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Exhibit 4.4(j)
AMENDMENT NO. 1
TO THE
CENTRAL FREIGHT LINES, INC.
EMPLOYEES PROFIT SHARING AND RETIREMENT PLAN
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This Amendment No. 1 is made and executed this 1st day of
April, 1996, generally effective as of January 1, 1995, by Central Freight
Lines, Inc. (hereinafter referred to as the "Company").
W I T N E S S E T H:
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WHEREAS, the Central Freight Lines, Inc. Employees Profit
Sharing and Retirement Plan (the "Plan") was amended and restated in its
entirety generally effective as of January 1, 1994;
WHEREAS, Section 11.03 of the Plan sets forth the provisions
whereby such Plan may be amended; and
WHEREAS, the Company desires to amend the Plan.
NOW, THEREFORE, in consideration of the premises, the Company
amends the Plan as follows:
1. The first paragraph of the Preamble to the Plan is amended by adding
the following sentence to the end thereof:
"The Plan is also intended to meet the
requirements of Section 404(c) of ERISA."
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2. The second paragraph of the Preamble to the Plan is deleted in its
entirety and replaced with the following:
"CENTRAL FREIGHT LINES, INC. has entered into a Trust
Agreement with VANGUARD FIDUCIARY TRUST COMPANY and a Special
Trust Agreement with TEXAS NATIONAL BANK, N.A. to which
contributions shall be made and from which benefits shall be
paid in accordance with the terms and conditions of the Plan."
3. A new Section 2.01(b) is added to the Plan immediately following
Section 2.01(a) to read as follows and subsequent Subsections are renumbered
accordingly:
"(b) 'ALLOCATION DATE' means December 31 of each Plan
Year."
4. Section 2.01(j) of the Plan (as renumbered by Section 3 of this
Amendment) is deleted in its entirety and replaced with the following:
"(j) 'CONTROLLED GROUP MEMBER' means Central and any
and all other corporations, trades and/or businesses, the
employees of which, together with Employees of Central, are
required by Code Section 414 to be treated as if they were
employed by a single employer."
5. Section 2.01(ii) of the Plan (as renumbered by Section 3 of this
Amendment) is deleted and replaced with the following:
"(ii) 'VALUATION DATE' means each date on which the
New York Stock Exchange is open for business. See also
Subsection 13.01(i) hereof."
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6. Section 2.05 of the Plan is amended by adding the following sentence
after the second sentence thereof:
"For purposes of this Section 2.05 only, the term
Employee shall also include Leased Employees."
7. Section 4.02(a)(2) of the Plan is amended by adding the following
sentence at the end thereof:
"The amount of any excess Salary Reduction Contributions to be
distributed pursuant to this Subsection shall be reduced by
the amount of Salary Reduction Contributions, if any, which
exceeded the limits of Code Section 401(k)(3) and Section
4.02(a)(4) of the Plan and were previously distributed to the
Participant for the Plan Year beginning with or within the
taxable year or were recharacterized as a Voluntary Employee
Contribution pursuant to Section 4.02(a)(5)(a)."
8. The last sentence of Section 4.02(a)(4)(b)(1) of the Plan is deleted
and replaced with the following:
"For purposes of determining the 'Actual Deferral Percentage'
of a Highly Compensated Participant who is either a
five-percent owner (as defined in Code Section 416(i)(1)) or
one of the ten (10) most Highly Compensated Participants, the
Salary Reduction Contribution and Compensation of such Highly
Compensated Participant shall include the Salary Reduction
Contributions and Compensation of Family Members, and such
affected Family Members shall be disregarded in determining
the 'Actual Deferral Percentage' for the Non-Highly
Compensated Participants group."
9. Section 4.02(a)(5)(a) of the Plan is amended by adding the following
sentence after the first sentence therein:
"The amount of any excess Salary Reduction Contributions to be
distributed or recharacterized pursuant to this Subsection
shall be reduced by the amount of Salary Reduction
Contributions, if any, which exceeded the limits of Code
Section 402(g) and Section 4.02(a)(2) of the Plan and were
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previously distributed to the Participant for the
Participant's taxable year ending with or within the Plan Year
in accordance with Code Section 401(g)(2)."
10. A new Section 4.02(a)(5)(c) is added to the Plan as follows:
"(c) Notwithstanding the foregoing provisions of this
Subsection, in the case of a Highly Compensated Participant
whose 'Actual Deferral Percentage' is determined under the
family aggregation rules set forth in Subsection
4.02(a)(4)(b)(1) of this Section, the determination and
correction of the amount of excess Salary Reduction
Contributions (and any income allocable to such portion) shall
be made by reducing the 'Actual Deferral Percentage' in
accordance with the 'leveling' method described in Regulation
1.401(k)-1(f)(2) and allocating the excess Salary Reduction
Contributions (and any income allocable to such portion) for
the family group among its members in proportion to the Salary
Reduction Contributions of each member of the family group
that is combined to determine the 'Actual Deferral
Percentage'."
11. The second sentence of Section 5.02(a) of the Plan is deleted in
its entirety and replaced with the following:
"These records shall consist of an Employer Contribution
Account to which Employer Contributions, net income (or loss)
attributable to Employer Contributions and forfeitures
allocated to that Participant are credited, and an Employee
Contribution Account which shall consist of a separate
Voluntary Contributions Sub-account to which Voluntary
Contributions and net income (or loss) attributable thereto
are credited and a separate Salary Reduction Contributions
Sub- account to which Salary Reduction Contributions and net
income (or loss) attributable thereto are credited."
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12. Section 5.02(b)(ii) of the Plan is deleted in its entirety and
replaced with the following:
"(ii) INCOME AND LOSS OF THE TRUST FUND. The net
income (or loss) of all assets in the Trust Fund, other than
real estate, will be determined as of each Valuation Date.
Such net income (or loss) shall be allocated to the
appropriate Accounts in proportion to the weighted average
balance of said Accounts as of that Valuation Date to the
weighted average balance of all such Accounts as of the same
date. The net income of all real estate in the Trust Fund will
be determined as of the Allocation Date. Such net income (or
loss) shall be allocated to the appropriate Accounts in
proportion to the weighted average balance of said Accounts as
of that Allocation Date to the weighted average balance of all
such Accounts."
13. Sections 5.02(b)(iii) and (iv) of the Plan are amended by
substituting the word "Allocation" for the word "Valuation" in each instance
where the word "Valuation" appears.
14. Section 5.02(b)(iii)(b) of the Plan is amended by deleting the last
full sentence thereof.
15. Section 5.02(c) of the Plan is deleted in its entirety and replaced
with the following:
"(c) Except for those Participants who terminated
employment with an Employer after July 1 of that Plan Year
because of death or Retirement and who have made an election
to defer distribution of their Participant Account until the
next Plan Year, if a Participant is not employed by Central on
the Allocation Date, he will not share in Employer
Contributions or in Forfeitures."
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16. Section 5.02(d) of the Plan is deleted in its entirety and replaced
with the following:
"(d) Notwithstanding the provisions of Subsection
5.02(c) above, if a Participant is not employed by Central,
but is employed by a Controlled Group Member, on the
Allocation Date, he will be entitled to share in the
allocation of the Matching Portion as provided in Subparagraph
5.02(b)(iii)(a), but will not share in Employer Contributions
provided for under Subparagraph 5.02(b)(iii)(b) or in
Forfeitures."
17. Section 5.04(a) of the Plan is amended by substituting the word
"Allocation" for the word "Valuation" in the first sentence thereof. Section
5.04(a) is further amended by deleting subsections (i) and (ii) in their
entirety and replacing them with the following:
"(i) The Participant's Voluntary Contributions, plus
earnings attributable thereto, are distributed to the
Participant until one of the tests set forth in this Section
5.40 is satisfied.
(ii) The Participant's Salary Reduction
Contributions, plus earnings attributable thereto, are
distributed to the Participant until one of the tests set
forth in this Section 5.04 is satisfied; and
(iii) Any remaining excess amounts shall be held
unallocated in a suspense account for the Plan Year and shall
be allocated in the next Plan Year (and succeeding Plan Years,
as necessary) among the Participants in the Plan, subject to
the limitations of Code Section 415.
(iv) In the event of termination of this Plan, any
amount held in a suspense account described in Paragraph (iii)
above shall revert to the Employer to the extent it may not
then be allocated to any Participant's Accounts."
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18. Section 5.04(c)(1) of the Plan is deleted in its entirety and
replaced with the following:
"(1) 'Annual Addition' shall include, for any Plan Year, the
sum of:
(A) all contributions made by a Controlled Group
Member that are allocated to the Participant's account
pursuant to a defined contribution plan maintained by a
Controlled Group Member;
(B) all employee contributions made by the
Participant to a defined contribution plan maintained by a
Controlled Group Member;
(C) all forfeitures allocated to the Participant's
account pursuant to a defined contribution plan maintained by
a Controlled Group Member;
(D) any amount allocated to an individual medical
benefit account (as defined in Code Section 415(l)(2)) of the
Participant that is part of a pension or annuity plan
maintained by a Controlled Group Member; and
(E) any amount attributable to medical benefits
allocated to the Participant's account established under Code
Section 419A(d)(1) if the Participant is or was a key-employee
(as such term is defined in Code Section 416(i)) during such
Plan Year or any preceding Plan Year."
19. Section 5.05(b)(1) of the Plan is amended by inserting the word
"Voluntary" immediately preceding the first appearance of the word
"Contributions" and by inserting the phrase "provided for in Subsection 4.02(b)"
immediately following the first appearance of the word "Contributions".
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20. Section 5.05(b) of the Plan is amended by deleting the definition
of a "Highly Compensated Participant" in its entirety and replacing it with the
following:
"'Highly Compensated Participant' shall have
the same meaning as in Subsection 4.02(b)(2)(b)(2)."
21. The second sentence of Section 5.05(c) of the Plan is deleted and
replaced with the following:
"In addition, the 'Contribution Percentage' for a Highly
Compensated Participant who is either a five-percent owner (as
defined in Code Section 416(i)(1)) or one of the ten (10) most
Highly Compensated Participants shall be determined by
including the Compensation of Family Members, and such
affected Family Members shall be disregarded in determining
the 'Contribution Percentage' of Non-Highly Compensated
Participants."
22. A new Section 5.06(c) is added to the Plan immediately following
Section 5.06(b) to read as follows:
"(c) In the case of a Highly Compensated Participant
whose Contribution Percentage is determined by including
Family Members, the determination and correction of the amount
of Excess Aggregate Contributions shall be made by reducing
the Contribution Percentage in accordance with the 'leveling'
method described in Regulation 1.401(m)-1(e)(2) and allocating
the Excess Aggregate Contributions for the family group among
its members in proportion to the contributions of each member
of the family group that is combined to determine the
Contribution Percentage."
23. Section 5.07 of the Plan is deleted in its entirety and replaced
with the following:
"5.07 VALUATION OF TRUST FUND. A valuation of all
assets of the Trust Fund, other than real estate, shall be
made as of each Valuation Date. A valuation of any real estate
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held in the Trust Fund shall be made as of December 31 of each
Plan Year and at such other dates as may be specified by the
Plan Administrator."
24. A new Section 5.09 of the Plan is added as follows:
" 5.09 MULTIPLE USE OF THE ALTERNATIVE LIMITATION.
(a) Notwithstanding the foregoing provisions of this
Article, if, after the application of Sections 4.02(a)(2),
4.02(a)(4) and 5.05, the sum of the 'Actual Deferral
Percentage' and the 'Contribution Percentage' for the group of
Highly Compensated Participants (as defined in Section
4.02(b)(2)) exceeds the aggregate limit (as defined in
Subsection (b) of this Section), then the contributions made
for such Plan Year for Highly Compensated Participants will be
reduced so that the aggregate limit is not exceeded. Such
reductions shall be made first in Voluntary Contributions then
in Salary Reduction Contributions (but only to the extent that
they are not matched by Employer Contributions) and then in
the Matching Portion of Employer Contributions. Reductions in
contributions shall be made in the manner provided in Section
4.02(a)(5) or 5.06, as applicable. The amount by which each
such Highly Compensated Participant's Salary Reduction
Contributions or the Matching Portion of Employer
Contributions are reduced shall be treated as an excess Salary
Reduction Contribution or an Excess Aggregate Contribution
under Section 4.02(a)(5) or 5.06, as applicable. For the
purposes of this Section, the 'Actual Deferral Percentage' and
the 'Contribution Percentage' of the Highly Compensated
Participants are determined after any reductions required to
meet those tests under Sections 4.02(a)(5) and 5.06.
Notwithstanding the foregoing provisions of this Section, no
reduction shall be required by this Subsection if either (i)
the 'Actual Deferral Percentage' of the Highly Compensated
Participants does not exceed 1.25 multiplied by the 'Actual
Deferral Percentage' of the Non-Highly Compensated
Participants, or (ii) the 'Contribution Percentage' of the
Highly Compensated Participants does not exceed 1.25
multiplied by the 'Contribution Percentage' of the Non-Highly
Compensated Participants.
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(b) For purposes of this Section, the term' aggregate
limit' means the sum of (i) one hundred twenty-five percent
(125%) of the greater of (A) the 'Actual Deferral Percentage'
of the Non-Highly Compensated Participants for the Plan Year,
or (B) the 'Contribution Percentage' of the Non-Highly
Compensated Participants, and (ii) the lesser of (A) two
hundred percent (200%) of, or (B) two (2) plus the lesser of
such 'Actual Deferral Percentage' or 'Contribution
Percentage'. If it would result in a larger aggregate limit,
the word 'lesser' is substituted for the word 'greater' in
part (i) of this Subsection, and the word 'greater' is
substituted for the word 'lesser' in part (ii)(B) of this
Subsection."
25. The second sentence of Section 6.01 of the Plan is deleted in its
entirety and replaced with following:
"The interest of each Participant shall be adjusted from time
to time to give effect to debits, credits, increments, losses,
and other adjustments as herein provided, so as to reflect the
Participants' and each such Participant's current interest in
the Trust Fund."
26. Section 6.02 of the Plan is amended by deleting the phrase ",as at
the most recent Valuation Date,".
27. Section 7.04(a)(i) of the Plan is amended by adding the following
paragraph to the end thereof:
"In the event that the amount allocable to a
Participant's Capital Accumulation includes a portion of the
real estate owned by the Plan, that portion of a Participant's
Capital Accumulation, other than the portion invested in the
real estate owned by the Plan, will be distributed
immediately, and the remaining balance will be distributed
within sixty (60) days after such time as the real estate
owned by the Plan has been sold."
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28. Section 7.04(a)(ii) of the Plan is amended by deleting the proviso
following Subparagraph (C) thereof.
29. The second sentence of Section 7.04(c) of the Plan is amended by
adding the phrase "(and never exceeded $3,500 at the time of any previous
withdrawal or distribution)" after the parenthetical "($3,500)".
30. The last sentence of Section 7.04(d) of the Plan is deleted and
replaced with the following:
"If a Participant dies before his entire Capital Accumulation
has been distributed but after the distribution has commenced,
then the remaining portion of such Capital Accumulation will
be distributed at least as rapidly as under the method of
distribution being used as of the date of the Participant's
death."
31. Section 7.04(e) of the Plan is deleted in its entirety and replaced
with the following:
"(e) Distributions under the Plan shall be made in a
manner that satisfies Code Section 401(a)(9) and Treasury
Regulations issued thereunder, including Treasury Regulation
ss. 1.401(a)(9)-2, which provisions are hereby incorporated
into the Plan by reference, provided that such provisions
shall override the other distribution provisions of the Plan
only to the extent that such other Plan provisions provide for
distribution that is less rapid than required under such
provisions of the Code and Regulations. Nothing contained in
this Section shall be construed as providing any optional form
of payment that is not available under the other distribution
provisions of the Plan."
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32. Section 7.07(a)(3) of the Plan is amended by inserting the phrase
"and room and board expenses" immediately after the phrase "educational fees".
33. A new Section 7.10 is added to the Plan immediately following
Section 7.09 to read as follows:
"7.10 Direct Rollovers.
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(a) Notwithstanding any other provision of this
Article, if a Participant, spouse or alternate payee (as
defined in Code Section 414(p)) is eligible to receive a
distribution or withdrawal from the Plan that constitutes an
'eligible rollover distribution' (as defined in Subsection (c)
of this Section) and such individual elects to have all or a
portion (but not less than $500) of such distribution or
withdrawal paid directly to an 'eligible retirement plan' (as
defined in Subsection (d) of this Section) and specifies the
eligible retirement plan to which the distribution or
withdrawal is to be paid, such distribution or withdrawal (or
portion thereof) shall be made in the form of a direct
rollover to the eligible retirement plan so specified. A
direct rollover is a payment made by the Plan directly to the
eligible retirement plan. The Plan Administrator shall
prescribe reasonable procedures for elections to be made
pursuant to this Section.
(b) The Plan Administrator shall provide a
Participant, spouse or alternate payee who will receive an
eligible rollover distribution with a written notice
describing his rights under this Section and such other
information required to be provided under Code Section 402(f),
no less than thirty (30) days nor more than ninety (90) days
before the date scheduled for payment of such distribution;
provided, however, that a Participant, spouse or alternate
payee may elect to waive such 30-day requirement if (i) he is
clearly informed by the Plan Administrator of his rights, if
applicable, to a period of at least 30 days after receiving
the written notice to consider whether or not to elect a
distribution or withdrawal and/or to elect a particular form
of benefit and (ii), after receiving the written
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notice, he affirmatively elects the distribution or
withdrawal. Nothing contained in this Subsection shall be
construed to accelerate the timing of a distribution or
withdrawal otherwise provided in the Plan.
(c) For purposes of this Section, the term 'eligible
rollover distribution' means any distribution or withdrawal of
all or any portion of the Participant's Account, except (a)
any distribution required under Code Section 401(a)(9), (b)
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) the portion of a distribution not includible in
gross income (determined without regard to the exclusion for
net unrealized appreciation described in Code Section
402(e)(4)), and (d) such other amounts specified in Treasury
regulations or Internal Revenue Service rulings, notices or
announcements issued under Code Section 402(c).
(d) For purposes of this Section, the term 'eligible
retirement plan' means an individual retirement account or
annuity described in Code Section 408, a defined contribution
plan that meets the requirements of Code Section 401(a) and
that accepts rollovers, or an annuity plan described in Code
Section 403(a); provided, however, that with respect to a
spouse (but not a spouse who is an alternate payee) who
receives a distribution after a Participant's death, an
'eligible retirement plan' shall mean only an individual
retirement account or annuity described in Code Section 408.
(e) This Section is intended to comply with the
provisions of Code Section 401(a)(31) and shall be interpreted
in accordance with such Code Section and Treasury regulations
issued thereunder."
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34. The second sentence of Section 9.02(a) is deleted in its entirety
and replaced with the following:
"Subject to Subsection 9.02(b) hereof, if a deceased
Participant failed to name a Beneficiary in the manner above
prescribed, or subject to Section 9.03, if the Beneficiary or
Beneficiaries named by a deceased Participant predeceases the
Participant, the amount payable with respect to such
Participant pursuant to Section 7.01 hereof, if any, shall be
paid to (i) the Participant's spouse, or if none, (ii) the
estate of such deceased Participant."
35. The third sentence of Section 9.02(a) is amended by deleting the
phrase "and discretion".
36. The proviso in the first sentence of Section 9.03 is deleted in its
entirety and replaced with the following:
"provided, however, that if no person so designated be living
upon the occurrence of such contingency, then such balance
shall be payable to the estate of the Participant."
37. The second sentence of Section 9.03 is amended by deleting the
phrase "and discretion".
38. The first sentence of Section 10.01 of the Plan is amended by
deleting the phrase "known as the Central Freight Lines Employees Profit Sharing
and Retirement Trust".
39. Section 13.03(b) of the Plan is amended by adding the parenthetical
"(plus elective deferrals under Code Section 402(g)(3))" after the word
"Contributions".
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IN WITNESS WHEREOF, the Company has caused this Amendment No.
1 to be executed by its duly appointed officer, effective as of January 1, 1994.
In the presence of: CENTRAL FREIGHT LINES, INC.
/s/ Laura Rameos By: /s/ Ronald S. Pelzel
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Title:
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Dated: April 1, 1996
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