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EXHIBIT 10.2
CALIBER SYSTEM, INC.
DEFERRED COMPENSATION PLAN
EFFECTIVE OCTOBER 1, 1997
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TABLE OF CONTENTS
PURPOSE 2
DEFINITION 2
PARTICIPATION 4
Enrollment 5
Balances from Prior Plans 5
Employer Matching Credits 5
Determination of Earnings 5
Statement of Accounts 6
Conversion of Caliber Common Stock 6
DISTRIBUTIONS 6
Employer Matching Account 6
Prior Plan Account 7
Deferral Account 7
Disability Benefit 7
Hardship Withdrawal 7
Special Election for Early Distribution 7
Death Benefit 7
FUNDING OF BENEFITS 7
ADMINISTRATION OF THE PLAN 7
The Committee 7
Expenses of the Committee 8
Bonding and Compensation 8
Information Submitted to the Committee 8
Notices, Statements and Reports 8
Insurance 8
Indemnity 9
CLAIMS PROCEDURE 9
Filing Claim for Benefits 9
Appeals Procedure 10
AMENDMENT, TERMINATION OR SUSPENSION 10
MISCELLANEOUS 11
Participant Rights 11
Alienation 11
Partial Invalidity 11
Choice of Law 11
Share Available Under Plan 11
Adjustments 11
Payment to Minors 12
Inability to Locate 12
Successors 12
Gender, Tense and Headings 12
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CALIBER SYSTEM, INC, DEFERRED COMPENSATION PLAN
This Deferred Compensation Plan (hereinafter referred to as the "Plan") has been
adopted by the Board of Directors of Caliber System Inc. (hereinafter referred
to as the "Company"), effective as of October 1, 1997 (the "Effective Date").
I. PURPOSE
The purpose of the Plan is to provide supplemental retirement income
and death benefits for a select group of key management employees of
the Employer.
II. DEFINITIONS
The following definitions, set forth in alphabetical order, are used
throughout the Plan. Whenever words or phrases have initial capital
letters in the Plan, a special definition for those words or phrases is
set forth below.
A. "Account" means the record maintained by the Committee of each
Participant's interest in the Plan. The Account may consist of
the "Deferral Account", the "Employer Matching Account", the
"Prior Plan Account", and such other accounts as the Committee
shall designate.
B. "Beneficiary" means the person, persons or entity designated
in writing by the Participant on forms provided by the
Committee to receive distribution of his Account balance in
the event of the Participant's death. A Participant may change
the designated Beneficiary from time to time by filing a new
written designation with the Committee, and such designation
shall be effective upon receipt by the Committee. If a
nonspouse beneficiary is named to receive more than 50% of the
Account, the spouse of the Participant must sign a form
indicating approval. If a Participant has not designated a
Beneficiary, or if a designated Beneficiary is not living or
in existence at the time of a Participant's death, any death
benefits payable under the Plan shall be paid to the
Participant's spouse, if then living, and if the Participant's
spouse is not then living, to the Participant's estate.
C. "Board of Directors" means the Board of Directors of the
Company.
D. "Caliber Common Stock" means common stock of the Company.
E. "Caliber Stock Fund" means the Fund deemed to be invested in
Caliber Common Stock. If, as a result of a merger,
acquisition, sale or other disposition of substantially all
the assets of the Company, Caliber Common Stock is no longer
traded on a national securities exchange, the Caliber Stock
Fund shall be deemed to be invested in shares of common stock
of the entity resulting from such transaction.
F. "Code" means the Internal Revenue Code of 1986, as amended,
and the rules and regulations thereunder.
G. "Committee" means the Compensation Committee of the Board of
Directors of the Company, which will be responsible for
oversight of this Plan. The Committee is authorized to
delegate any or all of its authority from time to time in
writing.
H. "Company" means Caliber System, Inc., or any successor
thereto.
I. "Compensation" means cash or other property payable with
respect to a Plan Year to a Participant under any agreement,
plan, program or arrangement of an Employer, including base
salary, annual incentive compensation and extraordinary
bonuses, including bonuses or other amounts paid in lieu of
amounts under a Participant's Management Retention Agreement
(or other similar agreement).
J. "Deferral Account" means the record maintained by the
Committee credited with each Participant's deferred
Compensation and showing payments and withdrawals therefrom
and the amount of income, expenses, gains and losses
attributable thereto.
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K. "Deferral Agreement" means an agreement by a Participant to
have a specified percentage or dollar amount of his
Compensation deferred under the Plan for a specified period in
the future.
L. "Determination Date" means the last day of each calendar month
or such other date as designated by the Company in accordance
with Section III(D)(6).
M. "Disabled" means disabled as defined under the Employer's long
term disability plan applicable to the Participant.
N. "Employer" means Caliber System, Inc. RPS, Inc., Caliber
Technology, Inc., Viking Freight, Inc., Caliber Logistics,
Inc. and affiliates, and Roberts Express, Inc.
0. "Employer Matching Account" means the record maintained by the
Committee of each Participant's Employer Matching Credit,
showing payments and Withdrawals therefrom and the amount of
income, expenses, gains and losses attributable thereto.
P. "Employer Matching Credit" means the matching credits
described in Section III(C).
Q. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
R. "Funds" means the hypothetical investment options made
available to the Participant which shall be used as deemed
earnings indices for credits to a Participant's Account. The
Committee will determine the Funds which will be available
from time to time.
S. "Participant" means a key management employee of an Employer
who has been specifically designated by the Board of Directors
as eligible to make deferrals of Compensation to the Plan or
any former employee of an Employer on whose behalf amounts
attributable to Prior Plans have been transferred to the Plan.
T. "Plan Interest Rate" means for any month the rate of return
equal to that which would have been generated had a
Participant's Account actually been invested in the Fund or
Funds (other than the Caliber Stock Fund) designated by the
Participant for such month net of investment-related charges.
No provision of this Plan shall be construed as giving any
Participant an interest in any of these Funds nor shall any
provision require that the Company make any investment in any
such Funds.
U. "Plan Year" means the calendar year. The initial Plan Year,
however, will be October 1, 1997 through December 31, 1997.
V. "Prior Plan Account" means the record maintained by the
Committee credited with each Participant's balance rolled into
the Plan from one or more Prior Plans and showing payments and
withdrawals therefrom and the amount of income, expenses,
gains and losses attributable thereto.
W. "Prior Plans" means the Caliber System, Inc. Long-Term Stock
Award Incentive Plan; the Roadway Services, Inc. Stock Credit
Plans; the Stock Credit Method Plan, the Spartan Express, Inc.
Stock Credit Plan, the Roberts Transportation, Inc. Stock
Credit Plan, the Roadway Logistics Systems, Inc. Stock Credit
Plan; the Viking Freight, Inc. Stock Credit Plan for 1990.
X. "Retirement" means a Participant's termination of employment
with an Employer following attainment of age 55 with five (5)
or more years of service with the Employers and any
predecessor of an Employer.
Y. "Retirement Date" means the first day of the month coinciding
with or next following Retirement.
Z. "Termination" means a Participant's termination of employment
with an Employer for reasons other than Retirement, disability
or death.
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AA. "Termination Date" means the date on which the Participant's
employment with an Employer is terminated for reasons other
than Retirement, disability or death.
III. PARTICIPATION
A. ENROLLMENT
A Participant may elect to defer Compensation by delivering an executed
Deferral Agreement to the Committee in accordance with the following
provisions:
1. Each Participant who is eligible must delivering an executed
Deferral Agreement to the Committee no later than September
30, 1997 in order to be able to elect to defer all or any
portion of base salary October 1, 1997 and/or all or any
portion of annual incentive compensation that may become
payable for 1997.
2. For subsequent Plan Years, in order to defer all or any
portion of his base salary, a Participant must deliver an
executed Deferral Agreement to the Committee prior to the
first day of the Plan Year from which such Compensation is to
be deferred.
3. For subsequent Plan Years, in order to defer all or any
portion of his annual incentive compensation, a Participant
must deliver an executed Deferral Agreement to the Committee
prior to the first day of July of any Plan Year.
4. In order to defer all or any portion of his Compensation other
than base salary or incentive compensation a Participant must
deliver an executed Deferral Agreement to the Committee in
accordance with procedures established by the Committee for
such deferrals.
5. A Participant who first becomes eligible to make deferrals of
Compensation to the Plan during a Plan Year may, within 3O
days after he becomes a Participant, elect to participate in
the Plan for such Plan Year by delivering an executed Deferral
Agreement to the Committee and his Deferral Agreement will be
effective only with regard to Compensation earned or that
becomes determinable and payable during the Plan Year
following the delivery of the Deferral Agreement with the
Committee.
6. Participants shall make the following elections on each
Deferral Agreement:
a. The amount to be deferred with respect to each
component of his Compensation.
Participants may elect to defer all or any portion of
his Compensation in one percent (1%) increments.
Deferral elections are irrevocable.
b. The distribution date with respect to deferrals
covered by the Deferral Agreement, pursuant to
Section IV(C).
The distribution date specified by the Participant
must not be less than three years from the end of the
Plan Year for which the deferral is made and no later
than Retirement. Thereafter, a Participant may make a
one-time election to change the distribution date to
a later date, change the form of payment from a lump
sum to installments and/or increase the number of
installments, provided that such election shall not
be effective unless the Committee receives the
election at least one year and one day before the
distribution date initially elected.
C. The form of distribution to be made to the
Participant at the end of the deferral period,
pursuant to Section IV(C).
Payment of the Participant's Deferral Account may be
made in a single lump sum or in annual installments
of up to ten years, adjusted each year to reflect the
earnings credited or debited to such Account. The
annual payment will be a fraction of a Participant's
Account balance based on the number of payment years
elected. (Example: over a ten year period, 1/10 of
the balance would be paid in the first year, 1/9 in
the second year, etc.)
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B. BALANCES FROM PRIOR PLANS
Balances as of December 31, 1997 from Prior Plans will be transferred
into this Plan effective January 1, 1998 and credited to a
Participant's Prior Plan Account. Prior Plan Accounts will at all times
be subject to the vesting and distribution provisions of the applicable
Prior Plan. The Prior Plan Account shall be deemed to be invested in
the Caliber Stock Fund. Participants may not reallocate investment of
their Prior Plan Account into other Funds. All or a portion of the
Prior Plan Account may be withdrawn pursuant to Section IV(E) (Hardship
Withdrawal), but may not be withdrawn pursuant to Sections IV(G)(Early
Distributions).
C. EMPLOYER MATCHING CREDITS
Beginning January 1, 1998, Employer Matching Credits will be credited
(as described below) as follows:
The first Component is equal to the "matching percentage" (50%, as of
the Effective Date) set forth in the Caliber System, Inc. 401(k)
Savings Plan (the "Savings Plan"), multiplied by each dollar
contributed to the Plan up to 7% (6% for officers of Viking Freight,
Inc.) of the Participant's base salary and incentive compensation
payable during such Plan Year without regard to deferrals into other
plans maintained by the Company, reduced by the amount of matching
contributions credited to the Participant's account in the Savings Plan
for the same period.
The second component is equal to the Participant's base salary and
annual incentive bonus that is in excess of the Code Section 401
(a)(17) limit multiplied by the current year allocation percentage in
the Caliber System, Inc. Stock Bonus Plan.
The Employer Matching Credit will be credited to the Employer Matching
Account of each Participant who is employed by any affiliate of the
Company on the last day of the Plan Year to which such Credit applies,
or who terminated employment during such Plan Year as a result of
death, Retirement, becoming Disabled or in connection with a "Change in
Control" (as defined in Section VIII(A)) annually on December 31 as
units of Caliber Common Stock. The number of units shall be determined
by dividing the Employer Matching Credit by the average of the fair
market value of Caliber Common Stock on the last business day of each
month in the Plan Year.
The Employer Matching Account shall be deemed to be invested in the
Caliber Stock Fund. Participants may not reallocate this Account into
other Funds, and amounts may not be withdrawn pursuant to Sections
IV(F) (Early Distributions).
D. DETERMINATION OF EARNINGS
All amounts deferred pursuant to a Deferral Agreement during a calendar
month will be credited to a Participant's Account on the fifteenth day
of the month in which the deferral is made. Distributions are deducted
as of the first day of the month in which the distribution occurs.
I. A Participant must make an investment election at the time of
his initial Deferral Election. The investment election shall
designate the portion of the amounts deferred which are to be
treated as invested in each available Investment Fund. A
Participant's investment election shall remain in effect with
respect to each subsequent deferral until the Participant
files a change in investment election with the Committee. A
Participant may change his investment election either with
respect to amounts deferred following the change in investment
election or with respect to the deemed investment allocation
of the Participant's existing Account, as the Participant may
elect. A change in election must be filed with the Committee
on a form prescribed by the Committee. A change in investment
election will become effective on the first business day of
the calendar month next following the Committee's receipt of
the change in investment election; provided that the Committee
receives the change in investment election no later than the
15th day of such month. All investment elections by a
Participant shall be subject to approval by the Committee.
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2. If the Committee receives an initial investment
preference which it determines to be incomplete,
unclear or improper, the Participant shall be deemed
to have filed no investment preference and his
Account will be deemed to be invested in a
conservative fund selected by the Committee. If the
Committee receives a revised investment preference
which it determines to be incomplete, unclear or
improper, the Participant's investment preference
then in effect, shall remain in effect until a proper
investment preference is received by the Committee.
3. All investment elections shall be advisory only and
shall not bind the Company. The Company shall not be
obligated to invest any funds or purchase any shares
in connection with this Plan. If however, the Company
chooses to invest funds to provide for its
liabilities under this Plan, the Company shall have
complete discretion.
4. As of each Determination Date, the Participant's
Deferral Account will be credited with the Plan
Interest Rate realized since the immediately
preceding Determination Date. Amounts credited to
each Participant's Deferral Account shall be
determined based upon the balance of the
Participant's Deferral Account as of the immediately
preceding Determination Date with appropriate
adjustments for credits of deferrals and
distributions as specified in Section III(D) since
the immediately preceding Determination Date.
Dividends on Caliber Common Stock shall be converted
to deemed shares of Caliber Common Stock based on
the closing price of Caliber Common Stock on the
dividend payment date.
5. Dividends on Caliber Common Stock in the
Participant's Employer Matching Account and Prior
Plan Account shall be converted to deemed shares of
Caliber Common Stock based on the closing price of
Caliber Common Stock on the dividend payment date.
6. If it is determined that the constructive value of an
Account as of any date on which distributions are to
be made differs materially from the constructive
value of the Account on the prior Determination Date
upon which the distribution is to be based, the
Committee, in its discretion, shall have the right to
designate any date in the interim as a Determination
Date for the purpose of constructively revaluing the
Account so that the Account from which the
distribution is being made will, prior to the
distribution, reflect its share of such material
difference in value. Similarly, the Committee may
adopt a policy of providing for regular interim
valuations without regard to the materiality of
changes in the value of the Accounts.
E. STATEMENT OF ACCOUNTS
Within a reasonable time after the end of each calendar
quarter of the Plan Year, the Committee shall submit to each
Participant a statement showing the status of his Account.
F. CONVERSION OF CALIBER COMMON STOCK
If as a result of a merger, acquisition, sale or other
disposition of substantially all the assets of the Common
Stock is no longer traded on a national securities exchange,
the deemed shares of Caliber Common Stock in the Caliber Stock
Fund shall be converted (on such basis as the Committee shall
determine) and deemed to be invested in shares of common stock
of the entity resulting from such transaction.
IV. DISTRIBUTIONS
All distributions, other than from the Caliber Stock Fund, shall be in
cash. Distributions of the Caliber Stock Fund shall be paid in shares
of Caliber Common Stock; however, the Committee may, in its sole
discretion, pay all or a portion of the distribution payable from the
Caliber Stock Fund in cash. Distributions shall be subject to
applicable federal, state, and local withholding for taxes.
A. The Employer Matching Account will be paid commencing on
February 1 of the year following Retirement in five annual
installments. A Participant who terminates employment prior to
being eligible for Retirement shall receive a payout of his
Employer Matching Account in a single lump sum no later than
ninety (90) days following his Termination Date.
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B. PRIOR PLAN ACCOUNT
Balances transferred from Prior Plans will be paid in
accordance with the payment provisions of Prior Plans.
C. DEFERRAL ACCOUNT
Subject to the provisions of Section III(A)(6)(b), a
Participant's Deferral Account shall be distributed in
accordance with the election made on the Participant's
Deferral Agreement(s) no later than ninety (90) days following
the date(s) specified therein; provided, however, that if a
Participant's Termination Date is earlier, distribution will
be made in a single lump sum no later that ninety (90) days
following his Termination Date.
D. DISABILITY BENEFIT
If a Participant becomes Disabled as defined in Section II(M),
his Account will be paid in a lump sum or a series of up to
ten annual payments, as elected by the Participant at the time
disability is determined.
E. HARDSHIP WITHDRAWAL
At any time prior to the commencement of benefits hereunder, a
Participant may request in writing that the Committee make a
distribution to him from his Account balance due to the
unforeseeable financial emergency of the Participant. In the
event the Committee determines, in its sole discretion, that
the Participant is eligible for a distribution under this
Section, the distribution shall be made as soon as practicable
following the Committee's determination and may not exceed the
amount needed to satisfy the immediate and heavy financial
hardship of the Participant.
F. SPECIAL ELECTION FOR EARLY DISTRIBUTION
A Participant may at any time elect to withdraw all or any
part of his Account, excluding amounts from the Employer
Matching Account and the Prior Plan Account, less a 10%
withdrawal penalty (in addition to any applicable tax
withholding). A Participant who elects a withdrawal under this
Section shall be prohibited from deferring Compensation
pursuant to this Plan for three years following the date of
the withdrawal.
G. DEATH BENEFIT
Following the death of a Participant, the Beneficiary shall
receive a lump sum distribution of the Account within 60 days
following the death of the Participant.
V. FUNDING OF BENEFITS
The Plan shall be considered unfunded at all times. All benefits
payable under the Plan shall be paid from the Company's general assets,
and nothing contained in the Plan shall require the Company to set
aside or hold in trust any funds for the benefit of a Participant or
his Beneficiary. All Participants shall have the status of a general
unsecured creditor with respect to the Company's obligation to make
payments under the Plan. However, the Company retains the right to
establish a trust and fund a trust at its discretion. Any funds of the
Company available to pay benefits under the Plan shall be subject to
the claims of general creditors of the Company.
VI. ADMINISTRATION OF THE PLAN
A. THE COMMITTEE
The Committee shall be responsible for the administration of
the Plan and shall keep a written record of its actions and
proceedings regarding the Plan and all dates, records and
documents relating to its administration of the Plan.
The Committee is authorized to interpret the Plan, to make,
amend and rescind such rules as it deems necessary for the
proper administration of the Plan, to make all other
determinations
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necessary or advisable for the administration of the Plan and
to correct any defect or supply any omission or reconcile any
inconsistency in the Plan in the manner and to the extent that
the Committee deems desirable to carry the Plan into effect.
The powers and duties of the Committee shall include, without
limitation, the following:
1. Resolving all questions relating to the eligibility
of employees to become Participants;
2. Determining the amount of benefits payable to
Participants or their Beneficiaries and authorizing
and directing the Company with respect to the payment
of benefits under the Plan;
3. Construing and interpreting the Plan whenever
necessary to carry out its intention and purpose and
making and publishing such rules for the regulation
of the Plan as are not inconsistent with the terms of
the Plan;
4. Compiling and maintaining all records it determines
to be necessary, appropriate or convenient in
connection with the administration of the Plan; and
5. Engaging any administrative, actuarial, legal,
medical, accounting, clerical, or other service it
may deem appropriate to effectuate the Plan.
B. EXPENSES OF THE COMMITTEE
The expenses of the Committee properly and actually incurred
in the performance of its duties under the Plan shall be paid
by the Company.
C. BONDING AND COMPENSATION
The members of the Committee shall serve without bond, and
without compensation for their services as Committee members
except as the Company may provide in its discretion.
D. INFORMATION TO BE SUBMITTED TO THE COMMITTEE
To enable the Committee to perform its functions, the Company
shall supply full and timely information to the Committee on
all matters relating to Participants as the Committee may
require, and shall maintain such other records as the
Committee may determine are necessary in order to determine
the benefits due or which may become due to Participants or
their Beneficiaries under the Plan. The Committee may rely on
such records as conclusive with respect to the matters set
forth therein.
E. NOTICES, STATEMENTS AND REPORTS
The Company shall be the "administrator" of the Plan as
defined in Title I Section 3(16)(A) of ERISA for purposes of
the reporting and disclosure requirements imposed by ERISA and
the Code. The Committee shall assist the Company, as
requested, in complying with such reporting and disclosure
requirements.
F. INSURANCE
The Company, in its discretion, may obtain, pay for and keep
current a policy or policies of insurance, insuring the
Committee members, the members of the Board of Directors and
other employees to whom any responsibility with respect to the
administration of the Plan has been delegated against any and
all costs, expenses and liabilities (including attorneys'
fees) incurred by such persons as a result of any act, or
omission to act, in connection with the performance of their
duties, responsibilities and obligations under the Plan and
any applicable law.
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G. INDEMNITY
If the Company does not obtain, pay for and keep current the
type of insurance policy or policies referred to in Section
VI(F), or if such insurance is provided but any of the parties
referred to in Section VI(F) incur any costs or expenses which
are not covered under such policies, then the Company shall
indemnify and hold harmless, to the extent permitted by law
such parties against any and all costs, expenses and
liabilities (including attorneys' fees) incurred by such
parties in performing their duties and responsibilities under
this Plan, provided that such party or parties were not guilty
of willful misconduct. In the event that such party is named
as a defendant in a lawsuit or proceeding involving the plan
(other than in a lawsuit brought against such party by the
Company) the party shall be entitled to receive on a current
basis the indemnity payments provided for in this subsection,
provided however, that if the final judgment entered in the
lawsuit or proceeding holds that the party is guilty of
willful misconduct with respect to the Plan, the party shall
be required to refund the indemnity payments that it has
received.
VII. CLAIMS PROCEDURE
A. FILING CLAIM FOR BENEFITS
If a Participant or Beneficiary (hereinafter referred to as
the "Applicant") does not receive the timely payment of the
benefits which the Applicant believes are due under the Plan,
the Applicant may make a claim for benefits in the manner
hereinafter provided.
All claims for benefits under the Plan shall be made in
writing and shall be signed by the Applicant. Claims shall be
submitted to a representative designated by the Committee and
hereinafter referred to as the "Claims Coordinator." The
Claims Coordinator may, but need not, be a member of the
Committee. If the Applicant does not furnish sufficient
information with the claim for the Claims Coordinator to
determine the validity of the claim, the Claims Coordinator
shall indicate to the applicant any additional information
which is necessary for the Claims Coordinator to determine the
validity of the claim.
Each claim hereunder shall be acted on and approved or
disapproved and notice given of its decision by the Claims
Coordinator within 90 days following the receipt by the Claims
Coordinator of the information necessary to process the claim.
In the event the Claims Coordinator denies a claim for
benefits in whole or in part, the Claims Coordinator shall
notify the Applicant in writing of the denial of the claim and
notify the Applicant of his right to a review of the Claims
Coordinator's decision by the Committee. Such notice by the
Claims Coordinator shall also set forth, in a manner
calculated to be understood by the Applicant, the specific
reason for such denial, the specific provisions of the Plan or
Agreement on which the denial is based, a description of any
additional material or information necessary to perfect the
claim, with an explanation of why such material or information
is necessary, and an explanation of the Plan's appeals
procedure as set forth in this Section.
If no action is taken by the Claims Coordinator on an
Applicant's claim within 90 days after receipt by the Claims
Coordinator, such claim shall be deemed to be denied for
purposes of the following appeals procedure.
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B. APPEALS PROCEDURE
An Applicant whose claim for benefits is denied in whole or in
part may appeal from such denial to the Committee for a review of
the decision by the Committee. Such appeal must be made within
three months after the Applicant has received actual or
constructive notice of the denial as provided above. An appeal
must be submitted in writing within such period and must:
1. Request a review by the Committee of the claim for benefits
under the Plan;
2. Set forth all of the grounds upon which the Applicants
request for review is based and any facts in support
thereof, and
3 Set forth any issues or comments which the Applicant deems
pertinent to the appeal.
The Committee shall regularly review appeals by Applicants.
The Committee shall act upon each appeal within 60 days
after receipt thereof unless special circumstances require
an extension of time for processing, in which case a
decision shall be rendered by the Committee as soon as
possible but not later than 120 days after the appeal is
received by the Committee.
The Committee shall make full and fair review of each appeal
and any written materials submitted by the Applicant in
connection therewith "The Committee may require the
Applicant to submit such additional facts, documents or
other evidence as the Committee in its discretion deems
necessary or advisable in making its review. The Applicant
shall be given the opportunity to review pertinent documents
or materials upon submission of a written request to the
Committee, provided the Committee finds the requested
documents or materials are pertinent to the appeal.
On the basis of its review, the Committee shall make an
independent determination of the Applicant's eligibility for
benefits under the Plan. The decision of the Committee on
any claim for benefits shall be final and conclusive upon
all parties thereto.
In the event the Committee denies an appeal in whole or in
part, the Committee shall give written notice of the
decision to the Applicant, which notice shall set forth, in
a manner calculated to be understood by the Applicant, the
specific reasons for such denial and which shall make
specific reference to the pertinent provisions of the Plan
or Agreement on which the Committees decision is based.
VIII. AMENDMENT, TERMINATION OR SUSPENSION
A. The Plan may be amended or terminated by the Company at any time.
Such amendment or termination may modify or eliminate any future
deferrals but cannot reduce or eliminate any other benefits under
the Plan. Notwithstanding the preceding provisions of this
Section, for one year following a Change in Control the Company
shall be prohibited from amending the Plan in any way that
adversely affects one or more Participants. For purposes of the
Plan, "Change in Control" means a "Change in Control " as defined
in the most recent Management Retention Agreement (or other
contract providing benefits in the event of a change in control of
the Company) between the Company and the Company's Chief Executive
Officer.
B. The Plan is intended to provide benefits for "a select group of
management or highly compensated employees" within the meaning of
Sections 201, 301, and 401 of ERISA, and therefore to be exempt
from the provisions of Parts 2, 3 and 4 of Title 1 of ERISA.
Accordingly, in the event it is determined by a court of competent
jurisdiction or by an opinion of counsel that the Plan constitutes
an employee pension benefit plan within the meaning of Section
3(2) of ERISA which is not so exempt, the Plan shall terminate as
of the date it became nonexempt.
C. The Board of Directors in its sole discretion may accelerate all
benefits upon termination of the Plan, and pay such benefits in a
single lump sum.
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IX. MISCELLANEOUS
A. PARTICIPANT RIGHTS
Nothing in the Plan shall confer upon a Participant the right to
continue in the employ of an Employer or shall limit or restrict
the right of an Employer to terminate the employment of a
participant at any time with or without cause.
B. ALIENATION
Except as otherwise provided in the Plan, no right or benefit
under the Plan shall be subject to anticipation, alienation, sale,
assignment, pledge, encumbrance or charge, and any attempt to
anticipate, alienate, sell, assign, pledge, encumber or charge
such right of benefit shall be void. No such right or benefit
shall in any manner be liable for or subject to the debts,
liability or torts of a Participant or Beneficiary.
C. PARTIAL INVALIDITY
If any provision in the Plan is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue to be in full force and
effect without being impaired or invalidated in any way.
D. CHOICE OF LAW
The Plan shall be construed in accordance with ERISA and, to the
extent not pre-empted by ERISA, the laws of the State of Ohio.
E. SHARES AVAILABLE UNDER THE PLAN
Shares delivered by the Company under the Plan shall be treasury
shares or shares that have been or may be acquired by the Company.
F. ADJUSTMENTS
The Board shall make or provide for such adjustments in the number
of units in a Participant's Account as the Board, in its sole
discretion, exercised in good faith, shall determine is equitably
required to prevent dilution or enlargement of the rights of the
Participant that would otherwise result from (a) any stock
dividend, stock split, combination of shares, recapitalization or
any other change in capital structure of the Company, (b) any
merger, consolidation, spin-off, split-off, spin-out, split-up,
reorganization, partial or complete liquidation or other
distribution of assets, issuance of rights or warrants to purchase
securities, or (c) any other corporate transaction or event having
an effect similar to any of the foregoing.
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G. PAYMENT TO MINORS OR PERSONS UNDER LEGAL DISABILITY
If any benefit becomes payable to a minor or to a person under a
legal disability, payment of such benefit shall be made only to
the conservator or guardian of the intended recipient appointed by
a court of competent jurisdiction or any other individual or
institution maintaining or having custody of such intended
recipient. A release by such conservator, guardian, individual or
institution shall constitute a legal discharge of the Plan's
obligation to the intended recipient.
H. INABILITY TO LOCATE
If the Participant or Beneficiary cannot be located by the
Company using the Participant's or Beneficiary's last known
address on file with the Company within one year of the
Participant's Termination Date or death, all benefits due under
the Plan will be forfeited. It is the sole responsibility of the
Participant and/or Beneficiary to maintain a current address
on file with the Company.
I. SUCCESSORS
In the event of any consolidation, merger, acquisition, or
reorganization of the Company, the obligations of the Company
under this Plan shall continue and be binding upon the Company and
successors.
J. GENDER, TENSE AND HEADINGS
Whenever any words are used herein in the masculine gender, they
shall be construed as through they were also used in the feminine
gender in all cases where they would so apply. Whenever any words
used herein are in the singular form, they shall be construed as
though they were also used in the plural form in all cases where
they would so apply. Headings and Sections and subsections as used
herein are inserted solely for convenience and reference and
constitute no part of the Plan.
Executed at _______________, this ________ day of ________________, 1997.
CALIBER SYSTEM INC.
By
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Its
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