EXHIBIT 10.26
ROADWAY CORPORATION
EXCESS PLAN
(Effective January 1, 2002)
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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................................................................................ 1
2.4 Employer....................................................................................... 2
2.5 Excess Retirement Benefit...................................................................... 2
2.6 Participant.................................................................................... 2
2.7 Pension Plan................................................................................... 2
2.8 Spouse......................................................................................... 2
2.9 Valuation Date................................................................................. 2
ARTICLE III EXCESS RETIREMENT 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....................................................................... 3
3.7 Effect of Termination of Excess 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 ........................................................................................... 4
ROADWAY CORPORATION
EXCESS PLAN
(Effective January 1, 2002)
THIS PLAN is made and executed this ________ day of
_______________, 2002 by Roadway Corporation, Delaware corporation (the
"Company"). This Plan is an amendment and restatement of the Roadway Corporation
Excess Plan.
ARTICLE I
PURPOSE OF THE PLAN
1.1 Purpose
The Company hereby establishes the Roadway Corporation Excess
Plan (the "Plan"). The purpose of this Plan is to provide to certain of the
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 benefits payable under such Pension
Plans due to the application of Section 415 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 IV by the Company for each Participant.
2.3 Accrued Benefit
"Accrued Benefit" of a Participant as of any date, hereinafter
called an "accrual date," equals the amount of Excess Retirement 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.
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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 Excess Retirement Benefit
"Excess Retirement 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 415
of the Code and (b) who 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
EXCESS RETIREMENT BENEFITS
3.1 Amount of Benefit
(a) Participants in a Single Pension Plan. The Excess
Retirement 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 as of 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 Section 415 of the Code, over (ii) 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 less (iii) the amount, if any, the Participant would be entitled
to receive, as of the Effective Date, under the Roadway Services, Inc. Excess
Plan. Such Excess Retirement Benefit (1) shall be reduced to reflect any
post-retirement increases in monthly benefits payable to the Participant under
such Pension Plan by reason of increases in the limits under Section 415 of the
Code, and (2) 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.
(b) Participants in Multiple Pension Plans. If a person
has been a Participant in more than one Pension Plan, his Excess Retirement
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 Section 415 of the
Code, over (ii) the amount of monthly benefits in fact payable to the
Participant or his Beneficiary under all of the Pension Plans for such month,
and computed and adjusted as provided in Section 3.1(a).
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(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 Excess
Retirement Benefit computed and adjusted as provided in Subsections 3.1(a) and
(b) to which the Participant would be entitled. Such pre-retirement and survivor
annuity will 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 Excess Retirement 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 Excess Retirement 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 an
Excess Retirement 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 Excess Retirement 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 Excess Retirement 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 Excess Retirement
Benefit previously paid such Participant under this Plan.
3.3 Liability for Payment
The Company shall pay the Excess Retirement Benefit to the
Participant and/or his Beneficiary.
3.4 Eligibility for Benefit
Each Participant shall be eligible for an Excess Retirement
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.
3.6 Effect on other Benefits
Benefits payable to or with respect to a Participant under the
Pension Plans, the 401(a)(17) Benefit Plan or any other Company-sponsored
(qualified or nonqualified) plan, if any, are in addition to those provided
under this Plan.
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3.7 Effect of Termination of Excess 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' Excess Retirement Benefits, including, without
limitation, by providing for the satisfaction of the Company's obligation to pay
Excess Retirement Benefits by payment of a single lump sum payment to each
Participant or Spouse then entitled to an Excess Retirement Benefit in an amount
equal to the Actuarially Equivalent present value of such Excess Retirement
Benefit, provided that the Company may not diminish the value of the Excess
Retirement 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 Excess
Retirement 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 an Excess Retirement 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, Excess Retirement 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 Excess Retirement Benefits or
to create a trust or lien (equitable or otherwise) for the benefit of any
Participant, Spouse or any other person.
IN WITNESS WHEREOF, the Company has caused this Plan to be
executed by its duly appointed officer, effective as of the January 1, 2002.
ROADWAY Corporation
By: /s/ John J. Gasparovic
Title: VP, General Counsel & Secretary
4
EXHIBIT A
ROADWAY CORPORATION PENSION PLAN
First Amendment
to the
Roadway Corporation Excess Plan
(Effective January 1, 2002)
WHEREAS, Roadway Corporation (the "Company") maintains the
Roadway Corporation Excess 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 Excess
Retirement 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 Excess Retirement 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 Excess Retirement 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 Excess Retirement Benefit hereunder becomes reemployed by
any member of the Controlled Group, payment of the Participant's Excess
Retirement Benefit shall be suspended in the same manner and to the same extent
as such Excess Retirement 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 Excess Plan to be adopted as of this 5th
day of November 2002.
ROADWAY CORPORATION
By: /s/ John J. Gasparovic
Vice President, General Counsel & Secretary
Second Amendment
to the
Roadway Corporation Excess Plan
(Effective January 1, 2002)
Roadway Corporation hereby adopts this Second Amendment to the
Roadway Corporation Excess 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
(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 Excess Retirement Benefit of any former Employee receiving an
Excess 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 Excess Retirement
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