As filed with the Securities and Exchange Commission on October 20, 1995
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ARKANSAS BEST CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 71-0673405
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1000 South 21st Street
Fort Smith, Arkansas 72901
(Address of principal executive offices) (Zip Code)
1) Carolina Freight Corporation Employee Savings and Protection Plan
2) Complete Leasing Concepts, Inc. Employee Savings & Profit Sharing Plan
3) IDI 401(k) Savings Plan
(Full title of the plans)
Richard F. Cooper Copy to:
Secretary Mark D. Wigder, Esq.
Arkansas Best Corporation Jenkens & Gilchrist,
1000 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 (214) 855-4500
including area code of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Class of
Securities to be
Registered Amount
to be
Registered(1) Proposed
Maximum
Offering Price
per
Share(2)(3) Proposed
Maximum
Aggregate
Offering
Price(2)(3) Amount of
Registration
Fee(3)
Common Stock, $0.01
<S> <C> <S> <C> <C> <C>
par value per share 600,000 Shares $ 9 $ 5,625,000 $ 1,939.66
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Carolina Freight Corporation
Employee Savings and Protection Plan, the Complete Leasing Concepts, Inc.
<PAGE>
Employee Savings and Profit Sharing Plan, and the IDI
401(k) Savings Plan(the "Plans").
(2) Estimated solely for the purpose of calculating the registration
fee.
(3) Calculated pursuant to Rule 457(c) and (h) under the Securities
Act of 1933, as amended. Accordingly, the price per share of the common
stock offered hereunder pursuant to the Plans is based on 600,000 shares of
common stock that may be offered or sold under the Plans at a price per
share of $9 which was the closing price per share of common stock on the
NASDAQ National Market on October 17, 1995.
<PAGE>
JENKENS & GILCHRIST
1445 Ross Avenue Suite 3200
Dallas, Texas 75202
November 1, 1995
Securities and Exchange Commission VIA EDGAR
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Arkansas Best Corporation
Registration Statement on Form S-8
File No. 33-63587
Post Effective Amendment No. 1
Ladies and Gentlemen:
As counsel for and on behalf of Arkansas Best Corporation
(the "Company"), we herewith submit to you for filing pursuant to
the Securities Act of 1933, as amended (the "1933 Act"), Post-
Effective Amendment No. 1 to the above-referenced Registration
Statement on Form S-8 (the "Post-Effective Amendment").
Pursuant to the Registration Statement, which was filed on
October 20, 1995, the Company registered 600,000 shares of its
common stock, par value $.01, for issuance pursuant to three
401(k) plans maintained for employees of three corporations
affiliated with the Company.
This filing substitutes, in Exhibit 4.8, the plan document
relating to the Complete Leasing Concepts, Inc. Employee Savings
and Profit Sharing Plan dated October 1, 1993 for the document
which was filed in the original filing. That document was filed
in error, and the amendments to that Plan contained in the
Exhibit relate to the Plan document filed herewith. The
substitution of this Plan document constitutes the sole change
made by this Amendment.
Questions or comments regarding this filing should be
directed to Mark Wigder at 214-855-4326 or to the undersigned at
214-855-4322.
Very truly yours,
Paul W. Talbot
<PAGE>
November 1, 1995
Page 3
PWT/pt
Enclosures
cc: Mr. Richard F. Cooper
Arkansas Best Corporation
Riva T. Johnson, Esq.
Jenkens & Gilchrist, P.C.
Mark D. Wigder, Esq.
Jenkens & Gilchrist, P.C.
DCC12DE6 25879.7 II-3
<PAGE>
Securities and Exchange Commission
November 1, 1995
Page 4
COMPLETE LEASING CONCEPTS, INC. EMPLOYEE
SAVINGS AND PROFIT SHARING PLAN
_______________
Text of Plan
October 1, 1993
_______________
Complete Leasing Concepts, Inc.
6280 Manchester Boulevard
Buena Park, California 90621
<PAGE>
Securities and Exchange Commission
November 1, 1995
Page 5
COMPLETE LEASING CONCEPTS, INC. EMPLOYEE
SAVINGS AND PROFIT SHARING PLAN
(Text of Plan)
TABLE OF CONTENTS
Page
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I. REFERENCES, CONSTRUCTION AND DEFINITIONS . . . . . 1
1.1 Account . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Accrued Benefit . . . . . . . . . . . . . . . . . . 2
1.3 Administrator . . . . . . . . . . . . . . . . . . . 2
1.4 Affiliate . . . . . . . . . . . . . . . . . . . . . 2
1.5 Authorized Leave of Absence . . . . . . . . . . . . 2
1.6 Before-Tax Contribution . . . . . . . . . . . . . . 2
1.7 Before-Tax Subaccount . . . . . . . . . . . . . . . 2
1.8 Beneficiary . . . . . . . . . . . . . . . . . . . . 2
1.9 Board . . . . . . . . . . . . . . . . . . . . . . . 2
1.10 Break in Service . . . . . . . . . . . . . . . . . 3
1.11 Code . . . . . . . . . . . . . . . . . . . . . . . 3
1.12 Committee . . . . . . . . . . . . . . . . . . . . . 3
1.13 Company . . . . . . . . . . . . . . . . . . . . . . 3
1.14 Compensation . . . . . . . . . . . . . . . . . . . 3
1.15 Deferral Election . . . . . . . . . . . . . . . . . 3
1.16 Deferred Retirement . . . . . . . . . . . . . . . . 4
1.17 Direct Rollover . . . . . . . . . . . . . . . . . . 4
1.18 Disability . . . . . . . . . . . . . . . . . . . . 4
1.19 Disability Retirement . . . . . . . . . . . . . . . 4
1.20 Early Retirement . . . . . . . . . . . . . . . . . 4
1.21 Effective Date . . . . . . . . . . . . . . . . . . 4
1.22 Employee . . . . . . . . . . . . . . . . . . . . . 4
1.23 Entry Date . . . . . . . . . . . . . . . . . . . . 4
1.24 ERISA . . . . . . . . . . . . . . . . . . . . . . . 4
1.25 Forfeiture Break in Service . . . . . . . . . . . . 5
1.26 Hours of Service . . . . . . . . . . . . . . . . . 5
1.27 Investment Funds . . . . . . . . . . . . . . . . . 6
1.28 IRS . . . . . . . . . . . . . . . . . . . . . . . . 6
1.29 Matching Contribution . . . . . . . . . . . . . . . 6
1.30 Matching Subaccount . . . . . . . . . . . . . . . . 6
1.31 Member . . . . . . . . . . . . . . . . . . . . . . 6
1.32 Normal Retirement . . . . . . . . . . . . . . . . . 6
DII0D240 25879-9 II-i
<PAGE>
Page
1.33 PAYSOP Subaccount . . . . . . . . . . . . . . . . . 6
1.34 Plan . . . . . . . . . . . . . . . . . . . . . . . 7
1.35 Plan Administrator . . . . . . . . . . . . . . . . 7
1.36 Plan Year . . . . . . . . . . . . . . . . . . . . . 7
1.37 Prior Plan Provisions . . . . . . . . . . . . . . . 7
1.38 Profit Sharing Contribution . . . . . . . . . . . . 7
1.39 Profit Sharing Subaccount . . . . . . . . . . . . . 7
1.40 Re-employment Commencement Date . . . . . . . . . . 7
1.41 Regulations . . . . . . . . . . . . . . . . . . . . 7
1.42 Retirement . . . . . . . . . . . . . . . . . . . . 7
1.43 Rollover Contribution . . . . . . . . . . . . . . . 7
1.44 Rollover Subaccount . . . . . . . . . . . . . . . . 7
1.45 Service . . . . . . . . . . . . . . . . . . . . . . 8
1.46 Shares . . . . . . . . . . . . . . . . . . . . . . 8
1.47 Supplemental Matching Contribution . . . . . . . . 8
1.48 Supplemental Subaccount . . . . . . . . . . . . . . 8
1.49 Surviving Spouse . . . . . . . . . . . . . . . . . 8
1.50 Termination of Service . . . . . . . . . . . . . . 8
1.51 Trust . . . . . . . . . . . . . . . . . . . . . . . 8
1.52 Trust Agreement . . . . . . . . . . . . . . . . . . 8
1.53 Trust Fund . . . . . . . . . . . . . . . . . . . . 8
1.54 Trustee . . . . . . . . . . . . . . . . . . . . . . 9
1.55 Valuation Date . . . . . . . . . . . . . . . . . . 9
1.56 Year of Service . . . . . . . . . . . . . . . . . . 9
ARTICLE II. PARTICIPATION IN THE PLAN . . . . . . . . . . . . 9
2.1 Participation . . . . . . . . . . . . . . . . . . . 9
2.2 Participation Upon Re-employment. . . . . . . . . . 9
2.3 Responsibility for Share Decisions . . . . . . . . 10
2.4 Cessation of Membership . . . . . . . . . . . . . . 10
2.5 Union Employees Excluded . . . . . . . . . . . . . 10
ARTICLE III. CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 10
3.1 Before-Tax Contributions . . . . . . . . . . . . . 10
3.2 Supplemental Matching Contributions. . . . . . . . 11
3.3 Rollover Contributions . . . . . . . . . . . . . . 12
3.4 Profit Sharing Contributions . . . . . . . . . . . 13
3.5 Matching Contributions . . . . . . . . . . . . . . 13
3.6 Reversion of Contributions . . . . . . . . . . . . 13
3.7 Company Not Responsible for Adequacy of Trust Fund 14
ARTICLE IV. TRUST FUND . . . . . . . . . . . . . . . . . . . . 14
4.1 Establishment of Investment Funds . . . . . . . . . 14
4.2 Investment of PAYSOP Subaccount . . . . . . . . . . 15
4.3 Investment Direction . . . . . . . . . . . . . . . 15
4.4 Transfers of Investments . . . . . . . . . . . . . 15
4.5 Loans . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE V. ALLOCATIONS AND ADJUSTMENTS . . . . . . . . . . . . 16
5.1 Allocations and Adjustments. . . . . . . . . . . . 16
DII0D240 25879-9 II-ii
<PAGE>
Page
5.2 Reports . . . . . . . . . . . . . . . . . . . . . . 16
5.3 Corrections . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VI. VESTING . . . . . . . . . . . . . . . . . . . . . 17
6.1 Vesting . . . . . . . . . . . . . . . . . . . . . . 17
6.2 Included Years of Service - Vesting . . . . . . . . 17
6.3 Normal Retirement. . . . . . . . . . . . . . . . . 18
6.4 Disability . . . . . . . . . . . . . . . . . . . . 18
6.5 Death . . . . . . . . . . . . . . . . . . . . . . . 18
6.6 Distribution to Partially-Vested Member . . . . . . 18
6.7 Restoration of Forfeited Account Balance Upon
Re-employment. . . . . . . . . . . . . . . . . . . 18
6.8 Zero Percent (0%) Vested Member . . . . . . . . . . 19
6.9 Segregated Accounts . . . . . . . . . . . . . . . . 19
6.10 Forfeiture Occurs . . . . . . . . . . . . . . . . . 20
6.11 Amendment to Vesting Schedule . . . . . . . . . . . 20
ARTICLE VII. PAYMENT OF BENEFITS . . . . . . . . . . . . . . . 21
7.1 Entitlement . . . . . . . . . . . . . . . . . . . . 21
7.2 Method of Distribution . . . . . . . . . . . . . . 21
7.3 Benefit Commencement . . . . . . . . . . . . . . . 21
7.4 Rollovers . . . . . . . . . . . . . . . . . . . . . 22
7.5 Medium of Payment . . . . . . . . . . . . . . . . . 23
7.6 Applicable Valuation Date . . . . . . . . . . . . . 23
7.7 Distribution of PAYSOP Subaccount . . . . . . . . . 23
7.8 Limitation on Distributions . . . . . . . . . . . . 23
ARTICLE VIII. MAXIMUM ACCOUNT ADDITIONS . . . . . . . . . . . 24
8.1 Application . . . . . . . . . . . . . . . . . . . . 24
8.2 Definitions . . . . . . . . . . . . . . . . . . . . 24
8.3 General Rules . . . . . . . . . . . . . . . . . . . 25
8.4 Order of Reduction . . . . . . . . . . . . . . . . 26
ARTICLE IX. SPECIAL DISCRIMINATION RULES . . . . . . . . . . . 26
9.1 Definitions . . . . . . . . . . . . . . . . . . . . 26
9.2 Limit on Before-Tax Contributions . . . . . . . . . 29
9.3 ADP Test . . . . . . . . . . . . . . . . . . . . . 30
9.4 Special Rules For Determining Average Actual
Deferral Percentage . . . . . . . . . . . . . . . . 31
9.5 Distribution of Excess ADP Deferrals . . . . . . . 31
9.6 ACP Test . . . . . . . . . . . . . . . . . . . . . 32
9.8 Distribution of Excess ACP Contributions . . . . . 34
9.9 Forfeiture of Excess ACP Contributions . . . . . . 35
9.10 Combined ACP and ADP Test . . . . . . . . . . . . . 35
9.11 Order of Applying Certain Sections of Article . . . 36
ARTICLE X. IN-SERVICE WITHDRAWALS . . . . . . . . . . . . . . 37
10.1 Hardship Withdrawals . . . . . . . . . . . . . . . 37
10.2 Withdrawals After Age 59 1/2 . . . . . . . . . . . . . 38
DII0D240 25879-9 II-iii
<PAGE>
Page
10.3 Withdrawals from Rollover Subaccount . . . . . . . 39
ARTICLE XI. LOANS . . . . . . . . . . . . . . . . . . . . . . 39
11.1 Authority . . . . . . . . . . . . . . . . . . . . . 39
11.2 Loan Application . . . . . . . . . . . . . . . . . 39
11.3 Claims Procedure . . . . . . . . . . . . . . . . . 40
11.4 Loan Limits . . . . . . . . . . . . . . . . . . . . 40
11.5 Adequate Security . . . . . . . . . . . . . . . . . 40
11.6 Interest Rate . . . . . . . . . . . . . . . . . . . 40
11.7 Repayment . . . . . . . . . . . . . . . . . . . . . 40
11.8 Default . . . . . . . . . . . . . . . . . . . . . . 41
11.9 Foreclosure . . . . . . . . . . . . . . . . . . . . 41
11.10 Withdrawals . . . . . . . . . . . . . . . . . . . . 42
11.11 Loan Investment . . . . . . . . . . . . . . . . . . 42
ARTICLE XII. TOP HEAVY PROVISIONS . . . . . . . . . . . . . . 42
12.1 Application . . . . . . . . . . . . . . . . . . . . 42
12.2 Definitions . . . . . . . . . . . . . . . . . . . . 42
12.3 Determination of Top Heavy Status . . . . . . . . . 44
12.4 Minimum Contribution . . . . . . . . . . . . . . . 44
12.5 Limitations on Contributions . . . . . . . . . . . 45
12.6 Other Plans . . . . . . . . . . . . . . . . . . . . 45
ARTICLE XIII. DESIGNATION OF BENEFICIARIES . . . . . . . . . . 46
13.1 Beneficiary Designation . . . . . . . . . . . . . . 46
13.2 Failure to Designate Beneficiary . . . . . . . . . 46
ARTICLE XIV. ADMINISTRATION OF THE PLAN . . . . . . . . . . . 47
14.1 Powers and Duties of the Committee . . . . . . . . 47
14.2 Powers and Duties of Trustee . . . . . . . . . . . 47
14.3 Agents; Report of Committee to Board . . . . . . . 47
14.4 Structure of Committee . . . . . . . . . . . . . . 48
14.5 Adoption of Procedures of Committee . . . . . . . . 48
14.6 Instructions for Disbursements . . . . . . . . . . 48
14.7 Claims for Benefits . . . . . . . . . . . . . . . . 48
14.8 Hold Harmless . . . . . . . . . . . . . . . . . . . 49
14.9 Service of Process . . . . . . . . . . . . . . . . 50
14.10 Investment Adviser . . . . . . . . . . . . . . . . 50
ARTICLE XV. TRANSFER OF PLAN ASSETS TO SUCCESSOR PLAN . . . . 50
ARTICLE XVI. AMENDMENT OR TERMINATION OF THE PLAN AND TRUST . 51
16.1 Right to Amend, Suspend or Terminate Plan . . . . . 51
16.2 Retroactivity . . . . . . . . . . . . . . . . . . . 51
16.3 Notice . . . . . . . . . . . . . . . . . . . . . . 51
16.4 No Further Contributions . . . . . . . . . . . . . 52
16.5 Partial Termination. . . . . . . . . . . . . . . . 52
ARTICLE XVII. GENERAL LIMITATIONS AND PROVISIONS . . . . . . . 53
17.1 All Risks on Members and Beneficiaries . . . . . . 53
DII0D240 25879-9 II-iv
<PAGE>
Page
17.2 Trust Fund is Sole Source of Benefits . . . . . . . 53
17.3 No Right to Continued Employment . . . . . . . . . 53
17.4 Payment on Behalf of Payee . . . . . . . . . . . . 53
17.5 Nonalienation . . . . . . . . . . . . . . . . . . . 53
17.6 Missing Payee . . . . . . . . . . . . . . . . . . . 54
17.7 Required Information . . . . . . . . . . . . . . . 54
17.8 Subject to Trust Agreement . . . . . . . . . . . . 54
17.9 Communications to Committee . . . . . . . . . . . . 54
17.10 Transfers . . . . . . . . . . . . . . . . . . . . . 54
17.11 Communications from the Company or Committee . . . 55
17.12 Fees and Expenses . . . . . . . . . . . . . . . . . 55
17.13 Voting and Tender or Exchange Rights . . . . . . . 55
17.14 Exclusive Benefit of Members and Beneficiaries . . 56
17.15 Additional Powers of the Committee . . . . . . . . 57
DII0D240 25879-9 II-v
<PAGE>
COMPLETE LEASING CONCEPTS, INC. EMPLOYEE
SAVINGS AND PROFIT SHARING PLAN
Effective October 1, 1993
Preamble
THE COMPLETE LEASING CONCEPTS, INC. EMPLOYEE SAVINGS AND
PROFIT SHARING PLAN is designed as an incentive to Employees to
make and continue careers with the Company. The Plan provides
eligible Employees the opportunity to regularly set aside a part
of their before-tax Compensation and thereby build additional
financial security upon Retirement or in the event of Disability,
death or other Termination of Service. The Plan also allows the
Company to make Profit Sharing Contributions to the Plan. The
Before-Tax Contributions, Matching Contributions and Profit
Sharing Contributions made on behalf of each Member are invested
and accumulated in the Trust Fund free of taxation until
distributed when the Member's employment ends.
The Plan, and the Trust Fund established and maintained as
part of the Plan, are intended to constitute a profit sharing
plan and trust with a "cash or deferred arrangement" which are
qualified and exempt from taxation under Code Sections 401(a),
401(k) and 501(a). The Plan and Trust are also intended to
comply with all applicable requirements of ERISA. All provisions
of the Plan, including the Trust Agreement, shall be interpreted
to comply with the applicable requirements of the Code, ERISA and
the Regulations.
All Trust Fund assets, contributions, income and other
additions to the Trust Fund shall be administered, distributed,
forfeited and otherwise governed by the provisions of the Plan
and Trust Agreement.
The Employer was formerly a Participating Company in the
Carolina Freight Corporation Employee Savings Plan (the "Prior
Plan"). The Employer withdrew from the Prior Plan effective
September 30, 1993, and established this Plan.
ARTICLE I. REFERENCES, CONSTRUCTION AND DEFINITIONS
Unless otherwise indicated, all references to articles,
sections and subsections shall be to the Plan as set forth
herein. The Plan and all rights thereunder shall be construed
and enforced in accordance with ERISA and, to the extent that
state law is applicable, the laws of the State of North Carolina.
The article titles and the captions preceding sections and
subsections have been inserted solely as a matter of convenience
and in no way define or limit the scope or intent of any
provisions. When the context so requires, the singular includes
the plural. Whenever used herein and capitalized, the following
DII0D240 25879-9
<PAGE>
terms shall have the respective meaning indicated unless the
context plainly requires otherwise.
1.1 Account: The account (including a Before-Tax Subaccount,
PAYSOP Subaccount, Supplemental Subaccount, Rollover Subaccount,
Profit Sharing Subaccount, Matching Contribution and any other
subaccount established from time to time under such account)
maintained to record the interest of a Member or Beneficiary in
the Trust Fund.
1.2 Accrued Benefit: With respect to each Member, the
balance in such Member's Account as of the applicable Valuation
Date, following adjustment thereof as of such Valuation Date as
provided in Article V.
1.3 Administrator: The Employee appointed by the Committee
pursuant to Section 14.1 to perform such administrative duties as
the Committee designates.
1.4 Affiliate: Any entity affiliated with the Company within
the meaning of Sections 414(b), (c) or (m) of the Code or under
Regulations prescribed under Section 414(o) of the Code, except
that, for purposes of applying the provisions of Article VIII and
Section 12.5 herein with respect to limitations on contributions,
Section 415(h) of the Code shall apply.
1.5 Authorized Leave of Absence: A leave of absence
authorized (pursuant to applicable procedures) by the Company or
pertinent Affiliate under the Company's or Affiliate's personnel
practices, provided that all persons under similar circumstances
are treated alike in the granting of such leaves of absence, and
provided further that the Employee returns within the period
specified in the leave of absence, or (b) an absence required to
be considered an Authorized Leave of Absence by applicable law.
1.6 Before-Tax Contribution: A contribution made by the
Company to the Trust Fund pursuant to a Deferral Election.
1.7 Before-Tax Subaccount: The subaccount kept as part of a
Member's Account (a) to account for amounts previously held in
the Member's "Salary Deferral Account" under the Prior Plan
Provisions, (b) to account for the Before-Tax Contributions, if
any, made on behalf of the Member, and (c) to account for all
income, expenses, gains, losses and other adjustments allocable
to such subaccount.
1.8 Beneficiary: The beneficiary or beneficiaries designated
by a Member pursuant to Article XIII to receive the amount, if
any, payable under the Plan upon the death of such Member, or,
where there has been no such designation or an invalid
designation, the individual or entity, or the individuals or
entities, who will receive such amount pursuant to Article XIII.
DII0D240 25879-9 II-2
<PAGE>
1.9 Board: The Board of Directors of the Company.
1.10 Break in Service: An applicable computation period, as
set forth in Section 1.56, during which an individual has not
completed more than 500 Hours of Service, as determined by the
Committee (or its delegate) in accordance with the Regulations.
Solely for purposes of determining whether a Break in Service has
occurred for eligibility purposes, an individual shall be
credited with the Hours of Service in accordance with Section
1.26 which such individual would have completed but for either
(a) an Authorized Leave of Absence for which such individual is
not paid or entitled to payment or (b) a maternity or paternity
absence, as defined in Section 1.26.
1.11 Code: The Internal Revenue Code of 1986, as now in
effect or as hereafter amended. All citations to sections of the
Code are to such sections as they may from time to time be
amended or renumbered.
1.12 Committee: The "Complete Leasing Concepts, Inc. Employee
Savings and Profit Sharing Plan Committee" appointed by the Board
and as provided for in Article XIV. For purposes of ERISA, the
Committee shall be the "Plan Administrator" and as such is a
named fiduciary of the Plan.
1.13 Company: Complete Leasing Concepts, Inc., a California
corporation, or any entity which succeeds to its rights and
obligations with respect to the Plan.
1.14 Compensation: Cash remuneration actually paid by the
Company to an Employee for Service during the Plan Year which
constitutes "wages" within the meaning of Section 3401(a) of the
Code plus such remuneration which, but for the deferral thereof
pursuant to Sections 125 and 401(k) of the Code, would have been
reported on Form W-2.
An Employee's Compensation in excess of $200,000 (as adjusted
upwards from time to time pursuant to Code Section 415(d)(1))
shall be disregarded. In determining the Compensation of a
Member for purposes of this limitation, the rules of
Code Section 414(q)(6) shall apply, except in applying such
rules, the term "family" shall include only the spouse of the
Member and any lineal descendants of the Member who have not
attained age 19 before the close of the year. If, as a result of
the application of such rules the adjusted $200,000 limitation is
exceeded, then the limitation shall be prorated among the
affected individuals in proportion to each such individual's
Compensation as determined under this Section prior to the
application of this limitation.
1.15 Deferral Election: A Member's written election filed
with the Administrator whereby the Member elects to forgo the
receipt of a specified percentage of Compensation on the
DII0D240 25879-9 II-3
<PAGE>
condition that the Company make Before-Tax Contributions in an
amount equal to the amount of Compensation foregone.
1.16 Deferred Retirement: Termination of Service after the
Member's 65th birthday, other than on account of death.
1.17 Direct Rollover: A payment by the Plan to the eligible
retirement plan specified by the distributee.
1.18 Disability: A physical or mental condition which totally
and permanently prevents such Employee from performing the
regular duties of the Employee's job as the Committee in the
exercise of its sole and absolute discretion shall determine
based upon competent medical evidence satisfactory to the
Committee.
1.19 Disability Retirement: Termination of Service which the
Committee determines, in the exercise of its sole discretion, to
be on account of Disability.
1.20 Early Retirement: Termination of Service, other than on
account of death, on or after a Member's 55th birthday but before
such Member's 65th birthday.
1.21 Effective Date: The "Effective Date of the Plan" is
October 1, 1993, except as otherwise provided with respect to a
particular provision.
1.22 Employee: Except as otherwise provided herein, a person
who is a common law employee of the Company or an Affiliate. In
determining who is an Employee for purposes of this Plan, the
following special provisions shall apply to the extent
applicable:
(a) Each leased employee, within the meaning of Code Section
414(n), shall be treated as an Employee. Notwithstanding the
foregoing, however, if all such leased Employees constitute less
than 20 percent of the non-highly compensated work force, as
defined in Code Section 414(n)(5)(C)(ii), of the Company and
Affiliates, this Section 1.22 shall not apply to any leased
Employee covered by a retirement plan described in Code Section
414(n)(5).
(b) Each individual who is a nonresident alien and who
receives no income from the Company or an Affiliate which
constitutes income from sources within the United States shall
not be treated as an Employee.
1.23 Entry Date: With respect to an Employee, the day on
which such Employee enters the membership of the Plan as provided
in Section 2.1. Entry Dates are the January 1, April 1, July 1,
and October 1 of each Plan Year during which the Plan is in
effect.
DII0D240 25879-9 II-4
<PAGE>
1.24 ERISA: The Employee Retirement Income Security Act of
1974, as now in effect or as hereafter amended. All citations to
sections of ERISA are to such sections as they may from time to
time be amended or renumbered.
1.25 Forfeiture Break in Service: A Member incurs a
Forfeiture Break in Service when the Member incurs five
consecutive Breaks in Service.
1.26 Hours of Service: Hours of Service shall include
(a) each hour for which an Employee is paid or entitled to
payment by the Company or an Affiliate for Service; (b) each hour
for which an Employee is paid or entitled to payment by the
Company for reasons other than for Service (such as vacation,
holiday, illness, incapacity (including Disability), lay-off,
jury duty, military duty or leave of absence); (c) each hour (to
the extent not included in (a) or (b)) for which back pay
(irrespective of mitigation of damages) has been either awarded
or agreed to by the Company or an Affiliate; and (d) each hour
for which an Employee is not actually in Service but is required
to be given credit for Service under any law of the United
States; provided, that in applying paragraph (b) for periods in
which an Employee is not actually in Service, the following
special provisions shall apply:
(a) The number of hours to be credited with respect to any
single continuous period shall be the lesser of: (A) 501 hours,
or (B) the number of hours for which the Employee is paid with
respect to such period;
(b) No hours shall be credited with respect to payments made
to the Employee for the purpose of complying with applicable
workers' compensation, unemployment compensation or disability
insurance laws, or payments solely to reimburse an Employee for
medical or medically related expenses incurred by the Employee;
and
(c) An amount paid to an Employee by the Company or an
Affiliate indirectly, such as by a trust, fund or insurer to
which the Company or an Affiliate makes contributions or pays
premiums, shall be deemed to be paid by the Company or Affiliate.
Notwithstanding the foregoing provisions of this Section 1.26,
solely for the purpose of determining whether an Employee has
incurred a Break in Service, the following special provisions
shall apply:
(a) In addition to hours for which an Employee is entitled to
credit under (a) through (d) above, such Employee shall also
receive credit for each hour with respect to the period that such
Employee is on an Authorized Leave of Absence for which such
Employee is not paid or entitled to payment.
DII0D240 25879-9 II-5
<PAGE>
(b) An Employee who is absent from work for maternity or
paternity reasons shall receive credit for the Hours of Service
which would otherwise have been credited to such Employee but for
such absence, or in any case in which such hours cannot be
determined, 8 Hours of Service per day of such absence. For
purposes of this paragraph (b), an absence from work for mater-
nity or paternity reasons means an absence (i) by reason of the
pregnancy of the Employee, (ii) by reason of a birth of a child
of the Employee, (iii) by reason of the placement of a child with
the Employee in connection with the adoption of such child by
such Employee, or (iv) for purposes of caring for such child for
a period beginning immediately following such birth or placement.
The Hours of Service credited under this paragraph (b) shall be
credited with respect to the Plan Year in which the absence
begins, if the crediting is necessary to prevent a Break in
Service in that Plan Year; in all other cases, such Hours of
Service shall be credited in the following Plan Year.
An Employee with respect to whom the Company or Affiliate
maintains records of hours for which payment is made or due shall
be credited with Hours of Service on the basis of such records.
Any other Employee shall be credited with Hours of Service on the
basis of 45 hours for each week such Employee is paid or entitled
to payment for any part of such week. Subject to the provisions
of paragraph (b) of this Section 1.26, with respect to any
Employee who is entitled to receive credit for Service for a
period such Employee is not paid or entitled to payment, such
Employee shall be credited with 45 Hours of Service for each week
or part thereof during such period. The provisions of this
Section 1.26 shall be applied in accordance with the provisions
of United States Department of Labor Regulations Sections
2530.200b-2(b) and (c), which provisions are incorporated herein
by reference.
1.27 Investment Funds: The separate subfunds of the Trust
Fund maintained for investment purposes, as provided in Article
IV.
1.28 IRS: The United States Internal Revenue Service.
1.29 Matching Contribution: The contribution the Company
makes to the Trust Fund pursuant to Section 3.5.
1.30 Matching Subaccount: The subaccount kept as part of a
Member's Account (a) to account for Matching Contributions and
(b) to account for income, expenses, gains, losses and other
adjustments allocable to this subaccount.
1.31 Member: With respect to a Plan Year, an Employee who is
enrolled in the Plan as provided in Article II and a former
Employee who has an Accrued Benefit for the Plan Year.
DII0D240 25879-9 II-6
<PAGE>
1.32 Normal Retirement: Termination of Service, other than on
account of death, on the Member's 65th birthday (the "Normal
Retirement Age").
1.33 PAYSOP Subaccount: The subaccount kept as part of a
Member's Account (a) to account for amounts previously held in
the Member's "PAYSOP Account" under the Prior Plan Provisions
which were transferred from the former Carolina Freight
Corporation Payroll-Based Employee Stock Ownership Plan to the
Carolina Freight Corporation Employee Savings and Protection Plan
to this Plan and (b) to account for all income, expenses, gains,
losses and other adjustments allocable to such subaccount.
1.34 Plan: Complete Leasing Concepts, Inc. Employee Savings
and Profit Sharing Plan, as now in effect or as hereafter
amended.
1.35 Plan Administrator: The Committee.
1.36 Plan Year: The period beginning on October 1, 1993 and
ending on December 31, 1993. Thereafter, the period beginning on
each January 1 and ending on the first December 31 thereafter.
1.37 Prior Plan Provisions: The text of the Carolina Freight
Corporation Employee Savings and Protection Plan document as
amended and restated effective January 1, 1987, as amended by
amendments dated October 1, 1987, May 3, 1989, June 30, 1989 and
October 1, 1992.
1.38 Profit Sharing Contribution: The contribution the
Company makes to the Trust Fund pursuant to Section 3.4.
1.39 Profit Sharing Subaccount: The subaccount kept as part
of a Member's Account (a) to account for Profit Sharing
Contributions, if any, made by the Company and (b) to account for
income, expenses, gains, losses and other adjustments allocable
to this subaccount.
1.40 Re-employment Commencement Date: The date on which an
Employee first performs an Hour of Service after a Break in
Service.
1.41 Regulations: The applicable regulations issued under the
Code, ERISA or other applicable law by the IRS, the Department of
Labor or any other governmental authority, and any temporary or
other appropriate and effective regulations or rules promulgated
by such authorities pending the issuance of such regulations.
1.42 Retirement: The Member's Normal Retirement, Early
Retirement, Deferred Retirement or Disability Retirement. The
term "Retire" means the act of taking Retirement.
DII0D240 25879-9 II-7
<PAGE>
1.43 Rollover Contribution: The contribution an Employee
makes to the Trust Fund pursuant to Section 3.3, and in
accordance with Code Section 402(c)(5), of a distribution from a
retirement plan qualified under Code Section 401(a).
1.44 Rollover Subaccount: The subaccount kept as part of a
Member's Account (a) to account for amounts previously held in
the Member's "Rollover Account" under the Prior Plan Provisions,
(b) to account for Rollover Contributions, if any, made by an
Employee and (c) to account for income, expenses, gains, losses
and other adjustments allocable to such subaccount.
1.45 Service: Employment with the Company or any Affiliate,
including periods of employment with an Affiliate rendered by an
individual prior to the date the Affiliate became an Affiliate.
Service also includes periods of employment with a predecessor
employer as required by Code Section 414(a) and the Regulations
thereunder. Service may also include any period of a Member's
prior employment by any organization upon such terms and
conditions as the Company may approve and subject to any required
IRS approval.
1.46 Shares: The common stock issued by Carolina Freight
Corporation or any successor corporation thereto which is held in
the Trust Fund.
1.47 Supplemental Matching Contribution: A contribution made
by the Company to the Trust Fund to match Before-Tax
Contributions at such rate and in such amount as the Committee
determines pursuant to Section 3.2 is necessary to meet the ADP
Test under Section 9.3.
1.48 Supplemental Subaccount: The subaccount kept as part of
a Member's Account (a) to account for the Supplemental Matching
Contributions, if any, made on behalf of the Member and (b) to
account for all income, expenses, gains, losses and other
adjustments allocable to such subaccount.
1.49 Surviving Spouse: The survivor of a deceased Member to
whom such deceased Member had been legally married (as determined
by the Committee) immediately before the Member's death.
1.50 Termination of Service: A termination of employment with
the Company or an Affiliate as determined by the Committee in
accordance with reasonable standards and policies adopted by the
Committee; provided that a Termination of Service shall occur on
the earlier of (a) or (b) where:
(a) is the date as of which an Employee quits, is discharged,
Retires or dies, and
DII0D240 25879-9 II-8
<PAGE>
(b) is the first day of absence of an Employee who fails to
return to employment at the expiration of an Authorized Leave of
Absence.
1.51 Trust: The Complete Leasing Concepts, Inc. Employee
Savings and Profit Sharing Plan Trust, created by the Trust
Agreement entered into between the Company and the Trustee.
1.52 Trust Agreement: The agreement by and between the
Company and the Trustee, as it may from time to time be amended.
1.53 Trust Fund: All cash and other assets deposited with or
acquired by the Trustee in its capacity as such hereunder,
together with accumulated income, subject to all liabilities
incurred by the Trustee in its capacity as such and less all
disbursements made in respect thereof.
1.54 Trustee: The entity serving as a trustee under the Trust
Agreement.
1.55 Valuation Date: The last day of each calendar month of
the Plan Year and any other date during the Plan Year specified
by the Committee, upon or as of which the assets and liabilities
of the Trust Fund are valued and Accounts are adjusted, as
prescribed in Article V.
1.56 Year of Service: With respect to an individual, a Year
of Service shall accrue on the date on which such individual
completes at least 1,000 Hours of Service during the applicable
computation period of 12 consecutive months. The initial
computation period shall begin with the date the Employee first
performs an Hour of Service. If an Employee incurs a Break in
Service before completing a Year of Service, such Employee's
initial computation period shall begin with the Employee's Re-
employment Commencement Date. If the Employee does not complete
1,000 Hours of Service during the initial computation period,
subsequent computation periods shall be each 12 month period
beginning January 1 and ending December 31, beginning with the
first January 1 following the date the Employee first performed
an Hour of Service or the Employee's Re-employment Commencement
Date, as the case may be.
ARTICLE II. PARTICIPATION IN THE PLAN
2.1 Participation. Each individual who was a member of the
Carolina Freight Corporation Employee Savings and Protection Plan
immediately prior to the Effective Date of this Plan and who is
an Employee as of the Effective Date shall be enrolled as a
Member of the Plan as of the Effective Date. Each individual who
is an Employee on the Effective Date and who has attained the age
of 21 and completed one Year of Service shall also be enrolled as
a Member of the Plan as of the Effective Date. Each other
DII0D240 25879-9 II-9
<PAGE>
individual who is an Employee on or after the Effective Date
shall be enrolled as a Member of the Plan as of the Entry Date
next following such individual's attainment of age 21 and
completion of one Year of Service, provided, such individual is
an Employee on such Entry Date. Notwithstanding anything
hereinabove to the contrary, in no event shall any individual
become a Member if such individual (a) is a leased employee as
defined in Code Section 414(n)(2), (b) is an Employee of an
Affiliate, or (c) irrevocably elects not to become a Member.
2.2 Participation Upon Re-employment.
(a) If an Employee incurs a Termination of Service after
satisfying the age and service requirements in Section 2.1 above
but before becoming a Member and is subsequently reemployed by
the Company, such Employee may enroll in the Plan and become a
member on the later of the date the Employee again performs an
Hour of Service or the Entry Date that was applicable under
Section 2.1 above.
(b) If a Member incurs a Termination of Service and is
subsequently reemployed by the Company, such individual shall be
eligible to participate in the Plan on the date such individual
again performs an Hour of Service.
2.3 Responsibility for Share Decisions. By participating in
the Plan, each Member shall have accepted the responsibility for
exercising the voting, tender and exchange rights conferred in
Section 17.13 with respect to Shares allocated to the Member's
PAYSOP Subaccount.
2.4 Cessation of Membership. The membership of a Member
shall end when no further benefits are payable to such Member or
on such Member's account under the Plan. No allocation of
contributions shall be made for the benefit of a Member in the
Plan on or after the date on which such Member has a Termination
of Service or otherwise ceases to be an Employee of the Company
and before the day, if any, on which the individual next performs
an Hour of Service as an Employee of the Company, except that
earnings and losses shall be allocated to the Member's Account in
the manner provided in Article V; provided that a Member shall be
entitled to receive an allocation of contributions as if such
Member were an Employee of the Company on the last day of the
Plan Year for the Plan Year during which the Member has a
Termination of Service due to Retirement, Disability or death.
2.5 Union Employees Excluded. Employees covered by a
collective bargaining agreement wherein retirement benefits were
made the subject of good faith bargaining between the
representative of the Employees and the Company shall not be
eligible for participation in the Plan unless the collective
bargaining agreement provides for the continued participation.
An employee shall not be ineligible during the period between the
DII0D240 25879-9 II-10
<PAGE>
selection of the union and the first collective bargaining
agreement which covers him.
ARTICLE III. CONTRIBUTIONS
3.1 Before-Tax Contributions.
(a) Subject to the limitations of Articles VIII and IX, the
Company shall make Before-Tax Contributions for each Member in
accordance with the Member's Deferral Election, if any, and this
Section 3.1. The Company shall deliver such Before-Tax
Contributions to the Trustee as soon as practicable after the end
of the payroll period to which they relate, but in no event shall
Before-Tax Contributions for a Plan Year be delivered to the
Trustee later than 60 days after the end of such Plan Year.
(b) An Employee may file an initial Deferral Election with
the Administrator at any time, and such Deferral Election shall
take effect as soon as practicable, but not before the Employee's
Entry Date. Subject to Section 10.1(c), a Deferral Election
shall remain in effect until terminated. A Deferral Election may
be terminated by the Member by filing with the Administrator the
form provided for that purpose, and the termination shall take
effect as soon as practicable thereafter. After such a
termination, a Member may file a new Deferral Election with the
Administrator at any time, which election will take effect as
soon as practicable after the first Entry Date thereafter. A
Deferral Election shall terminate automatically upon a Member's
Termination of Service. A Member may change the Deferral
Election no more often than once a month and no more than six
times during a Plan Year by filing an amendment with the
Administrator, and such amendment shall become effective as soon
as practicable after the filing of the amendment. A Member's
Deferral Election may be terminated at any time, effective as
soon as practicable following the filing with the Administrator
of notice of such termination on the form provided by the
Administrator for that purpose.
(c) Each Deferral Election shall state the percentage of
Compensation the Member wishes to forgo. A Member may elect to
forgo a percentage of the Member's Compensation, expressed as a
whole percentage, not to exceed 20 percent; provided, however,
that any Member for whom 20 percent of Compensation is greater
than the limit specified in Section 9.2(a) and for whom such
limit falls between 2 whole percentages of the Member's
Compensation, may elect an allocation of such limit in lieu of an
election of a whole percentage of Compensation. The deferral
percentage, or, if elected, the amount obtained by dividing the
limit by the number of pay periods in the Plan Year shall apply
to each paycheck paid while the Deferral Election is in effect.
DII0D240 25879-9 II-11
<PAGE>
3.2 Supplemental Matching Contributions. If, as of the last
day of each Plan Year, the "Average Actual Deferral Percentage",
as defined in Section 9.1(b), for all "Highly Compensated
Employees", as defined in Section 9.1(f), for the Plan Year
ending on that date exceeds the maximum percentage which will
pass the "ADP Test" set forth in Section 9.3 for such Plan Year,
the Company may make a Supplemental Matching Contribution to the
Plan to be allocated to the Supplemental Subaccount of each
Member who was a "Non-highly Compensated Employee" on such day
and for whom Before-Tax Contributions were made for the Plan Year
ending on that date and who was an Employee or on an Authorized
Leave of Absence on such date or who died or Retired during that
year. The Supplemental Matching Contribution shall equal such
amount, which may be a specified amount or a percentage of
compensation, as the Committee determines in its sole discretion
to be necessary to raise the Average Actual Deferral Percentage
of Non-highly Compensated Employees to the lowest percentage
which will cause the Plan to pass the ADP Test for such Plan Year
and shall be allocated based on the Before-Tax Contributions made
on the Member's behalf and not withdrawn under Article X or
refunded under Sections 8.4, 9.2 or 9.5 for the Plan Year. Such
contributions shall be fully vested and nonforfeitable and
treated as Before-Tax Contributions for application of the ADP
Test under Section 9.3.
3.3 Rollover Contributions. An Employee of the Company,
other than a leased employee as defined in Code Section
414(n)(2), or an Employee who irrevocably elects not to become a
Member, shall be permitted to transfer to the Trust Fund, and the
Trustee shall accept: (a) lump sum distributions from another
qualified plan which are eligible for tax-free rollover to a
qualified plan and which are directly transferred from the other
qualified plan to this Plan; (b) lump sum distributions received
by an Employee from another qualified plan which are eligible for
tax-free rollover to a qualified plan and which are transferred
by the Employee to this Plan within 60 days following such
Employee's receipt thereof; (c) amounts transferred to this Plan
from a conduit individual retirement account provided that the
conduit individual retirement account has no assets other than
assets which (1) were previously distributed to the Employee by
another qualified corporate (and, after December 31, 1983,
noncorporate) plan as a lump sum distribution, (2) were eligible
for tax-free rollover to a qualified corporate or noncorporate
plan and (3) were deposited in such conduit individual retirement
account within 60 days of receipt thereof and other than earnings
on said assets; (d) amounts distributed to the Employee from a
conduit individual retirement account meeting the requirements of
clause (c) above and transferred by the Employee to this Plan;
and (e) amounts transferred from another plan in accordance with
Section 17.10. Such transfers shall be subject to the following
provisions: (A) prior to accepting any transfers to which this
Section applies, the Committee may require the Employee to
establish that the amounts to be transferred to this Plan meet
DII0D240 25879-9 II-12
<PAGE>
the requirements of this Section and may also require the
Employee to provide an opinion of counsel satisfactory to the
Committee that the amounts to be transferred meet the
requirements of this Section; (B) such transfer must satisfy the
requirements of Code Section 402(c); (C) permission shall be
given only if, on advice of legal counsel for the Company, the
transfer will not jeopardize the status of the Trust Fund as tax-
exempt under Code Section 501(a) and the status of the Plan as
qualified under Code Section 401(a); (D) no transfer shall be
accepted all or a part of which consists of insurance contracts;
and (E) no transfer of assets subject to the survivor annuity
rules of Code Section 401(a)(11) shall be accepted if the
transfer will cause this Plan to be considered a transferee plan
required to provide automatic survivor benefits. All
contributions under this Section 3.3 shall be nonforfeitable.
The Committee must treat an Employee who has made a Rollover
Contribution to the Trust prior to satisfying the Plan's
eligibility conditions as a Member for all purposes of the Plan
except the Employee is not treated as a Member for purposes of
sharing in Profit Sharing Contributions under the Plan.
3.4 Profit Sharing Contributions. The Company may, in its
sole discretion, elect to make a Profit Sharing Contribution to
the Plan. The Profit Sharing Contribution shall be allocated
among all eligible Members for the Plan Year in proportion to
Compensation. For purposes of this Section only, an eligible
Member shall be each Member who has completed at least 1,000
Hours of Service for the Company and is an Employee of the
Company on the last day of the Plan Year or who incurred a
Termination of Service during the Plan Year due to Retirement,
Disability or death. Such Member shall be eligible to receive an
allocation hereunder whether or not the Member elects to defer a
portion of the Member's income to this or any other tax-qualified
plans sponsored by the Company. Each Member's share of the
Profit Sharing Contribution shall be allocated to the Member's
Profit Sharing Subaccount.
3.5 Matching Contributions. Subject to the limitations of
Articles VIII and IX, the Company shall make a Matching
Contribution for each Member who made Before-Tax Contributions.
The Matching Contribution for the Member shall be in an amount
equal to 25% of the first 5 percent of Compensation that the
Member elects to defer pursuant to Section 3.1. The Matching
Contribution may be adjusted periodically by the Board.
3.6 Reversion of Contributions.
(a) Qualification. Notwithstanding any other provisions
herein contained, this Plan is entered into on the conditions
that the Plan and the Trust Agreement shall be approved by the
IRS as a qualified and exempt plan and trust under the provisions
of the Code and Regulations so that contributions to the Trust
DII0D240 25879-9 II-13
<PAGE>
may be deducted for Federal income tax purposes, within the
limits of the Code and Regulations, and be nontaxable to Members
when contributed. If such approval should be denied for any
reason (including failure to comply with any conditions for such
approval imposed by the IRS), contributions made after the
execution of the Trust Agreement and prior to such denial and all
assets in the Trust Fund shall be returned to the Company,
without any liability to any person, within one year after the
date of denial of such approval.
(b) Mistake of Fact. Notwithstanding any other provisions
herein contained, if any contribution is made due to a mistake of
fact, such contribution shall upon the direction of the Company,
which shall be given in conformity with the provisions of ERISA,
be returned to the Company or the parties who made it, as
directed by the Company, without liability to any person.
(c) Deduction. Notwithstanding any other provisions herein
contained, all contributions are hereby expressly conditioned
upon their deductibility under Section 404 of the Code and
Regulations, as amended from time to time, and if the deduction
for any contribution is disallowed in whole or in part, then such
contribution (to the extent the deduction is disallowed) shall
upon direction of the Committee, which shall be given in
conformity with the provisions of ERISA, be returned, without
liability to any person, within one year after such disallowance.
3.7 Company Not Responsible for Adequacy of Trust Fund.
Except as and if required by applicable law, neither the Board,
the Company, the Committee, any member of the Committee nor the
Trustee shall be responsible for the adequacy of the Trust Fund
to meet and discharge Plan liabilities.
ARTICLE IV. TRUST FUND
4.1 Establishment of Investment Funds. A l l m o n i e s ,
securities or other property received as contributions under the
Plan shall be delivered to the Trustee under the Trust, to be
managed, invested, reinvested and distributed for the exclusive
benefit of the Members and their Beneficiaries in accordance with
the Plan, the Trust Agreement and any agreement with an insurance
company or other financial institution constituting a part of the
Plan and Trust. By written notice to the Trustee, the Committee
may delegate to itself the authority to exercise investment
management responsibilities over all or any portion of the Trust
Fund. The Trustee, at the direction of the Committee, shall
cause to be established or maintain one or more of the following
types of Investment Funds for the investment of the Trust Fund,
provided that the Committee shall have the sole discretion to
direct the Trustee to change, add or eliminate any such funds
from time to time.
DII0D240 25879-9 II-14
<PAGE>
(a) Income Fund. A low risk investment fund, the assets of
which consist primarily of one or more guaranteed income
contracts issued by an insurance company, one or more
certificates of deposit issued by a national bank or savings and
loan association, one or more direct obligations of the United
States government or any agency thereof, or one or more
obligations guaranteed as to principal and interest by the United
States government or an agency thereof. It may also include
contracts purchased from a financial institution intended to
limit the volatility of the Plan investment results.
(b) Equity Fund. An investment fund with a higher-than-
average risk that consists primarily of such capital, common or
other forms of equity stocks, or securities convertible into
common or capital stock as may be purchased pursuant to the Trust
Agreement.
(c) Balanced Fund. An investment fund with below average
risk that invests primarily in common stocks and fixed income
securities.
(d) Bond Fund. An investment fund that consists primarily of
fixed income securities.
(e) GIC Fund. An investment fund that consists primarily of
investments in guaranteed income contracts.
(f) Stock Fund. Prior to December 31, 1990, Members could
elect to invest contributions in this fund pursuant to Prior Plan
Provisions. This fund is maintained by the Trustee and consists
primarily of shares of Carolina Freight Corporation as well as
such amount of cash and cash equivalents as is necessary to
manage the fund.
4.2 Investment of PAYSOP Subaccount. A Member's PAYSOP
Subaccount shall at all times be invested in the Stock Fund.
4.3 Investment Direction. A Member may elect, in such manner
and form as the Administrator prescribes, to direct the
investment of contributions allocated to such Member's Before-
Tax, Supplemental, Matching, Profit Sharing and Rollover
Subaccounts, in the various Investment Funds established by the
Trustee; provided, however, that a Member may not direct the
investment of contributions in the Stock Fund. In the event an
effective investment direction is not made by the Member pursuant
to this Section 4.3, all such contributions shall be invested in
the Income Fund. A Member may direct the investment of such
contributions in multiples of 10 percent of the amount of the
contribution. All investment directions given by a Member shall
be deemed to be a continuing direction until changed. A Member
may change such Member's investment direction, in such manner and
form as prescribed by the Administrator, no more often than once
a month and no more than six times during a Plan Year, and such
DII0D240 25879-9 II-15
<PAGE>
new investment direction shall become effective as soon as
practicable following the receipt by the Administrator of such
direction.
4.4 Transfers of Investments. A Member may elect in such
manner and form as the Administrator prescribes, to transfer
amounts in such Member's Before-Tax, Supplemental, Matching,
Profit Sharing and Rollover Subaccounts (but not PAYSOP
Subaccount) into and out of the various Investment Funds;
provided, however, that no amounts may be transferred into the
Stock Fund. The minimum amount that can be transferred out of
any one Investment Fund is 10 percent of the value of the
Member's Account, op if less, the entire amount invested in such
Investment Fund.
4.5 Loans. A loan to a Member under Article XI shall be from
such Member's Account and shall be considered an earmarked
investment of the Member's Account. A loan to a Member shall
reduce the amounts invested in the Investment Funds on a pro rata
basis and shall be charged against each subaccount invested in
each Fund on a pro rata basis. Loan repayments shall reduce the
amount of the loan to the extent it represents principal and
shall be invested in the Investment Funds in accordance with the
Member's then existing investment direction. Repayments shall be
credited to the Member's Subaccounts on a pro rata basis.
ARTICLE V. ALLOCATIONS AND ADJUSTMENTS
5.1 Allocations and Adjustments.
(a) Forfeiture Allocation. Subject to any restoration
allocation required under Article VI, the Committee will allocate
Member forfeitures which occur pursuant to Section 6.10 or 17.6
to first reduce the Company's Matching Contributions for the Plan
Year in which the forfeiture occurs and then to reduce the
Company's Profit Sharing Contributions for the Plan Year in which
the forfeiture occurs.
(b) Revaluation of Trust Fund. The assets of the Trust Fund
shall be revalued by the Trustee monthly on the last day of each
calendar month, and in making such revaluation the Trustee shall
take into account earnings or losses of the Trust Fund net of
reasonable expenses and capital appreciation or depreciation in
such assets whether or not realized. The method of revaluation
shall be determined by the Trustee, and shall be followed with
reasonable consistency from month to month. The aggregate amount
credited to the Accounts of all Members having Accounts in the
Trust Fund shall be adjusted monthly as of each Valuation Date so
as to be equal to the value of such assets on such date. Before
making the monthly adjustments, the Accounts of Members shall be
reduced by any payments made therefrom during the previous month.
DII0D240 25879-9 II-16
<PAGE>
(c) Adjustment of Accounts. The amounts in a Member's Before
Tax Subaccount, PAYSOP Subaccount, Rollover Subaccount, Matching
Subaccount, Profit Sharing Subaccount and Supplemental Subaccount
shall at all times be separately accounted for by allocating
investment gains and losses, withdrawals, distributions, and
loans separately among such subaccounts pro rata on a reasonable
and consistent basis.
5.2 Reports. After completing the allocations provided for
in Section 5.1, the Committee shall prepare a statement which
shows the value of each Account then maintained by the Trustee
for a Member, or where appropriate, for a Beneficiary. The
Committee also shall prepare quarterly an Account statement for
each Member and, where appropriate, each Beneficiary, which may
be forwarded to that person and which shows the contributions to
the Account of a Member for the relevant period of the Plan Year
and the then value of that Account.
5.3 Corrections. If an error or omission is discovered in
any Account, the Committee shall make such adjustment as it deems
necessary to remedy in an equitable manner such error or omission
in such Account not later than the last day of the Plan Year in
which the error or omission is discovered.
ARTICLE VI. VESTING
6.1 Vesting.
(a) A Member shall at all times be fully vested in the
Member's Before-Tax Subaccount, Supplemental Subaccount and
Rollover Subaccount.
(b) Except as otherwise provided in Sections 6.3 through 6.6,
a Member's nonforfeitable percentage of the Member's Matching
Subaccount and Profit Sharing Subaccount shall be determined in
accordance with the following vesting schedule:
Years of Service Percent Vested
Less than 3 years 0%
At least 3 years 20%
At least 4 years 40%
At least 5 years 60%
At least 6 years 80%
At least 7 years or more 100%
(c) For each year that the Plan is a Top-Heavy Plan (as that
term is defined in Section 12.3), the following vesting schedule
shall apply and shall be treated as a Plan amendment to this
Plan:
Years of Service Percent Vested
DII0D240 25879-9 II-17
<PAGE>
Less than 1 year 0%
At least 2 years 20%
At least 3 years 40%
At least 4 years 60%
At least 5 years 80%
At least 6 years or more 100%
The vesting provisions of Section 6.1(b), rather than the top-
heavy vesting provisions of this Section, will apply to any
Member who does not perform an Hour of Service after the Plan
becomes Top-Heavy.
6.2 Included Years of Service - Vesting. For purposes of
determining "Years of Service" with respect to vesting, the Plan
takes into account all Years of Service an Employee completes
with the Company or an Affiliate except:
(a) For the sole purpose of determining a Member's
nonforfeitable percentage of the Member's Account which accrued
for the Member's benefit prior to a Forfeiture Break in Service,
the Plan disregards any Year of Service after the Member first
incurs a Forfeiture Break of Service.
(b) Any Year of Service before the Member attained the age of
18.
(c) Any Year of Service during the period the Company did not
maintain this Plan or a predecessor plan.
(d) In the case of a Member who is 0% vested in the Member's
Account at the time the Member has a Break in Service, any Year
of Service before a Break in Service if the number of consecutive
Breaks in Service equals or exceeds the greater of 5 or the
aggregate number of the Years of Service prior to the Break in
Service.
(e) In the case of any Member who has a 1 year Break in
Service, no Year of Service before such break shall be taken into
account until the Member completes a Year of Service after the
Member's re-employment.
6.3 Normal Retirement. Notwithstanding the vesting schedule
in Section 6.01, a Member's Account is one hundred percent (100%)
nonforfeitable upon and after attaining the Normal Retirement Age
if the Member is an Employee on or after that date. An Employee
may terminate the Member's employment and retire for the purposes
hereof upon the Member's Normal Retirement Date, and all amounts
credited to such Member's Account shall be paid to him as set
forth in Article 7. If a Member continues as an Employee after
the Member's Normal Retirement Date, the Member shall continue to
be treated in all respects as a Member until the Member's actual
retirement.
DII0D240 25879-9 II-18
<PAGE>
6.4 Disability. A Member's Account will be one hundred
percent (100%) nonforfeitable if the Member's Termination of
Service is a result of the Member's Disability.
6.5 Death. A Member's Account will be one hundred percent
(100%) nonforfeitable upon the Member's death.
6.6 Distribution to Partially-Vested Member. If pursuant to
Article 7, a partially-vested Member receives a distribution of
the entire amount of the Member's vested Account before the
Member incurs a Forfeiture Break in Service, the distribution
will result in an immediate forfeiture of the nonvested portion
of the Member's Account.
6.7 Restoration of Forfeited Account Balance Upon Re-
employment.
(a) A partially-vested Member who is re-employed as an
Employee after receiving a distribution of the entire amount of
the Member's vested Account may repay to the Trustee the amount
of the distribution attributable to the Member's Profit Sharing
and Matching Subaccounts unless the Member no longer has a right
to restoration because:
(1) Five (5) years have elapsed since the Member's first
re-employment date as an Employee following the cash-out
distribution; or
(2) The Member incurred a Forfeiture Break in Service.
If a partially-vested Member makes the distribution repayment,
the Committee must restore the Member's Profit Sharing and
Matching Subaccounts to the same dollar amount as the dollar
amount of the Member's Profit Sharing and Matching Subaccounts on
the Valuation Date immediately preceding the date of the cash-out
distribution, unadjusted for any gains or losses occurring
subsequent to that Valuation Date. Restoration of the Member's
Profit Sharing and Matching Subaccounts includes restoration of
all Code Sect. 411(d)(6) protected benefits with respect to the
restored Profit Sharing and Matching Subaccounts in accordance
with applicable Regulations.
(b) The Committee will restore the Profit Sharing and
Matching Subaccounts as of the Valuation Date coinciding with or
immediately following the repayment. To restore the Member's
subaccounts, the Committee, to the extent necessary, will
allocate to the Member's subaccounts:
(1) The amount, if any, of Member forfeitures the
Committee would otherwise allocate under Section 5.1(a);
(2) The amount, if any, of the Trust Fund net income or
gain for the Plan Year; and
DII0D240 25879-9 II-19
<PAGE>
(3) The Company Profit Sharing Contributions and special
contributions from the Company for the purpose of restoration.
6.8 Zero Percent (0%) Vested Member. A Member who is zero
percent vested in the Member's Profit Sharing and Matching
Subaccounts on the date of such Member's Termination of Service
shall be deemed to have received a distribution of the entire
non-forfeitable balance in such Subaccounts on the date of such
Termination of Service. For purposes of applying the restoration
provisions of Section 6.7, the Committee will treat the zero
percent vested Member as repaying the Member's deemed
distribution on the first date of the Member's re-employment as
an Employee.
6.9 Segregated Accounts.
(a) Segregated Accounts for Repaid Amount. Until the
Committee restores the Member's Profit Sharing and Matching
Subaccounts, as described in Section 6.7, the Trustee will invest
the cash-out amount the Member has repaid in segregated
subaccounts maintained solely for that Member. The Trustee must
invest the amount in the Member's segregated subaccounts in
Federally insured interest bearing savings account(s) or time
deposit(s) (or a combination of both), or in other fixed income
investments. Until commingled with the balance of the Trust Fund
on the date the Committee restores the Member's Profit Sharing
and Matching Subaccounts, the Member's segregated subaccounts
remain a part of the Trust, but it alone shares in any income it
earns and it alone bears any expense or loss it incurs. Unless
the repayment qualifies as a Rollover Contribution, the Committee
will direct the Trustee to repay to the Member as soon as is
administratively practicable the full amount of the Member's
segregated subaccounts if the Committee determines the Member
does not have the right to have the Members accounts restored
pursuant to Section 6.7.
(b) Segregated Accounts for Pre-Forfeiture Break in Service
Accounts. If a Member re-enters the Plan subsequent to incurring
a Forfeiture Break in Service, the Trustee must maintain separate
subaccounts for the Member's pre-Forfeiture Break in Service
Profit Sharing and Matching Subaccounts, unless the Member is
100% vested in the Member's pre-Forfeiture Profit Sharing and
Matching Subaccounts.
6.10 Forfeiture Occurs. A Member's forfeiture, if any, of the
Member's Profit Sharing and Matching Subaccounts occurs under the
Plan on the earlier of:
(a) The last day of the Plan Year in which the Member first
incurs a Forfeiture Break in Service; or
(b) The last day of the Plan Year in which the entire vested
portion of the Member's Profit Sharing and Matching Subaccounts
DII0D240 25879-9 II-20
<PAGE>
is distributed or deemed to be distributed as provided in Section
6.8.
A Member does not forfeit any portion of the Member's Profit
Sharing or Matching Subaccounts for any other reason or cause
except as expressly provided by this Section 6.10 or as provided
under Section 17.6.
6.11 Amendment to Vesting Schedule. Though the Company
reserves the right to amend the vesting schedule at any time, the
Committee will not apply the amended vesting schedule to reduce
the nonforfeitable percentage of any Member's Profit Sharing and
Matching Subaccounts as of the later of the date the Company
adopts the amendment, or the date the amendment becomes
effective) to a percentage less than the nonforfeitable
percentage computed under the Plan without regard to the
amendment. An amended vesting schedule will apply to a Member
only if the Member receives credit for at least one Hour of
Service after the new schedule becomes effective. If the Company
makes a permissible amendment to the vesting schedule, each
Member having at least three (3) Years of Service with the
Employer may elect to have the percentage of the Member's
nonforfeitable Profit Sharing and Matching Subaccounts computed
under the Plan without regard to the amendment. The Member must
file the Member's election with the Administrator within sixty
(60) days of the latest of (a) the Company's adoption of the
amendment; (b) the effective date of the amendment; or (c) the
Member's receipt of a copy of the amendment. The Administrator,
as soon as practicable, must forward a true copy of any amendment
to the vesting schedule to each affected Member, together with an
explanation of the effect of the amendment, the appropriate form
upon which the Member may make an election to remain under the
vesting schedule provided under the Plan prior to the amendment
and notice of the time within which the Member must make an
election to remain under the prior vesting schedule. The
election described in this Section 6.11 does not apply to a
Member if the amended vesting schedule provides for vesting at
least as rapid at all times as the vesting schedule in effect
prior to the amendment. For purposes of this Section 6.11, an
amendment to the vesting schedule includes any Plan amendment
which directly or indirectly affects the computation of the
nonforfeitable percentage of an Employee's rights to the Member's
Profit Sharing and Matching Subaccounts. Furthermore, the
Committee must treat any shift in the vesting schedule, due to a
change in the Plan's top-heavy status, as an amendment to the
vesting schedule for purposes of this Section 6.11.
ARTICLE VII. PAYMENT OF BENEFITS
7.1 Entitlement. Upon a Member's Termination of Service,
such Member, or in the event of such Member's death, such
Member's Beneficiary, shall become entitled to such Member's
DII0D240 25879-9 II-21
<PAGE>
Accrued Benefit. In the event the Member dies after Termination
of Service but prior to payment of such Member's benefit, such
Member's Accrued Benefit shall be paid to such Member's
Beneficiary.
7.2 Method of Distribution. Subject to Section 7.3(a),
distribution of a Member's Accrued Benefit shall be made in one
single sum from the Trust Fund.
7.3 Benefit Commencement. The payment of the Accrued Benefit
to which a Member, or, in the event of the Member's death, such
Member's Beneficiary, is entitled shall be made as soon as
practicable after such Member incurs a Termination of Service;
provided, however, in no event shall the payment be made more
than 60 days after the end of the calendar month in which the
Member incurs the later of the Member's Termination of Service or
the date the Administrator receives satisfactory evidence of the
Member's death or Disability, if applicable. Notwithstanding the
foregoing, the following special rules shall apply:
(a) If such Member has not reached age 65 and such Member's
Accrued Benefit is more than $3,500, accelerated distribution may
not be made without such Member's consent. If the Member does
not consent to distribution prior to attaining age 65, then
distribution shall be made as soon as practicable after the close
of the Plan Year in which such Member attains age 65, but in no
event later than 60 days following the close of such Plan Year.
(b) In no event shall distribution of a Member's Accrued
Benefit be made later than the April 1 next following the
calendar year in which the Member attains age 70 1/2.
7.4 Rollovers.
(a) For purposes of this Article VII and as otherwise used in
this Plan, the following terms shall have the meaning set forth
below.
(1) "Distributee" shall mean a Member, former Employee,
the Member's or former Employee's spouse or former spouse who
is the alternate payee under a Qualified Domestic Relations
Order, as defined in section 414(p)(8) of the Code, and the
surviving spouse of a Member or former Employee.
(2) "Eligible Rollover Distribution" shall mean any
distribution of all or any portion of the balance of the
Distributee's Account, except that an Eligible Rollover
Distribution does not include: any distribution that is one
of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint
life expectancies) of the Distributee and the Distributee's
designated beneficiary, or for a specified period of 10 years
DII0D240 25879-9 II-22
<PAGE>
or more; any distribution to the extent such distribution is
required under section 401(a)(9) of the Code; and the portion
of any distribution that is not includable in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities pursuant to
Section 402(e)(4)).
(3) "Eligible Retirement Plan" shall mean an Individual
Retirement Account described in section 408(a) of the Code, an
Annuity Plan described in section 403(a) of the Code, an
Individual Retirement Annuity described in Section 408(b)
(other than an endowment contract), or a Qualified Trust,
described in section 401(a) of the Code. However, in the case
of an Eligible Rollover Distribution to the surviving spouse,
an Eligible Retirement Plan is an Individual Retirement
Account or Individual Retirement Annuity.
(b) Notwithstanding any provision of the Plan to the
contrary, a Distributee may elect, at the time and in the manner
prescribed by the Committee, to have any portion of an Eligible
Rollover Distribution paid directly to an Eligible Retirement
Plan.
(c) The Committee may prescribe reasonable procedures for a
distributee to elect a Direct Rollover pursuant to this Section,
and may require that the Distributee provide such information and
documentation as may be reasonably necessary to accomplish a
Direct Rollover. The Administrator shall not be required to
execute a Direct Rollover of a portion of the balance to the
credit of the Distributee if such portion is not equal to at
least $500. The Administrator shall not be required to execute a
Direct Rollover with respect to Eligible Rollover Distributions
of a Distributee during a year that are reasonably expected to
total less than $200. Furthermore, the Administrator shall not
be required to divide an Eligible Rollover Distribution with
respect to a Distributee into separate distributions to be paid
to two or more Eligible Retirement Plans in Direct Rollovers.
(d) A Distributee who fails to make an affirmative election
under this Section shall be treated as having not made an
election for a Direct Rollover, provided the Distributee has
received a written explanation of the Direct Rollover option
within a reasonable time before the Eligible Rollover
Distribution. In such event, the Committee shall make
distributions in accordance with the provisions of Article VII.
7.5 Medium of Payment. Distribution of a Member's Accrued
Benefit shall be made entirely in cash; provided, however, that
distribution of a Member's PAYSOP Subaccount shall be made
entirely in whole Shares, with the value of any fractional
interest in Shares paid in cash, unless the Member elects to
receive such amounts in cash, in which case the Shares allocated
to the Member's PAYSOP Subaccount immediately prior to the date
DII0D240 25879-9 II-23
<PAGE>
of distribution shall be converted to cash and the amount that
the Member shall receive is the fair market value of the Shares
as of the date the Shares are converted to cash.
7.6 Applicable Valuation Date. The Accrued Benefit to be
distributed pursuant to this Article VII, excluding any Shares
specifically allocated to the Member's Account which the Member
does not elect to receive in cash, shall be based upon the value
of the Member's Account as of the Valuation Date immediately
following the Member's Termination of Service, adjusted for
contributions to and distributions from the Member's Account
after that date and before the date of distribution. Dis-
tributions required in connection with contributions allocated
after the distribution of a Member's Account shall be made as
soon as administratively practicable.
7.7 Distribution of PAYSOP Subaccount. Notwithstanding any
provision of the Plan to the contrary, in no event shall any
distribution of a Member's PAYSOP Subaccount be made before the
end of the 84th month beginning after the month in which the
Shares were originally allocated to the Member's account, except
in accordance with Code Section 409(d).
7.8 Limitation on Distributions. Notwithstanding any other
provisions of this Plan, any distribution from this Plan shall be
made in accordance with the requirements of Code Section
401(a)(9) and Regulations promulgated under that Section, and
such requirements shall take precedence over any contrary
provisions in this Plan.
ARTICLE VIII. MAXIMUM ACCOUNT ADDITIONS
8.1 Application. The provisions of this Article VIII shall
govern notwithstanding any other provisions of the Plan.
8.2 Definitions. For purposes of this Article and as
otherwise used in this Plan, the following terms shall have the
meaning set forth below.
(a) "Annual Addition" shall mean the following amounts which,
without regard to this Article, are to be credited to the
Member's Account for any Limitation Year: (1) Company
contributions, including Before-Tax Contributions, Matching
Contributions and Profit Sharing Contributions and (2) such other
amounts as may be required to be included under the Code Section
415 and the Regulations thereunder. "Annual Addition" shall not
include, without limitation, Rollover Contributions.
(b) "Limitation Year" shall mean the 12-month period
beginning January 1 and ending the next following December 31.
DII0D240 25879-9 II-24
<PAGE>
(c) "415 Compensation" shall mean, as to each Employee, the
total compensation from the Company, including overtime and
bonuses, which is paid to an Employee. For purposes of applying
the limitations under Code Section 404(a), 415 and 416, "415
Compensation" shall include: wages, salaries, fees for
professional services and other amounts received for services
actually rendered in the course of employment with the Company
(including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips and bonuses)
paid during the Limitation Year and shall exclude:
(1)(A) Company contributions to a deferred compensation plan
which are not includable in the Employee's gross income for the
taxable year in which contributed, (B) Company contributions made
on behalf of the Employee to a simplified employee pension plan
to the extent such contributions are deductible from the
Employee's gross income, (C) any distribution from a plan of
deferred compensation, regardless of whether such amounts are
includable in the gross income of the Employee when distributed,
except however, any amounts received by an Employee pursuant to
an unfunded nonqualified plan to the extent such amounts are
includable in the gross income of the Employee; (2) amounts
realized from the exercise of a nonqualified stock option, or
amounts realized when restricted stock (or property) held by an
Employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture; (3) amounts realized
from the sale, exchange, or other disposition of stock acquired
under a qualified stock option; and (4) other amounts which
receive special tax benefits, such as premiums for group term
life insurance (but only to the extent that the premiums are not
includable in the gross income of the Employee), or contributions
made by the Company (whether or not under a salary reduction
agreement) towards the purchase of any annuity contract described
in Code Section 403(b) (whether or not the contributions are
excludable from the Employee's gross income); provided, however,
415 Compensation in excess of $200,000 (as such amount may be
adjusted for inflation from time to time for a Limitation Year
under Code Sections 401(a)(17) and 415(d)) in any Limitation Year
shall be disregarded.
(d) "Defined Benefit Plan Fraction" shall mean, as to any
Member in any Limitation Year, a fraction (1) the numerator of
which is such Member's projected annual benefit under a defined
benefit plan maintained by the Company and any other defined
benefit plan required to be aggregated with such plan under Code
Section 415(f) (determined as of the end of the Limitation Year),
and (2) the denominator of which is the lesser of (A) the product
of 1.25 times $90,000 (as adjusted upward from time to time
pursuant to Code Section 415(d)), or (B) the product of 1.4 times
100 percent of such Member's highest average 415 Compensation for
the consecutive Limitation Years during which such person has
been a Member of this Plan or a participant in any other defined
DII0D240 25879-9 II-25
<PAGE>
benefit plan sponsored by the Company or for any 3 such
consecutive Limitation Years, whichever period is less.
(e) "Defined Contribution Plan Fraction" shall mean, as to
any Member in any Limitation Year, a fraction (1) the numerator
of which is the sum of all Annual Additions to such Member's
Account, and all annual additions (as defined in Code Section
415(c)(2)) to any account of such Member in any other defined
contribution plan required to be aggregated with this Plan under
Code Section 415(f), as of the close of such Limitation Year, and
(2) the denominator of which is the sum of the lesser of the
following amounts determined for such Limitation Year and for
each prior Limitation Year during which the Member was an
Employee: (A) the product of 1.25 times $30,000 (mr, if greater,
one-fourth of the $90,000 limit under Code Section 415(b)(1)(A)
as adjusted upward from time to time for a Limitation Year under
Code Section 415(d)); or (B) the product of 1.4 times 25 percent
of the Member's 415 Compensation for each such Limitation Year.
8.3 General Rules.
(a) The Annual Addition credited to a Member's Account for
any Limitation Year may not exceed the lesser of (1) $30,000 (or,
if greater, 25 percent of the dollar limitation in effect under
Section 415(b)(1)(A) of the Code), or (2) 25 percent of the
Member's 415 Compensation for the Limitation Year.
(b) If a Member is also a participant or was a participant in
one or more defined benefit plans, the sum of such Member's
Defined Benefit Plan Fraction and Defined Contribution Plan
Fraction shall not exceed 1.0 for each Limitation Year.
(c) For purposes of this Article VIII, all defined
contribution plans maintained by the Company and any Affiliate
shall be treated as one plan and all defined benefit plans
maintained by the Company and any Affiliate shall be treated as
one plan, as provided in Code Section 415(f).
8.4 Order of Reduction.
(a) Any adjustment required to satisfy the limitations set
forth in Code Section 415 as a result of a Member's participation
in another defined contribution plan or defined benefit plan,
shall be made first to this Plan and then to annual additions
under any defined benefit plan maintained by the Company.
(b) If the Committee determines that the allocation of
contributions, if any, to the Account of a Member will cause the
Annual Addition for that Member to exceed the limitations set
forth in Section 8.3 and that an adjustment under this Plan is
required to satisfy Section 8.3, the excess amounts shall be held
unallocated in a suspense account for the Limitation Year and
allocated and reallocated in the next Limitation Year to all of
DII0D240 25879-9 II-26
<PAGE>
the Members of the Plan. The excess amounts must be used to
reduce Company contributions for the next Limitation Year (and
succeeding Limitation Years, as necessary) for all of the Members
in the Plan. For purposes of this Section, excess amounts may
not be distributed to a Member or former Member. If the
allocation or reallocation of the excess amounts in a later
Limitation Year causes the limitations of Code Section 415 to be
exceeded with respect to each Plan Member for the Limitation
Year, then these amounts must be held unallocated in the suspense
account. If the suspense account is in existence at any time
during a particular Limitation Year other than the Limitation
Year described in the preceding sentence, all amounts in the
suspense account must be allocated and reallocated to the
Members' Accounts (subject to the limitations of Code Section
415) before any Company contributions which would constitute
annual additions may be made to the Plan for that Limitation
Year.
ARTICLE IX. SPECIAL DISCRIMINATION RULES
9.1 Definitions. For purposes of this Article and as
otherwise used in this Plan, the following terms shall have the
meanings set forth below.
(a) "Actual Contribution Percentage" or "ACP" shall mean the
ratio (expressed as a percentage) of (1) the sum of the Matching
Contributions made on behalf of a Member for the Plan Year and,
to the extent permitted in Treasury Regulations and elected by
the Company, the Member's Qualified Elective Deferrals, to (2)
the Member's 415 Compensation, as defined in Section 8.2(c), for
that period of the Plan Year for which such person is a Member.
The Company, on an annual basis, may elect to include or not to
include Qualified Elective Deferrals in computing the ACP for a
Plan Year. Furthermore, for any Plan Year in which the Plan is a
Top Heavy Plan, the Company may elect on an annual basis to count
a Member's Matching Contributions toward satisfying the required
minimum contribution under Section 12.4(a) (minimum contribution
for non-key employees in a top-heavy plan) in lieu of including
such contributions in the ACP.
(b) "Actual Deferral Percentage" or "ADP" shall mean the
ratio (expressed as a percentage) of the sum of Before-Tax
Contributions and Supplemental Matching Contributions made for
the Plan Year on behalf of an Employee eligible to enroll in the
Plan pursuant to Article II (excluding any "Excess $7,000
Deferrals" by a "Non-highly Compensated Employee") to the
Member's 415 Compensation for that period of the Plan Year for
which such person is a Member.
(c) "Average Actual Contribution Percentage" shall mean the
average (expressed as a percentage) of the Actual Contribution
DII0D240 25879-9 II-27
<PAGE>
Percentages of the Members in a group. The percentage shall be
rounded to the nearest one-hundredth of one percent.
(d) "Average Actual Deferral Percentage" shall mean the
average (expressed as a percentage) of the Actual Deferral
Percentages of such Employees in a group. The percentage shall
be rounded to the nearest one-hundredth of one percent.
(e) "Combined ADP and ACP Test" shall have the meaning set
forth in Section 9.10.
(f) "Excess $7,000 Deferrals" shall have the meaning set
forth in Section 9.2.
(g) "Excess ACP Contributions" shall have the meaning set
forth in Section 9.8.
(h) "Excess ADP Deferrals" shall have the meaning set forth
in Section 9.5.
(i) "Family Member" shall mean, with respect to any "Highly
Compensated Employee" who was a 5 percent or more owner of the
Company or one of the 10 highest paid Highly Compensated
Employees during the current Plan Year, the Employee's spouse, a
lineal ascendant or descendant, or a spouse of a lineal ascendant
or descendant.
(j) "Highly Compensated Employee" shall mean any Employee
eligible to participate in the Plan pursuant to Article II who,
during the current or prior Plan Year:
(1) was a 5 percent or more owner of the Company;
(2) received 415 Compensation from the Company or an
Affiliate in excess of $75,000 for the Plan Year;
(3) received 415 Compensation from the Company or an
Affiliate in excess of $50,000 for the Plan Year and was
among the "top paid group" (as defined in Code Section
414(q)) of Employees during the Plan Year; or
(4) was an officer receiving 415 Compensation in
excess of 50 percent of the amount specified in Code
Section 415(b)(1)(A) for the Plan Year. For this
purpose no more than 50 Employees shall be deemed
officers.
For purposes of the definition of "Highly Compensated
Employee," the $50,000 and $75,000 limitations referred to in
this Section shall be adjusted in the same manner as the
limitations specified in Code Section 415(b)(1)(A). Finally, the
term "Highly Compensated Employee" shall be determined in
DII0D240 25879-9 II-28
<PAGE>
accordance with Section 414(q) of the Code and Regulations
thereunder.
(k) "Maximum Combined Percentage" shall have the meaning
set forth in Section 9.10(b).
(l) "Non-highly Compensated Employee" shall mean an
Employee eligible to participate in the Plan pursuant to Article
II who is neither a Highly Compensated Employee nor a Family
Member of a Highly Compensated Employee.
(m) "Qualified Elective Deferrals" shall mean the Before-
Tax Contributions and Supplemental Matching Contributions made on
behalf of a Member and designated by the Committee as Qualified
Elective Deferrals, which satisfy the following requirements:
(1) the aggregate of all Before-Tax Contributions and
Supplemental Matching Contributions for the Plan Year,
including the Qualified Elective Deferrals, must satisfy the
requirements of Section 9.3(a);
(2) the Before-Tax Contributions and Supplemental
Matching Contributions for the Plan Year, excluding the
Qualified Elective deferrals, must satisfy the requirements
of Section 9.3(a);
(3) if the Company elects to aggregate Qualified
Elective Deferrals with Matching Contributions in order to
avoid Excess ACP Contributions, such Qualified Elective
Deferrals shall only be taken into account to the extent
necessary to satisfy the provisions of Section 9.6(a)(2);
and,
(4) Qualified Elective Deferrals must satisfy all
other provisions of this Plan applicable to Before-Tax
Contributions and Supplemental Matching Contributions,
respectively, and shall remain part of the Member's Before-
Tax Subaccount and Supplemental Subaccount, respectively.
Nevertheless, except as provided in this Section 9.1(m),
Qualified Elective Deferrals shall be excluded in
determining whether any other contribution or benefit
satisfies the nondiscrimination requirements of Code Section
401(a)(4) and 401(k)(3).
9.2 Limit on Before-Tax Contributions.
(a) Notwithstanding any other provision of the Plan to the
contrary, the aggregate of a Member's Before-Tax Contributions
during a calendar year may not exceed $7,000 (as adjusted upwards
from time to time pursuant to Code Section 415(d)). Any Before-
Tax Contribution in excess of the foregoing limits ("Excess
$7,000 Deferral"), plus any income and minus any loss allocable
thereto, may be distributed to the applicable Member no later
DII0D240 25879-9 II-29
<PAGE>
than April 15 following the Plan Year in which the Before-Tax
Contributions were made.
(b) Any Member who has an Excess $7,000 Deferral during a
calendar year may receive a distribution of the Excess $7,000
Deferral plus any income or minus any loss allocable thereto,
provided (1) the Member requests the distribution of the Excess
$7,000 Deferral, (2) the distribution occurs after the date the
Excess $7,000 Deferral arose, and (3) the Committee designates
the distribution as a distribution of an Excess $7,000 Deferral.
A Member shall be deemed to have notified the Committee of the
Excess $7,000 Deferral if such Member has Excess $7,000 Deferrals
for the Plan Year, taking into account Excess $7,000 Deferrals
under plans maintained by the Company or any Affiliates.
(c) If a Member makes a Before-Tax Contribution under this
Plan and in the same calendar year makes a contribution to any
other Code Section 401(k) plan containing a cash or deferred
arrangement, or a Code Section 408(k) plan (simplified employee
pension plan) or Code Section 403(b) plan (tax-sheltered annuity)
and, after the return of any Excess $7,000 Deferral pursuant to
Section 9.2(a) and (b), the aggregate of all such Before-Tax
Contributions and other such contributions exceeds the
limitations contained in Code Section 402(g), then such Member
may request that the Committee return all or a portion of the
Member's Before-Tax Contributions for the calendar year plus any
income and minus any loss allocable thereto. The amount by which
such Before-Tax Contributions and other such contributions exceed
the Code Section 402(g) limitations will also be known as an
Excess $7,000 Deferral. A Member shall be deemed to have
notified the Committee of the Excess $7,000 Deferral if such
Member has Excess $7,000 Deferrals for the Plan Year, taking into
account Excess $7,000 Deferrals under plans maintained by the
Company or any Affiliates.
(d) Any request for a return of Excess $7,000 Deferrals
pursuant to Section 9.2(c) must (1) be made in writing, (2) be
submitted to the Committee not later than the March 1 following
the Plan Year in which the Excess $7,000 Deferral arose,
(3) specify the amount of the Excess $7,000 Deferral, and
(4) contain a statement that if the Excess $7,000 Deferral is not
distributed, it will, when added to amounts deferred under other
plans or arrangements described in Sections 401(k), 408(k), or
403(b) of the Code, exceed the limit imposed on the Member by
Section 402(g) of the Code for the year in which the Excess
$7,000 Deferral occurred.
(e) Before-Tax Contributions may only be returned to the
extent necessary to eliminate a Member's Excess $7,000 Deferral.
Excess $7,000 Deferrals shall be treated as Annual Additions
under Article VIII of the Plan. In no event shall the returned
Excess $7,000 Deferrals for a particular calendar year exceed the
DII0D240 25879-9 II-30
<PAGE>
Member's aggregate Before-Tax Contributions for such calendar
year.
(f) The income or loss allocable to a Before-Tax
Contribution that is returned to a Member pursuant to Section
9.2(a) or (c) shall be determined in the same manner as provided
in Section 5.1.
(g) See Section 10.1(c) for circumstances under which a
Member's maximum annual Before-Tax Contribution could be reduced
as a result of such Member's receiving a hardship distribution.
9.3 ADP Test.
(a) The Average Actual Deferral Percentage for Highly
Compensated Employees for each Plan Year and the Average Actual
Deferral Percentage for Non-highly Compensated Employees for the
same Plan Year must satisfy one of the following tests:
(1) The Average Actual Deferral Percentage for Members
who are Highly Compensated Employees for the Plan Year shall
not exceed the Average Actual Deferral Percentage for
Members who are Non-highly Compensated Employees for the
Plan Year multiplied by 1.25; or
(2) The excess of the Average Actual Deferral
Percentage for Members who are Highly Compensated Employees
for the Plan Year over the Average Actual Deferral
Percentage for Members who are Non-hiehly Compensated
Employees for the Plan Year is not more than 2 percentage
points, and the Average Actual Deferral Percentage for
Members who are Highly Compensated Employees is not more
than the Average Actual Deferral Percentage for Members who
are Non-highly Compensated Employees multiplied by 2.
(b) The permitted disparity between the Average Actual
Deferral Percentage for Highly Compensated Employees and the
Average Actual Deferral Percentage for Non-highly Compensated
Employees may be further reduced as required by Section 9.10.
(c) If at any time during a Plan Year the Committee, as a
result of periodic testing for compliance with the provisions of
Section 9.3(a), determines that the Plan may not comply with such
provisions as of the end of such Plan Year, the Committee, in its
discretion, may temporarily suspend a Highly Compensated
Employee's Deferral Election for all or a portion of such
remaining Plan Year and shall promptly notify the Member of the
suspension. If at the end of the Plan Year, the Plan does not
comply with the provisions of Section 9.3(a), the Company shall
distribute Before-Tax Contributions to certain Highly Compensated
Employees as provided in Section 9.5, except as otherwise
provided in the Code or in Treasury Regulations.
DII0D240 25879-9 II-31
<PAGE>
9.4 Special Rules For Determining Average Actual Deferral
Percentage.
(a) The Actual Deferral Percentage for any Highly
Compensated Employee for the Plan Year who is eligible to have
before-tax contributions allocated to such person's account under
2 or more arrangements described in Section 401(k) of the Code
that are maintained by the Company or an Affiliate shall be
determined as if such before-tax contributions were made under a
single arrangement.
(b) If 2 or more plans maintained by the Company or an
Affiliate are treated as one plan for purposes of the
nondiscrimination requirements of Code Section 401(a)(4) or the
coverage requirements of Code Section 410(b) (other than for
purposes of the average benefits test), all before-tax
contributions that are made pursuant to those plans (other than
an employee stock ownership plan within the meaning of Code
Section 4975(e)(7)) shall be treated as having been made pursuant
to one plan.
(c) For purposes of determining the ADP of a Highly
Compensated Employee who is either a 5 percent or more owner of
the Company or one of the 10 highest paid Highly Compensated
Employees during the Plan Year, the Before-Tax Contributions and
415 Compensation of such Member shall include the Before-Tax
Contributions and 415 Compensation of such person's Family
Members. Any person who is a Family Member shall not be treated
as a separate Employee in determining the Average Actual Deferral
Percentage for either Non-highly Compensated Employees or for
Highly Compensated Employees.
(d) The determination and treatment of Before-Tax
Contributions and the Actual Deferral Percentage of any Member
shall be in accordance with such other requirements as may be
prescribed from time to time in Treasury Regulations.
9.5 Distribution of Excess ADP Deferrals.
(a) Before-Tax Contributions exceeding the limitations of
Section 9.3(a) ("Excess ADP Deferrals") and any income or loss
allocable to such Excess ADP Deferral shall be designated by the
Committee as Excess ADP Deferrals and shall be distributed to
Highly Compensated Employees whose Accounts were credited with
Excess ADP Deferrals in the preceding Plan Year. In determining
the amount of Excess ADP Deferrals for each Highly Compensated
Employee, the Committee shall reduce the ADP for each Highly
Compensated Employee as follows:
(1) The ADP for the Highly Compensated Employee(s)
with the highest ADP will be reduced until equal to the
second highest ADPs under the Plan; then
DII0D240 25879-9 II-32
<PAGE>
(2) The ADP for the 2 (or more) Highly Compensated
Employees with the highest ADPs under the Plan will be
reduced until equal to the third highest ADP level under the
Plan; then
(3) The steps described in (1) and (2) shall be
repeated with respect to the third and successive highest
ADP levels under the Plan until the Plan complies with one
or both of the ADP tests described in Section 9.3(a).
(b) To the extent administratively possible, the Committee
shall distribute all Excess ADP Deferrals and any income or loss
allocable thereto prior to March 15 following the end of the Plan
Year in which the Excess ADP Deferrals arose. In any event,
however, the Excess ADP Deferrals and any income or loss
allocable thereto shall be distributed prior to the end of the
Plan Year following the Plan Year in which the Excess ADP
Deferrals arose. Excess ADP Deferrals shall be treated as Annual
Additions under Article VIII of the Plan.
(c) The income or loss allocable to Excess ADP Deferrals
shall be determined in the same manner as provided in Section
5.1.
(d) If an Excess $7,000 Deferral has been distributed to
the Member pursuant to Section 9.2(a) or (b), then any Excess ADP
Deferral allocable to such Member for the same Plan Year shall be
reduced by the amount of such Excess $7,000 Deferral.
(e) Distribution of Excess ADP Deferrals to Members
described in Section 9.4(c) shall be made in accordance with the
provisions of Treasury Regulation Section 1.401(k)-1(f)(4) or any
successor Treasury Regulation thereto.
9.6 ACP Test.
(a) The Average Actual Contribution Percentage for Highly
Compensated Employees for each Plan Year and the Average Actual
Contribution Percentage for Non-highly Compensated Employees for
the same Plan Year must satisfy one of the following tests:
(1) The Average Actual Contribution Percentage for
Members who are High Compensated Employees for the Plan Year
shall not exceed the Average Actual Contribution Percentage
for Members who are Non-highly Compensated Employees for the
Plan Year multiplied by 1.25; or
(2) The excess of the Average Actual Contribution
Percentage for Members who are Highly Compensated Employees
for the Plan Year over the Average Actual Contribution
Percentage for Members who are Non-highly Compensated
Employees for the Plan Year is not more than 2 percentage
points, and the Average Actual Contribution Percentage for
DII0D240 25879-9 II-33
<PAGE>
Members who are Highly Compensated Employees is not more
than the Average Actual Contribution Percentage for Members
who are Non-highly Compensated Employees multiplied by 2.
(b) If at the end of the Plan Year, the Plan does not
comply with the provisions of Section 9.6(a), the Company may do
any or all of the following, except as otherwise provided in the
Code Section or in Treasury Regulations, in order to comply with
such provision:
(1) The Company may aggregate Qualified Elective
Deferrals of Non-highly Compensated Employees with Matching
Contributions of such Members as provided in Section 9.1(a).
(2) In the case of a Matching Subaccount which does
not comply with Section 9.6(a), the Company may:
(A) Distribute vested Matching Contributions
allocated to the Matching Subaccounts of certain
Highly Compensated Employees as provided in Section
9.8;
(B) Forfeit nonvested Matching Contributions
allocated to the Matching Subaccounts of certain
Highly Compensated Employees as provided in Section
9.9.
9.7 Special Rules for Determining Average Actual
Contribution Percentages.
(a) The Actual Contribution Percentage for any Highly
Compensated Employee for the Plan Year who is eligible to have
matching contributions or before-tax contributions allocated to
such person's account under 2 or more arrangements described in
Section 401(a) or 401(k) of the Code that are maintained by a
Company or an Affiliate shall be determined as if such
contributions were made under a single arrangement.
(b) If 2 or more plans maintained by the Company or an
Affiliate are treated as one plan for purposes of the
nondiscrimination requirements of Code Section 401(a)(4) or the
coverage requirements of Code Section 410(b) (other than for
purposes of the average benefits test), all matching
contributions that are made pursuant to those plans (other than
an employee stock ownership plan within the meaning of Code
Section 4975(e)(7)) shall be treated as having been made pursuant
to one plan.
(c) For purposes of determining the Actual Contribution
Percentage of a Highly Compensated Employee who is a 5 percent or
more owner of a Company or one of the 10 highest paid Highly
Compensated Employees during the Plan Year, the Matching
Contributions and 415 Compensation of such Member shall include
DII0D240 25879-9 II-34
<PAGE>
all Matching contributions and 415 Compensation of Family
Members. Family Members shall not be treated as separate
Employees for purposes of determining the Average Actual
Contribution Percentage for either Non-highly Compensated
Employees or for Highly Compensated Employees.
(d) The determination and treatment of Matching
Contributions and the Actual Contribution Percentage of any
Member shall be in accordance with such other requirements as may
be prescribed from time to time in Treasury Regulations.
9.8 Distribution of Excess ACP Contributions.
(a) Matching Contributions allocated to a Matching
Subaccount which exceed the limitations of Section 9.6(a)
("Excess ACP Contributions") and any income or loss allocable to
such Excess ACP Contribution may be designated by the Committee
as "Excess ACP Contributions" and may be distributed in the Plan
Year following the Plan Year in which the Excess ACP
Contributions arose to those Highly Compensated Employees whose
Matching Subaccounts were credited with Excess ACP Contributions
in the preceding Plan Year. The amount of Excess ACP
Contributions to be distributed to a Highly Compensated Employee
shall be determined using the procedure described in Section
9.5(a).
(b) To the extent administratively possible, the Committee
shall distribute all Excess ACP Contributions and any income or
loss allocable thereto prior to March 15 following the end of the
Plan Year in which the Excess ACP Contributions arose. In any
event, however, the Excess ACP Contributions and any income or
loss allocable thereto shall be distributed prior to the end of
the Plan Year following the Plan Year in which the Excess ACP
Contributions arose.
(c) Income or loss allocable to Excess ACP Contributions
shall be determined in the same manner that Net Investment Income
(Loss) is allocated as provided in Section 5.1(c).
(d) Amounts distributed to Highly Compensated Employees
under this Section 9.8 shall be treated as Annual Additions under
Article VIII with respect to the Employee who received such
amount.
(e) Distribution of Excess ACP Contributions to Members
described in Section 9.7(c) shall be made in accordance with the
provisions of Treasury Regulation Section 1.401(m)(2)(iii) or any
successor Treasury Regulations thereto.
DII0D240 25879-9 II-35
<PAGE>
9.9 Forfeiture of Excess ACP Contributions.
(a) Excess ACP Contributions and any income or loss
allocable to such Excess ACP Contribution may be forfeited and
used to reduce future Matching Contributions as provided in
Section 9.6(b)(3).
(b) The amount of any Excess ACP Contributions to be
forfeited by a particular Highly Compensated Employee shall be
determined pursuant to the procedure described in Section 9.5(a).
(c) The income or loss allocable to Excess ACP
Contributions allocated to a Member's Matching Subaccount shall
be determined in the same manner that Net Investment Income
(Loss) is allocated as provided in Section 5.1(c).
(d) Members described in Section 9.7(c) shall forfeit their
Excess Contributions in accordance with Treasury Regulation
Section 1.401(m)-1(e)(2)(iii) or any successor Treasury
Regulation thereto.
(e) Amounts forfeited by Highly Compensated Employees under
this Section shall not be treated as Annual Additions under
Article VIII with respect to the Employee who forfeited such
amount.
(f) Notwithstanding anything to the contrary contained
herein, vested Matching Contributions may not be forfeited to
correct an Excess ACP Contribution.
9.10 Combined ACP and ADP Test.
(a) The Plan must satisfy the "Combined ACP and ADP Test"
described in this Section 9.10 if (1) the Average Actual Deferral
Percentage of the Highly Compensated Employees exceeds 125
percent of the Average Actual Deferral Percentage of the Non-
highly Compensated Employees and (2) the Average Actual
Contribution Percentage of the Highly Compensated Employees
exceeds 125 percent of the Average Actual Contribution Percentage
of the Non-highly Compensated Employees.
(b) The Combined ACP and ADP Test is satisfied if the sum
of the Highly Compensated Employees' Average Actual Deferral
Percentage and Average Actual Contribution Percentage is equal to
or less than the "Maximum Combined Percentage" defined in
paragraph (c) below.
(c) The "Maximum Combined Percentage" shall be determined
by adjusting the Non-highly Compensated Employees' Average Actual
Deferral Percentage and Average Actual Contribution Percentage in
the following manner:
DII0D240 25879-9 II-36
<PAGE>
(1) the greater of the two percentages shall be
multiplied by 1.25, and
(2) the lesser of the two percentages shall be
increased by 2 percentage points; however, in no event shall
such adjusted percentage exceed twice the original
percentage.
The sum of (1) and (2) shall be the Maximum Combined Percentage.
(d) In the event the Plan does not satisfy the Combined ADP
and ACP Test, the Highly Compensated Employees' Average Actual
Deferral Percentage shall be decreased by distributing Before-Tax
Contributions to certain Highly Compensated Employees using the
procedures described in Section 9.5 until the sum of such
percentage and the Highly Compensated Employees' Average Actual
Contribution Percentage equals the Maximum Combined Percentage.
(e) The Highly Compensated Employees' Average Actual
Contribution Percentage shall not be reduced in order to satisfy
the Combined ADP and ACP Test.
(f) In addition to returning Elective Deferrals to certain
Highly Compensated Employees in order to satisfy the Combined ADP
and ACP Test, income or loss allocable to such Before-Tax
Contributions shall also be distributed.
(g) To the extent administratively possible, the Committee
shall distribute the Before-Tax Contributions and allocable
income or loss prior to March 15 following the end of the Plan
Year for which the Combined ADP and ACP Test is computed. In any
event, however, such Before-Tax Contributions and allocable
income or loss shall be distributed by the end of the Plan Year
following the Plan Year for which the Combined ADP and ACP Test
is computed. Before-Tax Contributions that are distributed
pursuant to this Section 9.10 shall be treated as Annual
Additions under Article VIII of the Plan.
(h) This income or loss allocable to returned Before-Tax
Contributions shall be determined using the same procedures
described in Section 9.5(c).
(i) To the extent the provisions of this Section 9.10
conflict with the requirements of Treasury Regulation Section
1.401(m)-2 or any successor Regulation thereto, the provisions of
such Treasury Regulation shall prevail.
9.11 Order of Applying Certain Sections of Article. In
applying the provisions of this Article IX, the determination and
distribution of Excess $7,000 Deferrals shall be made first (to
the extent possible) and the determination, elimination of Excess
ADP Deferrals shall be made second, the determination and
elimination of Excess ACP Contributions shall be made third and
DII0D240 25879-9 II-37
<PAGE>
finally the determination and any necessary adjustment related to
the combined ADP and ACP Test shall be made.
ARTICLE X. IN-SERVICE WITHDRAWALS
10.1 Hardship Withdrawals.
(a) If a Member incurs a financial hardship, such Member
may withdraw, prior to attaining age 59 1/2, all or a portion of the
amount of such Member's vested: 1) Rollover Subaccount; 2)
Before-Tax Subaccount, provided that the earnings allocated to
the Before-Tax Subaccount after December 31, 1988, shall not be
distributed under this Section; and 3) all or a portion of the
nonforfeitable Matching and Profit Sharing Subaccounts; provided,
however, in no event may a Member withdraw any amount of such
Member's Account which is pledged as security for a loan pursuant
to Section 11.5. In no event shall a hardship distribution be
made from a Member's PAYSOP Subaccount or Supplemental
Subaccount. A Member shall apply for a hardship withdrawal on
the form provided by the Administrator for such purpose,
including the effective date of the withdrawal which must be at
least 15 days prior to the date the form is filed with the
Administrator. A request for withdrawal may not be made more
than 4 times during each Plan Year.
(b) For purposes of this Section 10.1, a financial hardship
shall mean an immediate and heavy financial need experienced by
reason of (1) medical expenses, as described in Code Section
213(d), previously incurred by the Member, such Member's spouse
or any of such Member's dependents, as defined in Code Section
152; (2) purchase of the Member's principal residence (other than
to make mortgage payments, except as provided under Section
10.1(b)(4); (3) payment of tuition for the next 12 months of
post-secondary education for the Member, such Member's spouse,
children or other dependents, as defined in Code Section 152;
(4) preventing the eviction of the Member from such Member's
principal residence or foreclosure on the mortgage on such
residence; or (5) any other such needs identified by the
Commissioner of the IRS and announced in a publication generally
applicable to all taxpayers.
(c) A withdrawal distribution based upon financial hardship
cannot exceed the amount required to meet the immediate financial
need created by the hardship, including the amount of any
federal, state or local income taxes or penalties applicable to
the amount of the distribution, and not reasonably available from
other resources of the Member. In order to ensure compliance
with the provisions of this Section 10.1 and Code Section 401(k)
and the Regulations thereunder, the Committee may require the
Member to satisfy any or all of the provisions described in
subsections (1)-(4) below as a condition precedent to receiving a
hardship distribution:
DII0D240 25879-9 II-38
<PAGE>
(1) Certification by the Member on the form provided
by the Administrator for such purpose that the financial
need cannot be relieved (A) through reimbursement or
compensation by insurance or otherwise; (B) by reasonable
liquidation of the Member's assets; (C) by cessation of
Before-Tax Contributions under the Plan; (D) by other
distributions or nontaxable loans from the Plan or other
plans maintained by the Company or any Affiliate, or any
other employer, or by borrowing from commercial sources on
reasonable commercial terms.
(2) Receipt by the Member of all distributions and
nontaxable loans that such Member is eligible to receive
under this Plan and under any other plan maintained by the
Company or an Affiliate.
(3) Automatic suspension of Before-Tax Contributions
beginning on the first payroll period that commences after
the date such Member receives the withdrawal. Before-Tax
Contributions on behalf of such Member may be resumed only
after the expiration of at least 12 months from the
effective date of the suspension and only after the Member
files a new Deferral Election with the Administrator. In
addition, the maximum Before-Tax Contributions under Section
9.2 that can be made on behalf of a Member for the calendar
year following a hardship distribution shall be reduced by
the amount of Before-Tax Contributions made on behalf of the
Member during the calendar year in which the hardship
distribution was made.
(4) Any other condition or method approved by the IRS.
(d) Upon direction by the Committee, the Trustee shall pay
the amount withdrawn on the effective date specified by the
Member. For purposes of the withdrawal, the Member's Account
shall be valued as of the Valuation Date immediately preceding
the effective date of the withdrawal, adjusted for withdrawals
and distributions after such date. Withdrawals shall reduce the
Member's investment in the Investment Funds on a pro rata basis
and shall be charged against a Member's subaccounts in the
following sequence: (1) Rollover Subaccount; (2) Before-Tax
Subaccount, but excluding earnings accrued thereon after
December 31, 1988; (3) nonforfeitable portion of the Matching
Subaccount; and (4) nonforfeitable portion of the Profit Sharing
Subaccount.
(e) The Committee shall be permitted to rely reasonably
upon the representations of the Member of such Member's financial
affairs and shall not be required to conduct an independent
investigation of such representations. Approval of any
withdrawal shall be made in an objective and nondiscriminatory
manner by the Committee based only upon a determination that all
relevant facts and circumstances presented by the Member or
DII0D240 25879-9 II-39
<PAGE>
discovered by the Committee satisfy the requirements of both
Section 10.1(b) and (c). No other method of approving
withdrawals shall be allowed.
10.2 Withdrawals After Age 59 1/2. After reaching age 59 1/2, a
Member who has been enrolled in the Plan for at least 5 years may
withdraw all or a portion of the amount in such Member's Before-
Tax Subaccount. In addition, a Member who has attained age 59 1/2
but has been enrolled in the Plan for less than 5 years may
withdraw all or a portion of the amount in the Member's Before-
Tax Subaccount that has been deposited in the Trust Fund for at
least 2 years. In no event, however, may a Member withdraw any
amount of such Member's Before-Tax Subaccount which is pledged as
security for a loan pursuant to Section 11.5. Withdrawals may be
made pursuant to this Section 10.2 without regard to the
restrictions of Section 10.1, except that a Member must meet the
notice requirements under Section 10.1(a). The withdrawal shall
be taken on a pro rata basis from each Investment Fund in which
the Member's Before-Tax Subaccount is invested.
10.3 Withdrawals from Rollover Subaccount. A Member may
withdraw all or a portion of the amount in such Member's Rollover
Subaccount that has been deposited in the Trust Fund for at least
two years. In addition, a Member who has completed 60 months of
participation may withdraw all or a portion of the amount in such
Member's Rollover Subaccount. In no event, however, may a Member
withdraw any amount which is pledged as security for a loan
pursuant to Section 11.5. In order to make such withdrawal, a
Member must meet the notice requirements under Section 10.1(a).
The withdrawal shall be taken on a pro rata basis from each
Investment Fund in which the Member's Rollover Subaccount is
invested.
ARTICLE XI. LOANS
11.1 Authority. The Committee shall have the discretion to
direct the Trustee to loan money to a Member who is an Employee,
a Member who is a former Employee (if such Member is a party in
interest, as defined in Section 3(14) of ERISA, with respect to
the Plan), the Beneficiary of a deceased Member or an alternate
payee under a Qualified Domestic Relations Order as defined in
Section 17.5 (hereinafter referred to in this Article XI as the
"Applicant".) Each such loan shall be treated as an investment
of the Applicant's Account.
11.2 Loan Application. An Applicant who wishes to borrow
money from the Plan shall file a written loan application with
the Committee on the form provided by the Committee for such
purpose. The Committee, in the exercise of its sole discretion,
shall approve the loan if the Committee determines that the loan
will not constitute a taxable distribution from the Plan and, if
the Applicant is an Employee, such Applicant has agreed to repay
DII0D240 25879-9 II-40
<PAGE>
the loan through payroll deduction. In exercising its discretion
to approve or deny loans, the Committee shall make loans to all
Applicants on a reasonably equivalent basis and shall not make
loans to Highly Compensated Employees, officers, or shareholders
in an amount greater than the amount made available to other
Applicants.
11.3 Claims Procedure. Loans from the Plan that are
denied, except for the denial of a loan for less than $1,000
under Section 11.4(b), shall be processed by the Loan
Administrator in accordance with the claims procedure in Section
14.7 of the Plan.
11.4 Loan Limits.
(a) Loans made pursuant to this Article XI shall be limited
to the lesser of: (1) $50,000 reduced by the highest outstanding
loan balance during the one-year period ending on the day before
the loan is made, or (2) one-half of the Applicant's non-
forfeitable Accrued Benefit as determined under Article V as of
the Valuation Date immediately preceding the filing of the
Applicant's loan application; provided, however, in no event
shall a loan exceed the value of the Applicant's non-forfeitable
Accrued Benefit excluding the Applicant's PAYSOP Subaccount. For
purposes of this Section 11.4, all loans from all plans of the
Company or any Affiliate shall be aggregated. In addition, the
Committee may further limit the amount loaned to any Applicant in
order to maintain a reserve chargeable against the Applicant's
Account for income taxes which would have to be withheld by the
Trustee if the loan becomes a deemed distribution to the
Applicant. Any such taxes required to be withheld by the Trustee
(whether or not such reserve has been created) shall be charged
to and reduce the Applicant's Account to the extent possible, and
any excess shall be treated as an administrative expense of the
Plan which shall be reimbursed by such Applicant.
(b) In no event shall a loan be made for less than $1,000.
(c) An Applicant shall not be granted more than one loan
per year, and an Applicant may not borrow from the Plan if such
Applicant has another outstanding loan from the Plan.
11.5 Adequate Security. Loans shall be adequately secured
by the Applicant's Account and supported by the Applicant's
collateral promissory note for the amount of the loan, made
payable to the Trustee; provided, however, no more than 50
percent of the Applicant's Account, determined immediately after
the origination of the loan, may be pledged as security for such
loan.
11.6 Interest Rate. Loans shall bear interest at a rate
determined by the Committee which is commensurate with the
interest rate charged by persons in the business of lending money
DII0D240 25879-9 II-41
<PAGE>
for loans made under similar circumstances. In making such
determination, the Committee shall consider rates chareed by
commercial lenders in the region in which the Applicant is
located for similar loans, such as secured personal loans, car
loans or home equity loans.
11.7 Repayment.
(a) Each loan shall be evidenced by a written note, payable
to the Trustee, providing for level amortization with not less
than monthly payments over a fixed period not to exceed 5 years.
However, loans used to acquire any dwelling unit which, within a
reasonable time, is to be used (determined at the time the loan
is made) as a principal residence of the Applicant shall provide
for periodic repayment over a reasonable period of time that may
exceed 5 years. Notwithstanding the foregoing, loans made prior
to January 1, 1987 which are used to acquire, construct,
reconstruct or substantially rehabilitate any dwelling unit
which, within a reasonable period of time is to be used
(determined at the time the loan is made) as a principal
residence of the Applicant or a member of such Applicant's family
(within the meaning of Code Section 267(c)(4)) may provide for
periodic repayment over a reasonable period of time that may
exceed 5 years. The repayment period for each loan shall be
determined by the Administrator in a uniform and
nondiscriminatory manner.
(b) Loans to an Applicant who is an Employee must be repaid
by payroll deduction. Payroll deductions will continue until the
earlier of the date the loan is repaid or the date the Applicant
is entitled to distribution under the terms of the Plan. If such
an Applicant has a Termination of Service and does not receive a
distribution of such Applicant's Account, then the loan shall be
repaid in equal monthly installments for the remaining term of
the loan. If such deductions from an Applicant's paychecks cease
for any reason, then the loan shall be repaid in equal monthly
installments for the remaining term of the loan or until the
Applicant begins to receive paychecks in an amount sufficient to
cover the loan. If such an Applicant's paycheck is ever
insufficient to cover the amount of a loan payment, then such
Applicant shall pay the deficiency from outside funds.
(c) If on the date an Applicant's Account becomes payable
pursuant to Article VII of the Plan the Applicant has an
outstanding loan balance, then an amount equal to such loan
amount together with accrued interest shall be deemed immediately
due and payable and if not paid within 30 days, the unpaid
balance of the loan will be reported to the IRS as a distribution
of the Account.
11.8 Default. An Applicant is not allowed to stop payroll
deductions for repayment of a loan prior to the Applicant's
Termination of Service. An Applicant who is not an Employee or
DII0D240 25879-9 II-42
<PAGE>
who is no longer making loan payments sufficient to cover the
Applicant's loan payments through payroll deduction or otherwise
shall be in default on a loan if such Applicant fails to make a
loan payment, as determined by the Administrator, before the date
the next following loan payment becomes due and payable, and the
entire balance of the loan shall become immediately due and
payable; provided, however that in no event shall an Applicant's
Account be applied to repay the loan until the Applicant's
Account is otherwise payable under the terms of the Plan.
11.9 Foreclosure. If the entire balance of an Applicant's
loan becomes immediately due and payable under Section 11.8, the
Administrator shall foreclose, to the extent necessary, on the
collateral held as security for the Applicant's loan as soon as
the Applicant's Account becomes payable under the Plan. The
Administrator may, however, delay such foreclosure, provided the
delay
(a) will not cause the Plan to lose any principal or
interest, and
(b) the criteria for such delay are applied by the
Administrator to all similar loans on a reasonably equivalent
basis.
11.10 Withdrawals. As provided in Sections 10.1, 10.2 and
10.3, no amount held as security for a loan may be withdrawn by
an Applicant from such Applicant's Account while a loan is
outstanding, except that such amounts which otherwise qualify for
withdrawal other than on account of hardship under Sections 10.2
and 10.3 may be withdrawn if immediately applied to reduce such
loan amount.
11.11 Loan Investment. All loans under this Article XI
shall be treated as investments of the Trust. Loans shall be
charged pro rata against such Applicant's subaccounts (excluding
the PAYSOP Subaccount). Interest and principal repayment shall
be added to such subaccounts as provided in Section 4.5.
ARTICLE XII. TOP HEAVY PROVISIONS
12.1 Application. The provisions of this Article shall
apply to each Plan Year in which the Plan is Top Heavy and shall
supersede any conflicting provision of this Plan.
12.2 Definitions. For purposes of this Article and as
otherwise used in this Plan, the following terms shall have the
meanings set forth below.
(a) "Aggregation Group" means either a Required Aggregation
Group or a Permissive Aggregation Group as determined below:
DII0D240 25879-9 II-43
<PAGE>
(1) Each plan of the Company or an Affiliate in which
a Key Employee is a member in the Plan Year containing the
Determination Date or any of the 4 preceding Plan Years, and
each other plan of the Company or an Affiliate which enables
any plan in which a Key Employee participates to meet the
requirements of Code Sections 401(a)(4) or 410, will be
required to be aggregated. Such group shall be known as a
Required Aggregation Group. In the case of a Required
Aggregation Group, each plan in the group will be considered
Top Heavy if the Required Aggregation Group is a Top Heavy
Group. No plan in the Required Aggregation Group will be
considered Top Heavy if the Required Aggregation Group is
not a Top Heavy Group.
(2) The Company may also include any other plan not
required to be included in the Required Aggregation Group,
provided the resulting group, taken as a whole, would
continue to satisfy the provisions of Code Sections
401(a)(4) and 410. Such group shall be known as a
Permissive Aggregation Group. In the case of a Permissive
Aggregation Group, only a plan that is part of the Required
Aggregation Group will be considered Top Heavy if the
Permissive Aggregation Group is a Top Heavy Group. No plan
in the Permissive Aggregation Group will be considered Top
Heavy if the Permissive Aggregation Group is not a Top Heavy
Group.
An Aggregation Group shall include any terminated plan of
the Company or an Affiliate if it was maintained within the last
5 years ending on the Determination Date.
(b) "Determination Date" shall mean the last day of the
Plan Year immediately preceding the Plan Year for which Top Heavy
status is determined.
(c) "Key Employee" shall mean any Employee of the Company
or Beneficiary who, during the Plan Year or the 4 preceding Plan
Years was (1) an officer receiving 415 Compensation for the Plan
Year in excess of 50 percent of the limit described in Code
Section 415(b)(1)(A), (2) one of the 10 Employees owning the
largest interest in the Company or an Affiliate and receiving 415
Compensation for the Plan Year equal to or greater than the
dollar limit described in Code Section 415(c)(1)(A), (3) a
greater than 5 percent owner of the Company, or (4) a greater
than one percent owner of the Company receiving 415 Compensation
for the Plan Year in excess of $150,000, or the Beneficiary of a
Key Employee. The Code Section 415(c)(1)(A) limits referred to
in the preceding sentence shall be the specified dollar limits
plus any increases reflecting the cost of living adjustments
specified by the Secretary of the Treasury.
(d) "415 Compensation" shall have the meaning given such
term in Section 8.2(c) of the Plan.
DII0D240 25879-9 II-44
<PAGE>
(e) "Non-key Employee" shall mean any Member who is not a
Key Employee.
(f) "Top Heavy Group" shall mean an Aggregation Group in
which, as of the Determination Date, the sum of the present value
of the cumulative accrued benefits of Key Employees under all
defined benefit plans included in the group and the aggregate of
the accounts of Key Employees under all defined contribution
plans included in the group exceeds 60 percent of the sum of the
present value of the cumulative accrued benefits and the
aggregate of the accounts of all Key and Non-key Employees under
all plans in the group.
12.3 Determination of Top Heavy Status. The Plan shall be
"Top Heavy" for the Plan Year if, as of the Valuation Date which
coincides with or immediately precedes the Determination Date,
the aggregate of the Accounts of Key Employees under this Plan
exceeds 60 percent of the aggregate of the Accounts of all Key
and Non-Key Employees under this Plan; provided, however, if the
Plan is a member of a Required Aggregation Group, the Plan shall
be Top Heavy for the Plan Year if the Required Aggregation Group
is a Top Heavy Group, unless the Plan is also a member of a
Permissive Aggregation Group that is not a Top Heavy Group.
In determining the present value of the cumulative accrued
benefit or the amount of an account for an Employee for purposes
of this Section 12.3 or Section 12.2(f), the following rules
shall apply: All distributions made during the 5-year period
ending on the Determination Date shall be included, as well as
any distributions from any plan terminated within the 5-year
period ending on the Determination Date that would have been a
member of the Required Aggregation Group had it not `een
terminated. In addition, for purposes of determining the amount
of an account for any Employee, any unallocated Company
contributions or forfeitures attributable to the Plan Year in
which the Determination Date falls shall also be included. The
accrued benefit or account of any Employee who was at one time a
Key Employee but who was not a Key Employee for any of the 5 Plan
Years ending on the Determination Date and any Employee who has
not performed services for the Company or an Affiliate
maintaining a plan in the Aggregation Group for the 5 Plan Years
ending on the Determination Date, shall be disregarded in
determining Top Heavy status. For the purposes of this
subsection, the rollover subaccount maintained under any plan in
the Aggregation Group shall be included in the value of such
Employee's account, except to the extent that the Rollover
Subaccount balance was received in a transaction consummated
after December 31, 1983 which was initiated by the Employee and
the amount received is attributable to a distribution or transfer
from the plan of an employer which is unrelated to the Company or
an Affiliate.
DII0D240 25879-9 II-45
<PAGE>
Solely for the purpose of determining if the Plan, or any
other plan included in the Required Aggregation Group, is Top
Heavy, a Non-key Employee's accrued benefit in a defined benefit
plan shall be determined under (A) the method, if any, that
uniformly applies for accrual purposes under all plans maintained
by the Company and Affiliates, or (B) if there is no such method,
as if such benefit accrued not more rapidly than the slowest
accrual rate permitted under the fractional accrual rate of Code
Section 411(b)(1)(C).
12.4 Minimum Contribution. Except as provided below, for
any Plan Year in which the Plan is Top Heavy, the contributions
allocated on behalf of any Non-key Employee who is an Employee on
the Determination Date shall not be less than the lesser of (a) 3
percent of such Non-key Employee's 415 Compensation for such Plan
Year, or (b) the largest percentage of Matching, Profit Sharing,
Before-Tax and Supplemental Matching Contributions, as a
percentage of the Key Employee's 415 Compensation for the Plan
Year, allocated on behalf of any Key Employee for such Plan Year.
The minimum allocation shall be made even though, under other
Plan provisions, the Non-key Employee would not otherwise be
entitled to receive an allocation, or would have received a
lesser allocation, for the Plan Year because of the Non-key
Employee's failure to complete a Year of Service. In determining
whether a Non-key Employee has received the required minimum
allocation, such Non-key Employee's Before-Tax and Supplemental
Matching Contributions and any Matching Contributions used to
satisfy the ACP Test for such Plan Year shall not be taken into
account. If a Non-key Employee participates in this Plan and a
defined benefit plan included in the Required Aggregation Group,
the minimum contribution and benefit requirements for both plans
in a Top Heavy Plan Year may be satisfied by an allocation of
contributions to the Account of each Non-key Employee in the
amount of 5 percent of the Non-key Employee's 415 Compensation
for the Plan Year. No minimum allocation shall be required in
this Plan for any Non-key Employee who participates in this Plan
and another defined contribution plan that provides the minimum
allocation and is included with this Plan in a Required
Aggregation Group. For the purpose of determining the
appropriate percentage under Section 12.4(b), all defined
contribution plans included in the Required Aggregation Group
shall be treated as one plan.
12.5 Limitations on Contributions. In any Plan Year in
which the Plan would be Top Heavy if "90 percent" were
substituted for "60 percent" where it appears in Sections 12.2(f)
and 12.3, "1.0" shall be substituted for "1.25" as the
multiplicand of the dollar limitation in determining the
denominator of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction set forth in Section 8.2(d) and (e) of
this Plan. In any Plan Year in which the Plan is Top Heavy but
would not be Top Heavy if "90 percent" were substituted for "60
percent" as provided above, "1.0" shall be substituted for "1.25"
DII0D240 25879-9 II-46
<PAGE>
as the multiplicand of the dollar limitation in determining the
denominator of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction set forth in Section 8.2(d) and (e) of
this Plan, unless the minimum allocation and minimum benefit
requirements are satisfied by substituting "4 percent" for "3
percent" and "7.5 percent" for "5 percent" where such figures
appear in Section 12.4(a).
12.6 Other Plans. The Committee shall, to the extent
permitted by the Code and in accordance with the Regulations,
apply the provisions of this Article by taking into account the
benefits payable and the contributions made under any other plans
maintained by the Company or any of its Affiliates which are
qualified under Section 401(a) of the Code to prevent
inappropriate omissions or duplication of minimum benefits or
contributions.
ARTICLE XIII. DESIGNATION OF BENEFICIARIES
13.1 Beneficiary Designation. Every Member shall file with
the Administrator a written designation of one or more persons as
the Beneficiary who shall be entitled to receive the amount, if
any, payable under the Plan upon such Member's death. A Member
may from time to time revoke or change such Member's Beneficiary
designation without the consent of any prior Beneficiary by
filing a new designation with the Administrator. Notwithstanding
the foregoing, no designation of a nonspousal Beneficiary by a
Member shall be given effect unless, in conformity with Section
417(a)(2)(A) of the Code and the Regulations thereunder, such
Member's Surviving Spouse, if any, had consented in writing to
such designation or expressly consented to all future
designations; provided that (a) spousal consent shall not be
required where the spouse cannot be located or on account of such
other circumstances, if any, as are set forth in the Regulations
and (b) spousal consent, if required, must acknowledge the effect
of such designation and be witnessed by a Plan representative or
notary public. The last such designation received by the
Administrator shall be controlling; provided, however, that no
designation, or change or revocation thereof, shall be effective
unless received by the Administrator prior to the Member's death,
and in no event shall it be effective as of a date prior to such
receipt. All decisions of the Administrator concerning the
effectiveness of any Beneficiary designation, and the identity of
any Beneficiary, shall be final. If a Beneficiary shall die
after the death of the Member and prior to receiving the
distribution that would have been made to such Beneficiary had
such Beneficiary's death not occurred, and no alternate
Beneficiary has been designated, then for the purposes of the
Plan the distribution that would have been received by such
Beneficiary shall be made to the Beneficiary's estate.
DII0D240 25879-9 II-47
<PAGE>
13.2 Failure to Designate Beneficiary. Subject to Section
13.1, if no Beneficiary designation is in effect at the time of a
Member's death, the payment of the amount, if any, payable under
the Plan upon such Member's death shall be made to the Member's
Surviving Spouse, if any, or if the Member has no Surviving
Spouse, to the Member's estate. If the Administrator is in doubt
as to the right of any person to receive such amount, the
Committee may direct the Trustee to retain such amount, without
liability for any interest thereon, until the rights thereto are
determined, or the Committee may direct the Trustee to pay such
amount without liability for any interest thereon, until the
rights thereto are determined, or the Committee may direct the
Trustee to pay any such amount into any court of appropriate
jurisdiction, and such payment shall be a complete discharge of
the liability of the Plan and the Trust therefor.
ARTICLE XIV. ADMINISTRATION OF THE PLAN
14.1 Powers and Duties of the Committee. The Committee
which shall have general responsibility for the administration of
the Plan (including but not limited to complying with reporting
and disclosure requirements, and establishing and maintaining
Plan records). In the exercise of its sole and absolute
discretion, the Committee shall interpret the Plan's provisions
and shall determine the eligibility of individuals for benefits.
The Committee shall appoint an Employee to act as Administrator
and to perform such duties as designated herein or by the
Committee. The Committee shall also engage such certified public
accountants and other advisers and service providers, who may be
accountants, advisers or service providers for the Company or an
Affiliate, as it shall require or may deem advisable for purposes
of the Plan.
The Committee shall have the power to appoint or remove one
or more investment advisers and to delegate to such adviser
authority and discretion to manage (including the power to
acquire and dispose of) the assets for the Plan, provided that
(a) each adviser with such authority and discretion shall be
either a bank, an insurance company or a registered investment
adviser under the Investment Advisers Act of 1940, and shall
acknowledge in writing that it is a fiduciary with respect to the
Plan and (b) the Committee shall periodically review the
investment performance and methods of each adviser with such
authority and discretion.
14.2 Powers and Duties of Trustee. The Trustee shall have
responsibility under the Plan for the management and control of
the assets of the Trust Fund and shall have discretionary
responsibility for the investment and management of such assets,
except to the extent that the Plan and Trust expressly provide
that the Trustee is subject to the direction of the Committee
with respect to all or a portion of the Trust Fund or the
DII0D240 25879-9 II-48
<PAGE>
direction of a Member with respect to the investment of the
Member's Account in accordance with Section 4.3, in which case
the Trustee shall be subject to proper directions of the
Committee or Member which are made in accordance with the terms
of the Plan and are not contrary to ERISA, and except to the
extent that the Trustee is subject to the direction of an
investment adviser pursuant to Section 14.10.
14.3 Agents; Report of Committee to Board. The Committee
may arrange for the engagement of such legal counsel, who may be
counsel for the Company or an Affiliate, and make use of such
agents and clerical or other personnel as it shall require or may
deem advisable for purposes of the Plan. The Committee may rely
upon the written opinion of such counsel and the accountants
engaged by the Committee, and may delegate to any such agent, or
to any subcommittee or member of the Committee its authority to
perform any act hereunder, including, without limitation, those
matters involving the exercise of discretion, provided that such
delegation shall be subject to revocation at any time at the
discretion of the Committee. The Committee shall report to the
Board, or to a committee of the Board designated for that
purpose, as frequently as shall be specified by the Board or such
committee, with regard to the matters for which it is responsible
under the Plan.
14.4 Structure of Committee. The Committee shall consist
of 3 or more members, each of whom shall be appointed by, shall
remain in office at the will of, and may be removed with or
without cause by the Board. Any member of the Committee may
resign at any time. No member of the Committee shall be entitled
to act on or decide any matter relating solely to such member or
any of such member's rights or benefits under the Plan. In the
event that the Committee is unable to act in any matter by reason
of the foregoing restriction, the Board shall act on such matter.
The members of the Committee shall not receive any special
compensation for serving in the capacities as members of the
Committee but shall be reimbursed for any reasonable expenses
incurred in connection therewith. Except as otherwise required
by ERISA, no bond or other security need be required of the
Committee or any member thereof in any jurisdiction. Any member
of the Committee, any subcommittee or agent to whom the Committee
delegates any authority, and any other person or group of
persons, may serve in more than one fiduciary capacity (including
service both as a trustee and administrator) with respect to the
Plan.
14.5 Adoption of Procedures of Committee. The Committee
shall establish its own procedures and the time and place for its
meetings, and provide for the keeping of minutes of all meetings.
A majority of the members of the Committee shall constitute a
quorum for the transaction of business at a meeting of the
Committee. Any action of the Committee may be taken upon the
affirmative vote of a majority of the members of the Committee at
DII0D240 25879-9 II-49
<PAGE>
a meeting. The Committee may also act without meeting by
unanimous written consent.
14.6 Instructions for Disbursements. All requests or
directions for payment, distribution or disbursement from the
Plan shall be signed by a member of the Committee or such other
person or persons as the Committee may from time to time
designate in writing. This person shall cause to be kept full
and accurate accounts of receipts and disbursements of the Plan,
shall cause to be deposited all funds of the Plan to the name and
credit of the Plan in such depositories as may be designated by
the Committee, shall cause to be disbursed the monies and funds
of the Plan when so authorized by the Committee, and shall
generally perform such other duties as may be assigned to such
person from time to time by the Committee.
14.7 Claims for Benefits. All claims for benefits under
the Plan shall be submitted in writing to the Committee. Within
a reasonable period of time the Committee shall decide the claim
by majority vote in the exercise of its sole and absolute
discretion. Written notice of the decision on each such claim
shall be furnished within 90 days after receipt of the claim;
provided that, if special circumstances require an extension of
time for processing the claim, an additional 90 days from the end
of the initial period shall be allowed for processing the claim,
in which event the claimant shall be furnished with a written
notice of the extension prior to the termination of the initial
90-day period indicating the special circumstance requiring an
extension. If the claim is wholly or partially denied, such
written notice shall set fmrth an explanation of the specific
findings and conclusions on which such denial is based. A
claimant may review all pertinent documents and may request a
review by the Committee of such a decision denying the claim.
Such a request shall be made in writing and filed with the
Committee within 60 days after delivery to said claimant of
written notice of said decision. Such written request for review
shall contain all additional information which the claimant
wishes the Committee to consider. The Committee may hold any
hearing or conduct any independent investigation which it deems
necessary to render its decision, and the decision on review
shall be made as soon as possible after the Committee's receipt
of the request for review. Written notice of the decision on
review shall be furnished to the claimant within 60 days after
receipt by the Committee of a request for review, unless special
circumstances require an extension of time for processing, in
which event an additional 60 days shall be allowed for review and
the claimant shall be so notified in writing. Written notice of
the decision on review shall include specific reasons for such
decision. For all purposes under the Plan, such decisions on
claims (where no review is requested) and decisions on review
(where review is requested) shall be final, binding and
conclusive on all interested parties as to participation and
benefit eligibility, the Employee's amount of Compensation and as
DII0D240 25879-9 II-50
<PAGE>
to any other matter of fact or interpretation relating to the
Plan.
14.8 Hold Harmless. To the maximum extent permitted by
law, no member of the Committee shall be personally liable by
reason of any contract or other instrument executed by such
member or on such member's behalf in such member's capacity as a
member of the Committee nor for any mistake of judgment made in
good faith, and the Company shall indemnify and hold harmless,
directly from its own assets (including the proceeds of any
insurance policy the premiums of which are paid from the
Company's own assets), each member of the Committee and each
other officer, employee, or director of the Company or an
Affiliate to whom any duty or power relating to the
administration or interpretation of the Plan or to the management
and control of the assets of the Plan may be delegated or
allocated, against any cost or expense (including counsel fees)
or liability (including any sum paid in settlement of a claim
with the approval of the Company) arising out of any act or
omission to act in connection with the Plan unless arising out of
such person's own fraud or bad faith.
14.9 Service of Process. The Secretary of the Company or
such other person designated by the Board shall be the agent for
service of process under the Plan.
14.10 Investment Adviser. If the Committee appoints an
investment adviser pursuant to Section 14.1 with respect to all
or a portion of the Trust Fund, the Trustee shall invest and
reinvest such portion of the Trust Fund only to the extent and in
the manner directed by the investment adviser in writing. In
performing its investment duties, the investment adviser shall
have, with respect to such portion of the Trust Fund, all of the
powers of the Trustee provided herein and in the Trust Agreement.
If the Trustee does not receive written instructions from an
investment adviser with respect to such portion of the Trust
Fund, the Trustee shall, after providing notice to the investment
adviser, invest such amounts in short-term securities of the
United States or any instrumentality thereof or in one or more
investment companies commonly known as "money market" funds, and
with the consent of the Committee in a common fund maintained by
the Trustee for short-term investments. If the investment
adviser resigns, or is removed, or is no longer a qualified
investment adviser as defined in ERISA, the Trustee shall
reassume complete investment responsibility for such portion of
the Trust Fund unless and until a new qualified investment
adviser is appointed by the Committee.
Unless the Trustee participates knowingly in, or knowingly
undertakes to conceal, an act or omission of the investment
adviser, knowing such act or omission to be a breach of the
fiduciary responsibility of the investment adviser with respect
to the Plan, the Trustee shall not be liable for any act or
DII0D240 25879-9 II-51
<PAGE>
omission of the investment adviser and shall not be under any
obligation to invest or otherwise manage the assets of the Plan
that are subject to the management of the investment adviser and,
to the maximum extent permitted by ERISA, the Trustee shall have
no liability or responsibility for acting or not acting in
accordance with, any written direction of the investment adviser.
The Company agrees, to the extent permitted by law, to indemnify
the Trustee and hold it harmless from and against any claim or
liability that may be asserted against it, otherwise than on
account of the Trustee's own negligence or willful misconduct,
for reason of the Trustee's taking or refraining from taking any
action in accordance with this Section 14.10.
ARTICLE XV. TRANSFER OF PLAN ASSETS TO SUCCESSOR PLAN
No transfer of the Plan's assets and liabilities to a
successor employee benefit plan (whether by merger or
consolidation with such successor plan or otherwise) shall be
made unless (a) the Committee authorizes such transfer and
(b) each Member would, if either the Plan or such successor plan
then terminated, receive a benefit immediately after such
transfer which (after taking account of any distributions or
payments to them as part of the same transaction) is equal to or
greater than the benefit such Member would have been entitled to
receive immediately before such transfer if the Plan had then
been terminated. The Committee may also request appropriate
indemnification (as permitted by law) from the employer or
employers maintaining such successor plan before making such a
transfer.
ARTICLE XVI. AMENDMENT OR TERMINATION OF THE PLAN AND TRUST
16.1 Right to Amend, Suspend or Terminate Plan.
(a) Subject to the provisions of Section 16.1(c), the Board
reserves the right at any time to amend, suspend or terminate the
Plan, any contributions thereunder, the Trust, or any contract
issued by an insurance carrier forming a part of the Plan, in
whole or in part, and for any reason and without the consent of
any Member, Beneficiary, Surviving Spouse or other eligible
survivor. The Plan shall automatically be terminated upon
complete and final discontinuance of contributions thereunder.
(b) The Committee may adopt any ministerial and
nonsubstantive amendment which may be necessary or appropriate to
facilitate the administration, management and interpretation of
the Plan or to conform the Plan thereto, or to qualify or
maintain the Plan and the Trust as a plan and trust meeting the
requirements of Sections 401(a), 401(k) and 501(a) of the Code or
any other applicable section of law and the Regulations issued
thereunder, provided said amendment does not have any material
DII0D240 25879-9 II-52
<PAGE>
effect on the currently estimated cost to the Company of
maintaining the Plan.
(c) No amendment or modification shall be made which would
retroactively (1) reduce, in contravention of section
411(d)(6) of the Code, any accrued benefits or (2) make it
possible for any part of the funds of the Plan (other than such
part as is required to pay taxes, if any, and administrative
expenses as provided in Section 17.12) to be used for or diverted
to any purposes other than for the exclusive benefit of Member
and the Beneficiaries and Surviving Spouses and other eligible
survivors under the Plan prior to the satisfaction of all
liabilities with respect thereto.
16.2 Retroactivity. Subject to the provisions of Section
16.1 (except Section 16.1(c)(1)), any amendment, modification,
suspension or termination of any provisions of the Plan may be
made retroactively if necessary or appropriate to qualify or
maintain the Plan, the Trust and any contract with an insurance
company which may form a part of the Plan as a plan and trust
meeting the requirements of Sections 401(a), 401(k) and 501(a) of
the Code or any other applicable section of law and the
Regulations issued thereunder.
16.3 Notice. Notice of any amendment, modification,
suspension or termination of the Plan shall be given by the Board
or the Committee, whichever adopts the amendment, to the other
and to the Trustee.
16.4 No Further Contributions. Upon termination of the
Plan or a complete discontinuance of contributions, the Company
shall not make any further contributions under the Plan, and no
amount shall thereafter be payable under the Plan to or in
respect of any Member except as provided in this Article. To the
maximum extent permitted by ERISA, transfers, distributions or
other dispositions of the assets of the Plan as provided in this
Article shall constitute a complete discharge of all liabilities
under the Plan. The Committee shall remain in existence and all
of the provisions of the Plan which in the opinion of the
Committee are necessary for the execution of the Plan and the
administration, distribution, transfer or other disposition of
the assets of the Plan in accordance with this Section shall
remain in force.
After adjustment for profits and losses of the Trust Fund to
such termination date in the manner described in Article V, each
Account of a Member who has not incurred a Break in Service which
contains an Accrued Benefit (determined without regard to this
Section) as of the date of such termination shall be fully vested
as of such date.
Except as may be prohibited by Section 411(a)(11) of the
Code and the Regulations thereunder, upon or after the
DII0D240 25879-9 II-53
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termination of the Plan, the Board may terminate the Trust and
upon such termination the Trustee shall pay in a single sum to
each Member the full amount credited to such Member's individual
Account. Without limiting the foregoing, any such distributions
may be made in cash, other property, or any combination, as the
Committee in its sole discretion may direct.
All determinations, approvals and notifications referred to
above shall be in form and substance and from a source
satisfactory to counsel for the Plan.
16.5 Partial Termination. In the event that a "partial
termination" (within the meaning of Section 411(d)(3) of the
Code) of the Plan has occurred then (a) the interest of each
affected Member in such Member's Account as to whom such
termination occurred shall thereupon be nonforfeitable, but shall
otherwise be payable as though such termination has not occurred
and (b) the provisions of Sections 16.2, 16.3 and 16.4 which in
the opinion of the Committee are necessary for the execution of
the Plan and the allocation and distribution of the assets of the
Plan shall apply; provided, however, that the Board, in its
discretion, subject to any necessary governmental approval, may
direct that the amounts held in the Accounts of such Members as
to whom such partial termination occurred be segregated by the
Trustee as a separate plan and applied for the benefit of such
Members in the manner described in Section 16.4 above.
ARTICLE XVII. GENERAL LIMITATIONS AND PROVISIONS
17.1 All Risks on Members and Beneficiaries. Each Member
and Beneficiary shall assume all risk in connection with any
decrease in the value of the assets of the Trust Fund and the
Members' Accounts. The Company and the Committee shall not be
liable or responsible for any decrease in the value of the assets
of the Trust and the Members' Accounts.
17.2 Trust Fund is Sole Source of Benefits. The Trust Fund
shall be the sole source of benefits under the Plan and, except
as otherwise required by ERISA, the Company and the Committee
assume no liability or responsibility for payment of such
benefits, and each Member, Beneficiary or other person who shall
claim the right to any payment under the Plan shall be entitled
to look only to the Trust Fund for such payment and shall not
have any right, claim or demand therefor against the Company, the
Committee or any member thereof, or any employee or director of
the Company.
17.3 No Right to Continued Employment. Nothing contained
in the Plan shall give any Employee the right to be retained in
the employment of the Company or any of its subsidiaries or
affiliated or associated corporations or affect the right of any
such employer to dismiss any Employee. The adoption and
DII0D240 25879-9 II-54
<PAGE>
maintenance of the Plan shall not constitute a contract between
the Company and Employee or consideration for, or an inducement
to or condition of, the employment of any Employee.
17.4 Payment on Behalf of Payee. If the Committee shall
find that any person to whom any amount is payable under the Plan
is unable to care for such Member's affairs because of illness or
accident, or is a minor, or has died, then any payment due such
Member or such Member's estate (unless a prior claim therefor has
been made by a duly appointed legal representative) may, if the
Committee so elects, be paid to such Member's spouse, a child, a
relative, an institution maintaining or having custody of such
person, or any other person deemed by the Committee to be a
proper recipient on behalf of such person otherwise entitled to
payment. Any such payment shall be a complete discharge of the
liability of the Plan and the Trust therefor.
17.5 Nonalienation. Except insofar as applicable law may
otherwise require or pursuant to a Qualified Domestic Relations
Order, as defined below, no economic interest, expectancy,
benefit, payment, claim or right of any Member or Beneficiary
under the Plan and the Trust shall be subject in any manner to
any claims of any creditor of any Member or Beneficiary, nor to
alienation by anticipation, sale, transfer, assignment,
bankruptcy pledge, attachment, charge or encumbrance of any kind.
If any person shall attempt to take any action contrary to this
Section, such action shall be null and void and of no effect, and
the Trustee shall disregard such action and shall not in any
manner be bound thereby and shall suffer no liability on account
of its disregard thereof.
For purposes of the Plan, a "Qualified Domestic Relation
Order" means any judgment, decree or order (including approval of
a property settlement agreement) which has been determined by the
Committee in accordance with procedures established under the
Plan to constitute a qualified domestic relations order within
the meaning of Section 414(p)(1) of the Code.
17.6 Missing Payee. If the Committee cannot ascertain the
whereabouts of any person to whom a payment is due under the
Plan, and if, after 5 years from the date such payment is due, a
notice of such payment due is mailed to the last known address of
such person, as shown on the records of the Committee or the
Company, and within 3 months after such mailing such person has
not made written claim therefor, the Committee, if it so elects,
after receiving advice from counsel to the Plan, may direct that
such payment and all remaining payments otherwise due to such
person be canceled on the records of the Plan and the amount
thereof forfeited and applied to reduce the contributions of the
Company and upon such cancellation, the Plan and Trust shall have
no further liability therefor, except that, in the event such
person later notifies the Committee of such person's whereabouts
and requests the payment or payments due to such persons under
DII0D240 25879-9 II-55
<PAGE>
the Plan, the amounts so applied shall be paid to such persons as
provided herein.
17.7 Required Information. Each Member shall file with the
Committee such pertinent information concerning such Member, such
Member's spouse and such Member's Beneficiary, or such other
person as the Committee may specify, and no Member, or
Beneficiary, or other person shall have any rights or be entitled
to any benefits under the Plan unless such information is filed
by or with respect to such Member.
17.8 Subject to Trust Agreement. Any and all rights or
benefits accruing to any persons under the Plan shall be subject
to the terms of the Trust Agreement which the Company shall enter
into with the Trustee providing for the administration of the
Trust Fund.
17.9 Communications to Committee. All elections,
designations, requests, notices, instructions and other
communications from the Company, a Member, Beneficiary or other
person to the Committee required or permitted under the Plan
shall be in such form as is prescribed from time to time by the
Committee, shall be mailed by first class mail or delivered to
such location as shall be specified by the Committee, and shall
be deemed to have been given and delivered only upon actual
receipt thereof by the Committee at such location.
17.10 Transfers. The Plan and Trust may accept funds
transferred to the Plan or Trust from an employee benefit plan
qualified under Section 401(a) of the Code, except that the Plan
and Trust may not accept any amounts transferred from a defined
benefit or money purchase pension plan or any other defined
contribution plan subject to the joint and survivor annuity
requirements of Code Section 401(a)(11) and may not accept,
without the approval of the Committee, any transfer that does not
qualify as an elective transfer under Treasury Regulation Sect.
1.411(d)-4(A-3(b)), as amended from time to time. Any amounts so
accepted on behalf of a Member shall be held in such Member's
Rollover Subaccount.
17.11 Communications from the Company or Committee. All
notices, statements, reports and other communications from the
Company or the Committee to any Employee, Member, Surviving
Spouse, Beneficiary or other person required or permitted under
the Plan shall be deemed to have been duly given when delivered
to, or when mailed by first class mail, postage prepaid and
addressed to, such Employee, Member, Surviving Spouse,
Beneficiary or other person at such address last appearing on the
records of the Committee, or when posted by the Company or the
Committee as permitted by law.
17.12 Fees and Expenses. The expenses of administering the
Plan including (a) the fees and expenses of any Employee and of
DII0D240 25879-9 II-56
<PAGE>
the Trustee for the performance of their duties under the Trust,
(b) the expenses incurred by the members of the Committee in the
performance of their duties under the Plan (including reasonable
compensation for any legal counsel, certified public accountants
and any agents and cost of services rendered in respect of the
Plan), and (c) all other proper charges and disbursements of the
Trustee or the members of the Committee (including settlements of
claims or legal actions brought against any party, including the
Trustee, approved by the Company and the Committee, after
consulting with counsel to the Plan), are to be paid by the Plan
unless paid in full by the Company. In estimating costs under
the Plan, administrative costs may be anticipated. The members
of the Committee shall not receive any special compensation for
serving in their capacities as members of the Committee.
17.13 Voting and Tender or Exchange Rights. Except as
otherwise required by ERISA, the Code and Regulations, all voting
rights of Shares shall be exercised by the Trustee and the
Members or their Beneficiaries in accordance with the following
provisions of this Section:
(a) With respect to all corporate matters submitted to
shareholders, all Shares shall be voted only in accordance with
the directions of the Members as given to the Committee and
communicated in turn by the Committee to the Trustee. Each
Member shall be entitled to direct the voting of only the Shares
(including fractional Shares to 1/100th of a Share) allocated to
such Member's Account, and if this subsection applies to Shares
allocated to the Account of a deceased Member, such Member's
Beneficiary shall be entitled to direct the voting with respect
to such Shares as if such Beneficiary were the Member.
(b) If Members are entitled under this Plan to direct the
vote of Shares with respect to a matter, then, before each annual
or special shareholders' meeting of Carolina Freight Corporation
at which the matter is to be voted, the Company shall furnish to
each Member a copy of the proxy solicitation material sent
generally to shareholders, together with a form requesting
instructions on how the Shares with respect to which the Member
has voting rights and responsibility (including fractional Shares
to 1/100th of a Share) are to be voted. Upon timely receipt of
such instructions, the Trustee (after combining votes of
fractional Shares to give effect to the greatest extent possible
to Members' instructions) shall vote the Shares as instructed.
Neither the Trustee nor the Committee shall make recommendations
to Members on whether to vote or how to vote. If voting
instructions of any Member are not timely received for a
particular shareholders' meeting, the Shares for which the Member
is responsible shall not be voted.
(c) With respect to any matter as to which voting
instructions are not required to be solicited from Members under
this Plan, the Trustee shall vote all Shares held in the Trust
DII0D240 25879-9 II-57
<PAGE>
Fund. Any vote by the Trustee shall be made in its sole
discretion, after it determines such action to be in the best
interests of the Members and their Beneficiaries.
(d) The Company shall notify each Member of each tender or
exchange offer for the Shares and utilize its best efforts to
distribute or cause to be distributed to each Member in a timely
manner all information distributed to shareholders of Carolina
Freight Corporation in connection with any such tender or
exchange offer. Each Member shall have the right from time to
time with respect to the Shares allocated to such Member's
Account (including fractional Shares to 1/100th of a Share) to
instruct the Trustee in writing as to the manner in which to
respond to any tender or exchange offer which shall be pending or
which may be made in the future for all such Shares or any
portion thereof. A Member's instructions shall remain in force
until superseded in writing by the Member. The Trustee shall
tender or exchange whole Shares only as and to the extent so
instructed. If the Trustee shall not receive instructions from a
Member regarding any tender or exchange offer for Shares, the
Trustee shall tender or exchange any Shares allocated to such
Member's Account in the same proportion as the tendering of
Shares for which instructions were received.
(e) If Section 17.13(d) applies to Shares allocated to the
Account of a deceased Member, such Member's Beneficiary shall be
entitled to direct the manner in which to respond to any tender
or exchange offer as if such Beneficiary were the Member.
17.14 Exclusive Benefit of Members and Beneficiaries. In
no event shall any part of the funds of the Plan be used for or
diverted to any purposes other than for the exclusive benefit of
Members and their Beneficiaries under the Plan except as
permitted under Section 403(c) of ERISA. Upon the transfer by
the Company of any money to the Trustee, all interest of the
Company therein shall cease and terminate.
17.15 Additional Powers of the Committee. Notwithstanding
any provision of the Plan to the contrary, the Committee shall
have those additional powers, rights and obligations provided
under the Trust Agreement.
DII0D240 25879-9 II-58
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Plan to be
executed this ____ day of ______________, 1995, to be effective
as specified above.
COMPLETE LEASING CONCEPTS, INC.
By:______________________________
[Corporate Seal] President
ATTEST:
_________________________
Secretary
DII0D240 25879-9 II-59
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</TABLE>
