<PAGE> 1
As filed with the Securities and Exchange Commission on_____________________
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------
ROADWAY EXPRESS, INC.
(Exact name of registrant as specified in charter)
<TABLE>
<S> <C>
Delaware 34-0492670
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
</TABLE>
1077 Gorge Blvd., Akron, Ohio 44310
(Address, including ZIP Code, of registrant's principal executive offices)
ROADWAY EXPRESS DEFERRED COMPENSATION 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)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
===============================================================================================================
Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered(1) Registered(2) per Obligation Offering Price(2) Fee
===============================================================================================================
<S> <C> <C> <C> <C>
Deferred
Compensation 12,500,000 n/a 12,500,000 $3,687.50
Obligations
===============================================================================================================
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of the
Registrant to pay deferred compensation in the future in accordance with
the Roadway Express Deferred Compensation Plan (the "Plan").
(2) Estimated solely for the purpose of determining the registration fee.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following document heretofore filed by Roadway Express, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") is
incorporated herein by reference:
(1) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997 (the "Annual Report").
All documents that shall be filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing
of this registration statement and prior to the filing of a post-effective
amendment indicating that all securities offered under the Roadway Express
Deferred Compensation Plan (the "Plan") have been sold or deregistering all
securities then remaining unsold thereunder, shall be deemed to be incorporated
herein by reference and shall be deemed to be a part hereof from the date of
filing thereof.
Item 4. Description of Securities.
--------------------------
Under the Plan, the Registrant will provide a select group of
management and highly compensated employees (each, an "Eligible Employee") the
opportunity to defer payment of a specified percentage of their cash
compensation.
To become a Participant in the Plan, an Eligible Employee must be
designated by the Compensation Committee of the Board of Directors of the
Registrant (the "Committee"), elect the amount of compensation to be deferred
(the "Deferred Compensation Obligation") in accordance with the terms of the
Plan. Each Participant's Deferred Compensation Obligation will be paid in
accordance with the terms of the Plan and may be deposited in a separate
account (each, an "Account") in a trust that is intended to qualify as a
grantor trust under the Internal Revenue Code of 1986, as amended (the "Code").
The Deferred Compensation obligations will be unsecured general obligations of
the Registrant to pay the deferred compensation and any earnings thereon in the
future in accordance with the terms of the Plan, and will rank pari passu with
other unsecured and unsubordinated indebtedness of the Registrant from time to
time outstanding. The following description of the Plan is qualified in its
entirety by reference to the Plan, a copy of which is filed as an exhibit to
this Registration Statement. Each Eligible Employee's deferred compensation
will be deemed to be invested, as elected by the Eligible Employee, in one or
more deemed investment funds selected by the Committee. Each Eligible
Employee's Account will be credited with compensation that the Eligible
Employee elects to defer, and any deemed gains (or losses) incurred thereon.
A Participant's right or the right of any other person to the Deferred
Compensation Obligations cannot be alienated, anticipated, commuted, pledged,
encumbered, or assigned. The Deferred Compensation Obligations are not subject
to the debts, contracts, liabilities, engagements, or torts of any person
entitled to receive benefits under the Plan.
The Plan may be amended by the Committee or terminated by the Board of
Directors of the Registrant at any time. However, no Plan amendment or
termination may decrease the value of a Participant's Account under the Plan.
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
II - 2
<PAGE> 3
any transaction from which the director derived an improper personal benefit.
The Registrant's Certificate limits personal liability of directors to the
fullest extent permitted by Delaware law.
Delaware law also provides that a corporation (a) must indemnity 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 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 Registrant's Certificate authorizes mandatory indemnification to
the full extent permitted by Delaware law, and it authorizes the Registrant to
enter into indemnification agreements with directors, officers and other persons
entitled to indemnification thereunder. The Registrant's certificate further
authorizes the Registrant to provide by agreement for indemnification greater or
different than set forth in the Registrant's Certificate. The Registrant has
entered into indemnification agreements with its directors and certain officers
that indemnify such persons to the maximum extent permitted by applicable law.
In addition, the Registrant has obtained directors' and officers' reimbursement
and liability insurance. The risks covered by such policies include certain
liabilities under the securities laws.
II - 3
<PAGE> 4
Item 7. Exemption from Registration Claimed.
------------------------------------
Not Applicable
Item 8. Exhibits.
---------
4.1 The Roadway Express Deferred Compensation Plan.
4.2 Second Restated Certificate of Incorporation of Roadway
Express, Inc. Adopted by Board of Directors' Resolution dated
December 15, 1995 by unanimous written consent of the
directors, and adopted by written consent of the sole
shareholder on December 22, 1995 (filed as Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995, and incorporated herein by reference).
4.4 Trust Agreement Between Roadway Express, Inc. and Key Trust
Company of Ohio, N.A.
5 Opinion of Counsel.
23.1 Consent of Independent Auditors.
23.2 Consent of Counsel (included in Exhibit 5).
24 Power of Attorney
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;
(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 end 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 a
20% 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
II - 4
<PAGE> 5
(2) That, for the purpose of determining any liability under
the Securities Act, 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, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be in the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 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.
II - 5
<PAGE> 6
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING THIS REGISTRATION STATEMENT ON FORM S-8 AND HAS
DULY CAUSED THIS TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF AKRON, STATE OF OHIO, ON
THIS 30TH DAY OF JUNE, 1998.
ROADWAY EXPRESS, INC.
By: /s/ John M. Glenn
-----------------------------------------
Name: John M. Glenn.
Title: Vice President, General Counsel and
Secretary
II - 6
<PAGE> 7
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* /s/ Michael W. Wickham Chairman of the Board, Chief June 16, 1998
---------------------------------------- Executive Officer and Director
Michael W. Wickham
/s/ J. Dawson Cunningham Chief Financial Officer June 30, 1998
----------------------------------------
J. Dawson Cunningham
/s/ John G. Coleman Controller June 30, 1998
----------------------------------------
John G. Coleman
* /s/ Robert E. Mercer Director June 16, 1998
----------------------------------------
Robert E. Mercer
* /s/ Frank P. Doyle Director June 16, 1998
----------------------------------------
Frank P. Doyle
* Director
----------------------------------------
Dale F. Frey
* /s/ Phillip J. Meek Director June 16, 1998
----------------------------------------
Phillip J. Meek
* Director
----------------------------------------
Carl W. Schafer
* /s/ Sarah Roush Werner Director June 16, 1998
----------------------------------------
Sarah Roush Werner
</TABLE>
*This 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 Registrant, as attorney-in-fact pursuant to a power of attorney
filed with the Securities and Exchange Commission as Exhibit 24 to this
registration statement.
DATED: June 30, 1998 By: /s/ John M. Glenn
--------------------------------------- ---------------------------
John M. Glenn, Attorney-in-Fact
II - 7
<PAGE> 8
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Plan has duly caused this registration statement to be filed on its behalf
by the undersigned, thereunto duly authorized, in the City of Cleveland, State
of Ohio, on this 30th day of June, 1998.
THE ROADWAY EXPRESS DEFERRED
COMPENSATION PLAN
By: /s/ John M. Glenn
--------------------------------
John M. Glenn
Vice President, General Counsel and
Secretary of Roadway Express, Inc.
II - 8
<PAGE> 9
EXHIBIT INDEX
-------------
4.1 The Roadway Express Deferred Compensation Plan.
4.2 Second Restated Certificate of Incorporation of Roadway
Express, Inc. Adopted by Board of Directors' Resolution dated
December 15, 1995 by unanimous written consent of the
directors, and adopted by written consent of the sole
shareholder on December 22, 1995 (filed as Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995, and incorporated herein by reference).
4.4 Trust Agreement Between Roadway Express, Inc. and Key Trust
Company of Ohio, N.A.
5 Opinion of Counsel.
23.1 Consent of Independent Auditors.
23.2 Consent of Counsel (included in Exhibit 5).
24 Power of Attorney
II - 9
<PAGE> 1
Exhibit 4.1
ROADWAY EXPRESS
DEFERRED COMPENSATION PLAN
<PAGE> 2
ROADWAY EXPRESS
DEFERRED COMPENSATION PLAN
Table of Contents
-----------------
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PAGE
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<S> <C>
Section 1: Purpose..................................................................................................... 1
Section 2: Definitions................................................................................................. 1
Section 3: Eligibility................................................................................................. 4
Section 4: Participation............................................................................................... 4
Section 5: Vesting..................................................................................................... 5
Section 6: Participants' Accounts...................................................................................... 5
Section 7: Funding..................................................................................................... 6
Section 8: Deemed Investment Diversification........................................................................... 6
Section 9: Plan Distributions.......................................................................................... 7
Section 10: Designation of Beneficiary................................................................................. 8
Section 11: Facility of Payment........................................................................................ 8
Section 12: Nontransferability......................................................................................... 8
Section 13: Withholding of Taxes....................................................................................... 9
Section 14: Binding Plan............................................................................................... 9
Section 15: Amendment or Termination of Plan........................................................................... 9
Section 16: Other Rights............................................................................................... 9
Section 17: Severability............................................................................................... 9
Section 18: Administration............................................................................................. 9
Section 19: Claims.................................................................................................... 11
Section 20: Expenses.................................................................................................. 11
</TABLE>
14
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Section 21: Governing Law............................................................................................. 11
Section 22: Top-Hat Plan.............................................................................................. 11
Section 23: Construction.............................................................................................. 11
</TABLE>
<PAGE> 4
ROADWAY EXPRESS
---------------
DEFERRED COMPENSATION PLAN
--------------------------
ROADWAY EXPRESS, INC. hereby adopts this Deferred Compensation Plan,
effective January 1, 1998.
SECTION 1: PURPOSE. The purpose of the Roadway Express Deferred
Compensation Plan is to provide a select group of management and highly
compensated employees with the opportunity to defer the receipt of all or a
portion of their annual salary and bonus. It is intended that the Plan will
assist the Company in retaining and attracting executives who will make
significant contributions to the continued success of the Company.
SECTION 2: DEFINITIONS. When used in the Plan, the following terms
shall have the following meanings, unless the context clearly indicates to the
contrary:
(a) "Account" means the account for each Participant maintained on
the books of the Company pursuant to Section 6 and showing the
Participant's interest in the Plan.
(b) "Accounting Date" means December 31 of each year and any other
date the Committee may designate.
(c) "Accounting Period" means the period beginning on the day
immediately following an Accounting Date and ending on the
next following Accounting Date.
(d) "Act" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
(e) "Beneficiary" means the person or entity designated as
provided in Section 10 to receive any benefits payable
pursuant to the Plan following the death of the Participant.
(f) "Board of Directors" means the Board of Directors of the
Company.
(g) "Bonus" means the amount awarded to the Participant as his
annual short-term incentive pay.
(h) "Change in Control" of the Company means any of the following:
(1) a filing pursuant to any federal or state law in
connection with any tender offer for shares of the
Company (other than a tender offer by the Company);
<PAGE> 5
(2) the merger, consolidation or reorganization of the
Company into or with another corporation or other
legal person, if as a result of such merger,
consolidation or reorganization less than 50% of the
combined voting power of the then-outstanding
securities of such corporation or person immediately
after such transaction are held in the aggregate by
the holders of Voting Stock (as that term is
hereafter defined) of the Company immediately prior
to such transaction by reason of their ownership of
Voting Stock of the Company;
(3) the sale or transfer by the Company of all or
substantially all of its assets to another company or
other legal person, if as a result of such sale or
transfer less than 50% of the combined voting power
of the then-outstanding securities of such company
immediately after such sale or transfer is held in
the aggregate by the holders of Voting Stock of the
Company immediately prior to such sale or transfer by
reason of their ownership of Voting Stock of the
Company;
(4) the adoption of any resolution of reorganization or
dissolution of the Company by its shareholders;
(5) the filing of a report on Schedule 13D or Schedule
14D-1 (or any successor schedule, form or report),
each as promulgated pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange
Act"), disclosing that any person (as the term
"person" is used in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is
defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of
securities representing 50% or more of the combined
voting power of the then-outstanding securities
entitled to vote generally in the election of
directors of the Company ("Voting Stock");
(6) the filing of a report or proxy statement by the
Company with the Securities and Exchange Commission
pursuant to the Exchange Act disclosing in response
to Form 8-K or Schedule 14A (or any successor
schedule, form or report or item therein) that a
change in control of the Company has occurred or will
occur in the future pursuant to any then-existing
contract or transaction;
(7) if during any period of two consecutive years,
individuals who at the beginning of such period
constituted the directors of the Company cease for
any reason to constitute a majority thereof (unless
the election, or the nomination for election by the
Company's shareholders, of each director of the
Company first elected during such period was approved
by a vote of at least two-thirds of the directors
then still in office who were directors of the
Company at the beginning of any such period; or
2
<PAGE> 6
(8) the occurrence of any other event or series of
events, which event or series of events, in the
opinion of the Board of Directors, will, or is likely
to, if carried out, result in a change in control of
the Company;
provided, however, a "Change in Control" will not be deemed to
have occurred, either (i) solely because (A) the Company, (B)
a subsidiary of the Company, or (C) any Company-sponsored
employee stock ownership plan or any other employee benefit
plan of the Company, either files or becomes obligated to file
a report or a proxy statement under or in response to Schedule
13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein) under the
Exchange Act, disclosing beneficial ownership by it of shares
of Voting Stock, whether in excess of 50% or otherwise, or
because the Company reports that a change in control of the
Company has or may have occurred or will or may occur in the
future by reason of such beneficial ownership, or (ii) solely
because of a change in control of any subsidiary by which a
Participant is employed. Notwithstanding the foregoing
provisions of Paragraphs (1)-(5) of this Subsection, if, prior
to any event described in Paragraphs (1) - (5) of this
Subsection instituted by any person not an officer or director
of the Company, or prior to any disclosed proposal instituted
by any person not an officer or director of the Company which
could lead to any such event, management proposes any
restructuring of the Company which ultimately leads to an
event described in Paragraphs (1) - (5) of this Subsection
pursuant to such management proposal, then a "Change in
Control" will not be deemed to have occurred for purposes of
the Plan. If any "Change in Control" is abandoned, the Board,
may, by notice to the Participants, nullify the effect
thereof.
(i) "Committee" means the Compensation Committee of the Board of
Directors of the Company.
(j) "Company" means Roadway Express, Inc., or any successor entity
pursuant to Section 14.
(k) "Deferral Commitment" means an agreement by a Participant in a
Participation Agreement to have a specified percentage or
dollar amount up to 25% of his salary and/or up to 100% of his
Bonus deferred under the Plan for a specified period in the
future. Such percentages or dollar amounts must be made in 5%
increments.
(l) "Eligible Employee" means any employee of the Company who is
designated by the Committee as an employee eligible to
participate in the Plan.
.
(m) "Financial Hardship" means an unforeseeable financial
emergency of the Participant, determined by the Committee as
provided in Section 9(j) on the basis of information supplied
by the Participant, arising from an illness, Total Disability,
casualty loss, sudden financial reversal or other such
unforeseeable occurrence, but not including foreseeable events
such as the purchase of a house or education expenses for
children.
3
<PAGE> 7
(n) "Participant" means an Eligible Employee participating in the
Plan in accordance with the provisions of Section 4 or a
former Eligible Employee who continues to have an Account
under the Plan.
(o) "Plan" means the Roadway Express Deferred Compensation Plan,
as amended and restated from time to time as set forth herein.
(p) "Plan Year" means the 12-month period beginning each January 1
and ending the following December 31.
(q) "Retirement" means voluntary termination of employment with
the Company on or after completing at least 10 years of
employment with the Company and its affiliated companies (as
described in Section 414 of the Internal Revenue Code of 1986,
as amended) and attaining age 55.
(q) "Total Disability" means a Participant who is disabled under
the long-term disability plan maintained by the Company and
applicable to him.
SECTION 3: ELIGIBILITY. Eligibility to participate in the Plan is
limited to those management and/or highly compensated employees of the Company
who are designated, from time to time, by the Committee.
SECTION 4: PARTICIPATION.
(a) An Eligible Employee may, prior to the beginning of
any Plan Year, elect to participate in the Plan by
filing a Participation Agreement with the Committee.
In his Participation Agreement the Eligible Employee
will make a Deferral Commitment, state a preference
with respect to the deemed investment of amounts
subject to his Deferral Commitment and may make an
alternative payment election pursuant to Section
9(b)(1). A Deferral Commitment shall be irrevocable
with respect to the Plan Year for which it is made,
except that the Committee may, in its sole
discretion, permit a Participant to terminate,
prospectively, any Deferral Commitment for a Plan
Year. If a Participant terminates a Deferral
Commitment during a Plan Year, such Participant will
not be permitted to enter into a new Deferral
Commitment for such Plan Year.
(b) A Participant's Deferral Commitment with respect to
his salary will remain in effect until the
Participant changes his Deferral Commitment by filing
a new Participation Agreement with the Committee. A
Participant must make a separate Deferral Commitment
with respect to his Bonus for each Plan Year.
(c) Notwithstanding the foregoing, a Participant who
first becomes an Eligible Employee during a Plan Year
may, within 30 days after first becoming an Eligible
Employee, elect to participate in the Plan for such
Plan Year and any subsequent Plan Year by filing a
Participation Agreement with the Committee.
4
<PAGE> 8
His Deferral Commitment will be effective with
respect to (1) salary payable after the filing of his
Participation Agreement with the Committee, and/or
(2) Bonus payments made for quarterly award periods
commencing after the filing of his Participation
Agreement.
(d) Participation in the Plan will continue as long as
the Participant is eligible to receive benefits under
the Plan.
(e) Notwithstanding any other provision of the Plan to
the contrary, if the Committee determines that any
Participant may not qualify as a "management or
highly compensated employee" within the meaning of
the Act or regulations thereunder, the Committee may
determine, in its sole discretion, that such
Participant shall cease to be an Eligible Employee.
Upon such determination, the Company shall make an
immediate lump sum payment to the Participant equal
to the amount credited to his Account. Upon such
payment no benefit shall thereafter be payable under
the Plan either to the Participant or any Beneficiary
of the Participant, and all of the Participant's
elections as to the time and manner of payment of his
Account shall be deemed to be canceled.
SECTION 5: VESTING. Subject to Sections 7 and 9(h), a Participant shall
at all times be fully vested in his Account.
SECTION 6: PARTICIPANTS' ACCOUNTS.
(a) The Company shall establish an Account for each
Participant. In addition, the Company may establish
one or more subaccounts of a Participant's Account,
if the Company determines that such subaccounts are
necessary or appropriate in administering the Plan.
(b) The portion of a Participant's salary and/or Bonus
that is deferred pursuant to a Deferral Commitment
shall be credited to the Participant's Account as of
the end of the month in which the corresponding
non-deferred portion of his salary and/or Bonus would
have been paid to the Participant or, in the event
the Company has established a trust pursuant to
Section 7, amounts deferred shall be paid by the
Company to such trust as soon as administratively
feasible and credited to the Participant's Account as
of the date the amounts are received by such trustee.
Any withholding of taxes or other amounts with
respect to any deferred salary and/or Bonus which is
required by state, federal or local law shall be
withheld from the Participant's non-deferred salary
and/or Bonus.
5
<PAGE> 9
(c) The amount credited to each Participant's Account as
of a particular date shall equal the deemed balance
of such Account as of such date. The balance in the
Account shall equal the amount credited pursuant to
Subsection (b) of this Section, and shall be adjusted
in the manner provided in Subsections (d) and (e) of
this Section.
(d) Each Participant's Account shall be immediately
debited with the amount of any distributions under
the Plan to or on behalf of the Participant or, in
the event of his death, his Beneficiary.
(e) The Participant's Account shall be adjusted
periodically to reflect income, gains and losses
(realized and unrealized).
(f) As soon as practicable after the end of each Plan
Year, and any Accounting Period the Committee may
designate, a statement shall be furnished to each
Participant or, in the event of his death, to his
Beneficiary showing the status of his Account as of
the end of such Accounting Period, any changes in his
Account since the end of the immediately preceding
Accounting Period, and such other information as the
Committee shall determine.
SECTION 7: FUNDING. All payments provided pursuant to the Plan shall be
paid by the Company from its general assets. No asset of the Company shall be
considered security for the satisfaction of the obligations of the Company under
the Plan. No Participant or any other person shall have any interest in any
particular assets of the Company by reason of the right to receive a benefit
under the Plan. The Participant or any other such person shall only have the
rights of an unsecured general creditor of the Company. Notwithstanding the
preceding provisions of this Section, nothing in the Plan precludes the Company
from setting aside amounts in trust pursuant to one or more trust agreements
between a trustee and the Company. However, no Participant or Beneficiary shall
have any security interest or claim in any assets or property of any such trust
or "dedicated sinking fund" and all funds contained in such trust shall remain
subject to the claims of the Company's general creditors.
SECTION 8: DEEMED INVESTMENT DIVERSIFICATION. Participant deferrals
shall be deemed allocated, for bookkeeping purposes only, to one or more of the
deemed investment opportunities ("Deemed Investment") identified on Exhibit A
attached hereto and incorporated herein which are made available by the
Committee and selected by the Participant.
Each Participant shall make an investment preference request
("Request") in accordance with procedures established by the Committee.
A Request, unless modified as described below, shall apply to
all amounts credited to a Participant's Account with respect to each subsequent
Accounting Period. A Request may be changed with respect to the amounts
previously credited to a Participant's Account in accordance with procedures
established by the Committee.
6
<PAGE> 10
Earnings on any amounts deemed to have been invested in any
Deemed Investment shall be deemed to have been reinvested in such Deemed
Investment.
SECTION 9: PLAN DISTRIBUTIONS.
(a) In the event of a Participant's termination of
employment other than for Retirement, death or Total
Disability, payment of his Account shall be made to
him in a lump sum within 60 days of termination of
employment.
(b) In the event of the Retirement of a Participant,
payment of his Account shall be made to him in
substantially equal annual installments over a period
of 10 years commencing on the first anniversary of
termination of employment. Notwithstanding the
foregoing:
(1) at the election of the Participant, one of
the following alternative payment elections
may be selected in lieu of the default
payment election described above:
(i) a lump sum payment within 60 days
of termination of employment; or
(ii) substantially equal annual payments
over a period of no less than 3
years and no more than 15 years.
(c) In the event of termination of employment due to
death or Total Disability, a Participant's Account
shall be paid to him or his Beneficiary, as the case
may be, in a lump sum within 60 days of such event.
(d) In the event of a Change in Control, a Participant's
Account shall be paid to the Participant in a lump
sum within 10 days following the Change in Control.
(e) A Participant's election as to the form of payment
pursuant to Subsection (b) of this Section shall be
made within 30 days of the date the Participant is
first designated an Eligible Employee. Any such
election may be changed by the Participant at any
time and from time to time without the consent of
any other person by filing a later signed written
election with the Committee; provided that any
election made less than one year prior to the
Participant's voluntary termination of employment or
Retirement shall not be valid, and in such case
payment shall be made in accordance with the
Participant's prior election or, if none, the
provisions of the first sentence of Subsection (b)
of this Section.
(f) The amount to which a Participant or, in the event of
his death, his Beneficiary is entitled in accordance
with the provisions of this Section shall be based on
the Participant's adjusted Account balance determined
as of the Accounting Date coincident with or next
following the distribution event.
7
<PAGE> 11
(g) The amount of each installment shall be equal to the
quotient obtained by dividing the Participant's
Account balance as of the date of such installment
payment by the number of installment payments
remaining to be made to or in respect of such
Participant at the time of calculation.
(h) Notwithstanding any other provision of this Section,
a Participant may elect to receive a distribution of
part or all of his Account in one or more
distributions if (and only if) the amount in the
Participant's Account subject to such distribution is
reduced by 10%. Any distribution made pursuant to
such an election shall be made as soon as practicable
following the date such election is submitted to the
Committee. The remaining 10% of the portion of the
electing Participant's Account subject to such
distribution shall be forfeited.
(j) Notwithstanding any other provision of this Section,
upon a finding by the Committee that a Participant
has suffered a Financial Hardship, the Committee may,
in its sole discretion, distribute, or cause to be
distributed, to the Participant an amount which does
not exceed the amount required to meet the immediate
financial needs created by the Financial Hardship and
not reasonably available from other sources of the
Participant; provided, however, that in no event
shall any amount attributable to a Deferral
Commitment be distributed less than 6 months after
the date of the applicable Participation Agreement.
No distributions pursuant to this Section may be made
in excess of the value of the Participant's Account
at the time of such distribution.
SECTION 10: DESIGNATION OF BENEFICIARY. A Participant may designate a
primary and contingent beneficiary with respect to the Plan. Such election shall
be in writing on a form prescribed by the Committee. In the event no beneficiary
is designated, then the Participant's Account shall be paid to the estate of the
Participant pursuant to Section 9(c). Any Beneficiary designation may be changed
from time to time by the filing of a new form with the Committee. No designation
under this Section shall be effective unless and until the Committee actually
receives such designation.
SECTION 11: FACILITY OF PAYMENT. Whenever and as often as any
Participant or his Beneficiary entitled to payments hereunder shall be under a
legal disability or, in the sole judgment of the Committee, shall otherwise be
unable to apply such payments to his own best interests and advantage, the
Committee in the exercise of its discretion may direct all or any portion of
such payments to be made in any one or more of the following ways: (a) directly
to him; (b) to his legal guardian or conservator; or (c) to his spouse or to any
other person, to be expended for his benefit; and the decision of the Committee,
shall in each case be final and binding upon all persons in interest.
SECTION 12: NONTRANSFERABILITY. The benefits granted under the Plan and
any payments due pursuant to the terms of the Plan shall not be transferred,
assigned, pledged, encumbered, or hypothecated in any manner, by operation of
law or otherwise, other than by will or the laws of descent, and shall not be
subject to execution, attachment, or similar process. In the event of
Participant's death, payment of benefits, if any, under the Plan shall be made
to the designated
8
<PAGE> 12
beneficiary of the Plan, as determined pursuant to Section 10, or to the duly
appointed and qualified executor, or other personal representative to be
distributed according to the terms of the Participant's will or applicable
intestacy law.
SECTION 13: WITHHOLDING OF TAXES. Company shall have the right to
deduct from all amounts paid pursuant to the Plan any taxes required by law to
be withheld with respect to such payments.
SECTION 14: BINDING PLAN. The Plan shall be binding upon and inure to
the benefit of each Participant, his Beneficiaries and the Participant's estate,
and the Company, its subsidiaries and affiliates, and their respective permitted
successors and assigns or designated beneficiaries. Nothing in the Plan shall
preclude the Company from consolidating or merging into or with, or transferring
all or substantially all of its assets to another entity which assumes the Plan
and all Company obligations hereunder.
SECTION 15: AMENDMENT OR TERMINATION OF PLAN. The Plan may be amended
from time to time by the Committee. The Plan may be terminated at any time by
the Board of Directors. No amendment or termination of the Plan, however, may
adversely affect the amount or timing or payment of any person's benefits
accrued under the Plan to the date of amendment or termination without such
person's written consent.
SECTION 16: OTHER RIGHTS. Neither the Participant nor any other person
shall have any claim or right to participate in the Plan. Nothing embodied
herein shall be construed as giving any Participant the right to be retained as
an employee of the Company. The Company shall continue to have the right to
terminate a Participant's employment at any time or terminate participation in
the Plan.
SECTION 17: SEVERABILITY. If any provision of the Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and not to any other provision of the Plan. The Plan, except
for such provisions held invalid or unenforceable, shall remain in full force
and effect and be binding upon the parties as if such invalid or unenforceable
provision was not embodied herein.
SECTION 18: ADMINISTRATION.
(a) The Plan shall be administered by the Committee which
shall be the "administrator" under the Plan for
purposes of the Act. The Committee may from time to
time delegate all or any part of its authority under
the Plan and, to the extent of any such delegation,
references in the Plan (other than in Section 15) to
the Committee are deemed to be references to such
delegate. Subject to the Plan, the Committee shall
have such powers as may be necessary to discharge its
duties hereunder, including, but not by way of
limitation, the sole and absolute discretion:
9
<PAGE> 13
(1) 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);
(2) to make factual findings with respect to any
issue arising under the Plan;
(3) to determine the rights and status under the
Plan of Participants and other persons;
(4) to decide disputes arising under the Plan
and to make determinations and findings
(including factual findings) with respect to
the benefits payable thereunder and the
persons entitled thereto as may be required
for the purposes of the Plan.
(b) In furtherance thereof, but without limiting the
foregoing, the Committee is hereby granted the
following specific authorities, which it shall
discharge in its sole and absolute discretion in
accordance with the terms of the Plan (as
interpreted, to the extent necessary, by the
Committee):
(1) to resolve all questions (including factual
questions) arising under the Plan as to any
individual's entitlement to become a
Participant;
(2) to determine the amount of benefits, if any,
payable with respect to any person under the
Plan (including, to the extent necessary,
making factual finds with respect thereto);
and
(3) to conduct the claims procedure specified in
Section 19.
(c) The Committee may, from time to time, employ agents
and delegate to them such administrative duties as it
sees fit, and may from time to time consult with
legal counsel who may be counsel to the Company. The
Committee shall have no power to add to, subtract
from or modify any of the terms of the Plan, or to
change or add to any benefits provided under the
Plan, or to waive or fail to apply any requirements
of eligibility for a benefit under the Plan. No
member of the Committee shall act in respect of his
own Account. All decisions and determinations by the
Committee shall be final and binding on all parties.
All decisions of the Committee shall be made by the
vote of the majority, including actions in writing
taken without a meeting. All elections, notices and
directions under the Plan by a Participant shall be
made on such forms as the Committee shall prescribe.
10
<PAGE> 14
SECTION 19: CLAIMS. The Committee will provide to any Participant or
Beneficiary whose claim for benefits under the Plan has been fully or partially
denied a written notice setting forth (a) the specific reasons for such denial,
(b) a designation of any additional material or information required and (c) an
explanation of the Plan's claim review procedure. Such notice shall state that
the Participant or Beneficiary is entitled to request a review in writing, by
the Committee, of the decision denying the claim. The claim will be reviewed by
the Committee who may, but need not, grant the claimant a hearing. On review,
the claimant may have legal representation, examine pertinent documents and
submit issues and comments in writing. The decision on review will be made
within 120 days following the request, will be provided in writing to the
claimant and will be final and binding on all parties concerned.
SECTION 20: EXPENSES. All expenses of the Plan shall be paid by the
Company from funds other than Deemed Investments as provided in Section 8,
except that the Deemed Investments shall bear and be charged with actual or
hypothetical expenses to the same extent that the corresponding investment fund
in which assets are deemed to be invested bear and are charged with such
expenses, as determined by the Committee.
SECTION 21: GOVERNING LAW. To the extent permitted by federal law, the
Plan shall be governed by and construed under the laws of the State of Ohio
without regard to the principles of conflict of laws thereof, as from time to
time in effect.
SECTION 22: TOP-HAT PLAN. The Plan is intended to be a plan which is
unfunded and maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
within the meaning of Sections 201, 301 and 401 of the Act, and therefore to be
exempt from the provisions of Parts 2, 3 and 4 of Title I of the Act.
Accordingly, notwithstanding any other provision of the Plan, the Plan will
terminate and no further benefits will accrue hereunder in the event it is
determined by a court of competent jurisdiction or by an opinion of counsel
based upon a change in law that the Plan constitutes an employee pension benefit
plan within the meaning of Section 3(2) of the Act, which is not so exempt. In
addition and notwithstanding any other provision of the Plan, in the absolute
discretion of the Committee, the amount credited to each Participant's Account
under the Plan as of the date of termination, which shall be an Accounting Date
for purposes of the Plan, will be paid immediately to such Participant in a
single lump sum cash payment.
SECTION 23: CONSTRUCTION. Headings are given to the sections of this
Plan solely as a convenience to facilitate reference. Such headings, numbering
and paragraphing shall not in any case be deemed in any way material or relevant
to the construction of this Plan or any provisions thereof. The masculine
gender, where appearing in the Plan, includes the feminine gender, and the
singular may include the plural, unless the context clearly indicates to the
contrary.
Executed on this 10th day of December, 1997.
ROADWAY EXPRESS, INC.
By: /s/ John M. Glenn
-------------------------
11
<PAGE> 15
ROADWAY EXPRESS
DEFERRED COMPENSATION PLAN
Exhibit A
---------
Victory Financial Reserve Fund
Victory Financial Income Fund
American Balanced Fund
Fidelity Advisor Growth Opportunities Fund-Class T
Neuberger & Berman Genesis Assets
American EuroPacific Growth Fund
<PAGE> 1
- --------------------------------------------------------------------------------
TRUST AGREEMENT
Between
ROADWAY EXPRESS, INC.
and
KEY TRUST COMPANY OF OHIO, N.A.
-------------
June __, 1998
-------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
Page
----
<S> <C>
I. Trust Fund........................................................................................... 1
II. Payments to Trust Beneficiaries...................................................................... 4
III. The Trustee's Responsibility Regarding Payments to a Trust Beneficiary when the
Company is Insolvent................................................................................. 5
IV. Payments to the Company............................................................................... 6
V. Investment of the Trust Fund.......................................................................... 7
VI. Income of the Trust................................................................................... 7
VII. Accounting by Trustee................................................................................. 7
VIII. Responsibility and Indemnification of Trustee......................................................... 8
IX. Amendments, etc., to Plan and Exhibit................................................................ 10
X. Replacement of Trustee............................................................................... 11
XI. Amendment or Termination of Agreement................................................................ 11
XII. General Provisions................................................................................... 12
XIII. Notices.............................................................................................. 13
</TABLE>
<PAGE> 3
TRUST AGREEMENT
---------------
This Trust Agreement ("Agreement") made as of the ___ day of June, 1998
by and between Roadway Express, Inc., an Ohio corporation ("Company"), and Key
Trust Company of Ohio, N.A., a national banking association ("Trustee").
WITNESSETH:
----------
WHEREAS, certain benefits are or may become payable to designated
executives of the Company listed (from time to time as provided in Sections 1.6
and 9.2 hereof) on Exhibit A hereto ("Executives") under the provisions of the
Roadway Express Deferred Compensation Plan, effective January 1, 1998
("Effective Date") as the same have been or in the future may be amended or
restated, or any successor thereto ("Plan");
WHEREAS, the Plan provides for the payment of cash to Executives who
elect to defer their compensation on or after the Effective Date, and to their
beneficiaries, if applicable, as provided in the Plan, and the Company wishes to
assure the payment to the Executives and to their beneficiaries (the Executives
and their respective beneficiaries are collectively referred to as the "Trust
Beneficiaries") of amounts due under the Plan (the amounts so payable are
collectively referred to as the "Benefits");
WHEREAS, the Company wishes to establish a trust ("Trust") and to
transfer to the Trust assets which shall be held subject to the claims of the
creditors of the Company to the extent set forth in Article III until (i) paid
in full to all Trust Beneficiaries as Benefits in such manner and as specified
in this Agreement unless the Company is Insolvent (as that term is defined
below) at the time that such Benefits become payable or (ii) otherwise disposed
of pursuant to the terms of this Agreement; and
WHEREAS, the Company shall be considered "Insolvent" for purposes of
this Agreement at such time as the Company (i) is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code, as amended from
time to time, or (ii) is unable to pay its debts as they become due.
NOW, THEREFORE, the Company and the Trustee establish the Trust and
agree that the Trust shall be comprised, held and disposed of as follows:
I. TRUST FUND
----------
1.1 Subject to the claims of creditors to the extent set forth in
Article III, the Company shall deposit with the Trustee in trust cash or other
assets reasonably acceptable to the Trustee, which shall become the principal of
the Trust, to be held, administered and disposed of by the Trustee as provided
in this Agreement.
1.2 The Trust shall be irrevocable.
<PAGE> 4
1.3 In the event that a Change in Control has occurred, the Chief
Executive Officer of the Company ("CEO") or the Secretary of the Company shall
notify the Trustee promptly. The Trustee shall be entitled to rely upon such
notice as to whether and when a Change in Control has occurred and shall not be
required to make any independent verification of a Change in Control.
1.4 The principal of the Trust and any earnings shall be held in trust
separate and apart from other funds of the Company and shall be used exclusively
for the uses and purposes set forth in this Agreement. No Trust Beneficiary
shall have any preferred claim on, or any beneficial ownership interest in, any
assets of the Trust prior to the time that such assets are paid to a Trust
Beneficiary as Benefits. Any rights created under the Plan and this Agreement
shall be mere unsecured contractual rights of Trust Beneficiaries with respect
to the Company. The obligation of the Trustee to pay Benefits pursuant to this
Agreement constitutes merely an unfunded and unsecured promise to pay such
benefits.
1.5 (a) The Company may at any time or from time to time make
additional deposits of cash or other property as may be acceptable to the
Trustee in the Trust, or make provision for cash or other property as may be
acceptable to the Trustee to be transferred to the Trust, such as by means of a
letter of credit or otherwise, to augment the principal to be held, administered
and disposed of by the Trustee, but no payment of all or any portion of the
principal of the Trust or earnings shall be made to the Company or any other
person or entity on behalf of the Company except as expressly provided in this
Agreement.
(b) Within 10 days following the occurrence of a Potential Change
in Control (as that term is defined in this Section 1.5), the Company shall make
a contribution to the Trust that is sufficient, taking into account the assets
of the Trust prior to such contribution, to provide for the payment of all
Benefits and any other amounts payable or reimbursable pursuant to the terms of
this Agreement.
(c) Within 30 days after the end of any calendar year ending after
a Change in Control, the Company shall make a contribution to the Trust that
is sufficient, taking into account the assets of the Trust prior to such
contribution, to provide for the payment of all Benefits and any other amounts
payable or reimbursable pursuant to the terms of this Agreement.
(d) A "Potential Change in Control" means the occurrence of any
of the following events:
(i) The Company enters into a letter of intent,
agreement in principle or other agreement, the consummation of which would
constitute a Change in Control; or
(ii) any person (including the Company) makes a
public announcement (including, without limitation, an announcement made by
filing a Schedule 13D or Schedule 14D- 1 (or any successor schedule, form,
report or item), each as promulgated pursuant to the Securities Exchange Act of
1934 (the "Exchange Act")) stating a present intention to take actions that, if
consummated, would constitute a Change in Control.
2
<PAGE> 5
1.6 Not later than the date of any Change in Control, the Company shall
(a) provide any corresponding revisions to Exhibit A that may be required and
(b) provide the Trustee with copies of the Plan and any amendments thereto.
1.7 The Trust is intended to be a grantor trust, within the meaning of
section 671 of the Internal Revenue Code of 1986, as amended (the "Code"), or
any successor provision, and shall be construed accordingly. The purpose of the
Trust is to assure that the Company's obligations to the Trust Beneficiaries
pursuant to the Plan are fulfilled. The Trust is neither intended nor designed
to qualify under section 401(a) of the Code or to be subject to the provisions
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
1.8 As used in this Agreement, the term "Change in Control" shall mean
the occurrence of any of the following events:
(a) a filing pursuant to any federal or state law in
connection with any tender offer for shares of the Company (other than a tender
offer by the Company);
(b) the merger, consolidation or reorganization of the Company
into or with another corporation or other legal person, if as a result of such
merger, consolidation or reorganization less than 50% of the combined voting
power of the then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by the holders of
Voting Stock (as that term is hereafter defined) of the Company immediately
prior to such transaction by reason of their ownership of Voting Stock of the
Company;
(c) the sale or transfer by the Company of all or
substantially all of its assets to another company or other legal person, if as
a result of such sale or transfer less than 50% of the combined voting power of
the then-outstanding securities of such company immediately after such sale or
transfer is held in the aggregate by the holders of Voting Stock of the Company
immediately prior to such sale or transfer by reason of their ownership of
Voting Stock of the Company;
(d) the adoption of any resolution or reorganization or
dissolution of the Company by its shareholders;
(e) the filing of a report on Schedule 13D or Schedule 14D-1
(or any successor schedule, form or report), each as promulgated pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing
that any person (as the term "person" is used in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of securities representing 50% or
more of the combined voting power of the then-outstanding securities entitled to
vote generally in the election of directors of the Company ("Voting Stock");
3
<PAGE> 6
(f) the filing of a report or proxy statement by the Company
with the Securities and Exchange Commission pursuant to the Exchange Act
disclosing in response to Form 8-K or Schedule 14A (or any successor schedule,
form or report or item therein) that a change in control of the Company has
occurred or will occur in the future pursuant to any then-existing contract or
transaction;
(g) if during any period of two consecutive years, individuals
who at the beginning of such period constituted the directors of the Company
cease for any reason to constitute a majority thereof (unless the election, or
the nomination for election by the Company's shareholders, of each director of
the Company first elected during such period was approved by a vote of at least
two-thirds of the directors then still in office who were directors of the
Company at the beginning of any such period; or
(h) the occurrence of any other event or series of events, in
the opinion of the Board of Directors, will, or is likely to, if carried out,
result in a change in control of the Company;
provided, however, a "Change in Control" will not be deemed to have occurred,
either (i) solely because (A) the Company, (B) a subsidiary of the Company, or
(C) any Company-sponsored employee stock ownership plan or any other employee
benefit plan of the Company, either files or becomes obligated to file a report
or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form
8-K or Schedule 14A (or any successor schedule, form or report or item therein)
under the Exchange Act, disclosing beneficial ownership by it of shares of
Voting Stock, whether in excess of 50% or otherwise, or because the Company
reports that a change in control of the Company has or may have occurred or will
or may occur in the future by reason of such beneficial ownership, or (ii)
solely because of a change in control of any subsidiary by which a Participant
is employed. Notwithstanding the foregoing provisions of Subsections (a)-(e) of
this Section, if, prior to any event described in Subsections (a) - (e) of this
Section instituted by any person not an officer or director of the Company, or
prior to any disclosed proposal instituted by any person not an officer or
director of the Company which could lead to any such event, management proposes
any restructuring of the Company which ultimately leads to an event described in
Subsections (a) - (e) of this Section pursuant to such management proposal, then
a "Change in Control" will not be deemed to have occurred for purposes of the
Plan. If any "Change in Control" is abandoned, the Board, may, by notice to the
Participants, nullify the effect thereof.
II. PAYMENTS TO TRUST BENEFICIARIES
-------------------------------
2.1 The Company shall deliver to the Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Trust
Beneficiary and that provides a formula or other instructions acceptable to the
Trustee for determining the amounts so payable. Provided that the Company is not
Insolvent and commencing with the earlier to occur of (a) appropriate notice to
the Trustee by the Company, or (b) the date on which the Trustee has been
notified in accordance with Section 1.3 that a Change in Control has occurred,
the Trustee shall make payments of Benefits to each Trust Beneficiary from the
assets of the Trust in
4
<PAGE> 7
compliance and conformity with the Payment Schedule. The Trustee shall be
entitled to rely exclusively on the Payment Schedule so provided to it by the
Company with respect to the benefits payable as of the date of the Payment
Schedule.
2.2 The Trustee shall continue to pay Benefits to the Trust
Beneficiaries until the assets of the Trust are depleted, subject to Section
11.2. If any current payment by the Trustee under the terms of this Agreement
would deplete the assets of the Trust below the amount necessary to provide
adequately for Benefits known to the Trustee to be payable in the future, the
Trustee shall nevertheless make the current payment when due. If, after
application of the preceding sentence, amounts in the Trust are not sufficient
to provide for full payment of the Benefits to which any Trust Beneficiary is
entitled as provided in this Agreement, the Company shall make the balance of
each such payment directly to the Trust Beneficiary as it becomes due.
2.3 The Company may make payments of Benefits directly to each or any
Trust Beneficiary. The Company shall notify the Trustee of its decision to pay
Benefits directly at least three days prior to the time amounts are due to be
paid to a Trust Beneficiary.
2.4 Nothing in this Agreement shall in any way diminish any rights of
any Trust Beneficiary to pursue such Trust Beneficiary's rights as a general
creditor of the Company with respect to Benefits or otherwise, and the rights of
each Trust Beneficiary under the Plan shall in no way be affected or diminished
by any provision of this Agreement or action taken pursuant to this Agreement,
except that any payment actually received by any Trust Beneficiary shall reduce
dollar-per-dollar amounts otherwise due to such Trust Beneficiary pursuant to
the Plan.
2.5 The Company agrees that it will accept appointment as the Trustee's
agent for purposes of computing amounts to be withheld in satisfaction of any
tax withholding obligations and for remitting any taxes withheld to the
appropriate taxing authority. The Trustee, on the instruction of the Company,
shall withhold appropriate amounts for payments made pursuant to this Article
II, and pay to the Company the amounts so withheld for remittance to the
appropriate taxing authorities. To the extent the Company fails to direct the
Trustee as to the proper amount and character of taxes to be withheld from any
distribution made pursuant to this provision, the Trustee may withhold from any
distribution so made an amount equal to the combined maximum federal, state and
local tax rates (as may be applicable) and remit such amount to the Company for
deposit with the appropriate taxing authority. The Company agrees to execute any
additional documents necessary to accept appointment as Trustee's agent pursuant
to this Section and to indemnify the Trustee for any loss suffered as a result
of the Company's failure to properly remit taxes withheld on payments to any
Trust Beneficiary.
III. THE TRUSTEE'S RESPONSIBILITY REGARDING PAYMENTS
-----------------------------------------------
TO A TRUST BENEFICIARY WHEN THE COMPANY IS INSOLVENT
----------------------------------------------------
3.1 At all times during the continuance of the Trust, the principal and
income of the Trust shall be subject to claims of creditors of the Company as
set forth in this Section 3.1. The Board of Directors of the Company ("Board")
and the CEO shall have the duty to inform the Trustee in writing if either the
Board or the CEO believes that the Company is Insolvent. If the
5
<PAGE> 8
Trustee receives a notice in writing from the Board or the CEO stating that the
Company is Insolvent or if a person claiming to be a creditor of the Company
alleges in writing to the Trustee that the Company has become Insolvent, the
Trustee shall independently determine within 30 days after receipt of such
notice whether the Company is Insolvent. In making this determination, the
Trustee may engage the outside accountants of the Company to render an opinion
as to the solvency of the Company and shall be fully protected under Section 8.7
in relying upon the advice of such accountants. In addition, the Company shall
provide the Trustee or its agents, including the outside accountants of the
Company, with any information reasonably requested, and otherwise cooperate with
the Trustee or its agents in making the determination. Pending such
determination, or if the Trustee has actual knowledge or has determined that the
Company is Insolvent, the Trustee shall discontinue or refrain from making
payments to any Trust Beneficiary and hold the Trust assets for the benefit of
the general creditors of the Company. The Trustee shall pay any undistributed
principal and income in the Trust to the extent necessary to satisfy the claims
of the creditors of the Company as a court of competent jurisdiction may direct.
If the Trustee has discontinued or refrained from making payments to any Trust
Beneficiary pursuant to this Section 3.1, the Trustee shall pay or resume
payments to such Trust Beneficiary in accordance with this Agreement if the
Trustee has determined that the Company is not Insolvent, or is no longer
Insolvent (if the Trustee initially determined the Company to be Insolvent), or
pursuant to the order of a court of competent jurisdiction. Unless the Trustee
has actual knowledge of Insolvency, or has received notice from the Board, the
CEO or a person claiming to be a creditor of the Company alleging that the
Company is Insolvent, the Trustee shall have no duty to inquire as to whether
the Company is Insolvent and may rely on information concerning the Insolvency
of the Company that has been furnished to the Trustee by any creditor of the
Company or by any person (other than an employee or Executive of the Company)
acting with apparent or actual authority with respect to the Company.
3.2. If the Trustee is precluded from paying Benefits from the Trust
assets pursuant to Section 3.1 and such prohibition is subsequently removed, the
Trustee shall pay the aggregate amount of all Benefits that would have been paid
to the Trust Beneficiaries in accordance with this Agreement during the period
of such prohibition, less the aggregate amount of Benefits otherwise paid to any
Trust Beneficiary by the Company during any such period, together with interest
on the delayed amount determined at a rate equal to the rate actually earned
(including, without limitation, market appreciation or depreciation, plus
receipt of interest and dividends) during such period with respect to the assets
of the Trust corresponding to such net amount delayed.
IV. PAYMENTS TO THE COMPANY
-----------------------
4.1 Except to the extent expressly contemplated by this Article IV, the
Company shall have no right or power to direct the Trustee to return any of the
Trust assets to the Company before all payments of Benefits have been made to
all Trust Beneficiaries as provided in this Agreement.
6
<PAGE> 9
V. INVESTMENT OF TRUST FUND
------------------------
5.1 Prior to a Change in Control, the Trustee shall invest and reinvest
the assets of the Trust as the Company shall prescribe in writing from time to
time.
5.2 On or after the date of a Change in Control, or in the absence of
the instructions from the Company specified in Section 5.1, the provisions of
this Section 5.2 shall apply to the investment of the Trust assets. The
investment objective of the Trustee shall be to preserve the principal of the
Trust while obtaining a reasonable total rate of return, measurement of which
shall include, without limitation, market appreciation or depreciation plus
receipt of interest and dividends. The Trustee shall be mindful, in the course
of its management of the Trust, of the liquidity demands on the Trust. The
Trustee may, but is not required to consider the Company's or any Trust
Beneficiary's investment preferences when investing the Trust assets.
5.3 The Trustee shall have the sole power to invest the assets of the
Trust, in accordance with the provisions of Sections 5.1 and 5.2. The Trustee
shall not be liable for any failure to maximize income on such portion of the
Trust assets as may be from time to time invested or reinvested as set forth
above, nor for any loss of principal or income due to the liquidation of any
investment that the Trustee, in its sole discretion, believes necessary to make
payments or to reimburse expenses under the terms of this Agreement. The Trustee
shall have the right to invest assets of the Trust for short-term investment
periods, pending distribution, or long-term investment of such assets, as the
Trustee may deem proper in the circumstances.
VI. INCOME OF THE TRUST
-------------------
6.1 During the continuance of the Trust, all net income of the Trust
shall be retained in the Trust.
VII. ACCOUNTING BY TRUSTEE
---------------------
7.1 The Trustee shall maintain such books, records and accounts as may
be necessary for the proper administration of the Trust assets, including such
specific records as shall be agreed upon in writing by the Company and the
Trustee. Within 60 days following the close of each calendar year that includes
or commences after the date of the Trust until the termination of the Trust or
the removal or resignation of the Trustee (and within 60 days after the date of
such termination, removal or resignation), the Trustee shall render to the
Company an accounting with respect to the Trust assets as of the end of the then
most recent calendar year (and as of the date of such termination, removal or
resignation, as the case may be). The Trustee shall furnish to the Company on a
quarterly basis (or as the Company shall direct from time to time) and in a
timely manner such information regarding the Trust as the Company shall require
for purposes of preparing its statements of financial condition. The Trustee
shall at all times maintain separate bookkeeping accounts for each Executive as
prescribed in Section 7.2 hereof, and, upon the written request of an Executive,
shall provide to the Executive an annual statement of the Executive's account.
Upon the written request of the Company or, on or after the date of a Change in
Control, an Executive, the Trustee shall deliver to the Company or the
Executive, as
7
<PAGE> 10
the case may be, a written report setting forth the amount held in the Trust and
a record of the deposits made to the Trust by the Company.
Unless the Company or any Executive shall have filed with the
Trustee written exception or objection to any such statement and account within
90 days after receipt thereof, the Company and the Executives shall be deemed to
have approved such statement and account, and in such case, the Trustee shall be
forever released and discharged with respect to all matters and things reported
in such statement and account as though it had been settled by a decree of a
court of competent jurisdiction in an action or proceeding to which the Company
and the Executives were parties.
7.2 The Trustee shall maintain a separate account for each Executive.
The Trustee shall credit or debit each Executive's account as appropriate to
reflect such Executive's allocable portion of the Trust assets, as such Trust
assets may be adjusted from time to time pursuant to the terms of this
Agreement. Except as provided in this Section 7.2, all allocations shall be made
in proportion to the balances of the separate accounts of the Executives. Prior
to the date of a Change in Control, all deposits of principal pursuant to
Section 1.1 and 1.5 hereof shall be allocated as directed by the Company. On or
after such date, deposits of principal once allocated may not be reallocated.
Income, expense, gain or loss on assets allocated to the separate accounts of
the Executives shall be allocated separately to such accounts by the Trustee in
proportion to the balances of the separate accounts of the Executives.
7.3 Nothing in this Article VII shall preclude the commingling of Trust
assets for investment.
VIII. RESPONSIBILITY AND INDEMNIFICATION OF THE TRUSTEE
-------------------------------------------------
8.1 The duties and responsibilities of the Trustee shall be limited to
those expressly set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Trustee.
8.2 In addition to and without limiting any other provision of this
Agreement, on or after the date of a Change in Control, the Trustee shall, in
its sole discretion, based upon the information furnished to it by the Company
and/or the Executives and any additional information that it may reasonably
request, (a) make all decisions regarding whether a Trust Beneficiary is
eligible for the payment of Benefits, the nature, amount and timing of such
benefits, and any other decisions pertinent to the exercise of the Trustee's
duties and responsibilities under this Agreement, and (b) exercise any power or
discretion granted pursuant to the Plan to the Board, any committee of the
Board, or to any other committee, entity or person. On or before the date of a
Change in Control, the Company shall furnish the Trustee with calculations and
supporting schedules showing in detail the payments required under the Agreement
in the event of the termination of each of the Executive's service with the
Company immediately following the Change in Control. The Trustee shall determine
amounts due under this Agreement in a manner consistent with these calculations
and supporting schedules. In connection with the exercise of the duties,
responsibilities, power and discretion of the Trustee under this Agreement, the
Trustee
8
<PAGE> 11
may employ legal counsel to aid its determinations and shall be fully protected
under Section 8.7 in relying upon the advice of counsel in making such
determinations.
8.3 If all or any part of the Trust assets are at any time attached,
garnished, or levied upon by any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in case any order, judgment or decree
shall be made or entered by a court affecting such property or any part of such
property, then and in any of such events the Trustee shall be authorized, in its
sole discretion, to rely upon and comply with any such order, judgment or
decree, and it shall not be liable to the Company or any Trust Beneficiary by
reason of such compliance even though such order, judgment or decree
subsequently may be reversed, modified, annulled, set aside or vacated.
8.4 The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; provided, however, that the
Trustee shall incur no liability to anyone for any action taken pursuant to a
direction, request, or approval given by the Company or any Executive or other
Trust Beneficiary contemplated by and complying with the terms of this
Agreement. The Trustee shall discharge its responsibility for the investment,
management and control of the Trust assets solely in the interest of the Trust
Beneficiaries and for the exclusive purpose of assuring that, to the extent of
available Trust assets, and in accordance with the terms of this Agreement, all
payments of Benefits are made when due to the Trust Beneficiaries.
8.5 The Trustee may consult with legal counsel (who shall not be
counsel for the Company) to be selected by it.
8.6 The Trustee shall be reimbursed by the Company for its reasonable
expenses incurred in connection with the performance of its duties (including,
but not limited to, the fees and expenses of counsel, accountants and others
incurred pursuant to Section 8.5 or 8.11) and shall be paid reasonable fees for
the performance of such duties in the manner provided by Section 8.7.
8.7 The Company agrees to indemnify and hold harmless the Trustee from
and against any and all damages, losses, claims or expenses as incurred
(including expenses of investigation and fees and disbursements of counsel to
the Trustee and any taxes imposed on the Trust assets or income of the Trust)
arising out of or in connection with the performance by the Trustee of its
duties, other than such damages, losses, claims or expenses arising out of the
Trustee's gross negligence or willful misconduct. The Trustee shall not be
required to undertake or to defend any litigation arising in connection with
this Agreement unless it be first indemnified by the Company against its
prospective costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses), and the Company agrees to indemnify the Trustee
and be primarily liable for such costs, expenses, and liabilities. Any amount
payable to the Trustee under Section 8.6 or this Section 8.7 shall be paid by
the Company promptly upon demand by the Trustee or, in the event that the
Company fails to make such payment within 30 days of such demand, from the Trust
assets. In the event that payment is made to the Trustee from the Trust assets,
the Trustee shall
9
<PAGE> 12
promptly notify the Company in writing of the amount of such payment. The
Company agrees that, upon receipt of such notice, it will deliver to the Trustee
to be held in the Trust an amount in cash equal to any payments made from the
Trust assets to the Trustee pursuant to Section 8.6 or this Section 8.7. The
failure of the Company to transfer any such amount shall not in any way impair
the Trustee's right to indemnification, reimbursement and payment pursuant to
Section 8.6 or this Section 8.7.
8.8 The Trustee may vote any stock or other securities and exercise any
right appurtenant to any such stock, other securities or other property it
holds, either in person or by general or limited proxy, power of attorney or
other instrument.
8.9 The Trustee may hold securities in bearer form and may register
securities and other property held in the Trust fund in its own name or in the
name of a nominee, combine certificates representing securities with
certificates of the same issue held by the Trustee in other fiduciary
capacities, and deposit, or arrange for deposit of, property with any
depository; provided that the books and records of the Trustee shall at all
times show that all such securities are part of the assets of the Trust.
8.10 The Trustee may exercise all rights appurtenant to any letter of
credit made payable to the Trustee of the Trust for the benefit of the Trust in
accordance with the terms of such letter of credit.
8.11 The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals, who may be agents,
accountants, actuaries, investment advisors, financial consultants, or otherwise
act in a professional capacity, as the case may be, for the Company or with
respect to the Plan, to assist the Trustee in performing any of its duties.
8.12 The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law unless expressly provided otherwise in this
Agreement.
8.13 Notwithstanding any other provision of this Agreement, in the
event of the termination of the Trust, or the resignation or discharge of the
Trustee, the Trustee shall have the right to a settlement of its accounts in
accordance with the procedures set forth in Section 7.1, which may be made, at
the option of the Trustee, either (a) by a judicial settlement in a court of
competent jurisdiction, or (b) by agreement of settlement, release and indemnity
from the Company to the Trustee.
IX. AMENDMENTS, ETC., TO PLAN AND EXHIBIT
-------------------------------------
9.1 On or after the date of a Change in Control, the Company shall, and
any Trust Beneficiary may, promptly furnish the Trustee true and correct copies
of any amendment, restatement or successor to the Plan. Upon written
notification to the Trustee by the Company or any Executive of the failure of
the Company and such Executive to agree on the amount of Benefits to be paid
such Executive, the Trustee shall, to the extent necessary in the sole judgment
of the Trustee, (a) compute the amount of Benefits payable to any Trust
Beneficiary, and
10
<PAGE> 13
(b) notify the Company and the Executive in writing of its computations. In
making these determinations, the Trustee may employ legal counsel and shall be
fully protected under Section 8.7 in relying upon the advice of counsel in
relying on such determinations. Thereafter, this Agreement and Exhibit A shall
be amended to the extent of such Trustee determinations without further action;
provided, however, that the failure of the Company to furnish any such
amendment, restatement, successor or compensation information shall in no way
diminish the rights of any Trust Beneficiary.
9.2 Amendments to Exhibit A that modify one or more lists of Executives
shall be made only in accordance with Section 1.6. No amendment to Exhibit A
that would delete an Executive may be made on or after the date on which a
Change in Control occurs, except in accordance with Article XI.
X. REPLACEMENT OF TRUSTEE
----------------------
10.1 The Trustee may resign and be discharged from its duties after
providing not less than 90 days' notice in writing to the Company. On or after
the date of a Change in Control, the Trustee shall also provide notice of its
resignation to all of the Executives. Prior to the date of a Change in Control,
the Trustee may be removed at any time upon notice in writing by the Company. On
or after such date, removal shall also require the agreement of a majority of
the Executives. Prior to the date of a Change in Control, a replacement or
successor trustee shall be appointed by the Company. On or after such date,
appointment shall also require the agreement of a majority of the Executives. No
such removal or resignation shall become effective until the effectiveness of
the acceptance of the Trust by a successor trustee designated in accordance with
this Article X. If, after making reasonable efforts to appoint a successor
trustee, the Company has been unable to do so, the Trustee shall petition a
court of competent jurisdiction to appoint a successor trustee. Upon the
acceptance of the Trust by a successor trustee, the Trustee shall release all of
the moneys and other property in the Trust to its successor, who after such time
shall for all purposes of this Agreement be considered to be the "Trustee." In
the event of its removal or resignation, the Trustee shall duly file with the
Company and, after a Change in Control, all of the Executives, a written
statement or statements of accounts and proceedings as provided in Section 7.1
for the period since the last previous accounting of the Trust.
10.2 For purposes of Section 10.1 and Section 11.2, an Executive shall
not participate if all Benefits then currently due or payable in the future have
been made to such Executive.
XI. AMENDMENT OR TERMINATION OF AGREEMENT
-------------------------------------
11.1 This Agreement may be amended at any time and to any extent by a
written instrument executed by the Trustee and the Company; provided, however,
that no amendment shall have the effect of altering Section 11.2.
11
<PAGE> 14
11.2 The Trust shall terminate on or after a Change in Control upon the
earliest to occur of (a) a joint determination by the Trustee and a majority of
the Executives made on or after the fifth anniversary of the date of a Change in
Control that no Trust Beneficiary is or will be entitled to any further payment
of Benefits or (b) such time as the Trustee shall have received consents from a
majority of the Executives to the termination of this Agreement. Notwithstanding
the previous sentence, if payments under the Plan with respect to any Trust
Beneficiary are the subject of litigation or arbitration, the Trust shall not
terminate and the funds held in the Trust with respect to such Trust Beneficiary
shall continue to be held by the Trustee until the final resolution of such
litigation or arbitration. The Trustee may assume that the Plan is not the
subject of such litigation or arbitration unless the Trustee receives written
notice from a Trust Beneficiary or the Company with respect to such litigation
or arbitration. The Trustee may rely upon written notice from a Trust
Beneficiary as to the final resolution of such litigation or arbitration.
11.3 Upon a termination of the Trust as provided in Section 11.2, any
assets remaining in the Trust, less all payments, expenses, taxes and other
charges under this Agreement as of such date of termination, shall be returned
to the Company.
XII. GENERAL PROVISIONS
------------------
12.1 The Company shall, at any time and from time to time, upon the
reasonable request of the Trustee, provide information, execute and deliver such
further instruments and do such further acts as may be necessary or proper to
effectuate the purposes of the Trust.
12.2 Exhibit A shall become a part of this Agreement and is expressly
incorporated by reference.
12.3 This Agreement sets forth the entire understanding of the parties
with respect to its subject matter and supersedes any and all prior agreements,
arrangements and understandings. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and legal
representatives.
12.4 This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
12.5 In the event that any provision of this Agreement or the
application of any provision to any person or circumstances shall be determined
by a court of competent jurisdiction to be invalid or unenforceable to any
extent, the remainder of this Agreement, or the application of such provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected, and each provision of this Agreement shall
be valid and enforced to the maximum extent permitted by law.
12.6 (a) The preamble to this Agreement shall be considered a part of
the agreement of the parties as if set forth in a section of this Agreement.
12
<PAGE> 15
(b) The headings and table of contents contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
12.7 The right of any Trust Beneficiary to any benefit or to any payment
may not be anticipated, assigned (either at law or in equity), alienated or
subject to attachment, garnishment, levy, execution or other legal or equitable
process except as required by law. Any attempt by any Trust Beneficiary to
anticipate, alienate, assign, sell, transfer, pledge, encumber or charge the
same shall be void. The Trust assets shall not in any manner be subject to the
debts, contracts, liabilities, engagements or torts of any Trust Beneficiary.
12.8 Any dispute between the Executives and the Company or the Trustee
as to the interpretation or application of the provisions of this Agreement and
amounts payable may, at the election of any party to such dispute (or, if more
than one Executive is such a party, at the election of two-thirds of such
Executives), be determined by binding arbitration in accordance with the rules
of the American Arbitration Association then in effect. Judgment may be entered
on the arbitrator's award in any court of competent jurisdiction. All fees and
expenses of such arbitration shall be paid by the Trustee and considered an
expense of the Trust under Section 8.7.
12.9 Each Executive is an intended beneficiary under the Trust, and as
an intended beneficiary shall be entitled to enforce all terms and provisions
with the same force and effect as if such person had been a party to the
Agreement.
12.10 The Trustee shall be permitted to withhold from any payment due to
an Executive the amount required by law to be so withheld under federal, state
and local withholding requirements or otherwise, and shall pay over to the
appropriate government authority the amounts so withheld. The Trustee may rely
on reasonable instructions from the Company as to any required withholding and
shall be fully protected under Section 8.7 in relying on such instructions.
12.11 Notwithstanding any other provision, the parties' respective
rights and obligations under Section 12.9 shall survive any termination or
expiration of this Agreement.
XIII. NOTICES
-------
13.1 For all purposes of this Agreement, any communication, including
without limitation, any notice, consent, report, demand or waiver required or
permitted to be given shall be in writing and, unless otherwise provided in this
Agreement, shall be deemed to have been duly given when hand delivered or
dispatched by telegram or electronic facsimile transfer (confirmed in writing by
mail simultaneously dispatched), or two business days after having been mailed
by United States registered or certified mail, return receipt requested, postage
prepaid, or one business day after having been dispatched by a nationally
recognized overnight courier service to the appropriate party at the address
specified below:
13
<PAGE> 16
<TABLE>
<S> <C>
IF TO THE COMPANY, TO: Roadway Express, Inc.
1077 Gorge Boulevard
Akron, Ohio 44309
Attention: Secretary
IF TO THE TRUSTEE, TO: Key Trust Company of Ohio, N.A.
127 Public Square
Cleveland, Ohio 44114-1306
Attention: Roadway Express, Inc. Client Manager
IF TO A EXECUTIVE, TO: the address of such Executive as listed next to such
Executive's name on Exhibit A;
</TABLE>
provided, however, that if any party or such party's successors shall have
designated a different address by notice to the other parties, then to the last
address so designated.
IN WITNESS WHEREOF, the Company and the Trustee caused this Agreement
to be executed on its behalf as of the date first above written.
Attest: ROADWAY EXPRESS, INC.
By: By:
----------------------------- -----------------------------
Its: Its:
------------------------- ------------------------
Attest: KEY TRUST COMPANY of OHIO, N.A.
By: By:
----------------------------- -----------------------------
Its: Its:
------------------------- ------------------------
And:
-----------------------------
Its:
-----------------------------
14
<PAGE> 1
Exhibit 5
June 24, 1998
Roadway Express, Inc.
P.O. Box 471
1077 Gorge Boulevard
Akron, Ohio 44309-0471
Re: Registration Statement on Form S-8 for Roadway Express, Inc.
Relating to its Deferred Compensation Plan
-----------------------------------------------------------
Ladies and Gentlemen:
I am counsel to Roadway Express, Inc., a Delaware corporation (the
"Company"), in connection with the registration of the deferred compensation
payment obligations ("Plan Interests") arising under the Roadway Express
Deferred Compensation Plan (the "Plan").
I have examined such documents, records, and matters of law as I have
deemed necessary for purposes of this opinion. Based on such examination and on
the assumptions, qualifications and limitations set forth below, I am of the
opinion that:
1. The Plan Interests, when issued in accordance with the provisions of
the Plan, will be valid and binding obligations of the Company, except as
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and subject to general equity principles.
2. The provisions of the written Plan documents comply with the
applicable provisions of the Employee Retirement Income Security Act of 1974,
as amended "ERISA").
My opinion expressed in paragraph 2 applies only as to the form of the
written Plan documents. Accordingly, but without limitation of the preceding
sentence, I express no opinion as to whether the employees eligible to
participate in the Plan constitute a select group of management or highly
compensated employees or whether the Plan will be considered "funded" for
purposes of ERISA, which are factual issues depending upon the facts and
circumstances in existence from time to time.
<PAGE> 2
Roadway Express, Inc.
June 24 1998
Page Two
- ---------------------
In rendering the foregoing opinion, I have relied as to certain factual
matters upon information provided by officers of the Company, and have not
independently checked or verified the accuracy of such information. In
addition, my examination of matters of law has been limited to the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America, in each case as in effect on the date thereof.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Company's registration Statement on Form S-8 with respect to the Plan
Interests.
Very truly yours,
/s/ John M. Glenn
John M. Glenn
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333- 00000) pertaining to the Roadway Express Deferred Compensation Plan
of our report dated January 21, 1998, with respect to the consolidated financial
statements and schedule of Roadway Express, Inc. included in its Annual Report
(Form 10-K) for the year ended December 31, 1997, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Akron, Ohio
June 30, 1998
<PAGE> 1
Exhibit 24
DIRECTORS AND OFFICERS OF
ROADWAY EXPRESS, INC.
DEFERRED COMPENSATION PLAN
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of Roadway Express, Inc., a Delaware corporation (the "Company"),
hereby constitutes and appoints John M. Glenn and J. Dawson Cunningham, and each
of them, his or her true and lawful attorney or attorneys-in-fact, with full
power of substitution and resubstitution, for him or her and in his or her name,
place, and stead, to sign on his or her behalf in any and all capacities,
pursuant to the Securities Act of 1933, one or more Registration Statements on
Form S-8 with respect to the Company's Deferred Compensation 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, granting unto said attorney or attorneys-in-fact, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as they might or could do in person, hereby ratifying
and confirming all that said attorney or attorneys-in-fact or any of them or
their substitutes may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the 16th day of June, 1998.
<TABLE>
<S> <C>
/s/ Michael W. Wickham /s/ Sarah Roush Werner
- ------------------------------- -----------------------------------
Michael W. Wickham Sarah Roush Werner
/s/ Robert E. Mercer
- ------------------------------- -----------------------------------
Robert E. Mercer Dale F. Frey
/s/ Frank P. Doyle
- ------------------------------- -----------------------------------
Frank P. Doyle Carl W. Schafer
/s/ Phillip J. Meek
- -------------------------------
Phillip J. Meek
</TABLE>
