasizes a balanced approach and is managed as if it constituted the
complete investment program of a prudent investor.
4. THE "FIDELITY ADVISOR GROWTH OPPORTUNITIES FUND-CLASS A".
The Fidelity Advisor Growth Opportunities Fund -
Class A seeks to provide capital growth by investing primarily in
common stocks and securities convertible into common stocks. Long-term
growth is achieved through a core investment in traditional growth
stocks -- securities that are undervalued or undiscovered by the
marketplace -- plus other opportunities such as special situations,
debt securities and cyclicals. The manager's freedom to invest for the
best opportunities, combined with Fidelity's extensive research
capabilities, are complemented by Fidelity's own analysis of each stock
on an individual basis.
<PAGE> 1
Exhibit 4.4
AMENDMENT NO. 1
TO THE
ROADWAY EXPRESS, INC.
401(k) STOCK SAVINGS PLAN
-------------------------
THIS AMENDMENT NO. 1 is made and executed this 20th day of
August, 1996, by Roadway Express, Inc. to be effective August 1, 1996, except
as provided herein. Words and phrases used herein with initial capital letters
which are defined in the Roadway Express, Inc. 401(k) Stock Savings Plan (the
"Plan") are used herein as so defined.
Section 1
---------
1. Section 2.8 of the Plan is amended to read as follows:
'Caliber Stock Fund' means the Investment Fund described in
Section 7.1 which is invested in Caliber Stock and, as appropriate to
meet the needs of the Plan, cash.
Section 2
---------
2. A new Section 2.8A is added to the Plan to read as
follows:
2.8A Caliber Stock Liquidating Fund
---------------------------------------
'Caliber Stock Liquidating Fund' means the Investment
Fund described in Section 7.1, which is invested in Caliber Stock, cash
and/or proceeds from the sale or exchange of Caliber Stock, and which
is subject to the provisions of Subsection 7.8(c). The objective of the
Caliber Stock Liquidating Fund is to permit diversification of the
portion of Accounts invested in Caliber Stock and to encourage
investment by Participants in Company Stock upon the disposition of
shares of Caliber Stock transferred to the Caliber Stock Liquidating
Fund.
Section 3
---------
3. The first sentence of Subsection 7.1(a) of the Plan is
amended to read as follows:
The Trust Fund will be divided into the Company Stock Fund, the Caliber
Stock Fund, the Caliber Stock Liquidating 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).
Section 4
---------
4. The proviso of Paragraph 7.5(a)(2) of the Plan is
amended to read as follows:
provided; however, that, pursuant to Subsection 7.8(c), a Participant
may elect to transfer any portion of such matching contributions
invested in the Caliber Stock Fund to the Caliber Stock Liquidating
Fund.
<PAGE> 2
Section 5
---------
5. Paragraph 7.5(b)(1) of the Plan is amended by inserting the
phrase "or the Caliber Stock Liquidating Fund" immediately following the phrase
"the Caliber Stock Fund".
Section 6
---------
6. The proviso of Paragraph 7.5(b)(3) of the Plan is amended
to read as follows:
provided; however, that, pursuant to Subsection 7.8(c), a Participant
may elect to transfer any portion of such Before-Tax Contributions and
After-Tax Contributions invested in the Caliber Stock Fund to the
Caliber Stock Liquidating Fund.
Section 7
---------
7. Paragraph 7.5(c)(1) of the Plan is amended by deleting the
proviso and inserting the following:
provided; however, that, pursuant to Subsection 7.8(c), a Participant
may elect to transfer any portion of his Stock Bonus Portion invested
in the Caliber Stock Fund to the Caliber Stock Liquidating Fund.
Section 8
---------
8. Paragraphs 7.5(c)(2), 7.5(c)(3), 7.6(a)(1) and 7.6(a)(2) of
the Plan are amended by inserting the phrase "or the Caliber Stock Liquidating
Fund" immediately following the phrase "other than the Caliber Stock Fund" each
place such phrase appears in each Paragraph.
Section 9
---------
9. Paragraph 7.6(a)(1) of the Plan is amended by deleting the
second occurrence of the phrase "all or a portion".
Section 10
----------
10. Subsection 7.8(c) of the Plan is amended to read as
follows:
(c)(1) A Participant may, with respect to the portion of his
Account invested in the Caliber Stock Fund, direct the Plan
Administrator to transfer all or a portion of his Account to the
Caliber Stock Liquidating Fund. Any such direction which is received
and acknowledged by the Plan Administrator within such period
established by the Plan Administrator prior to the first day of any
March, June, September or December (or such other date as the Plan
Administrator may designate), shall be effected during such March,
June, September or December (or such other date as the Plan
Administrator may designate). Any such direction not effected in any
month described in this Paragraph because it was not timely received or
acknowledged with respect to such month shall be effected during the
next succeeding March, June, September or December (or such other date
as the Plan Administrator may designate), as applicable.
<PAGE> 3
(2) At such time(s) as the Plan Administrator shall determine,
proceeds from the disposition of Caliber Stock held in the Caliber
Stock Liquidating Fund shall be reinvested (i) twenty percent (20%) in
the Company Stock Fund and (ii) eighty percent (80%) in the other
Investment Funds (other than the Caliber Stock Fund and the Caliber
Stock Liquidating Fund) in accordance with directions provided by the
Participant; provided, however, that, subject to the applicable
provisions of ERISA, if required by the Internal Revenue Service as a
condition to the issuance of a supplemental ruling in connection with
the spin-off of the Company from Roadway Services, Inc., such proceeds
shall be reinvested one hundred percent (100%) in the Company Stock
Fund.
Section 11
----------
11. Subsection 8.5(a) of the Plan is amended by inserting the
phrase "or the Caliber Stock Liquidating Fund" immediately following the phrase
"the Caliber Stock Fund" each place such phrase appears in the Subsection.
Section 12
----------
12. The introductory portion of Subsection 8.7(a) is amended
to read as follows:
Upon prior 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 other than his Stock Bonus
Portion as provided and in the order set forth below:
Section 13
----------
13. Subsection 8.7(a)(v) of the Plan is amended by deleting
the phrase "No portion of a Participant's Stock Bonus Portion may be withdrawn
while the Participant is an Employee".
Section 14
----------
14. Subsection 8.7(b) of the Plan is redesignated as
Subsection 8.7(c) and a new Subsection (b) is added immediately following
Subsection 8.7(a) to read as follows:
(b) Upon prior notice filed with the Plan Administrator,
within such period established by the Plan Administrator, a Participant
may withdraw all or a portion of his Stock Bonus Portion invested in
Caliber Stock; provided, however, that any portion of the Stock Bonus
Portion invested in Caliber Stock that has not been held in the
Participant's Account for at least two (2) years may not be withdrawn
unless the Participant has been a Participant in the Plan for at least
five (5) years. For purposes of this Subsection, the calculation of a
Participant's years of participation in the Plan shall include the
Participant's year(s) of participation in the Roadway Services, Inc.
Stock Bonus Plan and Trust. Any withdrawal of Caliber Stock pursuant to
this Subsection shall be distributed in a single lump sum payment, in
whole shares of Caliber Stock in kind, plus cash equal to the value of
any fractional shares.
<PAGE> 4
Section 15
----------
15. Effective upon the issuance of a favorable determination
letter from the Internal Revenue Service with respect to this Amendment No. 1,
(a) the proviso of Paragraph 7.8(c)(2) shall become operative and (b) Section
8.8 of the Plan is deleted in its entirety and Sections 8.9 through 8.13 (as
well as any cross references to these Sections) are renumbered accordingly.
<PAGE> 5
IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to be
executed by its duly appointed officer.
In the presence of: ROADWAY EXPRESS, INC.
/s/ Sandra Matthews By: /s/ J. Dawson Cunningham
- ---------------------- ------------------------
Name: J. Dawson Cunningham
Title: Vice President - Finance
and Administration
<PAGE> 1
Exhibit 4.5
AMENDMENT NO. 2
TO THE
ROADWAY EXPRESS, INC.
401(k) STOCK SAVINGS PLAN
-------------------------
THIS AMENDMENT NO. 2 is made and executed this 11th day of
November, 1996, by Roadway Express, Inc. (the "Company") to be effective as of
January 1, 1996. Words and phrases used herein with initial capital letters
which are defined in the Roadway Express, Inc. 401(k) Stock Savings Plan (the
"Plan") are used herein as so defined.
Section 1
---------
1. Section 2.18 of the Plan is amended in its entirety
to read as follows:
2.18 Covered Employees
-----------------
'Covered Employee' means any Employee of an Employer
who is in a class or group to which the Employer has extended
eligibility for participantion 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 not 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
2.23).
Section 2
---------
2. Section 2.32 of the Plan is amended in its entirety
to read as follows:
2.32 Hours of Service
----------------------
(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, 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 hereby 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 Service not otherwise credited to
him unde the Plan as may be required by any applicable law.
<PAGE> 2
Section 3
3. New Subsections 2.37(c) and (d) are added to the
Plan immediately following Subsection 2.37(b) to read as follows:
(c) 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) 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
(II) in the immediately following
Plan Year.
Section 4
---------
4. Section 2.62 of the Plan is amended in its entirety
to read as follows:
2.62 Years of Service
----------------------
'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
<PAGE> 3
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.
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this Amendment No. 2 to be
executed by its duly appointed officer.
In the presence of: ROADWAY EXPRESS, INC.
By: /s/ J. Dawson Cunningham
- -------------------- -----------------------------
Name: J. Dawson Cunningham
Title: Vice President - Finance
and Administration
<PAGE> 1
Exhibit 4.6
AMENDMENT NO. 3
TO THE
ROADWAY EXPRESS, INC.
401(k) STOCK SAVINGS PLAN
(Effective January 1, 1996)
THIS AMENDMENT NO. 3 is made and executed this 3rd day of
June, 1997, by Roadway Express, Inc. (the "Company") to be effective
as of January 1, 1996. Words and phrases used herein with initial capital
letters which are defined in the Roadway Express, Inc. 401(k) Stock Savings Plan
(the "Plan") are used herein as so defined.
Section 1
---------
1. Section 14.1(l) of the Plan is amended in its
entirety to read as follows:
(l) 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 Section
401(a)(4) or 410.
Section 2
---------
2. Section 14.4(b)(vi) of the Plan is amended in its
entirety to read as follows:
(vi) For the purpose of Paragraph (iii) of this Subsection,
the term "Matching Employer Contributions" shall include
Before-Tax Contributions made for an Employee.
Section 3
---------
3. Section 8.8 of the Plan (provisionally deleted by
Subsection (b) of Section 15 of Amendment No. 1 to the Plan, which Subsection is
hereby rendered void) is, effective upon the issuance of a favorable
determination letter from the Internal Revenue Service with respect to this
Amendment No. 3, amended to read as follows:
(a) [Reserved.]
(b) Any Participant who makes a withdrawal, pursuant to
Section 8.7(a)(v), of any portion of his Account not invested in
Caliber Stock, a withdrawal pursuant to Section 8.7(a)(vi) or has made
a withdrawal pursuant to similar provisions in the Roadway Services,
Inc. Stock Savings and Retirement Income Plan and Trust 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.
<PAGE> 2
(c) A Participant's Contributions that have been suspended
pursuant to this Section will resume as of the first pay period after
the period of suspension if he is a Covered Employee on that date.
IN WITNESS WHEREOF, the Company has caused this Amendment
No. 3 to be executed by its duly appointed officers.
In the presence of: ROADWAY EXPRESS, INC.
/s/ Joyce Hardman By /s/ John M. Glenn
------------------------- ---------------------------
Name: John M. Glenn
Title: Secretary
<PAGE> 1
Exhibit 23
Consent of Independent Auditors
To the Board of Directors
Roadway Express, Inc.
We consent to the incorporation by reference in Post-Effective Amendment No. 1
to the Registration Statement (Form S-8 No. 33-80685) pertaining to the
Roadway Express, Inc. 401(k) Stock Savings Plan of our report dated January
22, 1997, with respect to the consolidated financial statements of Roadway
Express, Inc. incorporated by reference in its Annual Report (Form 10-K) for
the year ended December 31, 1996 and our report dated March 24, 1997 with
respect to the related financial statement schedule included therein, filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Akron, Ohio
June 3, 1997
<PAGE> 1
Exhibit 24.1
DIRECTORS AND OFFICERS OF
ROADWAY EXPRESS, INC.
401(k) STOCK SAVINGS PLAN
REGISTRATION STATEMENT ON FORM S-8
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of Roadway Express, Inc., a Delaware corporation (the "Company"),
hereby constitutes and appoints Michael W. Wickham, J. Dawson Cunningham and
John M. Glenn, 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, $.01 par value per share, as
shall be determined from time to time, issued and to be issued or acquired in
connection with the Company's 401(k) Stock 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 30th day of May, 1997.
/s/ J. Dawson Cunningham /s/ Carl W. Schafer
- -------------------------------- --------------------------------
J. Dawson Cunningham Carl W. Schafer
/s/ Frank P. Doyle /s/ William Sword
- -------------------------------- --------------------------------
Frank P. Doyle William Sword
/s/ Phillip J. Meek /s/ Sarah Roush Werner
- -------------------------------- --------------------------------
Phillip J. Meek Sarah Roush Werner
/s/ Robert E. Mercer /s/ Michael W. Wickham
- -------------------------------- --------------------------------
Robert E. Mercer Michael W. Wickham
<PAGE> 1
Exhibit 24.2
ROADWAY EXPRESS, INC.
401(k) STOCK SAVINGS PLAN
REGISTRATION STATEMENT ON FORM S-8
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned members of
the Roadway Express, Inc. 401(k) Stock Savings Plan Committee, constituting all
of the members in office at the date hereof, hereby constitutes and appoints
Michael W. Wickham, J. Dawson Cunningham and John M. Glenn, and each of them,
with full power of substitution and resubstitution as the true and lawful
attorney-in-fact and agent of the undersigned to sign and file on his behalf and
in his name, place and stead, in any and all capacities, under the Securities
Act of 1933, one or more Registration Statements on Form S-8 relating to the
Registration, offer and sale of participations and participation interests in
the Roadway Express, Inc. 401(k) Stock Savings Plan, as the same may from time
to time hereafter be amended or restated (the "Plan"), and any and all
amendments and exhibits thereto, including post-effective amendments, and any
and all applications or other documents to be filed with the Securities and
Exchange Commission or any state regulatory authority, including any state
securities regulatory board or commission, pertaining to the securities subject
to such registrations, with full power and authority to do and perform any and
all acts and things whatsoever required and necessary to be done in the
premises, hereby ratifying and approving the acts of said member.
EXECUTED this 30th day of May, 1997.
/s/ J. Dawson Cunningham /s/ James D. Staley
- ---------------------------------- --------------------------------
J. Dawson Cunningham James D. Staley
/s/ Thomas V. Lopienski
- ----------------------------------
Thomas V. Lopienski
