1
EXHIBIT 10
ROADWAY SERVICES, INC.
DIRECTORS' DEFERRED COMPENSATION PLAN
2
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.4 Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.5 Declared Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.6 Deferral Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.7 Deferred Benefit Account . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.8 Deferred Share Award Account . . . . . . . . . . . . . . . . . . . . . . . 2
2.9 Deferred Share Award Benefit . . . . . . . . . . . . . . . . . . . . . . 2
2.10 Determination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.11 Director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.12 Emergency Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.13 Fair Market Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.14 Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.15 Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.16 Participation Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.17 Plan Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.18 Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.19 Share Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.20 Unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III ELIGIBILITY AND PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.3 Termination of Participation . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV DEFERRAL OF FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.1 Deferral of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.2 Crediting of Deferred Fees . . . . . . . . . . . . . . . . . . . . . . . . 4
4.3 Deferral of Share Awards . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.4 Crediting of Deferred Share Awards . . . . . . . . . . . . . . . . . . . . 4
4.5 Withholding Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE V DEFERRED BENEFIT ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1 Determination of Deferred Benefit Account . . . . . . . . . . . . . . . . 5
5.2 Crediting of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.3 Crediting of Dividend Equivalents . . . . . . . . . . . . . . . . . . . . 5
5.4 Statement of Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.5 Vesting of Deferred Benefit Account . . . . . . . . . . . . . . . . . . . 5
ARTICLE VI DEFERRED SHARE AWARD ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 Determination of Deferred Share Award Account . . . . . . . . . . . . . . 6
6.2 Crediting of Dividend Equivalents . . . . . . . . . . . . . . . . . . . . 6
6.3 Statement of Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.4 Vesting of Deferred Benefit Account . . . . . . . . . . . . . . . . . . . 6
i
3
Page
----
ARTICLE VII PAYMENT OF BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.1 Termination of Service as a Director or Death . . . . . . . . . . . . . . 6
7.2 Emergency Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.3 Interim Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.4 Form of Payment -- Deferral Benefits . . . . . . . . . . . . . . . . . . . 7
7.5 Form of Payment -- Deferred Share Award Benefits . . . . . . . . . . . . . 8
7.6 Commencement of Payments . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VIII BENEFICIARY DESIGNATION . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.1 Beneficiary Designation . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.3 No Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.4 Effect of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IX ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.1 Committee; Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.2 Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.3 Binding Effect of Decisions . . . . . . . . . . . . . . . . . . . . . . . 9
9.4 Indemnity of Committee . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE X AMENDMENT AND TERMINATION OF PLAN . . . . . . . . . . . . . . . . . . . . 9
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.1 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.2 Non-assignability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.3 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.4 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11.5 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11.6 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11.7 No Right to Continued Service . . . . . . . . . . . . . . . . . . . . . . 11
ii
4
ROADWAY SERVICES, INC.
----------------------
DIRECTORS' DEFERRED COMPENSATION PLAN
-------------------------------------
(As Amended and Restated as of May 10, 1995)
This Directors' Deferred Compensation Plan amends and restates
the Roadway Services, Inc. Directors' Deferred Fee Plan, dated as of May 10,
1989.
ARTICLE I
---------
PURPOSE
-------
The purpose of the Roadway Services, Inc. Directors' Deferred
Compensation Plan (the "Plan") is to provide funds and/or shares of common
stock without par value of Roadway Services, Inc., upon termination of service
or death for nonemployee directors of Roadway Services, Inc. or their
beneficiaries. It is intended that the Plan will assist in attracting and
retaining qualified individuals to serve as Directors.
ARTICLE II
----------
DEFINITIONS
-----------
For the purposes of the Plan, the following words and phrases
shall have the meanings indicated:
2.1 BENEFICIARY. Beneficiary means the person or persons
designated or deemed to be designated by the Participant pursuant to Article
VIII to receive benefits payable under the Plan in the event of the
Participant's death.
2.2 BOARD. Board means the Board of Directors of the Company.
2.3 COMMITTEE. Committee has the meaning set forth in Section
9.1.
2.4 COMPANY. Company means Roadway Services, Inc., an Ohio
corporation, and any successor thereto.
2.5 DECLARED RATE. Declared Rate means the interest rate
payable on 26-week U.S. Treasury bills issued on the specified date or, if not
then issued, on the next date of issue.
5
2.6 DEFERRAL BENEFIT. Deferral Benefit means the benefit
payable to a Participant or his or her Beneficiary pursuant to Article VII and
based on such Participant's Deferred Benefit Account.
2.7 DEFERRED BENEFIT ACCOUNT. Deferred Benefit Account means
the account maintained on the books of the Company for each Participant
pursuant to Article V.
2.8 DEFERRED SHARE AWARD ACCOUNT. Deferred Share Award Account
means the account maintained on the books of the Company for each Participant
pursuant to Article VI.
2.9 DEFERRED SHARE AWARD BENEFIT. Deferred Share Award Benefit
means the benefit payable to a Participant or his or her Beneficiary pursuant
to Article VII and based on such Participant's Deferred Share Award Account.
2.10 DETERMINATION DATE. Determination Date means each January
1 and July 1.
2.11 DIRECTOR. Director means a member of the Board.
2.12 EMERGENCY BENEFIT. Emergency Benefit has the meaning set
forth in Section 7.2.
2.13 FAIR MARKET VALUE. Fair Market Value means the average of
the highest and lowest sales prices of a Share on the specified date (or, if no
Share was traded on such date, on the next preceding date on which it was
traded) as reported in The Wall Street Journal under the heading NASDAQ
National Market Issues or any similar or successor heading.
2.14 FEE. Fee or Fees means any compensation payable in cash to
a Director for his or her services as a member of the Board or any committee
thereof.
2.15 PARTICIPANT. Participant means any eligible Director who
elects to participate by filing a Participation Agreement as provided in
Section 3.2.
2.16 PARTICIPATION AGREEMENT. Participation Agreement means the
agreement filed by a Participant, in the form prescribed by the Committee,
pursuant to Section 3.2.
2.17 PLAN YEAR. Plan Year means a twelve month period
commencing January 1 and ending the following December 31.
2.18 SHARE. Share means a share of common stock without par
value of the Company.
2.19 SHARE AWARD. Share Award means any compensation payable in
Shares to a Director for his or her services as a member of the Board or any
committee thereof.
2
6
2.20 UNIT. Unit means an accounting unit equal in value to one
Share. The number of Units included in any Deferred Benefit Account or
Deferred Share Award Account shall be adjusted as appropriate to reflect any
stock dividend, stock split, recapitalization, merger or other similar event
affecting Shares.
ARTICLE III
-----------
ELIGIBILITY AND PARTICIPATION
-----------------------------
3.1 ELIGIBILITY. Eligibility to participate in the Plan is
limited to those Directors who are not employees of the Company or any of its
subsidiaries.
3.2 PARTICIPATION. Participation in the Plan shall be limited
to eligible Directors who elect to participate in the Plan by filing a
Participation Agreement with the Committee. A properly completed and executed
Participation Agreement must be filed on or prior to the December 31
immediately preceding the Plan Year in which the Participant's participation in
the Plan will commence, and the election to participate shall be effective on
the first day of the Plan Year following receipt by the Company of the
Participation Agreement. In the event that a Director first becomes eligible
to participate during the course of a Plan Year, such Participation Agreement
must be filed no later than thirty days following election or appointment to
the Board, and such Participation Agreement shall be effective only with regard
to Fees and Share Awards earned or payable following the filing of the
Participation Agreement with the Committee.
3.3 TERMINATION OF PARTICIPATION. A Participant may elect to
terminate his or her participation in the Plan by filing a written notice
thereof with the Committee, which termination shall be effective at any time
specified by the Participant in the notice but not earlier than the first day
of the Plan Year immediately succeeding the Plan Year in which such notice is
filed with the Committee. Amounts credited to such Participant's Deferred
Benefit Account and Deferred Share Award Account with respect to periods prior
to the effective date of such termination shall continue to be payable pursuant
to, and otherwise governed by, the terms of the Plan.
ARTICLE IV
----------
DEFERRAL OF FEES
----------------
4.1 DEFERRAL OF FEES. A Participant may elect to defer all or
a specified percentage of his or her Fees, and a Participant may elect to have
that portion of his or her deferred Fees credited to his Deferred Benefit
Account either in dollar amounts or Units. A Participant may change the
percentage of his
3
7
or her Fees to be deferred, or the form in which Fees are to be credited, by
filing a written notice thereof with the Committee, which shall be effective as
of the first day of the Plan Year immediately succeeding the Plan Year in which
such notice is filed with the Committee.
4.2 CREDITING OF DEFERRED FEES. Deferred Fees that a
Participant elects to have credited in dollar amounts shall be credited to the
Participant's Deferred Benefit Account as they become payable to the Director.
Deferred Fees otherwise payable to a Director during a Plan Year that a
Participant elects to have credited in Units shall be credited to the
Participant's Deferred Benefit Account annually after the end of such Plan Year
on the basis of the average price of Shares acquired by the Roadway Services,
Inc. Stock Bonus Plan during such Plan Year (and such annual credits shall take
into account the amount of cash dividends paid by the Company on equivalent
amounts of Shares during periods after the dates on which such Fees otherwise
would have been payable to the Director).
4.3 DEFERRAL OF SHARE AWARDS. A Participant may elect to defer
all or a specified percentage of his or her Share Awards, and a Participant
will have that portion of each deferred Share Award credited to his or her
Deferred Share Award Account in Units. A Participant may change the percentage
of his or her Share Award to be deferred by filing a written notice thereof
with the Committee, which shall be effective as of the first day of the Plan
Year immediately succeeding the Plan Year in which such notice is filed with
the Committee. No fractional Shares shall be deferred, but the number of
Shares deferred shall be rounded down to the nearest whole Share.
4.4 CREDITING OF DEFERRED SHARE AWARDS. The percentage of
Share Awards that a Participant elects to defer shall be credited to the
Participant's Deferred Share Award Account as each Share Award becomes payable
to the Director. The number of Units credited to the Participant's Deferred
Share Award Account shall be equal to the number of Shares of a Participant's
Share Award which the Participant has elected to defer.
4.5 WITHHOLDING TAXES. If the Company is required to withhold
any taxes or other awards from a Director's Fees or deferred Share Award
pursuant to any state, federal or local law, such amounts shall, to the extent
possible, be deducted from the Participant's Fees or Share Award before such
amounts are credited as described in Sections 4.3 and 4.4 above. Any
additional withholding amount required shall be paid by the Director to the
Company as a condition to payment of credits of such Units.
4
8
ARTICLE V
---------
DEFERRED BENEFIT ACCOUNT
------------------------
5.1 DETERMINATION OF DEFERRED BENEFIT ACCOUNT. On any
particular date, a Participant's Deferred Benefit Account shall consist of the
aggregate amount of dollars and Units credited thereto pursuant to Section 4.2,
plus any interest credited pursuant to Section 5.2, plus any dividend
equivalents credited pursuant to Section 5.3, minus the aggregate amount of
distributions, if any, made from such Deferred Benefit Account.
5.2 CREDITING OF INTEREST. As of each Determination Date, each
Deferred Benefit Account to which Fees have been credited in dollar amounts
shall be increased by the amount of interest earned since the immediately
preceding Determination Date. Interest shall be credited at the Declared Rate
as of such Determination Date based on the average daily balance of the dollar
credited portion of the Participant's Deferred Benefit Account since the
immediately preceding Determination Date, but after the Deferred Benefit
Account has been adjusted for any contributions or distributions to be credited
or deducted for such period. Interest for the period prior to the first
Determination Date applicable to a Deferred Benefit Account shall be prorated.
Until a Participant or his or her Beneficiary receives his or her entire
Deferred Benefit Account, the unpaid balance thereof credited in dollar amounts
shall bear interest as provided in this Section 5.2.
5.3 CREDITING OF DIVIDEND EQUIVALENTS. Each Deferred Benefit
Account to which Fees have been credited in Units shall be credited annually
after the end of each Plan Year with additional Units equal in value to the
amount of cash dividends paid by the Company during such Plan Year on the
number of Shares equivalent to the average daily balance of Units in such
Deferred Benefit Account during such Plan Year. Such dividend equivalents
shall be valued on the basis of the average price of Shares acquired by the
Roadway Services, Inc. Stock Bonus Plan during such Plan Year. Until a
Participant or his or her Beneficiary receives his or her entire Deferred
Benefit Account, the unpaid balance thereof credited in Units shall earn
dividend equivalents as provided in this Section 5.3.
5.4 STATEMENT OF ACCOUNTS. The Committee shall provide to each
Participant, within 120 days after the close of each Plan Year, a statement
setting forth the balance of such Participant's Deferred Benefit Account as of
the last day of the preceding Plan Year and showing all adjustments made
thereto during such Plan Year.
5.5 VESTING OF DEFERRED BENEFIT ACCOUNT. A Participant shall
be 100% vested in his or her Deferred Benefit Account at all times.
5
9
ARTICLE VI
----------
DEFERRED SHARE AWARD ACCOUNT
----------------------------
6.1 DETERMINATION OF DEFERRED SHARE AWARD ACCOUNT. On any
particular date, a Participant's Share Deferred Share Award Account shall
consist of the aggregate number of Units credited thereto pursuant to Section
4.4, plus any dividend equivalents credited pursuant to Section 6.2, minus the
aggregate amount of distributions, if any, made from such Deferred Share Award
Account.
6.2 CREDITING OF DIVIDEND EQUIVALENTS. Each Deferred Share
Award Account shall be credited annually after the end of each Plan Year with
additional Units equal in value to the amount of cash dividends paid by the
Company during such Plan Year on that number of Shares equivalent to the
average daily balance of Units in such Deferred Share Award Account during such
Plan Year. Such dividend equivalents shall be valued on the basis of the
average price of Shares acquired by the Roadway Services, Inc. Stock Bonus Plan
during such Plan Year. Until a Participant or his or her Beneficiary receives
his or her entire Deferred Share Award Account, the unpaid balance thereof
credited in Units shall earn dividend equivalents as provided in this Section
6.2.
6.3 STATEMENT OF ACCOUNTS. The Committee shall provide to each
Participant, within 120 days after the close of each Plan Year, a statement
setting forth the balance of such Participant's Deferred Share Award Account as
of the last day of the preceding Plan Year and showing all adjustments made
thereto during such Plan Year.
6.4 VESTING OF DEFERRED BENEFIT ACCOUNT. A Participant shall
be 100% vested in his or her Deferred Share Award Account at all times.
ARTICLE VII
-----------
PAYMENT OF BENEFITS
-------------------
7.1 TERMINATION OF SERVICE AS A DIRECTOR OR DEATH. Upon the
earliest of (i) termination of service of the Participant as a Director of the
Company, for reasons other than his or her death, or (ii) the death of a
Participant, the Company shall pay to the Participant or his Beneficiary, as
the case may be, in cash a Deferral Benefit equal to the balance of his or her
Deferred Benefit Account, plus, in cash or Shares as previously elected by the
Participant, a Deferred Share Award Benefit equal to the balance of his or her
Deferred Share Award Account.
7.2 EMERGENCY BENEFIT. In the event that the Committee, upon
written petition of a Participant, determines, in its sole discretion, that the
Participant has suffered an unforeseeable
6
10
financial emergency, the Company shall pay to the Participant, as soon as
practicable following such determination, an amount in cash necessary to meet
the emergency (the "Emergency Benefit"), but not exceeding the aggregate
balance of such Participant's Deferred Benefit Account and Deferred Share Award
Account as of the date of such payment. For purposes of this Section 7.2, an
"unforeseeable financial emergency" shall mean an unexpected need for cash
arising from an illness, disability, casualty loss, sudden financial reversal
or other such unforeseeable occurrence. Cash needs arising from foreseeable
events such as the purchase of a house or education expenses for children shall
not be considered to be the result of an unforeseeable financial emergency.
The amount of the Deferral Benefit and Deferred Share Award Benefit otherwise
payable under the Plan to such Participant shall be adjusted to reflect the
early payment of the Emergency Benefit. For purposes of this Section 7.2,
Deferred Benefit Accounts and Deferred Share Award Accounts including Units
shall be valued on the basis of the Fair Market Value of the Shares on the date
of payment of an Emergency Benefit.
7.3 INTERIM DISTRIBUTION. A Participant may elect by notice in
writing filed with the Committee, to receive an interim distribution of all or
any specified percentage of his or her deferred Fees or deferred Share Awards
beginning at any time at least three years after the date such Fees and Share
Awards otherwise would have been payable had the Participant not elected to
participate in the Plan. Such a notice may be filed at any time or times, but
may only apply to Fees and Share Awards not yet earned or credited at the time
such notice is filed. The Participant may elect to receive an interim
distribution in either a lump sum payment or in a series of annual installments
over a period not to exceed ten years. Any benefits paid to the Participant as
an interim distribution shall reduce the amounts otherwise payable to the
Participant under the Plan. For purposes of this Section 7.3, Deferred Benefit
Accounts and Deferred Share Award Accounts including Units shall be valued on
the basis of the Fair Market Value of the Shares on the date payment of an
interim distribution commences.
7.4 FORM OF PAYMENT -- DEFERRAL BENEFITS. The Deferral Benefit
payable pursuant to Section 7.1 shall be paid in one of the following forms, as
elected by the Participant in his or her Participation Agreement:
(a) Equal quarterly installments over a period of ten
years (together, in the case of deferred compensation credited in
dollar amounts, with interest thereon credited after the payment
commencement date pursuant to Section 5.2).
(b) A lump sum.
7
11
(c) A combination of (a) and (b) above. The Participant
shall designate the percentage payable under each option.
For the purposes of this Section 7.4, each distribution from Deferred Benefit
Accounts including Units shall be valued on the basis of the Fair Market Value
of the Shares on the date payment of such distribution is made.
7.5 FORM OF PAYMENT -- DEFERRED SHARE AWARD BENEFITS. The
Deferred Share Award Benefit payable pursuant to Section 7.1 shall be paid in a
single distribution in whole Shares plus cash equal in value to any fractional
Share.
For the purposes of this Section 7.5, each distribution
from a Deferred Share Award Account shall be valued on the basis of the Fair
Market Value of the Shares on the date payment of such distribution is made.
7.6 COMMENCEMENT OF PAYMENTS. Commencement of payments under
Section 7.1 of the Plan shall begin within sixty days following receipt of
notice by the Committee of an event which entitles a Participant (or a
Beneficiary) to payments under the Plan, or at such earlier date as may be
determined by the Committee.
ARTICLE VIII
------------
BENEFICIARY DESIGNATION
-----------------------
8.1 BENEFICIARY DESIGNATION. Each Participant shall have the
right, at any time, to designate any person or persons as his Beneficiary to
whom payment under the Plan shall be made in the event of his or her death
prior to complete distribution to the Participant of his or her Deferral
Benefit and/or Deferred Share Award Benefit. Any Beneficiary designation shall
be made in a written instrument filed with the Committee and shall be effective
only when received in writing by the Committee.
8.2 AMENDMENTS. Any Beneficiary designation may be changed by
a Participant by the filing of a new Beneficiary designation, which will cancel
all Beneficiary designations previously filed.
8.3 NO DESIGNATION. If a Participant fails to designate a
Beneficiary as provided above, or if all designated Beneficiaries predecease
the Participant, then the Participant's designated Beneficiary shall be deemed
to be the Participant's estate.
8.4 EFFECT OF PAYMENT. Payment to a Participant's Beneficiary
(or, upon the death of a Beneficiary, to his or her
8
12
estate) shall completely discharge the Company's obligations under the Plan.
ARTICLE IX
----------
ADMINISTRATION
--------------
9.1 COMMITTEE; DUTIES. The Committee shall consist of the
Chairman of the Board (provided he is not a nonemployee Director) and two
Company officers or Directors who are not nonemployee Directors who shall be
appointed by the Chairman of the Board. The Committee shall supervise the
administration of the Plan, may from time to time adopt procedures governing
the Plan and shall have authority to give interpretive rulings with respect to
the Plan.
9.2 AGENTS. The Committee may appoint an individual, who may
be an employee of the Company, to be the Committee's agent with respect to the
day-to-day administration of the Plan. In addition, the Committee may, from
time to time, employ other agents and delegate to them such administrative
duties as it sees fit, and may from time to time consult with counsel who may
be counsel to the Company.
9.3 BINDING EFFECT OF DECISIONS. Any 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 shall be final and
binding upon all persons having any interest in the Plan.
9.4 INDEMNITY OF COMMITTEE. The Company shall indemnify the
members of the Committee against claims, loss, damage, expense and liability
arising from any action or failure to act with respect to the Plan to the
extent provided in the Regulations of the Company and any applicable
indemnification agreement between the Company and such member.
ARTICLE X
---------
AMENDMENT AND TERMINATION OF PLAN
---------------------------------
The Board may at any time amend, suspend, terminate or reinstate any
or all of the provisions of the Plan, except that no such amendment, suspension
or termination may adversely affect any Participant's Deferred Benefit Account
and/or Deferred Share Award Account as it existed as of the effective date of
such amendment, suspension or termination without such Participant's consent.
The Committee may, in its sole discretion, from time to time increase the
Declared Rate, but in no event shall the Declared Rate be decreased.
9
13
ARTICLE XI
----------
MISCELLANEOUS
-------------
11.1 FUNDING. Neither Participants, nor their Beneficiaries,
nor their heirs, successors or assigns, shall have any secured interest or
claim in any property or assets of the Company. The Company's obligation under
the Plan shall be merely that of an unfunded and unsecured promise of the
Company to pay money in the future. The Company may create a trust to hold
funds to be used in payment of its obligations under the Plan, and may fund
such trust, provided that any funds contained therein shall remain liable for
the claims of the Company's general creditors.
11.2 NON-ASSIGNABILITY. No right or interest under the Plan of
a Participant or his or her Beneficiary (or any person claiming through or
under any of them), other than the surviving spouse of any deceased
Participant, shall be assignable or transferable in any manner or be subject to
alienation, anticipation, sale, pledge, encumbrance or other legal process or
in any manner be liable for or subject to the debts or liabilities of any such
Participant or Beneficiary. If any Participant or Beneficiary (other than the
surviving spouse of any deceased Participant) shall attempt to or shall
transfer, assign, alienate, anticipate, sell, pledge or otherwise encumber his
or her benefits hereunder or any part thereof, or if by reason of his or her
bankruptcy or other event happening at any time such benefits would devolve
upon anyone else or would not be enjoyed by him or her, then the Committee, in
its discretion, may terminate his or her interest in any such benefit to the
extent the Committee considers necessary or advisable to prevent or limit the
effects of such occurrence. Termination shall be effected by filing a written
"termination declarations" with the Secretary of the Company and making
reasonable efforts to deliver a copy to the Participant or Beneficiary whose
interest is adversely affected (the Terminated Participant).
As long as the Terminated Participant is alive, any
benefits affected by the termination shall be retained by the Company and, in
the Committee's sole and absolute judgment, may be paid to or expended for the
benefit of the Terminated Participant, his or her spouse, his or her children
or any other person or persons in fact dependent upon him or her in such a
manner as the Committee shall deem proper. Upon the death of the Terminated
Participant, all benefits withheld from him or her and not paid to others in
accordance with the preceding sentence shall be disposed of according to the
provisions of the Plan that would apply if he or she died prior to the time
that all benefits to which he or she was entitled were paid to him or her.
11.3 CAPTIONS. The captions contained herein are for
convenience only and shall not control or affect the meaning or construction
hereof.
10
14
11.4 GOVERNING LAW. The provisions of the Plan shall be
construed and interpreted according to the laws of the State of Ohio.
11.5 SUCCESSORS. The provisions of the Plan shall bind and
inure to the benefit of the Company and its successors and assigns. The term
successors as used herein shall include any corporate or other business entity
which shall, whether by merger, consolidation, purchase or otherwise, acquire
all or substantially all of the business and assets of the Company and
successors of any such corporation or other business entity.
11.6 EFFECTIVE DATE. The effective date of this amended and
restated Director's Deferred Compensation Plan shall be May 10, 1995.
11.7 NO RIGHT TO CONTINUED SERVICE. Nothing contained herein
shall be construed to confer upon any Director the right to continue to serve
as a Director of the Company or in any other capacity.
11