As filed with the Securities and Exchange Commission on June 8, 1998
Registration No. 33-______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------------------
TREADCO, INC.
(Exact name of registrant as specified in its charter)
Delaware 71-0706271
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1101 South 21st Street
Fort Smith, Arkansas 72901
(Address of principal executive offices) (Zip Code)
---------------------------------------
TREADCO, INC. EMPLOYEES'
INVESTMENT PLAN
(Full title of the plan)
----------------------------------------
Richard F. Cooper Copy to:
Secretary Riva Johnson, Esq.
Treadco, Inc. Jenkens & Gilchrist,
1101 South 21st Street A Professional Corporation
Fort Smith Arkansas 72901 1445 Ross Avenue, Suite 3200
(501) 785-6000 Dallas, Texas 75202
(Name, address and telephone number
including area code of agent for service)
----------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
- -------------------
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with Rule
428 of the Securities Act of 1933, as amended, and the Note to Part I of Form S-
8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant and the Plan hereby incorporate by reference in this
registration statement the following documents previously filed by the
registrant with the Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended December 31, 1997;
(2) the registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997, filed with the Commission;
(3) the registrant's Registration Statement under the Securities
Act of 1933 Form S-8 (No. 33- 43393), dated December 27, 1997.
(4) the description of the Common Stock, par value $0.01 per
share, of the registrant (the "Common Stock") set forth in the
Registration Statement on Form S-1 (No. 33-41605), dated July 3, 1991,
including any amendment or report filed for the purpose of updating
such description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this registration
statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Item 8. Exhibits.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
------- ----------------------
4.1 Treadco, Inc. Employees' Investment Plan (previously filed as
Exhibit 4.1 to the Company's Form S-8 Registration Statement
under the Securities Act of 1933, as amended (the "Act") dated
December 29, 1997, Commission File No. 33-43393,) and
incorporated herein by reference.
<PAGE>
4.2 Amendment No. One to the Treadco, Inc. Employees' Investment
Plan (previously filed as Exhibit 4.2 to the Company's Form
S-8 Registration Statement under the Act dated December 29,
1997, Commission File No. 33-43393,) and incorporated herein
by reference.
4.3 Amendment No. Two to the Treadco, Inc. Employees' Investment
Plan (previously filed as Exhibit 4.3 to the Company's Form
S-8 Registration Statement under the Act dated December 29,
1997, Commission File No. 33-43393,) and incorporated herein
by reference.
4.4 Amendment No. Four to the Treadco, Inc. Employees' Investment
Plan (previously filed as Exhibit 4.4 to the Company's Form
S-8 Registration Statement under the Act dated December 29,
1997, Commission File No. 33-43393,) and incorporated herein
by reference.
4.5* Amendment No. Three to the Treadco, Inc. Employees' Investment
Plan.
4.6* Restated Amendment No. Four to the Treadco, Inc. Employee's
Investment Plan.
4.7 Certificate of Incorporation of the Company (previously filed
as Exhibit 3.1 to the Company's Form S-1 Registration
Statement under the Act of 1933 dated July 3, 1991, Commission
File No. 33-41605,) and incorporated herein by reference.
4.8 Bylaws of the Company (previously filed as Exhibit 3.2 to the
Company's Form S-1 Registration Statement under the Act dated
July 3, 1991, Commission File No. 33-41605), and incorporated
herein by reference.
5.1** Opinion of Jenkens & Gilchrist, a Professional Corporation.
23.1*** Consent of Jenkens & Gilchrist, a Professional Corporation.
23.2* Consent of Ernst & Young LLP, independent auditors
24.1* Power of Attorney (on signature page).
- --------------------
* Filed herewith.
** No opinion is being furnished herewith pursuant to instruction (a) to
Item 8 of Form S-8 as the Shares registered herein are not original
issuance securities.
*** No consent is being filed herewith pursuant to instruction (a) to Item
Form S-8, as the Shares being registered are not original issuance
securities.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard F. Cooper, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement, and to file the same with all exhibits, thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, 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 he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Smith, State of Arkansas, on May 29, 1998:
TREADCO, INC.
By: /s/ Richard F. Cooper
------------------------
Name: Richard F. Cooper
Title: Secretary
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Robert A. Young Chairman of the Board, Director May 29, 1998
- ---------------------------------
Robert A. Young, III
/s/ John R. Meyers President and Chief Executive Officer May 29, 1998
- --------------------------------- (Principal Executive Officer, Director)
John R. Meyers
/s/ David E. Loeffler Vice President-Chief Financial Officer and May 29, 1998
- --------------------------------- Treasurer (Principal Financial and Accounting
David E. Loeffler Officer)
/s/ Nicolas M. Georgitsis Director May 29, 1998
- ---------------------------------
Nicolas M. Georgitsis
/s/ Robert B. Gilbert Director May 29, 1998
- ---------------------------------
Robert B. Gilbert
/s/ William A. Marquard Director May 29, 1998
- ----------------------------
William A. Marquard
/s/ John H. Morris Director May 29, 1998
- ---------------------------------
John H. Morris
</TABLE>
<PAGE>
The Plan.
--------
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following members of the Administrative
Committee of the Treadco, Inc.'s Employees' Investment Plan, in the City of Fort
Smith, State of Arkansas, on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Donald L. Neal Chairman May 29, 1998
- ---------------------------------------
Donald L. Neal
/s/ Richard F. Cooper Member May 29, 1998
- ---------------------------------------
Richard F. Cooper
/s/ John R. Meyers Member May 29, 1998
- ---------------------------------------
John R. Meyers
/s/ Randall M. Loyd Member May 29, 1998
- ---------------------------------------
Randall M. Loyd
/s/ Jay Davidson Member May 29, 1998
- ---------------------------------------
Jay Davidson
/s/ David E. Leoffler Member May 29, 1998
- ---------------------------------------
David E. Loeffler
/s/ J. Lavon Morton Member May 29, 1998
- ---------------------------------------
J. Lavon Morton
</TABLE>
Exhibit 4.5
AMENDMENT NO. THREE
TO THE
TREADCO, INC. EMPLOYEES' INVESTMENT PLAN
Amendment made this1st day of April, 1998, by Treadco, Inc., (the
"Sponsoring Company"):
WHEREAS, the Sponsoring Company adopted the Treadco, Inc. Employees'
Investment Plan (the "Plan") effective November 1, 1991; and
WHEREAS, the Plan was amended and restated as of January 1, 1994; and
WHEREAS, the Plan has been amended since its restatement; and
WHEREAS, the Sponsoring Company, acting pursuant to Section 21 of the Plan,
has the sole and exclusive power to amend the Plan; and
WHEREAS, the Sponsoring Company acquired the assets of Five Bros.,
Incorporated ("Five Bros.") on July 12, 1996 and, on July 15, 1996, certain
former employees of Five Bros. became employees of the Sponsoring Company;
WHEREAS, the Sponsoring Company amended the Plan by executing Amendment No.
Two to the Treadco, Inc. Employees' Investment Plan ("Amendment Two") to extend
participation in the Plan to all former employees of Five Bros. effective August
15, 1996, who became employees of the Sponsoring Company as of July 15, 1996:
WHEREAS, the Amendment Two contained an ambiguity which the Sponsoring
Company desires to correct; and
WHEREAS, the Sponsoring Company wishes to execute an Amendment No. Three to
the Treadco, Inc. Employees' Investment Plan:
NOW, THEREFORE, the Plan is amended, effective as of August 15, 1996, as
provided below:
1. The last sentence of existing Section 3.1 of the Plan is deleted in its
entirety and is not replaced.
2. Section 3.2 of the Plan is amended to add a new Subsection 3.2(3) to the
end of Subsection 3.2(2) of the Plan, as follows:
"3.2(3) Notwithstanding any provision in the Plan to the contrary, all
individuals formerly employed by Five Bros., Incorporated on or before July
12, 1996, and who became employees of the Sponsoring Company on July 15,
1996, shall become eligible to participate in the Plan on August 15, 1996."
IN WITNESS WHEREOF, this Amendment has been executed the day and year first
above written.
TREADCO, INC.
By: /s/ R.F. Cooper
-----------------------------
Its: Secretary
------------------------
Exhibit 4.6
RESTATED AMENDMENT NO. FOUR TO
TREADCO, INC. EMPLOYEES' INVESTMENT PLAN
As Amended and Restated Effective January 1, 1994
-- ------- --- -------- --------- ------- -- ----
WHEREAS, effective as of September 1, 1991, Treadco, Inc. (the "Company")
adopted the Treadco, Inc. Employees' Investment Plan (the "Plan") for the
benefit of its employees, and effective as of January 1, 1994, the Plan was
amended and restated in its entirety; and
WHEREAS, the Company subsequently adopted Amendment One, effective as of
January 1, 1996 and Amendment No. Two and Amendment No. Three, effective August
15, 1996; and
WHEREAS, pursuant to Section Twenty-One of the Plan, the Company has the
authority to amend the Plan as provided herein; and
WHEREAS, the Company desires to amend the Plan, effective November 1, 1997,
to effect a merger of the Treadco Employee Stock Ownership Plan into the Plan;
and
WHEREAS, the Company wants to amend the Plan, effective as of January 1,
1998, except as otherwise provided, to: (i) change the name of the Plan; (ii)
revise the definition of "Eligible Employee" in the Plan to clarify that casual
employees are required to complete one thousand (1,000) hours within an
"Eligibility Year of Service," as defined in the Plan, in order to become
eligible to participate in the Plan; (iii) clarify the definition of Employee;
(iv) correct certain scrivener's errors; (v) change to daily Entry Dates; (vi)
increase the amount a Participant may defer as Before-Tax Deposits; (vii)) allow
in-kind distributions of Company stock from all Plan accounts; and (viii) amend
the Plan in accordance with the Taxpayer Relief Act of 1997 to allow for the
involuntary cash-out of the vested accounts of terminated participants that do
not exceed $5,000; and
WHEREAS, the Company adopted Amendment No. Four to Treadco, Inc. Employees'
Investment Plan ("Amendment Four") to accomplish the desired changes set forth
above; and
WHEREAS, the Company desires to adopt a Restated Amendment Four to correct
some clerical omissions in the original Amendment Four.
NOW, THEREFORE, pursuant to its authority under Section Twenty-One of the
Plan, the Company amends the Plan effective as provided below:
1 Effective January 1, 1998, the first full paragraph of existing Section 1.1
of the Plan is deleted in its entirety, and the following is substituted in
its place:
"1.1 Restatement of the Plan. Subject to the terms and conditions
hereinafter set forth, Treadco, Inc. (the "Sponsoring Company") hereby
amends and restates, effective as of January 1, 1994 (except as otherwise
provided herein), the Treadco, Inc. Employees' Investment Plan, a Code
Section 401(k) plan for the exclusive benefit of its Employees and their
Beneficiaries, which was originally established effective as of September
1, 1991, and was thereafter amended from time to time. Effective on January
1, 1998, the Treadco, Inc. Employees' Investment Plan is renamed the
Treadco, Inc. 401(k) Savings Plan."
1
<PAGE>
Exhibit 4.6
2 Effective November 1, 1997, existing Section 1.3 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"1.3 Prior Plans. Effective as of July 1, 1991, the employees of ABC
Treadco, Inc. ("Old Treadco") were transferred to employment with the newly
formed Treadco, Inc. Old Treadco maintained a Code Section 401(k) plan,
which was substantially similar to the Plan, for the benefit of its
eligible employees; this plan was known as the ABC Treadco, Inc. Employees'
Investment Plan (the "Prior Plan"). The assets of the Prior Plan were
transferred to the Plan and deposited with and held, subject to the
provisions of the Plan, by the Trustee of Investment Trust No. 2 (if
attributable to contributions to the Arkansas Best Corporation stock fund
in the Prior Plan) or the Trustee of Investment Trust No. 1 (if
attributable to other assets of the Prior Plan).
Effective on November 1, 1997, the Treadco Employee Stock Ownership
Plan ("ESOP") was amended to merge the ESOP into the Plan. The assets of
the ESOP were transferred to the Plan and deposited and held, subject to
the provisions of the Plan, by the Trustee of Investment Trust No. 1, which
was established pursuant to a 'Trust Agreement'."
3 Effective November 1, 1997, existing Section 1.5 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"1.5 Separate Trusts. Two (2) separate Trusts, the Investment Trust
No. 1 and the Investment Trust No. 2, have been established and have been
maintained for the purposes of the Plan (and other plans sponsored by
Affiliated Companies) and the moneys thereof have been invested in
accordance with the terms of such Trusts. Effective as of November 1, 1997,
the Investment Trust No. 2 shall be terminated and its assets transferred
into Investment Trust No. 1. All Before-Tax Deposits and Company Matching
Deposits made in cash (unless the Board of Directors of the Sponsoring
Company directs otherwise), shall be paid to the Trustee of the Investment
Trust No. 1 for investment therein. The Investment Trust No. 1 shall
consist of the assets held in each Investment Fund, including the Company
Stock Fund."
4 Effective as of November 1, 1997, existing Section 2.1 of the Plan is
deleted in its entirety, and the following is substituted in its place:
"2.1 'Account' or 'Accounts' shall mean the Basic Before-Tax Deposit
Account, if any; the Supplemental Before-Tax Deposit Account, if any; the
Choice Benefits Deposit Account, if any; the Company Matching Deposit
Account; the ESOP Account, if any; and the Rollover Account, if any, and
any other account established by the Administrative Committee in its sole
discretion, collectively or singly as the context requires, maintained for
each Participant under the Plan."
5 Effective January 1, 1998, existing Subsection 2.16(1) of the Plan is
deleted in its entirety, and the following is substituted in its place:
"2.16(1) any person who is a 'casual employee' of a Participating
Company as defined by the Participating Company's uniform and
nondiscriminatory employment policy unless and until such casual employee
completes an 'Eligibility Year of Service.' An 'Eligibility Year of
Service' shall mean the Employment Period during which a casual employee
performs one thousand (1,000) or more Hours of Service subject to the
provisions of Section Three hereof. For purposes of determining a casual
employee's Eligibility Year of Service, the 'Employment Period' to be used
shall be the initial twelve (12) consecutive month period beginning on a
casual employee's Employment Commencement Date and thereafter the Plan
Year, beginning with the Plan Year within which occurs the casual
2
<PAGE>
Exhibit 4.6
employee's first (1st) anniversary of his Employment Commencement Date. Any
casual employee who is credited with one thousand (1,000) or more Hours of
Service with a Participating Company or an Affiliated Company in both the
initial twelve (12) month period beginning on such casual employee's
Employment Commencement Date and the Plan Year within which such initial
twelve (12) month period ends, shall be credited with two (2) Eligibility
Years of Service at the end of such Plan Year."
6 Effective January 1, 1998, existing Section 2.17 of the Plan is deleted in
its entirety, and the following is substituted in its place:
"2.17 'Employee' shall mean any person who is classified as an
employee by an Affiliated Company and receives a compensation from an
Affiliated Company that is subject to FICA tax. Notwithstanding anything in
this Section 2.17 to the contrary, in the event an individual is denied
eligibility under the Plan in accordance with Section Three hereof because
the individual is not classified by an Affiliated Company as an Employee,
any reclassification of such individual as an Employee shall only be
effective for purposes of this Plan from the date of such determination
(notwithstanding any retroactive reclassification of such individual as an
Employee for any other purpose under the Code). Any leased employee shall
be considered an 'Employee' under the Plan to the extent required by
Sections 414(n) or 414(o) of the Code, but shall not be eligible to
participate in the Plan unless and until he meets the requirements to be an
Eligible Employee, as defined above, and otherwise meets the eligibility
criteria of Section Three hereof."
7 Effective January 1, 1998, existing Section 2.19 of the Plan is deleted in
its entirety, and the following is substituted in its place:
"2.19 'Entry Date' shall mean each business day."
8 Effective January 1, 1998, existing Section 2.30 of the Plan is deleted in
its entirety, and the following is substituted in its place:
"2.30 'Plan' shall mean the Treadco, Inc. 401(k) Savings Plan as set
forth in this document, and as hereafter amended from time to time."
9 Effective November 1, 1997, existing Section 2.42 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"2.42 'Trustee' shall mean Fidelity Management Trust Company, trustee
of the Investment Trust No. 1, and any additional or successor Trustees.
Except as otherwise provided in the Trust Agreements and herein, the
Trustees shall be the 'Named Fiduciaries' referred to in Section 402(a) of
ERISA with respect to the control, management and disposition of the Trust
Funds."
10 Effective January 1, 1998, existing Section 2.46 of the Plan is hereby
amended to add the following definitions:
"'Eligibility Year of Service' Section 2.16(1)
'Employment Period' Section 2.16(1)"
3
<PAGE>
Exhibit 4.6
11 Effective November 1, 1997, existing Section 2.46 of the Plan is hereby
amended to add the following definitions:
"'ESOP' Section 1.3
'ESOP Account' Section 9.1"
12 Effective January 1, 1998, existing Section 3.1 of the Plan is deleted in
its entirety, and the following is substituted in its place:
"3.1 Service. Each Eligible Employee who was a Participant on December
31, 1993, shall be a Participant in the Plan on January 1, 1994. Each
Eligible Employee whose Employment Commencement Date is on or after January
1, 1994, shall be eligible to become a Participant in the Plan as of the
Entry Date coincident with or next following a twelve month Period of
Service; provided, however, that any casual employee shall be eligible to
become a Participant in the Plan on the Entry Date coincident with or next
following the satisfaction of the requirements of Subsection 2.16(1). In
the event an Eligible Employee suffers a Termination of Employment prior to
the Entry Date upon which such Employee would have become a Participant in
the Plan, as the case may be, and such Eligible Employee is reemployed by a
Participating Company prior to a One-Year Period of Severance, such
Eligible Employee shall be eligible to become an Active Participant in the
Plan as of the date the Eligible Employee would have attained a twelve
month Period of Service had such Termination of Service not occurred and
shall then be eligible to become an Active Participant in the Plan as of
the Entry Date coincident with or next following the date the Eligible
Employee became a Participant."
13 Effective January 1, 1998, existing Subsection 6.2(1) of the Plan is
deleted in its entirety, and the following is substituted in its place:
"6.2(1) Each Participant may have contributed on his behalf to the
Trust Fund each month by salary reduction an amount ('Basic Before-Tax
Deposit') which shall be equal to one percent (1%), two percent (2%), three
percent (3%), four percent (4%), five percent (5%), or six percent (6%) of
such Participant's Compensation for such month, as such Participant shall
elect on the written authorization form provided for herein. Any Active
Participant who elects to have made on his behalf Basic Before-Tax Deposits
of six percent (6%) of his Compensation for each month may also elect to
have contributed on his behalf to the Trust Fund each month by salary
reduction an additional amount ('Supplemental Before-Tax Deposit') equal to
from one percent (1%) to nine percent (9%) of his Compensation; provided,
however, such percent must be a whole percent. Any designated Before-Tax
Deposits (whether Basic or Supplemental Deposits or both) shall qualify as
elective contributions under Section 401(k) of the Code and the regulations
thereunder."
14 Effective November 1, 1997, existing Section 8.1 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"8.1 Regular Valuation. The Trustee of the Investment Trust No. 1
shall evaluate such Trust Fund (separately itemized with respect to each
Investment Fund under Section 9.4 hereof of the Investment Trust No. 1) at
fair market value as of the close of business on each Valuation Date. The
Trustees of the Investment Trust No. 1 shall evaluate the Company Stock
Fund at fair market value as of the close of business on each Valuation
Date. In making such valuations, except as otherwise provided for herein or
in a Trust Agreement, the Trustee shall use the modified cash basis method
of accounting and shall deduct all charges, expenses and other liabilities,
if any, then chargeable against the Trust Fund, in order to give effect to
income realized and expenses paid, losses sustained and unrealized gains or
losses constituting appreciation or depreciation in the value of Trust
investments since the last previous valuation. At the request of the
4
<PAGE>
Exhibit 4.6
Administrative Committee, as soon as practicable after such valuation, the
Trustee shall deliver in writing to the Administrative Committee a
valuation of the Trust Fund together with a statement of the amount of net
income or loss (including appreciation or depreciation in the value of
Trust investments) since the last previous valuation."
15 Effective as of November 1, 1997, existing Section 8.2 of the Plan is
deleted in its entirety, and the following is substituted in its place:
"8.2 Valuation of Company Stock. In making any valuation of the
portion of the Trust Fund consisting of Company Stock, the Trustee of
Investment Trust No. 1 shall determine the fair market value of Company
Stock."
16 Effective November 1, 1997, existing Section 9.1 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"9.1 Separate Accounts. Subject to the provisions of Section 17.2
hereof, the Administrative Committee shall maintain for each Participant a
separate Company Matching Deposit Account, a separate Basic Before-Tax
Deposit Account, a separate Supplemental Before-Tax Deposit Account, a
separate Choice Benefits Deposit Account as necessary, an ESOP Account as
necessary, and a separate Rollover Account, as necessary. The term 'ESOP
Account' means the separate account maintained for each Participant who was
a Participant in the ESOP on the date of its merger into the Plan and to
which shall be posted all of such Participant's funds transferred from the
ESOP, as adjusted in accordance with the provisions of Section Nine. The
amount contributed by or on behalf of a Participant or allocated to such
Participant shall be credited to the appropriate Account in the manner set
forth in Sections Six and Seven hereof. All payments to a Participant or
his Beneficiaries shall be charged against the respective Accounts of such
Participant."
17 Effective on November 1, 1997, the last sentence of existing Section 9.3 of
the Plan is hereby deleted in its entirety, and the following is
substituted in its place:
"With respect to a Participant's Company Matching Deposit Account and ESOP
Account, such adjustment, if necessary, shall be made by adjusting the
number of shares, if applicable, of Company Stock allocated to each
Participant's Company Matching Deposit Account and ESOP Account,
respectively."
18 Effective on January 1, 1998, existing Subsection 9.4(1) of the Plan is
hereby deleted in its entirety, and the following is substituted in its
place:
"9.4(1) Notwithstanding any other provision of the Plan or the Trust
Agreement with respect to control over and direction of the investment of
assets in the Trust Fund, each Participant may, at such time and in such
manner as the Administrative Committee shall determine pursuant to a
uniform policy established by it, direct that all or any part (subject to
such percentage increment limitations as the Administrative Committee shall
determine from time to time) of the amounts constituting such Participant's
existing Account and his future Before-Tax Deposits and Company Matching
Deposits (and such other contributions to the Plan, or amounts attributable
to such other contributions, as determined by the Administrative Committee,
in its sole discretion) be invested among such investment funds as the
Administrative Committee shall offer from time to time ("Investment Funds")
for direction by Participants. This Section 9.4 is intended to meet the
requirements of Section 404(c) of ERISA by allowing each Participant to
direct the investment of his individual Accounts."
19 Effective on January 1, 1998, existing Subsection 9.4(3) of the Plan is
hereby deleted in its entirety, and the following is substituted in its
place:
5
<PAGE>
Exhibit 4.6
"9.4(3) At such times as the Administrative Committee shall permit,
and in such manner as the Administrative Committee shall determine,
pursuant to uniform policies established by it, each Participant may (i)
direct that all, or any part (subject to such percent increment limitations
as the Administrative Committee shall determine from time to time) of the
amounts in the Participant's Accounts which are invested on his behalf in
any of the Investment Funds, be liquidated and the proceeds thereof
reinvested in the other Investment Funds and (ii) redirect the investment
of future Before-Tax Deposits and Matching Contributions (and future
earnings on all such amounts) in accordance with the provisions of
Subsection 9.4(1) hereof. In the event at any time a Participant does not
elect to redirect any Account balances or future contributions as provided
for in this Subsection 9.4(3), then such Participant's prior directions
shall remain in effect."
20 Effective on January 1, 1998, existing Subsection 9.4(4) of the Plan is
hereby deleted in its entirety, and the following is substituted in its
place:
"9.4(4) The Trustee shall carry out Participant's directions or
redirections permitted by this Section 9.4 (or in the absence of
directions, shall invest as provided in Subsection 9.4(5) hereof) as soon
as administratively practicable. Notwithstanding the foregoing, in the
event a Participant has directed that only part of his interest in any of
the Investment Funds be liquidated and reinvested in one or more of the
other Investment Funds only the nearest value of whole units will be
liquidated and reinvested."
21 Effective on January 1, 1998, Existing Subsection 9.4(5) of the Plan is
hereby deleted in its entirety, and the following is substituted in its
place:
"9.4(5) If a Participant fails or refuses to exercise any of his
investment direction rights as provided for in this Section 9.4, the
Trustee shall invest all amounts (not otherwise directed) in the lowest
risk Investment Fund available, as determined by the Administrative
Committee."
22 Effective on November 1, 1997, existing Subsection 9.5(1) of the Plan is
hereby deleted in its entirety, and the following is substituted in its
place:
"9.5(1) Company Matching Deposits which are made in cash and
contributed to Investment Trust No. 1 and any forfeited, Non-Vested Amounts
held in the Company Stock Fund that are applied to reduce Company Matching
Deposits as provided in Subsection 14.4(2) will be invested by the Trustee
of Investment Trust No. 1 in the Company Stock Fund. The Trustee may retain
any shares of Company Stock which are received as a result of a stock
dividend or stock split, and shall invest any cash or cash-equivalent
amounts held in the Company Stock Fund in Company Stock as soon as
practicable unless directed otherwise by the Board of Directors of the
Sponsoring Company or unless the Trustee determines that it is necessary to
retain such amounts in cash to make distribution or to pay administrative
expenses."
23 Effective on January 1, 1998, existing Subsection 9.5(1) of the Plan is
hereby deleted in its entirety, and the following is substituted in its
place:
"9.5(1) The Company Stock Fund shall be one of the Investment Funds
available for the investment of any portion of a Participant's Account in
accordance with Section 9.4. The Company Stock Fund may be partially
invested in cash, cash-equivalents, or short-term investments as needed to
meet liquidity requirements or if amounts are too small to reasonably
invest in Company Stock."
6
<PAGE>
Exhibit 4.6
24 Effective on November 1, 1997, existing Subsection 9.5(2) of the Plan is
hereby deleted in its entirety, and the following is substituted in its
place:
"9.5(2) Any amount in the Company Stock Fund not currently invested in
Company Stock shall be invested by the Trustee of Investment Trust No. 1
only in cash-equivalent investments, including, but not limited to,
investments in commingled funds, as such Trustee shall determine."
25 Effective on November 1, 1997, existing Subsection 9.5(3) of the Plan is
hereby deleted in its entirety, and the following is substituted in its
place:
"9.5(3) All shares of Company Stock in the Company Stock Fund shall be
voted by the Trustee of Investment Trust No. 1 in the manner provided by
Investment Trust No. 1."
26 Effective as of November 1, 1997, existing Section 12.1 of the Plan is
deleted in its entirety, and the following is substituted in its place:
"12.1 Disability Retirement Benefits. If a Participant retires by
reason of Total and Permanent Disability while in a Participating Company's
or an Affiliated Company's employ or on Leave of Absence, all of his
Accounts shall fully vest and, subject to the provisions of Section 17.3
hereof, he shall be entitled to receive benefits equal to the total amount
in all of his Accounts under the Plan, as determined in accordance with the
provisions of Section 15.2 hereof. Such benefits shall be paid as provided
in Subsection 15.2(1) and Section 15.5 hereof."
27 Effective as of November 1, 1997, existing Subsection 13.1 of the Plan is
deleted in its entirety, and the following is substituted in its place:
"13.1 Retirement Benefits. All of a Participant's Accounts shall fully
vest and be nonforfeitable on his Retirement Date, provided such
Participant is employed by a Participating Company or an Affiliated Company
on such date. A Participant who continues in the Participating Company's
employ after his Retirement Date shall continue to be a Participant in the
Plan until his actual retirement. Subject to the provisions of Section 17.3
hereof, any Participant who retires under this Section 13.1 shall be
entitled to receive benefits equal to the total amounts in all of his
Accounts under the Plan as determined in accordance with the provisions of
Section 15.1 hereof. Such benefit shall be paid as provided in Subsection
15.2(1) and Section 15.5 hereof."
28 Effective as of November 1, 1997, the first sentence of existing Subsection
13.2 of the Plan is deleted in its entirety, and the following sentence is
substituted in its place:
"13.2 Death Benefits. Upon the death of a Participant while in the
employ of a Participating Company, an Affiliated Company or on Leave of
Absence, all of his Accounts shall fully vest and, subject to the
provisions of Section 17.3 hereof, the following person or persons shall be
entitled to receive benefits equal to the total amounts in the deceased
Participant's Accounts under the Plan as determined in accordance with the
provisions of Subsection 15.2(1) and Section 15.5 hereof:
(i) In the case of a Participant who is married as of the date of
his death, except as provided in Subsection (ii) below, his surviving
spouse.
(ii) In the case of a Participant who is married on the date of
his death but who has designated a Beneficiary other than his
surviving spouse pursuant to Section Eleven hereof and (a) whose
7
<PAGE>
Exhibit 4.6
surviving spouse has executed a Qualified Consent as provided for in
Section 11.2 hereof or (b) who has not been married to the same spouse
continuously for at least one (1) year as of the date of his death,
his designated Beneficiary pursuant to Section Eleven hereof.
(iii) In the case of a Participant who is not married on the date
of his death, his designated Beneficiary pursuant to Section Eleven
hereof."
29 Effective on November 1, 1997, existing Section 14.1 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"14.1 Vesting upon Termination of Employment. Subject to the
provisions of Sections 14.4 and 17.3 hereof, in the event of the
Termination of Employment of a Participant, such Participant shall be
entitled to receive (i) one hundred percent (100%) of the amounts in all of
his Accounts other than his Company Matching Deposit Account and ESOP
Account, and (ii) the following percentage of the amount in his Company
Matching Deposit Account and ESOP Account as determined in accordance with
the provisions of Subsection 15.2(1) and Section 15.5 hereof, based upon
such Participant's number of Vesting Years of Service prior to such
Termination of Employment:
Number of Vesting
Years of Service Vested Percentage
----- -- ------- ------ ----------
Less than 5 yea None
5 years or more 100%
Such benefits shall be paid as provided in Section Fifteen hereof.
Notwithstanding the above, any portion of a Participant's ESOP Account
which is attributable to the 1991 transfer of assets from the Arkansas Best
Employee Stock Ownership Plan will become one hundred percent (100%) vested
and nonforfeitable if he is employed by the Sponsoring Company or an
Affiliated Company on his 55th birthday."
30 Effective on November 1, 1997, existing Subsection 14.3(2) of the Plan is
hereby deleted in its entirety, and the following is substituted in its
place:
"14.3(2) In the case of any Participant who suffers a Termination of
Employment and who has no vested amount in his Basic or Supplemental
Before-Tax Deposit Accounts, his Choice Benefits Deposit Account, his
Company Matching Deposit Account or his ESOP Account in accordance with the
provisions of Section 14.1 hereof, Vesting Years of Service before any
period of One-Year Periods of Severance shall not be taken into account if
such Participant's latest Period of Severance equals or exceeds the greater
of (i) five (5) consecutive One-Year Periods of Severance, or (ii) his
aggregate Periods of Service before the commencement of such latest Period
of Severance. Such aggregate Periods of Service before the commencement of
such latest Period of Severance shall be deemed not to include any Vesting
Year of Service which precedes a One-Year Period of Severance if as of or
prior to December 31, 1984, the duration of the consecutive One-Year
Periods of Severance measured in years equals or exceeds the Participant's
Vesting Years of Service prior to the One-Year Periods of Severance."
31 Effective on November 1, 1997, existing Subsection 14.3(3) of Plan is
hereby deleted in its entirety, and the following sentence is substituted
in its place:
8
<PAGE>
Exhibit 4.6
"14.3(3) In the case of any Participant who has five (5) consecutive
One-Year Periods of Severance, Vesting Years of Service after such five (5)
year period shall not be taken into account for purposes of determining the
vested amount in his Company Matching Deposit Account or ESOP Account which
accrued prior to such five (5) year period."
32 Effective on November 1, 1997, existing Section 14.4 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"14.4(1) Forfeiture of Non-Vested Amount.
---------- -- ---------- ------
(a) In the case of any Participant who has suffered a
Termination of Employment and who has received a
distribution of the vested amount in his Company Matching
Deposit Account, ESOP Account, and his Basic and Supplemen
tal Before-Tax Deposit Accounts and his Choice Benefits
Deposit Account (the 'Vested Amount') on or prior to the
last day of the second (2nd) Plan Year following the Plan
Year in which such Termination of Employment occurs, the
excess, if any, of the amount in his Company Matching
Deposit Account and ESOP Account over the vested amount in
such Accounts (the 'Non-Vested Amount') shall be forfeited
as of the last day of the second (2nd) Plan Year following
the Plan Year during which such Participant suffers such
Termination of Employment.
(b) In the case of any Participant who has suffered a
Termination of Employment and who has no Vested Amount at
the time of such Termination of Employment, the amount in
his Company Matching Deposit Account and ESOP Account shall
be forfeited as of the last day of the second (2nd) Plan
Year following the Plan Year during which such Participant
suffers such Termination of Employment.
(c) In the case of any Participant who has suffered a
Termination of Employment and who has not received a
distribution of the Vested Amount on or prior to the last
day of the second (2nd) Plan Year following the Plan Year in
which such Termination of Employment occurs, the Non-Vested
Amount shall be forfeited as of the last day of the second
(2nd) Plan Year following the Plan Year in which the
Participant incurs five (5) consecutive One-Year Periods of
Severance.
14.4(2) Subject to the provisions of Subsection 14.5(2) hereof,
forfeited, Non-Vested Amounts shall reduce the Company Matching Deposits of
each Participating Company under Subsection 6.1(1). If the amount of the
forfeited, Non-Vested Amounts for a Plan Year exceeds the amount of the
Company Matching Deposits for the Plan Year, the excess shall be treated as
an increase in the specified percentage determined in accordance with
Subsection 6.1(1) for the Plan Year."
33 Effective on November 1, 1997, existing Section 14.5 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"14.5 Restoration of Forfeited Non-Vested Amount.
----------- -- --------- ---------- ------
14.5(1) In the event a Participant: (i) who has received a
distribution of the vested amount in his Company Matching Deposit Account
and, if applicable, his ESOP Account in accordance with Section 14.4
hereof, or (ii) who has no vested amount in his Company Matching Deposit
Account and, if applicable, his ESOP Account at the time of his Termination
of Employment, as described in Subsection 14.4(1)(b) hereof, returns to
9
<PAGE>
Exhibit 4.6
employment with a Participating Company as an Employee prior to the date on
which such Participant has incurred five (5) consecutive One-Year Periods
of Severance, the amount in such Participant's Company Matching Deposit
Account or ESOP Account which was forfeited pursuant to Section 14.4 hereof
(without adjustment for any gains or losses in the Trust Fund subsequent to
such forfeiture) shall be restored to such Participant's Company Matching
Deposit Account and ESOP Account; provided, however, that if a Participant
received a distribution of the vested amount of his Company Matching
Deposit Account and ESOP Account and is reemployed by a Participating
Company as an Employee more than one year after his Termination of
Employment, such restoration shall not occur unless and until: (i) such
Participant repays to the Plan the full amount of his Company Matching
Deposit Account or ESOP Account previously distributed to him, and (ii)
such Participant's repayment is made before the earlier of the end of (I)
the five (5) year period beginning with the Participant's date of
reemployment or (II) a period of five (5) consecutive One-Year Periods of
Severance commencing after the date on which such Participant received such
distribution. Upon the restoration of a Participant's Company Matching
Deposit Account and ESOP Account as provided for hereinabove, the vested
amount in such Participant's Company Matching Deposit Account and ESOP
Account (whether attributable to amounts restored, amounts, if any, repaid
by the Participant or additional amounts added to such Account after such
reemploy ment) shall thereafter be determined in accordance with the
provisions of this Section Fourteen without regard to such Participant's
original Termination of Employment.
14.5(2) The restoration of a Participant's Non-Vested Amount in his
Company Matching Deposit Account or ESOP Account, as provided for in
Subsection 14.5(1) above, shall be made from the Non-Vested Amounts
forfeited pursuant to Section 14.4 hereof during the Plan Year of such
restoration before any use of such forfeitures as provided in Subsection
14.4(2) hereof. In the event there are not sufficient forfeitures to
restore the entire amount owing to Participants under Subsection 14.5(1)
above, the additional amount necessary for restoration shall be contributed
by the Participating Company employing such Participant as a special
contribution to be allocated to the Company Matching Deposit Account or
ESOP Account of the affected Participant."
34 Effective as of January 1, 1998, existing Subsection 15.2(2) of the Plan is
deleted in its entirety, and the following is substituted in its place:
"15.2(2) Notwithstanding any other provision of this Section Fifteen
to the contrary, if the vested amounts in the Participant's Accounts (other
than his Rollover Account) do not exceed Five Thousand Dollars ($5,000),
distribution shall be made as provided in Subsection 15.2(l), as if the
Participant had requested distribution on the Participant's Severance from
Service Date."
35 Effective as of January 1, 1998, existing Subsection 15.2(4) of the Plan is
deleted in its entirety, and the following is substituted in its place:
"15.2(4) Notwithstanding any other provision of this Section Fifteen
to the contrary, no distribution shall be made before the earlier of the
Participant's Retirement Date or death without the Participant's written
consent to the commencement of such distribution obtained not more than
ninety (90) days prior to such commencement of distribution, if the
combined vested value of such Participant's Company Matching Deposit
Account, Basic and Supplemental Before-Tax Deposit Accounts, ESOP Account
and Choice Benefits Deposit Account as of such date exceeds Five Thousand
Dollars ($5,000)."
10
<PAGE>
Exhibit 4.6
36 Effective November 1, 1997, existing Section 15.5 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"15.5 Benefits Payable in Cash. All disbursements from the Trust Fund
shall be made in cash, and no Participant may elect to receive an in kind
distribution except as specifically provided in this Section 15.5 and
Section 15.10 below; provided, however, that a Participant shall have a
right to demand that distribution of his ESOP Account be made in whole
shares of Company Stock (with the value of any fractional shares paid in
cash)."
37 Effective on November 1, 1998, existing Section 15.5 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"15.5 Benefits Payable in Cash. All disbursements from the Trust Fund
shall be made in cash, except that to the extent the Participant's Accounts
are invested in Company Stock, distribution may be made in whole shares of
Company stock, at the election of the Participant; provided, however, that
any fractional shares of Company Stock shall be paid only in cash."
38 Effective as of January 1, 1998, the first paragraph of existing Section
15.8 of the Plan is deleted in its entirety, and the following paragraph is
substituted in its place:
"15.8 Benefits Payable Pursuant to a Qualified Domestic Relations
Order. Notwithstanding any other provision of the Plan to the contrary,
immediate distribution of benefits payable to an Alternate Payee pursuant
to a Qualified Domestic Relations Order shall be permitted even though the
Participant whose benefits have been assigned to the Alternate Payee would
not be entitled to receive a distribution at such time, if all of the
following requirements are met: (i) the Participant's Account is one
hundred percent (100%) vested and nonforfeitable at such time pursuant to
Section 14.1 hereof, (ii) the entire amount payable to the Alternate Payee
does not exceed Five Thousand Dollars ($5,000), or the Alternate Payee has
requested immediate distribution in writing, (iii) allocation pursuant to
Section 8.1 hereof of all amounts required to be paid to the Alternate
Payee has been completed, and (iv) the Qualified Domestic Relations Order
requires or permits immediate distribution."
39 Effective on November 1, 1997, the following new Section 15.10 of the Plan
is hereby added after Section 15.9 of the Plan:
"15.10 Put Option for ESOP Accounts Only. The Sponsoring Company shall
provide a 'put option' to any Participant (or Beneficiary) who receives a
distribution of Company Stock from his ESOP Account at times when such
Company Stock is not readily tradable on an established market. The put
option is to be exercisable only by the Participant, the Participant's
donees or a Beneficiary, including Alternate Payees or a person (including
an estate or its distributee) to whom the Company Stock passes by reason of
a Participant's death. The put option must permit the Participant to put
the Company Stock to the Sponsoring Company. The put option must be
exercisable during the sixty (60) consecutive days beginning on the date
that the Company Stock subject to the put option is distributed by the
Plan, and for another sixty (60) consecutive days during the Plan Year next
following the Plan Year in which the shares were distributed. The put
option may be exercised by the holder notifying the Sponsoring Company in
writing that the put option is being exercised. The period during which a
put option is exercisable does not include any period when a distributee is
unable to exercise it because the party bound by the put option is
prohibited from honoring it by applicable Federal or state law. The price
at which the put option is exercisable is the fair market value of the
Company Stock on the date of the transaction determined in good faith based
on all relevant factors.
11
<PAGE>
Exhibit 4.6
Payment pursuant to the put option shall be made: (1) in the case of
distribution of the Participant's entire ESOP Account within one taxable
year of the recipient, no less rapidly than in substantially equal
installments at least annually over a period beginning no later than thirty
(30) days after the exercise of the put option and not exceeding five (5)
years in all; adequate security shall be provided and reasonable interest
shall be paid on any installments outstanding after thirty (30) days after
exercise of the put option; and (2) in the case of any other form of
distribution not described in (1), within thirty (30) days of the exercise
of the put option. Payment pursuant to the put option shall be made no less
rapidly than in substantially equal installments at least annually over a
period beginning no later than thirty (30) days after the put option and
not exceeding five (5) years in all, except that the repayment period may
be extended to a date no later than ten (10) years after the earlier of the
date the put option is exercised or the date of final repayment of any debt
incurred in connection with the acquisition of the Company Stock. The
provisions described in this Section 15.10 are nonterminable even by the
custodian or trustee of an individual retirement account described in
Section 408(a) of the Code established by the Participant or his surviving
spouse.
Shares of Company Stock held or distributed by the Trustee may include
such legend restrictions on transferability as the Sponsoring Company may
reasonably require in order to assure compliance with applicable Federal
and state securities law. Except as otherwise provided in this Section
15.10, no shares of Company Stock held or distributed by the Trustee may be
subject to a put, call, or other option, or buy-sell or similar
arrangement."
40 Effective on November 1, 1997, existing Section 22.2 of the Plan is hereby
amended to add the following new sentence to the end thereof:
"The Administrative Committee is empowered to direct the Trustee to
transfer assets and liabilities from the Plan relating to such Participant
Accounts as the Administrative Committee designates to another plan;
provided, however, that such transfer must meet the requirements of the
directly preceding sentence of this Section 22.2 and Section 414 of the
Code. Any trust-to-trust transfer under this Section 22.2 shall, except as
allowed by the Administrative Committee in its sole discretion, not include
any amounts in a Participant's Account attributable to Company Stock."
41 Effective on November 1, 1997, existing Section 22.3 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
"22.3 Continuance by Successor Company. In the event of the
liquidation, dissolution, merger, consolidation or reorganization of a
Participating Company, the successor company may adopt the Plan and Trust
for the benefit of the employees of such Participating Company, if such
adoption is approved by the Sponsoring Company. If the Sponsoring Company
approves such successor company's adoption of the Plan and Trust, the
successor company shall, in all respects, be substituted for such
Participating Company under the Plan and Trust. Any such substitution of
such successor company shall constitute an assumption of Plan liabilities
by such successor company, and such successor company shall have all of the
powers, duties and responsibilities of such Participating Company under the
Plan and Trust. If such successor company does not adopt the Plan and
Trust, subject to the Sponsoring Company's approval, the Plan and Trust
shall be terminated with respect to such Participating Company in
accordance with the provisions of the Plan and Trust Agreement."
42 Effective on November 1, 1997, existing Section 23.3 of the Plan is hereby
deleted in its entirety, and the following is substituted in its place:
12
<PAGE>
Exhibit 4.6
"23.3 Rights to Benefits upon Termination of Plan or Complete
Discontinuance of Deposits. Upon the termination or partial termination of
the Plan or the complete discontinuance of contributions by each and all of
the Participating Companies, the rights of each Participating Company's
Employees who are then Participants (or, in the case of a partial
termination, who are then Participants affected by the termination) and the
rights of each other person, other than a person who has forfeited his
non-vested amounts pursuant to Section 14.4 hereof prior to the effective
date of such termination (or partial termination) or complete
discontinuance, to the amounts credited to his Accounts at such time, shall
be nonforfeitable without reference to any formal action on the part of any
affected Participating Company, the Administrative Committee or the
Trustee."
IN WITNESS WHEREOF, TREADCO, INC. has caused this instrument to be executed
by its duly authorized officers on this 6th day of April, 1998.
TREADCO, INC.
By /s/ R.F. Cooper
----------------------------------
Title Secretary
----------------------------
13
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Post-Effective Amendment No.
1 to the Registration Statement (Form No. 33-43393) pertaining to the Treadco,
Inc. Employees' Investment Plan of our report dated January 28, 1998, with
respect to the consolidated financial statements and schedule of Treadco, 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
/s/Ernst & Young, LLP
Little Rock, Arkansas --------------------------------
June 5, 1998
14
