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Exhibit 4(e)
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 ____ day of
___________________, 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:
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
"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
"XXX Stock" means the voting common stock of Roadway Express,
Inc.
2.41B XXX Stock Fund
"XXX Stock Fund" means the Investment Fund described in
Section 7.1, which is invested solely in XXX 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.
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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
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 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
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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.
15. Subsection 7.6(a) of the Plan is hereby amended in
its entirety to read as follows:
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(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
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:
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NATIONAL CITY BANK
By:
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Date:
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