Exhibit 99.2
CNF INC.
2005 DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
Effective January 1, 2005
CNF INC.
2005 DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
TABLE OF CONTENTS
Page
Preamble ........................................................1
Article 1 Definitions.............................................1
1.1 Account Balance....................................1
1.2 Annual Deferral Amount.............................1
1.3 Beneficiary........................................1
1.4 Beneficiary Designation Form.......................1
1.5 Board..............................................1
1.6 Change in Control..................................1
1.7 Claimant...........................................2
1.8 Code...............................................2
1.9 Committee..........................................2
1.10 Company............................................2
1.11 Director...........................................2
1.12 Election Form......................................2
1.13 Fixed Date Distribution............................2
1.14 Participant........................................2
1.15 Plan...............................................2
1.16 Plan Entry Date....................................2
1.17 Plan Year..........................................2
1.18 Spouse.............................................2
1.19 Termination Benefit................................2
1.20 Termination of Service.............................2
1.21 Unforeseeable Emergency............................2
Article 2 Eligibility, Enrollment.................................3
2.1 Eligibility........................................3
2.2 Enrollment Requirement.............................3
2.3 Commencement of Participation......................3
Article 3 Deferral Commitments/Returns............................3
3.1 Permissible Deferrals..............................3
3.2 Election to Defer..................................3
3.3 Withholding of Deferral Amounts....................3
3.4 Returns Prior to Distribution......................3
3.5 Date on Which Crediting Occurs.....................4
3.6 Returns and Installment Distributions..............4
3.7 Statement of Accounts..............................4
Article 4 Distribution to Participant.............................4
4.1 Fixed Date Distribution............................4
4.2 Withdrawal Payout/Suspensions for Unforeseeable
Emergencies........................................5
4.3 Termination Benefit................................5
4.4 Payment of Termination Benefit.....................5
Article 5 Distribution to Beneficiary.............................6
5.1 Payment............................................6
5.2 Beneficiary Designation............................6
5.3 Spousal Consent....................................6
5.4 No Beneficiary Designation.........................6
5.5 Doubt as to Beneficiaries..........................6
5.6 Discharge of Obligations...........................7
Article 6 Termination, Amendment or Modification..................7
6.1 Termination........................................7
6.2 Amendment..........................................7
6.3 Effect of Payment..................................7
Article 7 Administration..........................................7
7.1 Committee Duties...................................7
7.2 Agents.............................................7
7.3 Binding Effect of Decisions........................8
7.4 Indemnification....................................8
Article 8 Claims Procedures.......................................8
8.1 Presentation of Claim..............................8
8.2 Notification of Decision...........................8
8.3 Review of a Denied Claim...........................9
8.4 Decision on Review.................................9
8.5 Legal Action.......................................9
Article 9 Miscellaneous...........................................9
9.1 Unsecured General Creditor.........................9
9.2 Company's Liability................................9
9.3 Nonassignability..................................10
9.4 Furnishing Information............................10
9.5 Captions..........................................10
9.6 Governing Use.....................................10
9.7 Notice............................................10
9.8 Successors........................................11
9.9 Spouse's Interest.................................11
9.10 Incompetent.......................................11
9.11 Saving Clause.....................................11
9.12 Legal Fees To Enforce Rights......................11
9.13 Payment of Withholding............................11
9.14 Coordination with Other Benefits..................12
1
CNF INC.
2005 DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
Preamble
The purpose of this Plan is to enhance the motivational value of the fees
paid to non-employee directors, who contribute materially to the continued
growth, development and future business success of the Company and its
subsidiaries, by providing them the opportunity to defer cash compensation.
The Plan is intended to aid the Company and its subsidiaries in attracting
and retaining directors and give them an incentive to increase the
profitability of the Company and its subsidiaries.
The Company maintains this Plan pursuant to Election Forms completed by
Directors in advance of each Plan Year. In order to provide more complete
documentation for the Plan, the Company adopts this Plan effective January 1,
2005.
ARTICLE 1
Definitions
For purposes hereof, unless otherwise clearly apparent from the context, the
following phrases or terms shall have the following indicated meanings:
1.1 "Account Balance" means the sum of (i) the total of a Participant's
Annual Deferral Amounts, plus (ii) the return credited in accordance
with the Plan, reduced (iii) by all distributions made in accordance
with the terms and conditions of this Plan. This account shall be a
bookkeeping entry only and shall be utilized solely as a device for the
measurement and determination of the amounts to be paid to a Participant
pursuant to this Plan.
1.2 "Annual Deferral Amount" means that portion of a Participant's annual
retainer fee, meeting fees, and chair fees, if applicable, that a
Participant elects to have and is deferred, in accordance with Article
3, for any one Plan Year. In the event of death or Termination of
Service prior to the end of a Plan Year, such year's Annual Deferral
Amount shall be the actual amount withheld prior to such event.
1.3 "Beneficiary" means one or more persons, trusts, estates or other
entities, designated in accordance with Article 5, that are entitled to
receive benefits under this Plan upon the death of a Participant.
1.4 "Beneficiary Designation Form" means the form established from time to
time by the Committee that a Participant completes, signs and returns to
the Committee to designate one or more Beneficiaries.
1.5 "Board" means the Board of Directors of the Company.
1.6 "Change in Control" means the occurrence of an event described in Code
Section 409A(a)(2)(v).
1.7 "Claimant" means any Participant or Beneficiary of a deceased
Participant who makes a claim for determination under Section 8.1.
1.8 "Code" means the Internal Revenue Code of 1986, as amended.
1.9 "Committee" means the Director Affairs Committee of the Board or its
delegates.
1.10 "Company" means CNF Inc., a Delaware corporation.
1.11 "Director" means a non-employee member of the Board.
1.12 "Election Form" means the form established from time to time by the
Committee that a Participant completes, signs and returns to the
Committee to make an election under the Plan.
1.13 "Fixed Date Distribution" means a distribution of an Annual Deferral
Amount, plus returns credited in accordance with Section 3.4, on a
future January specified by the Participant in accordance with Section
4.1.
1.14 "Participant" for any Plan Year means any Director who commences
participation in accordance with Article 2.
1.15 "Plan" means the Company's 2005 Deferred Compensation Plan for Non-
Employee Directors, evidenced by this instrument, as amended from time
to time.
1.16 "Plan Entry Date" means January 1 of each Plan Year.
1.17 "Plan Year" means the period beginning on January 1 of each year and
continuing through December 31 of that year.
1.18 "Spouse" has the meaning set forth in the Defense of Marriage Act of
1996 (P.L. 104-199), as amended. (As of January 1, 2005, this
definition is a legal union between one man and one woman as husband and
wife.)
1.19 "Termination Benefit" means the benefit set forth in Section 4.3.
1.20 "Termination of Service" means separation from service, as that term is
used in Code Section 409A(a)(2)(A)(i).
1.21 "Unforeseeable Emergency" means a severe financial hardship to the
Participant resulting from an illness or accident of the Participant,
the Participant's Spouse, or a dependent (as defined in Code Section
152(a)) of the Participant, loss of the Participant's property due to
casualty, or other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant.
ARTICLE 2
Eligibility, Enrollment
2.1 Eligibility. Participation in the Plan shall be limited to Directors
who are not employed by the Company or any member of the Company's
controlled group of corporations.
2.2 Enrollment Requirement. The Committee shall establish from time to time
such enrollment requirements as it determines in its sole discretion are
necessary.
2.3 Commencement of Participation. Provided a Director has met all
enrollment requirements set forth by the Committee, the Director may
commence participation in the Plan on the Plan Entry Date that
immediately follows the Director's election to participate in the Plan.
ARTICLE 3
Deferral Commitments/Returns
3.1 Permissible Deferrals. A Participant may elect to defer for each Plan
Year either of the following:
(a) Minimum. The annual retainer portion of the Participant's Director
fees payable in the Plan Year.
(b) Maximum. The annual retainer and all meeting fees, plus all chair
fees, if applicable, payable in the Plan Year.
3.2 Election to Defer. The Participant shall make a deferral election by
delivering to the Committee a completed and signed Election Form prior
to the intended Plan Entry Date. For each succeeding Plan Year, a new
Election Form must be delivered to the Committee, in accordance with the
rules set forth above. If the Election Form is not delivered prior to
the Plan Entry Date for a Plan Year, no Annual Deferral Amount shall be
deferred for that Plan Year.
3.3 Withholding of Deferral Amounts. For each Plan Year, the Annual
Deferral Amount shall be withheld at the time or times the Participant's
Director fees otherwise would be paid to the Participant.
3.4 Returns Prior to Distribution. Prior to any distribution of benefits
under Articles 4 or 5, returns shall be credited to a Participant's
Account Balance and compounded quarterly commencing as of the time
withheld according to Section 3.3. The rate of return on the Account
Balance shall be the published prime rate of the Bank of America N.T. &
S.A. as of the last day of each calendar quarter. In the event of death
or a Termination of Service prior to the end of a calendar quarter, that
calendar quarter's return will be calculated using a fraction of a full
calendar quarter's return, based on the number of days the Participant
was a Director during the calendar quarter prior to the occurrence of
such event.
3.5 Date on Which Crediting Occurs. Account Balances will be credited with
returns in accordance with Section 3.4 up to the date of distribution
for a lump sum payment and up to the first date of distribution for
installment payments. For purposes of crediting subsequent returns in
the event that installment payments are made, the Account Balance shall
be reduced as of the day on which the distribution is made.
3.6 Returns and Installment Distributions. In the event a benefit is paid
in installments, a Participant's unpaid Account Balance shall be
credited as follows:
(a) Crediting. As of the last day of each calendar quarter, the
undistributed Account Balance shall be credited with a return equal
to the published prime rate of the Bank of America N.T. & S. A. as
of the last day of such calendar quarter. Returns shall start to
accrue under this Section 3.6 as of the date that returns cease to
accrue under Section 3.4 above.
(b) Installments. The installment payments shall be determined by
dividing the Participant's Account Balance at the time of the
commencement of the installment payments by the number of payments
over the installment period. Each payment determined above will be
considered the principal portion of the installment payment. In
addition, each installment payment will include a return calculated
for the preceding year using the rate determined in Section 3.6(a)
above. Installment payments shall commence in the January
following such Participant's Termination of Service. All additional
installment payments shall be paid in January of succeeding years.
3.7 Statement of Accounts. The Committee shall send to each Participant,
within 120 days after the close of each Plan Year, a statement in such
form as the Committee deems desirable setting forth the amount of the
Participant's Account Balance.
ARTICLE 4
Distribution to Participant
4.1 Fixed Date Distribution.
(a) In connection with each election to defer an Annual Deferral
Amount, a Participant may, subject to (b), elect to receive a
distribution from the Plan with respect to that Annual Deferral
Amount in a January one or more years after the Plan Year of
deferral and prior to Termination of Service. This Fixed Date
Distribution shall be an amount that is equal to the sum of the
Annual Deferral Amount and returns credited in accordance with
Section 3.4 above. The year in which the Fixed Date Distribution
is made or commences shall be elected at the time of the election
to defer the Annual Deferral Amount and shall not be changed. The
Fixed Date Distribution shall be paid in a lump sum or annual
installments over a period of up to five years, as determined in
accordance with the rules in Section 4.4.
(b) If a Participant who has elected one or more Fixed Date
Distributions has a Termination of Service before the start of the
Plan Year preceding the January chosen by the Participant for such
Fixed Date Distribution to be made or commence, the Participant's
Account Balance shall be paid at the time and in the form elected
by the Participant in accordance with Section 4.4 and not as the
Fixed Date Distribution.
4.2 Withdrawal Payout/Suspensions for Unforeseeable Emergencies. If the
Participant experiences an Unforeseeable Emergency, the Participant may
petition the Committee to (i) suspend any deferrals required to be made
by a Participant and/or (ii) receive a partial or full payout from the
Plan. The Committee may, in its sole discretion, accept or deny such
petition. Any suspension or payout shall not exceed the lesser of the
Participant's Account Balance, calculated as if such Participant were
receiving a Termination Benefit, or the amount necessary to satisfy such
Unforeseeable Emergency plus amounts necessary to pay taxes reasonably
anticipated as a result of the distribution, after taking into account
the extent to which such hardship is or may be relieved through
reimbursement or compensation by insurance or otherwise or by
liquidation of the Participant's assets (to the extent the liquidation
of such assets would not itself cause severe financial hardship). If
the petition for a suspension and/or payout is approved, suspension
shall take effect upon the date of approval and any payout shall be made
within 60 days of the date of approval.
4.3 Termination Benefit. Upon a Participant's Termination of Service, the
Participant shall receive a Termination Benefit which shall be equal to
the Participant's Account Balance determined as of the date of the
Termination of Service.
4.4 Payment of Termination Benefit. A Participant may elect on the Election
Form prior to the beginning of each Plan Year to receive the Termination
Benefit for such Plan Year in a lump sum or in annual installments over
a period of up to five years. The lump sum payment or the first
installment shall be made in January of the year following the Plan Year
in which the Termination of Service occurs. For purposes of payment,
the Participant's Account Balance shall be divided into subaccounts, one
for each year elected by the Participant. Notwithstanding the foregoing
-
(a) Payment shall be made in a lump sum as follows in lieu of any
different form provided on the Election Form then in effect:
(i) If the Participant incurs a Termination of Service within one
year after a Change in Control, the Termination Benefit shall
be paid in a lump sum within 20 days of the Termination of
Service.
(ii) If the Participant's Termination Benefit is under $25,000 on
the date of Termination of Service, such portion shall be paid
in a lump sum to the Participant in the January following the
Plan Year of Termination of Service.
(b) If the Participant is a specified employee, the lump sum may not be
paid, and installments may not commence before the date which is 6
months after the date of Termination of Service (or, if earlier,
the date of death of the Participant). For purposes of the
preceding sentence, a specified employee is a key employee as
defined in Code Section 416(i) of a corporation any stock in which
is publicly traded on an established securities market or
otherwise.
ARTICLE 5
Distribution to Beneficiary
5.1 Payment. If a Participant dies with an Account Balance, the total
Account Balance shall be paid to the Participant's Beneficiary within 90
days after the date of death.
5.2 Beneficiary Designation. A Participant shall designate a Beneficiary by
completing and signing the Beneficiary Designation Form, and submitting
it to the Committee. Subject to Section 5.3, a Participant shall have
the right to change a Beneficiary at any time without the consent of the
Beneficiary, by completing, signing and otherwise complying with the
terms of the Beneficiary Designation Form and the Committee's rules and
procedures, as in effect from time to time. Upon the receipt by the
Committee of a new Beneficiary Designation Form, all Beneficiary
designations previously filed shall be canceled. The Committee shall be
entitled to rely on the last Beneficiary Designation Form filed by the
Participant with the Committee prior to death.
5.3 Spousal Consent. If a Participant has a Spouse, the Participant's
designation of someone other than the Spouse as primary beneficiary
shall not be effective unless the Spouse executes a consent in writing
that acknowledges the effect of the designation and is witnessed by a
notary public. No consent is required if it is established to the
satisfaction of the Committee that consent cannot be obtained because
the Spouse cannot be located.
5.4 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided above, the Participant's designated Beneficiary
shall be deemed to be the surviving Spouse. If the Participant has no
surviving Spouse, the benefits otherwise payable to a Beneficiary shall
be paid to the Participant's estate.
5.5 Doubt as to Beneficiaries. If the Committee has any doubt as to the
proper Beneficiary to receive payments pursuant to this Plan, the
Committee shall have the right, exercisable in its discretion, to
withhold such payments until the matter is resolved to the Committee's
satisfaction, and/or to require indemnification.
5.6 Discharge of Obligations. The payment of benefits under the Plan to a
Participant or Participant's Beneficiary shall fully and completely
discharge the Company from all obligations under this Plan with respect
to the deceased Participant, Beneficiaries, and any others that may be
entitled to such benefits.
ARTICLE 6
Termination, Amendment or Modification
6.1 Termination. The Company reserves the right to terminate the Plan at
any time.
6.2 Amendment. The Board may, at any time, amend or modify the Plan in
whole or in part, provided, however, that no amendment or modification
shall decrease or restrict a Participant's Account Balance at the time
the amendment or modification is made, calculated as if the Participant
had experienced a Termination of Service as of the effective date of the
amendment or modification. The amendment or modification of the Plan
shall not affect the payment of benefits to any Participant or
Beneficiary who has become entitled to the payment of benefits under the
Plan as of the date of the amendment or modification. Notwithstanding
the foregoing, the Board may amend the Plan retroactively to the extent
required to qualify the Plan under Code Section 409A, provided that no
such amendment may reduce any Participant's Account Balance.
6.3 Effect of Payment. The full payment of the applicable benefit under
Articles 4 or 5 of the Plan shall completely discharge all obligations
to a Participant under this Plan.
ARTICLE 7
Administration
7.1 Committee Duties. This Plan shall be administered by the Committee or
its delegates. The Committee shall also have the discretion and
authority to make, amend, interpret, and enforce all appropriate rules
and regulations for the administration of this Plan and decide or
resolve any and all questions including interpretations of this Plan, as
may arise in connection with the Plan. The Company intends the Plan to
meet the requirements of Code Section 409A and the regulations
thereunder. The Committee shall interpret the Plan in such a way as to
meet such requirements. Committee action may be (i) by the vote of a
majority of the members present at a meeting at which a quorum is
present in person or by telephone or (ii) by unanimous written consent.
A majority of the Committee shall constitute a quorum.
7.2 Agents. In the administration of this Plan, the Committee may, from
time to time, delegate to such persons as it deems appropriate such
administrative duties as it sees fit and may from time to time consult
with counsel who may be counsel to the Company or a subsidiary.
7.3 Binding Effect of Decisions. The decision or action of the Committee
with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
7.4 Indemnification. The Company shall indemnify and hold harmless the named
fiduciaries and any officers or employees of the Company and its
subsidiaries to which fiduciary responsibilities have been delegated
from and against any and all liabilities, claims, demands, costs and
expenses including attorneys fees, arising out of an alleged breach in
the performance of their fiduciary duties under the Plan and ERISA,
other than such liabilities, claims, demands, costs and expenses as may
result from the gross negligence or willful misconduct of such person.
The Company shall have the right, but not the obligation, to conduct the
defense of such person in any proceeding to which this paragraph
applies.
ARTICLE 8
Claims Procedures
8.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
Participant may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such Claimant
from the Plan. If such a claim relates to the contents of a notice
received by the Claimant, the claim must be made within 60 days after
such notice was received by the Claimant. All other claims must be made
within 180 days of the date on which the event that caused the claim to
arise occurred. The claim must state with particularity the
determination desired by the Claimant.
8.2 Notification of Decision. The Committee shall consider a Claimant's
claim within a reasonable time, and shall notify the Claimant in
writing:
(a) that the Claimant's requested determination has been made, and that
the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole or
in part, to the Claimant's requested determination, and such notice
must set forth in a manner calculated to be understood by the
Claimant:
(i) the specific reason(s) for the denial of the claim, or any
part of it;
(ii) specific reference(s) to pertinent provisions of the Plan upon
which such denial was based;
(iii)a description of any additional material or information
necessary for the Claimant to clarify or perfect the claim,
and an explanation of why such material or information is
necessary; and
(iv) an explanation of the claim review procedure set forth in
Section 8.3 below.
8.3 Review of a Denied Claim. Within 60 days after receiving a notice from
the Committee that a claim has been denied, in whole or in part, a
Claimant (or the Claimant's duly authorized representative) may file
with the Committee a written request for a review of the denial of the
claim. Thereafter, but not later than 30 days after the review
procedure began, the Claimant (or the Claimant's duly authorized
representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole discretion,
may grant.
8.4 Decision on Review. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written
request for review of the denial, unless a hearing is held or other
special circumstances require additional time, in which case the
Committee's decision must be rendered within 120 days after such date.
Such decision must be written in a manner calculated to be understood by
the Claimant and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which
the decision was based; and
(c) such other matters as the Committee deems relevant.
8.5 Legal Action. A Claimant's compliance with the foregoing provisions of
this Article 13 is a mandatory prerequisite to a Participant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
ARTICLE 9
Miscellaneous
9.1 Unsecured General Creditor. Participants and their Beneficiaries,
heirs, successors and assigns shall have no legal or equitable rights,
interest or claims in any property or assets of the Company. Any and
all of the Company's assets shall be, and remain, its general, unpledged
and unrestricted assets. The Company's obligation under the Plan shall
be merely that of an unfunded and unsecured promise to pay money in the
future.
9.2 Company's Liability. Amounts payable to a Participant or Beneficiary
under this Plan shall be paid from the general assets of the Company
(including without limitation assets of any trust established to fund
payment of obligations hereunder) exclusively.
9.3 Nonassignability. Neither a Participant nor any other person shall have
the right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate or convey in
advance of actual receipt the amounts, if any, payable hereunder, or any
part thereof, which are, and all rights to which are expressly declared
to be unassignable and non-transferable, except that the foregoing shall
not apply to any family support obligations set forth in a court order.
No part of the amounts payable shall, prior to actual payment, be
subject to seizure or sequestration for the payment of any debts,
judgments, alimony or separate maintenance owed by a Participant or any
other person, nor be transferable by operation of law in the event of a
Participant's or any other person's bankruptcy or insolvency.
Notwithstanding the preceding provisions of this section, the Committee
will recognize the provisions of a qualified domestic relations order as
defined in Section 206(d) of the Employee Retirement Income Security Act
of 1974 that does not change the timing of the Participant's benefit
payments.
9.4 Furnishing Information. A Participant will cooperate with the Committee
by furnishing any and all information requested by the Committee and
take such or actions as may be requested in order to facilitate the
administration of the Plan and the payments of benefits hereunder.
9.5 Captions. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the
meaning or construction of any of its provisions.
9.6 Governing Use. The provisions of this Plan shall be construed and
interpreted according to the laws of the State of California.
9.7 Notice. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and hand-
delivered, or sent by registered or certified mail, return receipt
requested, to:
CNF Inc.
Director Affairs Committee
2005 Deferred Compensation Plan for Non-Employee Directors
3240 Hillview Avenue
Palo Alto, California 94304
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered, or
sent by mail, to the last known address of the Participant.
9.8 Successors. The provisions of this Plan shall be binding upon and inure
to the benefit of the Company and its successors and assigns and the
Participant, the Participant's Beneficiaries, and their permitted
successors and assigns.
9.9 Spouse's Interest. The interest in the benefits hereunder of a Spouse
of a Participant who has predeceased the Participant shall automatically
pass to the Participant and shall not be transferable by such Spouse in
any manner, including but not limited to such Spouse's will, nor shall
such interest pass under the laws of intestate succession.
9.10 Incompetent. If the Committee determines in its discretion that a
benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of that
person's property, the Committee may direct payment of such benefit to
the guardian, legal representative or person having the care and custody
of such minor, incompetent or incapable person. The Committee may
require proof of minority, incompetency, incapacity or guardianship, as
it may deem appropriate and/or such indemnification of the Committee and
the Company and security, as it deems appropriate, in its sole
discretion, prior to distribution of the benefit. Any payment of a
benefit shall be a payment for the account of the Participant and the
Participant's Beneficiary, as the case may be, and shall be a complete
discharge of any liability under the Plan for such payment amount.
9.11 Saving Clause. The Company intends the Plan to meet the requirements of
Code Section 409A, the regulations thereunder, and any additional
guidance provided by the Treasury Department. Any Plan provision that
does not meet such requirements shall be void.
9.12 Legal Fees To Enforce Rights. If the Company has failed to comply with
any of its obligations under the Plan or any agreement thereunder or, if
the Company or any other person takes any action to declare the Plan
void or unenforceable or institutes any litigation or other legal action
designed to deny, diminish or to recover from any Participant the
benefits intended to be provided, then the Company irrevocably
authorizes such Participant to retain counsel chosen by the Participant
and agrees to pay reasonable legal fees and expenses of the Participant
incurred in connection with the initiation or defense of any litigation
or other legal action, whether by or against the Company, or any
director, officer, shareholder or other person affiliated with the
Company, or any successor thereto in any jurisdiction, provided that
such Participant prevails in such action.
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9.13 Payment of Withholding. As a condition of receiving benefits under the
Plan, the Participant shall pay the Company not less than the amount of
all applicable federal, state, local and foreign taxes required by law
to be paid or withheld relating to the receipt or entitlement to
benefits hereunder. The Company may withhold taxes from any benefits
paid and/or from Directors fees, in its sole discretion.
9.14 Coordination with Other Benefits. The benefits provided for a
Participant and Participant's Beneficiary under the Plan are in addition
to any other benefits available to such Participant under any other plan
or program for Directors. The Plan shall supplement and shall not
supersede, modify or amend any other such plan or program except as may
otherwise be expressly provided. In no event shall distributions under
the Plan prior to Termination of Service have the effect of increasing
payments otherwise due under the various retirement plans of the Company
and its subsidiaries.