-----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, Ez+eRQISxyUP4d33hRTgH0EcKma4K8yS+GqU4j+tge9oybiJoOtVh9FVWCBlZcTl cfU/VnGnfTRgWWOhL+EtQQ== 0000899078-98-000442.txt : 19981231 0000899078-98-000442.hdr.sgml : 19981231 ACCESSION NUMBER: 0000899078-98-000442 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19981230 EFFECTIVENESS DATE: 19981230 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARKANSAS BEST CORP /DE/ CENTRAL INDEX KEY: 0000894405 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 710673405 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-69953 FILM NUMBER: 98778580 BUSINESS ADDRESS: STREET 1: 3801 OLD GREENWOOD RD CITY: FORT SMITH STATE: AR ZIP: 72903 BUSINESS PHONE: 5017856000 MAIL ADDRESS: STREET 1: P O BOX 48 CITY: FORT SMITH STATE: AR ZIP: 72902 S-8 1 FORM S-8 FOR ARKANSAS BEST CORPORATION As filed with the Securities and Exchange Commission on December 30, 1998 Registration No. 33-______ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------------------ ARKANSAS BEST CORPORATION (Exact name of registrant as specified in its charter) Delaware 71-0673405 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 3801 Old Greenwood Road Fort Smith, Arkansas 72903 (Address of principal executive offices) (Zip Code) ---------------------------------- ARKANSAS BEST CORPORATION VOLUNTARY SAVINGS PLAN (Full title of the plan) ---------------------------------- Richard F. Cooper Copy to: Secretary Riva T. Johnson, Esq. Arkansas Best Corporation Jenkens & Gilchrist, 3801 Old Greenwood Road A Professional Corporation Fort Smith, Arkansas 72903 1445 Ross Avenue, Suite 3200 (501) 785-6000 Dallas, Texas 75202 (Name, address and telephone number including area code of agent for service) -----------------------------------
CALCULATION OF REGISTRATION FEE ============================================================================================================================= Proposed Proposed Amount of Amount Maximum Maximum Registration Title of Class of to be Offering Price Aggregate Fee(4) Securities to be Registered Registered per Obligation(2) Offering Price(2) - ----------------------------------------------------------------------------------------------------------------------------- Voluntary Savings Plan Obligations (1) $50,000,000 100% $50,000,000 $13,900 ============================================================================================================================= (1) The Voluntary Savings Plan Obligations are unsecured obligations of Arkansas Best Corporation to pay deferred compensation in the future in accordance with the terms of the Arkansas Best Corporation Voluntary Savings Plan. (2) Estimated solely for the purpose of calculating the registration fee.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS Item 1. Plan Information.* Item 2. Registrant Information and Employee Plan Annual Information.* - ------------------- * Information required by Part I to be contained in the Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428 of the Securities Act of 1933, as amended, and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The registrant and the Arkansas Best Corporation Voluntary Savings Plan (the "Plan") hereby incorporate by reference in this registration statement the following documents previously filed by the registrant with the Securities and Exchange Commission (the "Commission"): (1) the registrant's Annual Report on Form 10-K filed with the Commission for the fiscal year ended December 31, 1997; (2) the registrant's Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and September 30, 1997, filed with the Commission. All documents filed by the registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to the date of this registration statement shall be deemed to be incorporated herein by reference and to be a part hereof from the date of the filing of such documents until such time as there shall have been filed a post-effective amendment that indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold at the time of such amendment. Item 4. Description of Securities. Under the Plan, Arkansas Best Corporation (the "Corporation") will provide certain highly compensated, key management, or otherwise eligible employees of the Corporation and its subsidiaries ABF Freight System, Inc. and Data-Tronics Corporation the opportunity to defer receipt of a portion of their regular compensation and other bonuses by making contributions to the Plan. Additionally, the Corporation will credit participating employees' accounts with matching contributions and with rates of return based on the investments selected by participating employees or the Administrator of the Plan. The matching contributions vest upon five consecutive years of employment of any participating employee with the Corporation, or the death, disability, or retirement of such participating employee from the Corporation's employ at or after age sixty-five. The obligations of the Corporation under the Plan (the "Obligations") will be unsecured general obligations of the Corporation to pay the deferred compensation in the future in accordance with the terms of the Plan, and will rank on a parity with other unsecured and unsubordinated indebtedness of the Corporation from time to time outstanding. The amount of compensation to be deferred by each participating employee will be determined in accordance with the Plan based on elections by each participating employee. Distributions of the vested account balance of each Obligation will be payable (i) in a lump sum upon the voluntary or involuntary termination of employment, death, or disability of any participating employee, II-1 or (ii) at the election of a participating employee, at a specified earlier date or dates, in lump sum or in installments over a period of up to fifteen years subject to the terms and limitations of the Plan. The Corporation has established a rabbi or grantor trust to hold, invest and reinvest the deferrals made by participating employees under the Plan. The placing of the Obligations in a rabbi trust does not protect the trust assets from the claims of the Corporation's general secured or unsecured creditors in the event of the Corporation's bankruptcy or insolvency. The Plan will be administered by an administrator appointed by the Corporation's Board of Directors. A participating employee's right or the right of any other person to the Obligations cannot be assigned, alienated, sold, garnished, transferred, pledged, or encumbered except by a written designation of a beneficiary under the Plan, by written will, or by the laws of descent and distribution. The Corporation reserves the right to amend or terminate the Plan at any time, except that no such amendment or termination shall adversely affect the right of a participating employee to the vested balance of his or her account as of the date of such amendment or termination. Upon a change of control of the Corporation, the Obligations will be distributed pursuant to the terms of the Plan. The Obligations are not convertible into another security of the Corporation. The Obligations will not have the benefit of a negative pledge or any other affirmative or negative covenant on the part of the Corporation. Item 5. Interests of Named Experts and Counsel. Legal matters in connection with the Obligations offered hereby have been passed upon for the Corporation by Richard F. Cooper, Esq., the Secretary of the Corporation and an employee of the Corporation eligible to participate in the Plan. Item 6. Indemnification of Directors and Officers. The Corporation's Restated Certificate of Incorporation provides that no director of the Corporation will be personally liable to the Corporation or any of its stockholders for monetary damages arising from the director's breach of fiduciary duty as a director, with certain limited exceptions. Pursuant to the provisions of Section 145 of the Delaware General Corporation Law, every Delaware corporation has the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of any corporation, partnership, joint venture, trust or other enterprise, against any and all expenses, judgments, fines and amounts paid in settlement and reasonably incurred in connection with such action, suit or proceeding. The power to indemnify applies (a) if such person is successful on the merits or otherwise in the defense of any action, suit or proceeding, or (b) if such person acted in good faith and in a manner he reasonably believed to be in the best interest, or not opposed to the best interest, of the corporation and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense and settlement expenses and not to any satisfaction of a judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication unless the court, in its discretion, believes that in the light of all the circumstances indemnification should apply. To the extent any of the persons referred to in the two immediately preceding paragraphs is successful in the defense of the actions referred to therein, such person is entitled, pursuant to Section 145, to indemnification as described above. The Corporation has entered into indemnity agreements with each of its directors. Each such Indemnification Agreement provides for indemnification of directors of the Corporation to the fullest extent permitted by the Delaware General Corporation Law and additionally permits advancing attorney's fees and all other costs, expenses, obligations, fines and losses, paid or incurred by a director generally in connection with the investigation, defense or other participation in any threatened, pending or completed action, suit or proceeding or any inquiry or investigation thereof, whether conducted by or on behalf of the Corporation or any other party. If it is later determined that the director is or was not entitled to indemnification under applicable law, the Corporation is entitled to reimbursement by the director. II-2 The Indemnification Agreements further provide that in the event of a change in control of the Corporation, then with respect to all matters thereafter arising concerning the rights of directors to indemnity payments and expense advances, all determinations regarding excludable claims will be made only by a court of competent jurisdiction or by special independent legal counsel selected by the director and approved by the Corporation. To the extent that the board of directors or the stockholders of the Corporation may in the future wish to limit or repeal the ability of the Corporation to indemnify directors, such repeal or limitation may not be effective as to directors who are currently parties to the Indemnification Agreements, because their rights to full protection are contractually assured by the Indemnification Agreements. It is anticipated that similar contracts may be entered into, from time to time, with future directors of the Corporation. In addition, the Corporation's Restated Certificate of Incorporation and Amended and Restated Bylaws provide for indemnification of officers and directors to the fullest extent permitted by the Delaware General Corporation Law. Insofar as indemnification by the Corporation for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to directors, officers or persons controlling the Corporation pursuant to the foregoing provisions, the Corporation has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. Item 7. Exemption from Registration Claimed. None. Item 8. Exhibits. (a) Exhibits. The following documents are filed as a part of this registration statement. Exhibit Description of Exhibit ------- ---------------------- 4.1 Arkansas Best Corporation Voluntary Savings Plan. 4.2 Restated Certificate of Incorporation of the Corporation, filed as Exhibit 3.1 to the Registration Statement on Form S-1 (No. 33-46483), and incorporated herein by reference. 4.3 Amended and Restated Bylaws of the Corporation, filed as Exhibit 3.2 to the Registration Statement on Form S-1 (No. 33-46483), and incorporated herein by reference. 5.1 Opinion of Richard F. Cooper, Esq. regarding the legality of the securities being registered. 23.1 Consent of Richard F. Cooper, Esq. included in Exhibit 5.1. 23.2 Consent of Ernst & Young LLP, independent auditors. 24.1 Power of Attorney (on signature page). II-3 Item 9. Undertakings. A. The undersigned registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David E. Loeffler, his true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same with all exhibits, thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Smith, State of Arkansas, on December 29, 1998: ARKANSAS BEST CORPORATION By: /s/ David E. Loeffler ------------------------------------------------ Name: David E. Loeffler Title: Vice President - Chief Financial Officer and Treasurer Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Capacity Date --------- -------- ---- Chairman of the Board, Director December __, 1998 - --------------------------------- William A. Marquard /s/ Robert A. Young, III Director, Chief Executive Officer and December 29, 1998 - --------------------------------- President Robert A. Young, III (Principal Executive Officer) /s/ David E. Loeffler Vice President - Chief Financial December 29, 1998 - --------------------------------- Officer and Treasurer (Principal David E. Loeffler Financial and Accounting Officer) Director December __, 1998 - --------------------------------- Frank Edelstein /s/ Arthur J. Fritz, Jr. Director December 29, 1998 - --------------------------------- Arthur J. Fritz, Jr. Director December __, 1998 - --------------------------------- John H. Morris /s/ Alan J. Zakon, Ph.D. Director December 29, 1998 - --------------------------------- Alan J. Zakon, Ph.D.
II-5 The Plan. -------- Pursuant to the requirements of the Securities Act of 1933, the Corporation, in its capacity as administrator of the Arkansas Best Corporation Voluntary Savings Plan, has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Smith, State of Arkansas, on the dates indicated. ARKANSAS BEST CORPORATION By: /s/ David E. Loeffler ------------------------------------------------ Name: David E. Loeffler Title: Vice President - Chief Financial Officer and Treasurer II-6 EXHIBIT INDEX Exhibit Number Document Description -------- -------------------- 4.1 Arkansas Best Corporation Voluntary Savings Plan. 4.2 Restated Certificate of Incorporation of the Corporation, filed as Exhibit 3.1 to the Registration Statement on Form S-1 (No. 33-46483), and incorporated herein by reference. 4.3 Amended and Restated Bylaws of the Corporation, filed as Exhibit 3.2 to the Registration Statement on Form S-1 (No. 33-46483), and incorporated herein by reference. 5.1 Opinion of Richard F. Cooper, Esq., regarding the legality of the securities being registered. 23.1 Consent of Richard F. Cooper, Esq. included in Exhibit 5.1. 23.2 Consent of Ernst & Young LLP, independent auditors. 24.1 Power of Attorney (refer to signature page). II-7 EX-4 2 EXHIBIT 4.1-ARK BEST CORPORATION VOL SVGS PLAN Exhibit 4.1 ARKANSAS BEST CORPORATION VOLUNTARY SAVINGS PLAN
TABLE OF CONTENTS SECTION ONE DEFINITIONS............................................................................1 1.1 "Account(s)" ..........................................................................1 1.2 "Administrator"........................................................................1 1.3 "Alternative Earnings Rate"............................................................1 1.4 "Beneficiary"..........................................................................1 1.5 "Benefit"..............................................................................1 1.6 "Board"................................................................................1 1.9 "Change in Control"....................................................................2 1.10 "Code".................................................................................2 1.11 "Company"..............................................................................2 1.13 "Compensation Deferral Contributions"..................................................3 1.15 "Contributions"........................................................................3 1.16 "Deferred Payments"....................................................................3 1.17 "Deferred Payment Date"................................................................3 1.18 "Designated Subsidiary"................................................................3 1.20 "Earnings".............................................................................3 1.21 "Effective Date".......................................................................3 1.22 "Election Form"........................................................................4 1.23 "Eligible Individual"..................................................................4 1.24 "Employee".............................................................................4 1.25 "Employer".............................................................................4 1.26 "Employer Contribution"................................................................4 1.27 "Employer Account".....................................................................4 1.28 "Entry Date"...........................................................................4 1.29 "ERISA"................................................................................4 1.31 "Installment Payment" .................................................................4 1.32 "Lump Sum".............................................................................4 1.33 "Matching Contributions"...............................................................5 1.34 "Measurement Preferences" .............................................................5 1.35 "Money Market Fund" ...................................................................5 1.36 "Participant"..........................................................................5 1.37 "Plan".................................................................................5 1.38 "Plan Year"............................................................................5 1.40 "Third-Party Recordkeeper".............................................................5 1.41 "Salary"...............................................................................5 1.42 "Separates" or "Separation"............................................................5 1.43 "Trust"................................................................................5 1.44 "Vest" or "Vesting" ...................................................................5 1.45 "Year of Vesting Service"..............................................................5 SECTION TWO ADMINISTRATION.........................................................................5 i 2.1 Appointment of Administrator...........................................................6 2.2 Employer Duties........................................................................6 2.3 Authority of Administrator.............................................................6 2.4 Powers of Administrator and Company....................................................6 2.5 Indemnification........................................................................6 2.6 Bond and Expenses......................................................................6 2.7 Reliance on Tables.....................................................................6 SECTION THREE PARTICIPATION..........................................................................7 SECTION FOUR CONTRIBUTIONS..........................................................................7 4.1 Compensation Deferral Contributions....................................................7 4.2 Crediting of Compensation Deferral Contributions.......................................7 4.3 Matching Contributions.................................................................7 SECTION FIVE PARTICIPANT'S ACCOUNTS AND INVESTMENTS.................................................8 5.1 Establishment of Account...............................................................8 5.2 Earnings Credited to Accounts..........................................................8 5.3 Investment Direction...................................................................8 SECTION SIX VESTING................................................................................9 6.1 Compensation Deferral Account..........................................................9 6.2 Employer Account.......................................................................9 SECTION SEVEN DISTRIBUTION OF BENEFIT................................................................9 7.1 Form and Timing of Distribution........................................................9 7.2 Election of Deferred Payments. ........................................................9 7.3 Installment Payments. ...............................................................10 7.4 Change in Control. ..................................................................10 7.5 Hardship Distribution.................................................................10 7.6 In-Service Withdrawal.................................................................10 7.7 Source of Distribution................................................................11 SECTION EIGHT DESIGNATION OF BENEFICIARIES..........................................................11 8.1 Designation by Participant............................................................11 8.2 Lack of Designation...................................................................11 SECTION NINE AMENDMENT AND TERMINATION.............................................................11 SECTION TEN GENERAL PROVISIONS....................................................................12 10.1 No Assignment.........................................................................12 10.2 Incapacity............................................................................12 10.3 Claims Procedure......................................................................12 ii 10.4 No Guaranty of Deferral...............................................................12 10.5 Communications by, and Information from, Participant..................................13 10.6 No Rights Implied.....................................................................13 10.7 Communications by Administrator or Employer...........................................13 10.8 Interpretations and Adjustments.......................................................13 10.9 No Liability for Good Faith Determinations............................................13 10.10 No Employment Rights..................................................................14 10.11 Withholding of Taxes..................................................................14 10.12 Waivers...............................................................................14 10.13 Records...............................................................................14 10.14 Securities Laws.......................................................................14 10.15 Severability..........................................................................14 10.16 Captions and Gender...................................................................14 10.17 Choice of Law.........................................................................14 10.18 Effective Date and Termination Date...................................................14
iii ARKANSAS BEST CORPORATION VOLUNTARY SAVINGS PLAN Arkansas Best Corporation hereby establishes the Arkansas Best Corporation Voluntary Savings Plan to give a select group of highly compensated employees the opportunity to defer a portion of their compensation and possibly receive deferred employer contributions. For purposes of the Code, the Employers intend this Plan to be an unfunded, unsecured promise to pay on the part of the each Employer. For purposes of ERISA, the Employers intend this Plan to be an unfunded plan solely for the benefit of a select group of management or highly compensated employees of the Employers for the purpose of qualifying the Plan for the "top hat" plan exception under sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. SECTION ONE DEFINITIONS - ----------- ----------- 1.1 "Account(s)" shall mean, collectively, each Plan Year's Compensation Deferral Account, and each Plan Year's Employer Account, maintained for each Participant, except that when it shall be appropriate to refer either to a particular Account, or a particular Plan Year, or both, reference shall be to that Account. 1.2 "Administrator" shall mean the person designated to administer the Plan pursuant to Section Two. 1.3 "Alternative Earnings Rate" shall mean the Earnings of the Money Market Fund for the period of reference. 1.4 "Beneficiary" shall mean the person(s), entity or entities designated by the Participant as the beneficiary of balance of his Benefit. 1.5 "Benefit" shall mean, collectively, the Vested amount credited to each of a Participant's Accounts at the time of reference, except that when it shall be appropriate to refer to the Benefit for a particular Plan Year, or with respect to separate Plan Years, an appropriate reference shall be made. 1.6 "Board" shall mean the Board of Directors of the Company. 1.7 "Bonus" shall mean amounts of compensation paid by an Employer which is not regular salary, wages or commissions, and which the Administrator (i) designates as a Bonus, and (ii) designates the date as of which the Bonus is earned. 1.8 "Business Day" shall mean a day on which the New York Stock Exchange is operating. 1 1.9 "Change in Control" shall mean the first to occur of the following: (a) a dissolution or liquidation of the Company; or (b) a sale of more than ten percent (10%) of the operating assets of the Company in a single transaction or a series of related transactions; or (c) a merger or consolidation (other than a merger effecting a re-incorporation of the Company in another state or any other merger or a consolidation in which the shareholders of the surviving corporation and their proportionate interests therein immediately after the merger or consolidation are substantially identical to the shareholders of the Company and their proportionate interests therein immediately prior to the merger or consolidation) in which the Company is not the surviving corporation (or survives only as a subsidiary of another corporation as a result of a transaction in which the shareholders of the parent of the Company and their proportionate interests therein immediately after the transaction are not substantially identical to the shareholders of the Company and their proportionate interests therein immediately prior to the transaction; provided, however, that the Board may at any time prior to such a merger or consolidation provide by resolution that there has been no Change in Control and that the foregoing provisions of this parenthetical shall not apply if a majority of the Board of Directors of such parent immediately after the transaction consists of individuals who constituted a majority of the Board immediately prior to the transaction); or (d) a transaction in which any person becomes the owner of fifty percent (50%) or more of the total combined voting power of all classes of stock of the Company (provided, however, that the Board may at any time prior to such transaction provide by resolution that there has been no Change in Control and that this subparagraph (c) shall not apply if such acquiring person is a corporation and a majority of the Board of Directors of the acquiring corporation immediately after the transaction consists of individuals who constituted a majority of the Board immediately prior to the acquisition of such fifty percent (50%) or more total combined voting power); or (e) any other transaction or series of transactions which the Board determines has the effect of a Change in Control. 1.10 "Code" shall mean the Internal Revenue Code of 1986, as amended. 1.11 "Company" shall mean Arkansas Best Corporation, a Delaware corporation, and its successors and assigns. 2 1.12 "Compensation" shall mean, collectively, Salary and Bonus, except that where it shall be appropriate to refer to a particular kind of compensation, referral shall be to whichever of Bonus or Salary is appropriate. 1.13 "Compensation Deferral Contributions" shall mean the amounts described in Subsection 4.1. 1.14 "Compensation Deferral Account" shall mean the amount credited under the Plan as a result of the Participant's Compensation Deferral Contributions, and appropriate adjustments as provided herein. 1.15 "Contributions" shall mean, collectively, the Compensation Deferral Contributions, and the Employer Contributions, with respect to each Participant, except that when it shall be appropriate to refer to a particular Contribution, reference shall be to that Contribution. 1.16 "Deferred Payments" shall mean the payment of a Participant's Benefit as described in Section 7.2 and, unless otherwise expressly provided, shall refer to Compensation Deferral Accounts for specific Plan Years. 1.17 "Deferred Payment Date" shall mean the date as of which a Participant's Deferred Payments are made or commenced. 1.18 "Designated Subsidiary" shall mean any Subsidiary that has adopted the Plan. "Subsidiary" shall mean a corporation, domestic or foreign, where fifty percent (50%) or more of the total combined voting power of all classes of stock are held by the Company or another Subsidiary, whether or not such corporation now exists or is hereafter organized or acquired by the Company or another Subsidiary. Designated Subsidiary shall include ABF Freight System, Inc. and Data-Tronics Corporation. 1.19 "Disability" shall mean a medically determinable physical or mental impairment that substantially limits one or more of the major life activities of a Participant and which, in the opinion of the Administrator, pursuant to consistently applied guidelines, medical reports, and other evidence satisfactory to the Administrator, causes a Participant to be unable, with or without reasonable accommodation, to perform the essential functions of the employment position that the Participant holds. The Administrator may require medical proof of disability, such as the certificate of one or more licensed physicians selected by the Administrator. 1.20 "Earnings" shall mean the amounts notationally credited or debited to a Participant's Account (including, without limitation, unrealized appreciation or depreciation) based on his Measurement Preferences as determined by the Administrator under Rules of General Application. 1.21 "Effective Date" shall mean December 30, 1998. 3 1.22 "Election Form" shall mean a written form on which the Participant may specify his or her (i) Compensation Deferral Contribution for the Plan Year (which may be specified either as a percentage or as a fixed dollar amount), (ii) Measurement Preferences, (iii) form and timing of distribution of his Benefit, and (iv) such other matters as shall be determined by the Administrator at the time of reference. 1.23 "Eligible Individual" shall mean an Employee who is (i) a member of a select group of management or highly compensated employees, and (ii) designated by the Administrator as eligible to participate in the Plan. 1.24 "Employee" shall mean a common law employee of the Employer. 1.25 "Employer" shall mean, collectively, the Company and each of its Designated Subsidiaries. 1.26 "Employer Contribution" shall mean the amount of Matching Contributions credited under the Plan by an Employer to a Participant, and such other amount, if any, contributed by an Employer from its own funds and credited under the Plan to a Participant at the time of reference. 1.27 "Employer Account" shall mean the account maintained for each Participant who has received an Employer Contribution, and which will reflect the amount of such Employer Contribution and appropriate adjustments as provided herein. 1.28 "Entry Date" shall mean (i) the Effective Date with respect to Bonuses paid during the first quarter of 1999, (ii) each January 1st, (iii) the first day of the month following designation as an Eligible Individual, (iii) the first day of any month designated in an Election Form and beginning at least sixty (60) days after the filing of such Election Form, and (iv) solely with respect to a Bonus, except as described in (i) the later of (x) 60th day prior to the date the Bonus is earned, or (y) the date the Administrator notifies the Participant of the date as of which the Bonus will be earned (but not later than the date the Bonus is earned). 1.29 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended. 1.30 "Final Deferral Filing Date" shall mean the date that precedes a Participant's Deferred Payment Date of reference by 12 months. 1.31 "Installment Payment" shall mean an annual distribution, in cash, of the Participant's Benefit over a period of years as provided for in Subsections 7.2 and 7.3. 1.32 "Lump Sum" shall mean a single distribution, in cash, of a Participant's Benefit. 4 1.33 "Matching Contributions" shall mean the amounts described in Subsection 4.3. 1.34 "Measurement Preferences" shall mean the preferences described in Subsection 5.3. 1.35 "Money Market Fund" shall mean the fund, which is one of the investment alternatives described in Section 5.3 at the time of reference, invested primarily in debt instruments and which the Administrator determines to have the least risk to principal. 1.36 "Participant" shall mean an Eligible Individual who participates in the Plan pursuant to Section Three. 1.37 "Plan" shall mean the Arkansas Best Corporation Voluntary Savings Plan, as set forth in this document and subsequent amendments. 1.38 "Plan Year" shall mean calendar year. 1.39 "Rules of General Application" shall mean those rules promulgated by the Administrator, in its sole discretion, from time to time with respect to the matter of reference, but which will be applied in a similar manner to Participants similarly situated. 1.40 "Third-Party Recordkeeper" shall mean the person or entity selected by the Administrator to maintain the records necessary to the administration of the Plan. 1.41 "Salary" shall mean Participant's regular salary, wages, and commissions paid by an Employer, plus any amounts deferred under sections 125 or 401(k) of the Code, plus any amounts under deferred from Compensation under this Plan, but excludes Bonuses, expense reimbursements and fringe benefits. 1.42 "Separates" or "Separation" or similar shall mean a Participant's termination of employment with an Employer for any reason (including death or disability). 1.43 "Trust" shall mean grantor trust established between the Company and the trustee(s) named in the Trust. 1.44 "Vest" or "Vesting" or similar, shall mean the portion of a Participant's Employer Account which is nonforfeitable at the time of reference. 1.45 "Year of Vesting Service" shall mean each 365 days of employment with an Employer as determined under Rules of General Application. SECTION TWO ADMINISTRATION - ----------- -------------- 5 2.1 Appointment of Administrator. The Board shall appoint the Administrator. 2.2 Employer Duties. An Employer shall, upon request or as may be specifically required under the Plan, furnish or cause to be furnished all of the information or documentation in its possession or control that is necessary or required by the Administrator to perform its duties and functions under the Plan. 2.3 Authority of Administrator. The Administrator shall have the exclusive authority and responsibility for administering the Plan. The Administrator shall have no power to add to, subtract from, or modify any of the terms of this Plan, or to change or add to any benefits provided by this Plan, or to waive or fail to apply any requirements of eligibility for a benefit under this Plan. All exercises of authority by the Administrator under this Plan shall be final, conclusive and binding, unless found by a court of competent jurisdiction to be arbitrary and capricious. 2.4 Powers of Administrator and Company. The Administrator shall have all powers and discretion as may be necessary to discharge its duties and responsibilities under this Plan. The Administrator has the exclusive authority to interpret the Plan and decide all questions that arise under the Plan. The day-to-day administration of the Plan is delegated by the Administrator to the Benefits Department of the Company. The Administrator may engage agents to assist it and may engage legal counsel, who may be counsel for the Company. Neither the Administrator nor Company will be responsible for any action taken or not taken on the advice of such counsel. The Administrator shall not act upon any matter involving his own rights, benefits or other participation under this Plan. 2.5 Indemnification. The Administrator and the individual(s) who may act to fulfill the responsibilities of the Administrator shall be indemnified by the Company against any and all liabilities arising by reason of any act, or failure to act, pursuant to the provisions of the Plan, including expenses reasonably incurred in the defense of any claim relating to the Plan, even if the same is judicially determined to be due to such member's negligence, but not when the same is judicially determined to be due to the gross negligence or willful misconduct of such member. 2.6 Bond and Expenses. The Administrator shall serve without bond unless state or federal statutes require otherwise, in which event the Company shall pay the premium. The expenses of the Administrator shall be paid by the Company. Such expenses shall include all expenses incident to the functioning of the Administrator, including, litigation costs, fees of accountants, counsel and other specialists and other costs of administering the Plan. 2.7 Reliance on Tables. In administering the Plan, the Administrator shall be entitled to the extent permitted by law to rely conclusively on all tables, valuations, certificates, opinions and reports which are furnished by accountants, legal counsel or other experts employed or engaged by the Administrator. 6 SECTION THREE PARTICIPATION - ------------- ------------- An Eligible Individual will become a Participant by filing an Election Form prior to his or her Entry Date, and will remain a Participant until he or she receives the payment of his or her entire Benefit. Being designated as an Eligible Individual for one Plan Year does not entitle such Employee to continued status as an Eligible Individual for subsequent Plan Years, but such person will remain an Eligible Individual until notified in writing by the Administrator of his or her removal from that status and, following such removal, such Employee shall not be able to elect Compensation Deferral Contributions on any Entry Date on which he or she is not an Eligible Individual. SECTION FOUR CONTRIBUTIONS - ------------ ------------- 4.1 Compensation Deferral Contributions. An Employee who is an Eligible Individual on an Entry Date with respect to a Plan Year may elect to defer up to seventy-five percent (75%) of his Salary for the portion of the Plan Year following such Entry Date, and/or up to seventy-five percent (75%) of a Bonus designated as earned after an Entry Date by the timely filing an Election Form with the Administrator with respect to such Entry Date. Each Election Form shall continue to apply until a new Election Form is timely filed; provided, further, that only the last Election Form timely filed prior to an Entry Date shall be effective. A Participant may not decrease his Compensation Deferral Contributions during a Plan Year. However, a Participant may commence or increase his Compensation Deferral Contributions effective with respect to any Entry Date occurring after January 1st of such Plan Year, by the timely filing of an Election Form. For Entry Dates that occur on January 1st, a Participant may increase or decrease his Compensation Deferral Contributions by the timely filing of an Election Form. 4.2 Crediting of Compensation Deferral Contributions. The amount of a Participant's Compensation Deferral Contributions will be deducted (i) from a Participant's Salary on each payroll date during the Plan Year of reference in an amount equal to the total Compensation Deferral Contribution attributable to Salary divided by the number of payroll dates during the Plan Year of reference following the Entry Date of reference, and (ii) from a Participant's Bonus on the date of its payment in the full amount of Compensation Deferral Contribution elected to be deducted from such Bonus payment. The portion of the Compensation Deferral Contribution amount which is deducted from Salary shall be credited to the Participant's Compensation Deferral Account as of the payroll date on which deducted; and, regardless of the date designated by the Administrator as of which the Bonus is earned, the full amount of the Compensation Deferral Contribution to be deducted from the Bonus shall be credited to the Participant's Compensation Deferral Account on the date the Bonus actually is (or would have been) paid. 4.3 Matching Contributions. An Employer shall credit to a Participant's Account fifteen cents ($.15) for every dollar that such Participant elects as his Compensation Deferral Contribution for the Plan Year, up to a maximum Matching Contribution of $15,000 per Plan Year. Matching Contributions are 7 credited as of each payroll period and upon the date a Bonus actually is (or would have been) paid. SECTION FIVE PARTICIPANT'S ACCOUNTS AND INVESTMENTS - ------------ -------------------------------------- 5.1 Establishment of Account. The Administrator shall establish separate Accounts for each Participant, to which shall be credited or debited the Participant's share of Contributions and Earnings, and to which shall be debited the Account's distributions. 5.2 Earnings Credited to Accounts. Earnings shall be credited to Accounts based on Measurement Preferences (or alternative Earnings Rate) as shall be determined by the Administrator in accordance with Rules of General Application. 5.3 Investment Direction. Effective as of each Investment Date, in accordance with Rules of General Application, each Participant may select investments ("Measurement Preferences") from among the different investment alternatives which are made available by the Administrator, and separately for existing balances in his or her Account and for future Contributions. No actual investments shall be made by Participants. The Measurement Preferences are only for the purpose of determining the Employer's payment obligation under the Plan and such Measurement Preferences do not control any actual investments made by the Employer or the Trustee. A Participant may change his Measurement Preferences as of each Business Day by filing a written Election Form with the Administrator who will review and determine whether such direction shall be forwarded, and if the Administrator elects to follow such direction, he shall notify the Third Party Recordkeeper. If a Participant has not filed an Election Form with respect to his Account, he will be deemed to have elected to be invested in the Money Market Fund until the first Business Day with respect to which he has designated an investment or an Election Form. Notwithstanding the forgoing, the Administrator shall have the power to reject some or all of the selections of Measurement Preferences selected by any one or more Participants by advising the affected Participant(s) in writing of such rejection within five (5) days of receiving an Election Form selecting or changing a Participant's Measurement Preferences. If the Administrator rejects a selection, notwithstanding any provision hereof to the contrary, the portion of such Account(s) subject to such rejection shall be deemed invested in the Money Market Fund until a Measurement Preference is approved. 5.4 Statements. As soon as reasonably possible following each Plan Year, and at such other times as determined by the Administrator under Rules of General Application, the Administrator shall furnish each Participant with a statement setting forth (i) the amount in his Account, (ii) the amount of Contributions, separately showing the Compensation Deferral Contributions and Employer Contributions, credited to his Account during such period, (iii) the Earnings credited or debited to his Account for such period, and (iv) any debited charges to, or distributions from, his Account during such period. 8 SECTION SIX VESTING - ----------- ------- 6.1 Compensation Deferral Account. Participant shall always be one hundred percent (100%) Vested in the amounts credited to his Compensation Deferral Account. 6.2 Employer Account. Participant shall Vest in the amount credited to his Employer Account in accordance with the following Vesting Schedule: Number of Years of Vesting Service Vested Percentage ------------------ ----------------- Less than 5 years None 5 years or more 100% Notwithstanding any other provision in this Plan, a Participant's Employer Account will become one hundred percent (100%) Vested upon the date of the earliest of the Participant's Separation due to death, Disability, retirement at or after age 65, or a Change in Control. SECTION SEVEN DISTRIBUTION OF BENEFIT - ------------- ----------------------- 7.1 Form and Timing of Distribution. Unless a Participant is entitled to a Deferred Payment, upon a Participant's Separation he or she shall receive a Lump Sum distribution of his Benefit, as soon as reasonably possible (not to exceed sixty (60) days) following the Business Day on which his distributable Benefit is determined in accordance with Rules of General Application. 7.2 Election of Deferred Payments. A Participant shall be entitled to a Deferred Payment of his Account for a particular Plan Year so long as (i) the Deferred Payment occurs before the date of his Separation, (ii) he has filed an Election Form on which he has (A) selected a Deferred Payment Date with respect to such Accounts, and (B) selected a form of payment for the amount in such Accounts, and (iii) the amount of the Benefit which is a Deferred Payment with respect to such Accounts on such Deferred Payment Date is at least $5,000. A Participant's Deferred Payments may be made or commenced at any time, and may be paid either in a Lump Sum or in up to fifteen (15) Installment Payments, as the Participant shall select on the Election Form in effect on his Final Deferral Filing Date, and only the last Election Form filed on or before such Final Deferral Filing Date shall be effective. Installment Payments shall be paid at such time during the year as shall be determined by the Administrator. Notwithstanding the foregoing, following the Participant's Separation he will continue to be entitled to a Deferred Payment (including Installment Payments which are in pay status) only if (iv) he does not Separate prior to age fifty-five (55) and completion of ten Years of Service and (v) his Separation is not by reason of his death, and if the conditions of (iv) and (v) are not satisfied, his distribution will be made in accordance with Section 7.1. 9 7.3 Installment Payments. If Participant elects a Deferred Payment in the form of Installment Payments, each installment shall be equal to the product of (i) his Benefit attributable to the Accounts for the particular Plan Year of reference on the first Business Day of the Plan Year in which such payment is made, multiplied by (ii) a fraction, the numerator of which is one (1), and the denominator of which is the total number of installments originally elected less the number of installments previously paid. Without limitation, a Participant may receive multiple Installment Payments, each attributable to Deferred Payments from Accounts with respect to different Plan Years. 7.4 Change in Control. Notwithstanding any other provision to the contrary, upon a Change in Control, all Benefits hereunder (including, without limitation, Benefits otherwise payable on a later Deferred Payment Date, or which are being paid in Installment Payments), shall be distributed to Participants in a Lump Sum as soon as reasonably possible, but not more than thirty (30) days, after such Change in Control. Notwithstanding the foregoing, at any time prior to the date of a Change in Control, a Participant may elect to waive the provisions of this Section 7.4 with respect to a designated Change in Control and continue to retain his Benefits under the Plan as if such Change in Control had not occurred. 7.5 Hardship Distribution. Upon the Administrator's determination (following petition by the Participant) that the Participant has suffered a "severe financial hardship", the Administrator shall distribute to Participant that portion of such Participant's Benefit as requested by the Participant and approved by the Administrator, but in no event shall the Administrator approve a distribution which is greater than is necessary to relieve the financial hardship. A "severe financial hardship" means an unforeseeable event resulting from a sudden and unexplained illness or accident experienced by either the Participant or his dependents, the loss of property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the Participant's control, which the Participant can satisfy through available or attainable assets. Without limitation, the definition of severe financial hardship does not include the need to send a child to college or the desire to purchase a home. The Administrator shall evaluate the facts and circumstances of each hardship request. The Participant shall receive a single lump-sum cash payment of the amount approved by the Administrator as soon as possible following the Administrator's approval. If a Participant receives a hardship distribution he or she shall be ineligible to elect Compensation Deferral Contributions until an Entry Date occurring after the first anniversary of the date of such withdrawal. 7.6 In-Service Withdrawal. Prior to a Participant's Separation, a Participant may elect to receive a distribution of a portion (not less than $1,000) of his Benefit. If a Participant elects to receive such a distribution, an amount equal to ten percent (10%) of the amount withdrawn shall be deducted from his Benefit (and irrevocably forfeited), such Participant's current Compensation Deferral Contribution shall immediately cease, and such Participant shall be ineligible to elect to recommence Compensation Deferral Contributions until an Entry Date occurring after the first anniversary of the date of such 10 such withdrawal. The amount forfeited shall inure to the benefit of the Employer in the manner determined by the Administrator. 7.7 Source of Distribution. All payments of Benefits shall be in cash from the funds in the Trust or, in the discretion or the Employer, from the Employer's funds held outside of the Trust. Nothing contained in the Plan, nor any action taken pursuant to the provisions of the Plan, shall create or be construed to create a fiduciary relationship between the Company, an Employer, Participant, Beneficiary, or Employee or other person. To the extent that any person acquires a right to be paid Benefits, such right shall be no greater than the right of an unsecured general creditor of his Employer. SECTION EIGHT DESIGNATION OF BENEFICIARIES - ------------- ---------------------------- 8.1 Designation by Participant. Participant's written designation of one or more persons or entities as his Beneficiary shall operate to designate the Participant's Beneficiary under this Plan. The Participant shall file with the Administrator a copy of his Beneficiary designation under the Plan. The last such designation received by the Administrator shall be controlling, and no designation, or change or revocation of a designation shall be effective unless received by the Administrator prior to the Participant's death, and in no event shall it be effective as of a date prior to such receipt. 8.2 Lack of Designation. If no Beneficiary designation is in effect at the time of Participant's death, if no designated Beneficiary survives the Participant or if the otherwise applicable Beneficiary designation conflicts with applicable law, the Participant's estate shall be the Beneficiary. The Administrator may direct the Employer or Trustee to retain any unpaid Benefits, without crediting for either Measurement Preferences or Applicable Interest Rate, until all rights to the unpaid Benefits are determined. Alternatively, the Administrator may direct the Employer or Trustee to pay the Benefits into any court of appropriate jurisdiction. Any such payment shall completely discharge each Employer, the Trustee, and the Administrator from any liability under the Plan. SECTION NINE AMENDMENT AND TERMINATION - ------------ ------------------------- The Plan, without cause and without prior notice, may be terminated, in whole or in part, by the Company, provided that no Amendment may reduce a Participant's Benefit. In the event of a termination of the Plan, all Participants shall become 100% Vested on such date of termination and, notwithstanding any provisions of the Plan to the contrary, the Benefits of such affected Participant may, in the Company's sole discretion, be distributed in a Lump Sum as soon as reasonably possible (not to exceed 60 days) following such termination. 11 SECTION TEN GENERAL PROVISIONS - ----------- ------------------ 10.1 No Assignment. The right of any Participant to Benefits shall not be assigned, transferred, pledged or encumbered, either voluntarily or by operation of law, except as provided in Section Eight with respect to designations of Beneficiaries. 10.2 Incapacity. If the Administrator shall find that any person to whom any Benefit is payable under the Plan is unable to care for his affairs because of illness or accident or is a minor, any payment due shall be paid to the duly appointed guardian, Administrator or other legal representative for such person. Any such payment shall be a complete discharge of the liabilities of each Employer, the Trustee and the Administrator as to the amount paid. 10.3 Claims Procedure. The Administrator will make all determinations as to the rights of any Employee, Participant, Beneficiary or other person under the terms of this Plan. Any Employee, Participant, Beneficiary, or person claiming under them, may make a claim for benefits under this Plan by filing written notice with the Administrator setting forth the substance of the claim. If a claim is wholly or partially denied, the claimant will have the opportunity to appeal the denial upon filing with the Administrator a written request for review within 60 days after receipt of notice of denial. In making an appeal the claimant may examine pertinent Plan documents and may submit issues and comments in writing. Denial of a claim or a decision on review will be made in writing by the Administrator delivered to the claimant within 60 days after receipt of the claim or request for review, unless special circumstances require an extension of time for processing the claim or review, in which event the Administrator's decision must be made as soon as possible thereafter but not beyond an additional 60 days. If no action on an initial claim is taken within 120 days, the claims will be deemed denied for purposes of permitting the claimant to proceed to the review stage. The denial of a claim or the decision on review will specify the reasons for the denial or decision and will make reference to the pertinent Plan provisions upon which the denial or decision is based. The denial of a claim will also include a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of the claim review procedure herein described. The Administrator will serve as an agent for service of legal process with respect to the Plan unless the Employer, through written resolution, appoints another agent. 10.4 No Guaranty of Deferral. While the Company intends that this Plan will result in the deferral of the imposition of a federal income tax on the funds credited hereunder until such time as they actually shall be paid to a Participant, nothing herein shall be construed as a promise, guarantee or other representation by the Company of such tax effect nor, without limitation, shall the Company be liable for any taxes, penalties or other amounts incurred by Participants in the event it is determined by applicable authorities that such deferral was not accomplished, and each Eligible Individual electing to become a Participant should consult his or her own tax advisor(s) to determine the tax consequences in his or her specific case, and their suitability for participation in this Plan. 12 10.5 Communications by, and Information from, Participant. Each Participant shall file with the Administrator such pertinent information concerning himself and his Beneficiary as the Administrator may specify, and no Participant or Beneficiary or other person shall have any rights or be entitled to any benefits under the Plan, unless such information is properly filed. All elections, selections, designations, requests, notices, instructions and other communications to the Administrator, Third-Party Recordkeeper, Company, or Employer required or permitted under the Plan shall be (i) in such form as is prescribed from time to time by the Administrator, (ii) shall be (x) mailed by first-class mail, or (y) delivered, to such location as shall be specified by the Administrator and shall be deemed to have been given and delivered only on actual receipt by the person to be charged at such location. If the Administrator notifies the Participant or Beneficiary by registered mail (return receipt requested) at his last known address that he is entitled to a distribution and also notifies him of the provisions of this paragraph, and the Participant or Beneficiary fails to claim his benefits under the Plan or provide his current address to the Administrator within one year after such notification, his Benefit will be forfeited and inure to the benefit of the Employer in the manner determined by the Administrator. If the Participant or Beneficiary is subsequently located, such Benefit will be restored, but without Earnings being credited subsequent to the date of the forfeiture. 10.6 No Rights Implied. Without limitation, nothing contained in this Plan, nor any modification or amendment to the Plan, nor the creation of any Account on the books of the Company, shall give any Employee or Participant any legal or equitable right against the Company or any officer, director, or Employee of the Company, except as expressly provided by the Plan. 10.7 Communications by Administrator or Employer. All notices, statements, reports and other communications from the Administrator or any Employer to any person required or permitted under the Plan shall be deemed to have been duly given when delivered to, or when mailed first-class mail, postage prepaid and addressed to, such person at his or her address last appearing on the records of the most recent Employer. 10.8 Interpretations and Adjustments. To the extent permitted by law, each interpretation of the Plan and each decision on any matter relating to the Plan made by the Board, the Company, or the Administrator, within their scope of their authority hereunder, shall be made in their sole discretion and shall be binding on all persons. A misstatement or other mistake of fact shall be corrected when it becomes known and the person responsible shall make such adjustment on account thereof as he considers equitable and practicable. 10.9 No Liability for Good Faith Determinations. Neither the Company, the Board, nor the Administrator shall be liable for any act, omission, or determination taken or made with respect to the Plan which is not judicially determined to be due to willful misconduct, and members of the Board, and the Administrator, shall be entitled to indemnification and reimbursement by the Company in respect of any claim, loss, damage, or expense (including attorneys' fees, the costs of settling any suit, provided such settlement is approved by independent legal counsel selected by the Company, and amounts paid in satisfaction of a judgment, except a judgment based on a finding of willful 13 misconduct) arising therefrom to the full extent permitted by law and under any directors' and officers' liability or similar insurance coverage that may from time to time be in effect. 10.10 No Employment Rights. Neither the Plan nor any action taken under the Plan shall be construed as giving to any Employee the right to be retained in the employ of an Employer or as affecting the right of an Employer to dismiss any Employee at any time, with or without cause. 10.11 Withholding of Taxes. An Employer shall deduct from Participant's Salary or the amount of any payment made pursuant to this Plan any amounts required to be paid or withheld by the federal government or any state or local government. By his participation in the Plan, the Participant agrees to all such deductions. 10.12 Waivers. Any waiver of any right granted pursuant to this Plan shall not be valid unless the same is in writing and signed by the party waiving such right. Any such waiver shall not be deemed to be a waiver of any other rights. 10.13 Records. Records of the Company, and of the Administrator, as to any matters relating to this Plan will be conclusive on all persons. 10.14 Securities Laws. The Plan intends to comply with and be exempt under The Securities Act of 1933, as amended. The Participants under the Plan are final purchasers and not underwriters or conduits to other beneficial owners or subsequent purchasers. 10.15 Severability. In case any one or more of the provisions contained in this Plan shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions in this Plan shall not in any way be affected or impaired. 10.16 Captions and Gender. The captions preceding the Sections and Subsections of this Plan have been inserted solely as a matter of convenience and in no way define or limit the scope or intent of any provisions of this Plan. Where the context admits or requires, words used in the masculine gender shall be construed to include the feminine and the neuter also, the plural shall include the singular, and the singular shall include the plural. 10.17 Choice of Law. The Plan and all rights under this Plan shall be governed by and construed in accordance with the laws of the State of ARKANSAS, except to the extent preempted by ERISA. 10.18 Effective Date and Termination Date. The Plan is effective on the Effective Date and shall terminate on the date no further Benefits are credited hereunder, or on such earlier date as the Plan is terminated pursuant to Section Nine. 14 IN WITNESS WHEREOF, the Company has executed this Plan on this the 29th day of December, 1998. ARKANSAS BEST CORPORATION By: /s/ Richard F. Cooper ------------------------------ Its: Vice President - Administration 15 EX-5 3 EXHIBIT 5.1-OPINION & CONSENT OF RICHARD F. COOPER December 30, 1998 The Board of Directors Arkansas Best Corporation 3801 Old Greenwood Road Fort Smith, AR 72903 Re: Securities and Exchange Form S-8 Filing Arkansas Best Corporation Voluntary Savings Plan Dear Sirs: As General Counsel for Arkansas Best Corporation, a Delaware corporation ("Company"), I have represented the Company in connection with the registration with the Securities and Exchange Commission under the Securities Act of 1933 of deferred compensation obligations ("Obligations") to be issued by the Company from time to time pursuant to the Arkansas Best Corporation Voluntary Savings Plan ("Plan"). This opinion is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Act"). In connection with this opinion, I am familiar with the corporate proceedings taken by the Company in connection with the authorization of the Plan and the Obligations, and have made such other examinations of law and fact as considered necessary in order to form a basis for the opinion hereafter expressed. Based upon the foregoing, I am of the opinion that the Obligations have been duly authorized, and upon the issuance of the Obligations under the terms of the Plan, such Obligations will be legally valid and binding obligations of the Company, except as may be limited by the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors; the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought; and the effect of the laws of usury or other laws or equitable principles relating to or limiting the interest rate payable on indebtedness. I am admitted to the Bar of the State of Arkansas, and I express no opinion as to the laws of any other jurisdiction. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name wherever appearing in the Registration Statement and any amendment thereto. Yours truly, /s/ Richard F. Cooper - --------------------- Richard F. Cooper EX-23 4 EX 23.2 - CONSENT OF ERNST & YOUNG Consent of Independent Auditors We consent to the incorporation by reference in this Registration Statement (Form S-8) pertaining to the Arkansas Best Corporation Voluntary Savings Plan of our report dated January 28, 1998, with respect to the consolidated financial statements of Arkansas Best Corporation incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 1997, and the related financial statement schedule included therein, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP --------------------- Little Rock, Arkansas December 29, 1998 -----END PRIVACY-ENHANCED MESSAGE-----