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THE ROADWAY CORPORATION
401(k) STOCK SAVINGS PLAN
(Amended and Restated Effective January 1, 2002)
{PAGE}
TABLE OF CONTENTS
{TABLE}
{S} {C}
THE ROADWAY CORPORATION 401(k) STOCK SAVINGS PLAN .................................... 1
ARTICLE I. PRELIMINARY MATTERS ........................................................ 2
1.1 Qualified Plan ...................................................... 2
1.2 Discretionary Powers ................................................ 2
1.3 Construction ........................................................ 2
ARTICLE II. DEFINITIONS ............................................................... 4
2.1 Generally ........................................................... 4
2.2 Account and Sub-Account ............................................. 4
2.3 After-Tax Contributions ............................................. 4
2.4 Before-Tax Contributions ............................................ 4
2.5 Beneficiary ......................................................... 4
2.6 Board of Directors .................................................. 4
2.7 Code ................................................................ 4
2.8 Committee ........................................................... 5
2.9 Company ............................................................. 5
2.10 Company Stock ....................................................... 5
2.11 Company Stock Fund .................................................. 5
2.12 Compensation ........................................................ 5
2.13 Contributions ....................................................... 6
2.14 Controlled Group .................................................... 6
2.15 Controlled Group Member ............................................. 7
2.16 Covered Employee .................................................... 7
2.17 Death Beneficiary ................................................... 7
2.18 Effective Date ...................................................... 8
2.19 Eligible Employee ................................................... 8
2.20 Eligible Retirement Plan ............................................ 9
2.21 Eligible Rollover Distribution ...................................... 9
2.22 Employee ............................................................ 10
2.23 Employer ............................................................ 11
2.24 Employer Contributions .............................................. 11
2.25 Employment Commencement Date ........................................ 11
2.26 Enrollment Date ..................................................... 11
2.27 ERISA ............................................................... 12
2.28 FedEx Corp. Stock ................................................... 12
2.29 FedEx Stock Fund .................................................... 12
2.30 Fiduciary ........................................................... 12
2.31 Full-Time Employee .................................................. 13
2.32 Hardship ............................................................ 13
2.33 Highly Compensated Employee ......................................... 13
2.34 Hours of Service .................................................... 14
2.35 Instrument of Adoption .............................................. 15
2.36 Investment Funds .................................................... 15
2.37 Matching Employer Contributions ..................................... 15
2.38 Named Fiduciary ..................................................... 16
{/TABLE}
{PAGE}
2
{TABLE}
{S} {C}
2.39 1-Year Break in Service ............................................. 16
2.40 Participant ......................................................... 17
2.41 Part-Time Employee .................................................. 18
2.42 Period of Service ................................................... 18
2.43 Period of Severance and Severance Date .............................. 19
2.44 Plan ................................................................ 20
2.45 Plan Administrator .................................................. 20
2.46 Plan Year ........................................................... 20
2.47 Predecessor Employer ................................................ 20
2.48 Prior Plans ......................................................... 21
2.49 Profit Sharing Contributions ........................................ 21
2.50 Qualified Nonelective Contributions ................................. 21
2.51 Reemployment Commencement Date ...................................... 21
2.52 Rollover Contributions .............................................. 21
2.53 Safe Harbor Matching Contribution ................................... 22
2.54 Salary Reduction Agreement .......................................... 22
2.55 Service ............................................................. 22
2.56 Spouse .............................................................. 22
2.57 Stock Bonus Portion ................................................. 22
2.58 Temporary or Casual Employee ........................................ 22
2.59 Termination of Employment ........................................... 23
2.60 Totally and Permanently Disabled .................................... 23
2.61 Trust ............................................................... 23
2.62 Trust Agreement ..................................................... 23
2.63 Trust Fund .......................................................... 23
2.64 Trustee ............................................................. 24
2.65 Valuation Date ...................................................... 24
2.66 Year of Service ..................................................... 24
ARTICLE III. ELIGIBILITY FOR PARTICIPATION ............................................ 26
3.1 Eligibility to Participate .......................................... 26
3.2 Duration of Participation ........................................... 27
3.3 Participation Due to Administrative Error ........................... 28
ARTICLE IV. PARTICIPANT CONTRIBUTIONS ................................................. 29
4.1 Amount of Before-Tax and After-Tax Contributions .................... 29
4.2 Maximum and Minimum Contributions ................................... 30
4.3 Payments to Trustee ................................................. 30
4.4 Changes in Contributions ............................................ 31
4.5 Suspension and Resumption of Contributions .......................... 31
4.6 Excess Deferrals .................................................... 32
4.7 Excess Before-Tax Contributions ..................................... 33
4.8 Excess Matching Employer and After-Tax Contributions ................ 35
4.9 Multiple Use of the Alternative Limitation .......................... 38
4.10 Monitoring Procedures ............................................... 39
4.11 Testing Procedures .................................................. 40
4.12 Rollover Contributions .............................................. 41
4.13 Transfers to this Plan from Other Plans ............................. 42
{/TABLE}
{PAGE}
3
{TABLE}
{S} {C}
4.14 Deemed Satisfaction of the Limitations on Before-Tax
Contributions and Matching Employer Contributions
of Highly Compensated Employees ..................................... 42
4.15 Notice Requirements for Safe Harbor Matching Contributions .......... 43
ARTICLE V. EMPLOYER CONTRIBUTIONS ..................................................... 45
5.1 Amount of Matching Employer Contributions ........................... 45
5.2 Allocation of Matching Employer Contributions ....................... 45
5.3 Safe Harbor Matching Contributions .................................. 46
5.4 Qualified Nonelective Contributions ................................. 47
5.5 Allocation of Qualified Nonelective Contributions ................... 47
5.6 Profit Sharing Contributions ........................................ 47
5.7 Allocation of Profit Sharing Contributions .......................... 48
5.8 Return of Contributions to Employers ................................ 48
5.9 Provisions Pursuant to Code Section 415(c) .......................... 49
5.10 Definitions ......................................................... 54
5.11 Funding Policy ...................................................... 54
5.12 No Duty to Enforce Payment .......................................... 55
ARTICLE VI. VESTING ................................................................... 56
6.1 Immediate Vesting ................................................... 56
ARTICLE VII. INVESTMENTS .............................................................. 57
7.1 Investment Funds .................................................... 57
7.2 Account; Sub-Account ................................................ 59
7.3 Reports ............................................................. 60
7.4 Valuation of Investment Funds ....................................... 61
7.5 Investment of Contributions ......................................... 62
7.6 Change of Investments ............................................... 65
7.7 Investment Direction and Change Procedures-Future Contributions ..... 66
7.8 Investment Direction and Change Procedures-Prior Contributions ...... 66
7.9 Directions to the Trustee ........................................... 67
7.10 Voting of Allocated Company Stock and FedEx Corp. Stock ............. 67
7.11 Tender of Allocated Company Stock or FedEx Corp. Stock .............. 69
ARTICLE VIII. DISTRIBUTIONS AND WITHDRAWALS ........................................... 75
8.1 Distributions Only As Provided ...................................... 75
8.2 Distributions upon Termination of Employment (Other than Death) ..... 75
8.3 Distribution upon Death ............................................. 76
8.4 Distribution Options ................................................ 77
8.5 Form and Valuation of Distribution .................................. 78
8.6 Latest Time of Distributions ........................................ 80
8.7 Withdrawal Requested by Participant ................................. 82
8.8 Suspension of Contributions Upon Withdrawal ......................... 84
8.9 Hardship Withdrawals ................................................ 85
8.10 Distributions Pursuant to Qualified Domestic Relations Orders ....... 87
8.11 Direct Rollovers .................................................... 87
8.12 Loans ............................................................... 88
ARTICLE IX. ADMINISTRATION OF THE PLAN AND FIDUCIARY RESPONSIBILITIES ................. 93
9.1 Responsibility for Administration ................................... 93
{/TABLE}
{PAGE}
4
{TABLE}
{S} {C}
9.2 Named Fiduciaries ................................................... 93
9.3 Delegation of Fiduciary Responsibilities ............................ 93
9.4 Immunities .......................................................... 94
9.5 Limitation on Exculpatory Provisions ................................ 95
9.6 Administrative Committee - Organization ............................. 95
9.7 Compensation ........................................................ 95
9.8 Qualification ....................................................... 95
9.9 Interpretation of the Plan and Findings of Fact ..................... 96
9.10 Operation of the Committee .......................................... 97
9.11 Plan Administrator's Actions ........................................ 98
9.12 Correction of Errors ................................................ 98
ARTICLE X. CLAIMS PROCEDURES .......................................................... 99
10.1 Claims .............................................................. 99
10.2 Review of Claims .................................................... 100
ARTICLE XI. AMENDMENT AND TERMINATION ................................................. 102
11.1 Right to Amend or Terminate ......................................... 102
11.2 Procedure for Termination or Amendment .............................. 102
11.3 Distribution Upon Termination ....................................... 102
11.4 Amendment Changing Vesting Schedule ................................. 102
11.5 Nonforfeitable Amounts .............................................. 103
11.6 Prohibition on Decreasing Accrued Benefits .......................... 104
ARTICLE XII. MISCELLANEOUS ............................................................ 105
12.1 Employment Not Affected ............................................. 105
12.2 Inalienability ...................................................... 105
12.3 Incapacity to Receive Payment ....................................... 106
12.4 Unclaimed Benefits .................................................. 106
12.5 Dissolution, Merger or Consolidation of the Company ................. 107
12.6 Action by the Company ............................................... 107
12.7 Limitation to Rights Created Under the Plan ......................... 107
12.8 Recourse Against Officers, Directors or Stockholders ................ 107
12.9 Interpretation ...................................................... 108
12.10 Severability ........................................................ 108
12.11 Counterparts ........................................................ 108
12.12 Plan Merger or Transfer of Assets ................................... 108
12.13 Indemnification ..................................................... 109
12.14 Service of Process/Necessary Parties ................................ 110
12.15 Military Service .................................................... 110
12.16 Model EGTRRA Amendments ............................................. 110
ARTICLE XIII. ADOPTION OF PLAN BY CONTROLLED GROUP MEMBERS ............................ 112
13.1 Adoption Procedure .................................................. 112
13.2 Effect of Adoption by a Controlled Group Member ..................... 112
13.3 Withdrawal of an Employer ........................................... 113
ARTICLE XIV. TOP-HEAVY PLAN PROVISIONS ................................................ 114
14.1 Definitions ......................................................... 114
14.2 Determination of Top-Heavy Status ................................... 117
14.3 Determination of Extra Top-Heavy Status ............................. 117
{/TABLE}
{PAGE}
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{TABLE}
{S} {C}
14.4 Requirements ........................................................ 118
14.5 Coordination With Other Plans ....................................... 120
14.6 Certain Changes Effective January 1, 2002 ........................... 120
{/TABLE}
EXHIBIT A
Employers Pursuant to Section 2.23
{PAGE}
THE ROADWAY CORPORATION
401(k) STOCK SAVINGS PLAN
(Amended and Restated Effective January 1, 2002)
THIS PLAN is amended and restated this 6th day of February, 2003 by the
Roadway Corporation, a Delaware corporation. This amendment and restatement of
the Plan is effective January 1, 2002. However, certain provisions of this
amendment and restatement of the Plan are effective as of some other date. The
provisions of this amendment and restatement of the Plan which are effective
prior to January 1, 2002 shall be deemed to amend the corresponding provisions
of the Plan as in effect before this amendment and restatement and all
amendments thereto. Events occurring before the applicable effective date of any
provision of this amendment and restatement of the Plan shall be governed by the
applicable provision of the Plan in effect on the date of the event.
{PAGE}
2
ARTICLE I.
PRELIMINARY MATTERS
1.1 Qualified Plan
The Plan is a profit-sharing plan maintained by the Company for the
exclusive benefit of Participants and their Beneficiaries. The Plan is permitted
to acquire and hold shares of common stock of the Company, and is intended to
comply with the provisions of the Code that govern tax-qualified plans and
ERISA.
1.2 Discretionary Powers
All discretionary powers granted hereunder shall be exercised in a
uniform nondiscriminatory manner.
1.3 Construction
(a) Unless the context otherwise indicates, the masculine wherever
used herein shall include the feminine and neuter, the singular shall include
the plural and words such as "herein", "hereof", "hereby", "hereunder" and words
of similar import refer to the Plan as a whole and not to any particular part
thereof.
(b) Wherever the word "person" appears in the Plan, it shall refer
to both natural and legal persons.
(c) A number of the provisions of the Plan are designed to contain
provisions required or contemplated by certain federal laws and/or regulations
thereunder. All such provisions are intended to have the meaning required or
contemplated by such provisions of such law or regulations and shall be
construed in accordance with valid regulations and valid published governmental
rulings and interpretations of such provisions. In applying such provisions of
the Plan, each Fiduciary may rely (and shall be protected in relying) on any
{PAGE}
3
determination or ruling made by any agency of the United States Government that
has authority to issue regulations, rulings or determinations with respect to
the federal law thus involved.
{PAGE}
4
ARTICLE II.
DEFINITIONS
2.1 Generally
The following terms, when used with initial capital letters, unless
the context clearly indicates otherwise, shall have the following respective
meanings.
2.2 Account and Sub-Account
"Account" and "Sub-Account" mean the records maintained by the Plan
Administrator in the manner provided in Section 7.2 hereof to determine the
interest of each Participant in the Trust Fund.
2.3 After-Tax Contributions
"After-Tax Contributions" means the contributions provided for in
Section 4.1(b) hereof and any other comparable after-tax amounts transferred to
the Plan pursuant to Section 4.13 hereof.
2.4 Before-Tax Contributions
"Before-Tax Contributions" means the contributions provided for in
Section 4.1(a) and any other comparable before-tax amounts transferred to the
Plan pursuant to Section 4.13 hereof.
2.5 Beneficiary
"Beneficiary" means the Participant's Death Beneficiary or any other
person entitled to receive benefits under this Plan by reason of a Participant's
death.
2.6 Board of Directors
"Board of Directors" means the Board of Directors of the Company.
2.7 Code
"Code" means the Internal Revenue Code of 1986, as amended.
{PAGE}
5
2.8 Committee
"Committee" means the committee established by the Company under
Section 9.6 hereof to administer the Plan. The Committee shall be a Named
Fiduciary hereunder and, effective January 1, 2003, the Plan Administrator.
2.9 Company
"Company" means Roadway Corporation, a Delaware corporation. The
Company shall be the Plan Administrator and a Named Fiduciary hereunder for
periods prior to January 1, 2003.
2.10 Company Stock
"Company Stock" means prior to May 30, 2001 the voting common stock
of the Company, and on and after May 30, 2001, the common stock of Roadway
Corporation, par value $0.01.
2.11 Company Stock Fund
"Company Stock Fund" means the Investment Fund described in Section
7.1 hereof, which is invested in Company Stock.
2.12 Compensation
(a) "Compensation" 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)
effective January 1, 2000, payments pursuant to the Century Bonus Program, (iii)
payments pursuant to a tax equalization, relocation or cost of living program,
an expatriate program or any similar programs or arrangements, and (iv) any part
of the Employer's contributions under this Plan and/or any pension, welfare,
stock bonus, stock
{PAGE}
6
ownership or other qualified or nonqualified plan. Notwithstanding the
foregoing, Compensation shall include any salary that would have been paid to
such Employee had he not signed (or been deemed to have signed) a salary
deferral agreement that satisfies the requirements of Code Section 401(k), 125,
129 or 132(f).
(b) Notwithstanding the foregoing, Compensation of any Employee
taken into account for any purpose for any Plan Year shall not exceed (i) one
hundred fifty thousand dollars ($150,000) for Plan Years beginning before
January 1, 2002, or (ii) two hundred thousand dollars ($200,000) for Plan Years
beginning on and after January 1, 2002, as adjusted by the Secretary of the
Treasury for increases in the cost of living in accordance with Code Section
401(a)(17). The cost-of-living adjustment in effect for a calendar year applies
to Compensation for the Plan Year that begins with or within such calendar year.
2.13 Contributions
"Contributions" mean any one or more of After-Tax Contributions,
Before-Tax Contributions, Matching Employer Contributions, Rollover
Contributions, Qualified Nonelective Contributions and Profit Sharing
Contributions, as the context requires.
2.14 Controlled Group
"Controlled Group" means the Employers and any and all other
corporations, trades and/or businesses, the employees of which, together with
Employees of an Employer, are required by Code Section 414 to be treated as if
they were employed by a single employer. For purposes of Section 5.9 hereof,
"Controlled Group" shall be interpreted in accordance with Code Section 415(h).
{PAGE}
7
2.15 Controlled Group Member
"Controlled Group Member" means each corporation or unincorporated
trade or business that is or was a member of the Controlled Group, but, except
as provided in Section 2.42(d) hereof, only during such period as it is or was
such a member of the Controlled Group.
2.16 Covered Employee
"Covered Employee" means any Employee of an Employer who is in a
class or group to which the Employer has extended eligibility for participation
in the Plan, excluding, however, any Employee who (a) is included in a
collective bargaining unit (either directly or through an employer's
association) unless the collective bargaining agreement expressly provides that
the Employee is to be eligible under the Plan, (b) is a non-resident alien
(other than an alien who is only temporarily located outside of the United
States) or (c) is a leased employee (as defined in Section 2.22 hereof).
2.17 Death Beneficiary
(a) "Death Beneficiary" means a Participant's Spouse or, if he has
no Spouse or if his Spouse consents to the designation, such person or persons
other than, or in addition to, his Spouse as may be designated by the
Participant as his Death Beneficiary under the Plan. A Participant's designation
required by this Section may be made, revoked or changed (without the consent of
any previously designated Death Beneficiary, except as provided in this Section)
only by an instrument (in the form provided by the Plan Administrator) that is
signed by the Participant, that, if he has a Spouse, includes his Spouse's
written consent to the action to be taken pursuant to such instrument (unless
such action results in the Spouse being named as the Participant's sole Death
Beneficiary), and that is filed with the Plan Administrator before the
Participant's death. A Spouse's consent required by this Section shall be signed
by the Spouse,
{PAGE}
8
shall acknowledge the effect of such consent, shall be witnessed by a notary
public and shall be effective only with respect to such Spouse. A Spouse's
consent is not required if it is established to the satisfaction of the
Committee that the consent cannot be obtained because there is no Spouse,
because the Spouse cannot be located, or because of such other circumstances as
the Secretary of the Treasury may prescribe by regulations.
(b) In default of such a designation and at any other time when
there is no existing Death Beneficiary designated by the Participant, his Death
Beneficiary shall be determined by the Committee in the following order: (i) his
Spouse, (ii) his children, (iii) his parents, (iv) his siblings and (v) his
estate. For purposes of the preceding sentence, "children," "parents" and
"siblings" shall only include those individuals living at the time of the
Participant's death and not the descendants of any child, parent or sibling, as
applicable.
(c) If a person designated by a Participant as his Death Beneficiary
ceases to exist on or after the date of the Participant's death, the Death
Beneficiary shall be that person's estate or such other person designated by
that person pursuant to this Section.
2.18 Effective Date
"Effective Date" means January 1, 1996; provided, however, that the
Plan shall be effective upon its execution for purposes of transfers pursuant to
Section 4.13 hereof. The effective date of this amendment and restatement of the
Plan is January 1, 2002.
2.19 Eligible Employee
"Eligible Employee" means an Employee who is eligible for
participation in the Plan in accordance with Article III hereof.
{PAGE}
9
2.20 Eligible Retirement Plan
(a) "Eligible Retirement Plan" means any of the following plans that
accepts a Participant's Eligible Rollover Distribution: (a) an individual
retirement account described in Code Section 408(a); (b) an individual
retirement annuity described in Code Section 408(b); (c) an annuity plan
described in Code Section 403(a); (d) a qualified trust described in Code
Section 401(a); (e) for Eligible Rollover Distributions made on and after
January 1, 2002, an annuity contract described in Code Section 403(b); and (f)
for Eligible Rollover Distributions made on and after January 1, 2002, an
eligible plan under Code Section 457(b) which is maintained by a State,
political subdivision of a State, or any agency or instrumentality of a State or
political subdivision of a State and which agrees to separately account for
amounts transferred into such plan from this Plan. However, in the case of an
Eligible Rollover Distribution made before January 1, 2002 to a surviving
spouse, an Eligible Retirement Plan is an individual retirement account
described in Code Section 408(a) or an individual retirement annuity described
in Code Section 408(b).
2.21 Eligible Rollover Distribution
(a) "Eligible Rollover Distribution" means any distribution of all
or any portion of the Participant's Account, except (i) any distribution
required under Code Section 401(a)(9), (ii) 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), (iii) with
respect to any distribution made prior to January 1, 2002, the portion of the
distribution not includible in gross income (determined without regard to the
exclusion for net unrealized appreciation described in Code Section 402(e)(4)),
(iv) effective January 1, 1999, any "hardship" distribution (as defined in Code
Section 401(k)), (v) any distribution that is one of a series of
{PAGE}
10
periodic payments for a specified period of ten (10) or more years, and (vi)
such other amounts specified in Treasury regulations or Internal Revenue Service
rulings, notices or announcements issued under Code Section 402(c).
(b) Notwithstanding (a) above, effective January 1, 2002, no portion
of a distribution shall fail to be an Eligible Rollover Distribution merely
because the portion consists of After-Tax Contributions not includible in gross
income, provided, however, that such portion may be transferred only to an
individual retirement account or annuity described in Code Section 408(a) or
(b), or to a qualified defined contribution plan described in Code Sections
401(a) or 403(a), that agrees to separately account for amounts so transferred,
including separately accounting for the portion of such distribution which is
includible in gross income and the portion of such distribution which is not so
includible.
2.22 Employee
(a) "Employee" means any person who is subject to the dominion and
control of a Controlled Group Member with respect to the type, kind, nature and
scope of services furnished and, to the extent required by Code Section 414(n),
any person who is a "leased employee" of a Controlled Group Member.
(b) For purposes of this Section, effective January 1, 1997, a
"leased employee" means any person who, pursuant to an agreement between a
Controlled Group Member and any other person ("leasing organization"), has
performed services for the Controlled Group Member on a substantially full-time
basis for a period of at least one year, and such services are performed under
the primary direction and control of the Controlled Group Member. Contributions
or benefits provided to a leased employee by the leasing organization that are
attributable to services performed for a Controlled Group Member will be treated
as
{PAGE}
11
provided by the Controlled Group Member. A leased employee will not be
considered an Employee of a Controlled Group Member, however, if (i) leased
employees do not constitute more than twenty percent (20%) of the Controlled
Group Member's nonhighly compensated work force (within the meaning of Code
Section 414(n)(5)(C)(ii)) and (ii) such leased employee is covered by a money
purchase pension plan maintained by the leasing organization that provides (A) a
nonintegrated employer contribution rate of at least ten percent (10%) of
Compensation, (B) immediate participation and (C) full and immediate vesting.
2.23 Employer
"Employer" means the Company and any other Controlled Group Member
that adopts the Plan as specified in Article XIII hereof. However, any person
that adopts the Plan and thereafter ceases to exist, ceases to be a member of
the Controlled Group or withdraws or is eliminated from the Plan, shall not
thereafter be an Employer. The Employers under the Plan are listed on Exhibit A.
2.24 Employer Contributions
"Employer Contributions" means Matching Employer Contributions as
described in Section 5.1 hereof, Qualified Nonelective Contributions as
described in Section 5.4 and Profit Sharing Contributions as described in
Section 5.6.
2.25 Employment Commencement Date
"Employment Commencement Date" means the date on which an Employee
first performs an Hour of Service for a Controlled Group Member.
2.26 Enrollment Date
Effective as of January 1, 2000, "Enrollment Date" means the first
day of the first pay period of the first administratively feasible month
following the month in which an
{PAGE}
12
Employee becomes an Eligible Employee. Effective as of January 1, 2003,
"Enrollment Date" means the first administratively practicable date following
the date an Eligible Employee files (or is deemed to file) an application for
enrollment with the Trustee pursuant to Article III hereof.
2.27 ERISA
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
2.28 FedEx Corp. Stock
"FedEx Corp. Stock" means the voting common stock of FedEx
Corporation.
2.29 FedEx Stock Fund
"FedEx Stock Fund" means the Investment Fund described in Section
7.1 hereof, which is invested in FedEx Corp. Stock, and, as appropriate to meet
the needs of the Plan, cash.
2.30 Fiduciary
"Fiduciary" means any person who (a) exercises any discretionary
authority or discretionary control respecting management of the Plan or
exercises any authority or control respecting management or disposition of the
Trust Fund, (b) renders investment advice for a fee or other compensation,
direct or indirect, with respect to the Trust Fund, or has authority or
responsibility to do so, or (c) has any discretionary authority or discretionary
responsibility in the administration of the Plan or the Trust Fund. The term
"Fiduciary" shall also include any person to whom a Named Fiduciary delegates
any of his fiduciary responsibilities hereunder in accordance with the
provisions of the Plan, as long as such designation is in effect.
{PAGE}
13
2.31 Full-Time Employee
"Full-Time Employee" means any permanent Employee who is regularly
scheduled to work at least 40 hours per week.
2.32 Hardship
"Hardship" means an immediate and heavy financial need on the part
of a Participant for:
(a) expenses for medical care described in Code Section 213(d)
previously incurred by the Participant, his Spouse, or any dependents of the
Participant (as defined in Code Section 152), or expenses necessary for these
persons to obtain such medical care;
(b) costs directly related to the purchase (excluding mortgage
payments) of a principal residence for the Participant;
(c) the payment of tuition, related educational fees, and room and
board expenses for the next twelve (12) months of post-secondary education for
the Participant, his Spouse, his children or his dependents (as defined in Code
Section 152);
(d) payments necessary to prevent the eviction of the Participant
from his principal residence or foreclosure on the mortgage of the Participant's
principal residence; or
(e) any other financial need that the Commissioner of Internal
Revenue, through the publication of revenue rulings, notices and other documents
of general applicability, may from time to time designate as a deemed immediate
and heavy financial need as provided in Treasury Regulation Section
1.401(k)-1(d)(2)(iv)(C).
2.33 Highly Compensated Employee
(a) "Highly Compensated Employee" means, effective January 1, 1997,
for a particular Plan Year, any Employee:
{PAGE}
14
(i) who, during the current or the preceding Plan Year, was at
any time a 5-percent owner (as such term is defined in Code Section 416(i)(1)),
or
(ii) for the preceding Plan Year, received compensation from
the Controlled Group in excess of $80,000 (as adjusted under Code Section
414(q)(1)), and was in the top-paid group of Employees for such Plan Year.
(b) The term "Highly Compensated Employee" shall include a former
Employee whose Termination of Employment occurred prior to the Plan Year and who
was a Highly Compensated Employee for the Plan Year in which his Termination of
Employment occurred or for any Plan Year ending on or after his fifty-fifth
(55th) birthday.
(c) For the purposes of this Section, the term "compensation" shall
mean (i) for the period prior to January 1, 1998, the sum of an Employee's
compensation under Section 5.8(c) hereof and the Employee's Before-Tax
Contributions (subject to the limitation described in Section 2.12(b) hereof)
and elective or salary reduction contributions pursuant to a cafeteria plan
under Code Section 125 or a tax-sheltered annuity under Code Section 403(b), and
(ii) for the periods commencing on and after January 1, 1998, an Employee's
compensation under Section 5.9(c) hereof (subject to the limitation described in
Section 2.12(b) hereof).
(d) For purposes of this Section, the term "top-paid group of
Employees" shall mean that group of Employees of the Controlled Group consisting
of the top 20 percent (20%) of such Employees when ranked on the basis of
compensation paid by the Controlled Group during the preceding Plan Year.
2.34 Hours of Service
(a) "Hours of Service" means an hour for which an Employee is paid,
or entitled to payment, by one or more Controlled Group Members for the
performance of duties as
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15
an Employee and, with respect to a Temporary or Casual Employee, shall be
determined in accordance with the provisions of 29 C.F.R. Section 2530.200b-2(a)
and (b), which provisions are incorporated herein by reference.
(b) For purposes of determining the Hours of Service of a Temporary
or Casual Employee, Hours of Service shall be credited to eligibility
computation periods and Plan Years in accordance with the provisions of 29
C.F.R. Section 2530.200b-2(c), which provisions are incorporated herein by
reference.
(c) Anything in the Plan to the contrary notwithstanding, for
purposes of determining the Hours of Service of a Temporary or Casual Employee,
such Employee shall be credited with such Hours of Service not otherwise
credited to him under the Plan as may be required by any applicable law.
2.35 Instrument of Adoption
"Instrument of Adoption" means the instrument referred to in Section
13.1 hereof by which a corporation or other business organization adopts the
Plan and designates a group or groups of its Employees as Covered Employees
under the Plan.
2.36 Investment Funds
"Investment Funds" means any of the funds provided for in Section
7.1 hereof.
2.37 Matching Employer Contributions
"Matching Employer Contributions" means the contributions provided
for in Section 5.1 hereof or any other comparable matching contributions
transferred to the Plan pursuant to Section 4.13 hereof.
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16
2.38 Named Fiduciary
"Named Fiduciary," within the meaning of ERISA Section 402, means
the Committee, the Company (for periods prior to January 1, 2003), the Trustee
and each other person designated as a Named Fiduciary by the Company pursuant to
the power of delegation reserved to the Company in Section 9.2 hereof.
2.39 1-Year Break in Service
(a) "1-Year Break in Service" means a twelve (12) month period
beginning on an Employee's Severance Date and ending on the first anniversary of
such Date, provided that during such period the Employee does not perform an
Hour of Service.
(b) If an Employee is absent from work for any period due to (i) the
pregnancy of the Employee, (ii) the birth of a child of the Employee, (iii) the
placement of a child with the Employee in connection with the adoption of such
child by the Employee, or (iv) caring for a child for a period beginning
immediately following the birth or placement of such child, such Employee shall
not, solely by reason of such absence, be considered to have incurred a Period
of Severance until the expiration of the twenty-four (24) consecutive month
period commencing on the first day of such absence and shall incur a 1-Year
Break in Service if he does not perform an Hour of Service during the twelve
(12) month period immediately following such twenty-four (24) month period.
(c) Notwithstanding the provisions of Subsection (a) of this
Section, with respect to an Employee who is a Temporary or Casual Employee,
"1-Year Break in Service" means a Plan Year in which such Employee does not
complete more than 500 Hours of Service.
(d) Notwithstanding the provisions of Subsection (b) of this
Section, if a Temporary or Casual Employee is absent from work for any period
due to (1) the pregnancy of
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17
the Employee, (2) the birth of a child of the Employee, (3) the placement of a
child of the Employee in connection with the adoption of such child by the
Employee, or (4) caring for a child for a period beginning immediately following
the birth or placement of such child, such Employee shall receive credit for
Hours of Service equal to:
(i) the number of Hours of Service which otherwise would
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