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Exhibit 4.4(k)
AMENDMENT NO. 2
TO THE
CENTRAL FREIGHT LINES, INC.
EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN
THIS AMENDMENT NO. 2 to the Central Freight Lines, Inc.
Employees Profit Sharing and Retirement Plan (the "Plan") is made and executed
this 30th day of December, 1996 by Central Freight Lines, Inc. (hereinafter
referred to as the "Company"). Unless otherwise provided, this Amendment No. 2
shall be effective as of October 1, 1996.
1. Notwithstanding anything in the Plan to the contrary, any
provision within the Plan which requires action by means of written
authorization, written notification or written application shall be deemed
satisfied if such action is taken in accordance with procedures established by
the Plan Administrator.
2. The first two paragraphs of Section 2.01(i) of the Plan are
hereby deleted in their entirety and replaced by the following:
'COMPENSATION' or 'SALARY' means the sum of salary
paid to an Employee by all Controlled Group Members in the
calendar year plus cash incentive compensation and overtime
pay paid to that Employee, but excluding (i) expense
allowances and other special payments not paid as regular
compensation, (ii) payments pursuant to a tax equalization,
relocation or cost of living program, an expatriate program or
any similar programs or arrangements and (iii) any part of the
Employer's contributions under this Plan and/or any pension,
welfare, stock bonus, stock ownership or other qualified or
nonqualified plan. Notwithstanding the foregoing, Compensation
shall
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include any salary that would have been paid to such Employee
had he not signed a salary deferral agreement that satisfies
the requirements of Code Sections 401(k), 125 or 129.
3. Section 2.01(p) of the Plan is hereby amended in its
entirety to read as follows:
'ENTRY DATE' means the earliest practicable date
after an Employee has met the requirements of Section 3.01(b)
or 3.01(c).
4. Section 2.01(u) of the Plan is hereby amended by deleting
the phrase "sixty (60)" and inserting the phrase "fifty- nine and one-half (59
1/2)" at the end thereof.
5. Section 2.04 of the Plan is hereby amended in its entirety
to read as follows:
2.04 YEAR OF SERVICE. For purposes of determining
eligibility for participation in the Plan, 'YEAR OF SERVICE'
means a twelve (12) consecutive month period commencing on the
Date of Employment during which an Employee is credited with
at least one thousand (1,000) Hours of Service (the 'Initial
Eligibility Computation Period'). Whether or not an Employee
is credited with one thousand (1,000) Hours of Service during
an Initial Eligibility Computation Period, such Employee shall
be credited with a YEAR OF SERVICE if he is credited with at
least one thousand (1,000) Hours of Service during the Plan
Year beginning during the Initial Eligibility Computation
Period or any Plan Year thereafter.
For all other purposes, 'YEAR OF SERVICE' means a twelve (12)
consecutive month period ending on the last day of a Plan Year
in which an Employee is credited with at least one thousand
(1,000) Hours of Service. For purposes of vesting, with regard
to an Employee on October 1, 1996 who was an Employee at any
time during the period January 1, 1996 through September 30,
1996, such Employee shall be credited with a Year of Service
for the twelve (12) consecutive month period ending on the
anniversary of his Date of Employment or Date of Reemployment
occurring in 1997, if he is credited
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with at least one thousand (1,000) Hours of Service during
such period, and a Year of Service for the twelve (12)
consecutive month period ending on December 31, 1997, if he is
credited with at least one thousand (1,000) Hours of Service
during such period.
6. The first sentence of Section 2.05 of the Plan is hereby
amended by deleting the phrase "measured from the Employee's Date of Employment"
and inserting the phrase "as determined pursuant to Section 2.04."
7. Section 2.07 of the Plan is hereby amended in its entirety
to read as follows:
2.07 BREAK-IN-SERVICE. For purposes of this Plan,
'BREAK-IN-SERVICE' means a Plan Year during which an Employee
has not completed an Hour of Service. A Break-in-Service
occurs as of the last day of such Plan Year.
8. The first sentence of Subsection 4.02(a)(1) of the Plan is
hereby amended by deleting the phrase "ten percent (10%)" and inserting the
phrase "fifteen percent (15%)."
9. The first sentence of Subsection 4.02(b) of the Plan is
hereby amended by deleting the phrase "over and above his Salary Reduction
Contributions."
10. A new Subsection 4.02(c) is added to the Plan to read as
follows:
(c) A Participant's Salary Reduction and/or Voluntary
Contributions with respect to any pay period must be made in
whole or half percentages, must each be a minimum of one
percent (1%) of his Compensation and may not, in the
aggregate, exceed fifteen percent (15%) of his Compensation.
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11. Subsection 5.02(b)(iv) of the Plan is hereby amended in
its entirety to read as follows:
(iv) FORFEITURES. As of each Allocation Date,
Forfeitures, if any, occurring during the Plan Year (net of
any amount of Forfeitures allocated to the restoration of
prior Forfeitures pursuant to Section 7.05 hereof) shall be
added to Employer Contributions (other than the Matching
Portion) and allocated as Employer Contributions.
12. Subsection 5.02(c) of the Plan is hereby amended by
deleting the phrase "after July 1 of that Plan Year" and deleting the phrase
"and who have made an election to defer distribution of their Participant
Account until the next Plan Year."
13. Subsection 5.03(b) of the Plan is hereby amended in its
entirety to read as follows:
(b) Subject to Subsection 5.03(c), amounts in a
Participant's Transfer Contribution Account shall be held by
the Trustee pursuant to the provisions of this Plan and may be
withdrawn at the request of the Participant in accordance with
procedures established by the Plan Administrator, in whole or
in part, in the form of cash payments or in common stock of
Caliber System, Inc. to the extent invested in such stock.
14. Section 7.03 of the Plan is hereby amended by adding
Subsections (e) and (f) at the end thereof to read as follows:
(e) under Subsection 7.12 hereof (relating to
withdrawals on account of disability or
attainment of age fifty-nine and one-half
(59 1/2)); or
(f) under Subsection 5.03(b) hereof (relating to
withdrawals or distributions of amounts held
in a Participant's Transfer Contribution Account).
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15. Subsection 7.04(a)(i) of the Plan is hereby amended by
deleting the sentence "In the event such election is made, the deferred Account
shall be entitled to share in the allocation of Employer Contributions for the
Plan Year in which the retirement or death of the Participant occurred."
16. Subsection 7.04(a) of the Plan is hereby amended by adding
the following Subparagraphs (iii) and (iv) at the end thereof to read as
follows:
(iii) PARTIAL LUMP SUM. The Participant's Account may
be distributed in a partial lump sum payment, with the
remainder paid later.
(iv) INSTALLMENT PAYMENTS. The Participant's Account
may be distributed in installments over a period not to exceed
the life expectancy of the Participant and his Beneficiary.
17. Subsection 7.04(c) of the Plan is hereby amended in its
entirety to read "[Reserved]."
18. Subsection 7.04(d) of the Plan is hereby amended by
inserting the phrase "to the extent required by Code Section 401(a)(9),"
immediately following the phrase "in this Article VII," in the first sentence
thereof.
19. Subsection 7.04(f) of the Plan is hereby amended in its
entirety to read as follows:
(f) Distributions shall be in the form of a cash
payment or, if elected by the Participant, the portion of his
Capital Accumulation invested in the common stock of Caliber
System, Inc. may be received in-kind only if the Participant
elects to receive an immediate lump sum payment under
Subsection 7.04(a)(i).
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20. Subsection 7.05(b) of the Plan is hereby amended by
deleting the last sentence thereof.
21. Subsection 7.07(c) of the Plan is hereby amended in its
entirety to read as follows:
Distributions from the Participant's Capital Accumulation
pursuant to this Section 7.07 shall come from the following
fully vested Accounts in the following order: Voluntary
Contributions Accounts; Transfer Contribution Account;
Employer Contribution Account (the Matching Portion); Employer
Contribution Account (other than the Matching Portion); and
Salary Reduction Contributions Account (excluding earnings).
22. Subsection 7.10(a) of the Plan is hereby amended by
deleting the phrase "(but not less than $500)."
23. Subsection 7.10(c) of the Plan is hereby amended by
redesignating Subsection (d) as Subsection (c) and by deleting the phrase "any
distribution if it and all other eligible rollover distributions to the
Participant during the calendar year are reasonably expected to total less than
Two Hundred Dollars ($200), (c)."
24. A new Section 7.11 is added to the Plan to read as
follows:
7.11 Loans
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The following loan provisions will be effective when
the Plan Administrator, in its discretion, determines it is
administratively feasible and desirable to provide loans under
the Plan.
(a) A Participant who is either an Employee of an
Employer or a Controlled Group Member or a "party-in-interest"
(as defined in Section 3(14) of ERISA) may, in accordance with
procedures
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established by the Plan Administrator, apply for a loan from
his Account. Such procedures shall include action to prevent a
Participant who is otherwise eligible for a loan from securing
a loan if the Administrator has knowledge that the Participant
is in bankruptcy or some similar proceeding. Each loan shall
be charged against the Participant's fully vested Account in
the following order (to the extent necessary): Salary
Reduction Contributions Account; Employer Contribution Account
(the Matching Portion); Employer Contribution Account (other
than the Matching Portion); Transfer Contribution Account; and
finally, against the Voluntary Contributions Accounts.
(b) Each loan shall be in an amount which is not less
than $1,000. A Participant may only have one loan outstanding
at any time. The maximum loan to any Participant (when added
to the outstanding balance of all other loans to the
Participant from all qualified employer plans (as defined in
Code Section 72(p)(4)) of the Controlled Group) shall be an
amount which does not exceed the lesser of:
(i) Fifty Thousand Dollars ($50,000), reduced
by the excess (if any) of (A) the highest
outstanding balance of such other loans during the
one-year period ending on the day before the date on
which such loan is made, over (B) the outstanding
balance of such other loans on the date on which
such loan is made; or
(ii) fifty percent (50%) of the vested value of
such Participant's Account on the date on which such
loan is made.
(c) For each Participant for whom a loan is
authorized pursuant to this Section, the Participant's
interests will be liquidated first by Account and then within
each Account amounts shall be taken on a pro-rata basis by
Investment Fund to the extent necessary to provide funds for
the loan. The Trustee shall establish and maintain a separate
recordkeeping account within the Participant's Account (the
"Loan Sub-Account") (i) which initially shall be in the amount
of the loan, (ii) to which the funds for the loan shall be
deemed to have been allocated and then disbursed to the
Participant, (iii) to which the Note shall be allocated and
(iv) which shall show the unpaid principal of the promissory
note from
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time to time. All payments of principal and interest by a
Participant shall be credited initially to his Loan
Sub-Account and applied against the Note and then credited to
the Participant's Account in the inverse order from which the
loan was funded and invested in the Investment Funds pursuant
to the Participant's direction regarding investment of
Contributions under Section 5.08. The Plan Administrator shall
value each Participant's Loan Sub-Account for purposes of
Section 5.07 at such times as the Plan Administrator shall
deem appropriate, but not less frequently than quarterly.
(d) Loans made pursuant to this Section:
(i) shall be made available to all
Participants on a reasonably equivalent basis;
(ii) shall not be made available to Highly
Compensated Employees in a percentage amount greater
than the percentage amount made available to other
Participants;
(iii) shall be secured by the Participant's
Loan Sub-Account;
(iv) shall be evidenced by a promissory note
and security agreement (the "Note") which provides
for:
(A) the loan to be secured by the
Participant's Loan Sub-Account;
(B) a rate of interest of one
percent above the prime interest rate as
determined by the Trustee at the time the
loan is processed;
(C) repayment within a specified
period of time, which shall not extend
beyond five (5) years from the date the loan
is made unless the loan proceeds are used to
acquire a dwelling which, within a
reasonable time (determined at the time the
loan is made), is to be used as the
principal residence of the Participant, in
which case the repayment period may extend
to ten (10) years;
(D) repayment in equal payments over
the term of the loan, with payments not less
frequently than monthly; and
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(E) for such other terms and
conditions as the Plan Administrator shall
determine, which shall include provision
that:
(I) with respect to a
Participant who is an Employee, the
loan will be repaid pursuant to
authorization by the Participant of
equal payroll deductions over the
repayment period sufficient to
amortize fully the loan within the
repayment period or by check during
any period the Participant is
ineligible for payroll deduction;
(II) the loan shall be
prepayable in whole or in specified
increments (as determined from time
to time by the Plan Administrator)
at any time without penalty;
(III) the loan shall be
treated as in default if payments
are more than 90 days late. A
Participant shall then have 30 days
from the time he receives written
notice of the default and a demand
for past due amounts to cure the
default before it becomes final; and
(IV) the Plan Administrator
may agree to a suspension of loan
payments for up to 12 months for a
Participant who is on a leave of
absence without pay. During such
suspension period, interest shall
continue to accrue. At the end of
such suspension period, all
outstanding loan payments and
interest shall be due unless
otherwise agreed upon by the Plan
Administrator.
(e) Notwithstanding any other provision of the Plan,
a loan made pursuant to this Section shall be a first lien
against the Participant's Loan Sub-Account. Any amount of
principal or interest due and unpaid on the loan at the time
of any Default on the loan, and any interest accruing
thereafter, shall be satisfied by deduction from the
Participant's Loan Sub-Account, and shall be
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deemed to have been distributed to the Participant, as
follows:
(i) In the case of a Participant who, at the
time of the Default, is an Employee and is not
eligible to receive distribution of his Account under
the provisions of Article VII, (other than Hardship
withdrawals under Section 7.07) at such time as he
first becomes eligible to receive distribution of his
Account under the provisions of this Article, (other
than Section 7.07); or
(ii) In the case of any other Participant,
immediately upon such Default.
If, as a result of the application of the preceding sentence,
an amount of principal or interest on a loan remains
outstanding after Default, interest at the rate specified in
the Note shall continue to accrue on such outstanding amount
until fully satisfied by deduction from the Participant's Loan
Sub-Account as hereinabove provided or by payment by or on
behalf of such Participant.
(f) The Plan Administrator shall have the right to
call any Participant's loan once the Participant's employment
with all Controlled Group Members has terminated or if the
Plan is terminated.
25. A new Section 7.12 is added to the Plan to read as
follows:
7.12 Withdrawals on Account of Disability or Attainment
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of Age Fifty-Nine and One-Half (59 1/2)
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A Participant whom the Committee has determined to
have a Disability or who has attained age fifty-nine and
one-half (59 1/2) may withdraw at any time or from time to
time all or a portion of his Capital Accumulation in the form
of a cash payment or in common stock of Caliber System, Inc.
to the extent invested in such stock, as provided and in the
order as set forth below, except that the Participant may
instead choose to have amounts taken from his Voluntary
Contributions Account first:
(a) Transfer Contribution Account;
(b) Salary Reduction Contributions Account;
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(c) Employer Contribution Account (the Matching
Portion);
(d) Employer Contribution Account (other than
the Matching Portion);
(e) Voluntary Contributions Account.
26. A new Section 10.06 is added to the Plan to read as
follows:
10.06 Voting and Tender of Common Stock of Caliber
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System, Inc. and Roadway Express, Inc.
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Each Participant or Beneficiary shall be entitled
to instruct the Trustee as to the voting or tendering of any
full or partial shares of common stock of Caliber System, Inc.
or Roadway Express, Inc. held on his or her behalf. Prior to
such voting or tendering of such stock, each Participant or
Beneficiary shall receive a copy of the proxy solicitation or
other material relating to such vote or tender decision and a
form for the Participant or Beneficiary to complete which
confidentially instructs the Trustee to vote or tender such
shares in the manner indicated by the Participant or
Beneficiary. Upon receipt of such instructions, the Trustee
shall act with respect to such shares as instructed.
With regard to shares for which the Trustee receives
no voting or tendering instructions from Participants or
Beneficiaries, the Committee designated under the Caliber
System, Inc. 401(k) Savings Plan shall instruct the Trustee
with respect to how to vote or tender such shares and the
Trustee shall act with respect to such shares as instructed.
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IN WITNESS WHEREOF, the Company has caused this Amendment No.
2 to be executed by its duly appointed officer.
In the presence of: CENTRAL FREIGHT LINES, INC.
/s/ Beth P. Ewing By: /s/ Donald C. Brown
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Title:
Dated: 12/30/96
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