EXHIBIT 10.11
YELLOW CORPORATION
EXECUTIVE DEFERRED COMPENSATION PLAN
The Board of Directors of Yellow Corporation, a corporation organized
under the laws of the state of Delaware, hereby establishes the Yellow
Corporation Executive Deferred Compensation Plan to provide a select group of
management or highly compensated employees with a capital accumulation
opportunity by deferring compensation on a pre-tax basis.
ARTICLE I
DEFINITIONS
As used in the Plan, the following terms shall have the meaning set forth
below, unless otherwise clearly indicated by the context:
1.1 "ACCOUNT" means the recordkeeping account described in Section 4.4 of the
Plan and established for maintaining a record of the Company's obligation
to each Participant and former Participant. A separate subaccount shall be
established for each election by the Participant to defer Compensation
with respect to which a different time and/or form of payment is elected.
Company matching credits made pursuant to Section 4.3 shall be credited to
the same subaccount as the Participant's deferrals for the Plan Year are
credited.
1.2 "ADMINISTRATOR" means the person or persons appointed by the Committee to
administer the Plan.
1.3 "BENEFICIARY" means the individual or entity (or individuals or entities)
designated by the Participant under Section 8.4 who is or may become
entitled to a benefit under the Plan, or if none is designated or living
at the time of the Participant's or former Participant's death, then the
Participant's or former Participant's estate.
1.4 "CODE" means the Internal Revenue Code of 1986, as amended.
1.5 "COMMITTEE" means the Compensation Committee of the Board of Directors of
Yellow Corporation.
1.6 "COMPANY" means Yellow Corporation and any affiliate that is required to
be treated as a single employer together with Yellow Corporation under
section 414 of the Code whose participation in the Plan is approved by the
Committee.
1.7 "COMPENSATION" means "Basic Annual Salary" and/or "Incentive Compensation"
as defined below:
(a) "Basic Annual Salary" means a Participant's base salary or wages (as
defined in section 3401(a) of the Code for purposes of federal
income tax withholding) from the Company, modified by including any
portion thereof that such Participant could have received but for
his deferral election made pursuant to Section 4.1, (b) elective
contributions made on his behalf by the Company pursuant to a
qualified cash or deferred arrangement described in section 401(k)
of the Code and (c) any elective contributions under a cafeteria
plan described in section 125 of the Code, and modified further by
excluding any bonus, incentive compensation, commissions, expense
reimbursements or other expense allowances, fringe benefits (cash
and
noncash), moving expenses, deferred compensation (other than
elective contributions to the Plan or the Company's qualified cash
or deferred arrangement described in section 401(k) of the Code),
welfare benefits as defined in Section 3(1) of ERISA, overtime pay,
special performance compensation amounts and severance compensation.
(b) "Incentive Compensation" means any compensation that may be paid
directly to a Participant, in addition to Basic Annual Salary, under
any Company annual or long-term incentive plan for services
rendered.
1.8 "DEFERRED COMPENSATION" means the amount of Participant's Compensation
deferred pursuant to Article IV of the Plan.
1.9 "DISABILITY" means that the Participant meets the definition of "disabled"
under the terms of the Company's long-term disability plan in effect on
the date in question, whether or not such Participant is covered by such
plan.
1.10 "ERISA" means the Employee Retirement Income Securities Act of 1974, as
amended.
1.11 "PARTICIPANT" means any employee of the Company who has been designated by
the Committee as eligible to participate in the Plan in accordance with
Article III.
1.12 "PLAN" means the Yellow Corporation Executive Deferred Compensation Plan
set forth in this Agreement as it may be amended from time to time.
1.13 "PLAN YEAR" means the calendar year.
1.14 "RETIREMENT" means retirement of a Participant on or after having attained
age 65 or early retirement with the prior approval of the Committee.
1.15 "UNFORESEEABLE FINANCIAL EMERGENCY" means an unexpected need of a
Participant or former Participant for cash that (a) arises from an
illness, casualty loss, sudden financial reversal, or such other
unforeseeable occurrence that is caused by an event beyond the control of
such Participant or former Participant, (b) would result in severe
financial hardship to such Participant or former Participant if his
compensation deferral election was not canceled pursuant to Section 7.3
and/or if a benefit payment pursuant to Section 7.3 was not permitted, and
(c) is not reasonably satisfiable from other resources of such Participant
or former Participant. Cash needs arising from foreseeable events, such as
the purchase of a house or education expenses for children, shall not be
considered to be the result of an Unforeseeable Financial Emergency.
Further, cash needs that may be relieved (i) through reimbursement or
compensation by insurance or otherwise, (ii) by liquidation of the
Participant's or former Participant's assets, to the extent the
liquidation of such assets would not itself cause severe financial
hardship, or (iii) by cessation of deferrals under the Plan shall not be
considered to be Unforeseeable Financial Emergencies.
ARTICLE II
ADMINISTRATION OF THE PLAN
2.1 ADMINISTRATION. The Plan shall be administered by the Committee. The
Committee shall have the authority to:
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(a) determine which key executives of the Company shall be designated
Participants under the Plan in accordance with the provisions of
Article III of the Plan; and
(b) determine the amount of any matching Company contributions.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices applicable to the Plan as
it shall, from time to time, deem advisable; to interpret the terms and
provisions of the Plan and any agreements relating thereto, and to
otherwise supervise the administration of the Plan. However, any change
shall not adversely affect any rights of a Participant or former
Participant with respect to any benefits the Participant or former
Participant has accrued under the Plan as of the date of the change
without the Participant's or former Participant's written consent.
All decisions made by the Committee pursuant to the provisions of the Plan
shall be final and binding on all persons, including the Company and the
Participants or former Participants.
ARTICLE III
ELIGIBILITY
3.1 ELIGIBILITY. The persons eligible to participate in the Plan shall be such
officers and other key executives of the Company as the Committee
determines in its sole discretion. No officer or employee shall have any
right to be designated as a Participant. The fact that a person is
designated as eligible to participate in the Plan during a Plan Year does
not confer on him or her a right to participate in the Plan during
subsequent Plan Years.
3.2 LIMITATION UPON PARTICIPATION. The Company intends for the Plan to be
limited to a "select group of management or highly compensated employees"
as such phrase is used in Sections 201, 301 and 401 of ERISA. If at any
time the Committee determines that a Participant fails to be a member of a
select group of management or highly compensated employees, his/her
participation in the Plan shall cease.
ARTICLE IV
CONTRIBUTION CREDITS TO ACCOUNTS
4.1 ELECTIVE DEFERRAL. A Participant may irrevocably elect to defer a portion
of his or her Compensation by filing an election with the Administrator on
or before November 30 of the year preceding the Plan Year for which the
deferral of Compensation is to be effective. Such election shall be
effective for such next Plan Year and for all subsequent Plan Years,
unless modified as to subsequent Plan Years by the filing of a new
election form. Such election will be effective only for Basic Annual
Salary earned in such future Plan Year(s) and for Incentive Compensation
earned in such future year(s) but which the Participant will have no right
to receive until such future year(s). A new election to defer Compensation
shall be evidenced by the execution and delivery on or before November 30
in the form prescribed for that purpose by the Administrator. In the first
Plan Year in which an individual becomes a Participant, he or she may make
an election to defer within 30 days after he or she first becomes eligible
to participate in the Plan.
4.2 AMOUNT OF DEFERRAL. A Participant may file separate elections with respect
to his or her Basic Annual Salary and any Incentive Compensation. A
Participant may elect to defer not less than 1% nor more than 50% of his
or her Basic Annual Salary for the Plan Year, in
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multiples of 1%; and may elect to defer not less than 5% nor more than 80%
of his or her Incentive Compensation for the Plan Year, in multiples of
5%.
4.3 COMPANY MATCHING CONTRIBUTION. To the extent that, as a result of the
application of the discrimination test set forth in section 401(k) of the
Code, a Participant is prevented from making the maximum pre-tax elective
deferral under the Company's 401(k) plan in which he is eligible to
participate, which would otherwise be matched by a Company contribution
under the 401(k) plan, the Company will match under the Plan any Deferred
Compensation, up to the limits under such 401(k) plan.
4.4 DEFERRED COMPENSATION ACCOUNT. Any of a Participant's Deferred
Compensation and any Company matching contribution for a Plan Year shall
be credited to the Participant's Account as of the last day of the
calendar quarter in which the related compensation would have been paid
but for the Participant's deferral election.
ARTICLE V
DEEMED INVESTMENT CREDITS TO ACCOUNTS
All amounts credited to a Participant's or former Participant's Account
together with the earnings thereon, shall be credited with income and loss as if
invested in one or more investment alternatives selected by the Committee. At
such times and under such procedures as the Committee shall designate, each
Participant and former Participant shall have the right to elect among
investment alternatives made available by the Committee, including, without
limitation, the right to transfer all or a portion of the funds credited to the
Participant's or former Participant's Account among such available investment
alternatives. The Committee shall give written notice to the Participants and
former Participants of the investment alternatives, if any, available to them
for election. The Committee may change, add to or subtract from the investment
alternatives available at any time. Nothing contained in this section shall be
construed to give any Participant or former Participant any power or control to
make investment directions or to otherwise influence in any manner the
investment and reinvestment of assets of the Company. Nothing contained in this
section shall be construed to require the Company or the Committee to fund any
Participant's or former Participant's Account, and the investment alternatives
discussed herein shall be used solely as a means to determine the amount of
earnings and losses which shall be deemed to be credited to or debited from his
or her Account.
ARTICLE VI
TERMINATION OF EMPLOYMENT
6.1 DEATH. If a Participant's employment with the Company terminated by reason
of death, the Participant's or former Participant's balance in the Account
as of the end of the following Plan Year will be paid to the Participant's
Beneficiary as soon as administratively practicable after the end of such
Plan Year.
6.2 DISABILITY OR RETIREMENT. If a Participant's or former Participant's
employment with the Company terminates by reason of Disability or
Retirement, the balance of the Participant's or former Participant's
Account, as adjusted by deemed investment earnings and losses under
Article V, will be paid in the form of a lump sum or periodic payments
over a five (5) or ten (10) year period, as elected by the Participant or
former Participant pursuant to Section 7.1.
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ARTICLE VII
DISTRIBUTIONS
7.1 TIME OF REGULAR DISTRIBUTIONS. At the time of each deferral election, the
Participant must select one of the following events which will cause the
value of his or her Account, or subaccount, as appropriate, to be
distributed:
(a) Termination of employment;
(b) Retirement; or
(c) the attainment of the age specified by the Participant.
Distributions will commence as soon as administratively practicable after
the selected event and will be payable in a lump sum or periodic payments
over a five or ten year period, in accordance with the Participant's or
former Participant's election made at the time of his or her deferral
election.
7.2 IRREVOCABLE CHANGE OF ELECTION OF TIME AND/OR FORM OF PAYMENT. In
accordance with procedures established by the Committee, a Participant or
former Participant may make a one-time irrevocable election to change the
time and/or form of payment he or she previously selected under the Plan.
Any such change election shall apply to all of the amounts credited to his
or her Account. Any such change election must be made no later than 18
months before the date on which such amounts were scheduled to be paid or
commence to be paid under the Participant's or former Participant's
original election. In addition, any such change election may not provide
for a payment or commencement of payment that is earlier than 18 months
after the date on which the change election is made. For purposes of
calculating the 18-month period, such period will commence on the first
day of the month immediately following the month in which the election is
made.
7.3 EMERGENCY BENEFIT. In the event that the Committee, upon written petition
of a Participant or former Participant who has not incurred a termination
of employment, determines in its sole discretion that such Participant or
former Participant has suffered an Unforeseeable Financial Emergency, such
Participant or former Participant shall be entitled to a distribution in
an amount not to exceed the lesser of (a) the amount determined by the
Committee as necessary to meet such Participant's or former Participant's
needs created by the Unforeseeable Financial Emergency or (b) the then
value of such Participant's or former Participant's Account. Such benefit
shall be paid in a single lump sum payment as soon as administratively
practicable after the Committee has made its determinations with respect
to the availability and amount of such benefit. If a Participant's or
former Participant's Account is deemed to be invested in more than one
investment fund, such benefit shall be distributed pro rata from each fund
in which such Account is deemed to be invested. If a Participant's or
former Participant's Account contains more than one distribution
subaccount, such benefit shall be considered to have been distributed,
first, from the subaccount with respect to which the earliest distribution
would be made, then, from the subaccount with respect to which the next
earliest distribution would be made, and continuing in such manner until
the amount of such distribution has been satisfied.
In the event that the Committee, upon written petition of a Participant,
determines in its sole discretion that such Participant has suffered an
Unforeseeable Financial Emergency or that such Participant will, absent
termination of such Participant's Participant deferral election then in
effect, suffer an Unforeseeable Financial Emergency, then the deferral
election of such Participant then in effect, if any, shall be terminated
as soon as administratively practicable after such determination. A
Participant whose Participant deferral election has
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been so terminated may again make a new Participant deferral election for
a subsequent Plan Year that commences at least twelve months after the
effective date of such termination, if he satisfies the eligibility
requirements set forth in Section 3.1, by effecting a new Participant
deferral election for such Plan Year and within the time period prescribed
by the Committee.
7.4 VOLUNTARY EARLY WITHDRAWAL WITH FORFEITURE PENALTY. Notwithstanding any
Plan provisions to the contrary, before or after his termination of
employment a Participant or former Participant may make written petition
to the Committee to make a voluntary early withdrawal of the entire
balance in his Account, in accordance with such procedures as the
Committee shall determine from time to time. Upon approval of such a
withdrawal request, the Participant or former Participant shall forfeit
ten percent (10%) of his Account balance as of the most recent valuation
date preceding the date of the withdrawal request. As soon as practicable
after such withdrawal request is approved by the Committee, the Company
shall pay the Participant or former Participant in a single lump sum in
cash an amount equal to the lesser of (a) the requested amount and (b) the
remaining available balance of such Account (determined as of the most
recent valuation date preceding the date such election is filed and after
deducting the forfeiture amount described in the preceding sentence).
Participant deferrals for a Participant who elects to make a withdrawal
under this Section 7.4 shall be discontinued for the remainder of the Plan
Year in which such voluntary early withdrawal is made and for the entire
following Plan Year.
7.5 PAYMENT OF WITHHOLDING AND OTHER TAXES. The Company shall withhold from
payments under the Plan such amounts as are necessary to satisfy the
Company's withholding obligations for federal, state or local taxes,
unless the Participant otherwise satisfies such withholding requirements.
To assist the Company in collecting any withholding or other taxes that
shall become due as a result of a payment under this Article 7, a
Participant, as a condition of participation in the Plan, shall make any
arrangements requested by the Committee regarding the payment of federal,
state or local taxes required by law to be withheld with respect to such
amount.
ARTICLE VIII
GENERAL PROVISIONS
8.1 UNFUNDED STATUS OF PLAN. The Plan is intended to constitute an unfunded
plan for the purpose of providing deferred compensation for a select group
of management or highly compensated employees of the Company. The Plan is
only a general corporate commitment of the Company and each Participant or
former Participant must rely solely upon the general credit of the Company
for the fulfillment of its obligations hereunder. Under all circumstances
the rights of a Participant or former Participant to any asset held by the
Company will be no greater than the rights expressed in the Plan. Nothing
contained in the Plan will constitute a guarantee by the Company that the
assets of the Company will be sufficient to pay any benefits under the
Plan or would place a Participant or former Participant in a secured
position ahead of general creditors of the Company; the Participants and
former Participants are only unsecured creditors of the Company with
respect to their Plan benefits and the Plan constitutes a mere promise by
the Company to make benefit payments in the future. No specific assets of
the Company have been or will be set aside, or will be pledged in any way
for the performance of the Company's obligations under the Plan which
would remove such assets from being subject to the general creditors of
the Company. It is intended that the Plan shall be unfunded for tax
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purposes and for purposes of Title I of ERISA. The Committee, in its sole
discretion, may authorize the creation of a rabbi trust to assist the
Company in meeting its obligations under the Plan provided that such trust
is drafted in such a manner that the Plan will continue to be unfunded for
tax purposes and for purposes of Title I of ERISA.
8.2 AGREEMENTS WITH PARTICIPANTS. To evidence and formalize participation in
the Plan, each Participant shall be required to enter into one or more
agreements with the Company which shall contain such provisions as may be
established from time to time by the Committee.
8.3 NON-TRANSFERABILITY OF RIGHTS. The right of a Participant, former
Participant or any other person to the payment of benefits under the Plan
may not be assigned or transferred in whole or in part either directly or
by operation of law or otherwise except, in the event of the Participant's
or former Participant's death, by will or by the laws of descent and
distribution. Such limitation or transfer shall include, but not limited
to, transfer by way of execution, levy, garnishment, attachment, pledge,
bankruptcy or transfer in any other manner.
8.4 BENEFICIARY DESIGNATIONS. Each Participant and former Participant may
file, on a form provided by the Committee, a written election designating
one or more Beneficiaries with respect to any amounts payable under the
Plan in the event of the Participant's or former Participant's death. A
Participant or former Participant may amend such Beneficiary designation
at any time; provided, however, that such amended designation shall not be
effective unless and until received by the duly authorized representative
of the Company prior to such Participant's or former Participant's death.
If no Beneficiary is named by the Participant, any amount payable under
the Plan will be paid to the Participant's or former Participant's estate.
8.5 APPLICABLE LAW. The Plan and all actions taken pursuant to the Plan shall
be governed by, and construed in accordance with the laws of the State of
Kansas, to the extent not preempted by ERISA.
8.6 RIGHTS OF PARTICIPANTS. The designation of an employee as a Participant
shall not give any such person any right to be retained in the employ of
the Company.
8.7 INDEMNITY. To the extent permitted by applicable law, the Company shall
indemnify and save harmless the Board of Directors of Yellow Corporation,
each member of the Committee, and each delegate of the Committee against
any and all expenses, liabilities and claims (including legal fees
incurred to investigate or defend against such liabilities and claims)
arising out of their discharge in good faith of responsibilities under or
incident to the Plan. Expenses and liabilities arising out of willful
misconduct shall not be covered under this indemnity. This indemnity shall
not preclude such further indemnities as may be available under insurance
purchased by the Company or provided by the Company under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise,
as such indemnities are permitted under applicable law.
8.8 AMENDMENT OR TERMINATION OF PLAN. The Committee may alter, amend or
terminate the Plan at any time or from time to time for any reason
including change of the Company's financial circumstances. However, no
such amendment or termination of the Plan shall adversely affect any
rights of a Participant or former Participant with respect to the balance
credited to the Participant's or former Participant's Account accrued as
of the date on which the Plan is amended or terminated.
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8.9 SEVERABILITY. The invalidity or unenforceability of any one or more
provisions of the Plan shall not affect the validity or enforceability of
any other provision of the Plan, which shall remain in full force and
effect.
8.10 NOTICES. All notices under the Plan shall be addressed to the Committee.
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IN WITNESS WHEREOF, the Plan has been duly executed as of ____________ day
of ______________________________, 2002 to be effective January 1, 2003.
YELLOW CORPORATION
BY:
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TITLE:
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