-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N87sgUv3dtuqVPPIghXkQWC1pKRvKRNjYGz8CahE+i9kuTzTOy9e79rWcm35iPYX f2mNkTLs8j8qXtrwzPHRLw== 0000950152-97-004287.txt : 19970602 0000950152-97-004287.hdr.sgml : 19970602 ACCESSION NUMBER: 0000950152-97-004287 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 15 FILED AS OF DATE: 19970530 EFFECTIVENESS DATE: 19970530 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CALIBER SYSTEM INC CENTRAL INDEX KEY: 0000701708 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 341365496 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-28163 FILM NUMBER: 97617287 BUSINESS ADDRESS: STREET 1: 3925 EMBASSY PARKWAY STREET 2: P O BOX 5459 CITY: AKRON STATE: OH ZIP: 44334-0459 BUSINESS PHONE: 2163848184 MAIL ADDRESS: STREET 1: 3925 EMBASSY PARKWAY STREET 2: P O BOX 5459 CITY: AKRON STATE: OH ZIP: 44334-0459 FORMER COMPANY: FORMER CONFORMED NAME: ROADWAY SERVICES INC DATE OF NAME CHANGE: 19920703 S-8 1 CALIBER SYSTEM, INC. 1 As filed with the Securities and Exchange Commission on May 30, 1997 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------- CALIBER SYSTEM, INC. (Exact name of registrant as specified in charter) Ohio 34-1365496 (State or Other Jurisdiction (I.R.S. Employer Identification No.) of Incorporation or Organization) 3925 Embassy Parkway, Akron, Ohio 44333 (Address, including ZIP Code, of registrant's principal executive offices) CALIBER SYSTEM, INC. 401(k) SAVINGS PLAN (Full title of the plan) John E. Lynch, Jr. Vice President, General Counsel and Secretary Caliber System, Inc. 3925 Embassy Parkway Akron, Ohio 44333 (330) 665-5646 (Name, address, including ZIP Code, and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE ================================================================================================================ Title of securities Amount Proposed maximum Proposed maximum Amount of to be to be offering price aggregate registration registered(1) registered(2) per share(3) offering price(3) fee(3) - ----------------------------------------------------------------------------------------------------------------- Shares of Common Stock without par 2,225,000 $ 32.25 $71,756,250 $21,744.32 value (1) Pursuant to Rule 416(c), this registration statement also covers an indeterminate amount of interests to be offered pursuant to the Caliber System, Inc. 401(k) Savings Plan. (2) The total number of shares of common stock reserved and available for distribution. Pursuant to Rule 416, this Form S-8 Registration Statement shall be deemed to cover any additional securities issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. (3) The registration fee has been calculated in accordance with Rule 457(h) based on the average of the high and low prices of the common stock without par value reported on the New York Stock Exchange on May 22, 1997, which average was $32.25.
2 PART II Pursuant to General Instruction E to Form S-8, the contents of Registration Statement No. 33-52605 on Form S-8 filed by Caliber System, Inc. (formerly Roadway Services, Inc., the "Company") with the Securities and Exchange Commission on March 10, 1994 and amended by Post-Effective Amendment No. 1 to such Registration Statement filed by the Company on December 28, 1995 are incorporated herein by reference. The Caliber System, Inc. Stock Savings and Retirement Income Plan and Trust was renamed the Caliber System, Inc. 401(k) Savings Plan (the "Plan") effective July 1, 1996. Effective October 1, 1996, the Financial Security Plan and Trust and the Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan merged into the Plan pursuant to an Instrument Merging Plans and Trusts. ITEM 8. EXHIBITS. 4.1 Second Amended Articles of Incorporation of the Company (filed as Exhibit 3.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1995, and incorporated herein by reference). 4.2 Restated Amended Code of Regulations of the Company effective May 10, 1989 (filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year ended December 31, 1992, and incorporated herein by reference). 4.3 Caliber System, Inc. and Keybank National Association Rights Agreement dated August 22, 1996 including Form of Rights Certificate (Exhibit A) and Summary of Rights (Exhibit B) (filed as Exhibit 4.2 to the Company's Current Report on Form 8-K dated August 22, 1996 and Form 8-K/A dated September 12, 1996, and incorporated herein by reference). 4.4 Caliber System, Inc. 401(k) Savings Plan. (a) Roadway Services, Inc. Stock Savings and Retirement Income Plan and Trust (filed as Exhibit 4(c) to Post-Effective Amendment No. 1 to Registration Statement No. 33-52605 filed by the Company on December 28, 1995, and incorporated herein by reference). (b) Amendment No. 1 to Roadway Services, Inc. Stock Savings Retirement Income Plan and Trust (filed as Exhibit 4(d) to Post-Effective Amendment No. 1 to Registration Statement No. 33-52605 filed by the Company on December 28, 1995, and incorporated herein by reference). (c) Amendment No. 2 to Roadway Services, Inc. Stock Savings Retirement Income Plan and Trust. (d) Amendment No. 3 to Roadway Services, Inc. Stock Savings Retirement Income Plan and Trust. (e) Amendment No. 4 to Caliber System, Inc. Stock Savings and Retirement Income Plan and Trust. (f) The Financial Security Plan and Trust. (g) Amendment No. 1 to the Financial Security Plan and Trust. (h) Amendment No. 2 to the Financial Security Plan and Trust. (i) Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan. II - 1 3 (j) Amendment No. 1 to Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan. (k) Amendment No. 2 to Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan. (l) Amendment No. 3 to Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan. (m) Instrument Merging Plans and Trusts. 23 Consent of Independent Auditors. 24.1 Power of Attorney on behalf of the Company. 24.2 Power of Attorney on behalf of the Plan. UNDERTAKING: The undersigned registrant has submitted the Plan and any amendments thereto to the Internal Revenue Service and has made all changes required by the Internal Revenue Service in order to qualify the Plan. II - 2 4 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING THIS REGISTRATION STATEMENT ON FORM S-8 AND HAS DULY CAUSED THIS TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF AKRON, STATE OF OHIO, ON THIS 30TH DAY OF MAY 1997. CALIBER SYSTEM, INC. By: /s/ John E. Lynch, Jr. ------------------------------------------ Name: John E. Lynch, Jr. Title: Vice President, General Counsel and Secretary II - 3 5 PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date --------- ----- ---- * /s/ Daniel J. Sullivan Director, Chairman, President and May 30, 1997 ------------------------------ Chief Executive Officer Daniel J. Sullivan (Principal Executive Officer) * /s/ Louis J. Valerio Senior Vice President-Finance and May 30, 1997 ------------------------------ Chief Financial Officer Louis J. Valerio (Principal Financial Officer) * /s/ Kathryn W. Dindo Vice President and Controller May 30, 1997 ------------------------------ (Principal Accounting Officer) Kathryn W. Dindo * /s/ George B. Beitzel Director May 30, 1997 ------------------------------ George B. Beitzel * /s/ Richard A. Chenoweth Director May 30, 1997 ------------------------------ Richard A. Chenoweth * /s/ Norman C. Harbert Director May 30, 1997 ------------------------------ Norman C. Harbert * /s/ Harry L. Kavetas Director May 30, 1997 ------------------------------ Harry L. Kavetas * /s/ Charles R. Longsworth Director May 30, 1997 ------------------------------ Charles R. Longsworth * /s/ G. James Roush Director May 30, 1997 ------------------------------ G. James Roush * /s/ H. Mitchell Watson, Jr. Director May 30, 1997 ------------------------------ H. Mitchell Watson, Jr.
*This registration statement has been signed on behalf of the above officers and directors by John E. Lynch, Jr., Vice President, General Counsel and Secretary of the Company, as attorney-in-fact pursuant to a power of attorney filed as Exhibit 24.1 to this registration statement. DATED: May 30, 1997 By: /s/ John E. Lynch, Jr. ------------------------------------ John E. Lynch, Jr., Attorney-in-Fact II - 4 6 THE PLAN. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE PLAN HAS CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, HEREUNTO DULY AUTHORIZED, IN THE CITY OF AKRON, STATE OF OHIO, ON THIS 30TH DAY OF MAY 1997. CALIBER SYSTEM, INC. 401(k) SAVINGS PLAN * By: /s/ Donald C. Brown ---------------------------------- Name: Donald C. Brown Title: Member of the 401(k) Savings Plan Administrative Committee * By: /s/ John P. Chandler ---------------------------------- Name: John P. Chandler Title: Member of the 401(k) Savings Plan Administrative Committee * By: /s/ Thomas R. Warren ---------------------------------- Name: Thomas R. Warren Title: Member of the 401(k) Savings Plan Administrative Committee *This registration statement has been signed on behalf of the Caliber System, Inc. 401(k) Savings Plan through its Administrative Committee Members by John E. Lynch, Jr., Vice President, General Counsel and Secretary of the Company, as attorney-in-fact, pursuant to a power of attorney filed as Exhibit 24.2 to this registration statement. DATED: May 30, 1997 By: /s/ John E. Lynch, Jr. ---------------------------------- John E. Lynch, Jr., Attorney-in-Fact II - 5 7 EXHIBIT INDEX Exhibit Exhibit Number Description ------ ----------- 4.1 Second Amended Articles of Incorporation of the Company (filed as Exhibit 3.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1995, and incorporated herein by reference). 4.2 Restated Amended Code of Regulations of the Company effective May 10, 1989 (filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K for year ended December 31, 1992, and incorporated herein by reference). 4.3 Caliber System, Inc. and Keybank National Association Rights Agreement dated August 22, 1996 including Form of Rights Certificate (Exhibit A) and Summary of Rights (Exhibit B) (filed as Exhibit 4.2 to the Company's Current Report on Form 8-K dated August 22, 1996 and Form 8-K/A dated September 12, 1996, and incorporated herein by reference). 4.4 Caliber System, Inc. 401(k) Savings Plan. (a) Roadway Services, Inc. Stock Savings and Retirement Income Plan and Trust (filed as Exhibit 4(d) to Post-Effective Amendment No. 1 to Registration Statement No. 33-52605 filed by the Company on December 28, 1995, and incorporated herein by reference). (b) Amendment No. 1 to Roadway Services, Inc. Stock Savings Retirement Income Plan and Trust (filed as Exhibit 4(c) to Post-Effective Amendment No. 1 to Registration Statement No. 33-52605 filed by the Company on December 28, 1995, and incorporated herein by reference). (c) Amendment No. 2 to Roadway Services, Inc. Stock Savings Retirement Income Plan and Trust. (d) Amendment No. 3 to Roadway Services, Inc. Stock Savings Retirement Income Plan and Trust. (e) Amendment No. 4 to Caliber System, Inc. Stock Savings Retirement Income Plan and Trust. (f) The Financial Security Plan and Trust. (g) Amendment No. 1 to the Financial Security Plan and Trust. (h) Amendment No. 2 to the Financial Security Plan and Trust. (i) Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan. (j) Amendment No. 1 to Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan. (k) Amendment No. 2 to Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan. (l) Amendment No. 3 to Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan. II - 6 8 (m) Instrument Merging Plans and Trusts. 23 Consent of Independent Auditors. 24.1 Power of Attorney on behalf of the Company. 24.2 Power of Attorney on behalf of the Plan. II - 7 EX-4.C 2 EXHIBIT 4.C 1 Exhibit 4.4(c) AMENDMENT NO. 2 TO THE ROADWAY SERVICES, INC. STOCK SAVINGS AND RETIREMENT INCOME PLAN AND TRUST (Amended and Restated Effective January 1, 1994) ------------------------------------------------ THIS AMENDMENT NO. 2 is made and executed this 28th day of December, 1995, by and between Roadway Services, Inc. (hereinafter referred to as the "Company") and National City Bank, Cleveland, Ohio (hereinafter referred as the "Trustee"). Except as otherwise specified herein, this Amendment No. 2 shall be effective January 1, 1996. WITNESSETH: ----------- WHEREAS, effective January 1, 1979, Roadway Express, Inc. established the Roadway Express, Inc. Employee Stock Savings Plan and Trust; WHEREAS, effective July 30, 1982, Roadway Express, Inc. became a wholly owned subsidiary of Roadway Services, Inc., an Ohio corporation, pursuant to an Agreement and Plan of Merger and Reorganization, and, effective January 1, 1983, Roadway Services, Inc. adopted the Plan, the name of which was changed to the Roadway Services, Inc. Employees Stock Savings Plan and Trust (Amended and Restated); WHEREAS, effective January 1, 1989, the name of the Plan was changed to the Roadway Services, Inc. Stock Savings and Retirement Income Plan and Trust (Amended and Restated); WHEREAS, the Plan was last amended and restated effective January 1, 1994; 2 2 WHEREAS, on or about January 1, 1996, Roadway Express, Inc. will, pursuant to a spin-off, no longer be affiliated with the Company; WHEREAS, Article XIII of the Plan sets forth the provisions whereby the Plan may be amended; and WHEREAS, the Company desires to amend the Plan to reflect the spin-off of Roadway Express, Inc. NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, it is agreed by and between the Company and the Trustee as follows: 1. Section 1.3 of the Plan is hereby amended by the addition of a new Subsection (f) at the end thereof to read as follows: (f) Notwithstanding any other provision of the Plan, a Participant who is an employee of Roadway Express, Inc. on January 1, 1996 shall not be eligible to receive his entire account balance from the Plan until he terminates employment with Roadway Express, Inc. after December 31, 1995. On and after the transfer of accounts from the Plan to the trust established under the Roadway Express, Inc. 401(k) Stock Savings Plan (the "REX Savings Plan Trust"), all benefits payable to a Participant who is an employee of Roadway Express, Inc. on or after January 1, 1996 on account of participation in the Plan for whom accounts are transferred pursuant to such Agreement shall be paid from the REX Savings Plan Trust. 3 3 2. Section 2.13 of the Plan is hereby amended in its entirety to read as follows: 2.13 Contributions ------------------- "Contributions" mean any one or more of After-Tax Contributions, Before-Tax Contributions, Matching Employer Contributions and Rollover Contributions, as the context requires. 3. Section 2.36 of the Plan is hereby amended by the addition of a new Subsection (f) at the end thereof to read as follows: (f) (Roadway Express, Inc.) An Employee's Period of Service shall not include service with Roadway Express, Inc. on or after January 1, 1996. 4. New Sections 2.41A, 2.41B and 2.41C are hereby added to the Plan immediately following Section 2.41 to read as follows: 2.41A REX Stock ---------------- "REX Stock" means the voting common stock of Roadway Express, Inc. 2.41B REX Stock Fund --------------------- "REX Stock Fund" means the Investment Fund described in Section 7.1, which is invested solely in REX Stock. 2.41C Rollover Contributions ----------------------------- "Rollover Contributions" means cash or other property acceptable to the Committee received and held by the Trustee pursuant to the provisions of Section 4.12. 4 4 5. Section 2.45 of the Plan is hereby amended by the addition of the following sentence at the end thereof: A Participant who is employed by Roadway Express, Inc. on January 1, 1996 shall not be considered to have incurred a Termination of Employment as a result of the distribution of REX Stock by the Company. 6. The second sentence of Section 4.4 of the Plan is amended in its entirety to read as follows: A Participant may, however, in accordance with the percentages permitted by Sections 4.1 and 4.2, change the percentage of his Before-Tax Contributions and/or his After-Tax Contributions effective as of the first pay period of any calendar quarter upon prior written notice filed with the Plan Administrator within such period established by the Plan Administrator. 7. The first sentence of Section 4.5 of the Plan is hereby amended in its entirety to read as follows: Upon prior written notice filed with the Plan Administrator, within such period established by the Plan Administrator, a Participant may at any time suspend his Before-Tax Contributions and/or After-Tax Contributions effective with the start of the next payroll period following the expiration of such period, provided such suspension must be made for not less than one (1) calendar quarter. 8. A new Section 4.12 is hereby added to the Plan immediately following Section 4.11 to read as follows: 4.12 Rollover Contributions ---------------------------- The Trustee shall, at the direction of the Committee, receive and thereafter hold and administer as a part of the Trust Fund for a Covered Employee cash or other property acceptable to the Committee which shall have been distributed to the Participant from a trust (which is described in Code Section 401(a) and exempt from tax under Code Section 501(a)) under another plan in which the Participant was a participant in a distribution which constitutes an "eligible 5 5 rollover distribution" under Code Section 401(a)(31) or Code Section 402(c)(4). The Committee may impose such requirements as it deems necessary to insure, to the extent possible, that the amounts proposed to be transferred hereto comply with the requirements of this Section. 9. The first sentence of Subsection (a) of Section 7.1 of the Plan is hereby amended in its entirety to read as follows: The Trust Fund will be divided into the Company Stock Fund and such additional Investment Funds as the Company may in its discretion select or establish (which may be more fully described in Exhibit B), and Contributions will be invested in the Investment Funds as provided in Section 7.5 10. The first sentence of Section 7.2 of the Plan is hereby amended in its entirety to read as follows: The Plan Administrator shall establish and maintain, or cause to be established and maintained, an Account for each Participant, which Account will reflect, pursuant to Sub-Accounts established and maintained thereunder, the amount, if any, of the Participant's (a) Before-Tax Contributions, (b) After-Tax Contributions, (c) Matching Employer Contributions and (d) Rollover Contributions. 11. The fourth sentence of Subsection 7.4(b) of the Plan is hereby amended in its entirety to read as follows: For this purpose, the transfer of funds to or from an Investment Fund pursuant to Section 7.6, Contributions allocated to an Investment Fund, and payments, distributions and withdrawals from an Investment Fund to provide benefits under the Plan for Participants or Beneficiaries will not be deemed to be income or losses of the Investment Fund. 6 6 12. Subsection 7.4(d) of the Plan is hereby amended in its entirety to read as follows: (d) Except as provided in Section 7.5 or as may otherwise be provided by the Committee, Contributions shall be credited to each Participant's Account and allocated in accordance with the investment option chosen by such Participant to the Investment Funds as of the first Valuation Date on or after such Contribution is made. 13. Subsection 7.5(b) of the Plan is hereby amended in its entirety to read as follows: (b) Each Participant may, by written direction to the Plan Administrator, direct that Before-Tax Contributions, After-Tax Contributions and Rollover Contributions made by or for him be invested in one or more Investment Funds subject to the following limitations: (i) a Participant may, after the Plan Year in which he attains age fifty-five (55), direct the investment of all or a portion of his Before- Tax and After-Tax Contributions; and (ii) a Participant may, regardless of his age, direct the investment of his Rollover Contributions and that portion of his Before-Tax Contributions that have not been used in determining the allocation of Matching Employer Contributions to his Account pursuant to Section 5.2. 14. Subsection 7.5(c) of the Plan is hereby amended in its entirety to read as follows: (c) An investment direction by a Participant shall remain in effect and be applicable to all subsequent Before-Tax Contributions, After-Tax Contributions and Rollover Contributions, as applicable, made by or on behalf of the Participant unless and until an investment change is made by him and becomes effective pursuant to Section 7.6. 7 7 15. Subsection 7.6(a) of the Plan is hereby amended in its entirety to read as follows: (a) Each Participant who is eligible to direct the investment of all or a portion of his Before-Tax Contributions, After-Tax Contributions and Rollover Contributions pursuant to Section 7.5(b) may, by written direction to the Plan Administrator, change his investment direction with respect to such future Contributions and/or may direct that all or a portion of his Account that is attributable to such prior Contributions (including earnings and appreciation thereon) be transferred from one Investment Fund to another Investment Fund. Notwithstanding the preceding sentence, a Participant who is an employee of Roadway Express, Inc. on January 1, 1996 shall not be permitted to change his investment direction on or after January 1, 1996. 16. Subsection 7.8(b) of the Plan is hereby amended by the addition of the parenthetical "(or such other date as the Plan Administrator may designate)" after the word "November" each time such word appears therein. 17. The portion of Subsection 8.6(a) preceding the colon is hereby amended in its entirety to read as follows: (a) Upon prior written notice filed with the Plan Administrator, within such period established by the Plan Administrator, a Participant may withdraw all or a portion of his Account (rounded to a whole share or unit) as provided and in the order set forth below: 18. Subsection 8.6(a) of the Plan is hereby amended by the addition of a new Paragraph (iv) immediately following Paragraph (iii) to read as follows, and subsequent Paragraphs of Subsection 8.6(a) are redesignated (v) and (vi) respectively: 8 8 (iv) A Participant who has withdrawn all amounts attributable to his After-Tax Contributions may withdraw all or a portion of his Account attributable to his Rollover Contributions (including the net earnings thereon). 19. Paragraphs (v) and (vi) (as redesignated by Section 18 of this Amendment) of Subsection 8.6(a) of the Plan are hereby amended in their entirety to read as follows: (v) A Participant who has withdrawn all amounts described in Paragraphs (i) through (iv) of this Subsection may withdraw all or a portion of his Account attributable to Matching Employer Contributions (including earnings and appreciation thereon); provided, however, that Matching Employer Contributions (including earnings and appreciation thereon) that have not been held in his Account for at least two (2) years may not be so withdrawn unless the Participant has been a Participant in the Plan for at least five (5) years; (vi) A Participant who is least fifty-nine and one-half (59 1/2) years old, who has withdrawn all amounts described in Paragraphs (i) through (v) of this Subsection may withdraw all or a portion of his Account attributable to Before-Tax Contributions (excluding any income allocable thereto). 20. Subsection 8.7(b) of the Plan is hereby amended in its entirety to read as follows: (b) Any Participant who makes a withdrawal pursuant to Section 8.6(a)(v) or 8.6(a)(vi) may not make any After-Tax Contributions or have any Before-Tax Contributions or Matching Employer Contributions made for him for twelve (12) months thereafter. 21. Section 8.7 of the Plan is hereby amended by the deletion of Subsection (c) thereof. 9 9 22. Subsection 8.7(d) of the Plan is hereby redesignated as Subsection 8.7(c) and amended by the deletion of the second sentence thereof. 23. Subsection 8.8(a) of the Plan is hereby amended by the addition of the following new sentence at the end thereof: Notwithstanding any other provision of this Section, effective December 15, 1995, a Participant who is an employee of Roadway Express, Inc. is not entitled to a withdrawal on account of Hardship. 24. The first sentence of Section 9.1 of the Plan is hereby amended in its entirety to read as follows: The Trustee shall invest Contributions paid to it and earnings thereon in accordance with Section 9.2. 25. Section 15.4 of the Plan is hereby amended by substituting the phrase "Employer Matching Contributions" with the phrase "Matching Employer Contributions". 26. Section 16.4 of the Plan is hereby amended by substituting the phrase "Employer Matching Contributions" with the phrase "Matching Employer Contributions" each time such phrase appears therein. 27. Exhibit A to the Plan is hereby amended by the addition of the parenthetical "(ceased to be an Employer as of January 1, 1996)" after "Roadway Express, Inc." 10 10 28. Exhibit B to the Plan is hereby amended by changing the title of Exhibit B to read "Additional Investment Funds Pursuant to Section 7.1 As of January 1, 1996" and by the addition of new Paragraphs (4) and (5) to read as follows: (4) The REX Stock Fund, to be invested in REX Stock. The REX Stock Fund shall be subject to the terms and conditions of Exhibit C. (5) Effective January 1, 1995, the Mutual Beacon Fund that seeks as its principal investment objective capital appreciation, which may occasionally be short term. A secondary objective is income. The general investment policy is to invest in common stock, preferred stock and corporate debt securities, which may be convertible into common stock. Although the Fund may invest in securities from any size issuer, it will tend to invest in securities of issuers with market capitalizations in excess of $500 million. There are no pre-set limits as to the percentage of the Fund's portfolio which may be invested in equity securities, debt securities or cash equivalents. 29. A new Exhibit C is hereby added to the Plan immediately following Exhibit B to read as follows: EXHIBIT C --------- REX Stock Fund The REX Stock Fund shall be subject to the following terms and conditions: (1) Dividends, interest and other distributions other than REX Stock received by the Trustee in respect of the REX Stock Fund shall be invested solely in the Company Stock Fund. (2) Subject to the provisions of Section 7.8, a Participant may, regardless of his age, by written direction to the Plan Administrator, direct that all or any portion of his Account which is invested in the REX Stock Fund and not otherwise eligible for 11 11 diversification pursuant to Section 7.5(b)(i) or (ii), be transferred solely to the Company Stock Fund. A Participant may not, however, direct the transfer of any portion of his Account not currently invested in the REX Stock Fund into the REX Stock Fund. (3) Each Participant shall be entitled to instruct the Trustee as to the voting of any full or partial shares of REX Stock allocated to his Account as of the applicable record date. Prior to such voting, the Participant shall receive a copy of the proxy solicitation materials and a blank form to instruct confidentially the Trustee how to vote the shares of REX Stock allocated to his Account as of the applicable record date. Upon receipt of such instructions, the Trustee shall vote the shares (or, as applicable, exercise any dissenter's rights) as instructed. The Trustee shall vote all other REX Stock in its possession (including shares for which it does not receive instruction from Participants) in accordance with Section 9.4(b). (4) Each Participant shall be entitled to instruct the Trustee as to the tendering of any full or partial shares of REX Stock allocated to his Account. Prior to such tendering, the Participant shall receive a copy of the material relating to such tender decision and a blank form to instruct confidentially the Trustee whether to tender the shares of REX Stock allocated to his Account. Upon receipt of such instructions, the Trustee shall act with respect to such shares as instructed. The Trustee shall decide whether or not to tender all other REX Stock in its possession (including shares for which it does not receive instruction from Participants) in accordance with Section 9.4(b). (5) The operation and administration of the REX Stock Fund shall be subject to the provisions of the Plan to the extent not inconsistent with the provisions of this Exhibit. 12 12 IN WITNESS WHEREOF, the Company and the Trustee have caused this Amendment No. 2 to be executed by their duly appointed officers. In the presence of: ROADWAY SERVICES, INC. By: /s/ Donald C. Brown - ---------------------- ---------------------------------- Title: V.P. Corporate Support Svcs. ------------------------------- Date: 12-21-1995 --------------------------------- NATIONAL CITY BANK By: /s/ Allen E. Loomis - ---------------------- --------------------------------- Title: Senior Vice President ------------------------------ Date: 12-28-95 ------------------------------- EX-4.D 3 EXHIBIT 4.D 1 Exhibit 4.4(d) AMENDMENT NO. 3 TO THE ROADWAY SERVICES, INC. STOCK SAVINGS AND RETIREMENT INCOME PLAN AND TRUST (Amended and Restated Effective January 1, 1994) This Amendment No. 3 to the Roadway Services, Inc. Stock Savings and Retirement Income Plan and Trust (the "Plan") is made and executed this 3rd day of June, 1996, and, except as otherwise provided, effective as of January 1, 1994, by and between Caliber System, Inc. (formerly known as Roadway Services, Inc.) and National City Bank, Cleveland, Ohio. 1. Effective January 2, 1996, the name of the Plan is changed to "Caliber System, Inc. Stock Savings and Retirement Income Plan and Trust" and all references to "Roadway Services, Inc." throughout the Plan shall be deemed to be references to "Caliber System, Inc." 2. The first sentence of Section 2.12(b) of the Plan is amended in it entirety to read as follows: Notwithstanding the foregoing provisions of this Section, for Plan Years beginning on or after January 1, 1989 and before January 1, 1994, the Compensation of an Employee taken into account under the Plan shall not exceed $200,000 and, effective for Plan Years beginning on or after January 1, 1994, such amount shall not exceed $150,000, as such amounts may be adjusted for increases in the cost of living in accordance with Code Section 401(a)(17). 2 2 3. Effective as of January 1, 1996, Section 2.16 of the Plan is amended in its entirety to read as follows: 2.16 Covered Employee --------------------- Effective as of January 1, 1996, 'Covered Employee' means any Employee of an Employer who is in a class or group to which the Employer has extended eligibility for participation in the Plan, excluding, however, any Employee who (a) is included in a collective bargaining unit (either directly or through an employer's association) unless the collective bargaining agreement expressly provides that the Employee is to be eligible under the Plan, (b) is a non-resident alien (other than an alien who is only temporarily located outside of the United States) or (c) is a leased employee (as defined in Section 2.20). 4. Effective as of January 1, 1996, Section 2.28 of the Plan is amended in its entirety to read as follows: 2.28 Hours of Service ---------------------- (a) Effective as of January 1, 1996, 'Hours of Service' means an hour for which an Employee is paid, or entitled to payment, by one or more Controlled Group Members for the performance of duties as an Employee and, with respect to an Employee who is designated by his Employer as a 'temporary or casual employee,' shall be determined in accordance with the provisions of 29 C.F.R. Section 2530.200b-2(a) and (b), which provisions are incorporated herein by reference. (b) For purposes of determining the Hours of Service of an Employee designated by his Employer as a 'temporary or casual employee,' Hours of Service shall be credited to eligibility computation periods and Plan Years in accordance with the provisions of 29 C.F.R. Section 2530.200b-2(c), which provisions are incorporated herein by reference. (c) Anything in the Plan to the contrary notwithstanding, for purposes of determining the Hours of Service of an Employee designated by his Employer as a 'temporary or casual employee,' such Employee shall be credited with such Hours of 3 3 Service not otherwise credited to him under the Plan as may be required by any applicable law. 5. Effective as of January 1, 1996, new Sections 2.34(c) and (d) are added to the Plan immediately following Section 2.34(b) to read as follows: (c) Effective as of January 1, 1996 and notwithstanding the provisions of Subsection (a) of this Section, with respect to an Employee who is designated by his Employer as a 'temporary or casual employee,' '1-Year Break in Service' means a Plan Year in which such Employee does not complete more than 500 Hours of Service. (d) Effective as of January 1, 1996 and notwithstanding the provisions of Subsection (b) of this Section, if an Employee who is designated by his Employer as a 'temporary or casual employee' is absent from work for any period due to (i) the pregnancy of the Employee, (ii) the birth of a child of the Employee, (iii) the placement of a child of the Employee in connection with the adoption of such child by the Employee, or (iv) caring for a child for a period beginning immediately following the birth or placement of such child, such Employee shall receive credit for Hours of Service equal to: (A) the number of Hours of Service which otherwise would normally have been credited to him but for the absence; or (B) if the number of Hours of Service under Subparagraph (A) is not determinable, eight (8) Hours of Service per normal work day of the absence; provided, however, that no more than 501 Hours of Service shall be credited under this Subsection by reason of the absence. The Hours of Service shall be credited: (I) in the Plan Year in which the absence from work begins, if the Employee would be prevented from incurring a 1-Year Break in Service in such Year; or 4 4 (II) in the immediately following Plan Year. 6. Effective as of January 1, 1996, Section 2.50 of the Plan is amended in its entirety to read as follows: 2.50 Year of Service --------------------- Effective as of January 1, 1996, 'Year of Service' means: (a) Except as provided in Subsection (b) of this Section, each portion of an Employee's Period of Service that equals 365 days (whether or not consecutive); and (b) With respect to an Employee who is designated by his Employer as a 'temporary or casual employee,' such Employee shall be credited with a Year of Service when he is credited with at least 1,000 Hours of Service in the 12-month period beginning with his Employment Commencement Date and, if applicable, his Reemployment Commencement Date, either of which 12-month periods shall be the 'Initial Eligibility Computation Period.' Whether or not such an Employee is entitled to be credited with 1,000 Hours of Service during an Initial Eligibility Computation Period, such Employee shall be credited with a Year of Service if he is credited with at least 1,000 Hours of Service during the Plan Year which includes the first anniversary of his Employment Commencement Date or Reemployment Commencement Date (whichever is applicable) or any Plan Year thereafter. 6. A new Section 16.1(f) is added to the Plan immediately following Section 16.1(e) to read as follows and subsequent Subsections of Section 16.1 are redesignated accordingly: (f) EMPLOYER or EMPLOYERS: The Controlled Group. 5 5 7. Section 16.1(m) (as redesignated by Section 6 of this Amendment) is amended in its entirety to read as follows: (m) Required Aggregation Group: The group of qualified plans of an Employer consisting of each plan in which a Key Employee participates in the plan year containing the determination date (or any of the four preceding plan years) plus each other plan which, during this period, enables any plan in which a Key Employee participates to meet the requirements of Code Sections 401(a)(4) or 410. IN WITNESS WHEREOF, the Company and the Trustee have caused this Amendment No. 3 to be executed by their duly appointed officers. In the presence of: CALIBER SYSTEM, INC. /s/ Beth P. Ewing By: /s/ D.C. Brown - --------------------- --------------------- Title: V.P. - Human Resources NATIONAL CITY BANK /s/ J.M. Buchagen By: /s/ T.A. Busch - --------------------- --------------------- Title: Vice President and Trust Officer EX-4.E 4 EXHIBIT 4.E 1 Exhibit 4.4(e) AMENDMENT NO. 4 TO THE CALIBER SYSTEM, INC. STOCK SAVINGS AND RETIREMENT INCOME PLAN AND TRUST (Amended and Restated Effective January 1, 1994) THIS AMENDMENT NO. 4 to the Caliber System, Inc. Stock Savings and Retirement Income Plan and Trust (the "Plan") is made and executed this 30th day of December, 1996 by and between Caliber System, Inc. and Barclays Global Investors, National Association, as trustee. Unless otherwise provided, this Amendment No. 4 shall be effective as of July 1, 1996. 1. The name of the Plan is hereby changed to the "Caliber System, Inc. 401(k) Savings Plan". 2. Notwithstanding anything in the Plan to the contrary, any provision within the Plan which requires action by means of written authorization, written notification or written application shall be deemed satisfied if such action is taken in accordance with procedures established by the Plan Administrator. 3. Section 2.3 of the Plan is hereby amended by adding the phrase "and attributable to periods on or after July 1, 1996" at the end thereof. 4. Section 2.4 of the Plan is hereby amended by adding the phrase "and attributable to periods on or after July 1, 1996" at the end thereof. 2 5. Section 2.19 of the Plan is hereby amended by redesignating Subsection (d) as Subsection (c) and by deleting the phrase "any distribution if it and all Eligible Rollover Distributions to the Participant during the calendar year are reasonably expected to total less than Two Hundred Dollars ($200), (c)". 6. Section 2.23 of the Plan is hereby amended in its entirety to read as follows: 'Enrollment Date' means the earliest practicable date after an Eligible Employee has met the requirements of Section 3.1. 7. Section 2.28 of the Plan is hereby amended in its entirety to read as follows: (a) 'Hours of Service' means an hour for which an Employee is paid, or entitled to payment, by one or more Controlled Group Members for the performance of duties as an Employee and such Hours of Service shall be determined in accordance with the provisions of 29 C.F.R. Section 2530.200b-2(a) and (b), which provisions are incorporated herein by reference. (b) Hours of Service shall be credited to eligibility computation periods and Plan Years in accordance with the provisions of 29 C.F.R. Section 2530.200b-2(c), which provisions are incorporated herein by reference. Actual Hours of Service shall be used whenever an accurate record of hours are maintained for an Employee. Otherwise, an equivalent number of hours shall be credited for each payroll period in which the Employee would be credited with at least 1 hour. The payroll period equivalencies are 45 hours weekly, 90 hours biweekly, 95 hours semimonthly and 190 hours monthly. (c) Anything in the Plan to the contrary notwithstanding, for purposes of determining the Hours of Service, an Employee shall be credited with such Hours of Service not otherwise credited 2 3 to him under the Plan as may be required by any applicable law. 8. Section 2.32 of the Plan is hereby amended by adding the phrase "and attributable to periods on or after July 1, 1996" at the end thereof. 9. Section 2.34 of the Plan is hereby deleted in its entirety. 10. A new Section 2.40A is hereby added to the Plan to read as follows: 2.40A Prior After-Tax Contributions -------------------------------------- 'Prior After-Tax Contributions' means the contributions provided for in Section 4.1(b) and attributable to periods prior to July 1, 1996. 11. A new Section 2.40B is hereby added to the Plan to read as follows: 2.40B Prior Before-Tax Contributions --------------------------------------- 'Prior Before-Tax Contributions' means the contributions provided for in Section 4.1(a) attributable to periods prior to July 1, 1996 and which were eligible for Matching Employer Contributions. 12. A new Section 2.40C is hereby added to the Plan to read as follows: 2.40C Prior Matching Employer Contributions ---------------------------------------------- 'Prior Employer Matching Contributions' means the contributions provided for in Section 5.1 and attributable to periods prior to July 1, 1996. 3 4 13. The first sentence Section 2.45 of the Plan is hereby amended in its entirety to read as follows: 'Termination of Employment' means the Participant's cessation of employment with the Controlled Group. 14. Section 2.50 of the Plan is hereby amended in its entirety to read as follows: An Employee shall be credited with a Year of Service when he is credited with at least 1,000 Hours of Service in the 12-month period beginning with his Employment Commencement Date and, if applicable, his Reemployment Commencement Date, either of which 12-month periods shall be the 'Initial Eligibility Computation Period.' Whether or not an Employee is entitled to be credited with 1,000 Hours of Service during an Initial Eligibility Computation Period, such Employee shall be credited with a Year of Service if he is credited with at least 1,000 Hours of Service during the Plan Year which includes the first anniversary of his Employment Commencement Date or Reemployment Commencement Date (whichever is applicable) or any Plan Year thereafter. 15. The first sentence of Section 3.1 of the Plan is hereby amended in its entirety to read as follows: Any person who was a Participant in the Plan on June 30, 1996 shall continue to be a Participant in the Plan. 16. Subsections 4.1(a) and (b) of the Plan are hereby amended in their entirety to read as follows: (a) Upon enrollment pursuant to Section 3.2, a Participant may agree pursuant to a Salary Reduction Agreement to have his Employer make Before-Tax Contributions to the Trust of up to fifteen percent (15%) of his Compensation (in 1/2% increments) through equal pay period reductions; provided, however, that the Before-Tax Contributions of a Participant who is eligible to participate in the Caliber System, Inc. Stock Bonus Plan and Trust may not exceed ten percent (10%) of his Compensation. 4 5 (b) Upon enrollment pursuant to Section 3.2, a Participant may elect to make After-Tax Contributions to the Trust of up to five percent (5%) of his Compensation (in 1/2% increments) through percentage payroll deductions. 17. The first sentence of Section 4.2 of the Plan is hereby amended in its entirety to read as follows: A Participant's Before-Tax Contributions and/or After-Tax Contributions with respect to any pay period must each be a minimum of one percent (1%) of his Compensation and may not, in the aggregate, exceed fifteen percent (15%) of his Compensation; provided, however, that the aggregate Before-Tax Contributions and/or After-Tax Contributions of a Participant who is eligible to participate in the Caliber System, Inc. Stock Bonus Plan and Trust may not exceed ten percent (10%) of his Compensation. 18. The second sentence of Section 4.4 of the Plan is hereby amended in its entirety to read as follows: A Participant may, however, in accordance with the percentages permitted by Sections 4.1 and 4.2, change the percentage of his Before-Tax Contributions and/or his After-Tax Contributions upon prior notice provided in accordance with procedures established by the Plan Administrator to be effective as soon as practicable following the filing of such notice. 19. Section 4.4 of the Plan is hereby amended by deleting the last sentence thereof. 20. Section 4.5 of the Plan is hereby amended in its entirety to read as follows: Upon prior notice provided in accordance with procedures established by the Plan Administrator, a Participant may at any time suspend his Before- Tax Contributions and/or After-Tax Contributions effective as soon as practicable. A Participant who has so suspended his Before-Tax Contributions and/or After-Tax Contributions may, upon prior 5 6 notice provided in accordance with procedures established by the Plan Administrator, resume making such Contributions as soon as practicable if he is an Eligible Employee on such date. 21. Subsections 4.7(d) and 4.8(c) of the Plan are hereby amended by deleting the phrase "prior to March 15 of the following Plan Year," each place such phrase occurs and inserting the phrase "prior to the end of the following Plan Year" in each place thereof. 22. Effective as of October 1, 1996, the first sentence of Section 4.12 is amended by inserting the phrase "either a conduit individual retirement account or" immediately after the phrase "distributed to the Participant from." 23. Effective January 1, 1997, the first sentence of Section 5.1 of the Plan is hereby amended by deleting the phrase "one hundred percent (100%)" and inserting the phrase "fifty percent (50%)." 24. Subsection 5.2(a) of the Plan is hereby amended in its entirety to read as follows: (a) Each Participant who is a Covered Employee of a particular Employer shall receive an allocation to his Account of that Employer's Matching Employer Contributions with respect to a Plan Year, which allocation shall be made only with respect to the Participant's Before-Tax Contributions and After-Tax Contributions that do not exceed, in the aggregate, three and one-half percent (3 1/2%) of his Compensation while an active Covered Employee during that Plan Year and are earned prior to his termination of employment with his Employer. Effective January 1, 1997, seven percent (7%) shall be substituted for three and one-half percent (3 1/2%) in the preceding sentence. 6 7 25. The first sentence of Section 7.2 is hereby amended in its entirety to read as follows: The Plan Administrator shall establish and maintain, or cause to be established and maintained, an Account for each Participant, which Account will reflect, pursuant to Sub-Accounts established and maintained thereunder, the amount, if any, of the Participant's (a) Before-Tax Contributions, (b) After-Tax Contributions, (c) Matching Employer Contributions, (d) Prior After-Tax Contributions, (e) Prior Before-Tax Contributions, (f) Prior Matching Employer Contributions and (g) Rollover Contributions. 26. Section 7.4 of the Plan is hereby amended by deleting Subsections (a), (b), (c) and (d) thereof and by deleting the phrase "(e) Notwithstanding the foregoing," in Subsection (e) thereof. 27. Subsection 7.5(b) of the Plan is hereby amended in its entirety to read as follows: (b) Each Participant may, in accordance with procedures established by the Plan Administrator, direct that Before-Tax Contributions, Prior Before-Tax Contributions, After-Tax Contributions, Prior After-Tax Contributions and Rollover Contributions made by or for him be invested in one or more Investment Funds; provided, however, that Prior Before-Tax Contributions and Prior After-Tax Contributions that have been used in determining the allocation of Prior Matching Employer Contributions to a Participant's Account pursuant to Section 5.2 as in effect prior to July 1, 1996 must remain invested in the Company Stock Fund until such Participant attains age fifty-five (55). 28. Effective as of October 15, 1996, Subsection 7.6(a) of the Plan is hereby amended by deleting the last sentence thereof. 7 8 29. Subsection 7.6(b) of the Plan is hereby amended by deleting the word "irrevocably." 30. Section 7.7 of the Plan is hereby amended in its entirety to read as follows: (a) Any investment direction permitted by Section 7.5(b) or change of investments for future Contributions permitted by Section 7.6 shall be made by a Participant in accordance with procedures established by the Plan Administrator and shall specify the portion of the Contributions (in whole percentages totalling 100% of the amount agreed to be contributed by the Participant, subject to the limitations provided in Sections 4.1 and 4.2) to be invested in each of the Investment Funds. (b) Such directions shall be effected as soon as administratively feasible. 31. Section 7.8 of the Plan is hereby amended in its entirety to read as follows: (a) Any change in investments for prior Contributions or transfers to the Company Stock Fund permitted by Section 7.6 shall be made by a Participant in accordance with procedures established by the Plan Administrator and shall specify the portion of the Investment Fund (in units, shares, percentages or dollars, as applicable) to be transferred and the Investment Fund(s) into which it is to be transferred. (b) Such directions shall be effected as soon as administratively feasible, based upon the value of the Account (or applicable portion thereof) as of the Valuation Date as determined in accordance with procedures established by the Plan Administrator or such other date as may be required by law. 32. Section 7.9 of the Plan is hereby amended in its entirety to read "[Reserved]." 8 9 33. The last sentence of Section 7.10 is hereby amended in its entirety to read as follows: The Trustee shall vote all other Company Stock in the Company Stock Fund (including shares for which it does not receive instructions from Participants) in accordance with instructions from the Committee. 34. The last sentence of Section 7.11 is hereby amended in its entirety to read as follows: The Trustee shall decide whether or not to tender all other Company Stock in the Company Stock Fund (including shares for which it does not receive instructions from Participants) in accordance with instructions from the Committee. 35. Section 8.2 of the Plan is hereby amended in its entirety to read as follows: (a) A Participant shall be eligible to receive distribution of his Account upon his Termination of Employment (other than by reason of death). (b) Distributions pursuant to this Section shall be paid to a Participant as soon as practicable after the Participant has complied with procedures established by the Plan Administrator pursuant to Section 8.1. (c) If a Participant who has a Termination of Employment should again become an Employee before completion of the distribution of his Account, such distribution shall cease until the Participant again has a Termination of Employment. 36. Section 8.3 of the Plan is hereby amended in its entirety to read as follows: (a) In the case of the death of a Participant, the Participant's Death Beneficiary shall be eligible to receive a distribution of the Participant's Account. If there is more than one Death Beneficiary, the Participant's Account shall be divided in equal shares for each such Death 9 10 Beneficiary, unless the Participant has provided otherwise. (b) Distributions pursuant to this Section shall be paid to a Death Beneficiary as soon as practicable after the Death Beneficiary has complied with procedures established by the Plan Administrator pursuant to Section 8.1. (c) In the case of the death of a Participant, the Committee may require such proper proof of death and such evidence of the right of any person to receive a distribution from the Account of a deceased Participant as the Committee may deem desirable. The Committee's determination of death and of the right of any person to receive payment shall be conclusive. 37. Effective as of October 1, 1996, Subsection 8.4(a) of the Plan is hereby amended in its entirety to read as follows: (a) The distribution of a Participant's Account (or portion thereof) pursuant to this Article shall be as follows: (i) A Participant's Account may be paid in any of the following forms: (A) a single lump sum payment; (B) a portion paid in a lump sum payment, and the remainder paid later; or (C) installments over a period not to exceed the life expectancy of the Participant and his or her Beneficiary. (ii) The Participant's Account will be distributed in cash unless the Participant (or, if applicable, the Death Beneficiary) elects a distribution in-kind, subject to the following procedures and restrictions: (A) To the extent a distribution consists of amounts invested in the Company Stock Fund, a Participant may receive an in-kind distribution of Company Stock only if such Participant elects to receive a single lump sum payment under Subparagraph (a)(i)(A) above or, on or after approximately 10 11 February 1, 1997, a partial payment under Subparagraph (a)(i)(B) above. Such an in-kind distribution will consist of whole shares of Company Stock and cash in lieu of any fractional share of Company Stock. (B) To the extent a distribution consists of amounts invested in a particular Investment Fund other than the Company Stock Fund, to effect an in-kind distribution of the portion of a Participant's Account invested in such Investment Funds, the Trustee shall determine the portion of the Participant's Account that is distributable in whole shares or investment units, which the Trustee shall distribute in kind. The portion of the Participant's Account that is not distributable in whole shares or investment units (as determined by the Trustee) and the portion that is attributable to fractional shares or investment units shall be distributed in cash. Such in-kind distributions will only be permitted if the Participant elects a single lump sum distribution pursuant to Subsection 8.4(a)(i)(A). The value of the portion of the Participant's Account distributable pursuant to this Paragraph shall be the value determined as of the immediately preceding Valuation Date or such other date as may be required by law. 38. Subsection 8.4(b) of the Plan is hereby amended by deleting the word "irrevocably." 39. Subsection 8.5(b)(i) of the Plan is hereby amended by deleting the phrase "in a lump sum payment" and inserting the phrase "in any form of payment pursuant to Subsection 8.4(a)(i)" in its place. 11 12 40. Subsection 8.6(a) of the Plan is hereby amended in its entirety to read as follows: (a) In accordance with procedures established by the Plan Administrator, a Participant may withdraw all or a portion of his Account as provided below: (i) A Participant may withdraw all or a part of the portion of his Account attributable to Prior After-Tax Contributions (including earnings and appreciation thereon). (ii) A Participant may withdraw all or a portion of his Account attributable to his Rollover Contributions (including the net earnings thereon). (iii) A Participant may withdraw all or a portion of his Account attributable to Prior Matching Employer Contributions (including earnings and appreciation thereon); provided, however, that Prior Matching Employer Contributions (including earnings and appreciation thereon) that have not been held in his Account for at least two (2) years may not be so withdrawn unless the Participant has been a Participant in the Plan for at least five (5) years or unless such Prior Matching Employer Contributions have been withdrawn pursuant to Section 8.7. Withdrawals pursuant to Subsection 8.6(a) shall be made in cash unless the Participant elects to receive the portion of the withdrawal invested in the Company Stock Fund in-kind. Any such in-kind distribution will consist of whole shares of Company Stock and cash in lieu of any fractional share of Company Stock. 41. Section 8.7 of the Plan is hereby deleted in its entirety and any period of suspension pursuant to the terms of Section 8.7 shall be deemed terminated as of July 1, 1996. Effective as of October 1, 1996, a new Section 8.7 is added to 12 13 the Plan to read as follows: 8.7 Withdrawals on Account of Disability or Attainment -------------------------------------------------- of Age Fifty-Nine and One-Half (59 1/2) --------------------------------------- A Participant whom the Committee has determined to be disabled for a period of at least 12 months or who has attained age fifty-nine and one-half (59 1/2) may withdraw at any time and from time to time all or a portion of his Account as provided and in the order as set forth below, except that the Participant may instead choose to have amounts taken from his After-Tax Sub-Account and Prior After-Tax Sub-Account first: (a) Rollover Contribution Sub-Account; (b) Before-Tax Contributions Sub-Account; (c) Prior Matching Employer Contributions Sub- Account; (d) Matching Employer Contributions Sub-Account; (e Prior Before-Tax Contributions Sub-Account; (f) After-Tax Contributions Sub-Account; (g) Prior After-Tax Contributions Sub-Account. Withdrawals pursuant to this Section shall be made in cash unless the Participant elects to receive the portion of the withdrawal invested in the Company Stock Fund in-kind. Any such in-kind distribution will consist of whole shares of Company Stock and cash in lieu of any fractional share of Company Stock. 42. Subsection 8.8(a) of the Plan is hereby amended by deleting the phrases "attributable to Before-Tax Contributions (excluding any income allocable thereto)" and "of his Before-Tax Contributions". 43. Section 8.8 of the Plan is hereby amended by adding the following Subsection (c) to the end thereof to read as follows: (c) Amounts withdrawn on account of Hardship shall be withdrawn from a Participant's Account in the order as set forth below: (i) After-Tax Contributions; (ii) Prior After-Tax Contributions; 13 14 (iii) Rollover Contributions; (iv) Prior Matching Employer Contributions; (v) Matching Employer Contributions; (vi) Prior Before-Tax Contributions (excluding any earnings); (vii) Before-Tax Contributions (excluding any earnings). 44. Subsection 8.11(a) of the Plan is hereby amended by deleting the phrase "(but not less than $500)". 45. Effective as of October 1, 1996, a new Section 8.13 is added to the Plan to read as follows: 8.13 Loans ----------- The following loan provisions will be effective when the Plan Administrator, in its discretion, determines it is administratively feasible and desirable to provide loans under the Plan. (a) A Participant who is either an Employee of an Employer or a Controlled Group Member or a "party-in-interest" (as defined in Section 3(14) of ERISA) may, in accordance with procedures established by the Plan Administrator, apply for a loan from his Account. Such procedures shall include action to prevent a Participant who is otherwise eligible for a loan from securing a loan if the Administrator has knowledge that the Participant is in bankruptcy or some similar proceeding. Each loan shall be charged against the Participant's Account in the following order (to the extent necessary): Before-Tax Contributions Sub-Account; Prior Matching Employer Contributions Sub-Account; Matching Employer Contributions Sub-Account; Prior Before-Tax Contributions Sub-Account; Rollover Contributions Sub-Account; After-Tax Contributions Sub-Account, and finally, against the Prior After-Tax Contributions Sub-Account. (b) Each loan shall be in an amount which is not less than $1,000. A Participant may only have one loan outstanding at any time. The maximum loan to any Participant (when added to the outstanding balance of all other loans to the Participant from all qualified employer plans (as defined in Code Section 72(p)(4)) of the 14 15 Controlled Group) shall be an amount which does not exceed the lesser of: (i) Fifty Thousand Dollars ($50,000), reduced by the excess (if any) of (A) the highest outstanding balance of such other loans during the one-year period ending on the day before the date on which such loan is made, over (B) the outstanding balance of such other loans on the date on which such loan is made; or (ii) fifty percent (50%) of the value of such Participant's Account on the date on which such loan is made. (c) For each Participant for whom a loan is authorized pursuant to this Section, the Participant's interests will be liquidated first by Sub-Account and then within each Sub-Account amounts shall be taken on a pro-rata basis by Investment Fund to the extent necessary to provide funds for the loan. The Trustee shall establish and maintain a separate recordkeeping account within the Participant's Account (the "Loan Sub-Account") (i) which initially shall be in the amount of the loan, (ii) to which the funds for the loan shall be deemed to have been allocated and then disbursed to the Participant, (iii) to which the Note shall be allocated and (iv) which shall show the unpaid principal of the promissory note. All payments of principal and interest by a Participant shall be credited initially to his Loan Sub-Account and applied against the Note and then credited to the Participant's Sub-Account in accordance with the Participant's then current investment direction for future Contributions; provided, however, that payments of principal and interest to the Prior Matching Employer Contributions Sub-Account, the Matching Employer Contributions Sub-Account, the Prior Before-Tax Contributions Sub-Account, and the Prior After-Tax Contributions Sub-Account shall be reinvested in the Company Stock Fund. The Plan Administrator shall value each Participant's Loan Sub-Account for purposes of Section 7.4 at such times as the Plan Administrator shall deem appropriate, but not less frequently than quarterly. 15 16 (d) Loans made pursuant to this Section: (i) shall be made available to all Participants on a reasonably equivalent basis; (ii) shall not be made available to Highly Compensated Employees in a percentage amount greater than the percentage amount made available to other Participants; (iii) shall be secured by the Participant's Loan Sub-Account; (iv) shall be evidenced by a promissory note and security agreement (the "Note") which provides for: (A) the loan to be secured by the Participant's Loan Sub-Account; (B) a rate of interest of one percent above the prime interest rate as determined by the Trustee at the time the loan is processed; (C) repayment within a specified period of time, which shall not extend beyond five (5) years from the date the loan is made unless the loan proceeds are used to acquire a dwelling which, within a reasonable time (determined at the time the loan is made), is to be used as the principal residence of the Participant, in which case the repayment period may extend to ten (10) years; (D) repayment in equal payments over the term of the loan, with payments not less frequently than monthly; and (E) for such other terms and conditions as the Plan Administrator shall determine, which shall include provision that: (I) with respect to a Participant who is an Employee, the loan will be repaid pursuant to authorization by the Participant of equal payroll deductions over the repayment period sufficient to amortize fully the loan within the repayment period or by check during 16 17 any period the Participant is ineligible for payroll deduction; (II) the loan shall be prepayable in whole or in specified increments (as determined from time to time by the Plan Administrator) at any time without penalty; (III) the loan shall be treated as in default if payments are more than 90 days late. A Participant shall then have 30 days from the time he receives written notice of the default and a demand for past due amounts to cure the default before it becomes final; and (IV) the Plan Administrator may agree to a suspension of loan payments for up to 12 months for a Participant who is on a leave of absence without pay. During such suspension period, interest shall continue to accrue. At the end of such suspension period, all outstanding loan payments and interest shall be due unless otherwise agreed upon by the Plan Administrator. (e) Notwithstanding any other provision of the Plan, a loan made pursuant to this Section shall be a first lien against the Participant's Loan Sub-Account. Any amount of principal or interest due and unpaid on the loan at the time of any Default on the loan, and any interest accruing thereafter, shall be satisfied by deduction from the Participant's Loan Sub-Account, and shall be deemed to have been distributed to the Participant, as follows: (i) In the case of a Participant who, at the time of the Default, is an Employee and is not eligible to receive distribution of his Account under the provisions of Article VIII, (other than Hardship withdrawals under Section 8.8) at such time as he first becomes eligible to receive distribution of his Account under the provisions of this Article, (other than Section 8.8); or (ii) In the case of any other Participant, immediately upon such Default. 17 18 If, as a result of the application of the preceding sentence, an amount of principal or interest on a loan remains outstanding after Default, interest at the rate specified in the Note shall continue to accrue on such outstanding amount until fully satisfied by deduction from the Participant's Loan Sub-Account as hereinabove provided or by payment by or on behalf of such Participant. (f) The Plan Administrator shall have the right to call any Participant's loan once the Participant's employment with all Controlled Group Members has terminated or if the Plan is terminated. 46. Subsection 9.8(a) of the Plan is hereby amended by deleting the phrase "thirty (30)" and inserting the phrase "ninety (90)" in its place. 47. Effective as of October 1, 1996, the second sentence in Section 14.2 of the Plan is hereby amended in its entirety to read as follows: Notwithstanding the foregoing, this Section shall not preclude the Trustee from complying with a qualified domestic relations order (as defined under Code Section 414(p)), the enforcement of a federal tax levy pursuant to Code Section 6331, or the collection by the United States on a judgment resulting from an unpaid tax assessment, in accordance with the Committee's direction. 48. Exhibit B to the Plan is hereby amended in its entirety to read as follows: EXHIBIT B Additional Investment Funds Pursuant to Section 7.1 As of July 1, 1996 (1) The Income Accumulation Fund (2) MasterWorks Bond Index Fund (3) MasterWorks Assets Allocation Fund 18 19 (4) The REX Stock Fund, to be invested in REX Stock. The REX Stock Fund shall be subject to the terms and conditions of Exhibit C. (5) Mutual Beacon Fund Additional Investment Funds Pursuant to Section 7.1 As of October 1, 1996 (1) MasterWorks S&P 500 Stock Fund (2) Vanguard Primecap Fund (3) MasterWorks LifePath 2000 (4) MasterWorks LifePath 2010 (5) MasterWorks LifePath 2020 (6) MasterWorks LifePath 2030 (7) MasterWorks LifePath 2040 (8) Templeton Foreign Fund (9) AIM Constellation Fund 49. The last sentence of Item (3) of Exhibit C is hereby amended in its entirety to read as follows: The Trustee shall vote all other REX Stock in the REX Stock Fund (including shares for which it does not receive instructions from Participants) in accordance with instructions from the Committee. 50. The last sentence of Item (4) of Exhibit C is hereby amended in its entirety to read as follows: The Trustee shall decide whether or not to tender all other REX Stock in the REX Stock Fund (including shares for which it does not receive instructions from Participants) in accordance with instructions from the Committee. 19 20 IN WITNESS WHEREOF, the Company and the Trustee have caused this Amendment No. 4 to be executed by their duly appointed officers. In the presence of: CALIBER SYSTEM, INC. /s/ Beth P. Ewing By: /s/ Donald C. Brown - ---------------------- --------------------------------- Title: BARCLAYS GLOBAL INVESTORS, NATIONAL ASSOCIATION /s/ C.R. Cogan By: /s/ Dolores Upton - ---------------------- --------------------------------- Title: Principal /s/ Robin Hopkins By: /s/ Peter H. Sorensen - ---------------------- --------------------------------- Title: Man. Dir. EX-4.F 5 EXHIBIT 4.F 1 Exhibit 4.4(f) THE FINANCIAL SECURITY PLAN AND TRUST PLAN AND TRUST AGREEMENT AS AMENDED AND RESTATED EFFECTIVE APRIL 1, 1995 2 The Financial Security Plan and Trust As Amended and Restated Effective April 1,1995 Viking Freight System, Inc. previously established the Viking Financial Security Plan effective January 1, 1985 for the benefit of eligible employees of Viking Freight System, Inc. and its participating affiliates. Effective April 1, 1995, Roadway Regional Group, Inc. became the sponsor of the Viking Financial Security Plan at which time such plan is now restated and renamed The Financial Security Plan for the benefit of Roadway Regional Group, Inc. and its participating affiliates and concurrent with such actions the Cole Profit Sharing Plan, originally effective December 29, 1958, is merged into the Plan. The Plan is intended to constitute a qualified profit sharing plan, as described in Code section 401(a), which includes a qualified cash or deferred arrangement, as described in Code section 401(k). The provisions of this Plan and Trust relating to the Trustee constitute the trust agreement which is entered into by and between Roadway Regional Group, Inc. and BZW Barclays Global Investors, National Association. The Trust is intended to be tax exempt as described under Code section 501(a). Date: ______________, 19 Viking Freight, Inc. as successor to Roadway Regional Group, Inc. By: -------------------------------- Title: --------------------------- The trust agreement set forth in those provisions of this Plan and Trust which relate to the Trustee is hereby executed. Date: ______________, 19 BZW Barclays Global Investors, National Association By: -------------------------------- Title: --------------------------- Date: ______________, 19 BZW Barclays Global Investors, National Association By: -------------------------------- Title: --------------------------- - -------------------------------------------------------------------------------- 3 TABLE OF CONTENTS 1 DEFINITIONS....................................................... 1 ----------- 2 ELIGIBILITY....................................................... 11 ----------- 2.1 Eligibility............................................. 11 2.2 Ineligible Employees.................................... 11 2.3 Ineligible or Former Participants....................... 11 3 PARTICIPANT CONTRIBUTIONS......................................... 12 ------------------------- 3.1 Before-Tax Contribution Election........................ 12 3.2 Changing a Contribution Election........................ 12 3.3 Revoking and Resuming a Contribution Election........... 12 3.4 Contribution Percentage Limits.......................... 12 3.5 Refunds When Contribution Dollar Limit Exceeded......... 13 3.6 Timing, Posting and Tax Considerations.................. 13 4 ROLLOVERS AND TRANSFERS FROM AND TO OTHER QUALIFIED PLANS......... 14 --------------------------------------------------------- 4.1 Rollovers............................................... 14 4.2 Transfers From and To Other Qualified Plans............. 14 5 EMPLOYER CONTRIBUTIONS............................................ 15 ---------------------- 5.1 Viking/RRG Match Contributions.......................... 15 5.2 RSI Stock Match Contributions........................... 15 5.3 Coles Match Contributions............................... 16 5.4 Profit Sharing Contributions............................ 17 6 ACCOUNTING........................................................ 18 ---------- 6.1 Individual Participant Accounting....................... 18 6.2 Sweep Account is Transaction Account.................... 18 6.3 Trade Date Accounting and Investment Cycle.............. 18 6.4 Accounting for Investment Funds......................... 18 6.5 Payment of Fees and Expenses............................ 18 6.6 Accounting for Participant Loans........................ 19 6.7 Error Correction........................................ 19 6.8 Participant Statements.................................. 20 6.9 Special Accounting During Conversion Period............. 20 6.10 QDROs................................................... 20 7 INVESTMENT FUNDS AND ELECTIONS.................................... 22 ------------------------------ 7.1 Investment Funds........................................ 22 7.2 Investment Fund Elections............................... 22 7.3 Responsibility for Investment Choice.................... 22 7.4 Default if No Election.................................. 22 7.5 Timing.................................................. 23 7.6 Investment Fund Election Change Fees.................... 23 - -------------------------------------------------------------------------------- i 4 8 VESTING & FORFEITURES............................................. 24 --------------------- 8.1 Fully Vested Accounts................................... 24 8.2 Full Vesting Upon Certain Events........................ 24 8.3 Vesting Schedule........................................ 24 8.4 Forfeitures............................................. 25 8.5 Rehired Employees....................................... 25 9 PARTICIPANT LOANS................................................. 26 ----------------- 9.1 Participant Loans Permitted............................. 26 9.2 Loan Application, Note and Security..................... 26 9.3 Spousal Consent......................................... 26 9.4 Loan Approval........................................... 26 9.5 Loan Funding Limits, Account Sources and Funding Order.. 26 9.6 Maximum Number of Loans................................. 27 9.7 Source and Timing of Loan Funding....................... 27 9.8 Interest Rate........................................... 27 9.9 Loan Payment............................................ 28 9.10 Loan Payment Hierarchy.................................. 28 9.11 Repayment Suspension.................................... 28 9.12 Loan Default............................................ 28 9.13 Call Feature............................................ 28 10 IN-SERVICE WITHDRAWALS............................................ 29 ---------------------- 10.1 In-Service Withdrawals Permitted........................ 29 10.2 In-Service Withdrawal Application and Notice............ 29 10.3 Spousal Consent......................................... 29 10.4 In-Service Withdrawal Approval.......................... 29 10.5 Minimum Amount, Payment Form and Medium................. 30 10.6 Source and Timing of In-Service Withdrawal Funding...... 30 10.7 Hardship Withdrawals.................................... 30 10.8 After-Tax Account Withdrawals........................... 32 10.9 Over Age 59 1/2 Withdrawals............................. 32 11 DISTRIBUTIONS ONCE EMPLOYMENT ENDS, UPON DISABILITY OR ------------------------------------------------------ AS REQUIRED BY LAW ............................................... 34 ------------------ 11.1 Benefit Information, Notices and Election............... 34 11.2 Spousal Consent......................................... 34 11.3 Payment Form and Medium................................. 35 11.4 Source and Timing of Distribution Funding............... 36 11.5 Deemed Distribution..................................... 36 11.6 Latest Commencement Permitted........................... 36 11.7 Payment Within Life Expectancy.......................... 37 11.8 Incidental Benefit Rule................................. 37 11.9 Payment to Beneficiary.................................. 37 11.10 Beneficiary Designation................................. 38 11.11 QJSA and QPSA Annuity Information and Elections ........ 38 - ------------------------------------------------------------------------------- ii 5 12 ADP AND ACP TESTS................................................. 41 ----------------- 12.1 Contribution Limitation Definitions..................... 41 12.2 ADP and ACP Tests....................................... 44 12.3 Correction of ADP and ACP Tests......................... 44 12.4 Multiple Use Test....................................... 45 12.5 Correction of Multiple Use Test......................... 46 12.6 Adjustment for Investment Gain or Loss.................. 46 12.7 Testing Responsibilities and Required Records........... 46 12.8 Separate Testing........................................ 46 13 MAXIMUM CONTRIBUTION AND BENEFIT LIMITATIONS...................... 47 -------------------------------------------- 13.1 "Annual Addition" Defined............................... 47 13.2 Maximum Annual Addition................................. 47 13.3 Avoiding an Excess Annual Addition...................... 47 13.4 Correcting an Excess Annual Addition.................... 47 13.5 Correcting a Multiple Plan Excess....................... 48 13.6 "Defined Benefit Fraction" Defined...................... 48 13.7 "Defined Contribution Fraction" Defined................. 48 13.8 Combined Plan Limits and Correction..................... 48 14 TOP HEAVY RULES................................................... 49 --------------- 14.1 Top Heavy Definitions................................... 49 14.2 Special Contributions................................... 50 14.3 Special Vesting......................................... 51 14.4 Adjustment to Combined Limits for Different Plans....... 51 15 PLAN ADMINISTRATION............................................... 52 ------------------- 15.1 Plan Delineates Authority and Responsibility............ 52 15.2 Fiduciary Standards..................................... 52 15.3 Plan Sponsor is ERISA Plan Administrator................ 52 15.4 Administrator Duties.................................... 53 15.5 Advisors May be Retained................................ 53 15.6 Delegation of Administrator Duties...................... 54 15.7 Committee Operating Rules............................... 54 16 MANAGEMENT OF INVESTMENTS......................................... 55 ------------------------- 16.1 Trust Agreement......................................... 55 16.2 Investment Funds........................................ 55 16.3 Authority to Hold Cash.................................. 56 16.4 Trustee to Act Upon Instructions........................ 56 16.5 Administrator Has Right to Vote Registered Investment Company Shares............ 56 16.6 Custom Fund Investment Management ...................... 56 16.7 Authority to Segregate Assets........................... 57 16.8 Maximum Permitted Investment in Roadway Stock........... 57 16.9 Participants Have Right to Vote and Tender Roadway Stock 57 16.10 Participants Have Right to Vote and Tender REX Stock.... 58 16.11 Registration and Disclosure for Roadway Stock........... 58 16.12 Registration and Disclosure for REX Stock............... 58 - ------------------------------------------------------------------------------ iii 6 17 TRUST ADMINISTRATION.............................................. 59 -------------------- 17.1 Trustee to Construe Trust............................... 59 17.2 Trustee To Act As Owner of Trust Assets................. 59 17.3 United States Indicia of Ownership...................... 59 17.4 Tax Withholding and Payment............................. 60 17.5 Trust Accounting........................................ 60 17.6 Valuation of Certain Assets............................. 60 17.7 Legal Counsel........................................... 61 17.8 Fees and Expenses....................................... 61 17.9 Trustee Duties and Limitations.......................... 61 18 RIGHTS, PROTECTION, CONSTRUCTION AND JURISDICTION................. 62 ------------------------------------------------- 18.1 Plan Does Not Affect Employment Rights.................. 62 18.2 Limited Return of Contributions......................... 62 18.3 Assignment and Alienation............................... 62 18.4 Facility of Payment..................................... 63 18.5 Reallocation of Lost Participant's Accounts............. 63 18.6 Claims Procedure........................................ 63 18.7 Construction............................................ 64 18.8 Jurisdiction and Severability........................... 64 18.9 Indemnification by Employer............................. 64 19 AMENDMENT, MERGER, DIVESTITURES AND TERMINATION................... 65 ----------------------------------------------- 19.1 Amendment............................................... 65 19.2 Merger.................................................. 65 19.3 Divestitures............................................ 65 19.4 Plan Termination........................................ 66 19.5 Amendment and Termination Procedures.................... 66 19.6 Termination of Employer's Participation................. 67 19.7 Replacement of the Trustee.............................. 67 19.8 Final Settlement and Accounting of Trustee.............. 67 APPENDIX A - INVESTMENT FUNDS.............................................. 69 APPENDIX B - PAYMENT OF PLAN FEES AND EXPENSES............................. 71 APPENDIX C - LOAN INTEREST RATE............................................ 72 - ------------------------------------------------------------------------------- iv 7 1 DEFINITIONS ----------- When capitalized, the words and phrases below have the following meanings unless different meanings are clearly required by the context: 1.1 "Account". The records maintained for purposes of accounting for a Participant's interest in the Plan. "Account" may refer to one or all of the following accounts which have been created on behalf of a Participant to hold specific types of Contributions under the Plan or amounts transferred from the Predecessor Plan: (a) "Before-Tax Account". An account created to hold Before-Tax Contributions. (b) "Prior Before-Tax Account". An account created to hold amounts transferred from the Predecessor Plan designated as "Deferred Match Contributions" thereunder. (c) "After-Tax Account". An account created to hold amounts previously contributed by an eligible Participant on an after-tax basis under former Plan provisions and amounts transferred from the Predecessor Plan designated as "Employee Voluntary Contributions" thereunder. (d) "Rollover Account". An account created to hold Rollover Contributions and amounts transferred from the Predecessor Plan designated as "Rollover Contributions" thereunder. (e) "Viking/RRG Match Account". An account created to hold Viking/RRG Match Contributions which amounts prior to April 1, 1995 were designated as "Company Match Contributions". (f) "RSI Stock Match". An account created to hold RSI Stock Match Contributions. (g) "Coles Match Account". An account created to hold Coles Match Contributions. (h) "Profit Sharing Account". An account created to hold Profit Sharing Contributions. (i) "Prior Profit Sharing Account". An account created to hold amounts transferred from the Predecessor Plan designated as "Regular Employer Contributions" and "Discretionary Employer Contributions" thereunder. 1.2 "ACP" or "Average Contribution Percentage". The percentage calculated in accordance with Section 12.1. - -------------------------------------------------------------------------------- 1 8 1.3 "Administrator". The Plan Sponsor, which may delegate all or a portion of the duties of the Administrator under the Plan to a Committee in accordance with Section 15.6. 1.4 "ADP" or "Average Deferral Percentage". The percentage calculated in accordance with Section 12.1. 1.5 "Beneficiary". The person or persons who is to receive benefits after the death of the Participant pursuant to the "Beneficiary Designation" paragraph in Section 11. 1.6 "Break in Service". The end of five consecutive Plan Years (or six consecutive Plan Years if absence from employment was due to a Parental Leave) for which a Participant is credited with no Hours of Service. 1.7 "Code". The Internal Revenue Code of 1986, as amended. Reference to any specific Code section shall include such section, any valid regulation promulgated thereunder, and any comparable provision of any future legislation amending, supplementing or superseding such section. 1.8 "Coles Employee". A Participant during any period he or she is an Eligible Employee and employed by Coles Express, Inc. 1.9 "Committee". The administrative committee appointed by the Plan Sponsor and charged with the general administration of the Plan in accordance with Section 15.6. 1.10 "Compensation". The sum of a Participant's Taxable Income and salary reductions, if any, pursuant to Code sections 125, 402(e)(3), 402(h), 403(b), 414(h)(2) or 457. For purposes of determining benefits under this Plan, Compensation is limited to $150,000, (as adjusted for the cost of living pursuant to Code sections 401(a)(17) and 415(d)) per Plan Year. For purposes of the preceding sentence, in the case of a HCE who is a 5% Owner or one of the 10 most highly compensated Employees, (i) such HCE and such HCE's family group (as defined below) shall be treated as a single employee and the Compensation of each family group member shall be aggregated with the Compensation of such HCE, and (ii) the limitation on Compensation shall be allocated among such HCE and his or her family group members in proportion to each individual's Compensation before the application of this sentence. For purposes of this Section, the term "family group" shall mean an Employee's spouse and lineal descendants who have not attained age 19 before the close of the year in question. - ------------------------------------------------------------------------------- 2 9 For purposes of determining HCEs and key employees, Compensation for the entire Plan Year shall be used. For purposes of determining ADP and ACP, Compensation shall be limited to amounts paid to an Eligible Employee while a Participant. 1.11 "Contribution". An amount contributed to the Plan by the Employer or an Eligible Employee, and allocated by contribution type to Participants' Accounts, as described in Section 1.1. Specific types of contribution include: (a) "Before-Tax Contribution". An amount contributed by an eligible Participant in conjunction with his or her Code section 401(k) salary deferral election which shall be treated as made by the Employer on an eligible Participant's behalf. (b) "Rollover Contribution". An amount contributed by an Eligible Employee which originated from another employer's or an Employer's qualified plan. (c) "Viking/RRG Match Contribution". An amount contributed by the Employer on an eligible Participant's behalf based upon the amount contributed by the eligible Participant. (d) "RSI Stock Match Contribution". An amount contributed by the Employer on an eligible Participant's behalf based upon the amount contributed by the eligible Participant. (e) "Coles Match Contribution". An amount contributed by the Employer on an eligible Participant's behalf based upon the amount contributed by the eligible Participant. (f) "Profit Sharing Contribution". An amount contributed by the Employer on an eligible Participant's behalf and allocated on a pay based formula. Solely for purposes of the Plan Year ending December 31, 1995, references to Before-Tax Contributions in Sections 3.5, 12 and 13.4 shall include "Deferred Match Contributions" for the period January 1, 1995 through March 31, 1995 made under the Predecessor Plan as merged herein effective April 1,1995. Solely for purposes of Sections 3.5, 12 and 13.4 Viking/RRG Match Contributions, RSI Stock Match Contributions and Coles Match Contributions shall be collectively referred to as "Matching Contributions" and solely for purposes of the Plan Year ending December 31, 1995 "Matching Contributions" as referenced therein shall also include "Regular Employer Contributions" for the period January 1, 1995 through March 31, 1995 made under the Predecessor Plan as merged herein effective April 1, 1995. - -------------------------------------------------------------------------------- 3 10 1.12 "Contribution Dollar Limit". The annual limit placed on each Participant's Before-Tax Contributions, which shall be $7,000 per calendar year (as adjusted for the cost of living pursuant to Code sections 402(g)(5) and 415(d)). For purposes of this Section, a Participant's Before-Tax Contributions shall include (i) any employer contribution made under any qualified cash or deferred arrangement as defined in Code section 401(k) to the extent not includible in gross income for the taxable year under Code section 402(e)(3); (ii) any employer contribution to the extent not includible in gross income for the taxable year under Code section 402(h)(1)(B) (determined without regard to Code section 402(g)); and (iii) any employer contribution to purchase an annuity contract under Code section 403(b) under a salary reduction agreement (within the meaning of Code section 3121(a)(5)(D)). 1.13 "Conversion Period". The period of converting the prior accounting system of any plan and trust which is merged into this Plan and Trust subsequent to the Effective Date, to the accounting system described in Section 6. 1.14 "Direct Rollover". An Eligible Rollover Distribution that is paid directly to an Eligible Retirement Plan for the benefit of a Distributee. 1.15 "Disability". The inability of a Participant to perform the duties assigned to him or her by his or her Employer for an extended period by reason of a mental or physical condition, as determined by the Committee. 1.16 "Distributee". An Employee or former Employee, the surviving spouse of an Employee or former Employee and a spouse or former spouse of an Employee or former Employee determined to be an alternate payee under a QDRO. 1.17 "Effective Date". The date upon which the provisions of this document become effective. This date is April 1,1995, unless stated otherwise. In general, the provisions of this document only apply to Participants who are Employees on or after the Effective Date. However, investment and distribution provisions apply to all Participants with Account balances to be invested or distributed after the Effective Date. 1.18 "Eligible Employee". An Employee of an Employer, except any Employee: (a) whose compensation and conditions of employment are covered by a collective bargaining agreement to which an Employer is a party unless the agreement calls for the Employee's participation in the Plan; (b) who is treated as an Employee because he or she is a Leased Employee; (c) who is a nonresident alien who (i) either receives no earned income (within the meaning of Code section 911(d)(2)), from sources within the United States under Code section 861(a)(3); or (ii) receives such earned income from such sources within the United States but such income is - -------------------------------------------------------------------------------- 4 11 exempt from United States income tax under an applicable income tax convention; or (d) who is classified by the Employer as a supplemental Employee or a temporary Employee. Notwithstanding an Employee who was classified as a supplemental Employee and a Participant on July 1, 1992 shall be included as an Eligible Employee. 1.19 "Eligible Retirement Plan". An individual retirement account described in Code section 408(a), an individual retirement annuity described in Code section 408(b), an annuity plan described in Code section 403(a), or a qualified trust described in Code section 401(a), that accepts a Distributee's Eligible Rollover Distribution, except that with regard to an Eligible Rollover Distribution to a surviving spouse, an Eligible Retirement Plan is an individual retirement account or individual retirement annuity. 1.20 "Eligible Rollover Distribution". A distribution of all or any portion of the balance to the credit of a Distributee, excluding a distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of a Distributee or the joint lives (or joint life expectancies) of a Distributee and the Distributee's designated Beneficiary, or for a specified period of ten years or more; a distribution to the extent such distribution is required under Code section 401(a)(9); and the portion of a distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to Employer securities). 1.21 "Employee". An individual who is: (a) directly employed by any Related Company and for whom any income for such employment is subject to withholding of income or social security taxes, or (b) a Leased Employee. 1.22 "Employer". The Plan Sponsor and any Subsidiary or other Related Company of either the Plan Sponsor or a Subsidiary which adopts this Plan with the approval of the Plan Sponsor. As of the Effective Date the Employers under the Plan are the Plan Sponsor, Viking Freight System, Inc. and Coles Express, Inc. 1.23 "ERISA". The Employee Retirement Income Security Act of 1974, as amended. Reference to any specific ERISA section shall include such section, any valid regulation promulgated thereunder, and any comparable provision of any future legislation amending, supplementing or superseding such section. - ------------------------------------------------------------------------------- 5 12 1.24 "Forfeiture Account". An account holding amounts forfeited by Participants who have terminated employment with all Related Companies, invested in interest bearing deposits of the Trustee, pending disposition as provided in this Plan and Trust and as directed by the Administrator. 1.25 "HCE" or "Highly Compensated Employee". An Employee described as a Highly Compensated Employee in Section 12. 1.26 "Hour of Service". Each hour for which an Employee is entitled to: (a) payment for the performance of duties for any Related Company; (b) payment from any Related Company for any period during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, sickness, incapacity (including disability), layoff, leave of absence, jury duty or military service; (c) back pay, irrespective of mitigation of damages, by award or agreement with any Related Company (and these hours shall be credited to the period to which the agreement pertains); or (d) no payment, but is on a Leave of Absence (and these hours shall be based upon his or her normally scheduled hours per week or a 40 hour week if there is no regular schedule). The crediting of hours for which no duties are performed shall be in accordance with Department of Labor regulation sections 2530.200b-2(b) and (c). Actual hours shall be used whenever an accurate record of hours are maintained for an Employee. Otherwise, an equivalent number of hours shall be credited for each payroll period in which the Employee would be credited with at least 1 hour. The payroll period equivalencies are 45 hours weekly, 90 hours biweekly, 95 hours semimonthly and 190 hours monthly. Hours credited prior to a Break in Service are included. An Employee's service with a predecessor or acquired company shall only be counted in the determination of his or her Hours of Service for eligibility and/or vesting purposes if (1) the Plan Sponsor directs that credit for such service be granted, or (2) a qualified plan of the predecessor or acquired company is subsequently maintained by any Employer or Related Company. 1.27 "Ineligible". The Plan status of an individual during the period in which he or she is (1) an Employee of a Related Company which is not then an Employer, (2) an Employee, but not an Eligible Employee, or (3) not an Employee. - -------------------------------------------------------------------------------- 6 13 1.28 "Investment Fund" or "Fund". An investment fund as described in Section 16.2. The Investment Funds authorized by the Administrator to be offered under the Plan as of the Effective Date or such other date as stated are set forth in Appendix A. 1.29 "Leased Employee". An individual who is deemed to be an employee of any Related Company as provided in Code section 414(n) or (o). 1.30 "Leave of Absence". A period during which an individual is deemed to be an Employee, but is absent from active employment, provided that the absence: (a) was approved by the Employer in keeping with its established uniform policies as to sick or personal leave; (b) was due to layoff followed by a return to work within the requirements of the Employer's uniform policies; or (c) was due to military service in the United States armed forces and the individual returns to active employment within the period during which he or she retains employment rights under federal law. 1.31 "Loan Account". The record maintained for purposes of accounting for a Participant's loan and payments of principal and interest thereon. 1.32 "NHCE" or "Non-Highly Compensated Employee". An Employee described as a Non-Highly Compensated Employee in Section 12. 1.33 "Normal Retirement Date". The date of a Participant's 59 1/2th birthday. 1.34 "Owner". A person with an ownership interest in the capital, profits, outstanding stock or voting power of a Related Company within the meaning of Code section 318 or 416 (which exclude indirect ownership through a qualified plan). 1.35 "Parental Leave". The period of absence from work by reason of pregnancy, the birth of an Employee's child, the placement of a child with the Employee in connection with the child's adoption, or caring for such child immediately after birth or placement as described in Code section 410(a)(5)(E). 1.36 "Participant". An Eligible Employee who begins to participate in the Plan after completing the eligibility requirements as described in Section 2.1. An Eligible Employee who makes a Rollover Contribution prior to completing the eligibility requirements as described in Section 2.1 shall also be considered a Participant, except that he or she shall not be considered a Participant for purposes of provisions related to Contributions, other than a Rollover Contribution, until he or she completes the eligibility requirements as described in Section 2.1. A Participant's participation continues until his or her employment with all Related Companies ends and his or her Account is distributed or forfeited. - -------------------------------------------------------------------------------- 7 14 1.37 "Pay". All cash compensation paid to an Eligible Employee by an Employer while a Participant during the current period. Pay excludes reimbursements or other expense allowances, cash and non-cash fringe benefits, moving expenses, deferred compensation and welfare benefits. Pay is neither increased by any salary credit or decreased by any salary reduction pursuant to Code sections 125 or 402(e)(3). Pay is limited to $150,000 (as adjusted for the cost of living pursuant to Code sections 401(a)(17) and 415(d)) per Plan Year. For purposes of the Contributions described in Section 5.4, the limitations as described in the second paragraph of Section 1.10 shall also apply. 1.38 "Plan". The Financial Security Plan set forth in this document, as from time to time amended. 1.39 "Plan Sponsor". Roadway Regional Group, Inc., a California corporation or any successor by merger or consolidation or any successor that otherwise assumes the obligations of the Plan Sponsor under the Plan. 1.40 "Plan Year". The annual accounting period of the Plan and Trust which ends on each December 31. 1.41 "Predecessor Plan". Cole Profit Sharing Plan as originally established effective December 29, 1958 as merged herein effective April 1, 1995. 1.42 "Predecessor Plan Amounts". With regard to a Participant who immediately prior to April 1, 1995 was a participant in the Predecessor Plan, the sum of his or her Prior Before-Tax Account, After-Tax Account and Prior Profit Sharing Account, which Accounts hold only amounts transferred from the Predecessor Plan and earnings thereon plus the portion of his or her Rollover Account attributable to amounts transferred from the Predecessor Plan and earnings thereon. 1.43 "QDRO". A domestic relations order which the Administrator has determined to be a qualified domestic relations order within the meaning of Code section 414(p). 1.44 "Related Company". With respect to any Employer, that Employer and any corporation, trade or business which is, together with Roadway and that Employer, a member of the same controlled group of corporations, a trade or business under common control, or an affiliated service group within the meaning of Code sections 414(b), (c), (m) or (o) and except that for purposes of Section 13 "within the meaning of Code sections 414(b), (c), (m) or (o), as modified by Code section 415(h)" shall be substituted for the preceding reference to "within the meaning of Code section 414(b), (c), (m) or (o)". - -------------------------------------------------------------------------------- 8 15 1.45 "REX". Roadway Express, Inc. 1.46 "REX Stock". Shares of voting common stock of Roadway Express, Inc. 1.47 "Roadway". Roadway Services, Inc., (or as may later be renamed) the parent corporation of the Plan Sponsor. 1.48 "Roadway Stock". Shares of common stock of Roadway Services, Inc., its successors or assigns, or any corporation with or into which said corporation may be merged, consolidated or reorganized, or to which a majority of its assets may be sold. 1.49 "RRG Employee". A Participant during any period he or she is an Eligible Employee and employed by Roadway Regional Group, Inc. 1.50 "Settlement Date". For each Trade Date, the Trustee's next business day. 1.51 "Spousal Consent". The written consent given by a spouse to a Participant's election or waiver of a specified form of benefit, including a loan or an in- service withdrawal, or Beneficiary designation. The spouse's consent must acknowledge the effect on the spouse of the Participant's election, waiver or designation, and be duly witnessed by a Plan representative or notary public. Spousal Consent shall be valid only with respect to the spouse who signs the Spousal Consent and only for the particular choice made by the Participant which requires Spousal Consent. A Participant may revoke (without Spousal Consent) a prior election, waiver or designation that required Spousal Consent at any time before payments begin. Spousal Consent also means a determination by the Administrator that there is no spouse, the spouse cannot be located, or such other circumstances as may be established by applicable law. 1.52 "Subsidiary". A company which is 50% or more owned, directly or indirectly, by the Plan Sponsor. 1.53 "Sweep Account". The subsidiary Account for each Participant through which all transactions are processed, which is invested in interest bearing deposits of the Trustee. 1.54 "Sweep Date". The cut off date and time for receiving instructions for transactions to be processed on the next Trade Date. 1.55 "Taxable Income". Compensation in the amount reported by the Employer or a Related Company as "Wages, tips, other compensation" on Form W-2, or any successor method of reporting under Code section 6041(d). Taxable Income is limited to $150,000 (as adjusted for the cost of living pursuant to Code sections 401(a)(17) and 415(d)) per Plan Year. For purpose - -------------------------------------------------------------------------------- 9 16 of the preceding sentences, in the case of a HCE who is a 5% Owner or one of the 10 most highly compensated Employees, (i) such HCE and such HCE's family group (as defined below) shall be treated as a single employee and the Taxable Income of each family group member shall be aggregated with the Taxable Income of such HCE, and (ii) the limitation on Taxable Income shall be allocated among such HCE and his or her family group members in proportion to each individual's Taxable Income before the application of this sentence. For purposes of this Section, the term "family group" shall mean an Employee's spouse and lineal descendants who have not attained age 19 before the close of the year in question. 1.56 "Trade Date". Each day the Investment Funds are valued, which is normally every day the assets of such Funds are traded. 1.57 "Trust". The legal entity created by those provisions of this document which relate to the Trustee. The Trust is part of the Plan and holds the Plan assets which are comprised of the aggregate of Participants' Accounts, any unallocated funds invested in deposit or money market type assets pending allocation to Participants' Accounts or disbursement to pay Plan fees and expenses and the Forfeiture Account. 1.58 "Trustee". Wells Fargo Bank, National Association for the period prior to January 1, 1996. Effective January 1, 1996, BZW Barclays Global Investors, National Association. 1.59 "Viking Employee". A Participant during any period he or she is an Eligible Employee and employed by Viking Freight System, Inc. 1.60 "Year of Vesting Service". A 12 consecutive month period ending on the last day of a Plan Year in which an Employee is credited with at least 1,000 Hours of Service. - -------------------------------------------------------------------------------- 10 17 2 ELIGIBILITY ----------- 2.1 Eligibility All Participants as of April 1,1995 shall continue their eligibility to participate including participants as of March 31, 1995 under the Predecessor Plan. Each other Eligible Employee shall become a Participant on the first day of the next month after the date he or she attains age 21, and completes a 12 month eligibility period in which he or she is credited with at least 1,000 Hours of Service. The initial eligibility period begins on the date an Employee first performs an Hour of Service. Subsequent eligibility periods begin with the start of each Plan Year beginning after the first Hour of Service is performed. 2.2 Ineligible Employees If an Employee completes the above eligibility requirements, but is Ineligible at the time participation would otherwise begin (if he or she were not Ineligible), he or she shall become a Participant on the first subsequent date on which he or she is an Eligible Employee. 2.3 Ineligible or Former Participants A Participant may not make or share in Plan Contributions during the period he or she is Ineligible, nor generally be eligible for a new Plan loan, except if such Ineligible Participant is an Employee, but he or she shall continue to participate for all other purposes. An Ineligible Participant or former Participant shall automatically become an active Participant on the date he or she again becomes an Eligible Employee. - -------------------------------------------------------------------------------- 11 18 3 PARTICIPANT CONTRIBUTIONS ------------------------- 3.1 Before-Tax Contribution Election Upon becoming a Participant, an Eligible Employee may elect to reduce his or her Pay by an amount which does not exceed the Contribution Dollar Limit, within the limits described in the Contribution Percentage Limits paragraph of this Section 3, and have such amount contributed to the Plan by the Employer as a Before-Tax Contribution. The election shall be made as a whole percentage of Pay in such manner and with such advance notice as prescribed by the Administrator. In no event shall an Employee's Before-Tax Contributions under the Plan and comparable contributions to all other plans, contracts or arrangements of all Related Companies exceed the Contribution Dollar Limit for the Employee's taxable year beginning in the Plan Year. 3.2 Changing a Contribution Election A Participant who is an Eligible Employee may change his or her Before-Tax Contribution election at any time in such manner and with such advance notice as prescribed by the Administrator, and such election shall be effective with the first payroll paid after such date. Participants' Contribution election percentages shall automatically apply to Pay increases or decreases. 3.3 Revoking and Resuming a Contribution Election A Participant may revoke his or her Contribution election at any time in such manner and with such advance notice as prescribed by the Administrator, and such revocation shall be effective with the first payroll paid after such date. A Participant who is an Eligible Employee may resume Contributions by making a new Contribution election at any time in such manner and with such advance notice as prescribed by the Administrator, and such election shall be effective with the first payroll paid after such date. 3.4 Contribution Percentage Limits The Administrator may establish and change from time to time, in writing, without the necessity of amending this Plan and Trust, the minimum, if applicable, and maximum Before-Tax Contribution percentages, prospectively or retrospectively (for the current Plan Year), for all Participants. In addition, the Administrator may establish any lower percentage limits for Highly Compensated Employees as it deems necessary to satisfy the tests described in Section 12. As of the Effective Date, the Before-Tax Contribution maximum percentage is 15%. - -------------------------------------------------------------------------------- 12 19 Irrespective of the limits that may be established by the Administrator in accordance with this paragraph, in no event shall the contributions made by or on behalf of a Participant for a Plan Year exceed the maximum allowable under Code section 415. 3.5 Refunds When Contribution Dollar Limit Exceeded A Participant who makes Before-Tax Contributions for a calendar year to this Plan and comparable contributions to any other qualified defined contribution plan in excess of the Contribution Dollar Limit may notify the Administrator in writing by the following March 1 (or as late as April 14 if allowed by the Administrator) that an excess has occurred. In this event, the amount of the excess specified by the Participant, adjusted for investment gain or loss, shall be refunded to him or her by April 15 and shall not be included as an Annual Addition under Code section 415 for the year contributed. Excess amounts shall first be taken from unmatched Before-Tax Contributions and then from matched Before-Tax Contributions. Any Matching Contributions attributable to refunded excess Before-Tax Contributions as described in this Section, adjusted for investment gain or loss, shall be forfeited and used to reduce Contributions made by an Employer as soon as administratively feasible. Refunds or forfeitures shall not include investment gain or loss for the period between the end of the applicable calendar year and the date of distribution or forfeiture. 3.6 Timing, Posting and Tax Considerations Participants' Contributions, other than Rollover Contributions, may only be made through payroll deduction. Such amounts shall be paid to the Trustee in cash and posted to each Participant's Account(s) as soon as such amounts can reasonably be separated from the Employer's general assets and balanced against the specific amount made on behalf of each Participant. In no event, however, shall such amounts be paid to the Trustee more than 90 days after the date amounts are deducted from a Participant's Pay. Before-Tax Contributions shall be treated as Contributions made by an Employer in determining tax deductions under Code section 404(a). - -------------------------------------------------------------------------------- 13 20 4 ROLLOVERS AND TRANSFERS FROM AND TO OTHER QUALIFIED PLANS --------------------------------------------------------- 4.1 Rollovers The Administrator may authorize the Trustee to accept a rollover contribution, within the meaning of Code section 402(c), 403(a)(4) or 408(d)(3)(A)(ii), in cash (or its equivalent), directly from an Eligible Employee or as a Direct Rollover from another qualified plan on behalf of the Eligible Employee, even if he or she is not yet a Participant. The Employee shall be responsible for furnishing satisfactory evidence, in such manner as prescribed by the Administrator, that the amount is eligible for rollover treatment. A rollover contribution received directly from an Eligible Employee must be paid to the Trustee in cash (or its equivalent) within 60 days after the date received by the Eligible Employee from a qualified plan or conduit individual retirement account. Contributions described in this paragraph shall be posted to the applicable Employee's Rollover Account as of the date received by the Trustee. If it is later determined that an amount contributed pursuant to the above paragraph did not in fact qualify as a rollover contribution under Code section 402(c), 403(a)(4) or 408(d)(3)(A)(ii), the balance credited to the Employee's Rollover Account shall immediately be (1) segregated from all other Plan assets, (2) treated as a nonqualified trust established by and for the benefit of the Employee, and (3) distributed to the Employee. Any such nonqualifying rollover shall be deemed never to have been a part of the Plan. 4.2 Transfers From and To Other Qualified Plans The Administrator may instruct the Trustee to receive assets in cash or in kind directly from another qualified plan or transfer assets in cash or in kind directly to another qualified plan; provided that a transfer should not be directed if: (a) any amounts are not exempted by Code section 401(a)(11)(B) from the annuity requirements of Code section 417 unless, in the event of a receipt of assets, the Plan complies with such requirements or, in the event of a transfer of assets, the receiving Plan complies with such requirements; or (b) any amounts include benefits protected by Code section 411(d)(6) which would not be preserved under applicable Plan provisions, in the event of a receipt of assets or, under the applicable provisions of the receiving plan, in the event of a transfer of assets. The Trustee may refuse the receipt of any transfer if: (a) the Trustee finds the in-kind assets unacceptable; or (b) instructions for posting amounts to Participants' Accounts are incomplete. Such amounts shall be posted to the appropriate Accounts of Participants as of the date received by the Trustee. - -------------------------------------------------------------------------------- 14 21 5 EMPLOYER CONTRIBUTIONS ---------------------- For purposes of Section 5.1, the Employer shall mean Roadway Regional Group, Inc. or Viking Freight System, Inc. For purposes of Section 5.2, 5.3 and 5.4, the Employer shall mean Coles Express, Inc. 5.1 Viking/RRG Match Contributions (a) Frequency and Eligibility. For each Plan Year, the Employer shall make Viking/RRG Match Contributions, as described in the following Allocation Method paragraph, on behalf of each Participant who contributed during the Plan Year while he or she was a RRG Employee or a Viking Employee and was an Employee on the last day of the Plan Year. (b) Allocation Method. The Viking/RRG Match Contributions for each Plan Year shall total 50% of each eligible Participant's Before-Tax Contributions for the Plan Year, made while he or she was a RRG Employee or a Viking Employee, provided that no Viking/RRG Match Contributions shall be made based upon a Participant's Contributions in excess of 6% of his or her Pay while a RRG Employee or a Viking Employee. The Employer may change the 50% matching rate or the 6% of considered Pay to any other percentages, including 0%, generally by notifying eligible Participants no later than the due date, including extensions, for filing the Employer's federal income tax return for the applicable year. (c) Timing, Medium and Posting. The Employer shall make each Plan Year's Viking/RRG Match Contribution in cash as soon as administratively feasible, and for purposes of deducting such Contribution, not later than the Employer's federal tax filing date, including extensions. The Trustee shall post such amount to each Participant's Viking/RRG Match Account once the total Contribution received has been balanced against the specific amount to be credited to each Participant's Viking/RRG Match Account. 5.2 RSI Stock Match Contributions (a) Frequency and Eligibility. For each period for which Participants' Contributions are made, the Employer shall make RSI Stock Match Contributions, as described in the following Allocation Method paragraph, on behalf of each Participant who contributed during the period while he or she was a Coles Employee. (b) Allocation Method. The RSI Stock Match Contributions for each period shall total 25% of each eligible Participant's Before-Tax Contributions for the period, made while he or she was a Coles Employee, provided that no RSI Stock Match Contributions shall be made based upon a - -------------------------------------------------------------------------------- 15 22 Participant's Contributions in excess of 6% of his or her Pay while a Coles Employee. The Employer may change the 25% matching rate or the 6% of considered Pay to any other percentages, including 0%, generally by notifying eligible Participants in sufficient time to adjust their Contribution elections prior to the start of the period for which the new percentages apply. (c) Timing, Medium and Posting. The Employer shall make each period's RSI Stock Match Contribution in cash as soon as administratively feasible, and for purposes of deducting such Contribution, not later than the Employer's federal tax filing date, including extensions. The Trustee shall post such amount to each Participant's RSI Stock Match Account once the total Contribution received has been balanced against the specific amount to be credited to each Participant's RSI Stock Match Account. 5.3 Coles Match Contributions (a) Frequency and Eligibility. For each period for which Participants' Contributions are made, the Employer shall make Coles Match Contributions, as described in the following Allocation Method paragraph, on behalf of each Participant who contributed during the period while he or she was a Coles Employee. (b) Allocation Method. The Coles Match Contributions for each period shall total 25% of each eligible Participant's Before-Tax Contributions for the period, made while he or she was a Coles Employee, provided that no Coles Match Contributions shall be made based upon a Participant's Contributions in excess of 6% of his or her Pay while a Coles Employee. The Employer may change the 25% matching rate or the 6% of considered Pay to any other percentages, including 0%, generally by notifying eligible Participants in sufficient time to adjust their Contribution elections prior to the start of the period for which the new percentages apply. (c) Timing, Medium and Posting. The Employer shall make each period's Coles Match Contribution in cash as soon as administratively feasible, and for purposes of deducting such Contribution, not later than the Employer's federal tax filing date, including extensions. The Trustee shall post such amount to each Participant's Coles Match Account once the total Contribution received has been balanced against the specific amount to be credited to each Participant's Coles Match Account. - -------------------------------------------------------------------------------- 16 23 5.4 Profit Sharing Contributions (a) Frequency and Eligibility. Effective January 1, 1995, for each Plan Year, the Employer may make Profit Sharing Contributions on behalf of each Participant who was a Coles Employee at any time during the Plan Year and was an Employee on the last day of the Plan Year. If such Contributions are made, such Contributions shall also be made on behalf of each Participant who was a Coles Employee at any time during the Plan Year but who ceased being an Employee during the period after having attained age 59 1/2, or by reason of his or her Disability or death. (b) Allocation Method. The Profit Sharing Contribution (including any Forfeiture Account amounts applied as Profit Sharing Contributions in accordance with Section 8.4) for each Plan Year, shall be in an amount determined by the Employer and allocated among eligible Participants in direct proportion to their Pay while a Coles Employee. (c) Timing, Medium and Posting. The Employer shall make each Plan Year's Profit Sharing Contribution in cash as soon as administratively feasible, and for purposes of deducting such Contribution, not later than the Employer's federal tax filing date, including extensions. The Trustee shall post such amount to each Participant's Profit Sharing Account once the total Contribution received has been balanced against the specific amount to be credited to each Participant's Profit Sharing Account. - -------------------------------------------------------------------------------- 17 24 6 ACCOUNTING ---------- 6.1 Individual Participant Accounting The Administrator shall maintain an individual set of Accounts for each Participant in order to reflect transactions both by type of Contribution and investment medium. Financial transactions shall be accounted for at the individual Account level by posting each transaction to the appropriate Account of each affected Participant. Participant Account values shall be maintained in shares for the Investment Funds and in dollars for the Sweep and Loan Accounts. At any point in time, the Account value shall be determined using the most recent Trade Date values provided by the Trustee. 6.2 Sweep Account is Transaction Account All transactions related to amounts being contributed to or distributed from the Trust shall be posted to each affected Participant's Sweep Account. Any amount held in the Sweep Account shall be credited with interest up until the date on which it is removed from the Sweep Account. 6.3 Trade Date Accounting and Investment Cycle Participant Account values shall be determined as of each Trade Date. For any transaction to be processed as of a Trade Date, the Trustee must receive instructions for the transaction by the Sweep Date. Such instructions shall apply to amounts held in the Account on that Sweep Date. Financial transactions of the Investment Funds shall be posted to Participants' Accounts as of the Trade Date, based upon the Trade Date values provided by the Trustee, and settled on the Settlement Date. 6.4 Accounting for Investment Funds Investments in each Investment Fund shall be maintained in shares. The Trustee is responsible for determining the share values of each Investment Fund as of each Trade Date. To the extent an Investment Fund is comprised of collective investment funds of the Trustee, or any other fiduciary to the Plan, the share values shall be determined in accordance with the rules governing such collective investment funds, which are incorporated herein by reference. All other share values shall be determined by the Trustee. The share value of each Investment Fund shall be based on the fair market value of its underlying assets. 6.5 Payment of Fees and Expenses Except to the extent Plan fees and expenses related to Account maintenance, transaction and Investment Fund management and maintenance, as set forth below, are paid by the Employer directly, or indirectly, through the Forfeiture - -------------------------------------------------------------------------------- 18 25 Account as directed by the Administrator, such fees and expenses shall be paid as set forth below. (a) Account Maintenance: Account maintenance fees and expenses, may include but are not limited to, administrative, Trustee, government annual report preparation, audit, legal, nondiscrimination testing and fees for any other special services. Account maintenance fees shall be charged to Participants on a per Participant basis provided that no fee shall reduce a Participant's Account balance below zero. (b) Transaction: Transaction fees and expenses, may include but are not limited to, periodic installment payment, Investment Fund election change and loan fees. Transaction fees shall be charged to the Participant's Account involved in the transaction provided that no fee shall reduce a Participant's Account balance below zero. (c) Investment Fund Management and Maintenance: Management and maintenance fees and expenses related to the Investment Funds shall be charged at the Investment Fund level and reflected in the net gain or loss of each Fund. As of the Effective Date, a breakdown of which Plan fees and expenses shall generally be borne by the Trust (and charged to individual Participants' Accounts or charged at the Investment Fund level and reflected in the net gain or loss of each Fund) and those that shall be paid by the Employer is set forth in Appendix B and may be changed from time to time by the Administrator, in writing, without the necessity of amending this Plan and Trust. The Trustee shall have the authority to pay any such fees and expenses, which remain unpaid by the Employer for 60 days, from the Trust. 6.6 Accounting for Participant Loans Participant loans shall be held in a separate Loan Account of the Participant and accounted for in dollars as an earmarked asset of the borrowing Participant's Account. 6.7 Error Correction The Administrator may correct any errors or omissions in the administration of the Plan by restoring any Participant's Account balance with the amount that would be credited to the Account had no error or omission been made. Funds necessary for any such restoration shall be provided through payment made by the Employer, or by the Trustee to the extent the error or omission is attributable to actions or inactions of the Trustee, or if the restoration involves an Account holding amounts contributed by an Employer, the Administrator may direct the Trustee to use amounts from the Forfeiture Account. - -------------------------------------------------------------------------------- 19 26 6.8 Participant Statements The Administrator shall provide Participants with statements of their Accounts as soon after the end of each quarter of the Plan Year as administratively feasible. 6.9 Special Accounting During Conversion Period The Administrator and Trustee may use any reasonable accounting methods in performing their respective duties during any Conversion Period. This includes, but is not limited to, the method for allocating net investment gains or losses and the extent, if any, to which contributions received by and distributions paid from the Trust during this period share in such allocation. 6.10 QDROs (a) Period of QDRO Determination. During any period of time the Administrator, a court of competent jurisdiction or other appropriate person, is determining whether a domestic relations order qualifies as a QDRO, the Administrator shall separately account for the amounts which would be payable to the alternate payee (as defined in Code section 414(p)) if the order is determined to be a QDRO. The Administrator may do so by establishing a separate Account for the alternate payee. If the domestic relations order is determined to be a QDRO, if not already established as described above, a separate Account shall be established for the amounts which are payable to the alternate payee. A determination that a domestic relations order is a QDRO made after the close of the 18 month period beginning with the date payments are specified to begin shall be applied prospectively only. Any such separate Account established shall be valued and accounted for in the same manner as any other Account. (b) Distributions Pursuant to QDROs. If a QDRO so provides, the portion of a Participant's Account payable to an alternate payee and credited to his or her separate Account may be distributed, in a form as permissible under Section 11 and Code section 414(p), to the alternate payee at the time specified in the QDRO, regardless of whether the Participant is entitled to a distribution from the Plan at such time. (c) Participant Loans. Except to the extent required by law, an alternate payee, on whose behalf a separate Account has been established, shall not be entitled to borrow from such Account. If a QDRO specifies that the alternate payee is entitled to any portion of the Account of a Participant who has an outstanding loan balance, all outstanding loans - -------------------------------------------------------------------------------- 20 27 shall generally continue to be held in the Participant's Account and shall not be divided between the Participant's and alternate payee's Accounts. (d) Investment Direction. Where a separate Account has been established on behalf of an alternate payee and has not yet been distributed, the alternate payee may direct the investment of such Account in the same manner as if he or she were a Participant. - -------------------------------------------------------------------------------- 21 28 7 INVESTMENT FUNDS AND ELECTIONS ------------------------------ 7.1 Investment Funds Except for Participants' Sweep and Loan Accounts, the Trust shall be maintained in various Investment Funds. The Administrator shall select the Investment Funds offered to Participants and may change the number or composition of the Investment Funds, subject to the terms and conditions agreed to with the Trustee. As of the Effective Date or such other date as stated, a list of the Investment Funds offered under the Plan is set forth in Appendix A, and may be changed from time to time by the Administrator, in writing, and as agreed to by the Trustee, without the necessity of amending this Plan and Trust. 7.2 Investment Fund Elections Each Participant shall direct the investment of all of his or her Accounts except for his or her RSI Stock Match Account which shall be entirely invested in the Investment Fund specified by the Administrator, which Investment Fund as of the Effective Date is set forth in Appendix A. A Participant shall make his or her investment election in any combination of one or any number of the Investment Funds offered in accordance with the procedures established by the Administrator and Trustee. However, during any Conversion Period, Trust assets may be held in any investment vehicle permitted by the Plan, as directed by the Administrator, irrespective of Participant investment elections. The Administrator may set a maximum percentage of the total election that a Participant may direct into any specific Investment Fund, which maximum, if any, as of the Effective Date is set forth in Appendix A, and may be changed from time to time by the Administrator, in writing, without the necessity of amending this Plan and Trust. 7.3 Responsibility for Investment Choice Each Participant shall be solely responsible for the selection of his or her Investment Fund choices. No fiduciary with respect to the Plan is empowered to advise a Participant as to the manner in which his or her Accounts are to be invested, and the fact that an Investment Fund is offered shall not be construed to be a recommendation for investment. 7.4 Default if No Election The Administrator shall specify an Investment Fund for the investment of that portion of a Participant's Account which is not yet held in an Investment Fund and for which no valid investment election is on file. The Investment Fund - -------------------------------------------------------------------------------- 22 29 specified as of the Effective Date is set forth in Appendix A, and may be changed from time to time by the Administrator, in writing, without the necessity of amending this Plan and Trust. 7.5 Timing A Participant shall make his or her initial investment election upon becoming a Participant and may change his or her investment election at any time in accordance with the procedures established by the Administrator and Trustee. Investment elections received by the Trustee by the Sweep Date shall be effective on the following Trade Date. 7.6 Investment Fund Election Change Fees A reasonable processing fee may be charged directly to a Participant's Account for Investment Fund election changes in excess of a specified number per year as determined by the Administrator. - -------------------------------------------------------------------------------- 23 30 8 VESTING & FORFEITURES --------------------- 8.1 Fully Vested Accounts A Participant shall be fully vested in these Accounts at all times: Before-Tax Account Prior Before-Tax Account After-Tax Account Rollover Account Viking/RRG Match Account RSI Stock Match Account Coles Match Account Prior Profit Sharing Account Notwithstanding, prior to the Effective Date the portion of a Participant's Prior Profit Sharing Account attributable to amounts designated as "Discretionary Employer Contributions" under the Predecessor Plan became vested in accordance with a vesting schedule then in effect. 8.2 Full Vesting Upon Certain Events A Participant's entire Account shall become fully vested, without regard to his or her Years of Vesting Service, once he or she has attained his or her Normal Retirement Date as an Employee or upon his or her incurring a Disability or terminating employment with all Related Companies due to his or her death. 8.3 Vesting Schedule In addition to the vesting provided above, a Participant's Profit Sharing Account shall become vested in accordance with the following schedule: YEARS OF VESTING VESTED SERVICE PERCENTAGE ------- ---------- Less than 5 0% 5 or more 100% If this vesting schedule is changed, the vested percentage for each Participant shall not be less than his or her vested percentage determined as of the last day prior to this change, and for any Participant with at least three Years of Vesting Service when the schedule is changed, vesting shall be determined using the more favorable vesting schedule. - -------------------------------------------------------------------------------- 24 31 8.4 Forfeitures A Participant's non-vested Account balance shall be forfeited as of the Settlement Date following the Sweep Date on which the Administrator has reported to the Trustee that the Participant's employment has terminated with all Related Companies. Forfeitures from all Employer Contribution Accounts shall be transferred to and maintained in a single Forfeiture Account, which shall be invested in interest bearing deposits of the Trustee. Forfeitures from all Employer Contribution Accounts shall be accounted for separately by Account type and further accounted for separately by each Employer. An Employer's Forfeiture Account amounts shall be utilized to restore Accounts for amounts attributable to the Employer that were previously forfeited, to pay the Employer's Plan fees and expenses or may increase the amount allocated by the Employer as Profit Sharing Contributions, as directed by the Administrator. 8.5 Rehired Employees (a) Service. If a former Employee is rehired, all Years of Vesting Service credited when his or her employment last terminated shall be counted in determining his or her vested interest. (b) Account Restoration. If a former Employee is rehired before he or she has a Break in Service, the amount forfeited when his or her employment last terminated shall be restored to his or her Account. The restoration shall include the interest which would have been credited had such forfeiture been invested in the Sweep Account from the date forfeited until the date the restoration amount is restored. The amount shall come from the Forfeiture Account to the extent possible, and any additional amount needed shall be contributed by the Employer. The vested interest in his or her restored Account shall then be equal to: V% times (AB + D) - D where: V% = current vested percentage AB = current account balance D = amount previously distributed - -------------------------------------------------------------------------------- 25 32 9 PARTICIPANT LOANS ----------------- 9.1 Participant Loans Permitted Loans to Participants are permitted pursuant to the terms and conditions set forth in this Section. 9.2 Loan Application, Note and Security A Participant shall apply for any loan in such manner and with such advance notice as prescribed by the Administrator. All loans shall be evidenced by a promissory note, secured only by the portion of the Participant's Account from which the loan is made, and the Plan shall have a lien on this portion of his or her Account. 9.3 Spousal Consent A Participant is not required to obtain Spousal Consent in order to take out a loan under the Plan, except that Spousal Consent shall be required if any portion of such loan shall include Predecessor Plan Amounts or amounts attributable to the Participant's participation in the Plan while a Coles Employee. 9.4 Loan Approval The Administrator, or the Trustee, if otherwise authorized by the Administrator and agreed to by the Trustee, is responsible for determining that a loan request conforms to the requirements described in this Section and granting such request. 9.5 Loan Funding Limits, Account Sources and Funding Order The loan amount must meet all of the following limits as determined as of the Sweep Date the loan is processed and shall be funded from the Participant's Accounts as follows: (a) Plan Minimum Limit. The minimum amount for any loan is $1,000. (b) Plan Maximum Limit, Account Sources and Funding Order. Subject to the legal limit described in (c) below, the maximum a Participant may borrow, including the outstanding balance of existing Plan loans, is 100% of the following of the Participant's Accounts which are fully vested in the priority order as follows and except that for the period prior to July 1, 1995 a Participant's Viking/RRG Match Account shall not be included as an Account source for funding and "50%" shall be substituted for the preceding reference to "100%" with regard to a Participant who is a RRG Employee or a Viking Employee: - -------------------------------------------------------------------------------- 26 33 Before-Tax Account RSI Stock Match Account Viking/RRG Match Account Coles Match Account Prior Before-Tax Account Rollover Account After-Tax Account (c) Legal Maximum Limit. The maximum a Participant may borrow, including the outstanding balance of existing Plan loans, is 50% of his or her vested Account balance, not to exceed $50,000. However, the $50,000 maximum is reduced by the Participant's highest outstanding balance of loans under the Plan during the 12 month period ending on the day before the Sweep Date as of which the loan is made over the outstanding balance of such loans on the date on which the loan is made. For purposes of this paragraph, the loans of all the qualified plans of the Related Companies shall be treated as loans under this Plan. 9.6 Maximum Number of Loans A Participant may have only one loan outstanding at any given time regardless of his or her Employer. 9.7 Source and Timing of Loan Funding A loan to a Participant shall be made solely from the assets of his or her own Account. The available assets shall be determined first by Account type and then within each Account used for funding a loan, amounts shall first be taken from the Sweep Account and then taken by Investment Fund in direct proportion to the market value of the Participant's interest in each Investment Fund as of the Trade Date on which the loan is processed. The loan shall be funded on the Settlement Date following the Trade Date as of which the loan is processed. The Trustee shall make payment to the Participant as soon thereafter as administratively feasible. 9.8 Interest Rate The interest rate charged on Participant loans shall be a fixed reasonable rate of interest, determined by the Administrator, which provides the Plan with a return commensurate with the prevailing interest rate charged by persons in the business of lending money for loans which would be made under similar circumstances. As of the Effective Date or such other date as stated, the interest rate is determined as set forth in Appendix C, and may be changed from time to time by the Administrator, in writing, without the necessity of amending this Plan and Trust. - -------------------------------------------------------------------------------- 27 34 9.9 Loan Payment Substantially level amortization shall be required of each loan with payments made at least monthly, generally through payroll deduction. Loans may be prepaid in full or in part at any time. The Participant may choose the loan repayment period, not to exceed 5 years, except that the repayment period may be for any period not to exceed 10 years if the purpose of the loan is to acquire the Participant's principal residence. 9.10 Loan Payment Hierarchy Loan principal payments shall be credited to the Participant's Accounts in the inverse of the order used to fund the loan. Loan interest shall be credited to the Participant's Accounts in direct proportion to the principal payment. Loan payments credited to Accounts for which the Participant directs investment as described in Section 7 are credited to the Investment Funds based upon the Participant's current investment election for new Contributions. Loan payments credited to Accounts for which the Participant does not direct investment as described in Section 7 are credited to the Investment Funds specified by the Administrator for such Accounts. 9.11 Repayment Suspension The Administrator may agree to a suspension of loan payments for up to 12 months for a Participant who is on a Leave of Absence without pay. During the suspension period interest shall continue to accrue on the outstanding loan balance. At the expiration of the suspension period all outstanding loan payments and accrued interest thereon shall be due unless otherwise agreed upon by the Administrator. 9.12 Loan Default A loan is treated as a default if scheduled loan payments are more than 90 days late. A Participant shall then have 30 days from the time he or she receives written notice of the default and a demand for past due amounts to cure the default before it becomes final. In the event of default, the Administrator may direct the Trustee to report the outstanding principal balance of the loan and accrued interest thereon as a taxable distribution. As soon as a Plan withdrawal or distribution to such Participant would otherwise be permitted, the Administrator may instruct the Trustee to execute upon its security interest in the Participant's Account by distributing the note to the Participant. 9.13 Call Feature The Administrator shall have the right to call any Participant loan once a Participant's employment with all Related Companies has terminated or if the Plan is terminated. - -------------------------------------------------------------------------------- 28 35 10 IN-SERVICE WITHDRAWALS ---------------------- 10.1 In-Service Withdrawals Permitted In-service withdrawals to a Participant who is an Employee are permitted pursuant to the terms and conditions set forth in this Section and as required by law pursuant to the terms and conditions set forth in Section 11. 10.2 In-Service Withdrawal Application and Notice A Participant shall apply for any in-service withdrawal in such manner and with such advance notice as prescribed by the Administrator. The Participant shall be provided the notice prescribed by Code section 402(f). Code sections 401(a)(11) and 417 do not apply to in-service withdrawals under the Plan as described in this Section. An in-service withdrawal may therefore commence less than 30 days after the aforementioned notice is provided, if: (a) the Participant is clearly informed that he or she has the right to a period of at least 30 days after receipt of such notice to consider his or her option to elect or not elect a Direct Rollover for all or a portion, if any, of his or her in-service withdrawal which shall constitute an Eligible Rollover Distribution; and (b) the Participant after receiving such notice, affirmatively elects a Direct Rollover for all or a portion, if any, of his or her in-service withdrawal which shall constitute an Eligible Rollover Distribution or alternatively elects to have all or a portion made payable directly to him or her, thereby not electing a Direct Rollover for all or a portion thereof. 10.3 Spousal Consent A Participant is not required to obtain Spousal Consent in order to make an in-service withdrawal under the Plan, except that Spousal Consent shall be required if any portion of such in-service withdrawal shall include Predecessor Plan Amounts or amounts attributable to the Participant's participation in the Plan while a Coles Employee. 10.4 In-Service Withdrawal Approval The Administrator, or the Trustee, if otherwise authorized by the Administrator and agreed to by the Trustee, is responsible for determining that an in-service withdrawal request conforms to the requirements described in this Section and granting such request. - -------------------------------------------------------------------------------- 29 36 10.5 Minimum Amount, Payment Form and Medium There is no minimum amount for any type of in-service withdrawal. The form of payment for an in-service withdrawal shall be a single lump sum and payment shall be made in cash. With regard to the portion of an in-service withdrawal representing an Eligible Rollover Distribution, a Participant may elect a Direct Rollover for all or a portion of such amount. 10.6 Source and Timing of In-Service Withdrawal Funding An in-service withdrawal to a Participant shall be made solely from the assets of his or her own Account and shall be based on the Account values as of the Trade Date the in-service withdrawal is processed. The available assets shall be determined first by Account type and then within each Account used for funding an in-service withdrawal, amounts shall first be taken from the Sweep Account and then taken by Investment Fund in direct proportion to the market value of the Participant's interest in each Investment Fund (which excludes his or her Loan Account balance) as of the Trade Date on which the in-service withdrawal is processed. The in-service withdrawal shall be funded on the Settlement Date following the Trade Date as of which the in-service withdrawal is processed. The Trustee shall make payment as soon thereafter as administratively feasible. 10.7 Hardship Withdrawals (a) Requirements. A Participant who is an Employee may request the withdrawal of up to the amount necessary to satisfy a financial need including amounts necessary to pay any federal, state or local income taxes or penalties reasonably anticipated to result from the withdrawal. Only requests for withdrawals (1) on account of a Participant's "Deemed Financial Need", and (2) which are "Deemed Necessary" to satisfy the financial need shall be approved. (b) "Deemed Financial Need". An immediate and heavy financial need relating to: (1) the payment of unreimbursable medical expenses described under Code section 213(d) incurred (or to be incurred) by the Employee, his or her spouse or dependents; (2) the purchase (excluding mortgage payments) of the Employee's principal residence; - -------------------------------------------------------------------------------- 30 37 (3) the payment of unreimbursable tuition and related educational fees (which effective January 1, 1995 shall include room and board) for up to the next 12 months of post-secondary education for the Employee, his or her spouse or dependents; (4) the payment of amounts necessary for the Employee to prevent losing his or her principal residence through eviction or foreclosure on the mortgage; or (5) any other circumstance specifically permitted under Code section 401(k)(2)(B)(i)(IV). (c) "Deemed Necessary". A withdrawal is "deemed necessary" to satisfy the financial need only if the withdrawal amount does not exceed the financial need and all of these conditions are met: (1) the Employee has obtained all possible withdrawals (other than hardship withdrawals) and nontaxable loans available from this Plan and all other plans maintained by Related Companies; (2) the Administrator shall suspend the Employee from making any contributions to this Plan and all other qualified and nonqualified plans of deferred compensation and all stock option or stock purchase plans maintained by Related Companies for 12 months from the date the withdrawal payment is made; and (3) the Administrator shall reduce the Contribution Dollar Limit for the Employee with regard to this Plan and all other plans maintained by Related Companies, for the calendar year next following the calendar year of the withdrawal by the amount of the Employee's Before-Tax Contributions for the calendar year of the withdrawal. (d) Account Sources and Funding Order. All available amounts must first be withdrawn from a Participant's After-Tax Account. The remaining withdrawal amount shall come from the following of the Participant's fully vested Accounts, in the priority order as follows and except that for the period prior to July 1, 1995 a Participant's Viking/RRG Match Account shall not be included as an Account source for funding: Rollover Account RSI Stock Match Account Viking/RRG Match Account Coles Match Account Prior Before-Tax Account Before-Tax Account - -------------------------------------------------------------------------------- 31 38 The amount that may be withdrawn from a Participant's Prior Before- Tax Account shall not include any earnings credited to his or her Prior Before-Tax Account. The amount that may be withdrawn from a Participant's Before-Tax Account shall not include any earnings credited to his or her Before-Tax Account after the start of the first Plan Year beginning after December 31, 1988. (e) Permitted Frequency. There is no restriction on the number of Hardship withdrawals permitted to a Participant. (f) Suspension from Further Contributions. Upon making a Hardship withdrawal, a Participant may not make additional Before-Tax Contributions (or additional contributions to all other qualified and nonqualified plans of deferred compensation and all stock option or stock purchase plans maintained by Related Companies) for a period of 12 months from the date the withdrawal payment is made. 10.8 After-Tax Account Withdrawals (a) Requirements. A Participant who is an Employee may withdraw from the Accounts listed in paragraph (b) below. (b) Account Sources and Funding Order. The withdrawal amount shall come from a Participant's After-Tax Account. (c) Permitted Frequency. There is no restriction on the number of After- Tax Account withdrawals permitted to a Participant. (d) Suspension from Further Contributions. An After-Tax Account withdrawal shall not affect a Participant's ability to make or be eligible to receive further Contributions. 10.9 Over Age 59 1/2 Withdrawals (a) Requirements. A Participant who is an Employee and over age 59 1/2 may withdraw from the Accounts listed in paragraph (b) below. (b) Account Sources and Funding Order. The withdrawal amount shall come from the following of the Participant's fully vested Accounts, in the priority order as follows, except that the Participant may instead choose to have amounts taken from his or her After-Tax Account first: Rollover Account Before-Tax Account RSI Stock Match Account Viking/RRG Match Account Profit Sharing Account Coles Match Account Prior Profit Sharing Account Prior Before-Tax Account After-Tax Account - -------------------------------------------------------------------------------- 32 39 (c) Permitted Frequency. There is no restriction on the number of Over Age 59 1/2 withdrawals permitted to a Participant. (d) Suspension from Further Contributions. An Over Age 59 1/2 withdrawal shall not affect a Participant's ability to make or be eligible to receive further Contributions. - -------------------------------------------------------------------------------- 33 40 11 DISTRIBUTIONS ONCE EMPLOYMENT ENDS, UPON DISABILITY OR ------------------------------------------------------ AS REQUIRED BY LAW ------------------ 11.1 Benefit Information, Notices and Election A Participant, or his or her Beneficiary in the case of his or her death, shall be provided with information regarding all optional times and forms of distribution available, to include the notices prescribed by Code section 402(f) and Code section 411(a)(11). Subject to the other requirements of this Section, a Participant, or his or her Beneficiary in the case of his or her death, may elect, in such manner and with such advance notice as prescribed by the Administrator, to have his or her vested Account balance paid to him or her beginning upon any Settlement Date following the Participant's termination of employment with all Related Companies, upon his or her Disability or, if earlier, or at the time required by law as set forth in Section 11.6. If a distribution is one to which Code sections 401(a)(11) and 417 do not apply, such distribution may commence less than 30 days after the aforementioned notices are provided, if: (a) the Participant is clearly informed that he or she has the right to a period of at least 30 days after receipt of such notices to consider the decision as to whether to elect a distribution and if so to elect a particular form of distribution and to elect or not elect a Direct Rollover for all or a portion, if any, of his or her distribution which shall constitute an Eligible Rollover Distribution; and (b) the Participant after receiving such notices, affirmatively elects a distribution and a Direct Rollover for all or a portion, if any, of his or her distribution which shall constitute an Eligible Rollover Distribution or alternatively elects to have all or a portion made payable directly to him or her, thereby not electing a Direct Rollover for all or a portion thereof. Effective January 1, 1996, if a distribution is one to which Code sections 401(a)(11) and 417 do apply, such distribution may commence less than 30 days, but more than 7 days, after the aforementioned notices are provided, if the provisions of (a) and (b) above are satisfied and the Participant's election includes Spousal Consent. 11.2 Spousal Consent A Participant is not required to obtain Spousal Consent in order to receive a distribution under the Plan, except that Spousal Consent shall be required if any portion of such distribution shall include Predecessor Plan Amounts or amounts attributable to the Participant's participation in the Plan while a Coles Employee. - -------------------------------------------------------------------------------- 34 41 11.3 Payment Form and Medium (a) Benefit Attributable to Participation in the Plan While a RRG Employee or a Viking Employee: With regard to a Participant's benefit attributable to his or her participation in the Plan while a RRG Employee or a Viking Employee, a Participant shall be paid such benefit in the form of a single lump sum. Notwithstanding, if he or she is an Employee at the time he or she is required by law to commence distribution, or anytime thereafter, he or she may instead elect to be paid annually in a lump sum an amount sufficient to comply with Code section 401(a)(9). (b) Benefit Attributable to Predecessor Plan Amounts or Participation in the Plan While a Coles Employee: With regard to a Participant's benefit attributable to Predecessor Plan Amounts or his or her participation in the Plan while a Coles Employee, a Participant may elect to have such benefit be paid in (1) a single lump sum or (2) periodic installments over a period not to exceed the life expectancy of the Participant and his or her Beneficiary. To preserve benefits protected by Code section 411(d)(6), a Participant whose Account includes Predecessor Plan Amounts, may elect to have his or her benefit attributable to such Predecessor Plan Amounts be paid in one of the following forms: (1) a single life annuity, or (2) a joint and 50%, 75% or 100% survivor annuity. Any annuity option permitted shall be provided through the purchase of a non-transferable single premium contract from an insurance company which must conform to the terms of the Plan and which shall be distributed to the Participant or Beneficiary in complete satisfaction of the benefit due. Notwithstanding the above, with regard to Participant who is an Employee at the time he or she elects payment of his or her vested Account balance by reason of his or her Disability, his or her vested Account balance shall be paid in the form of a single lump sum. Distributions other than annuity contracts shall be made in cash, except to the extent a distribution consists of a loan call as described in Section 9. With regard to the portion of a distribution representing an Eligible Rollover Distribution, a Distributee may elect a Direct Rollover for all or a portion of such amount. - -------------------------------------------------------------------------------- 35 42 11.4 Source and Timing of Distribution Funding A distribution to a Participant shall be made solely from the assets of his or her own Accounts and shall be based on the Account values as of the Trade Date the distribution is processed. The available assets shall be determined first by Account type and then within each Account used for funding a distribution, amounts shall first be taken from the Sweep Account and then taken by Investment Fund in direct proportion to the market value of the Participant's interest in each Investment Fund as of the Trade Date on which the distribution is processed. The distribution shall be funded on the Settlement Date following the Trade Date as of which the distribution is processed. The Trustee shall make payment as soon thereafter as administratively feasible. 11.5 Deemed Distribution For purposes of Section 8.4, if at the time a Participant's employment with all Related Companies has terminated, the Participant's vested Account balance attributable to Accounts subject to vesting as described in Section 8, is zero, his or her vested Account balance shall be deemed distributed as of the Settlement Date following the Sweep Date on which the Administrator has reported to the Trustee that the Participant's employment with all Related Companies has terminated. 11.6 Latest Commencement Permitted In addition to any other Plan requirements and unless a Participant elects otherwise, his or her benefit payments shall begin not later than 60 days after the end of the Plan Year in which the Participant's employment with all Related Companies ends (other than by reason of death) or the Participant attains his or her Normal Retirement Date, whichever is later. However, if the amount of the payment or the location of the Participant or his or her Beneficiary (after a reasonable search) cannot be ascertained by that deadline, payment shall be made no later than 60 days after the earliest date on which such amount or location is ascertained but in no event later than as described below. A Participant's failure to elect in such manner as prescribed by the Administrator to have his or her vested Account balance paid to him or her, shall be deemed an election by the Participant to defer his or her distribution. Benefit payments shall begin by the April 1 immediately following the end of the calendar year in which the Participant attains age 70 1/2, whether or not he or she is an Employee, and except that distribution for an Employee who was born before July 1, 1917 and who is not a 5% owner does not need to begin until his or her employment with all Related Companies ends. - -------------------------------------------------------------------------------- 36 43 If benefit payments cannot begin at the time required because the location of the Participant cannot be ascertained (after a reasonable search), the Administrator may, at any time thereafter, treat such person's Account as forfeited subject to the provisions of Section 18.5. 11.7 Payment Within Life Expectancy The Participant's payment election must be consistent with the requirement of Code section 401(a)(9)and Treasury regulations issued thereunder, including Treasury regulation section 1.401(a)(9)-2, which provisions are incorporated by reference, provided that such provisions shall override the other distribution provisions of the Plan only to the extent that they are inconsistent with such other Plan provisions. All payments are to be completed within a period not to exceed the lives or the joint and last survivor life expectancy of the Participant and his or her Beneficiary. The life expectancies of a Participant and his or her Beneficiary, if such Beneficiary is his or her spouse, may be recomputed annually. 11.8 Incidental Benefit Rule The Participant's payment election must be consistent with the requirement that, if the Participant's spouse is not his or her sole primary Beneficiary, the minimum annual distribution for each calendar year, beginning with the year in which he or she attains age 70 1/2 (or such later date as provided otherwise in Section 11), shall not be less than the quotient obtained by dividing (a) the Participant's vested Account balance as of the last Trade Date of the preceding year by (b) the applicable divisor as determined under the incidental benefit requirements of Code section 401(a)(9) and the Treasury regulations incorporated herein pursuant to Section 11.7. 11.9 Payment to Beneficiary With regard to a Participant's benefit attributable to his or her participation in the Plan while a RRG Employee or a Viking Employee, payment to a Beneficiary must be completed by the end of the calendar year that contains the fifth anniversary of the Participant's death. With regard to a Participant's benefit attributable to Predecessor Plan Amounts or his or her participation in the Plan while a Coles Employee, payment to a Beneficiary must either: (1) be completed by the end of the calendar year that contains the fifth anniversary of the Participant's death or (2) begin by the end of the calendar year that contains the first anniversary of the Participant's death and be completed within the period of the Beneficiary's life or life expectancy, except that: - -------------------------------------------------------------------------------- 37 44 (a) If the Participant dies after the April 1 immediately following the end of the calendar year in which he or she attains age 70 1/2, payment to his or her Beneficiary must be made at least as rapidly as provided in the Participant's distribution election; (b) If the surviving spouse is the Beneficiary, payments need not begin until the end of the calendar year in which the Participant would have attained age 70 1/2 and must be completed within the spouse's life or life expectancy; and (c) If the Participant and the surviving spouse who is the Beneficiary die (1) before the April 1 immediately following the end of the calendar year in which the Participant would have attained age 70 1/2 and (2) before payments have begun to the spouse, the spouse shall be treated as the Participant in applying these rules. 11.10 Beneficiary Designation Each Participant may complete a beneficiary designation form indicating the Beneficiary who is to receive the Participant's remaining Plan interest at the time of his or her death. The designation may be changed at any time. However, a Participant's spouse shall be the sole primary Beneficiary unless the designation includes Spousal Consent for another Beneficiary. If no proper designation is in effect at the time of a Participant's death or if the Beneficiary does not survive the Participant, the Beneficiary shall be, in the order listed, the: (a) Participant's surviving spouse, (b) Participant's children, in equal shares, (or if a child does not survive the Participant, and that child leaves issue, the issue shall be entitled to that child's share, by right of representation) or (c) Participant's estate. 11.11 QJSA and QPSA Annuity Information and Elections The following definitions, information and election rules shall apply to any Participant who is eligible for an annuity option and who elects an annuity option and only with regard to the Participant's Predecessor Plan Amounts: (a) Annuity Starting Date. The first day of the first period for which an amount is payable as an annuity, or, in the case of a benefit not payable in the form of an annuity, the first day on which all events have occurred which entitle the Participant to such benefit. Such date shall be a date no earlier than the expiration of the 30-day period commencing the day after the information described in the QJSA Information to a Participant paragraph below is provided to the - -------------------------------------------------------------------------------- 38 45 Participant, except that effective January 1, 1996, "7-day period" shall be substituted for the preceding reference to "30-day period". (b) "QJSA". A qualified joint and survivor annuity, meaning for a married Participant, a form of benefit payment which is the actuarial equivalent of the Participant's vested Account balance at the Annuity Starting Date, payable to the Participant in monthly payments for life and providing that, if the Participant's spouse survives him or her, monthly payments equal to 50% of the amount payable to the Participant during his or her lifetime shall be paid to the spouse for the remainder of such person's lifetime and for a single Participant, a form of benefit payment which is the actuarial equivalent of the Participant's vested Account balance at the Annuity Starting Date, payable to the Participant in monthly payments for life. (c) "QPSA". A qualified pre-retirement survivor annuity, meaning that upon the death of a Participant before the Annuity Starting Date, the vested portion of the Participant's Account becomes payable to the surviving spouse as a life annuity, except to the extent of any Loan Account balance, unless Spousal Consent has been given to a different Beneficiary or the surviving spouse chooses a different form of payment. (d) QJSA Information to a Participant. No more than 90 days before the Annuity Starting Date, each Participant shall be given a written explanation of (1) the terms and conditions of the QJSA, (2) the right to a period of at least 30 days after receipt of the written explanation to make an election to waive this form of payment and choose an optional form of payment and the effect of this election, (3) the right to revoke this election and the effect of this revocation, and (4) the need for Spousal Consent. (e) QJSA Election. A Participant may elect, and such election shall include Spousal Consent if married, at any time within the 90 day period ending on the Annuity Starting Date, to (1) waive the right to receive the QJSA and elect an optional form of payment, or (2) revoke or change any such election. (f) QPSA Beneficiary Information to Participant. Upon becoming a Participant, and with updates as needed to insure such information is accurate and readily available to each Participant who is between the ages of 32 and 35, each married Participant shall be given written information stating that (1) his or her death benefit is payable to his or her surviving spouse, (2) he or she may choose that the benefit be paid to a different Beneficiary, (3) he or she has the right to revoke or change a prior designation and the effects of such revocation or change, and (4) the need for Spousal Consent. - -------------------------------------------------------------------------------- 39 46 (g) QPSA Beneficiary Designation by Participant. A married Participant may designate, with Spousal Consent, a non-spouse Beneficiary at any time after the Participant has been given the information in the QPSA Beneficiary Information to Participant paragraph above and upon the earlier of (1) the date the Participant has terminated employment, or (2) the beginning of the Plan Year in which the Participant attains age 35. (h) QPSA Information to a Surviving Spouse. Each surviving spouse shall be given a written explanation of (1) the terms and conditions of being paid his or her Account balance in the form of a single life annuity, (2) the right to make an election to waive this form of payment and choose an optional form of payment and the effect of this election, and (3) the right to revoke this election and the effect of this revocation. (i) QPSA Election by Surviving Spouse. A surviving spouse may elect, at any time up to the Annuity Starting Date, to (1) waive the right to receive a single life annuity and elect an optional form of payment, or (2) revoke or change any such election. - -------------------------------------------------------------------------------- 40 47 12 ADP AND ACP TESTS ----------------- 12.1 Contribution Limitation Definitions The following definitions are applicable to this Section 12 (where a definition is contained in both Sections 1 and 12, for purposes of Section 12 the Section 12 definition shall be controlling): (a) "ACP" or "Average Contribution Percentage". The Average Percentage calculated using Contributions allocated to Participants as of a date within the Plan Year. (b) "ACP Test". The determination of whether the ACP is in compliance with the Basic or Alternative Limitation for a Plan Year (as defined in Section 12.2). (c) "ADP" or "Average Deferral Percentage". The Average Percentage calculated using Deferrals allocated to Participants as of a date within the Plan Year. (d) "ADP Test". The determination of whether the ADP is in compliance with the Basic or Alternative Limitation for a Plan Year (as defined in Section 12.2). (e) "Average Percentage". The average of the calculated percentages for Participants within the specified group. The calculated percentage refers to either the "Deferrals" or "Contributions" (as defined in this Section) actually paid on each such Participant's behalf for the Plan Year, divided by his or her Compensation for the portion of the Plan Year in which he or she was an Eligible Employee while a Participant. (Before-Tax Contributions to this Plan or comparable contributions to plans of Related Companies which shall be refunded solely because they exceed the Contribution Dollar Limit are included in the percentage for the HCE Group but not for the NHCE Group.) (f) "Contributions" shall include Matching Contributions and for the Plan Year ending December 31, 1995 "Employee Voluntary Contributions" for the period January 1, 1995 through March 31,1995 made under the Predecessor Plan. In addition, Contributions may include Before-Tax Contributions, only to the extent that (1) the Employer elects to use them, (2) they are not used or counted in the ADP Test and (3) they otherwise satisfy the requirements as prescribed under Code section 401(m) permitting treatment as Contributions for purposes of the ACP Test. (g) "Deferrals" shall include Before-Tax Contributions. - -------------------------------------------------------------------------------- 41 48 (h) "Family Member". An Employee who is, at any time during the Plan Year or Lookback Year, a spouse, lineal ascendant or descendant, or spouse of a lineal ascendant or descendant of (1) an active or former Employee who at any time during the Plan Year or Lookback Year is a more than 5% Owner (within the meaning of Code section 414(q)(3)), or (2) a HCE who is among the 10 Employees with the highest Compensation for such Year. (i) "HCE" or "Highly Compensated Employee". With respect to each Employer and its Related Companies, an Employee during the Plan Year or Lookback Year who (in accordance with Code section 414(q)): (1) Was a more than 5% Owner at any time during the Lookback Year or Plan Year; (2) Received Compensation during the Lookback Year (or in the Plan Year if among the 100 Employees with the highest Compensation for such Year) in excess of (i) $75,000 (as adjusted for such Year pursuant to Code sections 414(q)(1) and 415(d)), or (ii) $50,000 (as adjusted for such Year pursuant to Code sections 414(q)(1) and 415(d)) in the case of a member of the "top-paid group" (within the meaning of Code section 414(q)(4)) for such Year), provided, however, that if the conditions of Code section 414(q)(12)(B)(ii) are met, the Plan Sponsor may elect for any Plan Year to apply clause (i) by substituting $50,000 for $75,000 and not to apply clause (ii); (3) Was an officer of a Related Company and received Compensation during the Lookback Year (or in the Plan Year if among the 100 Employees with the highest Compensation for such Year) that is greater than 50% of the dollar limitation in effect under Code section 415(b)(1)(A) and (d) for such Year (or if no officer has Compensation in excess of the threshold, the officer with the highest Compensation), provided that the number of officers shall be limited to 50 Employees (or, if less, the greater of three Employees or 10% of the Employees); or (4) Was a Family Member at any time during the Lookback Year or Plan Year, in which case the Deferrals, Contributions and Compensation of the HCE and his or her Family Members shall be aggregated and they shall be treated as a single HCE. A former Employee shall be treated as a HCE if (1) such former Employee was a HCE when he separated from service, or (2) such former Employee was a HCE in service at any time after attaining age 55. - -------------------------------------------------------------------------------- 42 49 The determination of who is a HCE, including the determinations of the number and identity of Employees in the top-paid group, the top 100 Employees and the number of Employees treated as officers shall be made in accordance with Code section 414(q). (j) "HCE Group" and "NHCE Group". With respect to each Employer and its Related Companies, the respective group of HCEs and NHCEs who are eligible to have amounts contributed on their behalf for the Plan Year, including Employees who would be eligible but for their election not to participate or to contribute, or because their Pay is greater than zero but does not exceed a stated minimum. (1) If the Related Companies maintain two or more plans which are subject to (i) the ADP Test and are considered as one plan for purposes of Code sections 401(a)(4) or 410(b), or (ii) the ACP Test and are considered as one plan for purposes of Code section 410(b), all such plans shall be aggregated and treated as one plan for purposes of meeting the ADP and ACP Tests, provided that the plans may only be aggregated if they have the same Plan Year. (2) If a HCE, who is one of the top 10 paid Employees or a more than 5% Owner, has any Family Members, the Deferrals, Contributions and Compensation of such HCE and his or her Family Members shall be combined and treated as a single HCE. Such amounts for all other Family Members shall be removed from the NHCE Group percentage calculation and be combined with the HCE's. (3) If a HCE is covered by more than one cash or deferred arrangement, or more than one arrangement permitting employee or matching contributions, maintained by the Related Companies, all such plans shall be aggregated and treated as one plan (other than those plans that may not be permissively aggregated) for purposes of calculating the separate percentage for the HCE which is used in the determination of the Average Percentage. (k) "Lookback Year". Pursuant to Code section 414(q), the Plan Sponsor elects as the Lookback Year the 12 months ending immediately prior to the start of the Plan Year. (l) "Multiple Use Test". The test described in Section 12.4 which a Plan must meet where the Alternative Limitation (described in Section 12.2(b)) is used to meet both the ADP and ACP Tests. - -------------------------------------------------------------------------------- 43 50 (m) "NHCE" or "Non-Highly Compensated Employee". An Employee who is not a HCE. 12.2 ADP and ACP Tests For each Plan Year, the ADP and ACP for the HCE Group must meet either the Basic or Alternative Limitation when compared to the respective ADP and ACP for the NHCE Group, defined as follows: (a) Basic Limitation. The HCE Group Average Percentage may not exceed 1.25 times the NHCE Group Average Percentage. (b) Alternative Limitation. The HCE Group Average Percentage is limited by reference to the NHCE Group Average Percentage as follows: IF THE NHCE GROUP THEN THE MAXIMUM HCE AVERAGE PERCENTAGE IS: GROUP AVERAGE PERCENTAGE IS: ---------------------- ---------------------------- Less than 2% 2 times NHCE Group Average % 2% to 8% NHCE Group Average % plus 2% More than 8% NA - Basic Limitation applies 12.3 Correction of ADP and ACP Tests If the ADP or ACP Tests are not met, the Administrator shall determine, no later than the end of the next Plan Year, a maximum percentage to be used in place of the calculated percentage for all HCEs that would reduce the ADP and/or ACP for the HCE group by a sufficient amount to meet the ADP and ACP Tests. ADP and/or ACP corrections shall be made in accordance with the leveling method as described below. (a) ADP Correction. The HCE with the highest Deferral percentage shall have his or her Deferral percentage reduced to the lesser of the extent required to meet the ADP Test or to cause his or her Deferral percentage to equal that of the HCE with the next highest Deferral percentage. The process shall be repeated until the ADP Test is met. To the extent a HCE's Deferrals were determined to be reduced as described in the paragraph above, Before-Tax Contributions shall, by the end of the next Plan Year, be refunded to the HCE in an amount equal to the actual Deferrals minus the product of the maximum percentage and the HCE's Compensation, except that such amount to be refunded shall be reduced by Before-Tax Contributions previously refunded because they exceeded the Contribution Dollar Limit. Excess amounts shall first be taken from unmatched Before-Tax Contributions and then from matched Before-Tax Contributions. Any Matching Contributions attributable to refunded excess Before-Tax Contributions - -------------------------------------------------------------------------------- 44 51 as described in this Section, adjusted for investment gain or loss, shall be forfeited and used to reduce Contributions made by an Employer as soon as administratively feasible. (b) ACP Correction. The HCE with the highest Contribution percentage shall have his or her Contribution percentage reduced to the lesser of the extent required to meet the ACP Test or to cause his or her Contribution percentage to equal that of the HCE with the next highest Contribution percentage. The process shall be repeated until the ACP Test is met. To the extent a HCE's Contributions were determined to be reduced as described in the paragraph above, Matching Contributions shall, by the end of the next Plan Year, be refunded to the HCE in an amount equal to the actual Contributions minus the product of the maximum percentage and the HCE's Compensation, except that for the Plan Year ending December 31, 1995, excess amounts shall first be taken from "Employee Voluntary Contributions" for the period January 1, 1995 through March 31,1995 made under the Predecessor Plan, which amounts were not matched. (c) Investment Fund Sources. Once the amount of excess Deferrals and/or Contributions is determined and with regard to excess Contributions allocated by type of Contribution, amounts shall first be taken from the Sweep Account and then taken by Investment Fund in direct proportion to the market value of the Participant's interest in each Investment Fund (which excludes his or her Loan Account balance) as of the Trade Date on which the correction is processed. (d) Family Member Correction. To the extent any reduction is necessary with respect to a HCE and his or her Family Members that have been combined and treated for testing purposes as a single Employee, the excess Deferrals and Contributions from the ADP and/or ACP Test shall be prorated among each such Participant in direct proportion to his or her Deferrals or Contributions included in each Test. 12.4 Multiple Use Test If the Alternative Limitation (defined in Section 12.2) is used to meet both the ADP and ACP Tests, the ADP and ACP for the HCE Group must also comply with the requirements of Code section 401(m)(9). Such Code section requires that the sum of the ADP and ACP for the HCE Group (as determined after any corrections needed to meet the ADP and ACP Tests have been made) not exceed the sum (which produces the most favorable result) of: (a) the Basic Limitation (defined in Section 12.2) applied to either the ADP or ACP for the NHCE Group, and (b) the Alternative Limitation applied to the other NHCE Group percentage. - -------------------------------------------------------------------------------- 45 52 12.5 Correction of Multiple Use Test If the multiple use limit is exceeded, the Administrator shall determine a maximum percentage to be used in place of the calculated percentage for all HCEs that would reduce either or both the ADP or ACP for the HCE Group by a sufficient amount to meet the multiple use limit. Any excess shall be handled in the same manner that the distribution of excess Deferrals or Contributions are handled. 12.6 Adjustment for Investment Gain or Loss Any excess Deferrals or Contributions to be refunded to a Participant or forfeited in accordance with Section 12.3 or 12.5 shall be adjusted for investment gain or loss. Refunds or forfeitures shall not include investment gain or loss for the period between the end of the applicable Plan Year and the date of distribution. 12.7 Testing Responsibilities and Required Records The Administrator shall be responsible for ensuring that the Plan meets the ADP Test, the ACP Test and the Multiple Use Test, and that the Contribution Dollar Limit is not exceeded. In carrying out its responsibilities, the Administrator shall have sole discretion to limit or reduce Deferrals or Contributions at any time. The Administrator shall maintain records which are sufficient to demonstrate that the ADP Test, the ACP Test and the Multiple Use Test, have been met for each Plan Year for at least as long as the Employer's corresponding tax year is open to audit. 12.8 Separate Testing (a) Multiple Employers: The determination of HCEs, NHCEs, and the performance of the ADP Test, the ACP Test and Multiple Use Test, and any corrective action resulting therefrom, shall be made separately with regard to the Employees of each Employer (and its Related Companies) that is not a Related Company with the other Employer(s). (b) Collective Bargaining Units: The performance of the ADP Test, and if applicable, the ACP Test and Multiple Use Test, and any corrective action resulting therefrom, shall be applied separately to Employees who are eligible to participate in the Plan as a result of a collective bargaining agreement. In addition, separate testing may be applied, at the discretion of the Administrator and to the extent permitted under Treasury regulations, to any group of Employees for whom separate testing is permissible. - -------------------------------------------------------------------------------- 46 53 13 MAXIMUM CONTRIBUTION AND BENEFIT LIMITATIONS -------------------------------------------- 13.1 "Annual Addition" Defined The sum of all amounts allocated to the Participant's Account for a Plan Year which are contributions (except for rollovers or transfers from another qualified plan), forfeitures and, if the Participant is a Key Employee (pursuant to Section 14) for the applicable or any prior Plan Year, medical benefits provided pursuant to Code section 419A(d)(1). For purposes of this Section 13.1, "Account" also includes a Participant's account in all other defined contribution plans currently or previously maintained by any Related Company. The Plan Year refers to the year to which the allocation pertains, regardless of when it was allocated. The Plan Year shall be the Code section 415 limitation year. 13.2 Maximum Annual Addition The Annual Addition to a Participant's accounts under this Plan and any other defined contribution plan maintained by any Related Company for any Plan Year shall not exceed the lesser of (1) 25% of his or her Taxable Income or (2) $30,000 (as adjusted for the cost of living pursuant to Code section 415(d)). 13.3 Avoiding an Excess Annual Addition If, at any time during a Plan Year, the allocation of any additional Contributions would produce an excess Annual Addition for such year, Contributions to be made for the remainder of the Plan Year shall be limited to the amount needed for each affected Participant to receive the maximum Annual Addition. 13.4 Correcting an Excess Annual Addition Upon the discovery of an excess Annual Addition to a Participant's Account (resulting from forfeitures, allocations, reasonable error in determining Participant compensation or the amount of elective contributions, or other facts and circumstances acceptable to the Internal Revenue Service) the excess amount (adjusted to reflect investment gains) shall first be returned to the Participant to the extent of his or her Before-Tax Contributions for the Plan Year (or for the Plan Year ending December 31, 1995 "Employee Voluntary Contributions" for the period January 1, 1995 through March 31, 1995 made under the Predecessor Plan), (however to the extent such Contributions were matched, the applicable Matching Contributions shall be forfeited in proportion to the returned matched Contributions) and the remaining excess, if any, shall be forfeited by the Participant and together with forfeited Matching Contributions used to reduce Contributions made by an Employer as soon as administratively feasible. - -------------------------------------------------------------------------------- 47 54 13.5 Correcting a Multiple Plan Excess If a Participant, whose Account is credited with an excess Annual Addition, received allocations to more than one defined contribution plan, the excess shall be corrected by reducing the Annual Addition to this Plan only after all possible reductions have been made to the other defined contribution plans. 13.6 "Defined Benefit Fraction" Defined The fraction, for any Plan Year, where the numerator is the "projected annual benefit" and the denominator is the greater of 125% of the "protected current accrued benefit" or the normal limit which is the lesser of (1) 125% of the maximum dollar limitation provided under Code section 415(b)(1)(A) for the Plan Year or (2) 140% of the amount which may be taken into account under Code section 415(b)(1)(B) for the Plan Year, where a Participant's: (a) "projected annual benefit" is the annual benefit provided by the Plan determined pursuant to Code section 415(e)(2)(A), and (b) "protected current accrued benefit" in a defined benefit plan in existence (1) on July 1, 1982, shall be the accrued annual benefit provided for under Public Law 97-248, section 235(g)(4), as amended, or (2) on May 6, 1986, shall be the accrued annual benefit provided for under Public Law 99-514, section 1106(i)(3). 13.7 "Defined Contribution Fraction" Defined The fraction where the numerator is the sum of the Participant's Annual Addition for each Plan Year to date and the denominator is the sum of the "annual amounts" for each year in which the Participant has performed service with a Related Company. The "annual amount" for any Plan Year is the lesser of (1) 125% of the Code section 415(c)(1)(A) dollar limitation (determined without regard to subsection (c)(6)) in effect for the Plan Year and (2) 140% of the Code section 415(c)(1)(B) amount in effect for the Plan Year, where: (a) each Annual Addition is determined pursuant to the Code section 415(c) rules in effect for such Plan Year, and (b) the numerator is adjusted pursuant to Public Law 97-248, section 235(g)(3), as amended, or Public Law 99-514, section 1106(i)(4). 13.8 Combined Plan Limits and Correction If a Participant has also participated in a defined benefit plan maintained by a Related Company, the sum of the Defined Benefit Fraction and the Defined Contribution Fraction for any Plan Year may not exceed 1.0. If the combined fraction exceeds 1.0 for any Plan Year, the Participant's benefit under any defined benefit plan (to the extent it has not been distributed or used to purchase an annuity contract) shall be limited so that the combined fraction does not exceed 1.0 before any defined contribution limits shall be enforced. - -------------------------------------------------------------------------------- 48 55 14 TOP HEAVY RULES --------------- 14.1 Top Heavy Definitions When capitalized, the following words and phrases have the following meanings when used in this Section: (a) "Aggregation Group". The group consisting of each qualified plan of an Employer (and its Related Companies) (1) in which a Key Employee is a participant or was a participant during the determination period (regardless of whether such plan has terminated), or (2) which enables another plan in the group to meet the requirements of Code sections 401(a)(4) or 410(b). The Employer may also treat any other qualified plan as part of the group if the group would continue to meet the requirements of Code sections 401(a)(4) and 410(b) with such plan being taken into account. (b) "Determination Date". The last Trade Date of the preceding Plan Year or, in the case of the Plan's first year, the last Trade Date of the first Plan Year. (c) "Key Employee". A current or former Employee (or his or her Beneficiary) who at any time during the five year period ending on the Determination Date was: (1) an officer of a Related Company whose Compensation (i) exceeds 50% of the amount in effect under Code section 415(b)(1)(A) and (ii) places him within the following highest paid group of officers: NUMBER OF EMPLOYEES NUMBER OF NOT EXCLUDED UNDER CODE HIGHEST PAID SECTION 414(q)(8) OFFICERS INCLUDED ----------------- ----------------- Less than 30 3 30 to 500 10% of the number of Employees not excluded under Code section 414(q)(8) More than 500 50 (2) a more than 5% Owner, (3) a more than 1% Owner whose Compensation exceeds $150,000, or - -------------------------------------------------------------------------------- 49 56 (4) a more than 0.5% Owner who is among the 10 Employees owning the largest interest in a Related Company and whose Compensation exceeds the amount in effect under Code section 415(c)(1)(A). (d) "Plan Benefit". The sum as of the Determination Date of (1) an Employee's Account, (2) the present value of his or her other accrued benefits provided by all qualified plans within the Aggregation Group, and (3) the aggregate distributions made within the five year period ending on such date. Plan Benefits shall exclude Rollover Contributions and plan to plan transfers made after December 31, 1983 which are both employee initiated and from a plan maintained by a non-related employer. (e) "Top Heavy". The Plan's status when the Plan Benefits of Key Employees account for more than 60% of the Plan Benefits of all Employees who have performed services at any time during the five year period ending on the Determination Date. The Plan Benefits of Employees who were, but are no longer, Key Employees (because they have not been an officer or Owner during the five year period), are excluded in the determination. 14.2 Special Contributions (a) Minimum Contribution Requirement. For each Plan Year in which the Plan is Top Heavy, the Employer shall not allow any contributions (other than a Rollover Contribution from a plan maintained by a non- related employer) to be made by or on behalf of any Key Employee unless the Employer makes a contribution (other than contributions made by an Employer in accordance with a Participant's salary deferral election or contributions made by an Employer based upon the amount contributed by a Participant) on behalf of all Participants who were Eligible Employees as of the last day of the Plan Year in an amount equal to at least 3% of each such Participant's Taxable Income. The Administrator shall remove any such contributions (including applicable investment gain or loss) credited to a Key Employee's Account in violation of the foregoing rule and return them to the Employer or Employee to the extent permitted by the Limited Return of Contributions paragraph of Section 18. (b) Overriding Minimum Benefit. Notwithstanding, contributions shall be permitted on behalf of Key Employees if the Employer also maintains a defined benefit plan which automatically provides a benefit which satisfies the Code section 416(c)(1) minimum benefit requirements, including the adjustment provided in Code section 416(h)(2)(A), if applicable. If this Plan is part of an aggregation group in which a Key Employee is receiving a benefit and no minimum is provided in any other - -------------------------------------------------------------------------------- 50 57 plan, a minimum contribution of at least 3% of Taxable Income shall be provided to the Participants specified in the preceding paragraph. In addition, the Employer may offset a defined benefit minimum by contributions (other than contributions made by an Employer in accordance with a Participant's salary deferral election or contributions made by an Employer based upon the amount contributed by a Participant) made to this Plan. 14.3 Special Vesting If the Plan becomes Top Heavy after the Effective Date, all Employees shall thereafter be vested in all Accounts. 14.4 Adjustment to Combined Limits for Different Plans For each Plan Year in which the Plan is Top Heavy, 100% shall be substituted for 125% in determining the Defined Benefit Fraction and the Defined Contribution Fraction. - -------------------------------------------------------------------------------- 51 58 15 PLAN ADMINISTRATION ------------------- 15.1 Plan Delineates Authority and Responsibility Plan fiduciaries include the Plan Sponsor, the Administrator, the Committee and/or the Trustee, as applicable, whose specific duties are delineated in this Plan and Trust. In addition, Plan fiduciaries also include any other person to whom fiduciary duties or responsibility is delegated with respect to the Plan. Any person or group may serve in more than one fiduciary capacity with respect to the Plan. To the extent permitted under ERISA section 405, no fiduciary shall be liable for a breach by another fiduciary. 15.2 Fiduciary Standards Each fiduciary shall: (a) discharge his or her duties in accordance with this Plan and Trust to the extent they are consistent with ERISA; (b) use that degree of care, skill, prudence and diligence that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (c) act with the exclusive purpose of providing benefits to Participants and their Beneficiaries, and defraying reasonable expenses of administering the Plan; (d) diversify Plan investments, to the extent such fiduciary is responsible for directing the investment of Plan assets, so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and (e) treat similarly situated Participants and Beneficiaries in a uniform and nondiscriminatory manner. 15.3 Plan Sponsor is ERISA Plan Administrator The Plan Sponsor is the plan administrator, within the meaning of ERISA section 3(16) and Code section 414(g), which is responsible for compliance with all reporting and disclosure requirements, except those that are explicitly the responsibility of the Trustee under applicable law. The Administrator and/or Committee shall have any necessary authority to carry out such functions through the actions of the Administrator, duly appointed officers of the Plan Sponsor, and/or the Committee. - -------------------------------------------------------------------------------- 52 59 15.4 Administrator Duties The Administrator shall have the sole and absolute discretion to interpret the provisions of the Plan and Trust, other than the provisions which relate to the Trustee, (including, without limitation, by supplying omissions from, correcting deficiencies in, or resolving inconsistencies or ambiguities in, the language of the Plan), to determine the rights and status under the Plan of Participants and other persons, to decide disputes arising under the Plan and to make any determination or findings with respect to the benefits payable thereunder and the person entitled thereto as may be required for the purpose of the Plan. In furtherance thereof, but without limiting the foregoing, the Administrator is hereby granted the following specific authorities, which it shall discharge in its sole and absolute discretion in accordance with the terms of the Plan (as interpreted, to the extent necessary, by the Administrator): (a) determine who is eligible to participate, if a contribution qualifies as a rollover contribution, the allocation of Contributions, and the eligibility for loans, in-service withdrawals and distributions; (b) determine the fact of a Participant's death and of any Beneficiary's right to receive the deceased Participant's interest based upon such proof and evidence as it deems necessary; (c) establish and review at least annually a funding policy bearing in mind both the short-run and long-run needs and goals of the Plan. To the extent Participants may direct their own investments, the funding policy shall focus on which Investment Funds are available for Participants to use; and (d) adjudicate claims pursuant to the claims procedure described in Section 18. Actions taken in good faith by the Administrator shall be conclusive and binding on all interested parties, and shall be given the maximum possible deference allowed by law. 15.5 Advisors May be Retained The Administrator may retain such agents and advisors (including attorneys, accountants, actuaries, consultants, record keepers, investment counsel and administrative assistants) as it considers necessary to assist it in the performance of its duties. The Administrator shall also comply with the bonding requirements of ERISA section 412. - -------------------------------------------------------------------------------- 53 60 15.6 Delegation of Administrator Duties The Plan Sponsor, as Administrator of the Plan, has appointed a Committee to administer the Plan on its behalf. The Plan Sponsor shall provide the Trustee with the names and specimen signatures of any persons authorized to serve as Committee members and act as or on its behalf. Any Committee member appointed by the Plan Sponsor shall serve at the pleasure of the Plan Sponsor, but may resign by written notice to the Plan Sponsor. Committee members shall serve without compensation from the Plan for such services. Except to the extent that the Plan Sponsor otherwise provides, any delegation of duties to a Committee shall carry with it the full discretionary authority of the Administrator to complete such duties. 15.7 Committee Operating Rules (a) Actions of Majority. Any act delegated by the Plan Sponsor to the Committee may be done by a majority of its members. The majority may be expressed by a vote at a meeting or in writing without a meeting, and a majority action shall be equivalent to an action of all Committee members. (b) Meetings. The Committee shall hold meetings upon such notice, place and times as it determines necessary to conduct its functions properly. (c) Reliance by Trustee. The Committee may authorize one or more of its members to execute documents on its behalf and may authorize one or more of its members or other individuals who are not members to give written direction to the Trustee in the performance of its duties. The Committee shall provide such authorization in writing to the Trustee with the name and specimen signatures of any person authorized to act on its behalf. The Trustee shall accept such direction and rely upon it until notified in writing that the Committee has revoked the authorization to give such direction. The Trustee shall not be deemed to be on notice of any change in the membership of the Committee, parties authorized to direct the Trustee in the performance of its duties, or the duties delegated to and by the Committee until notified in writing. - -------------------------------------------------------------------------------- 54 61 16 MANAGEMENT OF INVESTMENTS ------------------------- 16.1 Trust Agreement All Plan assets shall be held by the Trustee in trust, in accordance with those provisions of this Plan and Trust which relate to the Trustee, for use in providing Plan benefits and paying Plan fees and expenses not paid directly by the Employer. Plan benefits shall be drawn solely from the Trust and paid by the Trustee as directed by the Administrator. Notwithstanding, the Administrator may appoint, with the approval of the Trustee, another trustee to hold and administer Plan assets which do not meet the requirements of Section 16.2. 16.2 Investment Funds The Administrator is hereby granted authority to direct the Trustee to invest Trust assets in one or more Investment Funds. The number and composition of Investment Funds may be changed from time to time, without the necessity of amending this Plan and Trust. The Trustee may establish reasonable limits on the number of Investment Funds as well as the acceptable assets for any such Investment Fund. Each of the Investment Funds may be comprised of any of the following: (a) shares of a registered investment company, whether or not the Trustee or any of its affiliates is an advisor to, or other service provider to, such company, provided an investment in such is exempt from the prohibited transaction restrictions of the Code and ERISA; (b) collective investment funds maintained by the Trustee, or any other fiduciary to the Plan, which are available for investment by trusts which are qualified under Code sections 401(a) and 501(a); (c) individual equity and fixed income securities which are readily tradeable on the open market; (d) guaranteed investment contracts issued by a bank or insurance company; (e) interest bearing deposits of the Trustee; (f) Roadway Stock; and (g) REX Stock, subject to the limitations as set forth in Section 16 and Appendix A. - -------------------------------------------------------------------------------- 55 62 Any Investment Fund assets invested in a collective investment fund, shall be subject to all the provisions of the instruments establishing and governing such fund. These instruments, including any subsequent amendments, are hereby adopted by the Plan and are incorporated herein by reference. 16.3 Authority to Hold Cash The Trustee shall have the authority to cause the investment manager of each Investment Fund to maintain sufficient deposit or money market type assets in each Investment Fund to handle the Fund's liquidity and disbursement needs. Each Participant's and Beneficiary's Sweep Account, which is used to hold assets pending investment or disbursement, shall consist of interest bearing deposits of the Trustee. 16.4 Trustee to Act Upon Instructions The Trustee shall carry out instructions to invest assets in the Investment Funds as soon as practicable after such instructions are received from the Administrator, Participants, or Beneficiaries. Such instructions shall remain in effect until changed by the Administrator, Participants or Beneficiaries. 16.5 Administrator Has Right to Vote Registered Investment Company Shares The Administrator shall be entitled, but not required, to vote proxies or exercise any shareholder rights relating to shares held on behalf of the Plan in a registered investment company. Notwithstanding, the authority to vote proxies and exercise shareholder rights related to such shares held in a Custom Fund is vested as provided otherwise in Section 16. 16.6 Custom Fund Investment Management The Administrator may designate, with the consent of the Trustee, an investment manager for any Investment Fund established by the Trustee solely for Participants of this Plan (a "Custom Fund"). The investment manager may be the Administrator, Trustee or an investment manager pursuant to ERISA section 3(38). The Administrator shall advise the Trustee in writing of the appointment of an investment manager and shall cause the investment manager to acknowledge to the Trustee in writing that the investment manager is a fiduciary to the Plan. A Custom Fund shall be subject to the following: (a) Guidelines. Written guidelines, acceptable to the Trustee, shall be established for a Custom Fund. If a Custom Fund consists solely of collective investment funds or shares of a registered investment company (and sufficient deposit or money market type assets to handle the Fund's liquidity and disbursement needs), its underlying instruments shall constitute the guidelines. - -------------------------------------------------------------------------------- 56 63 (b) Authority of Investment Manager. The investment manager of a Custom Fund shall have the authority to vote or execute proxies, exercise shareholder rights, manage, acquire, and dispose of Trust assets. Notwithstanding, the authority to vote proxies and exercise shareholder rights related to shares of Roadway Stock and REX Stock held in a Custom Fund is vested as provided otherwise in Section 16. (c) Custody and Trade Settlement. Unless otherwise agreed to by the Trustee, the Trustee shall maintain custody of all Custom Fund assets and be responsible for the settlement of all Custom Fund trades. For purposes of this section, shares of a collective investment fund, shares of a registered investment company and guaranteed investment contracts issued by a bank or insurance company, shall be regarded as the Custom Fund assets instead of the underlying assets of such instruments. (d) Limited Liability of Co-Fiduciaries. Neither the Administrator nor the Trustee shall be obligated to invest or otherwise manage any Custom Fund assets for which the Trustee or Administrator is not the investment manager nor shall the Administrator or Trustee be liable for acts or omissions with regard to the investment of such assets except to the extent required by ERISA. 16.7 Authority to Segregate Assets The Plan Sponsor may direct the Trustee to split an Investment Fund into two or more funds in the event any assets in the Fund are illiquid or the value is not readily determinable. In the event of such segregation, the Plan Sponsor shall give instructions to the Trustee on what value to use for the split-off assets, and the Trustee shall not be responsible for confirming such value. 16.8 Maximum Permitted Investment in Roadway Stock If the Plan Sponsor provides for a Roadway Stock Fund the Fund shall be comprised of Roadway Stock and sufficient deposit or money market type assets to handle the Fund's liquidity and disbursement needs. The Fund may be as large as necessary to comply with Participants' and Beneficiaries' investment elections as well as the total investment of Participants' and Beneficiaries' RSI Stock Match Accounts. To the extent described in Appendix A, the Rex Stock Fund may also be comprised of Roadway Stock. 16.9 Participants Have Right to Vote and Tender Roadway Stock Each Participant or Beneficiary shall be entitled to instruct the Trustee as to the voting or tendering of any full or partial shares of Roadway Stock held on his or her behalf in the Roadway Stock Fund and the Rex Stock Fund. Prior to such voting or tendering of Roadway Stock, each Participant or Beneficiary shall - -------------------------------------------------------------------------------- 57 64 receive a copy of the proxy solicitation or other material relating to such vote or tender decision and a form for the Participant or Beneficiary to complete which confidentially instructs the Trustee to vote or tender such shares in the manner indicated by the Participant or Beneficiary. Upon receipt of such instructions, the Trustee shall act with respect to such shares as instructed. The Administrator shall instruct the Trustee with respect to how to vote or tender any shares for which instructions are not received from Participants or Beneficiaries. 16.10 Participants Have Right to Vote and Tender REX Stock Each Participant or Beneficiary shall be entitled to instruct the Trustee as to the voting or tendering of any full or partial shares of REX Stock held on his or her behalf in the REX Stock Fund. Prior to such voting or tendering of REX Stock, each Participant or Beneficiary shall receive a copy of the proxy solicitation or other material relating to such vote or tender decision and a form for the Participant or Beneficiary to complete which confidentially instructs the Trustee to vote or tender such shares in the manner indicated by the Participant or Beneficiary. Upon receipt of such instructions, the Trustee shall act with respect to such shares as instructed. The Administrator shall instruct the Trustee with respect to how to vote or tender any shares for which instructions are not received from Participants or Beneficiaries. 16.11 Registration and Disclosure for Roadway Stock The Administrator shall be responsible for determining the applicability of (and, if applicable, complying with) the requirements of the Securities Act of 1933, as amended, the California Corporate Securities Law of 1968, as amended, and any other applicable blue sky law. The Administrator shall also specify what restrictive legend or transfer restriction, if any, is required to be set forth on the certificates for the securities and the procedure to be followed by the Trustee to effectuate a resale of such securities. 16.12 Registration and Disclosure for REX Stock The Administrator shall be responsible for determining the applicability of (and, if applicable, complying with) the requirements of the Securities Act of 1933, as amended, the California Corporate Securities Law of 1968, as amended, and any other applicable blue sky law. The Administrator shall also specify what restrictive legend or transfer restriction, if any, is required to be set forth on the certificates for the securities and the procedure to be followed by the Trustee to effectuate a resale of such securities. - -------------------------------------------------------------------------------- 58 65 17 TRUST ADMINISTRATION -------------------- 17.1 Trustee to Construe Trust Subject to the authority of the Administrator, the Trustee shall have the discretionary authority to construe those provisions of this Plan and Trust which relate to the Trustee and to do all things necessary or convenient to the administration of the Trust, whether or not such powers are specifically set forth in this Plan and Trust. Actions taken in good faith by the Trustee shall be conclusive and binding on all interested parties, and shall be given the maximum possible deference allowed by law. 17.2 Trustee To Act As Owner of Trust Assets Subject to the specific conditions and limitations set forth in this Plan and Trust, the Trustee shall have all the power, authority, rights and privileges of an absolute owner of the Trust assets and, not in limitation but in amplification of the foregoing, may: (a) receive, hold, manage, invest and reinvest, sell, tender, exchange, dispose of, encumber, hypothecate, pledge, mortgage, lease, grant options respecting, repair, alter, insure, or distribute any and all property in the Trust; (b) borrow money, participate in reorganizations, pay calls and assessments, vote or execute proxies, exercise subscription or conversion privileges, exercise options and register any securities in the Trust in the name of the nominee, in federal book entry form or in any other form as shall permit title thereto to pass by delivery; (c) renew, extend the due date, compromise, arbitrate, adjust, settle, enforce or foreclose, by judicial proceedings or otherwise, or defend against the same, any obligations or claims in favor of or against the Trust; and (d) lend on behalf of the Trust, directly or, through a collective investment fund, any securities, including securities held in such collective investment fund to brokers, dealers or other borrowers and to permit such securities to be transferred into the name and custody and be voted by the borrower or others. 17.3 United States Indicia of Ownership The Trustee shall not maintain the indicia of ownership of any Trust assets outside the jurisdiction of the United States, except as authorized by ERISA section 404(b). - -------------------------------------------------------------------------------- 59 66 17.4 Tax Withholding and Payment (a) Withholding. The Trustee shall calculate and withhold federal and, if applicable, state income taxes with regard to any Eligible Rollover Distribution that is not paid as a Direct Rollover in accordance with the Participant's withholding election or as required by law if no election is made or the election is less than the amount required by law. With regard to any taxable distribution that is not an Eligible Rollover Distribution, the Trustee shall calculate and withhold federal and, if applicable, state income taxes in accordance with the Participant's withholding election or as required by law if no election is made. (b) Taxes Due From Investment Funds. The Trustee shall pay from the Investment Fund any taxes or assessments imposed by any taxing or governmental authority on such Fund or its income, including related interest and penalties. 17.5 Trust Accounting (a) Annual Report. Within 60 days (or other reasonable period) following the close of the Plan Year, the Trustee shall provide the Administrator with an annual accounting of Trust assets and information to assist the Administrator in meeting ERISA's annual reporting and audit requirements. (b) Periodic Reports. The Trustee shall maintain records and provide sufficient reporting to allow the Administrator to properly monitor the Trust's assets and activity. (c) Administrator Approval. Approval of any Trustee accounting shall automatically occur 90 days after such accounting has been received by the Administrator, unless the Administrator files a written objection with the Trustee within such time period. Such approval shall be final as to all matters and transactions stated or shown therein and binding upon the Administrator. 17.6 Valuation of Certain Assets If the Trustee determines the Trust holds any asset which is not readily tradeable and listed on a national securities exchange registered under the Securities Exchange Act of 1934, as amended, the Trustee may engage a qualified independent appraiser to determine the fair market value of such property, and the appraisal fees shall be paid from the Investment Fund containing the asset. - -------------------------------------------------------------------------------- 60 67 17.7 Legal Counsel The Trustee may consult with legal counsel of its choice, including counsel for the Employer or counsel of the Trustee, upon any question or matter arising under this Plan and Trust. When relied upon by the Trustee, the opinion of such counsel shall be evidence that the Trustee has acted in good faith. 17.8 Fees and Expenses The Trustee's fees for its services as Trustee shall be such as may be mutually agreed upon by the Plan Sponsor and the Trustee. Trustee fees and all reasonable expenses of counsel and advisors retained by the Trustee shall be paid in accordance with Section 6. 17.9 Trustee Duties and Limitations The Trustee's duties, unless otherwise agreed to by the Trustee, shall be confined to construing, as provided herein, the terms of the Plan and Trust as they relate to the Trustee, receiving funds on behalf of and making payments from the Trust, safeguarding and valuing Trust assets, investing and reinvesting Trust assets in the Investment Funds as directed by the Administrator, Participants or Beneficiaries and those duties as described in this Section 17. The Trustee shall have no duty or authority to ascertain whether Contributions are in compliance with the Plan, to enforce collection or to compute or verify the accuracy or adequacy of any amount to be paid to it by the Employer. The Trustee shall not be liable for the proper application of any part of the Trust with respect to any disbursement made at the direction of the Administrator. - -------------------------------------------------------------------------------- 61 68 18 RIGHTS, PROTECTION, CONSTRUCTION AND JURISDICTION ------------------------------------------------- 18.1 Plan Does Not Affect Employment Rights The Plan does not provide any employment rights to any Employee. The Employer expressly reserves the right to discharge an Employee at any time, with or without cause, without regard to the effect such discharge would have upon the Employee's interest in the Plan. 18.2 Limited Return of Contributions Except as provided in this paragraph, (1) Plan assets shall not revert to the Employer nor be diverted for any purpose other than the exclusive benefit of Participants or their Beneficiaries; and (2) a Participant's vested interest shall not be subject to divestment. As provided in ERISA section 403(c)(2), the actual amount of a Contribution made by the Employer (or the current value of the Contribution if a net loss has occurred) may revert to the Employer if: (a) such Contribution is made by reason of a mistake of fact; (b) initial qualification of the Plan under Code section 401(a) is not received and a request for such qualification is made within the time prescribed under Code section 401(b) (the existence of and Contributions under the Plan are hereby conditioned upon such qualification); or (c) such Contribution is not deductible under Code section 404 (such Contributions are hereby conditioned upon such deductibility) in the taxable year of the Employer for which the Contribution is made. The reversion to the Employer must be made (if at all) within one year of the mistaken payment of the Contribution, the date of denial of qualification, or the date of disallowance of deduction, as the case may be. A Participant shall have no rights under the Plan with respect to any such reversion. 18.3 Assignment and Alienation As provided by Code section 401(a)(13) and to the extent not otherwise required by law, no benefit provided by the Plan may be anticipated, assigned or alienated, except: (a) to create, assign or recognize a right to any benefit with respect to a Participant pursuant to a QDRO, or (b) to use a Participant's vested Account balance as security for a loan from the Plan which is permitted pursuant to Code section 4975. - -------------------------------------------------------------------------------- 62 69 18.4 Facility of Payment If a Plan benefit is due to be paid to a minor or if the Administrator reasonably believes that any payee is legally incapable of giving a valid receipt and discharge for any payment due him or her, the Administrator shall have the payment of the benefit, or any part thereof, made to the person (or persons or institution) whom it reasonably believes is caring for or supporting the payee, unless it has received due notice of claim therefor from a duly appointed guardian or conservator of the payee. Any payment shall to the extent thereof, be a complete discharge of any liability under the Plan to the payee. 18.5 Reallocation of Lost Participant's Accounts If the Administrator cannot locate a person entitled to payment of a Plan benefit after a reasonable search, the Administrator may at any time thereafter treat such person's Account as forfeited and use such amount as described in Section 8.4 or to reduce Contributions made by an Employer as soon as administratively feasible. If such person subsequently presents the Administrator with a valid claim for the benefit, such person shall be paid the amount treated as forfeited, plus the interest that would have been earned in the Sweep Account to the date of determination. The Administrator shall pay the amount through an additional amount contributed by the Employer or direct the Trustee to pay the amount from the Forfeiture Account. 18.6 Claims Procedure (a) Right to Make Claim. An interested party who disagrees with the Administrator's determination of his or her right to Plan benefits must submit a written claim and exhaust this claim procedure before legal recourse of any type is sought. The claim must include the important issues the interested party believes support the claim. The Administrator, pursuant to the authority provided in this Plan, shall either approve or deny the claim. (b) Process for Denying a Claim. The Administrator's partial or complete denial of an initial claim must include an understandable, written response covering (1) the specific reasons why the claim is being denied (with reference to the pertinent Plan provisions) and (2) the steps necessary to perfect the claim and obtain a final review. (c) Appeal of Denial and Final Review. The interested party may make a written appeal of the Administrator's initial decision, and the Administrator shall respond in the same manner and form as prescribed for denying a claim initially. - -------------------------------------------------------------------------------- 63 70 (d) Time Frame. The initial claim, its review, appeal and final review shall be made in a timely fashion, subject to the following time table:
Days to Respond Action From Last Action ------ ---------------- Administrator determines benefit NA Interested party files initial request 60 days Administrator's initial decision 90 days Interested party requests final review 60 days Administrator's final decision 60 days However, the Administrator may take up to twice the maximum response time for its initial and final review if it provides an explanation within the normal period of why an extension is needed and when its decision shall be forthcoming.
18.7 Construction Headings are included for reading convenience. The text shall control if any ambiguity or inconsistency exists between the headings and the text. The singular and plural shall be interchanged wherever appropriate. References to Participant shall include Beneficiary when appropriate and even if not otherwise already expressly stated. 18.8 Jurisdiction and Severability The Plan and Trust shall be construed, regulated and administered under ERISA and other applicable federal laws and, where not otherwise preempted, by the laws of the State of California. If any provision of this Plan and Trust shall become invalid or unenforceable, that fact shall not affect the validity or enforceability of any other provision of this Plan and Trust. All provisions of this Plan and Trust shall be so construed as to render them valid and enforceable in accordance with their intent. 18.9 Indemnification by Employer The Employers hereby agree to indemnify all Plan fiduciaries against any and all liabilities resulting from any action or inaction, (including a Plan termination in which the Plan Sponsor fails to apply for a favorable determination from the Internal Revenue Service with respect to the qualification of the Plan upon its termination), in relation to the Plan or Trust (1) including (without limitation) expenses reasonably incurred in the defense of any claim relating to the Plan or its assets, and amounts paid in any settlement relating to the Plan or its assets, but (2) excluding liability resulting from actions or inactions made in bad faith, or resulting from the negligence or willful misconduct of the Trustee. The Plan Sponsor shall have the right, but not the obligation, to conduct the defense of any action to which this Section applies. The Plan fiduciaries are not entitled to indemnity from the Plan assets relating to any such action. - -------------------------------------------------------------------------------- 64 71 19 AMENDMENT, MERGER, DIVESTITURES AND TERMINATION ----------------------------------------------- 19.1 Amendment The Plan Sponsor reserves the right to amend this Plan and Trust at any time, to any extent and in any manner it may deem necessary or appropriate. The Plan Sponsor (and not the Trustee) shall be responsible for adopting any amendments necessary to maintain the qualified status of this Plan and Trust under Code sections 401(a) and 501(a). If the Committee is acting as the Administrator in accordance with Section 15.6, it shall have the authority to adopt Plan and Trust amendments which have no substantial adverse financial impact upon any Employer or the Plan. All interested parties shall be bound by any amendment, provided that no amendment shall: (a) become effective unless it has been adopted in accordance with the procedures set forth in Section 19.5; (b) except to the extent permissible under ERISA and the Code, make it possible for any portion of the Trust assets to revert to an Employer or to be used for, or diverted to, any purpose other than for the exclusive benefit of Participants and Beneficiaries entitled to Plan benefits and to defray reasonable expenses of administering the Plan; (c) decrease the rights of any Employee to benefits accrued (including the elimination of optional forms of benefits) to the date on which the amendment is adopted, or if later, the date upon which the amendment becomes effective, except to the extent permitted under ERISA and the Code; nor (d) permit an Employee to be paid the balance of his or her Before-Tax or Prior Before-Tax Accounts unless the payment would otherwise be permitted under Code section 401(k). 19.2 Merger This Plan and Trust may not be merged or consolidated with, nor may its assets or liabilities be transferred to, another plan unless each Participant and Beneficiary would, if the resulting plan were then terminated, receive a benefit just after the merger, consolidation or transfer which is at least equal to the benefit which would be received if either plan had terminated just before such event. 19.3 Divestitures In the event of a sale by an Employer which is a corporation of: (1) substantially all of the Employer's assets used in a trade or business to an unrelated corporation, or (2) a sale of such Employer's interest in a subsidiary - -------------------------------------------------------------------------------- 65 72 to an unrelated entity or individual, lump sum distributions shall be permitted from the Plan, except as provided below, to Participants with respect to Employees who continue employment with the corporation acquiring such assets or who continue employment with such subsidiary, as applicable. Notwithstanding, distributions shall not be permitted if the purchaser agrees, in connection with the sale, to be substituted as the Plan Sponsor or to accept a transfer of the assets and liabilities representing the Participants' benefits into a plan of the purchaser or a plan to be established by the purchaser. 19.4 Plan Termination The Plan Sponsor may, at any time and for any reason, terminate the Plan in accordance with the procedures set forth in Section 19.5, or completely discontinue contributions. Upon either of these events, or in the event of a partial termination of the Plan within the meaning of Code section 411(d)(3), the Accounts of each affected Employee who has not yet incurred a Break in Service shall be fully vested. If no successor plan is established or maintained, lump sum distributions shall be made in accordance with the terms of the Plan as in effect at the time of the Plan's termination or as thereafter amended provided that a post-termination amendment shall not be effective to the extent that it violates Section 19.1 unless it is required in order to maintain the qualified status of the Plan upon its termination. The Trustee's and Employer's authority shall continue beyond the Plan's termination date until all Trust assets have been liquidated and distributed. 19.5 Amendment and Termination Procedures The following procedural requirements shall govern the adoption of any amendment or termination (a "Change") of this Plan and Trust: (a) The Plan Sponsor may adopt any Change by action of its board of directors in accordance with its normal procedures. (b) The Committee, if acting as Administrator in accordance with Section 15.6, may adopt any amendment within the scope of its authority provided under Section 19.1 and in the manner specified in Section 15.7(a). (c) Any Change must be (1) set forth in writing, and (2) signed and dated by an executive officer of the Plan Sponsor or, in the case of an amendment adopted by the Committee, at least one of its members. (d) If the effective date of any Change is not specified in the document setting forth the Change, it shall be effective as of the date it is signed by the last person whose signature is required under clause (2) above, except to the extent that another effective date is necessary to maintain the qualified status of this Plan and Trust under Code sections 401(a) and 501(a). - -------------------------------------------------------------------------------- 66 73 (e) A copy of any Change shall be provided to the Trustee. (f) No Change affecting the Trustee in its role as Trustee under the Plan or in any other capacity shall become effective until it is accepted and signed by the Trustee (which acceptance shall not unreasonably be withheld). 19.6 Termination of Employer's Participation Any Employer may, at any time and for any reason, terminate its Plan participation by action of its board of directors in accordance with its normal procedures. Written notice of such action shall be signed and dated by an executive officer of the Employer and delivered to the Plan Sponsor. If the effective date of such action is not specified, it shall be effective on, or as soon as reasonably practicable after, the date of delivery. Upon the Employer's request, the Plan Sponsor may instruct the Trustee and Administrator to spin off all affected Accounts and underlying assets into a separate qualified plan under which the Employer shall assume the powers and duties of the Plan Sponsor. Alternatively, the Plan Sponsor may treat the event as a partial termination described above or continue to maintain the Accounts under the Plan. 19.7 Replacement of the Trustee The Trustee may resign as Trustee under this Plan and Trust or may be removed by the Plan Sponsor at any time upon at least 90 days written notice (or less if agreed to by both parties). In such event, the Plan Sponsor shall appoint a successor trustee by the end of the notice period. The successor trustee shall then succeed to all the powers and duties of the Trustee under this Plan and Trust. If no successor trustee has been named by the end of the notice period, the Plan Sponsor's chief executive officer shall become the trustee, or if he or she declines, the Trustee may petition the court for the appointment of a successor trustee. 19.8 Final Settlement and Accounting of Trustee (a) Final Settlement. As soon as administratively feasible after its resignation or removal as Trustee, the Trustee shall transfer to the successor trustee all property currently held by the Trust. However, the Trustee is authorized to reserve such sum of money as it may deem advisable for payment of its accounts and expenses in connection with the settlement of its accounts or other fees or expenses payable by the Trust. Any balance remaining after payment of such fees and expenses shall be paid to the successor trustee. (b) Final Accounting. The Trustee shall provide a final accounting to the Administrator within 90 days of the date Trust assets are transferred to the successor trustee. - -------------------------------------------------------------------------------- 67 74 (c) Administrator Approval. Approval of the final accounting shall automatically occur 90 days after such accounting has been received by the Administrator, unless the Administrator files a written objection with the Trustee within such time period. Such approval shall be final as to all matters and transactions stated or shown therein and binding upon the Administrator. - -------------------------------------------------------------------------------- 68 75 APPENDIX A - INVESTMENT FUNDS I. Investment Funds Available The Investment Funds offered under the Plan as of the Effective Date include this set of daily valued funds: CATEGORY FUNDS -------- ----- INCOME Income Accumulation ------ BALANCED Asset Allocation -------- EQUITY Roadway Stock ------ S&P 500 Stock AIM, Constellation Templeton, Foreign COMBINATION LifePath ----------- The Plan's Investment Funds also include a Restricted GIC Fund and a Rex Stock Fund. In accordance with Section 16.7, the Restricted GIC Fund was established in July 1991 for the purpose of segregating the Mutual Benefit GIC which was immediately prior to the date of segregation held in the Plan's Investment Fund then named the Viking Income Accumulation Fund for the benefit of Participants and Beneficiaries who at that time had an investment in the Viking Income Accumulation Fund. The Restricted GIC Fund is not otherwise designated as available for investment by Participants or Beneficiaries. A Participant or Beneficiary's investment in the Restricted GIC Fund shall be restricted from transfers, loans, in-service withdrawals and distributions until such time or times as amounts are liquid and are made available for such purposes in accordance with procedures prescribed by the Administrator and agreed to by the Trustee. As a result of the January 12, 1996 spin-off from Roadway of Roadway Express, Inc., a REX Stock Fund was established under the Plan for the benefit of Participants and Beneficiaries for whom shares of REX Stock were received as a result of the Participant's or Beneficiary's holdings in the Roadway Stock Fund. A Participant or Beneficiary's then resulting investment in the REX Stock Fund may continue to be invested in such Fund until such time as the Participant or Beneficiary otherwise elects to invest such portion of his or her Account or the Administrator directs liquidation of such Fund or consolidation of such Fund into the Roadway Stock Fund if at such later time the Fund no longer holds shares of Rex Stock. - -------------------------------------------------------------------------------- 69 76 APPENDIX A - INVESTMENT FUNDS (continued) No additional shares of Rex Stock may be purchased. To the extent not otherwise necessary to be maintained in deposit or money market type assets to handle the Fund's liquidity, earnings in the Rex Stock Fund shall be used to purchase shares of Roadway Stock to be held in the Rex Stock Fund. The REX Stock Fund shall be comprised of REX Stock, sufficient deposit or money market type assets to handle the Fund's liquidity and disbursement needs and to the extent described in the preceding sentence, Roadway Stock. The REX Stock Fund is not otherwise designated as available for investment by Participants or Beneficiaries. To the extent necessary from time to time to provide for sufficient deposit or money market type assets to handle the Fund's liquidity and disbursement needs, shares of Rex Stock shall be liquidated to the extent necessary and then, as necessary, shares of Roadway Stock. II. Default Investment Fund The default Investment Fund as of the Effective Date is the Income Accumulation Fund. III. Accounts For Which Investment is Restricted A Participant or Beneficiary may direct the investment of his or her entire Account except for the following Contribution Accounts, which shall be invested as of the Effective Date as follows: RSI Stock Match Account Roadway Stock Fund IV. Maximum Percentage Restrictions Applicable to Certain Investment Funds As of the Effective Date, a Participant or Beneficiary may not elect to invest more than the following percentages in these Investment Funds: Roadway Stock Fund 50% - -------------------------------------------------------------------------------- 70 77 APPENDIX B - PAYMENT OF PLAN FEES AND EXPENSES As of the Effective Date, payment of Plan fees and expenses shall be as follows: 1) Investment Management Fees: These are paid by Participants in that management fees reduce the investment return reported and credited to Participants. 2) Recordkeeping Fees: These are paid by the Employer on a quarterly basis. 3) Loan Fees: A $3.50 per month fee is assessed and billed/collected quarterly from the Account of each Participant who has an outstanding loan balance for loans entered into on or after April 1,1991. For loans entered into prior to April 1,1991, these are paid by the Employer on a quarterly basis. 4) Investment Fund Election Changes: For each Investment Fund election change by a Participant, in excess of 4 changes per year, a $10 fee shall be assessed and billed/collected quarterly from the Participant's Account. 5) Periodic Installment Payment Fees: A $3.00 per check fee shall be assessed and billed/collected quarterly from the Participant's Account. 6) Additional Fees Paid by Employer: All other Plan related fees and expenses shall be paid by the Employer. To the extent that the Administrator later elects that any such fees shall be borne by Participants, estimates of the fees shall be determined and reconciled, at least annually, and the fees shall be assessed monthly and billed/collected from Accounts quarterly. - -------------------------------------------------------------------------------- 71 78 APPENDIX C - LOAN INTEREST RATE As of the Effective Date, the interest rate charged on Participant loans shall be equal to the Trustee's prime rate, plus 2%. Effective January 1, 1996, the interest rate charged on Participant loans shall be equal to the prime rate published in the Wall Street Journal at the time the loan is processed, plus 2%. If multiple prime rates are published in the Wall Street Journal, the prime rate selected shall be the rate closest to the last prime rate used for this purpose. - -------------------------------------------------------------------------------- 72 EX-4.G 6 EXHIBIT 4.G 1 Exhibit 4.4(g) AMENDMENT NO. 1 TO THE FINANCIAL SECURITY PLAN AND TRUST Viking Freight, Inc., a California corporation, hereby adopts this Amendment No. 1 to the Financial Security Plan and Trust (the "Plan"). Words and phrases used herein with initial capital letters which are defined in the Plan are used herein as so defined. The terms of this amendment shall be effective as of the dates indicated herein. Section 1 --------- Effective as of April 1, 1995, Section 1.18 of the Plan is hereby amended in its entirety to read as follows: "1.18 'Eligible Employee'. An Employee of an Employer, except any Employee: (a) whose compensation and conditions of employment are covered by a collective bargaining agreement to which an Employer is a party unless the agreement calls for the Employee's participation in the Plan; (b) who is treated as an Employee because he or she is a Leased Employee; or (c) who is a nonresident alien who either (i) receives no earned income (within the meaning of Code section 911(d)(2)) from sources within the United States under Code section 861(a)(3); or (ii) receives such earned income from such sources within the United States but such income is exempt from United States income tax under an applicable income tax convention." Section 2 --------- Effective as of April 1, 1995, Section 1.29 of the Plan is hereby amended in its entirety to read as follows: "1.29 'Leased Employee'. Any person who, pursuant to an agreement between a Related Company and any other person ("leasing organization"), has performed services for a Related Company on a substantially full-time basis for a period of at least one year, and such services are of a type historically performed by employees in the business field of the Related Company. Contributions or benefits provided to a leased employee by the leasing organization that are attributable to services performed for a Related 2 2 Company will be treated as provided by the Related Company. A leased employee will not be considered an Employee of a Related Company, however, if (a) leased employees do not constitute more than 20% of the Related Company's nonhighly compensated work force (within the meaning of Code section 414(n)(5)(C)(ii) and (b) such leased employee is covered by a money purchase pension plan maintained by the leasing organization that provides (i) a nonintegrated employer contribution rate of at least 10% of compensation, including amounts contributed pursuant to a salary reduction agreement which are excludable from the leased employee's gross income under Code sections 125, 402(e)(3), 402(h), or 403(b), (ii) immediate participation, and (iii) full and immediate vesting." Section 3 --------- Effective as of October 15, 1996, Section 1.58 of the Plan is hereby amended in its entirety to read as follows: "1.58 'Trustee'. Barclays Global Investors, National Association." Section 4 --------- Effective as of April 1, 1995, Section 11.2 of the Plan is hereby amended in its entirety to read as follows: "11.2 [Reserved]." Section 5 --------- Effective as of April 1, 1995, the first two paragraphs of Section 11.3(b) of the Plan are hereby amended in their entirety to read as follows: "(b) Benefit Attributable to Predecessor Plan Amounts or Participation in the Plan While a Coles Employee: With regard to a Participant's benefit attributable to Predecessor Plan Amounts or his or her participation in the Plan while a Coles Employee, a Participant may, with Spousal Consent, elect to have such benefit be paid in (1) a single lump sum or (2) periodic installments over a period not to exceed the life expectancy of the Participant and his or her Beneficiary. To preserve benefits protected by Code section 411(d)(6), a Participant whose Account includes Predecessor Plan Amounts may, with Spousal Consent, elect to have his or her benefit attributable to such Predecessor Plan Amounts be paid in one of the following forms: 3 3 (1) a single life annuity, or (2) a joint and 50%, 75% or 100% survivor annuity. Any annuity option permitted shall be provided through the purchase of a non-transferable single premium contract from an insurance company which must conform to the terms of the Plan and which shall be distributed to the Participant or Beneficiary in complete satisfaction of the benefit due." Section 6 --------- Effective as of April 1, 1995, Section 14.2(b) of the Plan is hereby amended in its entirety to read as follows: "(b) Overriding Minimum Benefit. Notwithstanding, contributions shall be permitted on behalf of Key Employees if the Employer also maintains a defined benefit plan that automatically provides a benefit which satisfies the Code section 416(c)(1) minimum benefit requirements, as modified by substituting '3 percent' for '2 percent' and by increasing (but not by more than 10 percentage points) 20 percent by 1 percentage point for each year for which such plan was taken into account, if applicable. If this Plan is part of an aggregation group in which a Key Employee is receiving a benefit and no minimum is provided in any other plan, a minimum contribution of at least 3% of Taxable Income shall be provided to the Participants specified in the preceding paragraph. In addition, the Employer may offset a defined benefit minimum by contributions (other than contributions made by an Employer in accordance with a Participant's salary deferral election or contributions made by an Employer based upon the amount contributed by a Participant) made to this Plan." Section 7 --------- Effective as of April 1, 1995, Section 14.3 of the Plan is hereby amended in its entirety to read as follows: "14.3 Special Vesting If the Plan becomes Top Heavy after the Effective Date, all Employees shall thereafter be fully vested in all Accounts." 4 4 EXECUTED this 22nd day of Feb, 1997, to be effective as indicated herein. VIKING FREIGHT, INC. By: /s/ R.G. Marticke ------------------------------ Title: President The provisions of this amendment that relate to the Trustee are hereby approved and executed, to be effective as indicated herein. BARCLAYS GLOBAL INVESTORS, NATIONAL ASSOCIATION Date: 3/28 , 1997 By: /s/ Dolores Upton -------------------- ----------------------------- Title: Principal Date: 3/28 , 1997 By: /s/ Peter H. Sorensen -------------------- ----------------------------- Title: Managing Director EX-4.H 7 EXHIBIT 4.H 1 Exhibit 4.4(h) AMENDMENT NO. 2 TO THE FINANCIAL SECURITY PLAN AND TRUST THIS AMENDMENT NO. 2 to the Financial Security Plan and Trust (the "Plan") is made and executed this 30th day of December, 1996 by Viking Freight, Inc. (hereinafter referred to as the "Company"). Unless otherwise provided, this Amendment No. 2 shall be effective as of October 1, 1996. 1. Notwithstanding anything in the Plan to the contrary, any provision within the Plan which requires action by means of written authorization, written notification or written application shall be deemed satisfied if such action is taken in accordance with procedures established by the Plan Administrator. 2. A new Subsection (j) is hereby added to Section 1.1 of the Plan to read as follows: (j) 'After-Tax Contribution Account'. An account created to hold After-Tax Contributions. 3. A new Subsection (g) is hereby added to Section 1.11 of the Plan to read as follows: (g) 'After-Tax Contribution'. An amount contributed by an eligible Participant on an after-tax basis pursuant to Section 3.7. 2 4. The first two paragraphs of Section 1.37 of the Plan are hereby amended in their entirety to read as follows: 'Pay' means the sum of salary paid in the calendar year to an Eligible Employee by the Employer while a Participant plus cash incentive compensation and overtime pay paid to that Eligible Employee, but excluding (a) expense allowances and other special payments not paid as regular compensation, (b) payments pursuant to a tax equalization, relocation or cost of living program, an expatriate program or any similar programs or arrangements and (c) any part of the Employer's contributions under this Plan and/or any pension, welfare, stock bonus, stock ownership or other qualified or nonqualified plan. Notwithstanding the foregoing, Pay shall include any salary that would have been paid to such Eligible Employee had he not signed a salary deferral agreement that satisfies the requirements of Code Sections 401(k), 125 or 129. Pay is limited to $150,000 (as adjusted for the cost of living pursuant to Code Sections 401(a)(17) and 415(d)) per Plan Year. 5. The second sentence of Section 2.1 of the Plan is hereby amended by deleting the phrase "on the first day of the next month" and inserting the phrase "as soon as practicable" in its place. 6. The second sentence of Section 3.1 of the Plan is hereby amended by inserting the phrase "or half percentage" immediately following the phrase "whole percentage." 7. The first sentence of Section 3.4 of the Plan is hereby amended by inserting the phrase "and After-Tax Contribution" immediately following the phrase "Before-Tax Contribution." 2 3 8. The third sentence of Section 3.4 of the Plan is hereby amended in its entirety to read as follows: A Participant's Before-Tax Contributions and/or After-Tax Contributions pursuant to Section 3.7 (if any), with respect to any pay period, must each be a minimum of 1% of Pay and may not, in the aggregate, exceed 15% of Pay. 9. A new Section 3.7 is hereby added to the Plan immediately following Section 3.6 to read as follows: 3.7 After-Tax Contribution Election Upon becoming a Participant, an Eligible Employee may elect to make After-Tax Contributions to the Plan in an amount up to 5% (in whole or half percentages) of his or her Pay. The election shall be made as a whole or half percentage of Pay in such manner and with such advance notice as prescribed by the Administrator. A Participant's After-Tax Contribution Election may be changed, revoked and/or resumed in the same manner as Before-Tax Contributions. 10. Section 9.3 of the Plan is hereby amended in its entirety to read as follows: A Participant is not required to obtain Spousal Consent in order to take out a loan under the Plan. 11. Subsection 9.5(b) of the Plan is hereby amended by deleting the listed hierarchy of Accounts and inserting the following in its place: Before-Tax Account RSI Stock Match Account Viking/RRG Match Account Coles Match Account Profit Sharing Account Prior Profit Sharing Account Prior Before-Tax Account 3 4 Rollover Account After-Tax Account Prior After-Tax Account 12. Section 10.3 of the Plan is hereby amended in its entirety to read as follows: A Participant is not required to obtain Spousal Consent in order to make an in-service withdrawal under the Plan. 13. The second sentence of Section 10.5 of the Plan is hereby amended in its entirety to read as follows: In-service withdrawals shall be in the form of a cash payment or, if elected by the Participant, the portion of his withdrawal invested in the common stock of Caliber System, Inc. may be received in-kind. 14. A new Section 10.10 is hereby added to the Plan immediately following Section 10.09 to read as follows: 10.10 Rollover Account Withdrawals A Participant who is an Employee may make a Rollover Account withdrawal at any time. There is no minimum amount for such a withdrawal nor is there any restriction on the number of such withdrawals permitted to a Participant. A Rollover Account withdrawal shall not affect a Participant's ability to make or be eligible to receive further Contributions. 15. A new Section 10.11 is added to the Plan to read as follows: 10.11 Disability Withdrawals A Participant whom the Committee has determined to have a Disability may withdraw from his fully vested Accounts at any time and from time to time all or a portion of his Account, as provided and in the order as set forth below, except that the Participant may instead choose to 4 5 have amounts taken from his After-Tax Account and Prior After-Tax Account first: (a) Rollover Account; (b) Before-Tax Account; (c) RSI Stock Matching Account; (d) Viking/RRG Match Account; (e) Coles Match Account; (f) Profit Sharing Account; (g) Prior Profit Sharing Account; (h) Prior Before-Tax Account; (i) After-Tax Account; (j) Prior After-Tax Account. A withdrawal pursuant to this Section shall not affect a Participant's ability to make or be eligible for further Contributions. 16. Section 11.2 of the Plan is hereby amended in its entirety to read as follows: A Participant is not required to obtain Spousal Consent in order to receive a distribution under the Plan, except for distributions in the form of an annuity pursuant to Section 11.3(b) of the Plan. 17. Subsection 11.3(a) of the Plan is hereby amended in its entirety to read as follows: (a) A Participant's Account may be paid in any of the following forms: (1) a single lump sum payment; (2) a portion paid in a lump sum payment, and the remainder paid later; (3) installments over a period not to exceed the life expectancy of the Participant and his or her Beneficiary. Distributions will normally be made in cash, except to the extent a distribution consists of a loan call as described in Section 9. However, a Participant who receives a distribution pursuant to Subsection (a)(1) above or, on or after approximately February 1, 1997, pursuant to 5 6 Subsection (a)(2) above, may elect to receive such distribution in the form of whole shares of common stock of Caliber System, Inc. and cash in lieu of fractional shares to the extent the distribution consists of amounts invested in such stock. 18. The last two paragraphs of Section 11.3 of the Plan are hereby deleted in their entirety. 19. The second paragraph of Section 11.6 of the Plan is hereby amended by inserting the phrase "To the extent required under Code Section 401(a)(9)," at the beginning thereof. 20. A new Subsection 19.5(g) is added to the Plan immediately following Subsection 19.5(f) to read as follows: (g) This Plan and any amendment thereto may be executed in any number of counterparts, each of which shall be deemed to be an original, and the counterparts shall constitute one and the same instrument, which shall be sufficiently evidenced by any one thereof. 21. Section I of Appendix A to the Plan is hereby amended by adding "Bond Index" as a Fund under the Income category and by adding "Vanguard Primecap" and "Mutual Beacon" as Funds under the Equity category. 22. Section IV of Appendix A to the Plan is hereby amended in its entirety to read "[Reserved]." 23. The first sentence of Appendix C to the Plan is hereby deleted in its entirety. The second sentence of Appendix C is hereby amended by deleting the phrase "January 1, 1996" and inserting the phrase "October 1, 1996" and deleting the phrase "plus 2%" and inserting the phrase "plus 1%". 6 7 IN WITNESS WHEREOF, the Company has caused this Amendment No. 2 to be executed by its duly appointed officers. In the presence of: VIKING FREIGHT, INC. /s/ Beth P. Ewing By: /s/ Donald C. Brown - ---------------------------- ------------------------------- Title: The provisions of this Amendment No. 2 that relate to the Trustee are hereby approved and executed, to be effective as indicated herein. BARCLAYS GLOBAL INVESTORS, NATIONAL ASSOCIATION Date: 12/27 , 1996 By: /s/ Dolores Upton --------------------- -- -------------------------------- Title: Principal Date: 12/27 , 1996 By: Peter H. Sorensen --------------------- -- -------------------------------- Title: Man. Dir. EX-4.I 8 EXHIBIT 4.1 1 Exhibit 4.4(i) CENTRAL FREIGHT LINES EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN -------------------------------------------- (PS & RP) AS AMENDED AND RESTATED 2 TABLE OF CONTENTS -----------------
Page ---- ARTICLE I PURPOSES .......................................................................................1 ARTICLE II DEFINITIONS, PARTICIPATION BY OTHER EMPLOYERS...................................................1 2.01 Defined Terms .........................................................................1 2.02 Service................................................................................7 2.03 Date of Employment; Date of Reemployment...............................................8 2.04 Year of Service .......................................................................8 2.05 Credited Service ......................................................................8 2.06 Hour of Service .......................................................................9 2.07 Break-in-Service .....................................................................12 ARTICLE III PARTICIPATION..................................................................................12 3.01 Participation in the Plan.............................................................12 3.02 Ineligibility to Become or Continue as a Participant..................................13 3.03 Continuance as a Participant..........................................................14 ARTICLE IV CONTRIBUTIONS .................................................................................14 4.01 Employer's Contributions..............................................................14 4.02 Participant Contributions.............................................................15 4.03 Participants Not Employed by Central..................................................18 4.04 Funding Policy; Other Matters.........................................................18 ARTICLE V ACCOUNTS AND ALLOCATIONS.......................................................................19 5.01 Trust Accounts........................................................................19 5.02 Allocations to Accounts...............................................................19 5.03 Transfer Contribution Accounts........................................................20 5.04 Limitations Required by Section 415 of the Code.......................................22 5.05 Limitations Required by Code Section 401(m)...........................................24 5.06 Adjustment for Excessive Contribution Percentage......................................25 5.07 Valuation of Trust Fund...............................................................26 5.08 Investment of Trust Fund..............................................................26 ARTICLE VI ACCOUNTING.....................................................................................26 6.01 Records Reflecting the Interest of Each Participant...................................26 6.02 Statement to Participants.............................................................26
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Page ---- ARTICLE VII VESTING AND DISTRIBUTION..............................................................26 7.01 Vesting of Total Account at Normal Retirement Age, Disability or Death..........................................................26 7.02 Vesting Prior to Normal Retirement Age, Disability or Death...........................27 7.03 In-Service Withdrawals or Distributions...............................................27 7.04 Method and Time of Distribution.......................................................27 7.05 Forfeitures...........................................................................29 7.06 Rehiring..............................................................................30 7.07 Hardship Distributions................................................................30 7.08 Distributions Under Qualified Domestic Relations Order................................32 7.09 Limitations on Benefits...............................................................32 ARTICLE VIII ADMINISTRATION........................................................................32 8.01 Appointment of Plan Administrator.....................................................32 8.02 Administrative Personnel of Plan Administrator........................................32 8.03 Duties and Authority of the Plan Administrator........................................32 8.04 Claims Procedure and Other Rules and Regulations of the Plan Administrator....................................................33 8.05 Plan Administrator's Duties...........................................................33 8.06 Duties and Authority of Administrative Personnel..................................... 33 8.07 Named Fiduciaries and Allocation of Responsibility....................................33 8.08 Action by Fiduciaries.................................................................34 8.09 Employment of Advisors................................................................34 8.10 Bond..................................................................................35 8.11 Indemnity.............................................................................35 8.12 Applicable Law........................................................................35 8.13 Qualified Domestic Relations Orders...................................................35 ARTICLE IX MISCELLANEOUS PROVISIONS RESPECTING PARTICIPANTS 9.01 Participants to Furnish Required Information..........................................35 9.02 Beneficiaries.........................................................................36 9.03 Contingent Beneficiaries..............................................................37 9.04 Participants' Rights in Trust Fund....................................................37 9.05 Restrictions on Assignment............................................................37 9.06 Benefits Payable to Incompetents......................................................38 9.07 Conditions of Employment Not Affected by Plan.........................................38 9.08 Address for Mailing of Benefits.......................................................38 9.09 Unclaimed Account Procedure...........................................................39 ARTICLE X TRUST FUND AND THE TRUSTEE............................................................39 10.01 The Trust Fund and Its Purpose........................................................39 10.02 Trustee's Duties Governed by Trust Instrument.........................................39 10.03 Benefits Supported Only by the Trust..................................................39 10.04 Trust Fund Applicable Only to Payment of Benefits.....................................39 10.05 Withholding for and Payment of Taxes..................................................40
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Page ---- ARTICLE XI MISCELLANEOUS PROVISIONS RESPECTING THE PLAN..........................................40 11.01 Employer's Contribution Irrevocable...................................................40 11.02 Absence of Responsibility.............................................................41 11.03 Amendment of the Plan.................................................................41 11.04 Expenses of Administration............................................................42 11.05 Notice to Employees...................................................................42 11.06 Agreement of Participants.............................................................42 11.07 Action by Employer....................................................................42 11.08 Merger of Plans.......................................................................42 ARTICLE XII TERMINATION OF PLAN...................................................................43 12.01 Termination of Plan...................................................................43 12.02 Distribution on Termination...........................................................43 12.03 Continuance of Plan by Successor......................................................43 12.04 Discontinuance of Contributions.......................................................43 12.05 Partial Termination...................................................................44 ARTICLE XIII TOP-HEAVY PROVISIONS..................................................................44 13.01 Definitions...........................................................................44 13.02 Application of Top-Heavy Rules........................................................46 13.03 Minimum Allocation Requirement........................................................46 13.04 Effect on Allocation Limitations......................................................46 13.05 Effect of Vesting.....................................................................47
iii 5 CENTRAL FREIGHT LINES EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN -------------------------------------------- CENTRAL FREIGHT LINES INC., a Texas corporation, with its principal offices located in Waco, McLennan County, Texas, pursuant to the authority reserved in Section 11.03 of the Central Freight Lines Employees Profit Sharing and Retirement Plan, hereby amends and restates the Central Freight Lines Employees Profit Sharing and Retirement Plan (the "Plan"). This amendment and restatement as to Article III (Participation) is effective January 1, 1994. As to all other provisions of the Plan, this amendment and restatement is effective January 1, 1995. The purpose for the amendment and restatement is to allow the Plan to continue to qualify as a tax qualified profit sharing plan under Section 401(a) and Section 501(a) of the Code. Contemporaneously herewith CENTRAL FREIGHT LINES INC. has amended and restated the Central Freight Lines Employees Profit Sharing and Retirement Trust continuing a trust fund (hereinafter at times referred to as the "Fund"), to which contributions shall be made and from which benefits shall be paid in accordance with the terms and conditions thereof. The purpose and terms and conditions of this Plan as amended and restated are as follows: ARTICLE I PURPOSES -------- The purpose of this Plan is to reward Employees of CENTRAL FREIGHT LINES INC. for their loyal and faithful service and to provide Employees with an opportunity to share in the profits of Central Freight Lines Inc. The benefits provided by this Plan will continue to be paid from the Trust Fund established by CENTRAL FREIGHT LINES INC. and will be in addition to any benefits Employees are entitled to receive under any other announced programs of Central. This Plan and the separate Trust forming a part hereof are established and shall be maintained for the exclusive benefit of the eligible Employees and former Employees of Central and their Beneficiaries. No part of the Trust Fund shall ever revert to Central, or be used for or diverted to purposes other than the exclusive benefit of Employees and former Employees of Central and their Beneficiaries, except as provided in Sections 5.03(a)(ii), 10.05 and 11.01 hereof. ARTICLE II DEFINITIONS, PARTICIPATION BY OTHER EMPLOYERS --------------------------------------------- 2.01 Defined Terms. As used herein, unless the context clearly manifests a different intent, the expressions listed below shall have the meanings indicated: (a) "ACCOUNT" or "ACCOUNTS" means any one or all of the accounts maintained by the Trustee reflecting a Participant's share (or the undistributed share of a former Participant, Beneficiary or Alternate Payee) in the Trust Fund. See also Section 5.02(a) hereof. 6 (b) "ALTERNATE PAYEE" means a spouse, former spouse, child or other dependent of a Participant to whom benefits are payable under the Plan pursuant to the terms of a Qualified Domestic Relations Order. (c) "BENEFICIARY" or "BENEFICIARIES" means the person or fiduciary to whom a deceased Participant's Capital Accumulation is payable, as provided in Section 9.02 hereof. (d) "BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of Central Freight Lines Inc., as from time to time constituted. (e) "CAPITAL ACCUMULATION" means a Participant's vested interest in the Trust Fund, if any, pursuant to Section 7.01 or 7.02 hereof. (f) "CENTRAL" means CENTRAL FREIGHT LINES INC., a Texas corporation, or any successor by merger or consolidation. (g) "CODE" means the Internal Revenue Code of 1986, as it may be amended or replaced from time to time. (h) "COMPENSATION" or "SALARY" with respect to any Participant means such Participant's wages as defined in Code Section 3401(a) and all other payments of compensation by Central for a Plan Year for which Central is required to furnish the Participant a written statement under Code Sections 6041(d), 6051(a)(3) and 6052. Compensation must be determined without regard to any rules under Code Section 3401(a) that limit the remuneration included in wages based on the nature or location of the employment or the services performed. For purposes of this Section, the determination of Compensation shall be made by: (a) including amounts which are contributed by the Employer pursuant to a salary reduction agreement and which are not includible in the gross income of the Participant under Code Sections 125, 402(e)(3), 402(h), 403(b) or 457, and Employee contributions described in Code Section 414(h)(2) that are treated as Employer contributions. For a Participant's initial year of participation, Compensation shall be recognized as of such Employee's effective date of participation pursuant to Section 3.01. Compensation in excess of $200,000 shall be disregarded. Such amount shall be adjusted at the same time and in such manner as permitted under Code Section 415(d), except that the dollar increase in effect on January 1 of any calendar year shall be effective for the Plan Year beginning with or within such calendar year and the first adjustment to the $200,000 limitation shall be effective on January 1, 1990. For any short Plan Year the Compensation limit shall be an amount equal to the Compensation limit for the calendar year in which the Plan Year begins multiplied by the ratio obtained by dividing the number of full 2 7 months in the short Plan Year by twelve (12). In applying this limitation, the family group of a Highly Compensated Participant who is subject to the Family Member aggregation rules of Code Section 414(q)(6) because such Participant is either a "five percent owner" of Central or one of the ten (10) Highly Compensated Employees paid the greatest "415 Compensation" during the year, shall be treated as a single Participant, except that for this purpose Family Members shall include only the affected Participant's spouse and any lineal descendants who have not attained age nineteen (19) before the close of the year. If, as a result of the application of such rules the adjusted $200,000 limitation is exceeded, then the limitation shall be prorated among the affected Family Members in proportion to each such Family Member's Compensation prior to the application of this limitation, or the limitation shall be adjusted in accordance with any other method permitted by the Code. In addition to other applicable limitations set forth in the Plan, and notwithstanding any other provision to the contrary, for Plan Years beginning on or after January 1, 1994, the annual Compensation of each Employee taken into account under the Plan shall not exceed the OBRA '93 annual compensation limit. The OBRA '93 annual compensation limit is $150,000, as adjusted by the Commissioner for increases in the cost of living in accordance with Code Section 401(a)(17)(B). The cost of living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which Compensation is determined (determination period) beginning in such calendar year. If a determination period consists of fewer than 12 months, the OBRA '93 annual compensation limit will be multiplied by a fraction, the numerator of which is the number of months in the determination period, and the denominator of which is 12. For Plan Years beginning on or after January 1, 1994, any reference in this Plan to the limitation under Code Section 401(a)(17) shall mean the OBRA '93 annual compensation limit set forth in this provision. If Compensation for any prior determination period is taken into account in determining an Employee's benefits accruing in the current Plan Year, the Compensation for that prior determination period is subject to the OBRA '93 annual compensation limit in effect for that prior determination period. For this purpose, for determination periods beginning before the first day of the first Plan Year beginning on or after January 1, 1994, the OBRA '93 annual compensation limit is $150,000. If, as a result of such rules, the maximum "annual addition" limit of Section 5.04(a) would be exceeded for one or more of the Affected Family Members, the prorated Compensation of all affected Family Members shall be adjusted to avoid or reduce any excess. The prorated Compensation of any affected Family Member whose allocation would exceed the limit shall be adjusted downward to the level needed to provide an allocation equal to such limit. The prorated Compensation of affected Family Members not affected by such limit shall then be adjusted upward on a pro rata basis not to exceed each such affected Family Member's Compensation as determined prior to application of the Family Member rule. The resulting allocation shall not exceed such individual's maximum "annual addition" limit. If, after these adjustments, an "excess amount" still results, such "excess amount" shall be disposed of in the manner described in Section 5.04(a) pro rata among all affected Family Members. 3 8 (i) "CONTROLLED GROUP MEMBER" means a corporation or other entity which is a member of a controlled group of corporations, a group of trades or businesses under common control, or an affiliated service group (as defined in Sections 414(b), (c) and (m) of the Code), respectively, and which includes Central. (j) "DISABILITY" means a physical or mental condition of a Participant that renders such Participant permanently incapable of performing the duties to which he is assigned. A Participant will be considered permanently disabled if, in the opinion of the Plan Administrator, such Participant is likely to remain so disabled continuously and permanently. The Plan Administrator, before determining that a Participant is disabled, may require proof in such form as it shall decide, including, in all cases where practicable, the certificate of a duly licensed physician that the Participant has become disabled as provided therein. (k) "EMPLOYEE" means any full or part-time employee of Central. (l) "EMPLOYER" means Central and any successor which shall maintain this Plan. (m) "EMPLOYER CONTRIBUTION ACCOUNT" means the portion of a Participant's Account consisting of Employer Contributions, net income attributable to Employer Contributions and Forfeitures allocated to that Participant, as provided in Subsection 5.02(a) hereof. (n) "EMPLOYER CONTRIBUTIONS" means amounts contributed to the Trust Fund by the Employer pursuant to Section 4.01 hereof. (o) "ENTRY DATE" means each January 1 and July 1 of each Plan Year. (p) "ERISA" means the Employee Retirement Income Security Act of 1974, as it may be amended or replaced from time to time. (q) "FORFEITURES" means former Participants' Accounts that are forfeited pursuant to Section 7.05 hereof. (r) "INCOME OF THE TRUST FUND" means the net gain or loss of the Trust Fund, as reflected by interest, dividends and realized gains and losses on securities and on other investment transactions, and by expenses paid from the Trust Fund. (s) "LEASED EMPLOYEES" means any person who is not an Employee of Central and who provides services to Central if: (i) such services are provided pursuant to an agreement between Central and the leasing organization; (ii) such person has performed such services for Central on a substantially full-time basis for a period of at least one (1) year; and (iii) such services are of a type historically performed, in the business field in which Central conducts business, by employees. 4 9 (t) "NORMAL RETIREMENT AGE" means a Participant's attainment of age sixty (60). (u) "PARTICIPANT" means an Employee who meets the prerequisites of Article III hereof and thereby becomes a Participant hereunder. (v) "PARTICIPANT CONTRIBUTIONS" means amounts contributed to the Trust Fund by a Participant, in cash, pursuant to Section 4.02 hereof. (w) "PLAN" means the Central Freight Lines Employees Profit Sharing and Retirement Plan. (x) "PLAN YEAR" means a period of twelve (12) consecutive calendar months commencing on January 1 and ending on December 31. See also Section 5.04(c)(3) hereof. (y) "QUALIFIED DOMESTIC RELATIONS ORDER" means an order which (i) relates to the provision of child support, alimony payments, or marital property rights to a spouse, child or other dependent of a Participant, (ii) is made pursuant to a state domestic relations law (including a community property law), and (iii) creates or recognizes the existence of an Alternate Payee's right, or assigns to an Alternate Payee the right, to receive all or a portion of the benefits payable with respect to a Participant under the Plan, and (iv) is determined to meet all applicable requirements pursuant to the procedure established by the Plan Administrator for determining whether an order is a qualified domestic relations order within the meaning of Code Section 414(p); and also includes a domestic relations order treated as a qualified domestic relations order pursuant to the Retirement Equity Act of 1984. (z) "REGULATION" or "REGULATIONS" means the Income Tax Regulations as promulgated by the Secretary of the Treasury, or his delegate, and as amended from time to time. (aa) "REQUIRED BEGINNING DATE" means April 1 of the calendar year following the calendar year in which the Participant attains 70-1/2 years of age. (bb) "RETIREMENT" means a Participant's separation from Service at or after Normal Retirement Age. (cc) "SEVERANCE DATE" means termination of a Participant's Service prior to Normal Retirement Age for reasons other than Retirement, Disability or death. (dd) "TRUST" means the Trust established and created under the Trust Agreement. (ee) "TRUST AGREEMENT" or "TRUST INSTRUMENT" means the agreement provided for by Section 10.01 hereof, provided that if such agreement be amended or supplemented, such term, as at a particular date, shall mean such agreement, as amended and supplemented and in force on such date. 5 10 (ff) "TRUST FUND" or "FUND" means, as of a particular date, all assets of whatsoever kind or nature from time to time held by the Trustee under the provisions of the Trust Instrument. Also see Section 10.01 hereof. (gg) "TRUSTEE" means the trustee or trustees, acting as such at the time in question under the Trust Agreement, and its or their successors. (hh) "VALUATION DATE" means each date on which the Fund is valued pursuant to Section 5.07 hereof. See also Subsection 13.01(i) hereof. (ii) Whenever a noun, or pronoun in lieu thereof, is used in this Plan in plural form and there be only one person within the scope of the word so used, or in singular form and there be more than one person within the scope of the word so used, such word, or pronoun used in lieu thereof, shall have a singular or plural meaning, as the case may be. Likewise, pronouns of one gender shall include the other gender. The words "herein", "hereof" and "hereunder" shall refer to this Plan. (jj) The terms listed below have the meanings stated in the Sections and Subsections respectively specified:
"Actual Deferral Percentage" Subsection 4.02(b)(4)(b)(1) "Annual Addition" Subsection 5.04(c)(1) "Annual Benefit" Subsection 5.04(c)(2) "Break-in-Service" Section 2.07 "Contribution Percentage" Section 5.05(b) "Credited Service" Section 2.05 "Date of Employment" Section 2.03 "Date of Reemployment" Section 2.03 "Determination Date" Subsection 13.01(a) "Family Member" Subsection 4.02(b)(4)(b)(4) "Highly Compensated Participant" Subsection 4.02(b)(2)(b)(2) "Hour of Service" Section 2.06 "Key Employee" Subsection 13.01(b) "Leave of Absence" Subsection 2.02(b) "Matching Portion" Subsection 5.02(b)(iii)(a)
6 11
"Maximum Permissible Defined Contribution Amount" Subsection 5.04(c)(4) "Named Fiduciaries" Section 8.07 "Non-Highly Compensated Participant" Subsection 4.02(b)(4)(b)(3) "Non-Key Employee" Subsection 13.01(c) "Permissive Aggregation Group" Subsection 13.01(g) "Plan Administrator" Section 8.01 "Remuneration" Subsection 5.04(c)(5) "Required Aggregation Group" Subsection 13.01(f) "Salary Reduction Contribution" Subsection 4.02(b) "Service" Section 2.02 "Super Top-Heavy Plan" Subsection 13.01(e) "Top-Heavy Group" Subsection 13.01(d) "Transfer Contributions" Subsection 5.04(c)(1))(E) "Transfer Contribution Accounts" Subsection 5.03 "Voluntary Contributions" Subsection 4.02(a) "Year of Service" Section 2.04
2.02 SERVICE. The term "SERVICE" means employment with Central or with a Controlled Group Member determined in accordance with the following provisions: (a) ABSENCES. Any absence from active employment with a Controlled Group Member which is not a Leave of Absence, as that term is defined in Section 2.02(b) below and which does not result from military service required to be credited as Service under Section 2.02(c) hereof, shall be considered a termination of Service. (b) LEAVE OF ABSENCE. Absence from active employment with the consent of a Controlled Group Member, determined on the basis of a uniform policy applied by the Controlled Group Member without discrimination shall be considered a "Leave of Absence", if the Participant returns to active employment with a Controlled Group Member at or prior to the expiration of such Participant's leave of absence. (c) MILITARY SERVICE. Absence from active employment with a Controlled Group Member because of military service shall not terminate the Service of a Participant, provided such Participant entered military service directly from employment with a Controlled Group Member and further provided such Participant returns to active employment with a Controlled Group Member within sixty (60) days following discharge, or within such other period of time during which such Participant has any reemployment rights under any applicable law, and further provided that at the time of such Participant's return to active employment the period of such Participant's military service is required to be credited as Service under any applicable law. (d) FAILURE TO RETURN AFTER LEAVE. If the Participant does not return to active employment with a Controlled Group Member prior to the expiration of such Participant's Leave of Absence, as defined above, such Participant's Service shall be considered terminated as of (1) the date 7 12 on which such Participant's leave expires, or (2) the appropriate date established pursuant to the Controlled Group Member's policy, with respect to permitted absences and leaves of absence, for determining termination of employment. (e) REEMPLOYMENT. In the event of termination of Service of any Employee, if such Employee thereafter is reemployed by Central, such Employee shall, for all purposes of the Plan, be deemed to be a new Employee as of the Date of Reemployment, subject, however, to the provisions of Section 2.07 hereof relating to a Break-In-Service, Section 2.05 hereof relating to Credited Service, and Subsection 3.01(d) hereof relating to commencement of participation. Such reemployment shall not affect the benefits, if any, to which the Employee was entitled upon termination of the former employment. (f) SERVICE WITH A PREDECESSOR OF AN EMPLOYER. The period during which an Employee was employed by any predecessor business of a Controlled Group Member shall be included in Year of Service, as defined in Section 2.04 hereof, to the extent prescribed in the regulations under Section 414 of the Code. (g) TERMINATIONS DUE TO DECLINE IN BUSINESS. Termination from active employment with Central due to a decline in business will not terminate the Service of a Participant, provided such Participant returns to active employment with Central within one (1) year of his termination. 2.03 DATE OF EMPLOYMENT; DATE OF REEMPLOYMENT. For purposes of this Plan, "DATE OF EMPLOYMENT" means the day on which an Employee first commences employment with a Controlled Group Member, or with Central, as the case may be, by performing, or being credited with, such Employee's first Hour of Service, as defined in Section 2.06 hereof. Upon an Employee's reemployment by a Controlled Group Member, or by Central, as the case may be, following a termination of Service resulting in a Break-In-Service, an Employee's "DATE OF REEMPLOYMENT" is the day on which such Employee performs or is, pursuant to such reemployment, credited with such Employee's first Hour of Service. In the event a Participant incurs a sufficient number of consecutive Breaks-In-Service to result in loss of credit for prior years of Service pursuant to Sections 2.05 and 3.01(d) hereof, "DATE OF EMPLOYMENT" shall mean "DATE OF REEMPLOYMENT". 2.04 YEAR OF SERVICE. For purposes of this Plan, "YEAR OF SERVICE" means a twelve (12) consecutive month period commencing on the Date of Employment or any anniversary thereof during which an Employee has not less than one thousand (1,000) Hours of Service. 2.05 CREDITED SERVICE. For purposes of vesting under this Plan, "CREDITED SERVICE" means the number of Years of Service measured from the Employee's Date of Employment provided that Credited Service shall exclude any Year of Service which precedes a Break-In-Service if: (a) as of the first (1st) day of the Break-In-Service, the Participant did not have any nonforfeitable interest in his Employer Contribution Account and either (b) or (c) is applicable; (b) as of or prior to December 31, 1984, the duration of the consecutive Breaks-In-Service measured in years equals or exceeds the Participant's Years of Service prior to the Break-In-Service; or 8 13 (c) for all other Breaks-In-Service, the duration of the consecutive Breaks-In-Service measured in years equals or exceeds the greater of five (5) or the Participant's Years of Service prior to the Breaks-In-Service. For purposes of this Section 2.05, Years of Service prior to a Break-In-Service shall be disregarded to the extent of Years of Service prior to a previous Break-In-Service which did not qualify as Credited Service under the rules of this Section 2.05. 2.06 HOUR OF SERVICE. For purposes of this Plan, "HOUR OF SERVICE" means each hour for which such Employee is required by the provisions of Sections 2.06(a) and 2.06(b) below to receive credit. (a) With respect to all Employees, except as provided in Section 2.06(b) below, and according to records of Central, credit shall be given in accordance with the following rules: (i) each hour for which the individual is paid, or entitled to payment, by a Controlled Group Member for the performance of duties during such period, including hours which were not originally credited, but for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by a Controlled Group Member, and (ii) each hour for which the individual is directly or indirectly paid or entitled to payment by a Controlled Group Member, for reasons other than for the performance of duties, including, but not limited to, any approved Leave of Absence with pay, vacation, holiday, illness, terminations due to a decline in business, and jury duty and also including hours which were not originally credited, but for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the Controlled Group Member, but excluding payments under plans maintained solely to comply with applicable worker's compensation laws, unemployment compensation or disability insurance laws or payments for reimbursement of medical or medically-related expenses; hours shall be credited under this subsection only to the extent an Employee is paid or otherwise entitled to payment or to credit for time either by law or pursuant to a policy of the Controlled Group Member, and nothing herein shall entitle an Employee to any such payment. (iii) No more than five hundred one (501) hours need be credited under clause (ii) above for any single continuous period of time during which the Employee performs no duties, whether or not such period occurs in a single computation period, and the number of hours to be credited shall be computed in accordance with the clauses (v) and (vi) below, as modified by applicable Labor Department regulations. (iv) Hours credited for back pay shall not be credited under both clauses (i) and (ii). (v) The number of hours to be credited under clause (ii) shall be determined with reference to whether or not a payment is calculated on the basis of units of time. Except as otherwise provided below, with respect to a payment (described in clause 9 14 (ii)) made or due which is calculated on the basis of units of time, such as hours, days, weeks or months, the number of hours to be credited shall be the number of regularly scheduled hours included in the units of time on the basis of which payment is calculated. With respect to a payment made or due which is not calculated on the basis of units of time, the number of hours to be credited shall be equal to the amount of the payment divided by the Employee's most recent hourly rate of compensation before the period during which no duties are performed. For purposes of the preceding sentence, (A) if an Employee's compensation is determined on the basis of an hourly rate, such hourly rate shall be the Employee's most recent hourly rate of compensation, (B) if an Employee's compensation is determined on the basis of a fixed rate for specified periods of time (other than hours) such as days, weeks or months, the Employee's hourly rate of compensation shall be the Employee's most recent rate of compensation for a specific period of time (other than hours) divided by the number of hours regularly scheduled for the performance of duties during such period of time, and (C) if an Employee's compensation is not determined on the basis of a fixed rate for specific periods of time, then the Employee's hourly rate of compensation shall be the lowest hourly rate of compensation paid to Employees in the same job classification as that of the Employee or, if no Employees in the same job classification have the same hourly rate, the minimum wage as established from time to time under Section 6(A)(1) of the Fair Labor Standards Act of 1938, as amended. Notwithstanding the above, an Employee shall not be credited on account of a period during which no duties are performed with a number of hours which is greater than the number of hours regularly scheduled for the performance of duties during such period. For purposes of this clause (v), with respect to an Employee without a regular work schedule, such Employee shall be deemed to regularly work a forty (40) hour week. (vi) Except as otherwise provided below, hours shall be credited to the above-described computation period(s) in which duties are performed. With respect to hours for which an Employee is either directly or indirectly paid or entitled to payment by a Controlled Group Member on account of a period of time during which no duties are performed, (A) hours credited to the Employee on account of a payment which is calculated on the basis of units of time such as hours, days, weeks or months shall be credited to the computation period or periods in which the period during which no duties are performed occurs, beginning with the first unit of time to which the payment relates, and (B) hours credited to an Employee by reason of a payment which is not calculated on the basis of units of time shall be credited to the computation period in which the period during which no duties are performed occurs, or if the period during which no duties are performed extends beyond one computation period, such hours shall be allocated between not more than the first two computation periods on any reasonable basis which is consistently applied with respect to all Employees within the same reasonably defined job classifications. Hours for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by a Controlled Group Member shall be credited to the computation period or periods to which the award or agreement for back pay pertains, rather than to the computation period in which the award, agreement or payment is made. For purposes of this clause (vi), if Hours of Service are to be credited to an Employee in connection with a period of no more than thirty-one (31) 10 15 days which extends beyond one computation period, all such hours may be credited to the first or second computation period, provided all Employees within the same reasonably defined job classifications are consistently treated similarly. (b) With respect to salaried Employees, whose hours are not required to be counted and recorded by the Fair Labor Standards Act of 1938, such Employees shall be credited with fifty (50) hours for each week in which an hourly-paid Employee would be credited with an Hour of Service under Section 2.06(a) above; provided, however, that no more than five hundred one (501) hours need be credited on account of the provisions of Section 2.06(a)(ii) above for any single continuous period of time during which the Employee performs no duties, whether or not such period of time is in a single computation period. (c) Notwithstanding the foregoing, a Participant whose Service continues during a period of absence due to a decline in business pursuant to Section 2.02(g) hereof shall be credited with 40 Hours of Service for each week during such absence for which he is not paid or entitled to payment by Central; such Hours of Service shall be credited upon the Employee's return to active employment by Central. Solely for purposes of determining whether a Break-In-Service, as defined in Section 2.07, has occurred in a computation period, an Employee who is absent from work for maternity or paternity reasons beginning on or after January 1, 1985, shall receive credit for the Hours of Service which would otherwise have been credited to such Employee but for such absence, or in any case in which such hours cannot be determined, eight (8) Hours of Service per day of such absence. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence solely to the extent initially caused (i) by reason of the pregnancy of the Employee; (ii) by reason of a birth of a child of the Employee, (iii) by reason of the placement of a child with the Employee in connection with the adoption of such child by such Employee, or (iv) for purposes of caring for such child for a period beginning immediately following such birth or placement. The Hours of Service credited under this paragraph shall be credited either (i) only in the Plan Year in which the absence begins if the crediting is necessary to prevent a Break-In-Service in that period, or (ii) in all other cases, only in the following Plan Year. No Service shall be credited under this paragraph unless the Employee furnishes the Plan Administrator such timely information as the Plan Administrator requires in order to establish that the absence was for a reason stated in this paragraph and the number of days of such absence in accordance with procedures established by the Plan Administrator. The total number of Hours of Service credited pursuant to this paragraph for any such placement, birth or pregnancy shall not exceed five hundred one (501) Hours of Service. Nothing herein shall be construed to give any Employee the right to a leave of absence for maternity or paternity reasons; Central reserves the right to establish, alter or revoke policies regarding such leaves of absence at any time. For purposes of determining a Year of Service or Break-In-Service, each Employee shall be credited with Hours of Service as hereinabove provided. 2.07 BREAK-IN-SERVICE. For purposes of this Plan, "BREAK-IN-SERVICE" means a twelve (12) month period commencing with an Employee's Date of Employment or anniversary thereof during which the Employee has not completed more than five hundred (500) Hours of Service. A Break-In-Service occurs as of the last day of any such twelve (12) month period. 11 16 ARTICLE III PARTICIPATION ------------- 3.01 PARTICIPATION IN THE PLAN. (a) Subject to Section 3.02 below, an Employee who was a Participant in this Plan on January 1, 1994 will be eligible to continue to participate in this Plan. (b) Subject to Section 3.02 below, an Employee who has completed one (1) Year of Service with a member of the Controlled Group other than Central, is twenty-one (21) years of age or older and is employed by Central, shall be eligible to become a Participant in the Plan on his Date of Employment. In the event the Employee does not elect to become a Participant on his Date of Employment, he will be eligible to become a Participant on any subsequent Entry Date provided he is still employed by Central on said Entry Date. (c) Subject to Section 3.02 below, all other Employees will be eligible to become Participants in this Plan on the first Entry Date following their completion of one (1) Year of Service provided they have attained twenty-one (21) years of age and are still in the employ of Central on such Entry Date. If an Employee does not elect to become a Participant on the first Entry Date following his meeting the eligibility requirements, he will be eligible to become a Participant on any subsequent Entry Date provided he is still employed by Central as of said subsequent Entry Date. (d) For purposes of this Section 3.01, should an Employee incur a Break-In-Service, then Years of Service prior to the Break-In-Service shall be excluded for purposes of determining when the Employee is eligible to become a Participant hereunder only if: (i) as of the first day of the Break-In-Service, the Employee did not have any nonforfeitable interest in his Employer Contribution Account, and either (ii) or (iii) hereof is applicable; (ii) as of or prior to December 31, 1984, the duration of the consecutive Breaks-In-Service measured in years equals or exceeds the Employee's Years of Service prior to the Break-In-Service; or (iii) for all other Breaks-In-Service, the duration of the consecutive Breaks-In-Service measured in years equals or exceeds the greater of five (5) or the Employee's Years of Service prior to the Breaks-In-Service. (e) After becoming a Participant, an Employee shall continue to be a Participant in accordance with the provisions of Section 3.03 below. Should, however, a person cease to be a Participant pursuant to Section 3.03 hereof, such person shall be reinstated as a Participant, subject to Section 3.02 hereof, on the first to occur of the following: 12 17 (i) as of the applicable time specified in Section 3.01(c) above upon completion of a Year of Service after reemployment, if such person's Years of Service, if any, prior to such person's Break-In-Service are not required to be taken into account in accordance with the provisions of Section 3.01(d) above, or (ii) as of such person's Date of Reemployment if such person has at least one Year of Service prior to such person's Break-In-Service that is required to be taken into account in accordance with the provisions of Section 3.01(d) above, or (iii) as of the date such person ceases to be ineligible pursuant to Section 3.02 hereof, in the case of an individual who ceases to be a Participant pursuant to Subsection 3.03(c) hereof and does not incur a Break-In-Service. 3.02 INELIGIBILITY TO BECOME OR CONTINUE AS A PARTICIPANT. Notwithstanding the provisions of Section 3.01 above, (a) any Employee who would otherwise become a Participant shall not become a Participant if: (i) such Employee is not a full-time or a part-time Employee of Central; (ii) such Employee is a "leased employee" as defined in Code Section 414(N); or (iii) such Employee is a member of a collective bargaining unit if retirement benefits covering such unit were the subject of good faith bargaining and coverage under this Plan was not agreed to under such bargaining. (b) any Employee who is a Participant shall cease to be a Participant if: (i) such Employee becomes a "leased employee" as defined in Code Section 414(N); and (ii) such Employee becomes a member of a collective bargaining unit if retirement benefits covering such unit were the subject of good faith bargaining and coverage under this Plan was not agreed to under such bargain. 3.03 CONTINUANCE AS A PARTICIPANT. A Participant shall continue as a Participant until whichever of the following dates first occurs: (a) the date of such Participant's death; (b) the date the Participant ceases to be employed by a member of the Controlled Group. (c) the date such Participant elects to cease participation; or 13 18 (d) the date the Participant becomes ineligible to participate in the Plan, pursuant to Section 3.02 hereof. ARTICLE IV CONTRIBUTIONS ------------- 4.01 EMPLOYER CONTRIBUTIONS. (a) Central shall make a Contribution to the Trust Fund for each taxable year, on or before the date prescribed by the Code for filing of its federal income tax return for such taxable year (including extensions of time for filing same). The Contribution shall be: (i) an amount equal to twenty-five cents ($.25) for each one dollar ($1.00) of Salary Reduction Contributions (limited to a maximum of five percent (5%) of a Participant's Compensation) made by Participants; and (ii) such additional amount as the Board may direct by adopting an appropriate resolution and either claiming such amount as a deduction on its federal income tax return or designating such amount in writing to the Trustee; provided, however, that the total Contribution shall not exceed the maximum amount deductible from the Employer's income for such taxable year under Section 404(a)(3)(A) of the Code, plus any carried over credits which may have accrued under Section 404 of the Code. (b) Central shall pay to the Trustee its contribution to the Plan for each Plan Year within the time prescribed by law, including extensions of time, for the filing of its federal income tax return for the fiscal year. Participant Contributions as set out in Section 4.02 below shall be paid to the Trustee as of the earliest date on which such contributions can reasonably be segregated from the Employer's general assets, but in any event within ninety (90) days from the date on which such amounts would have otherwise been paid to the Participant in cash. The provisions of the Department of Labor Regulations 2510.3-102 are incorporated herein by reference. 4.02 PARTICIPANT CONTRIBUTIONS. (a) SALARY REDUCTION CONTRIBUTIONS (1) Each Participant employed by Central may elect, subject to a uniform, nondiscriminatory procedure to be established by the Plan Administrator, to enter into a written salary reduction agreement with Central under which he may elect to reduce his Salary, in an amount not to exceed ten percent (10%) of his Salary, and to have Central contribute such amount by which his Salary is reduced to the Trust Fund on his behalf. Any amount so contributed will be treated as a Salary Reduction Contribution and shall be fully vested at all times and shall not be subject to forfeiture for any reason. 14 19 (2) The Salary Reduction Contribution made on behalf of any Participant for any calendar year shall not exceed the dollar limitation imposed by the Code Section 402(g) (as adjusted annually in accordance with the method provided in Code Section 415(d) pursuant to Regulations). In the event the dollar limitation provided for above is exceeded, the Committee shall direct the Trustee to distribute such excess amount, and all income attributable thereto, to the Participant not later than April 15th following the close of the Participant's taxable year. (3) Central reserves the right to amend or revoke the salary reduction agreement with any Participant at any time if it is determined by Central that such amendment or revocation is necessary to ensure that the maximum contribution for any Plan Year will not exceed the limitations as set out in subparagraph (2) above, or to ensure that the discrimination tests of Section 401(k) of the Code, as set forth below in Subsection 4.01(a)(4), are met. (4) Limitations on Salary Reduction Contributions. (a) Maximum Annual Contribution. For each Plan Year, the annual Salary Reduction Contribution made by the Employee shall satisfy one of the following tests: (1) The "Actual Deferral Percentage" for the Highly Compensated Participant group shall not be more than the "Actual Deferral Percentage" of the Non-Highly Compensated Participant group multiplied by 1.25, or (2) The excess of the "Actual Deferral Percentage" for the Highly Compensated Participant group over the "Actual Deferral Percentage" for the Non-Highly Compensated Participant group shall not be more than two percentage points and the "Actual Deferred Percentage" for the Highly Compensated Participant group shall not exceed the "Actual Deferred Percentage" for the Non-Highly Compensated Participant group multiplied by 2. The provisions of Code Section 401(k)(3) and Regulation 1.401(k)-1(b) are incorporated herein by reference. (b) For purposes of this Paragraph the following definitions shall apply: (1) "Actual Deferral Percentage" means, with respect to the Highly Compensated Participant group and Non-Highly Compensated Participant group for a Plan Year, the average of the ratios, calculated separately for each Participant in such group, of the amount of Salary Reduction Contribution made to the Plan by said Participant for such Plan Year, to such Participant's Compensation for such Plan Year. The actual deferral ratio for each Participant and the "Actual Deferral Percentage" for each group shall be calculated to the nearest one-hundredth of one percent. For purposes of determining the "Actual Deferral Percentage" of a Highly Compensated Participant, the Salary Reduction Contribution and Compensation of such Highly 15 20 Compensated Participant shall include the Salary Reduction Contributions and Compensation of Family Members, and such affected Family Members shall be disregarded in determining the "Actual Deferred Percentage" for Non-Highly Compensated Participants group. (2) "Highly Compensated Participant" means any Participant or former Participant who is a highly compensated employee as defined in Code Section 414(q). Generally, any Participant or former Participant is considered a Highly Compensated Participant if during the Plan Year or the preceding Plan Year such Participant or former Participant: (i) was at any time a "five percent owner" as defined in Section 416(i)(1)(B) of the Code; (ii) received Compensation from the Employer in excess of $75,000, as adjusted pursuant to Code Section 414(q)(1). In determining whether an individual has Compensations of more than $75,000, Compensation from each employer required to be aggregated under Code Sections 414(b), (c) and (m) shall be taken into account; (iii) received Compensation from the Employer in excess of $50,000, as adjusted pursuant to Code Section 414(q)(1), and was in the top-paid group of Employees for the Plan Year. An Employee is in the top-paid group of Employees for any Plan Year if such Employee is in the group consisting of the top twenty (20%) percent of the Employees when ranked on the basis of Compensation paid during the Plan Year. In determining whether an individual has Compensation of more than $50,000, Compensation from each employer required to be aggregated under Code Section 414(b), (c) and (m) shall be taken into account; or (iv) was at any time an officer of the Employer (as that term is defined within the meaning of Code Section 416) having annual Compensation greater than 50% of the amount in effect under Code Section 415(b)(1)(A) for any such Plan Year. (3) "Non-Highly Compensated Participant" means any Participant or former Participant who is not a Highly Compensated Participant. (4) "Family Member" means an individual described in Code Section 414(q)(6)(B). 16 21 (c) For purposes of this Section 4.02(a), a Highly Compensated Participant and a Non-Highly Compensated Participant shall include any Employee eligible to make Salary Reduction Contributions, whether or not such contributions are made. (d) For purposes of this Section 4.02(a), if two or more plans which include Salary Reduction Contribution arrangements under Code Section 401(k) are considered one plan for the purposes of Code Section 401(a)(4) or 410(b), the Salary Reduction Contribution arrangements included in such plans shall be treated as one arrangement. (e) For the purposes of this Section 4.02(a), if a Highly Compensated Participant is a Participant under two or more Salary Reduction Contribution arrangements of Central, all such arrangements shall be treated as one arrangement for purposes of determining the deferred percentage with respect to such Highly Compensated Participant. (f) Notwithstanding the above, the determination and treatment of Salary Reduction Contributions and "Actual Deferred Percentage" of any Participant shall satisfy such other requirements as may be prescribed by the Secretary of the Treasury. 17 22 (5) Adjustment to Limits on Salary Reduction Contributions. In the event that a Participant's Salary Reduction Contributions made pursuant to this Section 4.02(a) do not satisfy one of the tests set forth in Section 4.02(a)(4) above, then, notwithstanding any Plan provision to the contrary, the Committee shall adjust either the Employer's Contributions or the Salary Reduction Contributions pursuant to the options set forth below: (a) On or before the 15th day of the third month following the end of each Plan Year, but in no event later than the close of the following Plan Year, each Highly Compensated Participant, beginning with the Participant having the highest "Actual Deferral Percentage", shall have his portion of excess Salary Reduction Contributions (and any income allocable to such portion) distributed to him until one of the tests set forth in Section 4.02(a)(4) hereof is satisfied. However, to the extent provided in Regulations, each affected Highly Compensated Participant may elect to treat such distribution as a Voluntary Employee Contribution pursuant to Section 4.02(b), provided that the limitations of such Section or of Section 5.04 hereof are not exceeded; or (b) Within 30 days after the end of the Plan Year, the Employer shall make a contribution on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy one of the tests set forth in Section 4.02(a)(4) hereof. Such contribution shall be deemed a Salary Reduction Contribution made by the Non-Highly Compensated Participant and shall be allocated to each Non-Highly Compensated Participant in the same proportion that each Non-Highly Compensated Participant's Salary Reduction Contribution for the year bears to the total Salary Reduction Contributions of all Non-Highly Compensated Participants. (b) VOLUNTARY CONTRIBUTIONS. In order to allow Participants employed by Central the opportunity to increase their retirement income, each Participant may elect to make voluntary (after tax) contributions to the Trust Fund over and above his Salary Reduction Contributions in an amount of up to five percent (5%) of his Compensation earned while a Participant hereunder. A Participant's Voluntary Contributions shall be fully vested at all times and not subject to forfeiture for any reason. 4.03 PARTICIPANTS NOT EMPLOYED BY CENTRAL. Participants in this Plan who are not employed by Central may not make Voluntary Contributions or Salary Reduction Contributions to this Plan, nor shall they share in Employer Contributions. 4.04 FUNDING POLICY; OTHER MATTERS. The provisions of this Article IV shall be deemed the procedure for establishing and carrying out the funding policy and method of the Plan. Such funding policy and method shall be administered by Central and other Named Fiduciaries consistent with the objectives of the Plan and with the requirements of Title I of ERISA. 18 23 ARTICLE V ACCOUNTS AND ALLOCATIONS ------------------------ 5.01 TRUST ACCOUNTS. The Committee shall create and maintain adequate records to reflect all transactions of the Trust Fund and to disclose the interest in the Trust Fund of each Participant, former Participant, Beneficiary or Alternate Payee who has an undistributed interest in the Fund. (a) INDIVIDUAL ACCOUNTS. The Plan Administrator shall establish and maintain individual Accounts for each Participant. The Account of each Participant shall be maintained in accordance with the Plan until its complete distribution or forfeiture. (b) RIGHTS IN TRUST FUND. The maintenance of individual Accounts for Participants is only for accounting purposes, and a segregation of the assets of the Trust Fund to each Account shall not be required. Distribution made from an Account shall be charged to the Account as of the date paid. 5.02 ALLOCATIONS TO ACCOUNTS. (a) PARTICIPANT ACCOUNTS. Records shall be maintained to reflect a Participant's share of contributions, net income and forfeitures. These records shall consist of an Employer Contribution Account to which Employer Contributions, net income (or loss) attributable to Employer Contributions and forfeitures allocated to that Participant are credited, and an Employee Contribution Account to which Voluntary Contributions, Salary Reduction Contributions and net income (or loss) attributable thereto are credited. (b) ALLOCATION PROCEDURES. Subject to Section 5.04 below, Accounts shall be adjusted in accordance with the following: (i) PARTICIPANT CONTRIBUTIONS. The Participant's Contributions (Voluntary and Salary Reduction) will be allocated to the Participant's Employee Contribution Account as they are received by the Trustee. (ii) INCOME AND LOSS OF THE TRUST FUND. The net income (or loss) of the Trust Fund will be determined annually as of each Valuation Date. Such net income (or loss) shall be allocated to the appropriate Accounts in proportion to the weighted average balance of the said Accounts as of that Valuation Date, to the weighted average balance of all such Accounts of the same date. (iii) EMPLOYER CONTRIBUTIONS. As of the Valuation Date, the Employer Contribution for that Plan Year shall be allocated to the Employer Contribution Accounts of all Participants (including Participants or Beneficiaries of Participants who terminated employment with an Employer after July 1 of that Plan Year because of death or Retirement and who have made an election to defer distribution of their Participant Account until the next Plan Year) in the following manner: 19 24 (a) There will be allocated to the Employer Contribution Account of each Participant the amount of $.25 for each $1.00 of Salary Reduction Contributions made by that Participant, during that Plan Year, up to a maximum Salary Reduction Contribution Amount of 5% of that Participant's Salary (the "Matching Portion"). (b) After Salary Reduction Contributions have been matched, as set out in Paragraph (a) above, any additional Employer Contribution shall be allocated among the Employer Contribution Accounts of the Participants in the following manner: The total amount of the Employer Contribution remaining shall be divided by the number of Participants in the Plan on the Valuation Date for which the contribution is being made and an equal amount shall be allocated to the Employer Contribution Account of each Participant. In the case of a Participant who began participating in the Plan after July 1 of the Plan Year for which the Employer Contribution is made, the amount to be allocated to that Participant's Employer Contribution Account shall be determined by multiplying the amount determined hereunder by a fraction, the numerator of which is the number of days of participation by that Participant for that Plan Year and the denominator of which is 365. (iv) FORFEITURES. As of each Valuation Date, Forfeitures, if any, occurring during the Plan Year (net of any amount of Forfeitures allocated to the restoration of prior Forfeitures pursuant to Section 7.05 hereof) shall be allocated to the Employer Contribution Account of each Participant (including Participants or Beneficiaries who terminated employment with an Employer after July 1 of that Plan Year because of death or Retirement and who elected to defer distribution of their Participant Account until the next Plan Year) in accordance with the ratio of the weighted average balance of the Employer Contribution Account of a Participant to the sum of the weighted average balance of the Employer Contribution Accounts of all Participants for that Plan Year. (c) Notwithstanding the provisions of Subsection 5.02(b) above, if a Participant is not employed by Central on the Valuation Date, he will be entitled to share in the allocation of the Income or Loss of the Trust Fund, but will not share in Employer Contributions or Forfeitures. (d) Notwithstanding the provisions of Subsection 5.02(b) above, if a Participant is not employed by Central, but is employed by a Controlled Group Member, on the Valuation Date, he will be entitled to share in the allocation of the Matching Portion as provided in Subparagraph 5.02(b)(iii)(a) and in the allocation of Income or Loss of the Trust Fund, but will not share in Employer Contributions provided for under Subparagraph 5.02(b)(iii)(b) or in Forfeitures. 5.03 Transfer Contribution Accounts. With the consent of the Plan Administrator, amounts may be transferred to this Plan from other qualified plans. Amounts transferred shall be set up on a separate account, herein referred to as Transfer Contribution Account. Such Account shall be fully 20 25 vested at all times and shall not be subject to forfeiture for any reason. All Transfer Contributions shall be received and held by this Plan in accordance with the rules set out in this Section 5.03. (a) The trust from which such Transfer Contributions are made must permit the transfer to be made, and the trust must not jeopardize, the tax exempt status of this Plan or the Trust Fund. (b) Amounts in a Participant's Transfer Contribution Account shall be held by the Trustee pursuant to the provisions of this Plan and may not be withdrawn by, or distributed to the Participant, in whole or in part, except as provided in paragraphs (c) and (d) of this Section 5.03. (c) Except as permitted by Regulations (including Regulation 1.411(d)-4), amounts attributable to elective contributions (as defined in Regulation 1.401(k)-1(g)(3)), including amounts treated as elective contributions, which are transferred from another qualified plan in a plan-to-plan transfer shall be subject to the distribution limitations provided for in Regulation 1.401(k)-1(d). (d) Upon termination of employment due to retirement at or after attaining Normal Retirement Age, or such other date as the Participant or his Beneficiary shall be entitled to receive benefits in accordance with Section 7.04 below, the fair market value of the Participant's Transfer Contribution Account shall be used to provide additional benefits to the Participant or his Beneficiary. Any distributions of amounts held in a Participant's Transfer Contribution Account shall be made in a manner which is consistent with and satisfies the provisions of Section 7.04, including, but not limited to, all notice and consent requirements of Code Section 411(a)(11) and the Regulations thereunder. Furthermore, such amounts shall be considered as a part of a Participant's benefit in determining whether an involuntary cash-out of benefits without Participant consent, pursuant to Subsection 7.04(d) hereof, may be made. (e) For purposes of this Section 5.03, the term "qualified plan" shall mean any tax qualified plan under Code Section 401(a). The term "amounts transferred from other qualified plans" shall mean: (i) amounts transferred to this Plan directly from another qualified plan; (ii) distributions from another qualified plan which are eligible rollover distributions and which are either transferred by the Employee to this Plan within sixty (60) days following his receipt thereof or are transferred pursuant to a direct rollover; (iii) amounts transferred to this Plan from a conduit individual retirement account provided that the conduit individual retirement account has no assets other than assets which (A) were previously distributed to the Employee by another qualified plan as a lump-sum distribution, (B) were eligible for tax-free rollover to a qualified plan and (C) were deposited in such conduit individual retirement account within sixty (60) days of receipt thereof and other than earnings on said assets; and (iv) amounts distributed to the Employee from a conduit individual retirement account meeting the requirements of clause (iii) above, and transferred by the Employee to this Plan within sixty (60) days of his receipt thereof from such conduit individual retirement account. (f) Prior to accepting any transfers to which this Section 5.03 applies, the Plan Administrator may require the Employee to establish that the amounts to be transferred to this 21 26 Plan meet the requirement of this Section and may also require the Employee to provide an opinion of counsel satisfactory to the Employer that the amounts to be transferred meet the requirements of this Section. (g) This Plan shall not accept any direct or indirect transfers (as that term is defined and interpreted under Code Section 401(a)(11) and the Regulations thereunder) from a defined benefit plan, money purchase plan (including a target benefit plan), stock bonus or profit sharing plan which would otherwise have provided for a life annuity form of payment to the Participant. (h) Notwithstanding anything herein to the contrary, a transfer directly to this Plan from another qualified plan (or a transaction having the effect of such a transfer) shall only be permitted if it will not result in the elimination or reduction of any protected benefit as defined in Section 411(d)(6) of the Code. 5.04 LIMITATIONS REQUIRED BY SECTION 415 OF THE CODE. For the purposes of this Section, the rules of interpretation listed in Subsection 5.04(c) below shall apply and the expressions set out therein shall have the meanings respectively indicated. (a) LIMIT ON ANNUAL ADDITIONS. The Accounts of a Participant shall not be credited with an Annual Addition as of any Valuation Date if to do so would cause the amount of Annual Addition to such Participant's Accounts for the Plan Year to exceed the Maximum Permissible Defined Contribution Amount. If necessary to comply with the foregoing limitations, Annual Addition to this Plan shall be reduced. If, as a result of a reasonable error in estimating a Participant's Remuneration, or under facts and circumstances which the Commissioner of Internal Revenue finds justify the availability of the rules set forth in Subsection 5.04(a), the allocation of Annual Additions under the terms of this Plan for a particular Participant would cause the limitations of Section 415 of the Code applicable to that Participant for the Plan Year to be exceeded, the excess amounts shall not be deemed to be Annual Additions in that Plan Year if they are treated as follows: (i) The excess amounts shall be held unallocated in a suspense account for the Plan Year and shall be allocated in the next Plan Year (and succeeding Plan Years, as necessary) among the Participants in the Plan, subject to the limitations of Section 415 of the Code. (ii) In the event of termination of this Plan, the suspense account described in (i) above shall revert to the Employer to the extent it may not then be allocated to any Participant's Accounts. (b) COMBINED PLAN LIMIT. For any Participant in this Plan who is participating in or at any time participated in a defined benefit plan of a Controlled Group Member, Annual Additions hereunder shall be further reduced to the extent necessary to prevent the sum of the following fractions, computed as of the close of the Plan Year, from exceeding 1.0: 22 27 (i) DEFINED BENEFIT PLAN FRACTION. A fraction, the numerator of which is the projected Annual Benefit of the Participant under all defined benefit plans of a Controlled Group Member, and the denominator of which is the lesser of (i) the product of 1.25 multiplied by the amount specified in Code Section 415(b)(1)(A) for such Plan Year, or (ii) the product of 1.4 multiplied by the amount specified in Code Section 415(b)(1)(B) for such Plan Year. (ii) DEFINED CONTRIBUTION PLAN FRACTION. A fraction, the numerator of which is the sum of all Annual Additions under all defined contribution plans of a Controlled Group Member for such Plan Year and all prior Plan Years, and the denominator of which is the lesser of the following amounts determined for such Plan Year and for such prior Year of Service with the Controlled Group Member: (i) the product of 1.25 multiplied by the amount specified in or determined in accordance with the provisions of Subsection 5.04(b)(4)(A) hereof in effect for such Plan Year, or (ii) the product of 1.4 multiplied by the amount determined in accordance with the provisions of Subsection 5.04(b)(4)(B) hereof for such Plan Year. (c) RULES OF INTERPRETATION AND SECTION 5.04 DEFINITIONS. (1) "Annual Addition" shall include, for any Plan Year, the sum of the Participant's: (A) Allocable share of Employer Contributions; (B) The full amount of a Participant's Voluntary Contributions and Salary Reduction Contribution; (C) Contributions described in Section 401(k) of the Code under any other defined contribution plan maintained by a Controlled Group Member; (D) The full amount of a Participant's after-tax contributions for the Plan Year under any other qualified plan maintained by a Controlled Group Member; (E) Forfeitures, if any, allocable to the Participant for the Plan Year. Annual Additions shall not include any "Transfer Contributions" (as provided for in Section 5.03 hereof) and shall not include any non-vested, forfeited amount restored to a Participant's Account pursuant to Section 7.05 or Section 9.09 hereof or similar provisions of any other defined contribution plan of a Controlled Group Member. (2) "Annual Benefit" shall have the meaning as set out in Section 415(b)(2) of the Code. (3) "Plan Year" shall also be the limitation year for purposes of Section 415(j) of the Code. (4) "Maximum Permissible Defined Contribution Amount" shall mean, for any Plan Year, the lesser of: 23 28 (A) Thirty Thousand Dollars ($30,000) or, if greater, one quarter (1/4) of the amount set forth in Section 415(b)(1)(A) of the Code, as adjusted for cost-of-living increases pursuant to Code Section 415(d)(1) and Section 415(d)(3), or (B) Twenty-five percent (25%) of the Participant's Remuneration for such Plan Year. (5) "Remuneration" with respect to the Plan Year in question shall mean all compensation of the Participant from Central for the Plan Year, as defined in Code Section 415(c)(3). (6) For purposes of applying the limitations of Code Sections 415(b), (c) and (e) applicable to a Participant for a particular Plan Year, all qualified defined benefit plans ever maintained by a Controlled Group Member will be treated as one defined benefit plan and all qualified defined contribution plans ever maintained by a Controlled Group Member will be treated as part of this Plan. 5.05 LIMITATIONS REQUIRED BY CODE SECTION 401(m). (a) The "Contribution Percentage" for the Highly Compensated Participant group shall not exceed the greater of: (1) 125% of such percentage for the Non-Highly Compensated Participant group; or (2) the lesser of 200% of such percentage for the Non-Highly Compensated Participant group, or such percentage for the Non-Highly Compensated Participant group plus 2 percentage points. (b) For the purposes of this Section and Section 5.06, the following words shall have the following meanings: "Contribution Percentage" for a Plan Year means, with respect to the Highly Compensated Participant group and Non-Highly Compensated Participant group, the average of the ratios (calculated separately for each Participant in each group) of: (1) The sum of all Participant Contributions plus the Matching Portion of Employer Contributions allocated under the provisions of Subsection 5.02(b)(iii)(a) above to the Account of each such Participant for such Plan Year; to (2) the Participant's Compensation for such Plan Year. "Highly Compensated Participant" means any Participant or former Participant who is a highly compensated employee as defined in Code Section 414(q). Generally, any Participant or former Participant is considered a Highly Compensated Participant if, during the Plan Year or the preceding Plan Year, such Participant or former Participant: (a) was at any time a "five percent owner" within the meaning of Section 416(i) of the Code, 24 29 (b) received "Compensation" from an Employer in excess of $75,000.00, as adjusted pursuant to Code Section 414(q)(1). In determining whether an individual has Compensation of more than $75,000.00, Compensation from such Employer required to be aggregated under Code Sections 414(b), (c) and (m) shall be taken into account. "Non-Highly Compensated Participant" means any Participant or Family Member who is neither Highly Compensated nor a Family Member. (c) For purposes of determining the "Contribution Percentage", the Committee may elect pursuant to Regulations to take into account Employer Contributions contributed to any plan maintained by the Employer. In addition, the "Contribution Percentage" for a Highly Compensated Participant shall be determined by including any Compensation of Family Members, and such affected Family Members shall be disregarded in determining the "Contribution Percentage" of Non-Highly Compensated Participants. In all cases the determination and treatment of the "Contribution Percentage" of any Participant shall satisfy such other requirements as may be prescribed by the Secretary of the Treasury. (d) For purposes of this Section, if two or more plans of the Employer to which matching contributions are made are treated as one plan for purposes of Code Section 410(b), such plans shall be treated as one plan for purposes of this Section 5.05. In addition, if a Highly Compensated Participant participates in two or more plans described in Code Section 401(a) or arrangements described in Code Section 401(k) which are maintained by the Employer to which such contributions are made, all such contributions shall be aggregated for purposes of this Section 5.05. (e) For purposes of Subsections 5.05(a) and 5.06, a Highly Compensated Participant and Non-Highly Compensated Participant shall include any Employee eligible to have Employer Contributions allocated to his Employer Contribution Account for the Plan Year. 5.06 ADJUSTMENT FOR EXCESSIVE CONTRIBUTION PERCENTAGE. (a) In the event that the "Contribution Percentage" for the Highly Compensated Participant group exceeds the "Contribution Percentage" for the Non-Highly Compensated Participant group pursuant to Subsection 5.05(a), the Plan Administrator (on or before the fifteenth day of the third month following the end of the Plan Year, but in no event later than the close of the following Plan Year) shall direct the Trustee to distribute to the Highly Compensated Participant group the amount of "Excess Aggregate Contributions (and any income allocable to such contributions). Such distribution shall be made on behalf of the Highly Compensated Participant group in order of their "Contribution Percentages" beginning with the highest of such percentages. (b) For the purposes of this section "Excess Aggregate Contributions" means, with respect to any Plan Year, the excess of: 25 30 (1) the aggregate amount of contributions pursuant to Subsections 5.05(b)(1) and 5.05(c) actually made on behalf of the Highly Compensated Participant group for such Plan Year, over (2) the maximum amount of such contributions permitted under the limitations of Subsection 5.05(a). 5.07 VALUATION OF TRUST FUND. A valuation of the Trust Fund shall be made as of the last day of each Plan Year ("Valuation Date") and as of such other dates as may be specified by the Plan Administrator. 5.08 INVESTMENT OF TRUST FUND. Any cash received by the Trustee as Contributions to or as Income of the Trust Fund shall be invested pursuant to the Trust Agreement. ARTICLE VI ACCOUNTING ---------- 6.01 RECORDS REFLECTING THE INTEREST OF EACH PARTICIPANT. The Plan Administrator shall establish and maintain, or cause the Trustee to establish and maintain, records reflecting the interest, if any, of each Participant, former Participant, Beneficiary or Alternate Payee under the Plan. The interest of each Participant shall, at each Valuation Date, be adjusted to give effect to debits, credits, increments, losses, and other adjustments as herein provided, so as to reflect the Participant's and each such Participant's current interest in the Trust Fund. 6.02 STATEMENT TO PARTICIPANTS. As soon as practicable after the close of the Plan Year, and at such other times as the Plan Administrator decides, the Plan Administrator shall furnish to each Participant, former Participant, Beneficiary or Alternate Payee who has an Account hereunder, a statement showing, as at the most recent Valuation Date, the fair market value of the Participant's Account balance. ARTICLE VII VESTING AND DISTRIBUTION ------------------------ 7.01 VESTING OF TOTAL ACCOUNT AT NORMAL RETIREMENT AGE, DISABILITY OR DEATH. A Participant who terminates Service due to Retirement at or after Normal Retirement Age, or on account of Disability or death shall be entitled (or such Participant's Beneficiary shall be entitled) to the full amount of such Participant's Account as of the Participant's Retirement, Disability or death, and all such amounts shall become fully vested and nonforfeitable. Such Participant's Capital Accumulation shall be distributed in accordance with Section 7.04 hereof. 7.02 VESTING PRIOR TO NORMAL RETIREMENT AGE, DISABILITY OR DEATH. In the event a Participant's Service terminates for reasons other than Retirement at or after Normal Retirement Age, Disability or death, the Participant's Capital Accumulation shall be determined in accordance with the following provisions: 26 31 (a) A Participant's Employer Contribution Account shall become vested and nonforfeitable in accordance with the following schedule:
Years of Credited Service Vested Percentage ------------------------- ----------------- Less than 3 0% 3 20% 4 40% 5 60% 6 80% 7 100%
(b) A Participant's Employee Contribution Account shall be fully vested and nonforfeitable at all times. Such Capital Accumulation shall be distributed in accordance with the provisions of Section 7.04 hereof. 7.03 IN-SERVICE WITHDRAWALS OR DISTRIBUTIONS. No distributions or withdrawals of benefits under the Plan shall be permitted so long as a Participant is employed by a member of the Controlled Group except: (a) to the extent that distribution of a Participant's Account is required under the provisions of Subsection 7.04(c) hereof (relating to a Participant whose Required Beginning Date occurs prior to his termination of employment); (b) under Subsection 12.02 hereof (relating to termination of the Plan); (c) under Subsection 7.07 hereof (relating to hardship distributions); or (d) under Subsection 7.08 hereof (relating to distributions to an alternate payee under a Qualified Domestic Relations Order). 7.04 METHOD AND TIME OF DISTRIBUTION. (a) Subject to the provisions of Subsections 7.04(b), (c), (d) and (e) below, on or after a Participant's Severance Date or other termination of Service, after all adjustments to such Participant's Account shall have been made, such Participant's Capital Accumulation shall be paid to or for the benefit of the Participant, or, in the case of such Participant's death, to or for the benefit of such Participant's Beneficiary or Beneficiaries (subject to Subsections 10.05, 12.02, and 13.05 hereof) in the applicable form and at the time set forth below. (i) Immediate Lump Sum. The Participant's Account shall be distributed in a single lump sum payment as soon as practicable following the Participant's termination of Service. In the event that a Participant or Beneficiary has elected to receive their distribution in an Immediate Lump Sum, and termination of Service has occurred: 27 32 (A) in the case of a Participant, because of Retirement after June 30 of a Plan Year; or (B) in the case of a Beneficiary, because of the death of a Participant after June 30 of a Plan Year; the Participant or the Beneficiary shall be entitled, by giving notice to the Plan Administrator, in writing, to defer distribution of the Immediate Lump Sum into the next following Plan Year. In the event such election is made, the deferred Account shall be entitled to share in the allocation of Employer Contributions for the Plan Year in which the retirement or death of the Participant occurred. (ii) DEFERRED LUMP SUM. The Participant's Account shall be distributed in a single lump sum payment no later than the sixtieth (60th) day after the close of the Plan Year in which occurs the latest of: (A) the date on which the Participant attains Norman Retirement Age, (B) the tenth (10th) anniversary of the year in which the Participant commenced participation in the Plan, or (C) the Participant's termination of Service; provided, however, that distribution may be delayed if the amounts allocable to a Participant's Capital Accumulation or the balance thereof cannot be reasonably ascertained or the Participant (or the Participant's Beneficiary) is unavailable to receive a distribution, in which case distribution, retroactive to such date, will be made within sixty (60) days after such time as the amount of the Participant's Capital Accumulation can be reasonably ascertained or the Participant (or the Participant's Beneficiary) becomes available. (b) A Participant who is entitled to distribution of benefits hereunder shall receive such Participant's entire Capital Accumulation in the form of an Immediate Lump Sum as provided in Subsection 7.04(a)(i) above, unless the Participant elects to receive a Deferred Lump Sum distribution as provided under Subsection 7.04(a)(ii) above. The Beneficiary of a Participant who dies before distribution of the Participant's Capital Accumulation has begun shall receive a distribution of the Participant's Capital Accumulation no later than December 31 of the calendar year containing the fifth anniversary of the Participant's death. (c) Notwithstanding any other provision of this Section 7.04, if the value of a Participant's Capital Accumulation is greater than Three Thousand Five Hundred Dollars ($3,500) as of his termination of Service, his Capital Accumulation shall not be distributed to him without his consent prior to the earlier to occur of his attaining Norman Retirement Age or his death. If the value of a Participant's Capital Accumulation is equal to or less than Three Thousand Five Hundred Dollars ($3,500) as of his termination of Service, his Capital Accumulation shall be distributed in the form and at the time provided in Subsection 7.04(a)(i) hereof. 28 33 (d) Notwithstanding anything to the contrary contained in this Article VII, a Participant's Capital Accumulation will be distributed to him, in a lump sum, not later than the Required Beginning Date and the Participant's participation in the Plan will cease. Alternatively, a Participant may elect to have distribution of his Capital Accumulation made over a period certain measured by his life expectancy, recomputed annually, with the payments commencing not later than the Required Beginning Date. In the event the Participant elects to receive his distributions over a period certain, he may continue his participation in the Plan. All distributions made under this Subsection 7.04(d) shall comply with Code Section 401(a)(9) and the regulations thereunder. (e) Notwithstanding any other provision of this Section 7.04, the Committee may in its discretion require distribution of the entire Account of a Participant after his Severance Date at any time after the Participant has attained Normal Retirement Age. (f) All distributions shall be made in cash. 7.05 FORFEITURES. (a) If a Participant terminates Service with Central for any reason other than because of a decline in business, and is not vested in a portion of his Employer Contribution Account pursuant to Section 7.02 hereof, that portion of his Account in which he is not vested shall be treated as a Forfeiture as of the last day of the Plan Year in which the Participant terminated Service if he has not then been reemployed as of that date. Provided, however, that any such prior Forfeiture shall be restored to such Participant's Account, if the Participant is rehired and repays the full amount of the distribution within the earlier of (i) five (5) years from the Date of Reemployment, or (ii) the close of the first period of five (5) consecutive One Year Breaks in Service. (b) If a Participant terminates Service with Central because of a decline in business and is not vested in a portion of his Employer Contribution Account pursuant to Section 7.02 hereof, that portion of his Account in which he is not vested shall be treated as a Forfeiture as of the last day of the Plan Year in which the Participant terminated Service if he has not then been reemployed as of that date. In the event the Participant is rehired by Central within one (1) year of his date of termination, any Forfeitures will be restored to his Employer Contribution Account. If the Participant is rehired by Central later than one (1) year after his termination because of a decline in business, any prior Forfeiture shall be restored to such Participant's Account only if the Participant repays the full amount of the distribution within the earlier of (i) five (5) years from the Date of Reemployment, or (ii) the close of the first period of five (5) consecutive One Year Breaks in Service. (c) Restoration of any prior Forfeiture shall be funded through an allocation of Forfeitures occurring in the Plan Year in which the rehiring or repayment occurs or, to the extent such Forfeitures are inadequate, Central shall contribute sufficient funds to fund such restoration, as shall be prescribed by the Plan Administrator. The amount of any restored forfeiture shall be separately accounted for, and the vesting of the restored amount shall be determined under the following formula: the vested portion of such amount shall equal P(AB + D) - D, where 29 34 "P" is the Participant's vested percentage under this Section based on the Years of Service then credited to the Participant; "AB" is the balance of the separate account; and "D" is the amount of the prior distribution. 7.06 REHIRING. (a) If an Employee is rehired prior to incurring five (5) consecutive Breaks-In-Service, prior Years of Service shall be counted with respect to vesting of both (i) any prior non-vested amount restored under Section 7.05 hereof and (ii) amounts credited to such Employee following his reemployment. (b) An Employee who is rehired after such Employee has five (5) consecutive Breaks-In-Service shall have no right to restoration of his prior Forfeiture, and such Employee's nonforfeitable rights in contributions allocated to his Employer Contribution Account subsequent to his reemployment shall be determined on the basis of such Employee's Credited Service which is not disregarded under Section 2.05 hereof. 7.07 HARDSHIP DISTRIBUTIONS. (a) The Plan Administrator, at the election of a Participant, may direct the Trustee to distribute to any Participant in any one Plan Year up to the lesser of 100% of his Capital Accumulation valued as of the last Valuation Date or the amount necessary to satisfy any immediate and heavy financial need of the Participant. Any distribution made pursuant to this Section 7.07 shall be deemed to be made as of the first day of the Plan Year or, if later, the Valuation Date immediately preceding the date of distribution, and the Participant's Capital Accumulation shall be reduced accordingly. Withdrawal under this Section 7.07 shall be authorized only if the distribution is on account of: (1) Expenses for medical care described in Code Section 213(d) previously incurred by the Participant, his spouse, or any of his dependents (as defined in Code Section 152) or necessary for these persons to obtain medical care; (2) The costs directly related to the purchase of a principal residence for the Participant (excluding mortgage payments); (3) Payment of tuition and related educational fees for the next twelve (12) months of post-secondary education for the Participant, his spouse, children or dependents; or (4) Payments necessary to prevent the eviction of the Participant from his principal residence or foreclosure on the mortgage of the Participant's principal residence. (b) No distribution shall be made pursuant to this Section 7.07 unless the Plan Administrator, based upon the Participant's representation and such other facts as are known to the Plan Administrator determines that all of the following conditions are satisfied: 30 35 (1) The distribution is not in excess of the amount of the immediate and heavy financial need of the Participant. The amount of the immediate and heavy financial need may include any amounts necessary to pay any federal, state or local income taxes or penalties reasonably anticipated to result from the distribution; (2) The Participant has obtained all distributions, other than hardship distributions, and all nontaxable (at the time of the loan) loans currently available under all plans maintained by all members of the Controlled Group; (3) The Plan provides that the Participant's Salary Reduction Contributions and Voluntary Employee Contributions will be suspended for at least twelve (12) months after receipt of the hardship distribution or, the Participant, pursuant to a legally enforceable agreement, will suspend his Salary Reduction Contributions and Voluntary Employee Contributions to the Plan and all other plans maintained by the Employer for at least twelve (12) months after receipt of the hardship distribution; and (4) The Plan, and all other plans maintained by the Employer, provide that the Participant may not make Salary Reduction Contributions for the Participant's taxable year immediately following the taxable year of the hardship distribution in excess of the applicable limit under Code Section 402(g) for such next taxable year less the amount of such Participant's Salary Reduction Contributions for the taxable year of the hardship distribution. (c) Notwithstanding the above, distributions from the Participant's Capital Accumulation pursuant to this Section 7.07 shall be limited to the Participant's total Voluntary Contributions and Salary Reduction Contributions as of the date of distribution, reduced by the amount of any previous distributions pursuant to this Section. (d) Any distribution made pursuant to this Section shall be in a lump sum and will satisfy all notice and consent requirements of Code Section 411(a)(11) and the Regulations thereunder. 7.08 DISTRIBUTIONS UNDER QUALIFIED DOMESTIC RELATIONS ORDER. All rights and benefits, including elections, provided to a Participant in this Plan shall be subject to the rights afforded to any "alternate payee" under a "qualified domestic relations order." Furthermore, a distribution to an "alternate payee" shall be permitted if such distribution is authorized by a "qualified domestic relations order", even if the affected Participant has not terminated Employment and has not reached the "earliest retirement age" under the Plan. For the purposes of this Section, "alternate payee", "qualified domestic relations order" and "earliest retirement age" shall have the meaning set forth under Code Section 414(p). 7.09 LIMITATIONS ON BENEFITS. All of the provisions of this Article VII are subject to Section 10.05 hereof, relating to the Trustee's authority to withhold for payment of taxes, and are subject to the rights of any Alternate Payee. 31 36 ARTICLE VIII ADMINISTRATION -------------- 8.01 APPOINTMENT OF PLAN ADMINISTRATOR. Central shall be the Plan Administrator of the Plan. The Plan Administrator shall perform the day-to-day administration of the Plan. 8.02 ADMINISTRATIVE PERSONNEL OF THE PLAN ADMINISTRATOR. The Plan Administrator may employ such agents and such professional, clerical and other administrative personnel as may reasonably be required for the purpose of assisting in the administering of the Plan. Such administrative personnel may operate in individual or in committee form and shall carry out the duties and responsibilities assigned by the Plan Administrator. Expenses necessarily incurred for such purposes shall be paid as provided in Section 11.04 hereof. 8.03 DUTIES AND AUTHORITY OF THE PLAN ADMINISTRATOR. The Plan Administrator is authorized to take such actions as may be necessary to carry out the provisions and purposes of the Plan and shall have the authority to control and manage the operation and administration of the Plan. In order to effectuate the purposes of the Plan, the Plan Administrator shall have the power to construe and interpret the Plan, to supply any omissions therein, to reconcile and correct any errors or inconsistencies, to decide any questions in the administration and application of the Plan, and to make equitable adjustments for any mistakes or errors made in the administration of the Plan; and all such actions or determinations made by the Plan Administrator, and the application of rules and regulations to a particular case or issue by the Plan Administrator, in good faith, shall not be subject to review by anyone, but shall be final, binding and conclusive on all persons interested hereunder. In construing the Plan and in exercising its power under provisions requiring approval, the Plan Administrator shall attempt to ascertain the purpose of the provisions in question and when such purpose is known or reasonably ascertainable, such purpose shall be given effect to the extent feasible. Likewise, the Plan Administrator is authorized to determine all questions with respect to the individual rights of all Participants, former Participants, and their Beneficiaries under this Plan, including, but not limited to, all issues with respect to eligibility, Compensation, Service, valuation of Accounts, allocation of Employer Contributions and Trust earnings, and Retirement or other termination of Service, hardship distributions and shall direct the Trustee concerning the allocation, payment and distribution of all funds held in trust for purposes of the Plan. The Plan Administrator, in the exercise of any discretionary powers hereunder, shall not exercise that discretion so as to discriminate in favor of Employees who are officers, shareholders, or highly compensated Employees. 8.04 CLAIMS PROCEDURE AND OTHER RULES AND REGULATIONS OF THE PLAN ADMINISTRATOR. The Plan Administrator shall have authority to make, and from time to time revise, rules and regulations for the administration of the Plan, including the authority to establish, maintain and communicate to the Employees, a reasonable claims procedure, in accordance with law. Such claims procedure shall provide the manner in which written claims for benefits shall be made, written notice of disposition of a claim shall be made, and written application for appeal of the denial of a claim shall be made. Failure of a Participant to file a claim will not result in a forfeiture of any interest in the Participant's Account. 8.05 PLAN ADMINISTRATOR'S DUTIES. The Plan Administrator shall exercise such authority and responsibility as it deems appropriate to comply with the provisions of federal law and governmental regulations issued thereunder including, but not limited to, keeping records of Participants' Service, 32 37 accrued benefits and the percentage of such benefits which are nonforfeitable under the Plan, notification to Participants, annual registration with the Internal Revenue Service and annual reports to the Department of Labor. The Plan Administrator shall be the designated agent for service of legal process. 8.06 DUTIES AND AUTHORITY OF ADMINISTRATIVE PERSONNEL. Administrative personnel appointed pursuant to Section 8.03 hereof, shall be responsible for such matters as the Plan Administator shall delegate to them by written instrument, including, but not limited to communication to Employees at the direction of the Plan Administator, reports to the Plan Administator involving questions of eligibility and the amount of Compensation of Participants and former Participants, assisting Participants and Beneficiaries in the completion of forms prescribed by the Plan Administator, and maintenance of records concerning former Participants and Beneficiaries. No administrative personnel may make any decision as to Plan policy, interpretations, practices or procedures unless the authority to make such decision has been delegated to them in writing by the Plan Administator and they accept their fiduciary responsibilities in accordance with the provisions of Section 8.09 hereof. All administrative personnel shall, except as provided in the next preceding sentence, perform their allocated function within the policies, interpretations, rules, practices and procedures established by the Plan Administator. 8.07 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY. ERISA requires that certain persons, who are deemed to be "fiduciaries" as defined in Section 3(21)(A) of ERISA, be designated as "Named Fiduciaries" in the Plan. Central and the Trustee are hereby designated Named Fiduciaries. Each Named Fiduciary shall have only the powers, duties and responsibilities specifically allocated to such fiduciary pursuant to the terms of this Plan. Each Named Fiduciary may, by written instrument, allocate some or all of such Named Fiduciary's responsibilities to another fiduciary or designate another person to carry out some or all of such Named Fiduciary's fiduciary responsibilities. Each fiduciary to whom responsibilities are allocated by a Named Fiduciary will be furnished a copy of the Plan and their acceptance of such responsibility will be made by agreeing in writing to act in the capacity designated. No Named Fiduciary shall be liable for an act or omission of any person (who is allocated a fiduciary responsibility) except to the extent that the Named Fiduciary did not act in accordance with the standard contained in Subsection 8.08(b) hereof with respect to the allocation or designation, continuation thereof, or implementation or establishment of the allocation or designation procedures. Any person or group of persons may serve in more than one fiduciary capacity with respect to the Plan. 8.08 ACTION BY FIDUCIARIES. (a) Any action herein permitted or required to be taken by Central shall be by resolution of its board of directors or by written instrument signed by a person, group of persons or committee authorized by resolution of such board of directors as having authority to take such action. Any action herein permitted or required to be taken by the Plan Administator shall be in like manner. (b) Each fiduciary with respect to the Plan shall perform all of such fiduciary's duties and responsibilities and exercise such fiduciary's powers hereunder with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims, and no fiduciary shall be liable for any act or failure to act on such fiduciary's part which conforms to that standard, unless such fiduciary knowingly participates in or knowingly 33 38 undertakes to conceal an act or omission of another fiduciary of the Plan, with the knowledge that such act or omission is a breach of fiduciary responsibility, or knowing of a breach of fiduciary responsibility, such fiduciary fails to make reasonable efforts under the circumstances to remedy the breach, or by failing to carry out such fiduciary's specific responsibilities, in accordance with such standard, such fiduciary has enabled another fiduciary of the Plan to commit a breach. (c) Each fiduciary shall furnish or cause to be furnished to each other fiduciary all information needed for the proper performance of such fiduciary's duties. Each fiduciary warrants that any directions given, information furnished or action taken by such fiduciary shall be in accordance with the provisions of the Plan or the Trust Instrument, as the case may be, authorizing or providing for such direction, information or action. 8.09 EMPLOYMENT OF ADVISORS. A named Fiduciary may appoint such accountants, counsel, and actuaries and other advisors as such Named Fiduciary deems necessary or desirable in connection with the administration of the Plan. A Named Fiduciary shall be entitled to rely, in accordance with the standard contained in Section 8.08(b) hereof, upon, and shall not be liable for any act or failure to act on such Named Fiduciary's part in such reliance or in reliance, in accordance with such standard, on any opinion or reports, which shall be furnished to such Named Fiduciary by any such accountant with respect to accounting matters, counsel with respect to legal matters, or actuary with respect to actuarial matters. 8.10 BOND. The Plan Administrator shall see that the appropriate fiduciaries are bonded as required by federal law or regulation. Except as required by the Board or by state or federal statute, irrespective of this provision, no bond or other security shall be required of any fiduciary. 8.11 INDEMNITY. Central shall indemnify each member of the Board, and the Plan Administator and each individual or entity who is allocated fiduciary responsibility hereunder against any and all claims, loss, damages, expenses, including counsel fees to the extent approved by the Board (which approval shall not be unreasonably withheld), or otherwise provided by law, and liability, including any amounts paid in settlement, with the approval of such Board, arising from any action or failure to act, except when the same is judicially determined to be due to the fraud, recklessness, or willful or intentional misconduct of such member. 8.12 APPLICABLE LAW. The execution, construction, administration and enforcement of the Plan, the Trust Instrument and the Trust Fund shall be governed by the laws of the State of Texas, to the extent not preempted by federal law. 8.13 QUALIFIED DOMESTIC RELATIONS ORDERS. The Plan Administator shall establish a written procedure for determining whether a domestic relations order is a Qualified Domestic Relations Order and shall see that Qualified Domestic Relations Orders pertaining to this Plan are complied with. 34 39 ARTICLE IX MISCELLANEOUS PROVISIONS RESPECTING PARTICIPANTS ------------------------------------------------ 9.01 PARTICIPANTS TO FURNISH REQUIRED INFORMATION. (a) Each Participant shall furnish to the Plan Administator such information as the Plan Administator considers necessary or desirable for purposes of the day-to-day operations of the Plan, and the provisions of the Plan respecting any payments hereunder are conditional upon the Participant's furnishing promptly such true, full and complete information as the Plan Administator may reasonably request. (b) Each Participant shall submit proof of such Participant's age and marital status to the Plan Administator at such time as required by the Plan Administator. The Plan Administator shall, if such proof of age and marital status are not submitted as required, use as conclusive evidence thereof, such information as is deemed by it to be reliable, regardless of the source of such information. Any adjustment required by reason of lack of proof or the misstatement of the age of persons entitled to benefits hereunder, by the Participant or otherwise, shall be in such manner as the Plan Administator deems equitable. (c) Any notice or information which according to the terms of the Plan or the rules of the Plan Administator must be filed with Central, shall be deemed so filed if addressed and either delivered in person or mailed, postage fully prepaid, to the Plan Administator. If mailed, any such notice or information shall be addressed as follows: CENTRAL FREIGHT LINES INC. P. O. Box 2638 Waco, Texas 76702-2638 ATTN: Central Freight Lines Employee Plans Committee Whenever a provision herein requires that a Participant (or the Participant's Beneficiary) give notice to the Plan Administator within a specified number of days or by a certain date, and the last day of such period, or such date, falls on a Saturday, Sunday or corporate holiday, the Participant (or the Participant's Beneficiary) will be deemed in compliance with such provision if notice is delivered in person to the Plan Administator or is mailed, properly addressed, postage prepaid, and postmarked on or before the business day next following such Saturday, Sunday or corporate holiday. The Plan Administator may, in its sole discretion, modify or waive any specified requirement notice; provided, however, that such modification or waiver must be administratively feasible, must be in the best interest of the Participant, and must be made on the basis of rules of the Plan Administator which are applied uniformly to all Participants. 9.02 BENEFICIARIES. (a) Subject to the provisions of Subsection 9.02(b) hereof, each Participant may, on a form provided for that purpose, signed and filed with the Plan Administator at any time prior to complete distribution of such Participant's Capital Accumulation, designate a Beneficiary or Beneficiaries, including such Participant's estate, to receive the benefit, if any, which may be payable, in event of such Participant's death, pursuant to any of the provisions of the Plan, and each such designation may be revoked by such Participant by signing and filing with the Plan Administator a new designation of beneficiary form prior to such complete distribution. Subject to Subsection 9.02(b) hereof, if a deceased Participant failed to name a Beneficiary in the manner above prescribed, or subject to Section 9.03, if the Beneficiary or Beneficiaries named by a deceased Participant predeceases the Participant, the amount payable with respect 35 40 to such Participant pursuant to Section 7.01 hereof, if any, may, subject to the adjustment otherwise provided hereunder, be paid, in the discretion of the Plan Administator, to (i) the Participant's spouse, or if none, (ii) all or any one or more of the persons comprising the group consisting of the Participant's lineal descendants, the Participant's ancestors, or the Participant's heirs at law, and the Plan Administator may pay the entire amount to any member of such group or apportion such amount among any two or more of them in such shares as the Plan Administator, in its sole discretion, shall determine, or (iii) the estate of such deceased Participant. Any payment made to any person pursuant to the power and discretion conferred upon the Plan Administator by the preceding sentence shall operate as a complete discharge of all obligations under the Plan in respect of such deceased Participant and shall not be subject to review by anyone, but shall be final, binding and conclusive on all persons ever interested hereunder. (b) The provisions of this Subsection 9.02(b) shall apply to all married Participants. The amount payable with respect to a Participant pursuant to Section 7.01 hereof, if any, on account of the Participant's death shall be paid to the Participant's surviving spouse, unless the surviving spouse has irrevocably consented to the designation of a Beneficiary other than the spouse (and to any change in the designation of Beneficiary involving a Beneficiary other than the spouse, unless the spouse's consent expressly permits the Participant to change the designation of Beneficiary without further consent of the spouse) in a writing which acknowledges the effect of the consent and which is witnessed by a notary public. If such spousal consent is obtained or if such spousal consent may not be obtained because the spouse cannot be located, or if such spouse does not survive the Participant, then the provisions of Subsection 9.02(a) and Section 9.03 hereof shall apply. 9.03 CONTINGENT BENEFICIARIES. In the event of the death, prior to the complete payment of the amount payable with respect to a Participant pursuant to Section 7.02 hereof, of a Beneficiary who survives the Participant, the balance of such amount shall be payable to the contingent Beneficiary designated by the Participant to receive such balance, or if no person was so named, then to a person designated by the Beneficiary of the deceased Participant to receive such balance; provided, however, that if no person so designated be living upon the occurrence of such contingency, then such balance shall be payable, in the discretion of the Plan Administator, to either (i) all or any one or more of the persons comprising the group consisting of the Participant's lineal descendants, the Participant's ancestors or the Participant's heirs at law, or (ii) the estate of the Participant. Any payment made to any person pursuant to the power and discretion conferred upon the Plan Administator by the preceding sentence shall operate as a complete discharge of all obligations under the Plan in respect to such deceased Beneficiary and shall not be subject to review by anyone, but shall be final, binding and conclusive on all persons ever interested hereunder. 9.04 PARTICIPANTS' RIGHTS IN TRUST FUND. No Participant or other person shall have any right, title or interest in, to or under the Trust Fund, or any part of the assets thereof, except and to the extent expressly provided in the Plan. 9.05 RESTRICTIONS ON ASSIGNMENT. The benefits provided hereunder are intended for the personal security of persons entitled to payment under the Plan, and are not subject in any manner to the debts or obligations of the persons to whom they are payable. The interest of a Participant or such Participant's Beneficiary or Beneficiaries may not be sold, transferred, assigned or encumbered 36 41 in any manner, either voluntarily or involuntarily, and any attempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be null and void; neither shall the Trust Fund nor any benefits thereunder or hereunder be liable for or subject to the debts, contracts, liabilities, engagements or torts of any person to whom such benefits or funds are payable, nor shall they be subject to garnishment, attachment or other legal or equitable process nor shall they be an asset in bankruptcy. All of the provisions of this Section 9.05, however, are subject to Sections 9.06 and 10.05 hereof. This Section 9.05 shall not apply to the extent benefits are transferable or assignable pursuant to a Qualified Domestic Relations Order. 9.06 BENEFITS PAYABLE TO INCOMPETENTS. Whenever and so often as any person entitled to payments hereunder shall be under a legal disability, or in the sole judgment of the Plan Administator shall otherwise be unable to apply such payments in furtherance of such person's own interests and advantage, the Plan Administator, in the exercise of its discretion, may direct all or any portion of such payments to be made in any one or more of the following ways: (i) directly to such person; (ii) to the guardian of his or her person or of such person's estate, even though appointed by a court other than a Texas court; (iii) to such person's spouse or to any other person, to be expended for such person's benefit; (iv) to a custodian under any applicable Uniform Gifts to Minors Act; or (v) by the Plan Administator itself, receiving and expending, or directing the expenditure of the same for the benefit of such incompetent person. If the Plan Administator wishes to direct payments to a custodian under any applicable Uniform Gifts to Minors Act, it may as a precondition to the commencement of such payments require an opinion of counsel for the ward or other person seeking the custodial distribution that such distribution is authorized under said Uniform Gifts to Minors Act. The decision of the Plan Administator will, in each case, be final, binding and conclusive upon all persons ever interested hereunder, and except in the case of clause (v) above, the Plan Administator shall not be obliged to see to the proper application or expenditure of any payments so made. Any payment made pursuant to the power herein conferred upon the Plan Administator shall operate as a complete discharge of the obligations of the Trustee and of the Plan Administator, to the extent of amounts so paid. 9.07 CONDITIONS OF EMPLOYMENT NOT AFFECTED BY PLAN. Neither the Plan nor the Trust nor the Trust Instrument shall ever confer on any Employee, including any Participant, any right to be retained in the Service of Central, and nothing herein or in the Trust Instrument contained shall ever be construed as in any way limiting or restricting the right of Central to discharge any Employee, regardless of whether such Employee be a Participant, or from time to time to change such Employee's position or the basis or amount of such Employee's compensation. 9.08 ADDRESS FOR MAILING OF BENEFITS. (a) Each Participant and other person entitled to benefits hereunder shall file with the Plan Administator from time to time in writing such Participant's post office address and each change of address. Any check representing payment hereunder and any communication addressed to a Participant, an Employee, a former Employee or Beneficiary, at such person's last address filed with the Plan Administator, or if no such address has been filed, then at such person's last address as indicated on the records of the Employer, shall be deemed to have been delivered to such person on the date on which such check or communication is deposited, postage prepaid, in the United States mail. 37 42 (b) If the Plan Administator, for any reason, is in doubt as to whether payments are being received by the person entitled thereto, it shall, by certified mail, return receipt requested, addressed to the person concerned, at his address last known to the Plan Administator, notify such person that all unmailed and future payments shall be henceforth withheld until he provides the Plan Administator with evidence of his continued life and his proper mailing address. 9.09 UNCLAIMED ACCOUNT PROCEDURE. Neither the Trustee nor the Plan Administator shall be obliged to search for, or ascertain the whereabouts of any Participant or Beneficiary. The Plan Administator shall notify the Participant or Beneficiary that such Participant or Beneficiary is entitled to a distribution under this Plan. Such notice shall be in writing, at such Participant's or Beneficiary's last known address, and shall quote the provisions of this Subsection. Any distribution or payment which is not claimed by the person entitled thereto within a period of three (3) full years after such person is entitled thereto, or such shorter period as may be necessary to prevent escheat under state escheat laws, shall be forfeited. Such forfeited amounts shall be added to Forfeitures and reallocated as herein provided. Should such person make a claim for such forfeited benefit which is approved by the Plan Administator, such benefit shall be reinstated by Central immediately contributing to the Plan an amount equal to the amount previously forfeited (but without interest on such amount for the period from the date of such Forfeiture to the date of such contribution). Such special contribution shall be specially allocated for the benefit of such Participant or Beneficiary. Immediately upon receipt of such contribution and allocation to such Participant or Beneficiary, the Plan Administator shall instruct the Trustee to distribute in a lump sum, directly to such Participant or Beneficiary, the amount of such contribution specially allocated to such Participant or Beneficiary. ARTICLE X TRUST FUND AND THE TRUSTEE -------------------------- 10.01 THE TRUST FUND AND ITS PURPOSE. A Trust Fund known as the Central Freight Lines Employees Profit Sharing and Retirement Trust has been created and will be maintained for the purposes of the Plan and the moneys thereof will be invested in accordance with the terms of the Trust Instrument which forms a part of the Plan. All Contributions will be paid into the Trust Fund, and all benefits under the Plan will be paid from the Trust Fund. 10.02 TRUSTEE'S DUTIES GOVERNED BY TRUST INSTRUMENT. The Trustee's obligations, duties and responsibilities are governed solely by the terms of the Trust Instrument, reference to which is hereby made for all purposes. 10.03 BENEFITS SUPPORTED ONLY BY THE TRUST. Any person having any claim under the Plan will look solely to the assets of the Trust Fund for satisfaction. In no event will any Employer or any of its officers, Employees, agents, members of its board of directors, the Trustee, any successor trustee, or any member of the Plan Administator, be liable in their individual capacities to any person whomsoever, under the provisions of the Plan or Trust or of the Trust Instrument, absent a breach of fiduciary responsibility as set out in Section 8.10 hereof. 10.04 TRUST FUND APPLICABLE ONLY TO PAYMENT OF BENEFITS. The Trust Fund will be used and applied only in accordance with the provisions of the Plan to provide the benefits thereof, except as 38 43 provided in Subsection 5.04(a)(ii), Section 11.01 and Section 11.04 (regarding payment of administrative expenses), and no part of the corpus or income of the Trust Fund will be used for, or diverted to, purposes other than for the exclusive benefit of Participants and other persons thereunder entitled to benefits. 10.05 WITHHOLDING FOR AND PAYMENT OF TAXES. If any assets of the Trust Fund, or any benefits payable under the Plan by the Trustee, shall become liable for the payment of any estate, inheritance, income, or other tax, charge or assessment, which in the Trustee's or the Plan Administrator's opinion, the Trustee shall or may be required to pay, the Trustee shall have full power and authority to pay or withhold such tax, charge or assessment out of any moneys or other property in Trustee's hands for the account of the person whose interests hereunder are liable for such tax, but, except as provided below with respect to withholding required under Section 3405 of the Code, with respect to such payments, at least ten (10) days prior to making any such payment, the Trustee shall notify the Plan Administator of Trustee's intention to make such payment and, with respect to such withholding, the Trustee shall notify the Plan Administator of the amount withheld within ten (10) days of payment of benefits under the Plan. The Trustee also, prior to making any payment to any Beneficiary hereunder, may require such releases or other documents from any lawful taxing authority and may require such indemnity from such Beneficiary as Trustee shall deem necessary for Trustee's protection. The Trust shall provide any notices required by Code Section 3405 with respect to federal income tax withholding from distributions hereunder, and shall withhold and pay any federal income tax required under Code Section 3405, upon receipt of proper instructions from the Plan Administator. ARTICLE XI MISCELLANEOUS PROVISIONS RESPECTING THE PLAN -------------------------------------------- 11.01 EMPLOYER'S CONTRIBUTION IRREVOCABLE. Central shall have no right, title or interest in the Trust Fund or in any part thereof, and no Contribution made thereto shall ever revert to Central except as provided in Subsection 5.04(a)(ii) and as provided herein. The adoption of this Amendment and Restatement and the continuance of the Plan are contingent upon and subject to obtaining a determination by the Internal Revenue Service that the Plan continues to qualify under the provisions of Section 401(a) of the Code, and that this Trust entered into, and made a part thereof, will continue to be exempt from tax under the provisions of Section 501(a) of the Code, so as to establish the deductibility for income tax purposes under Section 404(a) of the Code, of the contributions made by Central. Central will promptly make every reasonable effort to cause the Plan to receive such determination; but should it fail to secure such determination, it is agreed and understood that Central may recover contributions, or any investment into which they have been converted, plus any gain and minus any loss thereon, if the Plan Administator directs the Trustee to return such amounts. If the Plan Administator in good faith determines that (a) a contribution was made by reason of a mistake of fact, or (b) a contribution is deductible under Section 404 of the Code, but the Internal Revenue Service disallows such deduction, the amount of the excess contribution, less losses attributable thereto may, upon direction of the Plan Administator, be returned to Central. All payments of returned contributions under this Section shall be made within one (1) year from the date of denial of qualification of the Plan, the payment of such mistaken contribution, or the disallowance by the Internal Revenue Service of the deduction, whichever is applicable. The amount of the excess contribution shall be the excess of (1) the amount contributed over (2) the amount that would have been contributed had there not occurred a mistake of fact or had the deduction not been disallowed. Furthermore, if the 39 44 withdrawal of the amount attributable to the mistaken contribution would cause the balance of the Account of a Participant to be reduced to an amount which is less than the balance which would have been in said Account had the mistaken amount not been contributed, then the amount to be returned to Central under this Section will be reduced so as to avoid any such reduction. Earnings attributable to such excess contribution shall not be returned, and, as aforesaid, losses shall reduce the amount otherwise returnable hereunder to Central. 11.02 ABSENCE OF RESPONSIBILITY. Neither Central nor any of the officers, Employees, members of the Board nor agents of Central or any Employer, nor the Trustee, nor the Plan Administator, guarantee in any manner the payment of benefits hereunder. 11.03 AMENDMENT OF THE PLAN. When authorized by resolution of its Board, the Plan may be amended by Central at any time and from time to time in any respect whatever, by instrument supplemental hereto, specifying such amendment, amendments, or by restatement of the Plan, subject only to the following limitations: (a) Under no condition shall such amendment, amendments, or restatements result in or permit the return or repayment to Central of any property held or acquired by the Trustee or the proceeds thereof, or result in, or permit the distribution of, any such property for the benefit of anyone other than the Participants and their Beneficiaries or estate except to the extent provided by Subsection 5.04(a)(ii), Section 11.01, Section 11.04 hereof, with respect to expenses of administration, and this Section 11.03. (b) Under no condition shall such amendment, amendments, or restatements increase the duties or responsibilities, or decrease the compensation, privileges, and immunities of the Trustee without the Trustee's written consent. (c) Under no condition shall such amendment change the vesting schedule to one which would result in the Capital Accumulation (determined as of the later of the date of the adoption of the amendment or of the effective date of the amendment) of any Participant being less than such nonforfeitable percentage computed under the Plan without regard to such amendment; no amendment shall change the vesting schedule unless each Participant with three (3) or more Years of Service is permitted to elect, within the election period described below, to have his nonforfeitable percentage computed under the Plan without regard to the amendment. The election period described herein shall begin no later than the date upon which the amendment is adopted and shall end no later than the latest of the following dates: (1) the date which is sixty (60) days after the day the amendment is adopted; (2) the date which is sixty (60) days after the day the amendment becomes effective; or (3) the date which is sixty (60) days after the day the Participant is issued a written notice of the amendment by Central. In the event of an amendment, each other Employer will be deemed to have consented to and adopted the amendment unless an Employer notifies Central and the Plan Administator to the contrary in writing within thirty (30) days after receipt of a copy of the amendment, in which case the rejection if not acquiesced in by Central will constitute a withdrawal from this Plan and its related Trust by that Employer. 40 45 Subject to the foregoing limitations, any amendment or restatement may be made retroactive which, in the judgment of Central, is necessary or advisable so as to qualify the Plan or Trust for exemption from taxes based on income and so as to permit the Contributions made thereto to be deducted for the purposes of taxes based on income or which, in the judgment of Central, is necessary or advisable for any other reason, provided that such retroactive amendment does not deprive a Participant without such Participant's consent of a right to receive benefits hereunder which have already fully vested and matured in such Participant. 11.04 EXPENSES OF ADMINISTRATION. Except to the extent paid by Central, the Trustee shall pay all expenses incurred in the administration of the Plan, including expenses of the Plan Administator and expenses and compensation of the Trustee and the expenses of counsel. The Trustee, as directed by the Plan Administator, shall reimburse the Employer for expenses properly and actually paid or incurred on behalf of the Plan, including those for services rendered to the Plan by the Employer's Employees, other than those Employees who are fiduciaries with respect to the Plan. The Plan Administator may contract or make reasonable arrangements with the Employer for office space, or legal, accounting, or other services necessary for operation of the Plan, if no more than reasonable compensation is paid therefor. Notwithstanding the preceding provisions of this Section 11.04, brokerage fees, commissions, stock transfer taxes and other charges and expenses incurred in connection with the purchase, sale or distribution of securities or property, and direct expenses incurred in the production and collection of income, shall be paid from the Trust Fund by the Trustee. 11.05 NOTICE TO EMPLOYEES. Notice of the Plan and of any amendment thereto, of eligibility of each Employee, and notice of such other matters as may be required by law or this instrument, shall be given by Central to the Employees in such form as the Plan Administator may deem appropriate and reasonable, and in conformity to lawful requirements. 11.06 AGREEMENT OF PARTICIPANTS. Each Participant, by becoming such, for himself or herself, and such Participant's heirs, executors, administrators, legal representatives and Beneficiaries, ipso facto, approves and agrees to be bound by the provisions of this Plan and the Trust Instrument. 11.07 ACTION BY EMPLOYER. Any written action herein permitted or required to be taken by Central shall be by resolution of its board of directors or by written instrument executed by a person or group of persons who has been authorized by resolution of its board of directors as having authority to take such action. 11.08 MERGER OF PLANS. In the case of any merger or consolidation of this Plan or the Trust Fund with, or transfer of the assets or liabilities of the Plan or Trust Fund to any other plan, the terms of such merger, consolidation or transfer shall be such that each Participant would receive (in the event of termination of this Plan or its successor immediately thereafter) a benefit which is not less than such Participant would have received in the event of termination of this Plan immediately before such merger, consolidation or transfer. 41 46 ARTICLE XII TERMINATION OF PLAN ------------------- 12.01 TERMINATION OF PLAN. The Plan may be terminated in its entirety at any time by Central by resolution of its Board, duly certified by an officer of Central authorized by its Board to certify such resolution specifying such termination. Such resolution shall be delivered to Central and to the Trustee. Such termination may be so made without consent being obtained from the Trustee, the Plan Administator, the Participants or their Beneficiaries, Employees or any other interested person. The Plan shall automatically terminate upon dissolution of Central unless provision is specifically made by its successors, if any, for the continuation of the Plan. 12.02 DISTRIBUTION ON TERMINATION. Upon termination of the Plan as provided in Section 12.01 hereof, the Plan Administator shall, as soon as practicable, notify each Participant of such termination and of the fact that all assets then in the hands of the Trustee will be distributed to each Participant in the allotted proportions with full vesting in the Participants of the Contributions paid to the Trust Fund. The Plan Administator shall, as soon as feasible, advise the Trustee of the termination of the Plan, and the Trustee shall proceed, as rapidly as feasible, to make the appropriate distribution to each Participant, less any amounts necessary or proper to pay the expenses of such distribution and liquidation and subject to Sections 7.09, 9.06 and 10.05 hereof. Upon completion of liquidation and distribution of the assets of the Trust to the Participants, the Trustee shall thereby complete the Trustee's duties, and the Trust shall terminate. 12.03 CONTINUANCE OF PLAN BY SUCCESSOR. Subject to the approval of the Board, in the event of the consolidation or merger of Central, or the sale by Central of its assets, the resulting successor person or persons, firm or corporation may continue this Plan by delivery of written notice adopting the Plan to the Plan Administator, Board and the Trustee, and by executing a proper supplemental Trust Agreement with the Trustee. If, within one hundred eighty (180) days from the effective date of such consolidation, merger or sale of assets, such successor does not adopt this Plan, as provided herein, it shall automatically be terminated and the Trust Fund shall be distributed exclusively to the Participants or their Beneficiaries in the manner provided for in this Plan for terminations in general. 12.04 DISCONTINUANCE OF CONTRIBUTIONS. In the event that the board of directors of Central decides that it is impossible or inadvisable to continue to make its Contributions as herein provided, said board shall have the power to direct a discontinuance of the Employer's Contribution to the Trust Fund by appropriate resolution. After the date specified in a resolution of discontinuance of Contributions, Central shall not be required to make further Contributions under the Plan. Nevertheless, upon any such discontinuance, the Plan and Trust shall remain in existence, and all provisions, other than the provisions relating to Contributions, shall remain in effect as to Central. Upon the complete discontinuance of Contributions under the Plan which is merely a temporary cessation of Employer Contributions, all amounts credited to the Participants' Accounts, shall upon such discontinuance, become fully vested and nonforfeitable. Any previously unallocated funds at such time shall be allocated upon such discontinuance in the manner prescribed in Article V hereof, as appropriate. In all other respects, however, the Participants shall be treated as though the Plan were in full force and effect. 42 47 12.05 PARTIAL TERMINATION. Upon a partial termination of the Plan, the Plan Administator shall notify each affected Participant. The rights of each Participant and Beneficiary affected by such partial termination to the amounts credited to his Account shall be fully vested and nonforfeitable as of the date of such partial termination. Such amounts shall either be distributed to such affected Participants and Beneficiaries, as in the case of a complete termination of the Plan, under Section 12.02 hereof, or held, as in the case of a discontinuance of Contributions, under Section 12.04 hereof, as directed by the Plan Administator. ARTICLE XIII TOP-HEAVY PROVISIONS -------------------- 13.01 DEFINITIONS. For purposes of this Article, the following expressions shall have the meanings respectively indicated: (a) "Determination Date" shall mean for purposes of determining whether a plan is top-heavy for a particular Plan Year, the last day of the preceding Plan Year. (b) "Key Employee" shall mean any Employee or former Employee of Central (including a Beneficiary of any deceased Key Employee) who is a key employee of Central as defined by Section 416(i) of the Code. (c) "Non-Key Employee" shall mean any Employee of Central (including a Beneficiary of any deceased Non-Key Employee) who is not a Key Employee. (d) "Top-Heavy Plan" shall mean for any Plan Year, a plan under which, as of the Determination Date, the aggregate of the accounts of Key Employees under the plan exceeds sixty percent (60%) of the aggregate of the accounts of all employees under such plan or, in the case of a defined benefit plan, the present value of the cumulative accrued benefits under the plan for Key Employees exceeds sixty percent (60%) of the present value of the cumulative accrued benefits under the plan for all employees, all as determined in accordance with the provisions of Code Section 416(9). The determination of whether a plan is top-heavy shall be made after aggregating all other plans of Central and Controlled Group Members in the Required Aggregation Group and after aggregating any other such plan of Central or an affiliate in the Permissive Aggregation Group if such permissive aggregation thereby eliminates the top heavy status of any plan within such Permissive Aggregation Group. Except as set forth below, in determining the present value of the cumulative accrued benefit of any Employee or the amount of any account of any Employee, the present value or amount of account shall include any plan distributions made during the five (5) year period ending on the Determination Date, including distributions upon plan termination if the plan would have been in the Required Aggregation Group if it had not been terminated. Notwithstanding the preceding sentence, the accrued benefit or account balance for any former Participant who has not performed any services for Central for the five (5) year period preceding the last Determination Date shall not be included in the determination set forth in the preceding sentence. In determining whether a plan is top-heavy, if any individual is a Non-Key Employee with respect to any plan for any plan year, but such employee was a Key Employee with respect to such plan for any prior plan 44 48 year, any accrued benefit for such individual (and the account of such individual) shall not be taken into account. In determining whether a plan is top heavy, the present value of accrued benefits shall be determined on the basis of an interest rate of five percent (5%) and using a unisex mortality assumption that is ninety percent (90%) male and ten percent (10%) female, based on the 1971 Group Annuity Mortality Table, and the same actuarial assumptions shall be used for all defined benefit plans that are included in an aggregation group. The accrued benefit of each Non-Key Employee shall be determined by using the method used for benefit accrual under all plans of Central, or if there is no such method, no more rapidly than under the slowest method of benefit accrual permitted under Code Section 411(b)(1) (C). Only those plans of Central in which Determination Dates fall within the same calendar year shall be aggregated in order to determine whether such plans are Top-Heavy Plans. (e) "Super Top-Heavy Plan" means for any plan year, a plan that, as of the Determination Date, would meet the test specified above for being a Top-Heavy Plan if ninety percent (90%) were substituted for sixty percent (60%) in each place it appears in Subsection 13.01(d) hereof. (f) "Required Aggregation Group" means each plan of Central in which a Key Employee is a participant, and each other plan of Central which enables any plan in which a Key Employee participates to meet the requirements of Code Section 401(a)(4) or 410. In the case of a Required Aggregation Group, each plan in the group will be considered a Top-Heavy Plan if the Required Aggregation Group is a Top-Heavy Group. No plan in the Required Aggregation Group will be considered a Top-Heavy Plan if the Required Aggregation Group is not a Top-Heavy Group. (g) "Permissive Aggregation Group" includes the Required Aggregation Group and any other plan not required to be included in the Required Aggregation Group, if the resulting group, taken as a whole, would continue to satisfy the provisions of Code Section 401(a)(4) and 410. In the case of a Permissive Aggregation Group, only a plan that is part of the Required Aggregation Group will be considered a Top-Heavy Plan if the Permissive Aggregation Group is a Top-Heavy Group. No plan in the Permissive Aggregation Group will be considered a Top-Heavy Plan if the Permissive Aggregation Group is not a Top-Heavy Group. (h) "Top-Heavy Group" means a Required or Permissive Aggregation Group, if applicable, in which, as of the Determination Date, the sum of the present value of the accumulated accrued benefits of Key Employees under all defined benefit plans included in the group, and the aggregate of the accounts of Key Employees under all defined contribution plans included in the group, exceeds sixty percent (60%) of a similar sum determined for all Participants. (i) "Valuation Date" shall mean for purposes of determining the value of plan accounts under this Section 13.01 the same date as the Determination Date. 13.02 APPLICATION OF TOP-HEAVY RULES. Notwithstanding anything contained herein to the contrary, in the event that this Plan is a Top-Heavy Plan, as determined pursuant to Code Section 416 and this Article XIII, for any Plan Year, the provisions of this Article XIII shall become operative with respect to such Plan Year. 44 49 13.03 MINIMUM ALLOCATION REQUIREMENT. Notwithstanding the provisions of Section 5.02(b) hereof, relating to allocations of Employer Contributions, for any Plan Year in which this Plan is a Top-Heavy Plan, the Plan Administator shall cause a minimum allocation of Contributions to be made for such Plan Year to the Employer Contribution Account of each Non-Key Employee (who is a Plan Participant who has not separated from Service at the end of such Plan Year and who would not otherwise be entitled to an allocation of Contributions equal to or in excess of the amount determined under this Section 13.03); the balance of Contributions shall be allocated in accordance with such Section, taking into account any allocation under this Section. The amount of such minimum allocation shall be equal to the lesser of (a) and (b) where: (a) is an amount equal to three percent (3%) of such Non-Key Employee's Remuneration, and (b) is an amount equal to the largest percentage of Remuneration of all allocations of Contributions to be made hereunder for such Plan Year with respect to any Key Employee. Notwithstanding anything herein to the contrary, in any Plan Year in which a Non-Key Employee is a Participant in both this Plan and a defined benefit pension plan of Central, and both such plans are Top-Heavy Plans, Central shall not be required to provide a Non-Key Employee with both the full separate minimum defined benefit plan benefit and the full separate defined contribution plan allocations. Therefore, for Non-Key Employees who are participating in a defined benefit plan maintained by Central and the minimum benefits under Internal Revenue Code Section 416(c)(2) are accruing to a Non-Key Employee under such plan, no minimum allocation shall be made under the Plan on behalf of the Non-Key Employee. 13.04 EFFECT ON ALLOCATION LIMITATIONS. In the event Section 13.02 above is applicable, then the multiplier of 1.25 in Subsections 5.03(b)(i) and 5.03(b)(ii) hereof shall be reduced to 1.0 unless (a) All plans required to be aggregated and any other plans which may be permissively aggregated pursuant to Code Section 416(9) are not Super Top-Heavy, and (b) The Account of each Non-Key Employee who is a Participant receives an extra contribution allocation (in addition to the minimum contribution allocation set forth above) equal to not less than one percent (1%) of such Non-Key Employee's Compensation. 13.05 Effect on Vesting. Notwithstanding the provisions of Section 7.02 hereof, for any Plan Year in which this Plan is a Top-Heavy Plan, a Participant's Capital Accumulation shall be a percentage of his Account determined on the basis of the Participant's number of years of Credited Service, as defined in Section 2.05 hereof, according to the following schedule: 45 50
Years of Credited Service Nonforfeitable Percentage ------------------------- ------------------------- Less than 2 0% 2 20% 3 40% 4 60% 5 80% 6 100%
Notwithstanding the foregoing, if the Plan shall cease to be a Top-Heavy Plan in any subsequent Plan Year, the Board of Directors of Central shall direct the Plan Administator either to (a) continue to apply the above vesting schedule or (b) revert to the vesting schedule previously applicable under Section 7.02 hereof. Reversion to said vesting schedule shall be treated as a Plan amendment and shall be subject to the provisions of Subsection 11.03(c) hereof. IN WITNESS WHEREOF, Central has caused this instrument to be executed, sealed and attested, this 20th day of September, 1994, and effective as of the dates stated above. CENTRAL FREIGHT LINES INC. By: /s/ C. Tom Clowe ----------------------------- C. Tom Clowe, President ATTEST: /s/ Douglas E. Quicksall - -------------------------------- Asst. Secretary 46 EX-4.J 9 EXHIBIT 4.J 1 Exhibit 4.4(j) AMENDMENT NO. 1 TO THE CENTRAL FREIGHT LINES, INC. EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN ------------------------ This Amendment No. 1 is made and executed this 1st day of April, 1996, generally effective as of January 1, 1995, by Central Freight Lines, Inc. (hereinafter referred to as the "Company"). W I T N E S S E T H: -------------------- WHEREAS, the Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan (the "Plan") was amended and restated in its entirety generally effective as of January 1, 1994; WHEREAS, Section 11.03 of the Plan sets forth the provisions whereby such Plan may be amended; and WHEREAS, the Company desires to amend the Plan. NOW, THEREFORE, in consideration of the premises, the Company amends the Plan as follows: 1. The first paragraph of the Preamble to the Plan is amended by adding the following sentence to the end thereof: "The Plan is also intended to meet the requirements of Section 404(c) of ERISA." 2 2 2. The second paragraph of the Preamble to the Plan is deleted in its entirety and replaced with the following: "CENTRAL FREIGHT LINES, INC. has entered into a Trust Agreement with VANGUARD FIDUCIARY TRUST COMPANY and a Special Trust Agreement with TEXAS NATIONAL BANK, N.A. to which contributions shall be made and from which benefits shall be paid in accordance with the terms and conditions of the Plan." 3. A new Section 2.01(b) is added to the Plan immediately following Section 2.01(a) to read as follows and subsequent Subsections are renumbered accordingly: "(b) 'ALLOCATION DATE' means December 31 of each Plan Year." 4. Section 2.01(j) of the Plan (as renumbered by Section 3 of this Amendment) is deleted in its entirety and replaced with the following: "(j) 'CONTROLLED GROUP MEMBER' means Central and any and all other corporations, trades and/or businesses, the employees of which, together with Employees of Central, are required by Code Section 414 to be treated as if they were employed by a single employer." 5. Section 2.01(ii) of the Plan (as renumbered by Section 3 of this Amendment) is deleted and replaced with the following: "(ii) 'VALUATION DATE' means each date on which the New York Stock Exchange is open for business. See also Subsection 13.01(i) hereof." 3 3 6. Section 2.05 of the Plan is amended by adding the following sentence after the second sentence thereof: "For purposes of this Section 2.05 only, the term Employee shall also include Leased Employees." 7. Section 4.02(a)(2) of the Plan is amended by adding the following sentence at the end thereof: "The amount of any excess Salary Reduction Contributions to be distributed pursuant to this Subsection shall be reduced by the amount of Salary Reduction Contributions, if any, which exceeded the limits of Code Section 401(k)(3) and Section 4.02(a)(4) of the Plan and were previously distributed to the Participant for the Plan Year beginning with or within the taxable year or were recharacterized as a Voluntary Employee Contribution pursuant to Section 4.02(a)(5)(a)." 8. The last sentence of Section 4.02(a)(4)(b)(1) of the Plan is deleted and replaced with the following: "For purposes of determining the 'Actual Deferral Percentage' of a Highly Compensated Participant who is either a five-percent owner (as defined in Code Section 416(i)(1)) or one of the ten (10) most Highly Compensated Participants, the Salary Reduction Contribution and Compensation of such Highly Compensated Participant shall include the Salary Reduction Contributions and Compensation of Family Members, and such affected Family Members shall be disregarded in determining the 'Actual Deferral Percentage' for the Non-Highly Compensated Participants group." 9. Section 4.02(a)(5)(a) of the Plan is amended by adding the following sentence after the first sentence therein: "The amount of any excess Salary Reduction Contributions to be distributed or recharacterized pursuant to this Subsection shall be reduced by the amount of Salary Reduction Contributions, if any, which exceeded the limits of Code Section 402(g) and Section 4.02(a)(2) of the Plan and were 4 4 previously distributed to the Participant for the Participant's taxable year ending with or within the Plan Year in accordance with Code Section 401(g)(2)." 10. A new Section 4.02(a)(5)(c) is added to the Plan as follows: "(c) Notwithstanding the foregoing provisions of this Subsection, in the case of a Highly Compensated Participant whose 'Actual Deferral Percentage' is determined under the family aggregation rules set forth in Subsection 4.02(a)(4)(b)(1) of this Section, the determination and correction of the amount of excess Salary Reduction Contributions (and any income allocable to such portion) shall be made by reducing the 'Actual Deferral Percentage' in accordance with the 'leveling' method described in Regulation 1.401(k)-1(f)(2) and allocating the excess Salary Reduction Contributions (and any income allocable to such portion) for the family group among its members in proportion to the Salary Reduction Contributions of each member of the family group that is combined to determine the 'Actual Deferral Percentage'." 11. The second sentence of Section 5.02(a) of the Plan is deleted in its entirety and replaced with the following: "These records shall consist of an Employer Contribution Account to which Employer Contributions, net income (or loss) attributable to Employer Contributions and forfeitures allocated to that Participant are credited, and an Employee Contribution Account which shall consist of a separate Voluntary Contributions Sub-account to which Voluntary Contributions and net income (or loss) attributable thereto are credited and a separate Salary Reduction Contributions Sub- account to which Salary Reduction Contributions and net income (or loss) attributable thereto are credited." 5 5 12. Section 5.02(b)(ii) of the Plan is deleted in its entirety and replaced with the following: "(ii) INCOME AND LOSS OF THE TRUST FUND. The net income (or loss) of all assets in the Trust Fund, other than real estate, will be determined as of each Valuation Date. Such net income (or loss) shall be allocated to the appropriate Accounts in proportion to the weighted average balance of said Accounts as of that Valuation Date to the weighted average balance of all such Accounts as of the same date. The net income of all real estate in the Trust Fund will be determined as of the Allocation Date. Such net income (or loss) shall be allocated to the appropriate Accounts in proportion to the weighted average balance of said Accounts as of that Allocation Date to the weighted average balance of all such Accounts." 13. Sections 5.02(b)(iii) and (iv) of the Plan are amended by substituting the word "Allocation" for the word "Valuation" in each instance where the word "Valuation" appears. 14. Section 5.02(b)(iii)(b) of the Plan is amended by deleting the last full sentence thereof. 15. Section 5.02(c) of the Plan is deleted in its entirety and replaced with the following: "(c) Except for those Participants who terminated employment with an Employer after July 1 of that Plan Year because of death or Retirement and who have made an election to defer distribution of their Participant Account until the next Plan Year, if a Participant is not employed by Central on the Allocation Date, he will not share in Employer Contributions or in Forfeitures." 6 6 16. Section 5.02(d) of the Plan is deleted in its entirety and replaced with the following: "(d) Notwithstanding the provisions of Subsection 5.02(c) above, if a Participant is not employed by Central, but is employed by a Controlled Group Member, on the Allocation Date, he will be entitled to share in the allocation of the Matching Portion as provided in Subparagraph 5.02(b)(iii)(a), but will not share in Employer Contributions provided for under Subparagraph 5.02(b)(iii)(b) or in Forfeitures." 17. Section 5.04(a) of the Plan is amended by substituting the word "Allocation" for the word "Valuation" in the first sentence thereof. Section 5.04(a) is further amended by deleting subsections (i) and (ii) in their entirety and replacing them with the following: "(i) The Participant's Voluntary Contributions, plus earnings attributable thereto, are distributed to the Participant until one of the tests set forth in this Section 5.40 is satisfied. (ii) The Participant's Salary Reduction Contributions, plus earnings attributable thereto, are distributed to the Participant until one of the tests set forth in this Section 5.04 is satisfied; and (iii) Any remaining excess amounts shall be held unallocated in a suspense account for the Plan Year and shall be allocated in the next Plan Year (and succeeding Plan Years, as necessary) among the Participants in the Plan, subject to the limitations of Code Section 415. (iv) In the event of termination of this Plan, any amount held in a suspense account described in Paragraph (iii) above shall revert to the Employer to the extent it may not then be allocated to any Participant's Accounts." 7 7 18. Section 5.04(c)(1) of the Plan is deleted in its entirety and replaced with the following: "(1) 'Annual Addition' shall include, for any Plan Year, the sum of: (A) all contributions made by a Controlled Group Member that are allocated to the Participant's account pursuant to a defined contribution plan maintained by a Controlled Group Member; (B) all employee contributions made by the Participant to a defined contribution plan maintained by a Controlled Group Member; (C) all forfeitures allocated to the Participant's account pursuant to a defined contribution plan maintained by a Controlled Group Member; (D) any amount allocated to an individual medical benefit account (as defined in Code Section 415(l)(2)) of the Participant that is part of a pension or annuity plan maintained by a Controlled Group Member; and (E) any amount attributable to medical benefits allocated to the Participant's account established under Code Section 419A(d)(1) if the Participant is or was a key-employee (as such term is defined in Code Section 416(i)) during such Plan Year or any preceding Plan Year." 19. Section 5.05(b)(1) of the Plan is amended by inserting the word "Voluntary" immediately preceding the first appearance of the word "Contributions" and by inserting the phrase "provided for in Subsection 4.02(b)" immediately following the first appearance of the word "Contributions". 8 8 20. Section 5.05(b) of the Plan is amended by deleting the definition of a "Highly Compensated Participant" in its entirety and replacing it with the following: "'Highly Compensated Participant' shall have the same meaning as in Subsection 4.02(b)(2)(b)(2)." 21. The second sentence of Section 5.05(c) of the Plan is deleted and replaced with the following: "In addition, the 'Contribution Percentage' for a Highly Compensated Participant who is either a five-percent owner (as defined in Code Section 416(i)(1)) or one of the ten (10) most Highly Compensated Participants shall be determined by including the Compensation of Family Members, and such affected Family Members shall be disregarded in determining the 'Contribution Percentage' of Non-Highly Compensated Participants." 22. A new Section 5.06(c) is added to the Plan immediately following Section 5.06(b) to read as follows: "(c) In the case of a Highly Compensated Participant whose Contribution Percentage is determined by including Family Members, the determination and correction of the amount of Excess Aggregate Contributions shall be made by reducing the Contribution Percentage in accordance with the 'leveling' method described in Regulation 1.401(m)-1(e)(2) and allocating the Excess Aggregate Contributions for the family group among its members in proportion to the contributions of each member of the family group that is combined to determine the Contribution Percentage." 23. Section 5.07 of the Plan is deleted in its entirety and replaced with the following: "5.07 VALUATION OF TRUST FUND. A valuation of all assets of the Trust Fund, other than real estate, shall be made as of each Valuation Date. A valuation of any real estate 9 9 held in the Trust Fund shall be made as of December 31 of each Plan Year and at such other dates as may be specified by the Plan Administrator." 24. A new Section 5.09 of the Plan is added as follows: " 5.09 MULTIPLE USE OF THE ALTERNATIVE LIMITATION. (a) Notwithstanding the foregoing provisions of this Article, if, after the application of Sections 4.02(a)(2), 4.02(a)(4) and 5.05, the sum of the 'Actual Deferral Percentage' and the 'Contribution Percentage' for the group of Highly Compensated Participants (as defined in Section 4.02(b)(2)) exceeds the aggregate limit (as defined in Subsection (b) of this Section), then the contributions made for such Plan Year for Highly Compensated Participants will be reduced so that the aggregate limit is not exceeded. Such reductions shall be made first in Voluntary Contributions then in Salary Reduction Contributions (but only to the extent that they are not matched by Employer Contributions) and then in the Matching Portion of Employer Contributions. Reductions in contributions shall be made in the manner provided in Section 4.02(a)(5) or 5.06, as applicable. The amount by which each such Highly Compensated Participant's Salary Reduction Contributions or the Matching Portion of Employer Contributions are reduced shall be treated as an excess Salary Reduction Contribution or an Excess Aggregate Contribution under Section 4.02(a)(5) or 5.06, as applicable. For the purposes of this Section, the 'Actual Deferral Percentage' and the 'Contribution Percentage' of the Highly Compensated Participants are determined after any reductions required to meet those tests under Sections 4.02(a)(5) and 5.06. Notwithstanding the foregoing provisions of this Section, no reduction shall be required by this Subsection if either (i) the 'Actual Deferral Percentage' of the Highly Compensated Participants does not exceed 1.25 multiplied by the 'Actual Deferral Percentage' of the Non-Highly Compensated Participants, or (ii) the 'Contribution Percentage' of the Highly Compensated Participants does not exceed 1.25 multiplied by the 'Contribution Percentage' of the Non-Highly Compensated Participants. 10 10 (b) For purposes of this Section, the term' aggregate limit' means the sum of (i) one hundred twenty-five percent (125%) of the greater of (A) the 'Actual Deferral Percentage' of the Non-Highly Compensated Participants for the Plan Year, or (B) the 'Contribution Percentage' of the Non-Highly Compensated Participants, and (ii) the lesser of (A) two hundred percent (200%) of, or (B) two (2) plus the lesser of such 'Actual Deferral Percentage' or 'Contribution Percentage'. If it would result in a larger aggregate limit, the word 'lesser' is substituted for the word 'greater' in part (i) of this Subsection, and the word 'greater' is substituted for the word 'lesser' in part (ii)(B) of this Subsection." 25. The second sentence of Section 6.01 of the Plan is deleted in its entirety and replaced with following: "The interest of each Participant shall be adjusted from time to time to give effect to debits, credits, increments, losses, and other adjustments as herein provided, so as to reflect the Participants' and each such Participant's current interest in the Trust Fund." 26. Section 6.02 of the Plan is amended by deleting the phrase ",as at the most recent Valuation Date,". 27. Section 7.04(a)(i) of the Plan is amended by adding the following paragraph to the end thereof: "In the event that the amount allocable to a Participant's Capital Accumulation includes a portion of the real estate owned by the Plan, that portion of a Participant's Capital Accumulation, other than the portion invested in the real estate owned by the Plan, will be distributed immediately, and the remaining balance will be distributed within sixty (60) days after such time as the real estate owned by the Plan has been sold." 11 11 28. Section 7.04(a)(ii) of the Plan is amended by deleting the proviso following Subparagraph (C) thereof. 29. The second sentence of Section 7.04(c) of the Plan is amended by adding the phrase "(and never exceeded $3,500 at the time of any previous withdrawal or distribution)" after the parenthetical "($3,500)". 30. The last sentence of Section 7.04(d) of the Plan is deleted and replaced with the following: "If a Participant dies before his entire Capital Accumulation has been distributed but after the distribution has commenced, then the remaining portion of such Capital Accumulation will be distributed at least as rapidly as under the method of distribution being used as of the date of the Participant's death." 31. Section 7.04(e) of the Plan is deleted in its entirety and replaced with the following: "(e) Distributions under the Plan shall be made in a manner that satisfies Code Section 401(a)(9) and Treasury Regulations issued thereunder, including Treasury Regulation ss. 1.401(a)(9)-2, which provisions are hereby incorporated into the Plan by reference, provided that such provisions shall override the other distribution provisions of the Plan only to the extent that such other Plan provisions provide for distribution that is less rapid than required under such provisions of the Code and Regulations. Nothing contained in this Section shall be construed as providing any optional form of payment that is not available under the other distribution provisions of the Plan." 12 12 32. Section 7.07(a)(3) of the Plan is amended by inserting the phrase "and room and board expenses" immediately after the phrase "educational fees". 33. A new Section 7.10 is added to the Plan immediately following Section 7.09 to read as follows: "7.10 Direct Rollovers. ---------------- (a) Notwithstanding any other provision of this Article, if a Participant, spouse or alternate payee (as defined in Code Section 414(p)) is eligible to receive a distribution or withdrawal from the Plan that constitutes an 'eligible rollover distribution' (as defined in Subsection (c) of this Section) and such individual elects to have all or a portion (but not less than $500) of such distribution or withdrawal paid directly to an 'eligible retirement plan' (as defined in Subsection (d) of this Section) and specifies the eligible retirement plan to which the distribution or withdrawal is to be paid, such distribution or withdrawal (or portion thereof) shall be made in the form of a direct rollover to the eligible retirement plan so specified. A direct rollover is a payment made by the Plan directly to the eligible retirement plan. The Plan Administrator shall prescribe reasonable procedures for elections to be made pursuant to this Section. (b) The Plan Administrator shall provide a Participant, spouse or alternate payee who will receive an eligible rollover distribution with a written notice describing his rights under this Section and such other information required to be provided under Code Section 402(f), no less than thirty (30) days nor more than ninety (90) days before the date scheduled for payment of such distribution; provided, however, that a Participant, spouse or alternate payee may elect to waive such 30-day requirement if (i) he is clearly informed by the Plan Administrator of his rights, if applicable, to a period of at least 30 days after receiving the written notice to consider whether or not to elect a distribution or withdrawal and/or to elect a particular form of benefit and (ii), after receiving the written 13 13 notice, he affirmatively elects the distribution or withdrawal. Nothing contained in this Subsection shall be construed to accelerate the timing of a distribution or withdrawal otherwise provided in the Plan. (c) For purposes of this Section, the term 'eligible rollover distribution' means any distribution or withdrawal of all or any portion of the Participant's Account, except (a) any distribution required under Code Section 401(a)(9), (b) any distribution if it and all other eligible rollover distributions to the Participant during the calendar year are reasonably expected to total less than Two Hundred Dollars ($200), (c) the portion of a distribution not includible in gross income (determined without regard to the exclusion for net unrealized appreciation described in Code Section 402(e)(4)), and (d) such other amounts specified in Treasury regulations or Internal Revenue Service rulings, notices or announcements issued under Code Section 402(c). (d) For purposes of this Section, the term 'eligible retirement plan' means an individual retirement account or annuity described in Code Section 408, a defined contribution plan that meets the requirements of Code Section 401(a) and that accepts rollovers, or an annuity plan described in Code Section 403(a); provided, however, that with respect to a spouse (but not a spouse who is an alternate payee) who receives a distribution after a Participant's death, an 'eligible retirement plan' shall mean only an individual retirement account or annuity described in Code Section 408. (e) This Section is intended to comply with the provisions of Code Section 401(a)(31) and shall be interpreted in accordance with such Code Section and Treasury regulations issued thereunder." 14 14 34. The second sentence of Section 9.02(a) is deleted in its entirety and replaced with the following: "Subject to Subsection 9.02(b) hereof, if a deceased Participant failed to name a Beneficiary in the manner above prescribed, or subject to Section 9.03, if the Beneficiary or Beneficiaries named by a deceased Participant predeceases the Participant, the amount payable with respect to such Participant pursuant to Section 7.01 hereof, if any, shall be paid to (i) the Participant's spouse, or if none, (ii) the estate of such deceased Participant." 35. The third sentence of Section 9.02(a) is amended by deleting the phrase "and discretion". 36. The proviso in the first sentence of Section 9.03 is deleted in its entirety and replaced with the following: "provided, however, that if no person so designated be living upon the occurrence of such contingency, then such balance shall be payable to the estate of the Participant." 37. The second sentence of Section 9.03 is amended by deleting the phrase "and discretion". 38. The first sentence of Section 10.01 of the Plan is amended by deleting the phrase "known as the Central Freight Lines Employees Profit Sharing and Retirement Trust". 39. Section 13.03(b) of the Plan is amended by adding the parenthetical "(plus elective deferrals under Code Section 402(g)(3))" after the word "Contributions". 15 15 IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to be executed by its duly appointed officer, effective as of January 1, 1994. In the presence of: CENTRAL FREIGHT LINES, INC. /s/ Laura Rameos By: /s/ Ronald S. Pelzel - ------------------------- -------------------------------- Title: - ------------------------- Dated: April 1, 1996 ------------------- EX-4.K 10 EXHIBIT 4.K 1 Exhibit 4.4(k) AMENDMENT NO. 2 TO THE CENTRAL FREIGHT LINES, INC. EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN THIS AMENDMENT NO. 2 to the Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan (the "Plan") is made and executed this 30th day of December, 1996 by Central Freight Lines, Inc. (hereinafter referred to as the "Company"). Unless otherwise provided, this Amendment No. 2 shall be effective as of October 1, 1996. 1. Notwithstanding anything in the Plan to the contrary, any provision within the Plan which requires action by means of written authorization, written notification or written application shall be deemed satisfied if such action is taken in accordance with procedures established by the Plan Administrator. 2. The first two paragraphs of Section 2.01(i) of the Plan are hereby deleted in their entirety and replaced by the following: 'COMPENSATION' or 'SALARY' means the sum of salary paid to an Employee by all Controlled Group Members in the calendar year plus cash incentive compensation and overtime pay paid to that Employee, but excluding (i) expense allowances and other special payments not paid as regular compensation, (ii) payments pursuant to a tax equalization, relocation or cost of living program, an expatriate program or any similar programs or arrangements and (iii) any part of the Employer's contributions under this Plan and/or any pension, welfare, stock bonus, stock ownership or other qualified or nonqualified plan. Notwithstanding the foregoing, Compensation shall 2 include any salary that would have been paid to such Employee had he not signed a salary deferral agreement that satisfies the requirements of Code Sections 401(k), 125 or 129. 3. Section 2.01(p) of the Plan is hereby amended in its entirety to read as follows: 'ENTRY DATE' means the earliest practicable date after an Employee has met the requirements of Section 3.01(b) or 3.01(c). 4. Section 2.01(u) of the Plan is hereby amended by deleting the phrase "sixty (60)" and inserting the phrase "fifty- nine and one-half (59 1/2)" at the end thereof. 5. Section 2.04 of the Plan is hereby amended in its entirety to read as follows: 2.04 YEAR OF SERVICE. For purposes of determining eligibility for participation in the Plan, 'YEAR OF SERVICE' means a twelve (12) consecutive month period commencing on the Date of Employment during which an Employee is credited with at least one thousand (1,000) Hours of Service (the 'Initial Eligibility Computation Period'). Whether or not an Employee is credited with one thousand (1,000) Hours of Service during an Initial Eligibility Computation Period, such Employee shall be credited with a YEAR OF SERVICE if he is credited with at least one thousand (1,000) Hours of Service during the Plan Year beginning during the Initial Eligibility Computation Period or any Plan Year thereafter. For all other purposes, 'YEAR OF SERVICE' means a twelve (12) consecutive month period ending on the last day of a Plan Year in which an Employee is credited with at least one thousand (1,000) Hours of Service. For purposes of vesting, with regard to an Employee on October 1, 1996 who was an Employee at any time during the period January 1, 1996 through September 30, 1996, such Employee shall be credited with a Year of Service for the twelve (12) consecutive month period ending on the anniversary of his Date of Employment or Date of Reemployment occurring in 1997, if he is credited 2 3 with at least one thousand (1,000) Hours of Service during such period, and a Year of Service for the twelve (12) consecutive month period ending on December 31, 1997, if he is credited with at least one thousand (1,000) Hours of Service during such period. 6. The first sentence of Section 2.05 of the Plan is hereby amended by deleting the phrase "measured from the Employee's Date of Employment" and inserting the phrase "as determined pursuant to Section 2.04." 7. Section 2.07 of the Plan is hereby amended in its entirety to read as follows: 2.07 BREAK-IN-SERVICE. For purposes of this Plan, 'BREAK-IN-SERVICE' means a Plan Year during which an Employee has not completed an Hour of Service. A Break-in-Service occurs as of the last day of such Plan Year. 8. The first sentence of Subsection 4.02(a)(1) of the Plan is hereby amended by deleting the phrase "ten percent (10%)" and inserting the phrase "fifteen percent (15%)." 9. The first sentence of Subsection 4.02(b) of the Plan is hereby amended by deleting the phrase "over and above his Salary Reduction Contributions." 10. A new Subsection 4.02(c) is added to the Plan to read as follows: (c) A Participant's Salary Reduction and/or Voluntary Contributions with respect to any pay period must be made in whole or half percentages, must each be a minimum of one percent (1%) of his Compensation and may not, in the aggregate, exceed fifteen percent (15%) of his Compensation. 3 4 11. Subsection 5.02(b)(iv) of the Plan is hereby amended in its entirety to read as follows: (iv) FORFEITURES. As of each Allocation Date, Forfeitures, if any, occurring during the Plan Year (net of any amount of Forfeitures allocated to the restoration of prior Forfeitures pursuant to Section 7.05 hereof) shall be added to Employer Contributions (other than the Matching Portion) and allocated as Employer Contributions. 12. Subsection 5.02(c) of the Plan is hereby amended by deleting the phrase "after July 1 of that Plan Year" and deleting the phrase "and who have made an election to defer distribution of their Participant Account until the next Plan Year." 13. Subsection 5.03(b) of the Plan is hereby amended in its entirety to read as follows: (b) Subject to Subsection 5.03(c), amounts in a Participant's Transfer Contribution Account shall be held by the Trustee pursuant to the provisions of this Plan and may be withdrawn at the request of the Participant in accordance with procedures established by the Plan Administrator, in whole or in part, in the form of cash payments or in common stock of Caliber System, Inc. to the extent invested in such stock. 14. Section 7.03 of the Plan is hereby amended by adding Subsections (e) and (f) at the end thereof to read as follows: (e) under Subsection 7.12 hereof (relating to withdrawals on account of disability or attainment of age fifty-nine and one-half (59 1/2)); or (f) under Subsection 5.03(b) hereof (relating to withdrawals or distributions of amounts held in a Participant's Transfer Contribution Account). 4 5 15. Subsection 7.04(a)(i) of the Plan is hereby amended by deleting the sentence "In the event such election is made, the deferred Account shall be entitled to share in the allocation of Employer Contributions for the Plan Year in which the retirement or death of the Participant occurred." 16. Subsection 7.04(a) of the Plan is hereby amended by adding the following Subparagraphs (iii) and (iv) at the end thereof to read as follows: (iii) PARTIAL LUMP SUM. The Participant's Account may be distributed in a partial lump sum payment, with the remainder paid later. (iv) INSTALLMENT PAYMENTS. The Participant's Account may be distributed in installments over a period not to exceed the life expectancy of the Participant and his Beneficiary. 17. Subsection 7.04(c) of the Plan is hereby amended in its entirety to read "[Reserved]." 18. Subsection 7.04(d) of the Plan is hereby amended by inserting the phrase "to the extent required by Code Section 401(a)(9)," immediately following the phrase "in this Article VII," in the first sentence thereof. 19. Subsection 7.04(f) of the Plan is hereby amended in its entirety to read as follows: (f) Distributions shall be in the form of a cash payment or, if elected by the Participant, the portion of his Capital Accumulation invested in the common stock of Caliber System, Inc. may be received in-kind only if the Participant elects to receive an immediate lump sum payment under Subsection 7.04(a)(i). 5 6 20. Subsection 7.05(b) of the Plan is hereby amended by deleting the last sentence thereof. 21. Subsection 7.07(c) of the Plan is hereby amended in its entirety to read as follows: Distributions from the Participant's Capital Accumulation pursuant to this Section 7.07 shall come from the following fully vested Accounts in the following order: Voluntary Contributions Accounts; Transfer Contribution Account; Employer Contribution Account (the Matching Portion); Employer Contribution Account (other than the Matching Portion); and Salary Reduction Contributions Account (excluding earnings). 22. Subsection 7.10(a) of the Plan is hereby amended by deleting the phrase "(but not less than $500)." 23. Subsection 7.10(c) of the Plan is hereby amended by redesignating Subsection (d) as Subsection (c) and by deleting the phrase "any distribution if it and all other eligible rollover distributions to the Participant during the calendar year are reasonably expected to total less than Two Hundred Dollars ($200), (c)." 24. A new Section 7.11 is added to the Plan to read as follows: 7.11 Loans ----------- The following loan provisions will be effective when the Plan Administrator, in its discretion, determines it is administratively feasible and desirable to provide loans under the Plan. (a) A Participant who is either an Employee of an Employer or a Controlled Group Member or a "party-in-interest" (as defined in Section 3(14) of ERISA) may, in accordance with procedures 6 7 established by the Plan Administrator, apply for a loan from his Account. Such procedures shall include action to prevent a Participant who is otherwise eligible for a loan from securing a loan if the Administrator has knowledge that the Participant is in bankruptcy or some similar proceeding. Each loan shall be charged against the Participant's fully vested Account in the following order (to the extent necessary): Salary Reduction Contributions Account; Employer Contribution Account (the Matching Portion); Employer Contribution Account (other than the Matching Portion); Transfer Contribution Account; and finally, against the Voluntary Contributions Accounts. (b) Each loan shall be in an amount which is not less than $1,000. A Participant may only have one loan outstanding at any time. The maximum loan to any Participant (when added to the outstanding balance of all other loans to the Participant from all qualified employer plans (as defined in Code Section 72(p)(4)) of the Controlled Group) shall be an amount which does not exceed the lesser of: (i) Fifty Thousand Dollars ($50,000), reduced by the excess (if any) of (A) the highest outstanding balance of such other loans during the one-year period ending on the day before the date on which such loan is made, over (B) the outstanding balance of such other loans on the date on which such loan is made; or (ii) fifty percent (50%) of the vested value of such Participant's Account on the date on which such loan is made. (c) For each Participant for whom a loan is authorized pursuant to this Section, the Participant's interests will be liquidated first by Account and then within each Account amounts shall be taken on a pro-rata basis by Investment Fund to the extent necessary to provide funds for the loan. The Trustee shall establish and maintain a separate recordkeeping account within the Participant's Account (the "Loan Sub-Account") (i) which initially shall be in the amount of the loan, (ii) to which the funds for the loan shall be deemed to have been allocated and then disbursed to the Participant, (iii) to which the Note shall be allocated and (iv) which shall show the unpaid principal of the promissory note from 7 8 time to time. All payments of principal and interest by a Participant shall be credited initially to his Loan Sub-Account and applied against the Note and then credited to the Participant's Account in the inverse order from which the loan was funded and invested in the Investment Funds pursuant to the Participant's direction regarding investment of Contributions under Section 5.08. The Plan Administrator shall value each Participant's Loan Sub-Account for purposes of Section 5.07 at such times as the Plan Administrator shall deem appropriate, but not less frequently than quarterly. (d) Loans made pursuant to this Section: (i) shall be made available to all Participants on a reasonably equivalent basis; (ii) shall not be made available to Highly Compensated Employees in a percentage amount greater than the percentage amount made available to other Participants; (iii) shall be secured by the Participant's Loan Sub-Account; (iv) shall be evidenced by a promissory note and security agreement (the "Note") which provides for: (A) the loan to be secured by the Participant's Loan Sub-Account; (B) a rate of interest of one percent above the prime interest rate as determined by the Trustee at the time the loan is processed; (C) repayment within a specified period of time, which shall not extend beyond five (5) years from the date the loan is made unless the loan proceeds are used to acquire a dwelling which, within a reasonable time (determined at the time the loan is made), is to be used as the principal residence of the Participant, in which case the repayment period may extend to ten (10) years; (D) repayment in equal payments over the term of the loan, with payments not less frequently than monthly; and 8 9 (E) for such other terms and conditions as the Plan Administrator shall determine, which shall include provision that: (I) with respect to a Participant who is an Employee, the loan will be repaid pursuant to authorization by the Participant of equal payroll deductions over the repayment period sufficient to amortize fully the loan within the repayment period or by check during any period the Participant is ineligible for payroll deduction; (II) the loan shall be prepayable in whole or in specified increments (as determined from time to time by the Plan Administrator) at any time without penalty; (III) the loan shall be treated as in default if payments are more than 90 days late. A Participant shall then have 30 days from the time he receives written notice of the default and a demand for past due amounts to cure the default before it becomes final; and (IV) the Plan Administrator may agree to a suspension of loan payments for up to 12 months for a Participant who is on a leave of absence without pay. During such suspension period, interest shall continue to accrue. At the end of such suspension period, all outstanding loan payments and interest shall be due unless otherwise agreed upon by the Plan Administrator. (e) Notwithstanding any other provision of the Plan, a loan made pursuant to this Section shall be a first lien against the Participant's Loan Sub-Account. Any amount of principal or interest due and unpaid on the loan at the time of any Default on the loan, and any interest accruing thereafter, shall be satisfied by deduction from the Participant's Loan Sub-Account, and shall be 9 10 deemed to have been distributed to the Participant, as follows: (i) In the case of a Participant who, at the time of the Default, is an Employee and is not eligible to receive distribution of his Account under the provisions of Article VII, (other than Hardship withdrawals under Section 7.07) at such time as he first becomes eligible to receive distribution of his Account under the provisions of this Article, (other than Section 7.07); or (ii) In the case of any other Participant, immediately upon such Default. If, as a result of the application of the preceding sentence, an amount of principal or interest on a loan remains outstanding after Default, interest at the rate specified in the Note shall continue to accrue on such outstanding amount until fully satisfied by deduction from the Participant's Loan Sub-Account as hereinabove provided or by payment by or on behalf of such Participant. (f) The Plan Administrator shall have the right to call any Participant's loan once the Participant's employment with all Controlled Group Members has terminated or if the Plan is terminated. 25. A new Section 7.12 is added to the Plan to read as follows: 7.12 Withdrawals on Account of Disability or Attainment -------------------------------------------------- of Age Fifty-Nine and One-Half (59 1/2) --------------------------------------- A Participant whom the Committee has determined to have a Disability or who has attained age fifty-nine and one-half (59 1/2) may withdraw at any time or from time to time all or a portion of his Capital Accumulation in the form of a cash payment or in common stock of Caliber System, Inc. to the extent invested in such stock, as provided and in the order as set forth below, except that the Participant may instead choose to have amounts taken from his Voluntary Contributions Account first: (a) Transfer Contribution Account; (b) Salary Reduction Contributions Account; 10 11 (c) Employer Contribution Account (the Matching Portion); (d) Employer Contribution Account (other than the Matching Portion); (e) Voluntary Contributions Account. 26. A new Section 10.06 is added to the Plan to read as follows: 10.06 Voting and Tender of Common Stock of Caliber -------------------------------------------- System, Inc. and Roadway Express, Inc. -------------------------------------- Each Participant or Beneficiary shall be entitled to instruct the Trustee as to the voting or tendering of any full or partial shares of common stock of Caliber System, Inc. or Roadway Express, Inc. held on his or her behalf. Prior to such voting or tendering of such stock, each Participant or Beneficiary shall receive a copy of the proxy solicitation or other material relating to such vote or tender decision and a form for the Participant or Beneficiary to complete which confidentially instructs the Trustee to vote or tender such shares in the manner indicated by the Participant or Beneficiary. Upon receipt of such instructions, the Trustee shall act with respect to such shares as instructed. With regard to shares for which the Trustee receives no voting or tendering instructions from Participants or Beneficiaries, the Committee designated under the Caliber System, Inc. 401(k) Savings Plan shall instruct the Trustee with respect to how to vote or tender such shares and the Trustee shall act with respect to such shares as instructed. 11 12 IN WITNESS WHEREOF, the Company has caused this Amendment No. 2 to be executed by its duly appointed officer. In the presence of: CENTRAL FREIGHT LINES, INC. /s/ Beth P. Ewing By: /s/ Donald C. Brown - ----------------------------- ------------------------------ Title: Dated: 12/30/96 --------------------- EX-4.L 11 EXHIBIT 4.L 1 Exhibit 4.4(l) AMENDMENT NO. 3 TO THE CENTRAL FREIGHT LINES, INC. EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN -------------- This Amendment No. 3 to the Central Freight Lines, Inc. Employees Profit Sharing and Retirement Plan (the "Plan") is made and executed this 27 day of February, 1997, generally effective as of January 1, 1997, by Viking Freight, Inc. (the "Company"). W I T N E S S E T H: WHEREAS, the Plan was amended and restated in its entirety generally effective as of January 1, 1994; WHEREAS, the Plan was merged into the Caliber System, Inc. 401(k) Savings Plan as of October 1, 1996; WHEREAS, Section 11.03 of the Plan sets forth the provisions whereby the Plan may be amended; WHEREAS, the Company is the corporate successor by merger to Central Freight Lines, Inc.; and WHEREAS, the Company desires to amend the Plan in order to reflect the corporate succession and change in sponsorship of the Plan from Central Freight Lines, Inc. to the Company. NOW, THEREFORE, in consideration of the above premises, the Company amends the Plan as follows: 2 Following the merger of Central Freight Lines, Inc. into Viking Freight, Inc. (the "Company") as the Southwestern Division of the Company ("Viking Southwestern"), it is the intent of the Company to continue the Plan as a portion of the Caliber System, Inc. 401(k) Savings Plan for the benefit of employees and former employees of Viking Southwestern only. Accordingly, on and after January 1, 1997, (a) an Employee or former Employee of Viking Southwestern who was a Participant in the Plan as of December 31, 1996 will continue as a Participant in the Plan as long a portion of the Trust Fund is credited to his Account and held for his benefit by the Trustee, (b) only Employees of Viking Southwestern are eligible to become Participants in the Plan, (c) only Employees of Viking Southwestern may make Participant Contributions to the Plan, (d) Employer Contributions will be made by the Company, (e) Employer Contributions will be allocated in accordance with the Plan only to Participants who were Employees of Viking Southwestern during the Plan Year for which such Contribution is made, (f) the Plan Administrator of the Plan will be the Company, and (g) the Plan Administrator will interpret all provisions of the Plan in a manner consistent with the intent of this Amendment. 2 3 IN WITNESS WHEREOF, the Company has caused this Amendment No. 3 to be executed by its duly appointed officer. In the presence of: VIKING FREIGHT, INC. /s/ William Slabaugh By: /s/ R.G. Marticke - ---------------------- ----------------------------- Title: - ---------------------- Dated: /s/ Feb 27, 1997 --------------------- 3 EX-4.M 12 EXHIBIT 4.M 1 Exhibit 4.4(m) INSTRUMENT MERGING PLANS AND TRUST ---------------------------------- Caliber System, Inc. (the "Company") hereby ratifies the actions, previously taken and effective as of October 1, 1996, to merge the defined contribution plans known respectively as the Financial Security Plan and the Central Freight Lines, Inc. Employee Profit Sharing Plan and Trust (the foregoing, plans are hereinafter referred to as the "Merging Plans") and the Caliber System, Inc. Stock Savings and Retirement Income Plan and Trust (the "Surviving Plan") (the Merging Plans and the Surviving Plan are hereinafter referred to collectively as the "Plans") and individually as (a "Plan"), each amended through the date hereof, and any trust or trusts related thereto (the "Trusts"). I. The Merging Plans have been merged into the Surviving Plan, and such merged plan shall, from and after the merger ratified hereby, comprise a single plan (the "Merged Plan") within the meaning of Treasury Regulations Section 1.414(l) - l(b)(1). The Merged Plan shall be known as the Caliber System, Inc. 401(k) Savings Plan. The terms and conditions and all other provisions of the Merged Plan, as applicable to different categories of participants covered on the effective date of the merger under the different Plans, shall continue to be expressed in the separate documents and instruments comprising such Plan, as in effect immediately prior to the merger, unless and until such documents and instruments are amended or superseded in accordance with the terms thereof. II. The Trusts shall continue to be maintained pursuant to the instrument or instruments currently applicable thereto (the "Trust Agreements"), and the trustee or trustees of the Trusts shall continue to hold, administer and disburse the assets of the Trusts (as in existence before the merger), and any additional amounts hereafter transferred to any such trustee by the Company as a contribution to the Merged Plan, pursuant to the terms of the Trust Agreement to which each such trustee is a party. Notwithstanding the foregoing, however, all of the assets of the Merged Plan shall be available to pay benefits to all participants and beneficiaries under the Merged Plan, and each of the Trust Agreements shall be deemed to have been amended to the extent necessary to effectuate this sentence. Without limiting the generality of the foregoing, references in the Trust Agreements to any of the Plans are hereby deemed to be references to the Merged Plan. 2 III. Each participant in the Merged Plan shall, immediately after the merger, have an account balance equal to the sum of the account balances the participant had in the Plans immediately prior to the merger. EXECUTED at Akron, Ohio, on this 28th day of October 1996. CALIBER SYSTEM, INC. By: Donald C. Brown -------------------------------- Title: V.P.- Human Resources ----------------------------- 2 EX-23 13 EXHIBIT 23 1 Exhibit 23 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Caliber System, Inc. 401(k) Savings Plan of our reports (a) dated January 23, 1997 (except Note K, as to which the date is March 27, 1997), with respect to the consolidated financial statements and schedule of Caliber System, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1996, and (b) dated May 31, 1996, with respect to the financial statements and schedules of the Roadway Services, Inc. Stock Savings and Retirement Income Plan and Trust (Amended and Restated) included in the Plan's Annual Report (Form 11-K) for the year ended December 31, 1995, both filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Akron, Ohio May 23, 1997 EX-24.1 14 EXHIBIT 24.1 1 Exhibit 24.1 DIRECTORS AND OFFICERS OF CALIBER SYSTEM, INC. 401(k) SAVINGS PLAN REGISTRATION STATEMENT ON FORM S-8 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and officers of Caliber System, Inc., an Ohio corporation (the "Company"), hereby constitutes and appoints Daniel J. Sullivan, Louis J. Valerio, John E. Lynch, Jr., and Kathryn W. Dindo, and each of them, with full power of substitution and resubstitution, as the true and lawful attorney-in-fact and agent of the undersigned, to sign and file on his or her behalf and in his or her name, place and stead, in any and all capacities, under the Securities Act of 1933, one or more Registration Statements on Form S-8 relating to the registration, offer and sale of such number of shares of common stock, without par value, as shall be determined from time to time, issued and to be issued or acquired in connection with the Company's 401(k) Savings Plan (the "Plan") and participation interests in the Plan, and any and all amendments and exhibits thereto, including post-effective amendments, and any and all applications or other documents to be filed with the Securities and Exchange Commission or any state regulatory authority, including any state securities regulatory board or commission, pertaining to the securities subject to such registrations, with full power and authority to do and perform any and all acts and things whatsoever required and necessary to be done in the premises, hereby ratifying and approving the acts of said attorney and any such substitute. EXECUTED this 14th day of May, 1997. ---- /s/ GEORGE B. BEITZEL /s/ CHARLES R. LONGSWORTH - ---------------------------- -------------------------------- George B. Beitzel Charles R. Longsworth /s/ RICHARD A. CHENOWETH /s/ G. JAMES ROUSH - ---------------------------- -------------------------------- Richard A. Chenoweth G. James Roush /s/ KATHRYN W. DINDO /s/ DANIEL J. SULLIVAN - ---------------------------- -------------------------------- Kathryn W. Dindo Daniel J. Sullivan /s/ NORMAN C. HARBERT /s/ LOUIS J. VALERIO - ---------------------------- -------------------------------- Norman C. Harbert Louis J. Valerio /s/ HARRY L. KAVETAS /s/ H. MITCHELL WATSON, JR. - ---------------------------- -------------------------------- Harry L. Kavetas H. Mitchell Watson, Jr. EX-24.2 15 EXHIBIT 24.2 1 Exhibit 24.2 CALIBER SYSTEM, INC. 401(k) SAVINGS PLAN REGISTRATION STATEMENT ON FORM S-8 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned members of the Caliber System, Inc. 401(k) Savings Plan Administrative Committee, constituting all of the members in office at the date hereof, hereby constitutes and appoints Daniel J. Sullivan, Louis J. Valerio, John E. Lynch, Jr., and Kathryn W. Dindo, and each of them, with full power of substitution and resubstitution, as the true and lawful attorney-in-fact and agent of the undersigned, to sign and file on his behalf and in his name, place and stead, in any and all capacities, under the Securities Act of 1933, one or more Registration Statements on Form S-8 relating to the registration, offer and sale of such number of shares of common stock, without par value, as shall be determined from time to time, issued and to be issued or acquired in connection with the Company's 401(k) Savings Plan (the "Plan") and participation interests in the Plan, and any and all amendments and exhibits thereto, including post-effective amendments, and any and all applications or other documents to be filed with the Securities and Exchange Commission or any state regulatory authority, including any state securities regulatory board or commission, pertaining to the securities subject to such registrations, with full power and authority to do and perform any and all acts and things whatsoever required and necessary to be done in the premises, hereby ratifying and approving the acts of said attorney and any such substitute. EXECUTED this 14th day of May, 1997. ---- /s/ DONALD C. BROWN /s/ JOHN P. CHANDLER - ---------------------------- -------------------------------- Donald C. Brown John P. Chandler /s/ THOMAS R. WARREN - ---------------------------- Thomas R. Warren -----END PRIVACY-ENHANCED MESSAGE-----