EXHIBIT 10.1
ARKANSAS BEST CORPORATION
VOLUNTARY SAVINGS PLAN
Amended and Restated Effective as of January 1, 2005
TABLE OF CONTENTS
SECTION ONE - -DEFINITIONS..................................................1
1.1 "Account(s)" ...............................................1
1.2 "Act".......................................................1
1.3 "Administrator".............................................1
1.4 "Alternative Earnings Rate".................................1
1.5 "Annual Installment Payment"................................1
1.6 "Beneficiary"...............................................1
1.7 "Benefit"...................................................2
1.8 "Board".....................................................2
1.9 "Bonus".....................................................2
1.10 "Business Day"..............................................2
1.11 "Change in Control".........................................2
1.12 "Code"......................................................3
1.13 "Company"...................................................3
1.14 "Compensation"..............................................3
1.15 "Compensation Deferral Contributions"......................3
1.16 "Compensation Deferral Account".............................3
1.17 "Contributions".............................................3
1.18 "Deferred Payments".........................................3
1.19 "Deferred Payment Date".....................................3
1.20 "Designated Subsidiary".....................................4
1.21 "Disability"................................................4
1.22 "Earnings"..................................................4
1.23 "Effective Date"............................................4
1.24 "Election Date".............................................4
1.25 "Election Form".............................................4
1.26 "Eligible Individual".......................................5
1.27 "Employee"..................................................5
1.28 "Employer"..................................................5
1.29 "Employer Contributions"....................................5
1.30 "Enployer Account"..........................................5
1.31 "Entry Date"................................................5
1.32 "ERISA".....................................................5
1.33 "Final Deferral Filing Date"................................5
1.34 "Lump Sum"..................................................5
1.35 "Matching Contributions"....................................5
1.36 "Match Qualified Deferral"..................................5
1.37 "Measurement Preferrences"..................................5
1.38 "Money Market Fund" ........................................5
1.39 "Non-Scheduled In-Service Withdrawal" ......................6
1.40 "Participant"...............................................6
1.41 "Plan"......................................................6
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1.42 "Plan Year".................................................6
1.43 "Post-2004 Deferrals".......................................6
1.44 "Pre-2004 Deferrals"........................................6
1.45 Rules of General Application"...............................6
1.46 "Salary"....................................................6
1.47 "Separates" or "Separation".................................6
1.48 "Specified Employee"........................................6
1.49 "Third Party Recordkeeper"..................................6
1.50 "Trust".....................................................6
1.51 "Vest" or "Vesting" ........................................7
1.52 "Year of Vesting Service"...................................7
SECTION TWO - ADMINISTRATION...............................................7
2.1 Appointment of Administrator................................7
2.2 Employer Duties.............................................7
2.3 Authority of Administrator..................................7
2.4 Powers of Administrator and Company.........................7
2.5 Indemnification.............................................7
2.6 Bond and Expenses...........................................7
2.7 Reliance on Tables..........................................8
SECTION THREE - PARTICIPATION...............................................8
SECTION FOUR - CONTRIBUTIONS................................................8
4.1 Compensation Deferral Contributions.........................8
4.2 Crediting of Compensation Deferral Contributions............8
4.3 Matching Contributions......................................9
SECTION FIVE - PARTICIPANT'S ACCOUNTS AND INVESTMENTS.......................9
5.1 Establishment of Account....................................9
5.2 Earnings Credited to Accounts...............................9
5.3 Investment Direction........................................9
5.4 Statements.................................................10
SECTION SIX - VESTING 10
6.1 Compensation Deferral Account..............................10
6.2 Employer Account...........................................10
SECTION SEVEN - DISTRIBUTION OF BENEFIT....................................11
7.1 Election of Deferred Payments..............................11
7.2 Types of Deferred Payments.................................11
7.3 Change of Deferred Payment Date............................12
7.4 Mandatory Lump Sum Distribution............................12
7.5 Separation to Specified Employee...........................12
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7.6 Change in Control..........................................12
7.7 Hardship Distribution......................................13
7.8 Non-Scheduled In-Service Withdrawal........................13
7.9 Source of Distribution.....................................14
SECTION EIGHT - DESIGNATION OF BENEFICIARIES...............................14
8.1 Designation by Participant.................................14
8.2 Lack of Designation........................................14
SECTION NINE - AMENDMENT AND TERMINATION...................................14
SECTION TEN - GENERAL PROVISIONS...........................................15
10.1 No Assignment..............................................15
10.2 Incapacity.................................................15
10.3 Claims Procedure...........................................15
10.4 No Guaranty of Deferral....................................17
10.5 Communications by, and Information from, Participant.......17
10.6 No Rights Implied..........................................17
10.7 Communications by Administrator or Employer................17
10.8 Interpretations and Adjustments............................18
10.9 No Liability for Good Faith Determinations.................18
10.10 No Employment Rights.......................................18
10.11 Withholding of Taxes.......................................18
10.12 Waivers....................................................18
10.13 Records....................................................18
10.14 Securities Laws............................................18
10.15 Severability...............................................19
10.16 Captions and Gender........................................19
10.17 Choice of Law..............................................19
10.18 Effective Date and Termination Date........................19
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ARKANSAS BEST CORPORATION
VOLUNTARY SAVINGS PLAN
AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2005
Arkansas Best Corporation hereby amends and restates the Arkansas Best
Corporation Voluntary Savings Plan (the "Plan") effective as of January 1, 2005.
The purpose of the Plan is 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.
The purpose of this amendment and restatement of the Plan is to comply
with the provisions of the American Jobs Creation Act of 2004 (the "Act") in
order to avoid immediate taxation of amounts deferred hereunder, and the Plan
will be interpreted accordingly. With respect to Pre-2005 Deferrals, the Plan
shall be interpreted so as to avoid having such Pre-2005 Deferrals subject to
the Act.
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 "ACT" shall mean the American Jobs Creation Act of 2004, as it may
be amended, and any guidance issued thereunder by the Internal Revenue Service
and the Department of the Treasury.
1.3 "ADMINISTRATOR" shall mean the person designated to administer the
Plan pursuant to SECTION TWO.
1.4 "ALTERNATIVE EARNINGS RATE" shall mean the Earnings of the Money
Market Fund for the period of reference.
1.5 "ANNUAL INSTALLMENT PAYMENT" shall mean an annual distribution, in
cash, of the Participant's Benefit over a period of years as provided for in
Section 7.2(a) and (b).
1.6 "BENEFICIARY" shall mean the person(s), entity or entities
designated by the Participant as the beneficiary of the balance of his Benefit.
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1.7 "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.
1.8 "BOARD" shall mean the Board of Directors of the Company.
1.9 "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.
1.10 "BUSINESS DAY" shall mean a day on which the New York Stock
Exchange is operating. 1.1
1.11 "CHANGE IN CONTROL" shall mean the first to occur of the
following:
(a) there shall be consummated any consolidation or merger of
the Company in which the Company is not the continuing or surviving
corporation or pursuant to which the Company's common stock would be
converted into cash, securities, or other property, or any lease,
exchange or other transfer (excluding transfer by way of pledge or
hypothecation), in one transaction or a series of related transactions,
of all, or substantially all, of the assets of the Company, other than
any such consolidation, merger, lease, exchange or transfer in which
the Company, or any of its affiliates, or the holders of the Company's
common stock immediately prior to any such actions have at least a
fifty-one percent (51%) ownership of the surviving corporation after
the consolidation or merger of the entity to which such assets are
transferred, leased, exchanged or otherwise transferred;
(b) the shareholders of the Company approve any plan or
proposal for the liquidation or dissolution of the Company;
(c) any 'person' (as such is defined in Section 3(a)(9) or
Section 13(d)(3) under the Securities Exchange Act of 1934 [the '1934
Act']) or any 'group' (as such term is used in Rule 13d-5 promulgated
under the 1934 Act) other than the Company or any successor of the
Company or any subsidiary of the Company or any employee benefit plan
of the Company or any subsidiary (including such plan's trustee),
becomes a beneficial owner for purposes of Rule 13d-3 promulgated under
the 1934 Act, directly or indirectly, of securities of the Company
represented thirty-five percent (35%) or more of the Company's then
outstanding securities having the right to vote in the election of
directors;
(d) if at any time the Continuing Directors then serving on
the Board cease for any reason to constitute at least a majority
thereof. 'Continuing Director' shall mean a Director of the Company who
either (A) is a Director of the Company on January 1, 2005, or (B)
whose initial appointment or initial nomination for election or
election by
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the Company's shareholders was approved by a majority of the Continuing
Directors (including any successors elected pursuant to this Subsection
(d)) then on the Board; or
(e) any person or group (as defined in Subsection (c) above)
commences a tender offer or exchange offer for all or less than all of
the share of the Company's issued and outstanding common stock that
would result in, upon the consummation of such offer, the person or
group, together with all of its or their affiliates, beneficially
owning 25% or more of the Company's common stock, and which offer does
not include a binding written commitment by the offeror to purchase any
shares that are not tendered or exchanged for the same cash
consideration (or in the event of any exchange offer, the cash
equivalent of the fair market value of the securities or their property
offered in the exchange, as determined by the Company's Board in its
sole discretion) within 90 days following the consummation of the
tender or exchange offer; provided, however, that if the tender offer
or exchange offer that would have otherwise resulted in a Change in
Control is canceled, terminated, withdrawn or otherwise not
consummated, such offer shall be deemed never to have been made and no
Change in Control shall be deemed to have occurred.
1.12 "CODE" shall mean the Internal Revenue Code of 1986, as amended.
1.13 "COMPANY" shall mean Arkansas Best Corporation, a Delaware
corporation, and its successors and assigns.
1.14 "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.
1.15 "COMPENSATION DEFERRAL CONTRIBUTIONS" shall mean the amounts
described in SUBSECTION 4.1.
1.16 "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.
1.17 "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.
1.18 "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.
1.19 "DEFERRED PAYMENT DATE" shall mean the date as of which a
Participant's Deferred Payments are made or commenced.
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1.20 "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, without limitation, ABF
Freight System, Inc. and Data-Tronics Corporation.
1.21 "DISABILITY" shall be deemed to occur if (a) the Administrator
determines that the Participant is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (b) the Participant is, by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months, receiving income replacement benefits for a period
of not less than 3 months under an accident and health plan covering the
employees of the Employer.
1.22 "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.
1.23 "EFFECTIVE DATE" of this amendment and restatement of the Plan
shall mean January 1, 2005. The original effective date of the Plan was December
30, 1998.
1.24 "ELECTION DATE" shall mean (a) subject to the next-following
sentence, with respect to any Salary earned on or after January 1, 2005,
December 31 (or such earlier date as established by the Administrator) of the
Plan Year immediately preceding the Plan Year in which such Salary is paid; (b)
with respect to any Bonus that is "performance-based compensation" (as defined
under the Act) based on services performed over a period of at least twelve (12)
months, six (6) months before the end of such period (or such earlier date as
established by the Administrator); (c) with respect to any Bonus that is not
"performance-based compensation" (as defined under the Act) or is based on
services performed over a period of less than twelve (12) months, December 31
(or such earlier date as established by the Administrator) of the Plan Year
immediately preceding the Plan Year in which the performance period commences;
and (d) with respect to any Bonus with respect to 2004 that is paid in 2005,
December 31, 2004 (or such earlier date as established by the Administrator).
Notwithstanding subparagraph (a) of the preceding sentence, with respect to the
first year in which a Participant becomes eligible to participate in the Plan,
the Election Date with respect to Compensation earned for services to be
performed subsequent to the election shall be thirty (30) days after the date
the Participant becomes eligible to participate in the Plan (or such earlier
date as established by the Administrator).
1.25 "ELECTION FORM" shall mean a written form on which the Participant
may specify his (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
4
distribution of his Benefit, and (iv) such other matters as shall be determined
by the Administrator at the time of reference.
1.26 "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.
1.27 "EMPLOYEE" shall mean a common law employee of the Employer.
1.28 "EMPLOYER" shall mean, collectively, the Company and each of its
Designated Subsidiaries.
1.29 "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.
1.30 "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.
1.31 "ENTRY DATE" shall mean: (a) for any Eligible Individual who is a
Participant on January 1 of a Plan Year, such January 1; (b) with respect to
Bonuses described in Section 1.24(b), (c) and (d), the date described therein;
and (c) for any newly-eligible Participant, the first day of the month following
designation as an Eligible Individual.
1.32 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.33 "FINAL DEFERRAL FILING DATE" shall mean, subject to Section 7.3,
the date that precedes a Participant's Deferred Payment Date of reference by 12
months.
1.34 "LUMP SUM" shall mean a single distribution, in cash, of a
Participant's Benefit.
1.35 "MATCHING CONTRIBUTIONS" shall mean the amounts described in
Section 4.3.
1.36 "MATCH QUALIFIED DEFERRAL" shall mean each Compensation Deferral
Contribution and its related Company Match as described in Section 6.2(b).
1.37 "MEASUREMENT PREFERENCES" shall mean the preferences described in
Section 5.3.
1.38 "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.
5
1.39 "NON-SCHEDULED IN-SERVICE WITHDRAWAL" shall mean distributions
from the Compensation Deferral Account as described in SECTION 7.8.
1.40 "PARTICIPANT" shall mean an Eligible Individual who participates
in the Plan pursuant to Section Three.
1.41 "PLAN" shall mean the Arkansas Best Corporation Voluntary Savings
Plan, as set forth in this document and subsequent amendments.
1.42 "PLAN YEAR" shall mean calendar year.
1.43 "POST-2004 DEFERRALS" shall mean (a) any amounts deferred under
the Plan in any Plan Year that commences after December 31, 2004 and any
Earnings thereon (including without limitation any Bonus payable in 2005 with
respect to 2004), and (b) any amounts deferred under the Plan prior to January
1, 2005 (and any Earnings thereon) that are not Vested as of December 31, 2004.
1.44 "PRE-2005 DEFERRALS" shall mean the portion of the Participant's
Account that is not Post-2004 Deferrals.
1.45 "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.
1.46 "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 deferred by a Participant under this Plan,
but excludes Bonuses, expense reimbursements and fringe benefits.
1.47 "SEPARATES" OR "SEPARATION" or similar words shall mean a
Participant's termination of employment with an Employer and the entities
aggregated with the Employer pursuant to sections 414(b) and (c) of the Code for
any reason (including death or disability); provided that, with respect to
Post-2004 Deferrals, such terms shall have such meaning as provided under the
Act.
1.48 "SPECIFIED EMPLOYEE" shall mean a key employee of the Employer as
defined in the Act.
1.49 "THIRD-PARTY RECORDKEEPER" shall mean the person or entity
selected by the Administrator to maintain the records necessary to the
administration of the Plan.
1.50 "TRUST" shall mean a grantor trust established between the Company
and the trustee(s) named in the Trust.
6
1.51 "VEST" OR "VESTING" or similar, shall mean the portion of a
Participant's Employer Account which is nonforfeitable at the time of reference.
1.52 "YEAR OF VESTING SERVICE" shall mean each 365 days of employment
with an Employer as determined under Rules of General Application.
SECTION TWO ADMINISTRATION
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 the 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 person's negligence, but not
when the same is judicially determined to be due to the gross negligence or
willful misconduct of such person.
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
7
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.
SECTION THREE PARTICIPATION
An Eligible Individual will become a Participant on his Entry Date by
filing an Election Form prior to his applicable Election Date, and will remain a
Participant until he receives the payment of his 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 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 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 on or prior to the
applicable Election Date. Each Election Form shall only be effective for the
Plan Year with respect to which such election was timely filed with the
Administrator. If a new Election Form is not timely filed with the Administrator
for a specified Plan Year, no Compensation Deferral Contributions will be made
for such Employee until a new Election Form is timely filed with the
Administrator in accordance with this Section. A Participant may not change his
Compensation Deferral Contributions during a Plan Year.
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 soon as reasonably possible
following 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
8
Compensation Deferral Contribution to be deducted from the Bonus shall be
credited to the Participant's Compensation Deferral Account as soon as
reasonably possible following the date the Bonus actually is (or would have
been) paid. If the amount of the Compensation Deferral Contributions elected to
be deducted from the Participant's Salary and/or Bonus exceeds such Salary
and/or Bonus, as applicable, then the Compensation Deferral Contribution shall
be reduced to equal the maximum amount of such Participant's Salary and/or
Bonus, as applicable, that is available for deferral.
4.3 MATCHING CONTRIBUTIONS. An Employer shall credit to a Participant's
Account fifteen cents ($.15) for every dollar for Match Qualified Deferrals 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 credited as of each payroll period.
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. The Administrator shall have the right to eliminate
or add Measurement Preferences from time to time at his sole discretion.
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
9
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.
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. A Participant shall Vest in the amount credited
to his Employer Account upon meeting the requirements of each of the below
subsections (a) and (b):
(a) YEARS OF SERVICE WITH THE COMPANY. A Participant must have
completed his fifth Year of Service with the Company.
Notwithstanding any other provision in this Plan, a
Participant will meet the requirements of this Section 6.2(a)
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.
(b) MATCH QUALIFIED DEFERRALS.
Prior to January 1, 2002 - each Compensation Deferral
Contribution is automatically a Match Qualified Deferral and
its Company Match is 100% Vested, subject to Section 6.2(a).
January 1, 2002 and thereafter - each Compensation Deferral
Contribution is Match Qualified Deferral and is 100% Vested,
subject to Section 6.2(a), if its Deferred Payment Date begins
after the earliest of:
(i) Participant's 60th birthday or later,
(ii) Five years from (and including) the year in which the
Participant's Compensation Deferral Contributions pursuant to
Section 4.1 are made, and
(iii) Separation due to death, Disability, termination of
employment, or Change in Control.
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A Compensation Deferral Contribution that is not initially a
Match Qualified Deferral pursuant to this Section 6.2 (b) may
become so at a later date once the above criteria is met.
Conversely, if the Deferred Payment Date for a Compensation
Deferral Contribution that is initially a Match Qualified
Deferral subsequently fails to meet the above criteria, the
Company Match and associated investment earnings previously
credited to a Participant's Employer Account will be
forfeited.
SECTION SEVEN DISTRIBUTION OF BENEFIT
7.1 ELECTION OF DEFERRED PAYMENTS. A Participant shall be entitled to a
Deferred Payment if he has filed an Election Form on which he has (i) selected a
Deferred Payment Date, and (ii) selected a form of payment. A Participant's
Deferred Payments may be made or commenced at any time, and may be paid in a
Lump Sum or in one (1) to fifteen (15) Annual 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. For the avoidance of doubt, a Deferred
Payment Date may be elected (A) by reference to a specified date that is at
least one year after the Election Date for Compensation Deferrals for the Plan
Year with respect to which the Deferred Payment Date relates, (B) the date of
the Participant's Separation, (C) by reference to a specified anniversary of the
date of Participant's Separation or (D) by reference to the earlier or later to
occur of any combination of the events described in clauses (A), (B) or (C) of
this Section 7.1.
7.2 TYPES OF DEFERRED PAYMENTS.
(a) ANNUAL PERCENTAGE INSTALLMENT PAYMENTS. If Participant
elects a Deferred Payment in the form of an Annual Installment
Percentage Payment, each installment shall be equal to the
product of (i) his Benefit attributable to the Accounts for
the particular Plan Year of reference as of the Deferred
Payment Date, 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 Annual Percentage Installment
Payments, each attributable to Deferred Payments from Accounts
with respect to different Plan Years.
(b) ANNUAL FIXED DOLLAR INSTALLMENT PAYMENTS. If Participant
elects a Deferred Payment in the form of a Fixed Dollar Annual
Installment Payment, each installment shall be equal to the
Participant's specified Fixed Dollar amount with a final
installment equal to the remaining balance of the deferral
until the entire deferral is paid. Without limitation, a
Participant may receive multiple Annual Fixed Dollar
Installment Payments, each attributable to Deferred Payments
from Accounts with respect to different Plan Years.
(c) LUMP SUM PAYMENT. If a Participant elects a Lump Sum
distribution of his Benefit, the Lump Sum shall be paid on its
Deferred Payment Date as soon as reasonably possible (not to
exceed sixty (60) days) following the Business Day on
11
which his distributable Benefit is determined in accordance
with Rules of General Application. See Separation by Specified
Employee below.
7.3 CHANGE OF DEFERRED PAYMENT DATE. A Participant may change his
election as to the timing and/or form of Deferred Payment by filing a specified
form with the Administrator designating a new date or form of payment, but the
election must be filed at least twelve (12) months prior to the date on which
the first payment would have begun, the election may not take effect until at
least twelve (12) months after the date of such election, and the new payout
date must be no earlier than five (5) years from the date payments otherwise
would have commenced. Notwithstanding the foregoing, with respect to Pre-2005
Deferrals, the five (5) year requirement shall not apply. In addition, with
respect to Post-2004 Deferrals no election change pursuant to this Section 7.3
may have the effect of accelerating the time of payment of any distributions,
except to the extent permitted under the Act without the imposition of any
penalties or additional taxes under the Act.
7.4 MANDATORY LUMP SUM DISTRIBUTION. Subject to Section 7.5, in the
event of a Separation by a Participant:
(i) who has not attained the age of 55 and completed at
least 10 Years of Vesting Service with the Company,
or
(ii) whose aggregate Benefit is less than $5,000,
he 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.
7.5 SEPARATION BY SPECIFIED EMPLOYEE. Notwithstanding any other
provision of the Plan to the contrary, with respect to Post-2004 Deferrals only,
a Specified Employee may not receive a distribution of his Benefit on account of
his Separation until the earlier of (i) six months after the date of such
Separation or (ii) the Participant's death.
7.6 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, with respect to Pre-2005
Deferrals, but not Post-2004 Deferrals, a Participant may elect to waive the
provisions of this Section 7.6 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. Notwithstanding any other provision of the Plan to the
contrary, with respect to Post-2004 Deferrals, distributions under this Section
7.6 shall only be made upon the occurrence of Change in Control that qualifies
as either a "change in the ownership" of the Company, a "change in effective
control" of the Company or a "change in the
12
ownership of a substantial portion of the assets" of the Company, in each case,
as defined under the Act or Internal Revenue Service guidance issued thereunder.
7.7 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 spouse or 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 cannot
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 amount of the
distribution will be limited to an amount necessary to satisfy the severe
financial hardship plus amounts necessary to pay taxes reasonably anticipated as
a result of the distribution, after taking into account the extent to which the
hardship is or may be relieved through reimbursement or compensation by
insurance or otherwise or by liquidation of the Participant's assets (to the
extent the liquidation would not itself cause severe financial hardship).
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
shall be ineligible to elect Compensation Deferral Contributions until the first
enrollment period occurring after the first anniversary of the date of such
withdrawal.
7.8 NON-SCHEDULED IN-SERVICE WITHDRAWAL. Non-Scheduled In-Service
Withdrawals are not permitted with respect to Post 2004 Deferrals. With respect
to Pre-2005 Deferrals, 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 without regard to the Deferred Payment Date elected by the Participant.
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 enrollment period occurring after the first
anniversary of the date of such withdrawal. The amount forfeited shall inure to
the benefit of the Employer in the manner determined by the Administrator.
Non-Scheduled In-Service Withdrawals shall cause a Match Qualified Deferral to
become unqualified if the Non-Scheduled In-Service Withdrawal distribution is
made from Compensation Deferral Contributions with Company Match that has not
yet Vested or not yet Qualified under Section 6.2. If this occurs, the Company
Match and associated investment earnings previously credited to the Compensation
Deferral Account will be forfeited before the Non-Scheduled In-Service
Withdrawal is paid.
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7.9 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 Alternative Earnings
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 Company, through its Board of Directors, may in its discretion
amend the Plan from time-to-time, provided that no Amendment may reduce a
Participant's Benefit. Specifically, termination of the Plan shall require the
approval of the Board of Directors of the Company. Notwithstanding anything
herein to the contrary, the Company hereby delegates to its executive officers
the authority to make any amendment (i) that does not increase the benefit costs
of the Plan to the Company by more than 1% of the Plan's prior calendar year
financial statement expense or (ii) that is necessary or desirable in order to
have it conform to the provisions and requirements of the Code, AJCA or any
other applicable law.
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
14
Benefits of such affected Participant may, in the Company's sole discretion, be
distributed in a Lump Sum as soon as administratively possible (not to exceed 60
days) following such termination with respect to Pre-2005 Deferrals (but with
respect to Post-2004 Deferrals only to the extent permitted by the Act without
the imposition of any additional taxes or penalties under the Act).
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 or between spouses incident to divorce within the
meaning of Code Section 1041 or of any successor provision, pursuant to a
transfer permitted by the Act and other applicable law.
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 90 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 90 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 90 days. If no action on an initial claim is taken within 180 days,
the claims will be deemed denied for purposes of permitting the claimant to
proceed to the review stage. If the claim involves a determination of whether or
not the Participant has experienced a Disability (a "Disability Claim"), such
claim will generally be decided and the claimant notified of the decision within
45 days after receipt of the claim; provided that the Administrator may obtain
two 45-day extensions if the proper written notice, which contains the
information described above, is given to the Participant before the end of each
applicable 45-day period. The denial of a claim or the decision on review will
specify the reasons for the denial or decision , the pertinent Plan provisions
upon which the denial or decision is based, a description of any additional
material or information necessary to perfect the claim and an explanation of,
why such information is necessary, if applicable, and a description of the
Plan's review procedures and the time limits applicable thereto, including a
statement of the claimant's rights under Section 502(a) of ERISA following an
adverse benefits
15
determination on review. If the denied claim is a Disability Claim, the
following additional information will be provided with the denial notice: (a) if
an internal rule, guideline, protocol, or other similar criterion was relied
upon in making the adverse determination, either the specific rule, guideline,
protocol, or other similar criterion, or a statement that such a rule,
guideline, protocol, or other similar criterion was relied upon in making the
adverse determination and that a copy of such rule, guideline, protocol, or
other criterion will be provided free of charge to the claimant upon written
request; and (b) if the adverse benefit determination is based on a medical
necessity or experimental treatment or similar exclusion or limit, either an
explanation of the scientific or clinical judgment for the determination,
applying the terms of the Plan to the claimant's medical circumstances, or a
statement that such explanation will be provided free of charge upon written
request.
Within 60 days after receiving a denial (180 days in the case of a
Disability Claim), the claimant or his authorized representative may appeal the
decision by requesting a review by writing the Administrator. On appeal, the
claimant may submit in writing any comments or issues with respect to the claim
and/or any additional documents or information not considered during the initial
review and, upon request and free of charge, the claimant will be provided
access to and copies of all documents, records and other information relevant to
the claim. On appeal, the Administrator will not give deference to the initial
adverse benefit determination.
If the appeal involves a Disability Claim, the following additional
procedures shall apply to the review on appeal: (i) it will be conducted by a
Plan fiduciary that is neither the individual who made the initial adverse
benefit determination, nor the subordinate of such individual; (ii) if the
initial adverse decision was based in whole or in part on a medical judgment,
the reviewer will consult with a health care professional who has appropriate
training and experience in the field of medicine involved in the medical
judgment and who is not the same person (or his or her subordinate) that was
consulted in connection with the initial benefits decision; and (iii) upon
request, the claimant will be provided the identification of the expert whose
advise was obtained in connection with the initial benefit decision, if any,
regardless of whether or not the advice was relied upon.
A decision on appeal will normally be given within 60 days (45 days in
the case of a Disability Claim) after the receipt of the appeal. If special
circumstances warrant an extension as determined by the Administrator in its
sole discretion, then the decision will be made no later than 120 days after
receipt of the appeal (90 days in the case of a Disability Claim). If an
extension is required, the claimant will be provided a written notice of the
extension that shall indicate the special circumstances requiring the extension
and the date by which the Administrator expects to render its final decision.
Subject to Section 2.3, the Administrator's decision on appeal shall be final
and binding on all parties.
If a claimant's appeal is denied in whole or in part, the notice of the
decision on appeal shall include the specific reasons for the denial and
reference to the relevant Plan provisions on which the denial was based, a
statement that, upon request and free of charge, the claimant may review and
copy all documents, records and other information relevant to the claim for
benefits and the claimant's rights under Section 502(a) of ERISA. In addition,
if the appeal involved a
16
Disability Claim, the denial notice will include the additional information for
Disability Claims described above, as applicable.
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.
10.5 COMMUNICATIONS BY, AND INFORMATION FROM, PARTICIPANT. Each
Participant shall file with the Administrator such pertinent information
concerning him 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 address last
17
appearing on the records of the most recent Employer or provided to the last
known electronic address on record.
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
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, Bonus 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.
18
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. This amendment and
restatement of 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.
IN WITNESS WHEREOF, the Company has executed this Plan on this the
_____ day of _______________, 2006.
ARKANSAS BEST CORPORATION
By:
--------------------------------------
Its:
--------------------------------------
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