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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)
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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 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxx (hereinafter referred
as the "Trustee"). Except as otherwise specified herein, this Amendment No. 2
shall be effective January 1, 1996.
WITNESSETH:
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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;
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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 "XXX 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 XXX Savings Plan Trust.
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2. Section 2.13 of the Plan is hereby amended in its entirety
to read as follows:
2.13 Contributions
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"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 XXX Stock
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"XXX Stock" means the voting common stock of Roadway Express,
Inc.
2.41B XXX Stock Fund
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"XXX Stock Fund" means the Investment Fund described in
Section 7.1, which is invested solely in XXX Stock.
2.41C Rollover Contributions
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"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.
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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 XXX 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
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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
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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.
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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.
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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:
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(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.
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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."
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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 XXX Stock Fund, to be invested in XXX Stock. The XXX
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
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XXX Stock Fund
The XXX Stock Fund shall be subject to the following terms and
conditions:
(1) Dividends, interest and other distributions other than XXX
Stock received by the Trustee in respect of the XXX 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 XXX Stock Fund and not otherwise eligible for
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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 XXX Stock Fund into the XXX Stock Fund.
(3) Each Participant shall be entitled to instruct the Trustee
as to the voting of any full or partial shares of XXX 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 XXX 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 XXX 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 XXX 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 XXX 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 XXX 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 XXX Stock Fund
shall be subject to the provisions of the Plan to the extent not
inconsistent with the provisions of this Exhibit.
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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/ Xxxxxx X. Xxxxx
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Title: V.P. Corporate Support Svcs.
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Date: 12-21-1995
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NATIONAL CITY BANK
By: /s/ Xxxxx X. Xxxxxx
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Title: Senior Vice President
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Date: 12-28-95
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