Exhibit 4.11
AMENDMENT NUMBER TWO
TO THE
RITE AID 401(k) DISTRIBUTION EMPLOYEES SAVINGS PLAN
WHEREAS, Rite Aid Corporation ("Corporation") has the authority
under The Rite Aid 401(k) Distribution Employees Savings Plan ("Plan") to
amend the Plan, except in certain respects not material hereto; and
WHEREAS, the Plan was completely amended and restated effective
January 1, 2001 and has since been amended; and
WHEREAS, the Plan contains the trust provisions (the "Trust")
within a single document; and
WHEREAS, the Corporation, by action of the Trustee Search
Committee, is entering into separate Trust agreements under which two
financial institutions will serve as Trustees of the Plan; and
WHEREAS, the Corporation now desires to amend the Plan, effective
as of April 1, 2003, to remove the trust provisions and thereby bifurcate the
Plan provisions and the Trust provisions into separate documents to facilitate
the execution and maintenance of the Trust agreements with the institutional
trustees; and
WHEREAS, the Corporation desires to further amend the Plan,
effective April 1, 2003, to clarify the investment management provisions of
the Plan consistent with the bifurcated Plan and Trust documents; and
WHEREAS, the Corporation desires to further amend the Plan to
revise the administrative provisions of the Plan in accordance with the
resolutions of the Board of Directors of the Corporation.
NOW, THEREFORE, effective as of April 1, 2003, the Plan is hereby
amended as follows:
1. The initial recitals of the Plan as appear in Article I are
amended to read as follows:
"WHEREAS, the Rite Aid Corporation (the "Employer") established
The Rite Aid 401(k) Distribution Employees Savings Plan (the
"Plan") effective July 1, 1994, which has been amended from
time to time; and
WHEREAS, the Plan, as most recently amended and restated
effective January 1, 2001 and as subsequently amended, is an
agreement between the Employer and the Plan Trustee(s) as a
combined Plan and Trust Agreement; and
WHEREAS, the Employer and the sole remaining Plan Trustee
desire that the Plan and the Trust be bifurcated into two
separate documents and to make certain other changes with
respect to the management of Plan assets.
NOW, THEREFORE, the Employer and the Trustee, hereby agree to
the following amendment to the terms of the Plan, effective
April 1, 2003, as follows:"
2. Section 2.25 of the Plan is hereby amended in its entirety to
read as follows:
" 'Funding Agent' means any insurance company, a Trustee or
Trustees selected by the Employer or its designee to hold
assets of the Plan, receive contributions or pay benefits under
and in accordance with the terms of the Plan."
3. Section 2.29 of the Plan is hereby amended in its entirety to
read as follows:
" 'Named Fiduciary' means the Employer and, to the extent so
designated, the person or persons named by the Employer as
having fiduciary responsibility for the management and control
of Plan assets, shall be known as the "named fiduciary"
hereunder with respect to those assets
4. Section 2.40 of the Plan is hereby amended in its entirety
to read as follows:
" 'Trustee' means the party or parties so appointed by the
Employer or its designee and each of their respective
successors. The Employer, or its designee, may appoint separate
parties as the Trustee with respect to certain assets or
certain classes of assets of the Plan, including the
appointment of a Trustee with respect to any Rite Aid common
stock held by the Plan. If more than one Trustee is so
appointed, the term "Trustee" shall include all Trustees with
respect to the respective Plan assets over which they have been
appointed."
5. Section 2.41 of the Plan is hereby amended in its entirety to
read as follows:
" 'Trust Fund' means all of the assets of the Plan held by the
Trustee."
6. A new Section 2.43 of the Plan is hereby added to read as follows:
" 'Trust Agreement' means the trust instrument(s) executed by
the Employer, or its designee, and the Trustee or Trustees for
purposes of providing a vehicle to hold and invest the assets
of the Plan."
7. The first paragraph of Section 3.1 is hereby amended in its
entirety to read as follows:
"The Named Fiduciary will be the Employer and, to the extent so
designated, the person or persons named by the Employer as
having fiduciary responsibility for the management and control
of Plan assets will be the Named Fiduciary with respect to
those assets. Each fiduciary, including any Named Fiduciary,
shall have only those particular powers, duties,
responsibilities and obligations as are specifically delegated
to him or her under the Plan or the Trust Agreement. Any
fiduciary, if so appointed, may serve in more than one
fiduciary capacity and may also serve in a non-fiduciary
capacity."
8. The first paragraph of Section 3.3 of the Plan is hereby amended
to read as follows"
"The Employee Benefits Administration Committee ("EBAC") of the
Employer shall be the Administrator, in accordance with the
provisions of Section 3.9. In the event that the EBAC is
dissolved or in the event that the EBAC has no members, the
Employer shall serve as the Administrator until such time as
another Administrator is duly appointed."
9. Section 3.4 of the Plan is hereby amended in its entirety to
read as follows:
"The Employer will have the power to appoint and remove the
Funding Agent. The Funding Agent will have the authority and
discretion to manage, control and invest (to the extent not
directed by Participants) the assets of the Plan placed in its
control. The rights, powers and duties of the Funding Agent
shall be goverend by the provisions of any agreements or
Contracts between the Funding Agent and the Employer, or its
designee."
10. A new Section 3.9 of the Plan is hereby added to the Plan
to read as follows:
"3.9 DESIGNATION OF ADMINISTRATIVE AUTHORITY.
(a) The Employee Benefits Administration Committee
("EBAC") of the Employer shall be the
Administrator. The Employer may appoint the
members of the EBAC. Any person so appointed
shall signify his acceptance by filing a written
acceptance with the Employer. Upon the
resignation or removal of any individual serving
on the EBAC, the Employer may designate a
successor.
(b) Notwithstanding any provision of
the Plan to the contrary, the EBAC shall have
the authority and responsibility to undertake
the following:
(1) monitor compliance with the Plan's
investment policies and address failures to
comply with the policies
(2) manage and supervise the Trustee, including
performance reviews;
(3) act as the Administrator for the Plan;
(4) assume general fiduciary responsibility for
the administration and operation of the
Plan, except as is delegated to the Trustee
and/or an Investment Manager (within the
meaning of Section 3(38) of ERISA);
(5) arrange for an annual presentation to the
Board of Directors of the Employer
concerning compliance, investment
performance and funding status for the
Plan;
(6) execute and adopt Plan amendments as
follows:
(a) to effect changes required under
applicable law and nonmaterial
ministerial matters; and
(b) to implement the actions of the EBAC
taken in accordance with the
delegation of authority given to it by
the Employer.
Notwithstanding anything herein to the contrary, EBAC may
establish its own operating policies and procedures which shall
be deemed to be a part of the Plan."
11. Section 6.2 of the Plan is amended in its entirety to read
as follows:
"The Funding Agent will maintain, with respect to each
Participant, an individual Investment Subaccount for each
separate investment fund in which a Participant participates.
Participants will be permitted to direct the Contributions made
on their behalf among Investment Subaccounts established for
this purpose."
12. Section 9.15 of the Plan, entitled "EMPLOYER'S AND TRUSTEE'S
PROTECTIVE CLAUSE," is hereby deleted in its entirety and such Section number
shall be reserved.
13. Section 9.16 of the Plan, entitled "FUNDING AGENT'S PROTECITVE
CLAUSE" is hereby deleted in its entirety and such Section number shall be
reserved.
14. Section 11.1(a) of the Plan is hereby amended in its entirety
to read as follows:
"(a) The duties and powers of the Trustee shall be set forth in
a Trust Agreement executed by the Employer, or its designee,
the Trustee Search Committee, which is incorporated herein by
reference. The Employer, or its designee, (such designee to
specifically include EBAC), shall review at regular intervals
the performance of the Trustee and shall re-evaluate the
appointment of such Trustee. After the Employer, or its
designee, (such designee to specifically include the Trustee
Search Committee), has appointed the Trustee and has received a
written notice of acceptance of its responsibility, the
fiduciary responsibility with respect to the proper care and
custody of Plan assets shall be considered as the
responsibility of the Trustee. Unless otherwise allocated to an
investment manager, reserved by the Employer or delegated to
the EBAC, the fiduciary responsibility with respect to
investment of Plan assets shall likewise be considered as the
responsibility of the Trustee."
15. Section 11.2 of the Plan is amended in its entirety to read as
follows:
"11.2 APPOINTMENT AND POWERS OF THE INVESTMENT MANAGER
The Employer, or its designee, may appoint one or more
investment managers (within the meaning of Section 3(38) of
ERISA) ("Investment Manager") who is other than the Trustee,
which Investment Manager may be a bank or an investment advisor
registered with the Securities and Exchange Commission under
the Investment Advisors Act of 1940. Such Investment Manager,
if appointed, shall have sole discretion in the investment of
Plan assets allocated to such Investment Manager, subject to
the funding policy. The Investment Manager also shall have the
power to appoint other Investment Managers, if so provided
under the agreement between the Investment Manager and the
Employer, or its designee. The Employer, or its designee, shall
review at regular intervals no less frequently than annually,
the performance of such Investment Manager and shall
re-evaluate the appointment of such Investment Manager. After
the Investment Manager has accepted its appointment, the
fiduciary responsibility with respect to investment of Plan
assets shall be considered as the responsibility of the
Investment Manager."
16. Section 11.3 of the Plan, entitled "INVESTMENT POWERS AND
DUTIES OF THE TRUSTEE," is hereby deleted in its entirety and such Section
number shall be reserved.
17. Section 11.5 of the Plan is hereby amended in its entirety to
read as follows:
"Any compensation due to the Trustee under the terms of the
Trust Agreement will be paid from the Trust Fund, unless paid
directly by the Employer; any such expense paid by the Employer
may be reimbursed by the Plan, to the extent permitted by
ERISA."
18. Section 11.6 of the Plan, entitled "RESIGNATION AND REMOVAL OF
THE TRUSTEE," is hereby deleted in its entirety and such Section number shall
be reserved
19. The provisions of the Plan, as amended herein, shall not apply
in any manner whatsoever to the duties and powers of Richard C. Varmecky, who,
as of March 31, 2003, serves as the sole remaining trustee of the Plan.
20. In all other respects, the provisions of the Plan shall remain
in full force and effect.
IN WITNESS WHEREOF, this Amendment to the Plan has been executed
this 9th day of April, 2003.
RITE AID CORPORATION
By: /s/ Robert B. Sari
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