EXHIBIT 10.25
ROADWAY CORPORATION
401(A)(17) BENEFIT PLAN
(Effective January 1, 2002)
.
.
.
ARTICLE I PURPOSE OF THE PLAN........................................................................ 1
1.1 Purpose........................................................................................ 1
ARTICLE II DEFINITIONS................................................................................ 1
2.1 Generally...................................................................................... 1
2.2 Account........................................................................................ 1
2.3 Accrued Benefit................................................................................ 2
2.4 Employer....................................................................................... 2
2.5 401(a)(17) Benefit............................................................................. 2
2.6 Participant.................................................................................... 2
2.7 Pension Plan................................................................................... 2
2.8 Spouse......................................................................................... 2
2.9 Valuation Date................................................................................. 2
ARTICLE III 401(a)(17) BENEFITS........................................................................ 2
3.1 Amount of Benefit.............................................................................. 2
3.2 Manner and Time of Payment..................................................................... 3
3.3 Liability for Payment.......................................................................... 3
3.4 Eligibility for Benefit........................................................................ 3
3.5 Payment to Guardian............................................................................ 3
3.6 Effect on other Benefits....................................................................... 4
3.7 Effect of Termination of Plan.................................................................. 4
ARTICLE IV PARTICIPANT'S ACCOUNT...................................................................... 4
4.1 Generally...................................................................................... 4
4.2 Limitation on Rights of Participants and Spouses............................................... 4
ARTICLE V VESTING.................................................................................... 4
5.1 Vesting Provisions............................................................................. 4
ARTICLE VI METHOD OF FUNDING.......................................................................... 4
6.1 General Obligation............................................................................. 4
EXHIBIT A ........................................................................................... 6
ROADWAY CORPORATION
401(A)(17)
BENEFIT PLAN
(Effective January 1, 2002)
THIS PLAN is made and executed this _______ day of
_________________, 2002 by Roadway Corporation, a Delaware corporation. This
Plan is an amendment and restatement of the Roadway Express, Inc. 401(a)(17)
Benefit Plan.
ARTICLE I
PURPOSE OF THE PLAN
1.1 Purpose
The Company hereby establishes the Roadway Express, Inc.
401(a)(17) Benefit Plan (the "Plan"). The purpose of this Plan is to provide to
certain of the highly compensated employees of the Company and of certain other
Employers benefits they would receive under the terms of certain defined benefit
pension plans of the Controlled Group but for the limit on the amount of
compensation that may be taken into account under such Pension Plans due to the
application of Section 401(a)(17) of the Code. This Plan includes the Roadway
Corporation Administrative Document for Excess Plan and 401(a)(17) Benefit Plan
(the "Administrative Document"), which is incorporated herein by reference.
ARTICLE II
DEFINITIONS
2.1 Generally
The following words and phrases shall have the same meanings
as specified in the applicable Pension Plan, as it may be amended from time to
time, unless the context clearly requires otherwise:
"Actuarial (or Actuarially) Equivalent"
"Actuary"
"Code"
"Employee"
"Pension Commencement Date"
"Plan Year"
The following words and phrases shall have the same meaning as
specified in the Administrative Document, as it may be amended from time to
time, unless the context clearly requires otherwise:
"Board"
"Committee"
"Controlled Group" or "Controlled Group Members"
"Effective Date"
"Excess Plan"
"401(a)(17) Benefit Plan"
In addition, for purposes of this Plan, the following words
and phrases shall have the meanings hereinafter indicated unless the context
clearly indicates otherwise.
2.2 Account
"Account" means the record maintained in accordance with
Article III by the Company for each Participant.
1
2.3 Accrued Benefit
"Accrued Benefit" of a Participant as of any date, hereinafter
called an "accrual date," equals the amount of 401(a)(17) Benefit to which the
Participant would be entitled under Section 3.1 if he terminated his employment
with the Controlled Group on the accrual date.
2.4 Employer
"Employer" means the Company and any other Controlled Group
Member that adopts this Plan in accordance with Section 7.7 of the
Administrative Document.
2.5 401(a)(17) Benefit
"401(a)(17) Benefit" means the monthly benefit payable to or
with respect to a Participant and/or his Spouse under Article III.
2.6 Participant
"Participant" means an Employee who (a) is participating in
one or more Pension Plans whose benefits thereunder are limited by Section
401(a)(17) of the Code, (b) is selected by the Company for participation in this
Plan, and (c) retires from an Employer on or after the Effective Date.
2.7 Pension Plan
"Pension Plan" means, with respect to any Participant, the
defined benefit pension plan(s) specified on Exhibit A hereto (which is
incorporated herein by reference) in which he participates.
2.8 Spouse
"Spouse" shall mean the deceased Participant's surviving
spouse if such person married such Participant at least one (1) year prior to
his death.
2.9 Valuation Date
"Valuation Date" shall mean the last day of each calendar year
or such other dates as may be established by the Company.
ARTICLE III
401(a)(17) BENEFITS
3.1 Amount of Benefit
(a) Participants in a Single Pension Plan. The 401(a)(17)
Benefit payable to or with respect to a Participant for any month of any Plan
Year shall be an amount equal to the excess, if any, of (i) the amount of the
monthly benefit, expressed as a single life annuity commencing as of the
Participant's Pension Commencement Date, or, if the Participant is married on
his Pension Commencement Date, expressed as a 100% joint and survivor annuity in
an Actuarially Equivalent amount commencing on the Participant's Pension
Commencement Date, that would be payable to or with respect to the Participant
under the Pension Plan if the Pension Plan did not contain limitations pursuant
to Sections 415 and 401(a)(17) of the Code, over (ii) the sum of (A) the amount
of the monthly benefit payable on the same basis to or with respect to the
Participant under such Pension Plan for such month and (B) the amount payable to
or with respect to the Participant under the Excess Plan for such month less
(iii) the amount, if any, the Participant would be entitled to receive, as of
the Effective Date, under the Roadway Services, Inc. 401(a)(17) Benefit Plan.
Such 401(a)(17) Benefit shall reflect any adjustments under such Pension Plan
because of the Participant's determination not to elect to waive any qualified
pre-retirement survivor annuity.
2
(b) Participants in Multiple Pension Plans. If a person
has been a Participant in more than one Pension Plan, his 401(a)(17) Benefit for
any month of any Plan Year shall be an amount equal to the excess, if any, of
(i) the largest amount of monthly benefits to which he or his Beneficiary would
be entitled under any of the Pension Plans for such Plan Year if the Pension
Plans did not contain limitations pursuant to Sections 401(a)(17) and 415 of the
Code, over (ii) the amount of benefits in fact payable to the Participant or his
Beneficiary under all of the Pension Plans and the Excess Plan for such month,
and computed and adjusted as provided in Section 3.1(a).
(c) Pre-retirement Survivor Annuity. If a married
participant dies before his Pension Commencement Date, and has a Spouse entitled
to a qualified pre-retirement survivor annuity under any Pension Plan, such
Spouse shall receive a pre-retirement survivor annuity based on the 401(a)(17)
Benefit computed and adjusted as provided in Subsections 3.1(a) and (b) to which
the Participant would be entitled. Such pre-retirement survivor annuity shall be
payable at the same time and in the same manner as the qualified pre-retirement
survivor annuity.
3.2 Manner and Time of Payment
(a) Manner of Payment. The 401(a)(17) Benefit in the
amount determined from time to time under Section 3.1 shall be payable monthly
to a Participant for the life of the Participant, commencing as of the
Participant's Pension Commencement Date; provided, however, for a married
Participant, the 401(a)(17) Benefit, in an Actuarially Equivalent amount, shall
be payable monthly to the Participant as an annuity for the life of the
Participant, with a survivor annuity for the life of the Spouse, which is one
hundred percent (100%) of the amount of the annuity payable during the joint
lives of the Participant and the Spouse.
(b) Time of Payment. (i) The first monthly payment of a
401(a)(17) Benefit to a retired Participant entitled to such benefit shall be
payable as of the first day of the first calendar month after such Participant
shall have become entitled thereto pursuant to the provisions of the Pension
Plan and this Plan, and each subsequent monthly payment of such benefit shall be
payable as of the first day of each calendar month thereafter during his
lifetime, ceasing with the payment made as of the first day of the calendar
month in which the death of such Participant occurs. Any survivorship benefit
shall be paid in the same manner, beginning the month following the month during
which the death of such retired Participant occurs and continuing until such
Spouse dies.
(ii) The 401(a)(17) Benefit of any retired Participant
receiving a retirement benefit shall terminate as of the date of his
re-employment if such retired Participant is re-employed by an Employer and,
upon his subsequent retirement pursuant to the provisions of the Pension Plan
after any period of such re-employment, such Participant shall thereupon be
eligible for the 401(a)(17) Benefit then in effect, pursuant to the provisions
of this Plan, with such adjustments in the amount of such benefit as may be
necessary to reflect actuarially the value of any 401(a)(17) Benefit previously
paid such Participant under this Plan.
3.3 Liability for Payment
The Company shall pay the 401(a)(17) Benefit to the
Participant and/or his Beneficiary.
3.4 Eligibility for Benefit
Each Participant shall be eligible for a 401(a)(17) Benefit.
3.5 Payment to Guardian
If a benefit payable hereunder is payable to a minor, to a
person declared incompetent or to a person incapable of handling the disposition
of his property, the Company may direct payment of such benefit to the guardian,
legal representative or person having the care and custody of such minor,
incompetent or person. The Company may require such proof of incompetency,
minority, incapacity or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
3
3.6 Effect on other Benefits
Benefits payable to or with respect to a Participant under the
Pension Plans, the Excess Plan or any other Company-sponsored (qualified or
nonqualified) plan, if any, are in addition to those provided under this Plan.
3.7 Effect of Termination of Plan
Notwithstanding anything in this Plan to the contrary, in the
event of a termination of this Plan, the Company, in its sole and absolute
discretion, shall have the right to change the time and/or manner of
distribution of Participants' 401(a)(17) Benefits, including, without
limitation, by providing for the satisfaction of the Company's obligation to pay
401(a)(17) Benefits by payment of a single lump sum payment to each Participant
or Spouse then entitled to a 401(a)(17) Benefit in an amount equal to the
Actuarially Equivalent present value of such 401(a)(17) Benefit, provided that
the Company may not diminish the value of the 401(a)(17) Benefit payable to any
Participant or Spouse hereunder.
ARTICLE IV
PARTICIPANT'S ACCOUNT
4.1 Generally
The Company, through its accounting records, shall establish
an Account for each Participant to reflect the value of the Participant's
401(a)(17) Benefit under this Plan. The Accounts established hereunder shall be
segregated from other accounts on the books and records of the Company as a
contingent liability of the Company to Participants. As of each Valuation Date,
the Company shall credit each Participant's Account with the increase in the
Actuarially Equivalent present value of the Participant's Accrued Benefit since
the preceding Valuation Date and shall debit from the Participant's Account any
decrease in such Actuarially Equivalent present value and the amount of any
payments of a 401(a)(17) Benefit since the preceding Valuation Date. The amount
of such credits and/or debits shall be determined by the Company.
4.2 Limitation on Rights of Participants and Spouses
The establishment of each Participant's Account hereunder is
solely for the Company's convenience in administering this Plan. Amounts
"credited" to the Account shall continue for all purposes to be part of the
general funds of the Company. Each Participant's Account is merely a record of
the value of the Company's unsecured contractual obligation to the Participant
and his Spouse under this Plan.
ARTICLE V
VESTING
5.1 Vesting Provisions
Anything herein to the contrary notwithstanding, except as
otherwise provided in Section 5.3(b) of the Administrative Document or Article
VI of the Administrative Document, 401(a)(17) Benefits of Participants who are
vested under the Pension Plan shall at all times be fully vested.
ARTICLE VI
METHOD OF FUNDING
6.1 General Obligation
The obligation of the Company hereunder shall be a general
unfunded and unsecured obligation of the Company only. It is not intended hereby
to establish a fund to provide for the payment of 401(a)(17) Benefits or to
create a trust or lien (equitable or otherwise) for the benefit of any
Participant, Spouse or any other person.
4
IN WITNESS WHEREOF, the Company has caused this Plan to be
executed by its duly appointed officer, effective as of January 1, 2002.
ROADWAY CORPORATION
By: /s/ John J. Gasparovic
------------------------------
VP, General Counsel & Secretary
5
EXHIBIT A
ROADWAY CORPORATION PENSION PLAN
6
First Amendment
to the
Roadway Corporation 401(a)(17) Benefit Plan
(Effective January 1, 2002)
WHEREAS, Roadway Corporation (the "Company") maintains the
Roadway Corporation 401(a)(17) Benefit Plan (the "Plan"); and
WHEREAS, the Board of Directors of the Company (the "Board")
has authority to amend the Plan; and
WHEREAS, the Board has determined that it is desirable to
amend the Plan to provide for participants to receive payment of their benefits
under the Plan at substantially the same time and in the same form of payment as
their benefits are paid under the Company's tax-qualified defined benefit
pension plan;
NOW, THEREFORE, Section 3.2 of the Plan is hereby amended to
read as follows:
(a) Time and Form of Payment. A Participant's 401(a)(17)
Benefit shall be paid at substantially the same time and in the same form of
payment as the Participant's pension benefit is paid under the Pension Plan. If
a Participant's 401(a)(17) Benefit is paid in a form other than a life annuity
for the life of the Participant, such form of payment shall be Actuarially
Equivalent to the Participant's 401(a)(17) Benefit payable in the form of a
single life annuity for the life of the Participant.
(b) Effect of Reemployment. If a Participant who has
commenced receiving an 401(a)(17) Benefit hereunder becomes reemployed by any
member of the Controlled Group, payment of the Participant's 401(a)(17) Benefit
shall be suspended in the same manner and to the same extent as such 401(a)(17)
Benefit would be suspended if it were a pension benefit paid under the Pension
Plan.
IN WITNESS WHEREOF, Roadway Corporation has caused this First
Amendment to the Roadway Corporation 401(a)(17) Benefit Plan to be adopted as of
this 5th day of November 2002.
ROADWAY CORPORATION
By: /s/ John J. Gasparovic
Vice President, General Counsel & Secretary
7
Second Amendment
to the
Roadway Corporation 401(a)(17) Benefit Plan
(Effective January 1, 2002)
Roadway Corporation hereby adopts this Second Amendment to the
Roadway Corporation 401(a)(17) Benefit Plan (Effective January 1, 2002) (the
"Plan") effective as of the date set forth below. Words and phrases used herein
with initial capital letters that are defined in the Plan are used herein as so
defined.
I.
Article II of the Plan is hereby amended by the addition of the
following new Section immediately following Section 2.3 thereof:
"2.3A Change in Control
'Change in Control' means
(a) (i) the acquisition by any individual,
entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended
(the 'Exchange Act')) (a 'Person') of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of voting securities of the Company where such
acquisition causes such Person to own 20% or more of the
combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the 'Outstanding Company Voting
Securities'); provided, however, that for purposes of this
subsection (i), the following acquisitions shall not be deemed
to result in a Change of Control: (A) any acquisition directly
from the Company that is approved by the Incumbent Board (as
defined in subsection (ii) below), (B) any acquisition by the
Company, or (C) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company; provided, further,
that if any Person's beneficial ownership of the Outstanding
Company Voting Securities reaches or exceeds 20% as a result
of a transaction described in clause (A) or (B) above, and
such Person subsequently acquires beneficial ownership of
additional voting securities of the Company, such subsequent
acquisition shall be treated as an acquisition that causes
such Person to own 20% or more of the Outstanding Company
Voting Securities; and provided, further, that if at least a
majority of the members of the Incumbent Board determines in
good faith that a Person has acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% of more of the Outstanding Company Voting
Securities inadvertently, and such Person divests as promptly
as practicable a sufficient number of shares so that such
Person beneficially owns (within the meanings of Rule 13d-3
promulgated under the Exchange Act) less than 20% of the
Outstanding Company Voting Securities, then no Change of
Control shall have occurred as a result of such Person's
acquisition; or
(b) (ii) individuals who, as of February 22,
2002, constitute the Board (the 'Incumbent Board' (as modified
by this clause (ii)) cease for any reason to constitute at
least a majority of the Board; provided, however, that any
individual becoming a director subsequent to February 22, 2002
whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board (either by a
specific vote or by approval of the proxy statement of the
Company in which such person is named as a nominee for
director, without objection to such nomination) shall be
considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with
respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board; or
8
(c) (iii) The consummation of a reorganization,
merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company or the
acquisition of assets of another corporation, or other
transaction ('Business Combination') excluding, however, such
a Business Combination pursuant to which (A) the individuals
and entities who were the ultimate beneficial owners of voting
securities of the Company immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than 65% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in
the election of directors, of the entity resulting from such
Business Combination (including, without limitation, an entity
that as a result of such transaction owns the Company or all
or substantially all of the Company's assets either directly
or through one or more subsidiaries) (B) no Person (excluding
any employee benefit plan (or related trust) of the Company,
the Company or such entity resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or
more of the combined voting power of the then outstanding
securities entitled to vote generally in the election of
directors of the entity resulting from such Business
Combination and (C) at least a majority of the members of the
board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination;
or
(d) (iv) approval by the shareholders of the
Company of a complete liquidation or dissolution of the
Company except pursuant to a Business Combination described in
clauses (A), (B) and (C) of subsection (iii), above."
II.
Section 3.2(a) of the Plan is hereby amended by the addition
of the following new sentence at the end thereof:
"Notwithstanding the foregoing, in the event of a Change in Control,
the 401(a)(17) Benefit of any former employee receiving a 401(a)(17)
Benefit at the time of the Change in Control shall be paid as soon as
administratively feasible following such Change in Control, but in no
event later than five business days following the Change in Control, in
a single lump sum payment, the amount of which shall be Actuarially
Equivalent to such former Employee's 401(a)(17) Benefit payable in the
form of a single life annuity for the life of such former Employee."
EXECUTED this 7th day of August, 2003.
ROADWAY CORPORATION
By: /s/ John J. Gasparovic
Title: Executive Vice President,
General Counsel & Secretary
9