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Exhibit 10.2
RESTRICTED BOOK VALUE SHARES PLAN
FOR CALIBER SYSTEM, INC.
AND CERTAIN OPERATING COMPANIES
(As Amended and Restated as of January 2, 1996)
ARTICLE I: DEFINITIONS
1.1 The terms defined in this Article I and the various terms defined from
time to time in the text of this Plan shall have their defined meanings
throughout unless expressly stated otherwise or the context otherwise requires.
(a) "Basic Stock Credits" means Stock Credits awarded to participants in the
Stock Credit Plan, as approved by the Board of Directors of Caliber in its
discretion.
(b) "Book Value" as of a specified date means the value determined by dividing
the common shareholders' equity of Caliber by the total number of its
shares of Common Stock outstanding, excluding treasury shares, based upon
Caliber's annual consolidated balance sheet as audited by its independent
auditors as of the date in question. For the purpose of calculating the
Purchase Price under Section 4.1.3 and the Repurchase Price under Section
4.4.1 hereof, the Book Value calculation may be adjusted by the Committee,
in its sole discretion, after consultation with the independent auditors,
to reduce or eliminate the effect of any changes in accounting policies,
acquisitions, spin-offs or other unusual or extraordinary items.
(c) "Caliber" means Caliber System, Inc., an Ohio corporation, and any
successor.
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(d) "Committee" means a committee of the Board of Directors of Caliber
composed of three or more nonemployee directors who may not have any
interest in any Employer Incentive Compensation Plan and are not eligible
to participate in the Plan.
(e) "Common Stock" means the shares of no par value common stock of Caliber.
Such shares issued or transferred under the Plan may be treasury shares or
shares of original issuance.
(f) "Determination Date" means the date on which the independent auditors
issue their opinion to Caliber on the annual financial statements for the
preceding year ended December 31.
(g) "Disability" means a physical or mental condition of the Participant,
resulting from a bodily injury or disease or mental disorder, which
renders him incapable of performing duties for the Employer.
(h) "Employer" means Caliber or any other individual company within the
Caliber affiliated group of companies that employs the Participant and any
corporate successor to the business presently conducted by such affiliated
company.
(i) "Employer Incentive Compensation Plan" means an incentive plan which the
Employer has adopted for calendar year 1992 (and may adopt and amend in
subsequent years) which embodies a formula for determining the amount of
the Employer's net income which may be paid to Participants if the
Employer's performance meets certain standards which are a part of the
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Employer Incentive Compensation Plan. Except for decisions
reserved to the Committee hereunder, all decisions concerning the
Employer Incentive Compensation Plan including, without limitation,
eligibility to participate, award of benefits and the approval of
the exercise of any options available, shall be made by the Board
of Directors of the Employer.
(j) "Normal Retirement Date" means the first day of the calendar month
following the month in which the retiring Participant attains age
sixty-five (65).
(k) "Participant" means an individual who purchases RBV Shares as offered
through his Employer. As of January 2, 1996, the groups of individuals
who are eligible to participate in the Plan are (i) officers of Caliber;
RPS, Inc.; Caliber Technology, Inc.; Roberts Express, Inc.; Viking
Freight, Inc.; Caliber Logistics, Inc. and its affiliates; (ii)
RPS, Inc. Regional Managers; and (iii) any other individuals or groups of
individuals as the Committee (as defined in Section 1.1(c) of the Plan)
may determine from time to time.
(l) "Plan" means the Restricted Book Value Shares Plan for Caliber System,
Inc. and Certain Operating Companies, as in effect from time to time.
(m) "Plan Year" means any calendar year for which any Employer Incentive
Compensation Plan may be adopted.
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(n) "Price" for Common Stock means the "last" price quoted for shares of
Common Stock of Caliber on the date in question by the National
Association of Securities Dealers Automated Quotation System for the
National Over-The-Counter Market as set forth in The Wall Street Journal
if published, and if not published, as set forth in a newspaper of general
circulation selected by the Committee. If the Common Stock is listed on a
national stock exchange, the term "Price" for Common Stock as of a certain
date shall be the closing price for said Common Stock on such exchange, or
if no sale has occurred on such date, the closing bid price, in each case,
as quoted in The Wall Street Journal if published, but if not published,
as set forth in a newspaper of general circulation selected by the
Committee. Notwithstanding the preceding provisions of this Subsection,
the term "Price" for Common Stock as of December 31, 1995 shall be
determined based on the average of the closing price of Common Stock on
the first 15 trading days after the spin-off of Roadway Express, Inc.
from Caliber.
(o) "RBV Shares" means shares of Common Stock issued pursuant to, and
otherwise subject to the provisions of, Article IV hereof.
(p) "Stock Credit Plan" means the Caliber Long-Term Stock Award Incentive
Plan, as in effect from time to time.
(q) "Stock Credits" means Basic Stock Credits and Supplemental Stock Credits.
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(r) "Supplemental Stock Credits" means Stock Credits awarded to participants
in the Stock Credit Plan that reflect amounts of Employer contributions
and other annual additions that would have been made under tax qualified
employee benefit plans of Caliber but for limitations imposed by federal
tax law.
ARTICLE II: CONDITIONS OF ELIGIBILITY
An individual shall be eligible to participate in the Plan upon satisfaction
of the following conditions:
2.1 EMPLOYMENT AT WILL. The Employer has agreed to employ Participant and
Participant has agreed to serve the Employer in the capacity assigned under a
relationship rescindable at the will of either party. Nothing herein shall
limit the right of the Employer to transfer Participant to another position,
whether similar or not, nor limit the right of the Employer to discharge
Participant for any cause recognized by law as grounds for discharge without
liability.
2.2 FULL-TIME BEST EFFORTS. The Participant also has agreed to devote his
best efforts and substantially all of his business time and attention to the
affairs of the Employer (including the affairs of a subsidiary or other
affiliated company, if the Employer so elects).
2.3 MEANING OF TERMINATION OF EMPLOYMENT. The phrase "termination of
employment" and any variation thereof with respect to a Participant shall mean
that the Participant has ceased to serve his Employer or another Employer on a
full-time
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basis, whether as a result of resignation, dismissal, retirement, death or any
other reason.
ARTICLE III: METHODS OF PURCHASE OF RBV SHARES
3.1 PURCHASE WITH INCENTIVE COMPENSATION. For a Participant's services
rendered during his employment, the Employer shall pay him and Participant
shall accept compensation therefor an amount as determined by the Employer from
which Participant may elect to take a portion thereof in the form of RBV Shares
under Article IV hereof pursuant to an election procedure established by the
Employer.
3.2 PURCHASES WITH STOCK CREDITS. RBV Shares may also be purchased by a
Participant with Basic Stock Credits, or with amounts that would otherwise be
issued in the form of Supplemental Stock Credits, on terms established by
Caliber from time to time.
ARTICLE IV: RBV SHARES
4.1.1 RESTRICTED BOOK VALUE PORTION. The portion of the Participant's
incentive compensation or amounts of Stock Credits designated for the purchase
of RBV Shares hereunder is sometimes hereinafter referred to as the "Restricted
Book Value Portion".
4.1.2 DETERMINATION OF PURCHASE AMOUNT. The Restricted Book Value Portion
shall consist of two parts: one for (i) required tax withholdings, (ii)
Caliber System, Inc. Stock Savings and Retirement Income Plan (or other
Employer
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sponsored defined contribution plan) contributions and (iii) residual cash
otherwise attributable to any fractional share (the "Withholding Amount") and
the other for the actual purchase of RBV Shares (the "Purchase Amount"). The
Purchase Amount shall be equal to the Restricted Book Value Portion minus the
Withholding Amount; provided, however, that the Purchase Amount shall at all
times be subject to limitation by the Board of Directors of Caliber.
Notwithstanding the foregoing, in the event a limitation imposed by the Board
of Directors results in the payment of a portion of the Purchase Amount in
cash, Caliber may, at its discretion, include in the cash payment the amount of
residual cash otherwise attributable to any fractional share.
4.1.3 ISSUANCE OF RBV SHARES. The Purchase Amount shall be used to cause
the issuance at the Committee's convenience after the Determination Date (but
prior to March 16 of the year after the Plan Year) of certificates in the
Participant's name for that number of RBV Shares equal to the number of whole
shares of Common Stock which could have been purchased at Book Value on
December 31 of the Plan Year.
4.2 TRANSFER RESTRICTIONS. RBV Shares may not be sold, assigned, pledged,
encumbered, charged, transferred or disposed of in any way except as permitted
in Sections 4.3 and 4.4 hereof.
4.3 PERMITTED TRANSFERS. Section 4.2 notwithstanding, the Participant may
make a gift of or may otherwise transfer any of his RBV Shares to (i) any
member of his immediate family
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(which is defined to include his spouse, child, grandchild, parent, brother,
sister, niece or nephew, whether of the whole or half blood) or (ii) a trust,
partnership or S Corporation, of which the beneficiaries, partners or
shareholders are immediate family members or the Participant. In addition, on
the death or disability of the Participant, his RBV Shares may be transferred
to his estate or personal representative and to the person or persons entitled
thereto under his last will and testament or under the laws of descent and
distribution of his domicile. Any RBV Shares permitted to be transferred
pursuant to the provisions of this Section 4.3 shall continue to be RBV Shares
until repurchased in accordance with Section 4.4 hereof. The foregoing
notwithstanding, a permitted transferee of RBV Shares may subsequently transfer
any of such shares to another immediate family member of the Participant.
4.4 CONDITIONS OF REPURCHASE OR EXCHANGE. RBV Shares are subject to
repurchase or exchange as follows:
4.4.1 REPURCHASE PRICE. The price per share at which RBV Shares shall be
repurchased shall be the Book Value on December 31 of the year preceding the
date of repurchase at which the RBV Shares being repurchased, were initially
issued (the "Repurchase Price").
4.4.2 REPURCHASE AT PARTICIPANT'S ELECTION. On or after the fifth
anniversary date of the issuance of RBV Shares to the Participant under Section
4.1, the Participant may tender his
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RBV Shares for repurchase, and, if tendered, such shares shall be repurchased
at the Repurchase Price.
4.4.3 REPURCHASE UPON RETIREMENT OR DEATH. If the Participant's employment
terminates because of retirement at or prior to the Normal Retirement Date or
death prior to retirement, his RBV Shares (whether held by the Participant or
any transferee) must be returned for repurchase at the Repurchase Price as
follows: at least 10 percent of the Participant's RBV Shares (including any
issuable for his final year of employment) shall be repurchased on or before
April 1 of the second year following the year in which the Participant's
termination of employment occurred; thereafter, at least 20 percent in the
aggregate of said shares shall be repurchased on the following April 1 and at
least 30% on the next following April 1, and continuing thereafter so that
within a ten-year period all said shares shall have been returned for
repurchase.
4.4.4 REPURCHASE UPON OTHER TERMINATION OF EMPLOYMENT. Upon termination of
a Participant's employment with his Employer for any reason other than as
referred to in Section 4.4.3, all of the Participant's RBV Shares must be
returned for repurchase at the Repurchase Price within one year from the date
of such termination; provided, however, that RBV Shares purchased with
converted Stock Credits pursuant to Section 5.3 of the Stock Credit Plan after
such termination, if any, must be returned for repurchase at the Repurchase
Price within one year from the date of such purchase.
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4.4.5 REPURCHASE ONLY AFTER AUDIT. In the event RBV Shares are returned
for repurchase during January of any year pursuant to the preceding provisions
of this Article IV, such shares shall be repurchased on or about April 1 of
such year, but in any event after the Determination Date under the applicable
Employer Incentive Compensation Plan for the preceding year.
4.4.6 LEGENDING AND ESCROW OF CERTIFICATES. Certificates representing RBV
Shares shall bear a legend to the effect that they are subject to restriction
on transfer or disposition in accordance with this Plan. In aid of such
restrictions, and as a matter of administrative convenience, the Committee
shall, with the authority hereby given by the Participant, deposit for the
Participant's account the certificate or certificates representing the
Participant's RBV Shares, together with such appropriate documentation as may
be requested by the Committee, with a bank selected by the Committee under an
escrow agreement containing such terms and conditions as the Committee shall
determine. The Participant, however, retains the right to require any escrow
agent to redeliver the RBV Shares to the Participant subject to all of the
other provisions of this Article IV and this Plan.
4.4.7 EXCHANGE WITHOUT CASH. In lieu of any right or obligation to
repurchase RBV Shares for cash pursuant to the terms of this Plan, the
Committee may, but is not obligated to, authorize the issuance in exchange for
the RBV Shares otherwise to be purchased, of that number of shares of its
Common Stock
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equal to the number of RBV Shares exchanged times the ratio determined by
dividing the Repurchase Price by the Price for Common Stock as of December 31
of the year preceding the date of such exchange. The Common Stock thus issued
shall be free of the restrictions provided for in this Article IV but subject
to any restrictions under applicable securities laws.
4.4.8 EXCHANGE WITH CASH. Upon request of the Participant made at any time
the Participant desires to tender his RBV Shares for repurchase as permitted by
Section 4.4.2 hereof, the Committee may (but is not obligated to) permit the
Participant to tender an amount of cash equal to the positive difference of the
Price less the Repurchase Price as of December 31 of the year preceding the
tender, times the number of RBV Shares tendered therewith and to receive back
the same number of shares of Common Stock free of the restrictions provided for
in this Article IV but subject to any restrictions under applicable securities
law. Once a participant has made such a request, it may not be withdrawn
without the consent of the Committee.
4.4.9 CERTAIN TENDER OFFERS. In the event of a tender offer for the Common
Stock subject to Regulation 14D or 14E under the Securities Exchange Act of
1934, as amended, the acceptance of which tender offer is either (i)
recommended to shareholders by the Board of Directors of Caliber, or (ii) not
opposed by such Board, or (iii) involves an acquisition device in which any of
the shareholders may exercise dissenters' rights under any provision of Chapter
1701 of the Ohio Revised Code, then in any
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such event, the Committee may unilaterally confer upon the Participant the
benefits of both Sections 4.4.7 and 4.4.8 with respect to any or all of the
Participant's RBV Shares.
4.4.10 REPURCHASE UPON SPIN-OFF OF ROADWAY EXPRESS, INC. Upon the spin-off
of Roadway Express, Inc. from Caliber, each Participant who was an employee of
Roadway Express, Inc. on January 1, 1996 shall be required to return his RBV
Shares for repurchase at the Repurchase Price within one year from the date of
such spin-off.
4.5 REPURCHASE OR EXCHANGE IN CERTAIN SPECIAL CIRCUMSTANCES. The Committee
may also accelerate the date on which the Participant's RBV Shares may be
repurchased under Section 4.4 or exchanged for Common Stock under Section
4.4.7, to such date or dates as the Committee shall determine, if, in the sole
judgment of the Committee, the acceleration is justified (i) by the death or
disability of the Participant, (ii) by hardship suffered by the Participant, or
(iii) for any other reason which the Committee may deem to be in the best
interests of the Participant or his Employer.
4.6 SUBDIVISIONS AND COMBINATIONS OF SHARES. If any subdivision,
combination or other change of outstanding shares of Common Stock by
reclassification, distribution of a stock dividend, corporate reorganization,
consolidation, merger or otherwise shall occur, the number of RBV Shares issued
under Article IV shall be accordingly increased, decreased or otherwise
appropriately changed as the Committee may determine. To the
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extent that, because of any such change, the Participant, former Participant,
or his legal representative or transferee as permitted herein shall as the
owner of RBV Shares be entitled to new, additional or different shares of stock
or securities, the certificates for such new, additional or different shares or
securities, together with such appropriate documentation as may be requested by
the Committee, shall be deposited by the Participant, legal representative or
transferee under the escrow referred to in Section 4.4.6 hereof. All
provisions of Article IV shall be applicable to such new, additional or
different shares or securities issued with respect to RBV Shares.
4.7 RIGHTS, WARRANTS, ETC. If the Participant, former Participant, his
legal representative or transferee as permitted herein, shall receive rights,
warrants or fractional interest in respect of RBV Shares, such rights or
warrants may be held, exercised, sold or otherwise disposed of, and such
fractional interest may be settled free and clear of any restrictions under
Article IV, except any restrictions imposed by federal or state securities
laws.
ARTICLE V: MISCELLANEOUS PROVISIONS
5.1 AMENDMENT AND TERMINATION. The Board of Directors of Caliber may amend
or terminate the Plan at any time without the consent of any Participant or any
other person. In the event of any such termination, the Board may require each
holder of RBV Shares to tender them to Caliber for repurchase at the Repurchase
Price. Caliber shall not be required, however, to provide for
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any such repurchase and may make any other provision for the settlement of
outstanding awards that it considers, in its sole discretion, to be equitable.
5.2 DISPUTES. In the event that any disagreement, dispute or controversy
shall hereafter exist between an Employer and a Participant or the Committee
and a Participant as to any matter arising under this Plan, whether as to
construction, interpretation or operation thereof, or the respective rights and
liabilities of the parties hereunder, or as to the payment or receipt of any
sum of money, or otherwise, then such disagreement, dispute or controversy
shall be settled by arbitration by three arbitrators. Within thirty (30) days
after either party delivers to the other party a written request for
arbitration, each shall appoint one arbitrator and the two arbitrators shall
together then appoint a third arbitrator within ten (10) days after the first
two arbitrators are appointed. If either party fails to appoint an arbitrator
within such time, or if the two arbitrators fail to appoint the third
arbitrator within the specified period, then such arbitrator or such third
arbitrator, as the case may be, shall be selected pursuant to the rules of the
American Arbitration Association upon application of either party. It shall be
the duty of the arbitrators to make the determination required hereunder as
expeditiously as possible after their appointment. A determination by a
majority of the arbitrators shall be final and binding. Each party shall pay
the cost of his or its arbitrator and one-half of the cost of the
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third arbitrator and the cost of the arbitration itself. All
arbitration proceedings shall be held in the place of the Participant's
domicile.
5.3 ADOPTION BY EMPLOYERS. This Plan may be adopted by an Employer
by inclusion of the substance hereof in a specific incentive
compensation agreement or stand alone plan adopted by an Employer.