Exhibit
10.1


 


FINANCIAL
SECURITY ASSURANCE HOLDINGS LTD.


 


1995
DEFERRED COMPENSATION PLAN


 


 


Amended
and Restated


 


as of
September 15, 2008


 













 


FINANCIAL
SECURITY ASSURANCE HOLDINGS LTD.


1995
DEFERRED COMPENSATION PLAN


 


ARTICLE I




ESTABLISHMENT AND PURPOSE OF THE PLAN


 


1.1           Effective
as of June 1, 1995, Financial Security Assurance Holdings Ltd. (the
“Company”) established for the benefit of certain of its employees, certain
employees of its affiliates or subsidiaries and certain members of its board of
directors an unfunded plan by which an eligible employee or eligible director
can elect to defer, respectively, receipt of all or a portion of his or her
compensation or fees.  This plan, as so
amended and restated, is known as the Financial Security Assurance Holdings
Ltd. 1995 Deferred Compensation Plan (the “Plan”).  The Plan was amended and restated as of
July 10, 2002, November 14, 2002, May 16, 2003,
November 13, 2003 and December 17, 2004.  The Plan is further amended and restated as
set forth in this Plan document effective as of September 15, 2008 to
comply with the final regulations under Section 409A of the Internal
Revenue Code and to make certain other changes.


 


ARTICLE II




DEFINITIONS


 


Unless the context
otherwise requires, the following terms, when used herein, shall have the
meaning assigned to them in this Article II.


 


2.1           The term “Account” shall mean a
Participant’s individual account, as described in Article VIII of the
Plan.


 


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2.2           The term “Affiliate” shall mean any
corporation or other business entity that would be considered a single employer
with a Participating Company pursuant to Code sections 414(b) or 414(c).


 


2.3           The term “Beneficiary” shall mean the
person or persons designated by the Participant (including an individual,
trust, estate, partnership, association, company, corporation or any other
entity), pursuant to Article VII of the Plan, to receive benefits under
the Plan in the event of the Participant’s death.


 


2.4           The term “Board” shall mean the Board
of Directors of the Company.


 


2.5           The term “Bonus” shall mean:  (i) bonus compensation payable in cash;
(ii) bonus compensation payable in respect of an “Equity Bonus” awarded
under the Equity Participation Plan; (iii) an amount payable pursuant to a
“Performance Shares” award under the Equity Participation Plan; and
(iv) any other incentive, performance related or other payment that,
absent deferral pursuant to the Plan, would constitute taxable income to the
Participant.


 


2.6           The term “Claim Reviewer” shall have
the meaning set forth in Section 13.4 of the Plan.


 


2.7           The term “Code” shall mean the Internal
Revenue Code of 1986, as amended from time to time.  Any references herein to a specific section
of the Code shall be deemed to refer to the rules and regulations under
the Code in respect of such section, and to the corresponding provisions of any
future internal revenue law and the rules and regulations thereunder.


 


2.8           The term “Committee” shall mean the
Human Resources Committee of the Board.


 


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2.9           The term “Company” shall mean Financial
Security Assurance Holdings Ltd., a New York corporation.


 


2.10         The term “Compensation” shall mean, in
respect of any Year and in each case before any deductions for amounts deferred
under the Plan: (i) in the case of an Eligible Employee, the total of his
or her annual salary and Bonus with respect to such Year; and (ii) in the
case of an Eligible Director, the total of his or her fees from the Company, or
any direct or indirect subsidiary thereof, with respect to such Year.


 


2.11         The term “Decisionmaker” shall have the
meaning set forth in Section 13.1 of the Plan.


 


2.12         The term “Deferral Amount” shall mean the
amount of Compensation that a Participant has deferred under the terms of the
Plan.


 


2.13         The term “Deferral Period” shall mean the
period of time during which a Participant elects to defer the receipt of the
Deferral Amount under the terms of the Plan.


 


2.14         The term “Deferred Compensation Plan
Election Change Form” shall mean the form prescribed or accepted by the
Committee by which a Participant may change a previous election of a Deferral
Amount.


 


2.15         The term “Deferred Compensation Plan
Election Form” shall mean the form prescribed or accepted by the Committee by
which a Participant elects a Deferral Amount.


 


2.16         The term “Disability” shall mean a
determination by the Committee that the Participant is (i) unable to
engage in any substantial gainful activity by reason of any medically 


 


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determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months or (ii) by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than 12 months,
receiving income replacement benefits for a period of not less than 3 months
under an accident and health plan covering employees of the Company.


 


2.17         The term “Disability Benefit” shall have
the meaning set forth in Section 13.1 of the Plan.


 


2.18         The term “Eligible Director” shall mean
any member of the Board, or any member of the board of directors of any direct
or indirect subsidiary of the Company, in each case who is not an employee of
the Company or any of its subsidiaries.


 


2.19         The term “Eligible Employee” shall mean
any participant in the Company’s Supplemental Executive Retirement Plan and any
other employee of a Participating Company as may be designated from time to
time by the Committee as eligible to participate in the Plan.


 


2.20         The term “Equity Participation Plan”
shall mean the Financial Security Assurance Holdings Ltd. 1993 Equity
Participation Plan, as amended from time to time.


 


2.21         The term “New Plan” shall mean the
Financial Security Assurance Holdings Ltd. 2004 Deferred Compensation Plan, as
amended from time to time.


 


2.22         The term “Participant” shall mean an
Eligible Employee or Eligible Director who has deferred payment of Compensation
under the terms of the Plan, including any former 


 


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Eligible Employee or Eligible Director who is receiving or
will become eligible to receive benefits under the Plan at a later date.


 


2.23         The term “Participating Company” shall
mean, with respect to an Eligible Employee, the Company or any affiliate or
subsidiary of the Company employing an Eligible Employee.


 


2.24         The term “Plan” shall mean the Financial
Security Assurance Holdings Ltd. 1995 Deferred Compensation Plan, as set forth
herein and as amended from time to time.


 


2.25         The term “Separation from Service” shall
mean a separation from service within the meaning of Section 409A of the
Code.  A Participant who is an employee
will generally have a Separation from Service if the Participant voluntarily or
involuntarily terminates employment with all Participating Companies and
Affiliates.  A termination of employment
occurs if the facts and circumstances indicate that the Participant and the
Participating Companies reasonably anticipate that no further services will be
performed after a certain date or that the level of bona fide services the
Participant will perform after such date (whether as an employee, director or
other independent contractor) for the Participating Companies and all
Affiliates will decrease to no more than 20 percent of the average level of
bona fide services performed (whether as an employee, director or other
independent contractor) over the immediately preceding 36-month period (or full
period of services if the Participant has been providing services for less than
36 months).   Notwithstanding the
foregoing, the employment relationship is treated as continuing while the
Participant is on military leave, sick leave or other bona fide leave of
absence if the period of leave does not exceed 6 months, or if longer, so long
as the Participant retains the right to reemployment with a Participating
Company or Affiliate under an applicable statute or 


 


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contract.  When a
leave of absence is due to any medically determinable physical or mental
impairment that can be expected to result in death or to last for a period of
at least 6 months and such impairment causes the Participant to be unable to
perform the duties of his or her position or any substantially similar
position, a 29-month maximum period of absence shall be substituted for the 6-month
maximum period described in the preceding sentence.


 


A Participant who is a director will generally have a
Separation from Service upon the expiration of all contracts and agreements
under which services are performed for any Participating Company or Affiliate
if the expiration constitutes a good faith and complete termination of the
contractual relationship.  An expiration
does not constitute a good faith and complete termination of the contractual
relationship if a Participating Company or Affiliate anticipates a renewal of
the contractual relationship or that the director will become an employee.  For this purpose, a renewal of the
contractual relationship is anticipated if the director has not been eliminated
as a possible future director.


 


If the Participant provides services as an employee and as
a director, (i) the services provided as a director are not taken into
account in determining whether the Participant has a Separation from Service as
an employee if the Participant participates in the Plan as an employee,
provided the Participant does not participate as a director in the Plan or any
other nonqualified deferred compensation plan that would be aggregated with the
Plan under Section 409A of the Code and (ii) the services provided as
an employee are not taken into account in determining whether the Participant
has a Separation from Service as a director if the Participant participates in
the Plan as a director, provided the Participant does not participate as an
employee in the Plan or any other nonqualified deferred compensation plan that
is aggregated with the Plan under Section 409A of the Code.  If the Participant participates in the Plan
or any other plan that 


 


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would be aggregated with the Plan under Section 409A
of the Code as both an employee and a director, the Participant will generally
have a Separation from Service under the Plan when the Participant has a
Separation from Service both as an employee and a director.


 


2.26         The term “Unforeseen Emergency” shall
mean a severe financial hardship to the Participant resulting from an illness
or accident of the Participant, the Participant’s spouse, the Participant’s
Beneficiary or the Participant’s dependent (as defined in Section 152 of
the Code without regard to Sections 152(b)(1), 152(b)(2) or
152(d)(1)(B) of the Code), 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.


 


2.27         The term “Year” shall mean the calendar
year.


 


ARTICLE III




PARTICIPATION


 


3.1           Each Eligible Employee and each
Eligible Director who has elected a Deferred Amount shall be a Participant in
the Plan.


 


3.2           An Eligible Employee or Eligible
Director who is a Participant in the Plan shall remain a Participant until the
complete distribution of the Participant’s Account, subject to Article VII
hereof.


 


3.3           Notwithstanding anything in the Plan to
the contrary, the Committee shall be authorized to take such steps as may be
necessary to ensure that the Plan (a) is and remains at all times an
unfunded deferred compensation arrangement for a select group of management or
highly compensated employees, within the meaning of the Employee Retirement
Income 


 


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Security Act of 1974, as amended from time to time and
(b) satisfies the requirements of Section 409A of the Code for the
exclusion from gross income of amounts deferred under the Plan.


 


3.4           To the extent that, due to a change in
law or administrative oversight, a Deferral Amount previously credited under
the Plan would be subject to current income taxes in any non-U.S. jurisdiction
notwithstanding any deferral of Compensation under the Plan , the Company shall
distribute such Compensation, adjusted for gains or losses in accordance with
Article V of the Plan, to the Participant in the form of a lump sum
distribution promptly following confirmation by the Committee of such change in
law or administrative oversight; provided, however, that such distribution
shall be made only to the extent permitted by Section 409A of the Code for
exclusion from gross income of amounts deferred under the Plan.


 


ARTICLE IV




DEFERRAL ELECTIONS


 


4.1           Effective as of December 31, 2004,
Eligible Employees and Eligible Directors shall not be permitted to defer
Compensation under the Plan for services performed after such date.  Compensation for services performed after
December 31, 2004 may be deferred under the New Plan pursuant to the terms
thereof.  For the avoidance of doubt, any
deferrals under the Plan of cash Bonuses earned in 2004 but vested in 2005
shall be deemed to have been deferred under the New Plan rather than under the
Plan.


 


4.2           With respect to Compensation deferred
before January 1, 2005, each Eligible Director and Eligible Employee was
required to specify the Deferral Period applicable to that Deferral
Amount.  With respect to a Deferral
Amount for any Year, the Participant may have 


 


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elected a Deferral Period of a specific number of years,
provided that in no event may the number of years have been less than three
(3).  Alternatively, the Participant may
have elected a Deferral Period which ends on (a) his or her termination of
employment or directorship, as the case may be, (b) the date which is
thirteen (13) months after such termination, or (c) the earlier of such
termination (or the date which is thirteen (13) months after such termination)
or a specified number of years pursuant to the preceding sentence.  A Participant may have elected a different
Deferral Period for each Year’s Deferral Amount or for any specified portion of
any Year’s Deferral Amounts, except that, unless the Committee (or the Chief
Executive Officer in respect of all Participants) otherwise directed, the
Deferral Period referred to in clause (c) of the preceding sentence may
only have been elected by a Participant if so elected for all Deferral Amounts
of such Participant.  Effective as of
September 15, 2008, any election to have a Deferral Period end upon a
termination of employment or directorship shall be deemed to be an election to
have the Deferral Period end upon a Separation from Service.  A Participant may elect to extend, but not
shorten, a previously elected Deferral Period before the end of such previously
elected Deferral Period by the execution of a valid Deferred Compensation Plan
Election Change Form, timely filed with the Company; provided that a Deferral
Period extension must be a minimum of five years.  If such previously elected Deferral Period is
for a specified number of years, the election to extend the Deferral Period
must be made at least 12 months before the end of the previously elected
Deferral Period, and if the previously elected Deferral Period ends upon a
Separation from Service (or the date that is thirteen (13) months after such
Separation from Service), the Deferred Compensation Plan Election Change
Form shall only be effective in respect of Deferral Amounts that would not
otherwise have been distributed during the 12-month period after the filing of
such form.  Notwithstanding the
foregoing, at any time 


 


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before December 31, 2008 (or such earlier date as the
Committee may establish), a Participant shall be entitled to cancel any
previously elected Deferral Period with respect to a Deferral Amount not
otherwise payable in 2008 and elect any new Deferral Period with respect to
such Deferral Amount that the Participant could have elected as an initial
Deferral Period, as set forth above; provided, however, that any newly elected
Deferral Period shall not be required to be at least three years but may not
end earlier than January 1, 2009. 
Such cancellation and new election shall be made by the execution of a
Deferred Compensation Plan Election Change Form, in the form provided by the
Company or accepted by the Committee.


 


4.3           Each initial deferral election was also
required to specify the payment option that will apply for the Deferral Amount,
or any portion thereof, for that Year, and earnings credited on that
amount.  The normal form of payment shall
be a lump sum payment.  A Participant may
have elected that the distribution be made in installments payable over a
specified number of years, not longer than 15 years; provided, however, that in
no event may installment payments have been elected over a number of years that
is more than the Participant’s life expectancy or the life expectancy of the
designated primary Beneficiary, whichever is greater.  If a Participant elected the installment
payment option, the Participant was also required to elect whether installments
should be made annually, quarterly or, if the Committee (or the Chief Executive
Officer in respect of all Participants) directed to offer such alternative,
monthly.  The entitlement to installment
payments shall be treated as the right to a series of separate payments for
purposes of Section 409A of the Code. 
Notwithstanding the foregoing, at any time before December 31, 2008
(or such earlier date as the Committee shall establish), a Participant shall be
entitled to change the payment option that applies to any Deferral Amount to
any payment option otherwise permitted under the Plan; provided, however, that
no such change will apply to amounts 


 


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otherwise payable in 2008 and will not cause any amount
otherwise payable in a later year to be paid in 2008.  Different payment options may be elected with
respect to the Deferral Amount, or any portion thereof, for each Year, and
earnings credited on such amount.  Any
such change in payment options shall be made by the execution of a valid
Deferred Compensation Plan Election Change Form, timely filed with the Company.


 


4.4           Anything in Section 4.2 or 4.3
to the contrary notwithstanding, on his or her Deferred Compensation Plan
Election Form the Participant may have elected that in the event of his or
her death or Disability any Deferral Period or form of distribution election
otherwise applicable to a Deferral Amount is nullified and:
(i) distribution shall be made upon the occurrence of Disability or death;
and (ii) distribution of his or her entire Account, or of any Deferral
Amount, shall be made either in a lump sum or in installments payable over a
specified number of years, not longer than 15. 
Unless otherwise elected pursuant to the preceding sentence, in the
event of the Participant’s death or Disability, payment of a Participant’s
Account shall be made in the form of a lump sum upon such death or Disability,
as applicable.  Notwithstanding the
foregoing, at any time before December 31, 2008 (or such earlier date as
the Committee shall establish), a Participant shall be entitled to change the
payment option that applies in the event of the Participant’s death or
Disability; provided, however, that no such change will apply to amounts
otherwise payable in 2008 and will not cause any amount otherwise payable in a
later year to be paid in 2008.


 


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ARTICLE V



CREDITING OF DEFERRAL AMOUNTS AND

ACCRUAL OF INVESTMENT GAINS OR LOSSES


 


5.1                  All
Deferral Amounts will be credited on the Company’s books in the Account
maintained in such Participant’s name.


 


5.2                  Each month, the balance of
each Participant’s Account shall be credited with earnings or investment gains
and losses as provided below.  The
Committee may establish procedures permitting Participants to designate one or
more investment benchmarks specified by the Chief Executive Officer or the
Committee for the purpose of determining the earnings or investment gains and
losses to be credited or debited to a Participant’s Account.  Investment benchmarks so specified may be
made available to all Participants or selected Participants as the Chief
Executive Officer or the Committee may designate.  The Committee shall have the sole discretion
to make such rules as it deems desirable with respect to the
administration of any such investment benchmark procedures, including
rules permitting the Participant to change the designation of investment
benchmarks to be used to measure the value of the Account.  The Committee, however, retains the
discretion at any time to change the investment benchmarks available to
Participants, including any investment benchmarks previously specified by the
Chief Executive Officer, or to discontinue the investment benchmark
procedure.  If the Committee fails to
implement an investment benchmark procedure or discontinues such procedure, the
Participant’s Account shall be credited with earnings at a reasonable rate
determined by the Committee in its sole discretion, utilizing whatever factors
or indicia it deems appropriate; provided, however, that the rate of return on
a Participant’s Account in such circumstances shall not be less than the JP
Morgan Chase Bank prime rate plus one percent per annum.  If the 


 


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Participant fails to
designate properly an investment benchmark, the Participant’s Account shall be
credited with earnings at a reasonable rate determined by the Committee in its
sole discretion, utilizing whatever factors or indicia it deems appropriate;
provided, however, that the rate of return on a Participant’s Account in such
circumstances shall not be less than the “money market account” benchmark
available to Participants at the time or, if no such benchmark shall be
available, then not less than the rate of interest on 90-day treasury bills for
the applicable period as determined by the Committee.  Nothing in this Article V or in the
Committee’s rules shall give a Participant the right to require the
Company or a Participating Company to acquire any asset for the Account of the
Participant, and if the Company or a Participating Company acquires any asset,
or causes a trustee on its behalf to acquire any asset, to permit it to satisfy
its obligations to pay the Participant’s Deferral Amount, the Participant shall
have no right or interest in any such asset, which shall be held by the Company
or the Participating Company subject to the rights of all unsecured creditors
of the Company or the Participating Company. 
The rights of the Participant with respect to any designation of one or
more investment benchmarks for measuring the value of any Account hereunder
shall be expressly subject to the provisions of Article IX of the Plan.


 


ARTICLE VI



COMMENCEMENT OF BENEFITS


 


6.1           At the end of the Deferral Period
selected by a Participant with respect to each Deferral Amount or, if
applicable, Separation from Service, the amount credited with respect to such
Deferral Amount shall be distributable to such Participant in the form of
payment selected.  Notwithstanding the
foregoing, any distribution payments due on account of a Participant’s Separation
from Service and otherwise payable during the six-month period following the 


 


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Participant’s Separation from Service shall be paid on the
first regular payroll payment date after such six-month period.


 


6.2           Notwithstanding Section 6.1, each
Participant’s Account shall be distributed in accordance with Section 4.4
in the event of the Participant’s death or Disability; provided, however, that
if the Participant becomes entitled to a distribution pursuant to
Section 6.1 on account of the Participant’s Separation from Service and
the Participant subsequently becomes Disabled, any distribution payments
otherwise payable during the six-month period following the Participant’s
Separation from Service shall be paid on the first regular payroll payment date
after such six-month period to the extent required under Section 409A of
the Code to avoid taxation under Section 409A(a)(1), as interpreted by the
Committee in its sole discretion.


 


6.3           Notwithstanding any other provision of
the Plan to the contrary, the Committee, in its sole discretion, shall have the
right, but shall not be required, to distribute all or any portion of a
Participant’s benefits under the Plan in the form of any investment or security
chosen by the Participant at any time as an investment benchmark for measuring
the value of his or her Account pursuant to Section 5.2 of the Plan.


 


6.4           If the Participant or the Participant’s
Beneficiary is entitled to receive any benefits hereunder and is in his or her
minority, or is, in the judgment of the Committee, legally, physically or
mentally incapable of personally receiving and receipting any distribution, the
Committee may make distributions to a legally appointed guardian or to such
other person or institution as, in the judgment of the Committee, is then
maintaining or has custody of the payee.


 


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6.5           After all benefits have been
distributed in full to the Participant or to the Participant’s Beneficiary, all
liability under the Plan to such Participant or to his or her Beneficiary shall
cease.


 


6.6           To the extent required by law in effect
at the time payments are made, the Company or other Participating Company shall
withhold from payments made hereunder the minimum taxes required to be withheld
by the federal or any state or local government, or such greater withholding
amount as a Participant or the Participant’s Beneficiary may designate.


 


6.7           Amounts that are due upon a specified
date or event shall be paid upon such date or event; provided, however,
pursuant to the final regulations under Section 409A of the Code, amounts
that are paid on a later date within the same calendar year or, if later, the
fifteenth day of the third calendar month following the specified date or event
shall be treated as made on the specified date or event.


 


ARTICLE VII



BENEFICIARY DESIGNATION


 


The Participant may, at
any time, designate a Beneficiary or Beneficiaries to receive the benefits
payable in the event of his or her death (and may designate a successor
Beneficiary or Beneficiaries to receive any benefits payable in the event of
the death of any other Beneficiary). 
Each Beneficiary designation shall become effective only when filed in
writing with the Company during the Participant’s lifetime on a form prescribed
or accepted by the Company (a “Beneficiary Designation Form”).  The filing of a new Beneficiary Designation
Form will cancel any Beneficiary Designation Form previously filed.  If no Beneficiary shall be designated by the
Participant, or if the designated Beneficiary or Beneficiaries shall not
survive the Participant, payment of the Participant’s Account shall be made to
the Participant’s estate.  If a
Participant designated that 


 


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payments be made in
installments and did not designate a successor Beneficiary, the Beneficiary of
such Participant may submit a Beneficiary Designation Form in respect of
himself or herself and the provisions of the Plan shall apply to such
Beneficiary as if the Beneficiary were the Participant hereunder.


 


ARTICLE VIII



MAINTENANCE AND VALUATION OF ACCOUNTS


 


8.1           The Company shall establish and
maintain a separate bookkeeping Account on behalf of each Participant.  The value of an Account as of any date shall
equal the Participant’s Deferral Amounts theretofore credited to such Account
plus the earnings and investment gains and losses credited to such Account in
accordance with Article V of the Plan through the day preceding such date
and less all payments made by the Company to the Participant or his or her
Beneficiary or Beneficiaries through the day preceding such date.


 


8.2           Each Account shall be valued by the
Company as of each December 31 or on such more frequent dates as
designated by the Company.  Accounts also
may be valued by the Company as of any other date as the Company may authorize
for the purpose of determining payment of benefits, or any other reason the
Company deems appropriate.


 


8.3           The Company shall submit to each
Participant, within 60 (sixty) days after the close of each Year, a statement
in such form as the Company deems desirable setting forth the balance standing
to the credit of each Participant in his or her Account, including Deferral
Amounts, earnings and investment gains or losses and Deferral Periods.


 


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ARTICLE IX



FUNDING


 


9.1         The benefits contemplated hereunder may
be paid directly by the Company, any other Participating Company or through any
trust established by the Company hereunder to assist in meeting its
obligations.  Nothing contained herein,
however, shall create any obligation on the part of the Company or any other
Participating Company to set aside or earmark any monies or other assets
specifically for payments under the Plan.


 


9.2         Notwithstanding anything in the Plan to
the contrary, Participants and their Beneficiaries, heirs, successors and
assigns shall have no legal or equitable rights, interest or claims in any
specific property or assets of the Company or any other Participating Company,
nor shall they be beneficiaries of, or have any rights, claims or interests in,
any funds, securities, life insurance policies, annuity contracts, or the
proceeds therefrom, owned or which may be acquired by the Company.  Such funds, securities, policies or other
assets shall not be held in any way as collateral security for the fulfillment
of the obligations under the Plan.  Any
and all of such assets shall be, and remain, for purposes of the Plan, the
general unpledged, unrestricted assets of the Company or Participating Company,
as the case may be.


 


9.3         The obligation under the Plan shall be
merely that of an unfunded and unsecured promise of the Company, or
Participating Company pursuant to the succeeding sentence, to pay money in the
future.  By action of its board of
directors, any Participating Company may assume joint and several liability
with the Company with respect to any obligations under the Plan for Eligible
Employees or Eligible Directors of the Participating Company.


 


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ARTICLE X



AMENDMENT AND TERMINATION


 


10.1         The Board, or its duly authorized
delegates, may at any time amend the Plan in whole or in part; provided,
however, that no amendment shall be effective to decrease the accrued benefits
or rights of any Participant under the Plan except to the extent necessary or
desirable to comply with the requirements of Section 409A of the Code as
interpreted by the Committee in its sole discretion for the exclusion from
gross income of amounts deferred under the Plan.  Written notice of any such amendment shall be
given to each Participant.


 


10.2         The Board may at any time terminate the
Plan; provided, however, that such termination shall not decrease the accrued
benefits or rights of any Participant under the Plan.  Upon any termination of the Plan under this
Section 10.2, Participants shall thereafter be prohibited from making any
changes to any Deferral Periods, and Deferral Amounts shall be paid to
Participants as soon as permissible under Section 409A of the Code as
interpreted by the Committee in its sole discretion for the exclusion from
gross income of amounts deferred under the Plan, notwithstanding any election
made by Participants with respect to Deferral Periods.  Accounts shall be maintained and distributed
pursuant to such terms, at such times and upon such conditions as were
effective immediately prior to the termination of the Plan; provided, however,
that the Committee, in its discretion, may direct that all benefits payable
under the Plan be distributed in the form of a lump sum distribution following
the Plan’s termination to the extent permitted by Section 409A of the Code
as interpreted by the Committee for exclusion from gross income of amounts deferred
under the Plan.


 


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ARTICLE XI



FINANCIAL HARDSHIP WITHDRAWALS


 


11.1         Subject to the provisions set forth
herein, a Participant may withdraw up to 100% (one hundred percent) of his or
her Account balance as necessary to satisfy immediate and heavy financial needs
of the Participant which the Participant is unable to meet from any other
resource reasonably available to the Participant due to the occurrence of an
Unforeseen Emergency, as determined in the sole discretion of the
Committee.  The amount of such hardship
withdrawal may not exceed the amount reasonably necessary to meet such need
plus taxes reasonably anticipated as a result of such 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).  The Participant shall be required to furnish
evidence of qualification for a financial hardship withdrawal to the Committee
on forms prescribed by or acceptable to the Company.


 


ARTICLE XII



ADMINISTRATION


 


12.1         The administration of the Plan shall be
vested in the Committee.


 


12.2         The Committee shall have general charge
of the administration of the Plan and shall have full power and authority to
make its determinations effective.  All
decisions of the Committee shall be by a vote of the majority of its members
and shall be final and binding unless the Board shall determine otherwise.  Members of the Committee, whether or not
Eligible Employees or Eligible Directors, shall be eligible to participate in
the Plan while serving as a 


 


19













 


member of the Committee, but a member of the Committee
shall not vote or act upon any matter which relates solely to such member as a
Participant.  The Committee may delegate
to any agent or to any sub-committee or member of the Committee its authority
to perform any act hereunder, including, without limitation, those matters
involving the exercise of discretion, provided that such delegation shall be
subject to revocation at any time by the Committee.


 


12.3         In addition to all other powers vested in
it by the Plan, the Committee shall have power to interpret the Plan, to
establish and revise rules and regulations relating to the Plan and to
make any other determinations that it believes necessary or advisable for the
administration of the Plan, including rules restricting the availability
to some or all Participants of deferral period alternatives, investment
benchmarks, or distribution alternatives otherwise available under the
Plan.  The Committee shall have absolute
discretion and all decisions made by the Committee pursuant to the exercise of
its authority (including, without limitation, any interpretation of the Plan)
shall be final and binding, in the absence of arbitrary or capricious action,
on all persons and shall be accorded the maximum deference permitted by law.


 


12.4         The Company shall indemnify and hold
harmless the members of the Committee against any and all claims, loss, damage,
expense or liability arising from any action or failure to act with respect to
the Plan to the fullest extent permitted by law.


 


ARTICLE XIII


 


CLAIMS
PROCEDURES


 


13.1         The Company shall appoint an individual
or committee of individuals (the “Decisionmaker”) to evaluate claims made under
the Plan.  Within 90 days after the
Company receives a written claim for benefits under the Plan, the Decisionmaker
will either approve the 


 


20













 


claim or notify the claimant that the claim is denied.  The Decisionmaker may extend this time period
by up to an additional 90 days under special circumstances and shall notify the
claimant of the extension and the reasons therefore within the initial 90-day
period.


 


Notwithstanding
the foregoing, to the extent that a claim relates to a distribution or benefit
due as a result of a Disability (a “Disability Benefit”), the Decisionmaker
shall notify a claimant of the denial of a claim for Disability Benefits under
the Plan within a reasonable period of time, but not later than 45 days, after
receipt of a written claim.  This period
may be extended by the Decisionmaker for two additional periods of up to 30
days each if the Decisionmaker determines that the extension is necessary due
to matters beyond its control and notifies the claimant of the extension and
the reasons therefore before the expiration of the applicable period.  Such notices of extension shall specifically
explain the standards on which entitlement to a Disability Benefit is based,
the unresolved issues that prevent a decision on the claim and the additional
information (if any) needed to resolve those issues.  If additional information is needed, the
claimant shall have at least 45 days to provide the information.


 


13.2         If a claim is denied, in whole or in
part, the Decisionmaker shall furnish to the claimant, at the time of the
denial, a written notice setting forth in a manner calculated to be understood
by the claimant: (i) the reason(s) for the denial, including a
reference to any applicable provisions of the Plan; (ii) a description of
any additional material or information necessary for the claimant to perfect
the claim and an explanation of why such material or information is necessary;
and (iii) an explanation of the Plan’s review procedures and the time
limits applicable to such procedures.  In
addition, if a claim for Disability Benefits is denied, the notice of denial
shall inform the claimant of any internal rule, guideline, protocol or other
similar 


 


21













 


criterion relied upon in denying the claim and identify any
health care professional consulted in connection with the denial.


 


13.3         A claimant who has received a notice
denying a claim, in whole or in part, may request in writing a review of the
claim within 60 days (180 days for denials of claims for Disability Benefits)
after receiving a notice of denial.  Such
request may be made either in person or by a duly authorized representative and
shall set forth all the bases of the request for review, any facts supporting
the review and any issues or comments the claimant deems pertinent.  The claimant may submit documents, records
and other information in support of the review and shall be provided upon
request, free of charge, reasonable access to and copies of all documents, records
and other information relevant to the claimant’s appeal.


 


13.4         The Company shall appoint an individual
or committee of individuals to review the appeal of any claim denial under the
Plan (the “Claim Reviewer”).  The Claim
Reviewer shall make a decision with respect to a claim review promptly, but not
later than 60 days (45 days in the case of denials of claims for Disability
Benefits) after receipt of the appeal. 
The Claim Reviewer may extend this time period by up to an additional 60
days (45 days in the case of denials of claims for Disability Benefits) under
special circumstances by providing the claimant with notice of the extension
and the reasons therefore within the initial 60-day (or 45-day) period.  The Claim Reviewer will be a different person(s) from
the person(s) who made the initial determination and will not be a
subordinate of the original Decisionmaker or a relative of such
subordinate.  The Claim Reviewer will not
grant deference to the initial decision and will consider all information
submitted, regardless of whether it was considered in connection with the
initial claim.


 


22










 


In
deciding an appeal from the denial of a claim for Disability Benefits that is
based in whole or in part on a medical judgment, the Claim Reviewer shall
consult with a health care professional who has the appropriate training and
experience in the field of medicine involved in the medical judgment.  Such health care professional will not be the
individual, if any, who was consulted in connection with the denial that is the
subject of the appeal, nor a subordinate of such individual.


 


The
final decision of the Claim Reviewer shall be in writing, give specific reasons
for the decision, provide specific references to the pertinent provisions of
the Plan on which the decision is based and include both a statement that the
claimant is entitled to receive, upon request and free of charge, reasonable
access to and copies of all documents, records and other information relevant
to the claimant’s claim for benefits and a statement of the claimant’s right to
bring an action in court.  In addition,
if an appeal of a claim for Disability Benefits is denied, the notice of denial
shall inform the claimant of any rule, guideline, protocol or other similar
criterion relied upon in making the adverse benefit determination and identify
the health care professional consulted in connection with the appeal.


 


ARTICLE XIV



GENERAL PROVISIONS


 


14.1         Neither the establishment of the Plan,
nor any modification thereof, nor the creation of an Account, nor the payment
of any benefits shall be construed: 
(a) as giving the Participant, Beneficiary or other person any
legal or equitable right against the Company unless such right shall be
specifically provided for in the Plan or conferred by affirmative action of the
Company in accordance with the terms and provisions of the Plan; or (b) as
giving an Eligible 


 


23













 


Employee the right to be retained in the service of a
Participating Company or to continue as a member of the Board or the board of
directors of any Participating Company, and the Participant shall remain
subject to discharge or removal to the same extent as if the Plan had never
been established.


 


14.2         No interest of any Participant or
Beneficiary hereunder shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by creditors of the Participant or the Participant’s
Beneficiary.  Notwithstanding the
foregoing, pursuant to rules comparable to those applicable to qualified
domestic relations orders, as determined by the Committee, the Committee may
direct a distribution prior to any distribution date otherwise described in the
Plan, to an alternate payee (as defined under the rules applicable to
qualified domestic relations orders) to the extent permitted by
Section 409A of the Code as interpreted by the Committee for exclusion
from gross income of amounts deferred under the Plan.


 


14.3         Notwithstanding any other provision of the Plan to the
contrary, the Plan is intended to comply with the requirements of Code
Section 409A to avoid taxation under Code Section 409A(a)(1) and
shall, at all times, be interpreted and operated in a manner consistent with
this intention.  Under no circumstances,
however, shall the Company or any of its affiliates have any liability to any
person for any taxes, penalties or interest due on amounts paid or payable
under the Plan, including any taxes, penalties or interest imposed under Code
Section 409A(a)(1).


 


24













 


14.4         All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, as the identity
of the person or persons may require.  As
the context may require, the singular may be read as the plural and the plural
as the singular.


 


14.5         Any notice or filing required or
permitted to be given to the Committee under the Plan shall be sufficient if in
writing and delivered, or sent by registered or certified mail, to the
principal office of the Company, directed to the attention of each of the President
and the General Counsel of the Company. 
Such notice shall be deemed given as of the date of receipt.


 


14.6         Should any provision of the Plan or any
rule or procedure thereunder be deemed or held to be unlawful or invalid
for any reason, such fact shall not adversely affect the other provisions of
the Plan, or any rule or procedure thereunder, unless such invalidity
shall render impossible or impractical the functioning of the Plan, and, in
such case, the appropriate parties shall immediately adopt a new provision or
rule or procedure to take the place of the one held illegal or invalid.


 


14.7         Any dispute, controversy or claim between
the Company and any Participant, Beneficiary or other person arising out of or
relating to the Plan shall be settled by arbitration conducted in the City of
New York, in accordance with the Commercial Rules of the American
Arbitration Association then in force and New York law.  In any dispute or controversy or claim challenging
any determination by the Committee, the arbitrator(s) shall uphold such
determination in the absence of the arbitrator’s finding of the presence of
arbitrary or capricious action by the Committee.  The arbitration decision or award shall be
final and binding upon the parties.  The
arbitration shall be in writing and shall set forth the basis therefor.  The parties hereto shall abide by all awards
rendered in such arbitration proceedings, and all such awards 


 


25













 


may be enforced and executed upon in any court having
jurisdiction over the party against whom enforcement of such award is
sought.  Each party shall bear its own
costs with respect to such arbitration, including reasonable attorneys’ fees;
provided, however, that:  (i) the
fees of the American Arbitration Association shall be borne equally by the
parties; and (ii) if the arbitration is resolved in favor of the
Participant, Beneficiary or other person asserting a claim under the Plan, such
person’s cost of the arbitration and the fees of the American Arbitration
Association shall be paid by the Company.


 


14.8         Nothing contained herein shall preclude a
Participating Company from merging into or with, or being acquired by, another
business entity.


 


14.9         The liabilities under the Plan shall be
binding upon any successor or assign of the Company, or of another
Participating Company that has assumed liability pursuant to Section 9.3,
and upon any purchaser of substantially all of the assets of the Company or
such Participating Company.  Subject to
Section 10.2, this Plan shall continue in full force and effect after such
an event, with all references to the “Company” or a “Participating Company”
herein referring also to such successor, assignor or purchaser, as the case may
be.


 


14.10       The Plan shall be governed by the laws of
the State of New York to the extent they are not preempted by the Employee
Retirement Income Security Act of 1974, as amended from time to time.


 


14.11       The titles of the Articles in the Plan are
for convenience of reference only, and, in the event of any conflict, the text
rather than such titles shall control.


 


26













 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  ESTABLISHMENT AND PURPOSE OF THE PLAN

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  PARTICIPATION

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  DEFERRAL ELECTIONS

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V 

  	
  CREDITING OF DEFERRAL AMOUNTS AND ACCRUAL OF INVESTMENT GAINS OR
  LOSSES

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  COMMENCEMENT OF BENEFITS

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  BENEFICIARY DESIGNATION

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  MAINTENANCE AND VALUATION OF ACCOUNTS

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  FUNDING

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  AMENDMENT AND TERMINATION

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  FINANCIAL HARDSHIP WITHDRAWALS

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  ADMINISTRATION

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  CLAIMS
  PROCEDURES

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  GENERAL PROVISIONS

  	
   

  	
  23