Trust Agreement
Between
Arkansas Best Corporation
And
Fidelity Management Trust Company
THE ARKANSAS BEST CORPORATION AND AFFILIATES
EMPLOYEES' INVESTMENT TRUST NO. 1
Dated as of January 1, 1990
DII0CD52 25879-1
TABLE OF CONTENTS
SECTION PAGE
1. Trust ................................................... 2
2. Exclusive Benefit and Reversion of Sponsor Contributions 2
3. Disbursements ........................................... 3
4. Investment of Trust ..................................... 3
5. Recordkeeping to Be Performed ........................... 8
6. Compensation and Expenses ............................... 10
7. Directions and Indemnification .......................... 11
8. Resignation or Removal of Trustee ....................... 12
9. Successor Trustee ....................................... 12
10. Additional Trustees ..................................... 13
11. Participation and Withdrawal ............................ 14
12. Termination ............................................. 17
13. Resignation, Removal, and Termination Notices ........... 17
14. Duration ................................................ 18
15. Amendment or Modification .............................. 18
16. General ................................................. 18
17. Governing Law ........................................... 19
DII0CD52 25879-1
TRUST AGREEMENT, dated as of the 1st day of January, 1990, between
ARKANSAS BEST CORPORATION, a Delaware corporation, having an office at
0000 X. 00xx Xxxxxx, Xxxx Xxxxx, Xxxxxxxx 00000 (the "Sponsor"), and
FIDELITY MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having
an office at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Sponsor wishes to establish a trust to hold and invest
certain plan assets under the Plans specified in Schedule I (collectively
the "Plans" or, individually, "Plan") for the exclusive benefit of
participants in the Plans and their beneficiaries; and
WHEREAS, the Administrative Committee (the "Named Fiduciary") is a
named fiduciary of the Plans (within the meaning of section 402(a) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"));
and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan
assets in trust among several investment options selected by the Named
Fiduciary; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain
ministerial recordkeeping functions under the Plans; and
WHEREAS, the Administrative Committee (the "Administrator") is the
administrator of the Plans (within the meaning of section 3(16)(A) of
ERISA); and
WHEREAS, the Trustee is willing to perform recordkeeping services for
the Plans if the services are purely ministerial in nature and are
provided within a framework of plan provisions, guidelines and
interpretations conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the
Trustee agree as follows:
Section 1. TRUST. The Sponsor hereby establishes the Arkansas Best
Corporation and Affiliates Employees' Investment Trust No. 1 (the
"Trust"), with the Trustee. The Trust adopts for accounting purposes the
fiscal year beginning January 1 of each year and ending December 31 of the
same year. The Trust is part of the Plans. The purpose of the Trust is
to fund certain benefits payable to the participants and their
beneficiaries under the Plans. The Trust shall consist of an initial
contribution of money or other property acceptable to the Trustee in its
sole discretion, made by the Sponsor, or an Affiliated Company eligible
under Section 11 of this Agreement to make contributions to the Trust, or
transferred from a previous trustee under the Plans, such additional sums
of money as shall from time to time be delivered to the Trustee under the
Plans, all investments made therewith and proceeds thereof, and all
earnings and profits thereon, less the payments that are made by the
Trustee as provided herein, without distinction between principal and
income. The Trustee hereby accepts the Trust on the terms and conditions
set forth in this Agreement. In accepting this Trust, the Trustee shall
be accountable for and agrees to hold the assets received by it along with
earnings thereon, subject to the terms and conditions of this Agreement.
The Trust shall not contain any assets of the Plans held in the Arkansas
Best Stock Fund which are invested in the Arkansas Best Corporation and
Affiliates Employees' Investment Trust No. 2 and the Trustee shall have no
responsibility for such Trust.
Section 2. EXCLUSIVE BENEFIT AND REVERSION OF SPONSOR CONTRIBUTIONS.
Except as provided under applicable law, no part of the Trust may be used
for, or diverted to, purposes other than the exclusive benefit of the
participants in the Plans or their beneficiaries prior to the satisfaction
of all liabilities with respect to the participants and their
beneficiaries.
Section 3. DISBURSEMENTS.
(a) The Trustee shall make disbursements in the amounts and in the
manner that the Administrator directs from time to time in writing, and in
the case of a distribution of less than the entire account to a
participant or beneficiary, the Administrator shall direct the portion of
the account or the amount to be distributed. The Trustee shall have no
responsibility to ascertain any direction's compliance with the terms of
the Plans or of any applicable law or the direction's effect for tax
purposes or otherwise; nor shall the Trustee have any responsibility to
see to the application of any disbursement.
(b) The Trustee shall not be required to make any disbursement in
excess of the net realizable value of the assets of the Trust at the time
of the disbursement. In the case of a distribution of less than the
entire account to a participant or beneficiary, the Administrator shall
provide a written direction as to the particular assets to be converted to
cash for the purpose of making the distribution.
(c) The Trustee shall value the Trust assets on each "valuation
date." For this purpose, "valuation date" shall mean any date on which
the New York Stock Exchange is open.
Section 4. INVESTMENT OF TRUST.
(a) SELECTION OF INVESTMENT OPTIONS. The Trustee shall have no
responsibility for the selection of investment options under the Trust and
shall not render investment advice to any person in connection with the
selection of such options.
(b) AVAILABLE INVESTMENT OPTIONS. The Named Fiduciary shall direct
the Trustee as to what investment options participants in any of the Plans
may invest in, subject to the following limitations. The Named Fiduciary
may determine to offer as investment options only (i) securities issued by
the investment companies advised by Fidelity Management & Research Company
("Mutual Funds"), (ii) notes evidencing loans to participants in any of
the Plans in accordance with the terms of the relevant Plan, (iii)
guaranteed investment contracts chosen by the Trustee, and (iv) collective
investment funds maintained by the Trustee for qualified plans; provided,
however, that the Trustee shall be considered a fiduciary with investment
discretion only with respect to Plan assets that are invested in
guaranteed investment contracts chosen by the Trustee or in collective
investment funds maintained by the Trustee for qualified plans.
(c) PARTICIPANT DIRECTION. Each participant in any of the Plans
shall direct the Trustee in which investment option(s) to invest the
assets in the participant's individual accounts. Such directions may be
made by Plan participants by use of the telephone exchange system
maintained for such purposes by the Trustee or its agent, in accordance
with the Telephone Exchange Guidelines attached hereto on Schedule "G."
Any directions made by a participant using the telephone exchange system
shall be treated as a direction made in writing by the Named Fiduciary for
purposes of Section 7 hereafter. In the event that the Trustee fails to
receive a proper direction, the assets shall be invested in the securities
of the Mutual Fund set forth for such purpose on Schedule "C," until the
Trustee receives a proper direction.
(d) MUTUAL FUNDS. Trust investments in Mutual Funds shall be subject
to the following limitations:
(i) EXECUTION OF PURCHASES AND SALES. Purchases and sales of
Mutual Funds (other than for Exchanges) shall be made on the date on
which the Trustee receives from the Sponsor in good order all
information and documentation necessary to accurately effect such
purchases and sales (or in the case of a purchase, the subsequent date
on which the Trustee has received Exchanges of Mutual Funds shall be
made in accordance with the Telephone Exchange Guidelines attached
hereto as Schedule "G").
(ii) VOTING. At the time of mailing of notice of each annual or
special stockholders' meeting of any Mutual Fund, the Trustee shall
send a copy of the notice and all proxy solicitation materials to each
participant in any of the Plans who has shares of the Mutual Fund
credited to the participant's accounts, together with a voting
direction form for return to the Trustee or its designee. The
participant shall have the right to direct the Trustee as to the
manner in which the Trustee is to vote the shares credited to the
participant's accounts (both vested and unvested). The Trustee shall
vote the shares as directed by the participant. The Trustee shall not
vote shares for which it has received no directions from the
participant. With respect to all rights other than the right to vote,
the Trustee shall follow the directions of the participant and if no
such directions are received, the directions of the Named Fiduciary.
The Trustee shall have no duty to solicit directions from
participants.
(e) NOTES. The Administrator shall act as the Trustee's agent for
the purpose of holding all trust investments in notes and other loan
documentation and as such shall (i) hold physical custody of and keep safe
the notes and other loan documents, (ii) collect and remit all principal
and interest payments to the Trustee, (iii) keep the proceeds of such
loans separate from the other assets of the Administrator and clearly
identify such assets as assets of one of the Plans, (iv) advise the
Trustee of the date, amount and payee of the checks to be drawn
representing loans, and (v) cancel and surrender the notes and other loan
documentation when a loan has been paid in full.
(f) GUARANTEED INVESTMENT CONTRACTS. Trust investments in guaranteed
investment contracts ("GIC's") shall be subject to the following
limitations:
(i) COMMINGLED POOL INVESTMENTS. To the extent that the Named
Fiduciary selects as an investment option the GIC Open-End Portfolio
of the Fidelity Group Trust for Employee Benefit Plans (the "Group
Trust"), the Sponsor hereby (A) agrees to the terms of the Group Trust
and adopts said terms as a part of this Agreement, and (B)
acknowledges that it has received from the Trustee a copy of the Group
Trust, the Declaration of Separate Fund for the GIC Open-End Portfolio
of the Group Trust, and the Circular for the GIC Open-End Portfolio.
(ii) INDIVIDUALLY-MANAGED INVESTMENTS. To the extent that the
Named Fiduciary selects GIC's chosen by the Trustee as an investment
option, the Sponsor hereby directs the Trustee to choose such GIC's in
accordance with the Investment Guidelines for GIC Management attached
hereto as Schedule "H."
(g) RELIANCE OF TRUSTEE ON DIRECTIONS.
(i) The Trustee shall not be liable for any loss, or by reason
of any breach, which arises from any participant's exercise or non-
exercise of rights under this Section 4 over the assets in the
participant's accounts, except to the degree liability is imposed on
the Trustee under ERISA.
(ii) The Trustee shall not be liable for any loss, or by reason
of any breach, which arises from the Named Fiduciary's exercise or
non-exercise of rights under this Section 4, unless it was clear on
their face that the actions to be taken under the Named Fiduciary's
directions were prohibited by the fiduciary duty rules of section
404(a) of ERISA or were contrary to the terms of the Plans or this
Agreement.
(h) TRUSTEE POWERS. The Trustee shall have the following powers and
authority:
(i) Subject to paragraphs (b), (c) and (d) of this Section 4, to
sell, exchange, convey, transfer, or otherwise dispose of any property
held in the Trust, by private contract or at public auction. No
person dealing with the Trustee shall be bound to see to the
application of the purchase money or other property delivered to the
Trustee or to inquire into the validity, expediency, or propriety of
any such sale or other disposition.
(ii) Subject to paragraphs (b) and (c) of this Section 4, to
invest in guaranteed investment contracts and short term investments
(including interest-bearing accounts with the Trustee or money market
mutual funds advised by affiliates of the Trustee) and in collective
investment funds maintained by the Trustee for qualified plans, in
which case the provisions of each collective investment fund in which
the Trust is invested shall be deemed adopted by the Sponsor and the
provisions thereof incorporated as a part of this Trust as long as the
fund remains exempt from taxation under Sections 401(a) and 501(a) of
the Internal Revenue Code of 1986, as amended (the "Code").
(iii) To cause any securities or other property held as part of
the Trust to be registered in the Trustee's own name, in the name of
one or more of its nominees, or in the Trustee's account with the
Depository Trust Company of New York and to hold any investments in
bearer form, but the books and records of the Trustee shall at all
times show that all such investments are part of the Trust.
(iv) To keep that portion of the Trust in cash or cash balances
as the Named Fiduciary or Administrator may, from time to time, deem
to be in the best interest of the Trust.
(v) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein
granted.
(vi) To settle, compromise, or submit to arbitration any claims,
debts, or damages due to or arising from the Trust; to commence or
defend suits or legal or administrative proceedings; to represent the
Trust in all suits and legal and administrative hearings; and to pay
all reasonable expenses arising from any such action, from the Trust
if not paid by the Sponsor.
(vii) To employ legal, accounting, clerical, and other assistance
as may be required in carrying out the provisions of this Agreement
and to pay their reasonable expenses and compensation from the Trust
if not paid by the Sponsor.
(viii) To do all other acts although not specifically mentioned
herein, as the Trustee may deem necessary to carry out any of the
foregoing powers and the purposes of the Trust.
Section 5. RECORDKEEPING TO BE PERFORMED.
(a) The Trustee shall perform those recordkeeping functions described
in Schedule "A" attached hereto. These recordkeeping functions shall be
performed within the framework of the Administrator's written directions
regarding the provisions, guidelines and interpretations of the Plans.
(b) The Trustee shall keep accurate accounts of all investments,
receipts, disbursements, and other transactions hereunder, and shall
report the value of the assets held in the Trust as of the last day of
each fiscal quarter of the Trust and, if not on the last day of a fiscal
quarter, the date on which the Trustee resigns or is removed as provided
in Section 9 of this Agreement or is terminated as provided in Section 12
(the "Reporting Date"). Within thirty (30) days following each Reporting
Date or within sixty (60) days in the case of a Reporting Date caused by
the resignation or removal of the Trustee, or the termination of this
Agreement, the Trustee shall file with the Administrator a written account
setting forth all investments, receipts, disbursements, and other
transactions effected by the Trustee between the Reporting Date and the
prior Reporting Date, and setting forth the value of the Trust as of the
Reporting Date. Except as otherwise required under ERISA, upon the
expiration of six (6) months from the date of filing such account with the
Administrator, the Trustee shall have no liability or further
accountability to anyone with respect to the propriety of its acts or
transactions shown in such account, except with respect to such acts or
transactions as to which the Sponsor shall within such six (6) month
period file with the Trustee written objections.
(c) All records generated by the Trustee in accordance with
paragraphs (a) and (b) shall be open to inspection and audit, during the
Trustee's regular business hours prior to the termination of this
Agreement, by the Administrator or any person designated by the
Administrator. Upon the resignation or removal of the Trustee or the
termination of this Agreement, the Trustee shall provide to the
Administrator, at no expense to the Sponsor, in the format regularly
provided to the Administrator, a statement of each participant's accounts
as of the resignation, removal, or termination, and the Trustee shall
provide to the Administrator or the Plans' new recordkeeper such further
records as are reasonable, at the Sponsor's expense.
(d) The Trustee's provision of the recordkeeping services set forth
in this Section 5 shall be conditioned on the Sponsor delivering to the
Trustee a copy of any amendment to the Plans as soon as administratively
feasible following the amendment's adoption, with, if reasonably
requested, an IRS determination letter or an opinion of counsel
substantially in the form of Schedule "F" covering such amendment, and on
the Administrator providing the Trustee on a timely basis with all the
information the Administrator deems necessary for the Trustee to perform
the recordkeeping services and such other information as the Trustee may
reasonably request.
(e) The Administrator shall be responsible for the preparation and
filing of all returns, reports, and information required of the Trust or
Plans by law. The Trustee shall provide the Administrator with such
information as the Administrator may reasonably request to make these
filings. The Administrator shall also be responsible for making any
disclosures to participants required by law including, without limitation,
such disclosures as may be required under federal or state truth-in-
lending laws with regard to participant loans.
Section 6. COMPENSATION AND EXPENSES. Within thirty (30) days of receipt
of the Trustee's xxxx, which shall be computed and billed in accordance
with Schedule "B" attached hereto and made a part hereof, as amended from
time to time, the Sponsor shall send to the Trustee a payment in such
amount. All expenses of the Trustee relating directly to the acquisition
and disposition of investments constituting part of the Trust, and all
taxes of any kind whatsoever that may be levied or assessed under existing
or future laws upon or in respect of the Trust or the income thereof,
shall be a charge against and paid from the appropriate participants'
accounts.
Section 7. DIRECTIONS AND INDEMNIFICATION.
(a) The Trustee shall be fully protected in relying on the fact that
the Named Fiduciary and the Administrator under the Plans are the
individuals or persons named as such above or such other individuals or
persons as the Sponsor may notify the Trustee in writing.
(b) Whenever the Administrator provides a direction to the Trustee,
the Trustee shall not be liable for any loss, or by reason of any breach,
arising from the direction if the direction is contained in a writing (or
is oral and immediately confirmed in a writing) signed by any individual
whose name and signature have been submitted (and not withdrawn) in
writing to the Trustee by the Administrator in the form attached hereto as
Schedule "D," provided the Trustee reasonably believes the signature of
the individual to be genuine. The Trustee shall have no responsibility to
ascertain any direction's (i) accuracy, (ii) compliance with the terms of
the Plans or any applicable law, or (iii) effect for tax purposes or
otherwise, except as otherwise provided by ERISA.
(c) Whenever the Named Fiduciary or Sponsor provides a direction to
the Trustee, the Trustee shall not be liable for any loss, or by reason of
any breach, arising from the direction (i) if the direction is contained
in a writing (or is oral and immediately confirmed in a writing) signed by
any individual whose name and signature have been submitted (and not
withdrawn) in writing to the Trustee by the Named Fiduciary in the form
attached hereto as Schedule "E," and (ii) if the Trustee reasonably
believes the signature of the individual to be genuine, unless it is clear
on the direction's face that the actions to be taken under the direction
would be prohibited by the fiduciary duty rules of section 404(a) of ERISA
or would be contrary to the terms of the Plans or this Agreement.
(d) In any other case, the Trustee shall not be liable for any loss,
or by reason of any breach, arising from any act or omission of another
fiduciary under the Plan except as provided in section 405(a) of ERISA.
(e) The Sponsor shall indemnify the Trustee against, and hold the
Trustee harmless from, any and all loss, damage, penalty, liability, cost,
and expense, including without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by, imposed upon, or asserted against
the Trustee by reason of any claim, regulatory proceeding, or litigation
arising from any act done or omitted to be done by any individual or
person with respect to the Plans or Trust, excepting only any and all
loss, damage, penalty, liability, cost and expenses, including without
limitation, reasonable attorneys' fees and disbursements, arising solely
from the Trustee's negligence or bad faith.
(f) The provisions of this Section 7 shall survive the termination of
this Agreement.
Section 8. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may resign at any time upon sixty (60) days' notice
in writing to the Sponsor, unless a shorter period of notice is agreed
upon by the Sponsor.
(b) The Sponsor say remove the Trustee at any time upon sixty (60)
days' notice in writing to the Trustee, unless a shorter period of notice
is agreed upon by the Trustee.
Section 9. SUCCESSOR TRUSTEE.
(a) If the Office of Trustee becomes vacant for any reason, the
sponsor may in writing appoint a successor trustee under this Agreement.
The successor trustee shall have all of the rights, powers, privileges,
obligations, duties, liabilities, and immunities granted to the Trustee
under this Agreement. The successor trustee and predecessor trustee shall
not be liable for the acts or omissions of the other with respect to the
Trust.
(b) When the successor trustee accepts its appointment under this
Agreement, title to and possession of the Trust assets shall immediately
vest in the successor trustee without any further action on the part of
the predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or reasonably
may be requested in writing by the Sponsor or the successor trustee to
vest title to all Trust assets in the successor trustee or to deliver all
Trust assets to the successor trustee.
(c) Any successor of the Trustee or successor trustee, through sale
or transfer of the business or trust department of the Trustee or
successor trustee, or through reorganization, consolidation or merger, or
any similar transaction, shall, upon consummation of the transaction,
become the successor trustee under this Agreement.
Section 10. ADDITIONAL TRUSTEES. It is contemplated that there will be
several trusts in effect from time to time for purposes of the Plans.
Trustee shall have no responsibility with respect to administration of
such assets while in such other trust or trusts, and with respect to such
other trust or trusts, Trustee shall have the full protection of Section
405(b)(3) of ERISA. The Administrator may direct, in accordance with the
provisions of a Plan, that some or all of the assets of this Trust or the
income therefrom be transferred to one of the other trusts under the
Plans. Any such transfer shall be treated as a removal of Trustee for
purposes of this Agreement.
Section 11. PARTICIPATION AND WITHDRAWAL.
(a) ELIGIBILITY. Any employee benefit plan established by the
Sponsor or an Affiliated Company may be funded, in whole or in part,
through the Trust if: (i) said Plan is qualified under Section 401(a) of
the Code; (ii) said Plan is a defined contribution plan within the meaning
of Section 414(i) of the Code; (iii) the Trust is exempt from taxation
under Section 501(a) of the Code; (iv) this Agreement has been duly
adopted by the board of the directors of the Sponsor or by the board of
directors of an Affiliated Company as a trust under said Plan, and, in the
case of such Affiliated Company, the board of directors of the Sponsor has
consented thereto; and (v) the terms and provisions of said Plan are not
inconsistent with the provisions of this Agreement. "Affiliated Company"
shall mean any company which is a component member of a controlled group
of corporations within the meaning of Section 1563(a) of the Code,
determined without regard to Sections 1563(a)(4) and (e)(3)(C) thereof,
which controlled group of corporations includes as a component member the
Sponsor of any Participating Company. "Affiliated Company" shall also
mean any trade or business under common control (as defined in Sections
414(b) and 414(c) of the Code) of which a Participating Company is a
member and any entity required to be aggregated with a Participating
Company pursuant to regulations under Section 414(o) of the Code. The
Plans in this Trust from time to time shall be listed on Schedule "I"
attached hereto and made a part of this Agreement. "Participating
Company" shall mean the Sponsor or any Affiliated Company which adopts the
Trust.
(b) EFFECT ON ADOPTING COMPANY. When the Trust has been adopted
under any Plan of any Affiliated Company, such Affiliated Company shall
become a Participating Company under the Trust and shall be bound by the
decisions, actions and directions of the Sponsor, the Named Fiduciary and
the Administrator under or affecting this Agreement, and the Trustee shall
be fully protected. The Trustee shall not be required to give notice to
or obtain the consent of any Participating Company with respect to any
action to be taken by the Trustee pursuant to this Agreement, and the
Sponsor shall have the sole authority to enforce this Agreement on behalf
of any Participating Company.
(c) EQUITABLE SHARES. The Administrator shall maintain a separate
account reflecting the Equitable Share of each of the Plans, or parts
thereof, in this Trust. The Administrator shall account for contributions
and assets attributable to each of the Plans so that the assets
attributable to each of the Plans are, at all times, separately
determinable, and none of the assets attributable to one of the Plans can
be used to pay benefits under another. Notwithstanding the foregoing
provisions of this Section 11(c), Section 11(d) or any other provision of
this Agreement to the contrary, the Trustee shall be vested with legal
ownership of the assets comprising the Trust, and none of the Plans (or
any participant or beneficiary thereunder) shall have any claim or
interest in any specific asset of the Trust as a result of any manner of
accounting for any Plan's interest in the Trust (or participant's or
beneficiary's interest in such Plan). "Equitable Share" shall mean the
interest of any Plan in this Trust.
(d) WITHDRAWAL.
(i) PROCEDURE. Any Participating Company may, pursuant to
resolutions of its board of directors, at any time by written
instrument, duly executed, acknowledged and delivered to the Trustee,
the Named Fiduciary and the board of directors of the Sponsor,
withdraw from this Trust upon thirty (30) days' prior written notice
to the Named Fiduciary. Upon receipt of such notice of withdrawal,
the Named Fiduciary shall direct the Trustee to segregate the share of
assets of the Trust allocable to such Plan, or part thereof. The
Trustee shall turn over such assets to the trustee or trustees
designated by such withdrawing Participating Company as and when
directed by the Named Fiduciary.
(ii) PARTIAL WITHDRAWALS. If fewer than all of the participants
of a Plan are affected by the withdrawal, the Named Fiduciary shall
certify to the Trustee that portion of the Equitable Share of such
Plan attributable to the participants and their beneficiaries on whose
account such assets are to be segregated.
(iii) DISQUALIFICATION OF PLAN. The Named Fiduciary shall
promptly notify the Trustee if any Plan has been or is likely to be
disqualified under Section 401 of the Code. In that event, the
Equitable Share of such Plan shall be treated as a Plan withdrawn
pursuant to this Section 11(d).
(iv) NO DIVERSION OF FUNDS. In the event of the withdrawal of a
Plan, neither the segregation and transfer of the Trust assets upon
the withdrawal of a Plan, nor the execution of a new agreement and
declaration of trust by such withdrawing Plan, shall operate to permit
any part of the Trust to be used for or diverted to purposes other
than for the exclusive benefit of the participants of such Plan.
(v) TRANSFER TO QUALIFIED TRUST. The withdrawal provisions
contained in this Section 11 shall be applicable only if the
withdrawing Plan continues to cover its employees under such Plan or
under another plan qualified under Section 401(a) of the Code and
continues to fund its benefits under another trust qualified under
Section 501 of the Code. Otherwise, the termination provisions of
paragraph (vi) below shall apply.
(vi) TERMINATION. Upon any such termination, the Named Fiduciary
shall direct the Trustee to liquidate the Equitable Share of the Plan
under the Trust. After deducting estimated expenses for such
liquidation and the distribution thereof, the Trustee shall disburse
the proceeds thereof as and when directed by the Named Fiduciary.
Section 12. TERMINATION. This Agreement may be terminated at any time by
the Sponsor upon sixty (60) days' notice in writing to the Trustee. On
the date of the termination of this Agreement, the Trustee shall forthwith
transfer and deliver to such individual or entity as the Sponsor shall
designate, all cash and assets then constituting the Trust. If, by the
termination date, the Sponsor has not notified the Trustee in writing as
to whom the assets and cash are to be transferred and delivered, the
Trustee may bring an appropriate action or proceeding for leave to deposit
the assets and cash in a court of competent jurisdiction. The Trustee
shall be reimbursed by the Sponsor for all costs and expenses of the
action or proceeding including, without limitation, reasonable attorneys'
fees and disbursements.
Section 13. RESIGNATION, REMOVAL, AND TERMINATION NOTICES. All notices of
resignation, removal, or termination under this Agreement must be in
writing and mailed to the party to which the notice is being given by
certified or registered mail, return receipt requested, to the Sponsor,
c/o Xxx Xxxxxxxx, 0000 Xxxxx 00xx Xxxxxx, X.X. Xxx 00, Xxxx Xxxxx,
Xxxxxxxx 00000, and to the Trustee, c/o, Xxxx X. Xxxxxx, Fidelity
Investments, 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to such
other addresses as the parties have notified each other of in the
foregoing manner.
Section 14. DURATION. This Trust shall continue in effect without limit
as to time, subject, however, to the provisions of this Agreement relating
to amendment, modification, and termination thereof.
Section 15. AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified at any time and from time to time only by an instrument executed
by both the Sponsor and the Trustee. Notwithstanding the foregoing, to
reflect increased operating costs, the Trustee may once each calendar year
amend Schedule "B" without the Sponsor's consent upon seventy-five (75)
days' written notice to the Sponsor.
Section 16. GENERAL.
(a) EMPLOYMENT OF AFFILIATES AS AGENTS FOR TRUSTEE. The Sponsor
acknowledges and authorizes that the Trustee may employ its affiliates to
act as its agent in the performance of its responsibilities under this
Agreement. In particular, the Sponsor specifically acknowledges and
authorizes that the Trustee may employ Fidelity Investments Institutional
Operations Company or its successor to perform recordkeeping functions
under this Agreement. The expenses and compensation of any such agent
shall be paid by the Trustee out of its fees described in Schedule "B"
attached hereto.
(b) ENTIRE AGREEMENT. This Agreement contains all of the terms
agreed upon between the parties with respect to the subject matter hereof.
(c) WAIVER. No waiver by either party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other
or subsequent failure or refusal to so comply.
(d) SUCCESSORS AND ASSIGNS. The stipulations in this Agreement shall
inure to the benefit of, and shall bind, the successors and assigns of the
respective parties.
(e) PARTIAL INVALIDITY. If any term or provision of this Agreement
or the application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
(f) SECTION HEADINGS. The headings of the various sections and
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and shall not be deemed in
any manner to modify, explain, expand or restrict any of the provisions of
this Agreement.
(g) BENEFITS SUPPORTED ONLY BY TRUST. Any person having any claim
under any of the Plans will look solely to the Equitable Share of such
Plan in the Trust for satisfaction. In no event will the Participating
Companies or any of their officers, employees, agents, members of their
boards of directors, the original Trustee, any successor trustees, the
Named Fiduciary, the Administrator or any other fiduciary of any of the
Plans be liable in their individual capacities to any person whomsoever
under the provisions of any of the Plans and this Trust nor do any of them
guarantee in any manner the payment of benefits hereunder.
Section 17. GOVERNING LAW.
(a) This Agreement is being made in the Commonwealth of
Massachusetts, and the Trust shall be administered as a Massachusetts
trust. The validity,, construction, effect, and administration of this
Agreement shall be governed by and interpreted in accordance with the laws
of the Commonwealth of Massachusetts, except to the extent those laws are
superseded under section 514 of ERISA.
(b) The Trustee is not a party to the Plans, and in the event of any
conflict between the provisions of the Plans and the provisions of this
Agreement which affects the Trustee's duties under this Agreement, the
provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the day and year first
above written.
ARKANSAS BEST CORPORATION
Attest:
By:
Secretary Vice President
FIDELITY MANAGEMENT TRUST COMPANY
Attest:
By:
Clerk Executive Vice President
DII0CD52 25879-1
AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
ARKANSAS BEST CORPORATION
THIS AMENDMENT, dated as of the first day of January, 1992, by and between
Fidelity Management Trust Company (the "Trustee") and Arkansas Best
Corporation (the "Sponsor");
W I T N E S S E T H:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated January 1, 1990, with regard to the Arkansas Best Corporation
Employees' Investment Plan and the ABC Treadco, Inc. Employees' Investment
Plan (collectively, the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said trust
agreement as provided for in Section 13 thereof;
Now therefore, in consideration of the above premises the Trustee and the
Sponsor hereby amend the trust agreement by:
(1) Amending Schedule "A" by adding the following at the end of the list
of plan investment options:
Fidelity Growth & Income Portfolio
Fidelity U.S. Equity Index Portfolio
(2) Amending Schedule "C" by adding the following at the end of the list
of plan investment options:
Fidelity Growth & Income Portfolio
Fidelity U.S. Equity Index Portfolio
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Amendment
to be executed by their duly authorized officers effective as of the day and
year first above written.
ARKANSAS BEST CORPORATION FIDELITY MANAGEMENT TRUST
COMPANY
By: By:
Date Senior Vice President Date
DII0CD52 25879-1
SECOND AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
ARKANSAS BEST CORPORATION
THIS AMENDMENT, dated as of the thirteenth day of March, 1992, by and
between Fidelity Management Trust Company (the "Trustee") and Arkansas Best
Corporation (the "Sponsor");
W I T N E S S E T H:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated January 1, 1990, with regard to the Arkansas Best Corporation
Employees' Investment Plan and the ABC Treadco, Inc. Employees' Investment
Plan (collectively, the "Plans"); and
WHEREAS, the Sponsor has informed the Trustee that the ABC Treadco, Inc.
Employees' Investment Plan has changed its name to the Treadco, Inc.
Employees' Investment Plan; and
WHEREAS, the Trustee and the Sponsor now desire to amend said trust
agreement as provided for in Section 15 thereof;
Now therefore, in consideration of the above premises the Trustee and the
Sponsor hereby amend the trust agreement to be effective April 1, 1992 by:
(1) Amending Schedule "I" to read as follows:
PARTICIPATING PLANS
Arkansas Best Corporation Employees' Investment Plan
Treadco, Inc. Employees' Investment Plan
(2) Amending Schedule "B" by reducing the annual participant fee as
attached.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Amendment
to be executed by their duly authorized officers effective as of April 1,
1992.
ARKANSAS BEST CORPORATION FIDELITY MANAGEMENT TRUST
COMPANY
By: By:
Date Senior Vice President Date
DII0CD52 25879-1
THIRD AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
ARKANSAS BEST CORPORATION
THIS THIRD AMENDMENT, dated as of the 30th day of September, 1993, by and
between Fidelity Management Trust Company (the "Trustee") and Arkansas Best
Corporation ("the Sponsor").
W I T N E S S E T H:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated January 1, 1990, with regard to the Arkansas Best Corporation
Employees' Investment Plan and the Treadco, Inc. Employees' Investment Plan
(collectively, and individually, the "Plan" or the "Plans"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said trust
agreement as provided for in Section 15 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
Sponsor hereby amend the trust agreement by:
(1) Amending the first WHEREAS clause to read as follows:
WHEREAS, the Sponsor wishes to establish two trusts: one to hold the
assets attributable to the Arkansas Best Corporation Common Stock
for which First National Bank of Fort Xxxxx serves as trustee; and
the other, for which Fidelity Management Trust Company Serves as
trustee, a master trust to hold and invest the remaining plan assets
under the Plan for the exclusive benefit of participants in the Plan
and their beneficiaries; and
(2) Amending the third WHEREAS clause to read as follows:
WHEREAS, the Trustee is willing to hold and invest the aforesaid
plan assets, with the exception of the Arkansas Best Corporation
Common Stock, in trust among several investment options selected by
the Named Fiduciary; and
(3) Amending Section 4(b) by inserting a new Section 4(b)(iii) and
renumbering the existing subsections accordingly to read as follows:
(iii) equity securities issued by the Sponsor or an affiliate which
are publicly traded and which are "qualifying employer securities"
within the meaning of Section 407(d)(5) of ERISA ("Sponsor
Stock"), . . .
(4) Inserting a new Section 4(i), Sponsor Stock, for which First
National Bank of Fort Xxxxx serves as trustee to read as follows:
Section 4(i). SPONSOR STOCK FOR WHICH FIRST NATIONAL BANK OF FORT
XXXXX SERVES AS TRUSTEE. Transactions involving Sponsor Stock shall
be executed in accordance with the Operating Procedures attached
hereto as Schedule "J."
(5) Amending and restating Schedules "A" and "C" as attached.
(6) Amending and restating Schedule "B" as attached.
(7) Amending and restating Schedule "G" as attached.
(8) Adding Schedule "J," Stock Operating Procedures, as attached.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Third
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
ARKANSAS BEST CORPORATION FIDELITY MANAGEMENT TRUST
COMPANY
By: By:
Date Date
DII0CD52 25879-1
FOURTH AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
ARKANSAS BEST CORPORATION
THIS FOURTH AMENDMENT, dated as of the 1st day of April, 1994, by and
between Fidelity Management Trust Company (the "Trustee") and Arkansas Best
Corporation ("the Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated January 1, 1990, with regard to the Arkansas Best Corporation
Employees' Investment Plan and the Treadco, Inc. Employees' Investment Plan
(collectively and individually, the "Plan" or the "Plans"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said trust
agreement as provided for in Section 15 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
Sponsor hereby amend the trust agreement by:
(1) Amending the Trust to reflect, effective January 1, 1994, that the
Treadco, Inc. Employees' Investment Plan will no longer be a
Participating Plan under this Agreement.
(2) Changing the name of the Trust to be the "Arkansas Best Corporation
and Affiliates Employees' Investment Trust."
(3) Amending the first WHEREAS clause, as previously amended on
September 30, 1993, to read as follows:
WHEREAS, the Sponsor wishes to establish a trust to hold and
invest plan assets under the Plan for the exclusive benefit of
participants and their beneficiaries; and
(4) Deleting the last sentence of Section 1.
(5) Amending the first sentence of Section 4(b)(i) to read as follows:
(i) Subject to paragraphs (b), (c), (d) and (i) of this Section 4.
(6) Amending and restating Section Q), in its entirety, to read as
follows:
(i) SPONSOR STOCK. Trust investments in Sponsor Stock shall be
made via the Arkansas Best Corporation Common Stock Fund. In order
to provide the necessary monies for exchanges or redemptions from
the Arkansas Best Corporation Common Stock Fund, the Sponsor agrees
that the Plan shall maintain a liquidity reserve allocated to such
investment option in the Fidelity Institutional Cash Portfolios:
Money Market Portfolio: Class A or such other Mutual Fund or
commingled money market pool as agreed to by the Sponsor and
Trustee. A cash target range shall be determined in conjunction
with the Sponsor for the cash portion of the Arkansas Best
Corporation Common Stock Fund. The Trustee is responsible for
ensuring that the actual cash held in the Arkansas Best Corporation
Common Stock Fund falls within the agreed upon range over time.
Each participant's proportional interest in the Arkansas Best
Corporation Common Stock Fund shall be measured in units of
participation, rather than shares of Sponsor Stock. Such units
shall represent a proportionate interest in all of the assets of the
Arkansas Best Corporation Common Stock Fund, which includes shares
of Sponsor Stock, short-term investments and at times, receivables
for dividends and/or Sponsor Stock sold and payables for Sponsor
Stock purchased. A Net Asset Value ("NAV") per unit will be
determined daily for each unit outstanding of the Arkansas Best
Corporation Common Stock Fund. The return earned by the Arkansas
Best Corporation Common Stock Fund will represent a combination of
the dividends paid on the shares of Sponsor Stock held by the
Arkansas Best Corporation Common Stock Fund, gains or losses
realized on sales of Sponsor Stock, appreciation or depreciation in
the market price of those shares owned, and interest on the short-
term investments held by the Arkansas Best Corporation Common Stock
Fund. Dividends received by the Arkansas Best Corporation Common
Stock Fund are reinvested in additional shares of Sponsor Stock.
Investments in Sponsor Stock shall be subject to the following
limitations:
(i) ACQUISITION LIMIT. Pursuant to the Plan, the Trust may
be invested in Sponsor Stock to the extent necessary to comply with
investment directions under Section 4(c) of this Agreement, subject
to the liquidity reserve requirements of this Section 4(i).
(ii) FIDUCIARY DUTY. The Sponsor shall continually monitor
the suitability under the fiduciary duty rules of section 404(a)(1)
of ERISA (as modified by section 404(a)(2) of ERISA) of offering
Sponsor Stock as an option for participant directed investments
under the Plan. The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from the directions of the
Sponsor with respect to the acquisition and holding of Sponsor
Stock, unless it is clear on their face that the actions to be taken
under those directions would be prohibited by the foregoing
fiduciary duty rules or would be contrary to the terms of the Plan
or this Agreement. To the extent provided by Section 404(c) of
ERISA, neither the Trustee nor any other fiduciary shall be liable
for any loss, or by reason of any breach, which results from a
participant's exercise of control over the assets in his accounts.
(iii) EXECUTION OF PURCHASES AND SALES. (A) Purchases and
sales of Sponsor Stock (other than for exchanges) shall be made on
the open market on the date on which the Trustee receives from the
Sponsor in good order all information and documentation necessary to
accurately effect such purchases and sales in accordance with
participant directions (or, in the case of purchases, the subsequent
date on which the Trustee has received a wire transfer of the funds
necessary to make such purchases). Exchanges of Sponsor Stock shall
be made in accordance with the Telephone Exchange Guidelines
attached hereto as Schedule "G." Such general rules shall not apply
in the following circumstances:
(1) If the Trustee is unable to determine the number of
shares required to be purchased or sold on such day; or
(2) If the Trustee is unable to purchase or sell the
total number of shares required to be purchased or sold on such day
as a result of market conditions; or
(3) if the Trustee is prohibited by the Securities and
Exchange Commission, the New York Stock Exchange, or any other
regulatory body from purchasing or selling any or all of the shares
required to be purchased or sold on such day.
In the event of the occurrence of the circumstances described in
(1), (2), or (3) above, the Trustee shall purchase or sell such
shares as soon as possible thereafter and shall determine the price
of such purchases or sales to be the average purchase or sales price
of all such shares purchased or sold, respectively. The Trustee may
follow directions from the Named Fiduciary to deviate from the above
purchase and sale procedures provided that such direction is made in
writing by the Named Fiduciary.
(B) USE OF AN AFFILIATED BROKER. The Sponsor hereby
authorizes the Trustee to use Fidelity Brokerage Services, Inc.
("FBSI") to provide brokerage services in connection with any
purchase or sale of Sponsor Stock in accordance with directions
from Plan participants. FBSI shall execute such directions
directly or through its affiliate. National Financial Services
Company ("NFSC"). The provision of brokerage services shall be
subject to the following:
(1) As consideration for such brokerage services, the
Sponsor agrees that FBSI shall be entitled to remuneration under this
authorization provision in the amount of three and one-half cents ($.035)
commission on each share of Sponsor Stock. Any change in such
remuneration may be made only by a signed agreement between Sponsor and
Trustee.
(2) Following the procedures set forth in Department of
Labor Prohibited Transaction Class Exemption 86-128, the Trustee will
provide the Sponsor with the following documents: (1) a description of
FBSI's brokerage placement practices; (2) a copy of PTCE 86-128; and (3) a
form by which the Sponsor may terminate this authorization to use a broker
affiliated with the Trustee. The Trustee will provide the Sponsor with
this termination form annually, as well as an annual report which
summarizes all securities transaction-related charges incurred by the
Plan, and the Plan's annualized turnover rate.
(3) Any successor organization of FBSI, through
reorganization, consolidation, merger or similar transactions, shall, upon
consumption of such transaction, become the successor broker in accordance
with the terms of this authorization provision.
(4) The Trustee and FBSI shall continue to rely on this
authorization provision until notified to the contrary. The Sponsor
reserves the right to terminate this authorization upon sixty (60) days
written notice to FBSI (or its successor) and the Trustee, in accordance
with Section 11 of this Agreement.
(iv) SECURITIES LAW REPORTS. The Sponsor shall be responsible for
filing all reports required under Federal or state securities laws with
respect to the Trust's ownership of Sponsor Stock, including, without
limitation, any reports required under section 13 or 16 of the Securities
Exchange Act of 1934, and shall immediately notify the Trustee in writing
of any requirement to stop purchases mr sales of Sponsor Stock pending the
Ming of any report. The Trustee shall provide to the Sponsor such
information on the Trust's ownership of Sponsor Stock as the Sponsor may
reasonably request in order to comply with Federal or state securities
laws.
(v) VOTING AND TENDER OFFERS. Notwithstanding any other provision
of this Agreement the provisions of this Section shall govern the voting
and tendering of Sponsor Stock. The Sponsor, after consultation with the
Trustee, shall provide and pay for all printing, mailing, tabulation and
other costs associated with the voting and tendering of Sponsor Stock.
(A) VOTING.
(1) When the issuer of the Sponsor Stock files
preliminary proxy solicitation materials with the Securities and Exchange
Commission, the Sponsor shall cause a copy of all materials to be
simultaneously sent to the Trustee. Based on these materials the Trustee
shall prepare a voting instruction form. At the time of mailing of notice
of each annual or special stockholders' meeting of the issuer of the
Sponsor Stock, the Sponsor shall cause a copy of the notice and all proxy
solicitation materials to be sent to each Plan participant with an
interest in Sponsor Stock held in the Trust, together with the foregoing
voting instruction form to be returned to the Trustee or its designee.
The form shall show the proportional interest in the number of full and
fractional shares of Sponsor Stock credited to the participant's accounts
held in the Arkansas Best Corporation Common Stock Fund as of the record
date. The Sponsor shall provide the Trustee with a copy of any materials
provided to the participants and shall certify to the Trustee that the
materials have been mailed or otherwise sent to participants.
(2) Each participant with an interest in the Arkansas
Best Corporation Common Stock Fund shall have the right, acting in the
capacity of a named fiduciary within the meaning of section 402 of ERISA,
to direct the Trustee as to the manner in which the Trustee is to vote
(including not to vote) that number of shares of Sponsor Stock reflecting
such participant's proportional interest in the Arkansas Best Corporation
Common Stock Fund (both vested and unvested). Directions from a
participant to the Trustee concerning the voting of Sponsor Stock shall be
communicated in writing, or by mailgram or similar means. These
individual directions shall be held in confidence by the Trustee and shall
not be divulged to the Sponsor, or any officer or employee thereof, or any
other person. Upon its receipt of the directions, the Trustee shall vote
the shares of Sponsor Stock reflecting the participant's proportional
interest in the Arkansas Best Corporation Common Stock Fund as directed by
the participant. The Trustee shall not vote shares of Sponsor Stock
reflecting a participant's proportional interest in the Arkansas Best
Corporation Common Stock Fund for which it has received no direction from
the participant.
(3) The Trustee shall vote that number of shares of
Sponsor Stock not credited to participants' accounts which is determined
by multiplying the total number of shares not credited to participants'
accounts by a fraction of which the numerator is the number of shares of
Sponsor Stock reflecting such participants' proportional interest in the
Arkansas Best Corporation Common Stock Fund credited to participants'
accounts for which the Trustee received voting directions from
participants and of which the denominator is the total number of shares of
Sponsor Stock reflected in the proportional interests of all participants
under the Plan. The Trustee shall vote those shares of Sponsor Stock not
credited to participants' accounts which are to be voted by the Trustee
pursuant to the foregoing formula in the same proportion on each issue as
it votes those shares reflecting participants' proportional interest in
the Arkansas Best Corporation Common Stock Fund for which it received
voting directions from participants. The Trustee shall not vote the
remaining shares of Sponsor Stock not credited to participants' accounts.
(B) TENDER OFFERS.
(1) Upon commencement of a tender offer for any securities held in
the Trust that are Sponsor Stock. The Sponsor shall notify each
Plan participant with an interest in such Sponsor Stock of the tender
offer and utilize its best efforts to timely distribute or cause to be
distributed to the participant the same information that is distributed to
shareholders of the issuer of Sponsor Stock in connection with the tender
offer, and, after consulting with the Trustee, shall provide and pay for a
means by which the participant may direct the Trustee whether or not to
tender the Sponsor Stock reflecting such participants proportional
interest in the Arkansas Best Corporation Common Stock Fund (both vested
and unvested). The Sponsor shall provide the Trustee with a copy of any
material provided to the participants and shall certify to the Trustee
that the materials have been mailed or otherwise sent to participants.
(2) Each participant shall have the right to direct the
Trustee to tender or not to tender some or all of the shares of
Sponsor Stock reflecting such participant's proportional interest in
the Arkansas Best Corporation Common Stock Fund (both vested and
unvested). Directions from a participant to the Trustee concerning
the tender of Sponsor Stock shall be communicated in writing, or by
mailgram or such similar means as is agreed upon by the Trustee and
the Sponsor under the preceding paragraph. These directions shall be
held in confidence by the Trustee and shall not be divulged to the
Sponsor, or any officer or employee thereof, or any other person
except to the extent that the consequences of such directions are
reflected in reports regularly communicated to any such persons in the
ordinary course of the performance of the Trustee's services
hereunder. Me Trustee shall tender or not tender shares of Sponsor
Stock as directed by the participant. The Trustee shall not tender
shares of Sponsor Stock reflecting a participant's proportional
interest in the Arkansas Best Corporation Common Stock Fund for which
it has received no direction from the participant.
(3) The Trustee shall tender that number of shares of
Sponsor Stock not credited to participants' accounts which is
determined by multiplying the total number of shares of Sponsor Stock
not credited to participants' accounts by a fraction of which the
numerator is the number of shares of Sponsor Stock reflecting
participants' proportional interests in the Arkansas Best Corporation
Common Stock Fund for which the Trustee has received directions from
participants to tender (which directions have not been withdrawn as of
the date of this determination and of which the denominator is the
total number of shares of Sponsor Stock reflected in the proportional
interests of all participants under the Plan.
(4) A participant who has directed the Trustee to tender
some or all of the shares of Sponsor Stock reflecting the
participant's proportional interest in the Arkansas Best Corporation
Common Stock Fund may, at any time prior to the tender offer
withdrawal date, direct the Trustee to withdraw some or all of the
tendered shares reflecting the participant's proportional interest,
and the Trustee shall withdraw the directed number of shares from the
tender offer prior to the tender offer withdrawal deadline. Prior to
the withdrawal deadline, if any shares of Sponsor Stock not credited
to participants' accounts have been tendered, the Trustee shall
redetermine the number of shares of Sponsor Stock that would be
tendered under Section 4(e)(v)(B)(3) if the date of the foregoing
withdrawal were the date of determination, and withdraw from the
tender offer the number of shares of Sponsor Stock not credited to
participants' accounts necessary to reduce the amount of tendered
Sponsor Stock not credited to participants' accounts to the amount so
redetermined. A participant shall not be limited as to the number of
directions to tender or withdraw that the participant may give to the
Trustee.
(5) A direction by a participant to the Trustee to
tender shares of Sponsor Stock reflecting the participant's
proportional interest in the Arkansas Best Corporation Common Stock
Fund shall not be considered a written election under the Plan by the
participant to withdraw, or have distributed, any or all of his
withdrawable shares. The Trustee shall credit to each proportional
interest of the participant from which the tendered shares were taken
the proceeds received by the Trustee in exchange for the shares of
Sponsor Stock tendered from that interest. Pending receipt of
directions (through the Administrator) from the participant or the
Named Fiduciary, as provided in the Plan, as to which of the remaining
investment options the proceeds should be invested in, the Trustee
shall invest the proceeds in the Mutual Fund described In Schedule
"C."
(vi) SHARES CREDITED. For all purposes of this Section,
the number of shares of Sponsor Stock deemed "credited" or "reflected"
to a participant's proportional interest shall be determined as of the
last preceding valuation date. The trade date is the date the
transaction is valued.
(vii) GENERAL. With respect to all rights other than
the right to vote, the right to tender, and the right to withdraw
shares previously tendered, in the case of Sponsor Stock credited to a
participant's proportional interest in the Arkansas Best Corporation
Common Stock Fund, the Trustee shall follow the directions of the
participant and if no such directions are received, the directions of
the Named Fiduciary. The Trustee shall have no duty to solicit
directions from participants. With respect to all rights other than
the right to vote and the right to tender, in the case of Sponsor
Stock not credited to participants' accounts, the Trustee shall follow
the directions of the Named Fiduciary.
(viii) CONVERSION. All provisions in this Section 4(i)
shall also apply to any securities received as a result of a
conversion of Sponsor Stock.
(7) Amending and restating Schedule "B" as attached.
(8) Amending and restating Schedule "G" as attached.
(9) Deleting Schedule "J," Stock Operating Procedures.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this
Fourth Amendment to be executed by their duly authorized officers
effective as of the day and year first above written.
ARKANSAS BEST CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By: By:
Date Senior Vice President Date
Title:
DII0CD52 25879-1
FIFTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
ARKANSAS BEST CORPORATION
THIS FIFTH AMENDMENT, dated as of the first day of November, 1995, by and
between Fidelity Management Trust Company (the "Trustee") and Arkansas Best
Corporation (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated January 1, 1990, with regard to the Arkansas Best Corporation
Employees' Investment Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said trust
agreement as provided for in Section 15 thereof;
NOW, THEREFORE, in consideration of the above premises the Trustee and
the Sponsor hereby amend the trust agreement by:
(1) Inserting a new WHEREAS clause to read as follows:
WHEREAS, effective October 2, 1995, the sponsor has directed
the Trustee to accept the assets of the Carolina Freight
Corporation Employee Savings and Protection Plan and the Complete
Leasing Concepts, Inc. Employee Savings and Profit Sharing Plan and
to recordkeep such assets as a division of the Arkansas Best
Corporation Employees' Investment Plan in accordance with this
Trust Agreement.
(2) Restating Schedule "I" as follows:
SCHEDULE "I"
PARTICIPATING PLANS
Arkansas Best Corporation Employees' Investment Plan
IDI 401(k) Savings Plan
Carolina Freight Corporation Employee Savings and Protection Plan
Complete Leasing Concepts, Inc. Employee Savings and Profit Sharing
Plan
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Fifth
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
ARKANSAS BEST CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
By: ______________________________ By:____________________________________
Title: _____________________________ Title:
___________________________________
Date: _____________________________ Date:____________________________________
DII0CD52 25879-1
