Exhibit 10.3


 


JANUS CAPITAL GROUP INC.


 


AMENDED AND RESTATED DIRECTOR DEFERRED

FEE PLAN


 


EFFECTIVE AS OF


JANUARY 1, 2005 


AMENDED AS OF OCTOBER 20, 2008


 


ARTICLE I -
INTRODUCTION


 


Janus Capital Group Inc. (the “Company”) has
established the Janus Capital Group Inc. Director Deferred Fee Plan (the “Plan”)
to permit eligible members of the Company’s board of directors to defer their
fees and certain stock awards made under its director compensation programs.
The Plan was originally adopted June 12, 2000, and was subsequently
restated on May 12, 2004, January 1, 2005 and January 22, 2008.
This document, which is a complete restatement of the Plan, is effective as of October 20,
2008, and it shall apply to amounts that are considered deferred after December 31,
2004 for purposes of Section 409A. Prior deferrals shall continue to be
governed by the terms of the May 12, 2004 restatement.


 


This document sets forth the terms of the
Plan for applicable deferrals, specifying the group of Directors of the Company’s
board of directors who are eligible to make deferrals, the procedures for
electing to defer compensation and the Plan’s provisions for maintaining and
paying out amounts that have been deferred.


 


The Plan shall be unfunded and unsecured, and
amounts deferred by an Eligible Director are an obligation of the Company.


 


ARTICLE II -
DEFINITIONS


 


When used in this Plan, the following
underlined terms shall have the meanings set forth below unless a different
meaning is plainly required by the context:


 

















 


2.01         Account:


 


The account maintained for a Participant on
the books of the Company to determine, from time to time, the Participant’s
interest under this Plan. The balance in such Account shall be determined by
the Plan Administrator’s delegate. Each Participant’s Account shall consist of
at least one Deferral Subaccount for each separate deferral of Monetary Fees or
Stock Fees under Section 4.02. The Plan Administrator’s delegate may also
establish such additional Deferral Subaccounts as it deems necessary for the proper
administration of the Plan. The Plan Administrator’s delegate may also combine
Deferral Subaccounts to the extent it deems separate accounts are not needed
for sound recordkeeping; provided, that a Monetary Fee Subaccount may not be
combined with a Stock Fee Subaccount and a Stock Fee Subaccount may not be
combined with a Monetary Fee Subaccount. Where appropriate, a reference to a
Participant’s Account shall include a reference to each applicable Deferral
Subaccount that has been established thereunder.


 


2.02         Beneficiary:


 


The person or persons (including a trust or
trusts) properly designated by a Participant, as determined by the Plan
Administrator’s delegate, to receive the amounts in one or more of the
Participant’s Deferral Subaccounts in the event of the Participant’s death. To
be effective, any Beneficiary designation must be in writing, signed by the
Participant, and filed with the Plan Administrator’s delegate prior to the
Participant’s death. In addition, the designation must meet such other
standards as the Plan Administrator shall require from time to time. If no
designation is validly in effect at the time of a Participant’s death or if all
designated Beneficiaries have predeceased the Participant, then the Participant’s
Beneficiary shall be his or her Spouse. If the Participant has no Spouse or if
the Participant’s Spouse has predeceased the Participant, then the Participant’s
Beneficiary shall be his or her children (paid on a per stirpes basis). If the
Participant has no children or if the Participant’s children have predeceased
the Participant, then the Participant’s Beneficiary shall be his or her estate.
A Beneficiary designation of an individual by name (or name and relationship)
remains in effect regardless of any change in the designated individual’s
relationship to the Participant. A Beneficiary designation solely by
relationship (for example, a designation of “Spouse,” that does not give the
name of the Spouse) shall designate whoever is the person in that relationship
to the Participant at his or her death. An individual who is otherwise a
Beneficiary with respect to a Participant’s Account ceases to be a Beneficiary
when all payments have been made from the Account.


 


2.03         Board:


 


The Board of Directors of the Company.


 


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2.04         Change in Ownership:


 


A change in the ownership or effective
control of the Company, or in the ownership of a substantial portion of the
assets of the Company, as defined in Reg. 1.409A-3(i)(5).


 


2.05         Code:


 


The Internal Revenue Code of 1986, as amended
from time to time.


 


2.06         Company:


 


Janus Capital Group Inc., a corporation
organized and existing under the laws of the State of Delaware, or its
successor or successors.


 


2.07         Deferral Subaccount:


 


A subaccount of a Participant’s Account
maintained to reflect his or her interest in the Plan attributable to each
deferral (or separately tracked portion of a deferral) of Monetary Fees and
Stock Fees, respectively, and earnings or losses credited to such subaccount in
accordance with Article V. Each Deferral Subaccount shall be classified as
either a Monetary Fee Subaccount or a Stock Fee Subaccount.


 


2.08         Disability:


 


A Participant shall be considered to suffer
from a Disability, if, in the judgment of the Plan Administrator’s delegate,
the Participant -


(a)           Is unable to engage in any
substantial gainful activity 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, or


 


(b)           Is, 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.


 


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2.09         Distribution Date:


 


Distribution Date shall have the same meaning
as Valuation Date; provided, however, if the Valuation Date is more frequent
than once per month, the Distribution Date shall mean the first day of each
month.


 


2.10         Dividend Equivalent:


 


A Dividend Equivalent shall be provided to
reflect the cash, Stock or other property dividends paid on actual shares of
Stock. The amount and character of the Dividend Equivalent shall be determined
by the Plan Administrator’s delegate, to the extent possible, based on the
dividends the Participant’s Stock Fee Subaccount would receive if it held
actual shares equal in number to the phantom units existing in the Participant’s
Stock Fee Subaccount on the record date of the actual dividend.


 


2.11         Election Form:


 


The form prescribed by the Plan Administrator’s
delegate on which a Participant specifies the amount of his or her Monetary
Fees and Stock Fees to be deferred pursuant to the provisions of Article IV.
An Election Form need not exist in a paper format, and it is expressly
contemplated that the Plan Administrator’s delegate may adopt such
technologies, including voice response systems, emails, electronic forms and
internet or intranet sites, as it deems appropriate from time to time.


 


2.12         Eligible Director:


 


The term, Eligible Director, shall have the
meaning given to it in Section 3.01(b).


 


2.13         ERISA:


 


Public Law 93-406, the Employee Retirement
Income Security Act of 1974, as amended from time to time.


 


2.14         Fair Market Value:


 


The closing price on the applicable date (or
if such date is not a trading date, the immediately preceding date that is a
trading date) for Stock as reported on the composite tape for securities listed
on the New York Stock Exchange, Inc., rounded to four decimal places.


 


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2.15         Fees:


 


The Monetary Fees and the Stock Fees,
collectively.


 


2.16         Key Employee:


 


Any Eligible Director or former Eligible
Director who as of December 31st of the Plan Year preceding the Plan Year
in which the Director incurs a Separation from Service:  –


 


(a)           an officer of the Company that
maintains a “Vice President” or higher office (or equivalent designation) as
defined by the Human Resources Department of the Company;;


 


(b)           a 5 percent owner of the Company; or


 


(c)           a 1-percent owner of the Company
having annual compensation of more than $150,000.


 


2.17         Monetary Fees:


 


Direct monetary remuneration to the extent
paid in U.S. dollars to the Eligible Director by the Company. Monetary Fees
shall be limited to the amount due an Eligible Director for the discharge of
his or her duties as a member of the Board, and shall be reduced for any
amounts that the Plan Administrator recognizes as reducing the amount of
Monetary Fees available for deferral. Monetary Fees shall not include the
amount of any reimbursement by the Company for expenses incurred by the
Eligible Director in the discharge of his or her duties as a member of the
Board.


 


2.18         Monetary Fee Subaccount:


 


The one or more Deferral Subaccounts that
track the Participant’s deferrals of Monetary Fees and the earnings and losses
applicable thereto.


 


2.19         Participant:


 


Any Eligible Director who is qualified to
participate in this Plan in accordance with Section 3.01 and who has an
Account. An active Participant is one who is currently deferring under Section 4.01.


 


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2.20         Plan:


 


The Janus Capital Group Inc. Director
Deferred Fee Plan, as set forth herein and as it may be amended and restated
from time to time.


 


2.21         Plan Administrator:


 


The Board or a committee appointed by the
Board to administer the Plan (“Plan Committee”). The Plan Committee shall
consist of two or more directors of the Company, all of whom qualify as “non-employee
directors” within the meaning of Rule 16b-3. The number of members of the
Plan Committee shall from time to time be increased or decreased, and shall be
subject to such conditions, in each case as the Board deems appropriate to
permit transactions in securities (including derivative securities) of the
Company pursuant to the Plan to satisfy such conditions of Rule 16b-3 as
then in effect.


 


2.22         Plan Year:


 


The 12-consecutive month period beginning on January 1
and ending on December 31.


 


2.23         Section 409A:


 


Section 409A of the Code and the
applicable regulations and other guidance of general applicability that is
issued thereunder.


 


2.24         Separation from Service:


 


A Participant’s separation from service with
the Company and all other Company subsidiaries and affiliates, which meets the
requirements of Section 409A(a)(2)(A)(i).


 


2.25         Spouse:


 


An individual shall be considered a
Participant’s Spouse for purposes of this Plan if - (i) the individual is
of the opposite gender to the Participant, (ii) the individual and the
Participant are considered to be legally married (including a common law
marriage, if the common law marriage was formed in one of the states that
permit the formation of a common law marriage), and (iii) the marriage of
the individual and the Participant is recognized on the relevant day as valid
in the state where the Participant resides.


 


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2.26         Start Date:


 


The effective date that this Plan was amended
and restated, which is January 1, 2005.


 


2.27         Stock:


 


The Company’s common stock, $0.01 par value.


 


2.28         Stock Fees:


 


Restricted Stock awarded to an Eligible
Director pursuant to the 1998 Long Term Incentive Stock Plan or any successor
plan that is recognized by the Plan Administrator as eligible for deferral for
purposes of this Plan.


 


2.29         Stock Fee Subaccount:


 


The one or more Deferral Subaccounts that
track the Participant’s deferrals of Stock Fees and the earnings and losses
applicable thereto.


 


2.30         Unforeseeable Emergency:


 


A severe financial hardship to the
Participant resulting from -


 


(a)           An illness or accident of the
Participant, the Participant’s Spouse or a dependent (as defined in Code
section 152(a)) of the Participant;


 


(b)           Loss of the Participant’s property
due to casualty; or


 


(c)           Any other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant.


 


The Plan Administrator’s delegate shall
determine the occurrence of an Unforeseeable Emergency in accordance with Section 409A(a)(2)(B)(ii).


 


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2.31         Valuation Date:


 


Each date as specified by the Plan
Administrator from time to time as of which Participant Accounts are valued in
accordance with Plan procedures that are currently in effect. As of the Start
Date, the Valuation Dates are March 31, June 30, September 30
and December 31. In accordance with procedures that may be adopted by the
Plan Administrator, any current Valuation Date may be changed. Values are
determined as of the close of a Valuation Date or, if such date is not a
business day, as of the close of the immediately preceding business day.


 


ARTICLE III -
ELIGIBILITY AND PARTICIPATION


 


3.01         Eligibility to Participate.


 


(a)           Only Eligible Directors, as defined
below, shall be eligible to make an initial deferral of compensation under this
Plan. During the period an individual satisfies all of the eligibility
requirements of this Section, he or she shall be referred to as an Eligible
Director.


 


(b)           An Eligible Director shall mean any
individual who is currently a member of the Board and who is not currently an
employee of the Company or one of its affiliates.


 


(c)           Each Eligible Director becomes an
active Participant on the date an amount is first withheld from his or her
compensation pursuant to an Election Form submitted by the Eligible
Director to the delegate of the Plan Administrator in accordance with Section 4.01.


 


3.02         Termination of Eligibility to Defer.


 


A Participant’s eligibility to make future
deferrals under Section 4.01 shall terminate upon the date he or she
ceases to be an Eligible Director. After termination of an individual’s
eligibility to make deferrals under the Plan and until termination of
participation in accordance with Section 3.03, the individual shall be an
inactive Participant in this Plan.


 


3.03         Termination of Participation.


 


An individual, who is a Participant (whether
active or inactive) under the Plan, ceases to be a Participant on the date his
or her Account is fully paid out.


 


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ARTICLE IV -
DEFERRAL OF COMPENSATION


 


4.01         Deferral Elections.


 


(a)           Each Eligible Director may make an
election to defer under the Plan any whole percentage of his or her Monetary
Fees (up to 100%) in the manner described in Section 4.02. Any percentage
of Monetary Fees deferred by an Eligible Director for a Plan Year shall be
deducted in each payment period during the Plan Year for which he or she has
Monetary Fees and is an Eligible Director. In addition, each Eligible Director
may make an election to defer under the Plan any whole number of shares
included in his or her Stock Fees (up to the entire award). Any portion of
Stock Fees elected for deferral by an Eligible Director for a Plan Year shall
reduce the shares of Stock Fees otherwise payable to the Eligible Director and
shall be deemed deferred at the time these Stock Fees would otherwise be issued
to the Director, provided he or she remains an Eligible Director at such time.


 


(b)           Notwithstanding subsection (a) above,
the Plan Administrator in its discretion may implement rules and
procedures from time to time that allow Eligible Directors - (1) to elect
to defer Monetary Fees and/or Stock Fees using other measures, such as
deferring Monetary Fees in whole dollar amounts and Stock Fees in percentages,
or (2) to specify a dollar maximum that would limit their deferral elections
of Monetary Fees and/or Stock Fees.


 


(c)           To be effective, an Eligible
Director’s Election Form must set forth - (i) the portion of Monetary
Fees and/or Stock Fees to be deferred in accordance with subsection (a) above
(or based on an alternative measure in accordance with subsection (b)), (ii) in
the case of deferrals of Monetary Fees, the initial phantom investment option
or options under Section 5.02 to which the will be credited initially, (iii) the
Eligible Director’s Beneficiary designation (in accordance with Section 4.02(e)),
and (iv) any other information that may be required by the Plan Administrator
from time to time. In addition, the Election Form may, but is not required
to, include a form of payment election as provided by Section 4.03 below.
All Election Forms must also meet the requirements of Section 4.02 below.


 


4.02         Time and Manner of Deferral Election.


 


(a)           Deferrals of Monetary Fees. Except
as set forth below, an Eligible Director must make a deferral election for a
Plan Year with respect to Monetary Fees by November 30th of the Plan Year
preceding the Plan Year in which the services are performed for which the
Monetary Fees would otherwise be paid. An individual who newly becomes an
Eligible Director (and who was not previously an Eligible Director during prior
Plan Years and was not eligible to participate in any plan of the Company 


 


9

















 


that would be
aggregated with the Plan under Reg. 1.409A-1(c)) will have 30 days from the
date the individual becomes an Eligible Director to make an election with
respect to compensation earned for payment periods that begin after the
election is received (if this 30-day period ends later than the deadline under
the preceding sentence).


 


(b)           Deferrals of Stock Fees. Except as
set forth below, an Eligible Director must make a deferral election for a Plan
Year with respect to Stock Fees by November 30th of the Plan
Year preceding the Plan Year in which the services are performed for which the
Stock Fees are granted.  To the extent it
results in a later deferral deadline than applicable under the preceding two
sentences, an individual who newly becomes an Eligible Director during a Plan
Year (and who was not previously an Eligible Director during prior Plan Years
and was not eligible to participate in any plan of the Company that would be
aggregated with the Plan under Reg. 1.409A-1(c)) may make a deferral election
with respect to his or her Stock Fees that relate to services to be performed
after the date of the election so long as the deferral election is made within
30 days of the date the individual becomes an Eligible Director.


 


(c)           General Provisions. A separate
deferral election must be made by an Eligible Director for each category of
compensation that is eligible for deferral. If an Eligible Director fails to
file a properly completed and executed Election Form with the Plan
Administrator’s delegate by the prescribed time, he or she will be deemed to
have elected not to defer any Monetary Fees or Stock Fees, as the case may be,
for the applicable Plan Year. An election is irrevocable once received and
determined by the delegate of the Plan Administrator to be properly completed.
Increases or decreases in the amount or percentage a Participant elects to
defer shall not be permitted once an election has become irrevocable.
Notwithstanding the preceding provisions of this Section, to the extent
necessary because of circumstances beyond the control of the Eligible Director
and in the interests of orderly Plan administration (or to avoid undue hardship
to an Eligible Director), the Plan Administrator may grant an extension of any
election period or may permit the complete revocation of an election, but such
extension or revocation shall not permit an election or revocation to be made
after the latest time permissible for initial elections under Section 409A.


 


(d)           Beneficiaries. To be considered
complete, the first Election Form filed by a Participant shall designate
the Beneficiary to receive payment, in the event of his or her death, of the
amounts credited to his or her applicable Deferral Subaccounts. Any Beneficiary
designation made on a subsequent Election Form or through a separate
Beneficiary designation shall apply on an aggregate basis to all of a Participant’s
Deferral Subaccounts. However, a Participant’s Beneficiary designation shall
only be effective if it is signed by the Participant and filed with the Plan
Administrator’s delegate prior to the Participant’s death, and if it meets such
other standards as the Plan Administrator’s delegate shall require from time to
time. A Beneficiary is paid in accordance with the terms of a Participant’s
Election Form, as interpreted by the Plan Administrator’s delegate in
accordance with the terms of this Plan.


 


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4.03                           Form of Payment Election.


 


An Eligible
Director making a deferral election of Monetary Fees and/or Stock Fees may (but
is not required to) specify a form of payment on his or her Election Form by
designating either a lump sum payment or installment payments for 5, 10, 15 or
20 years. Such form of payment election shall be applicable to the amounts
deferred in the related Monetary Fee and/or Stock Fees deferral election. If an
Eligible Director elects installment payments, the Eligible Director shall also
specify whether installments should be paid quarterly, semi-annually or
annually. If an Eligible Director fails to make a form of payment election for
Monetary Fees and/or Stock Fees under this Section 4.03, his or her form
of payment shall be as provided in Section 6.02.


 


4.04                           Subsequent Revisions to Form of
Payment.


 


An
Eligible Director may make an election to revise the form of payment that
applies to previously deferred Monetary Fees and Stock Fees in accordance with
this section. An election made under this section must be made at least 12
months prior to the date of the first scheduled payment and the election shall
not be effective for 12 months after it is made. So long as a Participant
qualifies under this section to change his or her form of payment, there is no
limit on the number of elections that may be made under this section. Any form
of payment elected under this section must be authorized and available to the
Participant under the terms of Section 4.03. This section shall not apply
to a Beneficiary.


 


ARTICLE V - INTERESTS OF
PARTICIPANTS


 


5.01                           Accounting for Participants’
Interests.


 


Each
Participant shall have at least one separate Deferral Subaccount for each
separate deferral of Monetary Fees and Stock Fees made by the Participant under
this Plan. However, the Plan Administrator’s delegate may also combine Deferral
Subaccounts to the extent it deems separate accounts are not needed for sound
recordkeeping. A Participant’s deferral of Monetary Fees shall be credited to
his or her Account as soon as practicable following the date when the
compensation would have been paid or considered paid to the Participant in the
absence of its deferral. A Participant’s deferral of Stock Fees shall be
credited to his or her Account as soon as practicable following the date when
the related stock would be issued (if the deferral occurs prior to issuance) or
when the related stock is no longer issued as a result of the deferral (if the
deferral occurs after issuance in accordance with Section 4.02(b)(2)). A
Participant’s Account is a bookkeeping device to track the value of his or her
deferrals (and the Company’s liability


 


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therefor). No assets shall be reserved or
segregated in connection with any Account, and no Account shall be insured or
otherwise secured.


 


5.02                           Phantom Investment of the Monetary
Fee Subaccount.


 


(a)                                  Phantom Investment Options. The
phantom investment options that are available under this Plan for a Participant’s
Monetary Fee Subaccount shall be the following Janus retail mutual funds: (i) Janus
Money Market Fund, (ii) Janus Flexible Income Fund, (iii) Janus
Balance Fund, (iv) Janus Global Opportunities Fund, (v) Janus Mid Cap
Value Fund, (vi) Janus Fund, (vii) Janus Overseas Fund, and (viii) Janus
Small Cap Value Fund (elections into the Janus Small Cap Value Fund are only
available for existing Participants in such fund). An amount deferred or
transferred into one of these options is converted to phantom units of
equivalent value by dividing such amount by the value of a unit in such fund on
the date as of which the amount is treated as invested in this option by the
Plan Administrator. Thereafter, a Participant’s interest in each such phantom
option is valued as of a Valuation Date by multiplying the number of phantom
units credited to his or her Account on such date by the value of a unit in the
applicable fund on such date. The Plan Administrator may discontinue any
phantom investment option with respect to some or all Monetary Fee Subaccount,
and it may provide rules for transferring a Participant’s phantom
investment from the discontinued option to a specified replacement option
(unless the Participant selects another replacement option in accordance with
such requirements as the Plan Administrator may apply). The addition of any new
phantom investment option by the Plan Administrator shall comply with Section 409A.


 


(b)                                 Phantom Investment Options
Directions. In connection with an Eligible Director’s first deferral Election Form submitted
under the Plan, the Eligible Director shall specify in one (1) percent
increments how his or her Monetary Fee deferrals are to be invested in one or
more of the phantom investment options offered under this section. Thereafter,
the Eligible Director - (i) may specify a different investment direction
that shall apply to his or her future Monetary Fee deferrals, and (ii) may
reallocate the investment of his or her existing Monetary Fee Subaccount by
specifying, in one (1) percent increments, how such amounts are to be
invested among the phantom investment options then offered under the Plan. The
Plan Administrator may provide that such initial allocations or reallocations
are to be made in a different increment specified by the Plan Administrator. A
new investment direction for future Monetary Fee deferrals and a reallocation
of a Participant’s existing Monetary Fee Subaccount shall be made using the
investment procedures that are provided by the Plan Administrator’s delegate
for this purpose. This procedure may include the use of written or electronic
forms, as well as the use of a voice-response system, as determined by the Plan
Administrator’s delegate.


 


(c)                                  Phantom Investment Options
Reallocations. Any investment 
reallocation of a Participant’s existing Monetary Fee Subaccount that
is  permitted by subsection (b) shall
be effective as of the next Valuation 
Date that occurs at least 30 days after the date


 


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the
investment  reallocation is received by the
Plan Administrator’s delegate. If more than one reallocation is received on a
timely basis, the reallocation that the Plan Administrator’s delegate
determines to be the most recent shall be followed.


 


(d)                                 Direction and Reallocation Default
Rules. If the Plan Administrator’s delegate possesses at any time investment
directions as to the phantom investment of less than all of a Participant’s
Monetary Fee Subaccount, the Participant shall be deemed to have directed that
the undesignated portion of the Monetary Fee Subaccount be invested in a money
market phantom investment option offered under the Plan (or if no money market
investment option is offered, the investment option that most nearly resembles
a money market investment option).


 


(e)                                  Earnings or Losses. As of each
Valuation Date, a Participant’s  Monetary
Fee Subaccount shall be credited with earnings and gains (and  shall be debited for expenses and losses)
determined as if the amounts  credited to
his or her Monetary Fee Subaccount had actually been invested  as directed by the Participant in accordance
with this Article. The Plan provides only for “phantom investments,” and
therefore such earnings, gains, expenses and losses are hypothetical and not
actual. However, they shall be applied to measure the value of a Participant’s
Monetary Fee Subaccount and the amount of the Company’s liability to make
deferred payments to or on behalf of the Participant.


 


5.03                           Phantom Investment of Stock Fee
Subaccount.


 


(a)                                  Phantom Investment in Stock.
Deferrals held in a Stock Fee Subaccount shall be invested in phantom Company
stock. Stock Fees deferred into this phantom option are converted using a
one-to-one ratio to an equivalent number of phantom units of Stock. Thereafter,
the value of the phantom units shall be determined from time to time under
subsection (c) below.


 


(b)                                 Dividend Equivalents. A Participant’s
Stock Fee Subaccount shall also be credited with Dividend Equivalents as
provided in this subsection. Dividend Equivalents paid in Stock shall be
converted using a one-to-one ratio to an equivalent number of phantom units of
Stock (with any fractional share being converted to a fractional unit), and
thereafter shall be credited to the Participant’s Stock Fee Subaccount.
Dividend Equivalents paid in cash or other property shall be converted into
phantom units of Stock (or a fraction of a unit) by dividing the amount of the
cash or the value of the other property by the Fair Market Value of a share of
Stock on the date as of which the phantom units are to be credited to the
Participant’s Stock Fee Subaccount. Thereafter, the value of the phantom units
credited under this subsection shall be determined from time to time under
subsection (c) below.


 


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(c)                                  Valuation of Phantom Stock. A
Participant’s interest in phantom Company stock shall be valued as of a
Valuation Date by multiplying the number of phantom units credited to his or
her Stock Fee Subaccount on such date by the Fair Market Value of a share of
Stock on such date. If shares of Stock change by reason of any stock split,
stock dividend, recapitalization, merger, consolidation, spin-off, combination
or exchange of shares or other any other corporate change treated as subject to
this provision by the Plan Administrator, such equitable adjustment shall be
made in the number and kind of phantom units credited to the Stock Fee
Subaccount as the Plan Administrator may determine to be necessary or
appropriate. In no event will shares of Stock actually be purchased or held
under this Plan, and no Participant shall have any rights as a shareholder of
Stock on account of an interest in this phantom investment option.


 


5.04                           Vesting of a Participant’s Account.


 


A Participant’s
interest in the value of his or her Account shall at all times be 100 percent
vested, which means that it will not forfeit as a result of his or her
Separation from Service. However, a Participant’s right to be paid by the
Company remains subject to the claims of the general creditors of the Company.


 


ARTICLE VI - DISTRIBUTIONS


 


6.01                           General.


 


A Participant’s
Account shall be distributed as provided in this Article. In no event shall any
portion of a Participant’s Account be distributed earlier than is allowed under
Section 409A.


 


6.02                           Distribution of Monetary Fee
Subaccount Upon Separation from Service.


 


A Participant’s
Monetary Fee Subaccount shall be distributed upon the occurrence of a
Participant’s Separation from Service based on the terms and conditions of this
section.


 


(a)                               Distribution of Monetary Fee
Subaccount. Subject to subsection (c), upon a Participant’s Separation from
Service, the value of the Participant’s Monetary Fee Subaccount shall be
distributed (in accordance with subsection (b)) as soon as practicable after
the occurrence of the first Distribution Date that follows his or her
Separation from Service (but in no event later than the later of December 31st
of the year that includes such Distribution Date and 2 1⁄2 months following such
Distribution Date).


 


(b)                                 Form of Distribution. Subject
to subsection (c), if the Participant has made a form of payment election
(i.e., lump sum or installments) pursuant to Section 4.03, then


 


14

















 


distribution
of the Participant’s Monetary Fee Subaccount shall be made pursuant to such
form of payment election. If the Participant has not made a form of payment
election or if the Participant’s election is not valid, then the Participant’s
Monetary Fee Subaccount shall be distributed as follows:


 


(1)                                  If the total balance of the
Participant’s Monetary Fee Subaccount, as of the first Distribution Date next
following the Separation from Service, is less than the applicable dollar
amount under Section 402(g)(1)(B) of the Code, the Participant’s
Monetary Fee Subaccount shall be distributed to the Participant as a single
lump sum as soon as practicable after the first Distribution Date that follows
the Participant’s Separation from Service (but in no event later than the later
of December 31st of the year that includes such Distribution Date and 2 1⁄2
months following such Distribution Date); or


 


(2)                                  If the total balance of the
Participant’s Monetary Fee Subaccount, as of the first Distribution Date next
following the Separation from Service, is is more than the applicable dollar
amount under Section 402(g)(1)(B) of the Code, the participant’s Monetary Fee
Subaccount shall be distributed in annual installments over a period of 5 years
with the first installment being paid as soon as practicable after the first
Distribution Date that follows the Participant’s Separation from Service (but
in no event later than the later of December 31st of the year that
includes such Distribution Date and 2 1⁄2 months following such Distribution
Date).


 


All payments
shall be made in cash, unless the Plan Administrator makes an advance
determination, in its discretion, to settle deferrals in units of the mutual
funds in which the Participant was invested on a phantom basis at the time such
distribution is processed.


 


(c)                                  Special Rule for Key Employees.
If the Participant is a Key Employee as of December 31st of the
year prior to the year in which the Participant’s Separation from Service
occurs, then no distribution may be made before the date which is 6 months
after the date of the Participant’s Separation from Service (or, if earlier,
the date of death of the Participant).


 


6.03                           Distribution of Stock Fee Subaccount
Upon Separation from Service.


 


A Participant’s
Stock Fee Subaccount shall be distributed upon the occurrence of a Participant’s
Separation from Service based on the terms and conditions of this section.


 


(a)                                  Distribution of Stock Fee
Subaccount. Subject to subsection (c) below, upon a Participant’s
Separation from Service, the value of the Participant’s Stock Fee


 


15

















 


Subaccount
shall be distributed (in accordance with subsection (b)) as soon as practicable
after the occurrence of the first Distribution Date that follows his or her
Separation from Service (but in no event later than the later of December 31st
of the year that includes such Distribution Date and 2 1⁄2 months following such
Distribution Date).


 


(b)                                 Form of Distribution. Subject
to subsection (c) below, if the Participant has made a form of payment
election (i.e., lump sum or installments) pursuant to Section 4.03, then
distribution of the Participant’s Stock Fee Subaccount shall be made pursuant
to such form of payment election. Such distribution shall be accomplished by
converting the number of the Participant’s phantom units credited to his or her
Stock Fee Subaccount into an equivalent number of shares of Stock using a
one-to-one ratio. Notwithstanding the preceding, any fractional stock unit
credited to the Participant’s Stock Fee Subaccount shall be distributed as cash.
If the Participant has not made a form of payment election or if the
Participant’s election is not valid, then the Participant’s Stock Fee
Subaccount shall distributed to the Participant in one lump sum in the form of
shares of Stock on the first Distribution Date following that follows his or
her Separation from Service (but in no event later than the later of December 31st  of the year that includes such Distribution
Date and 2 1⁄2 months following such Distribution Date).


 


(c)                                  Special Rule for Key Employees.
If the Participant is a Key Employee as of December 31st of the
year prior to the year in which the Participant’s Separation from Service
occurs, then no distribution may be made before the date which is 6 months
after the date of the Participant’s Separation from Service (or, if earlier,
the date of death of the Participant).


 


6.04                           Distributions on Account of Death.


 


Subject to the
next sentence, upon a Participant’s death, his or her Beneficiary shall be paid
each Deferral Subaccount still standing to the Participant’s credit under the
Plan on the first Distribution Date occurring in the year after the Participant’s
death, provided that the Plan Administrator’s has received notification of the
Participant’s death. Any claim to be paid any amounts standing to the credit of
a Participant in connection with the Participant’s death must be received by
the Plan Administrator at least 14 days before any such amount is paid out by
the Plan Administrator. Any claim received thereafter is untimely, and it shall
be unenforceable against the Plan, the Company, the Plan Administrator, the
Plan Administrator’s delegate or any other party acting for one or more of
them.


 


6.05                           Acceleration of Payments.


 


Pursuant to
the rules and provisions of this section, payment of one or more specific
deferrals may be made earlier than specified in Sections 6.02 and 6.03.


 


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(a)                                  Disability Payments. If the Plan
Administrator determines that a Participant is suffering from a Disability, the
Participant’s Account shall be distributed in a lump sum as soon as practicable
after the first Distribution Date following such determination.


 


(b)                                 Unforeseeable Emergency. If a
Participant believes an Unforeseeable Emergency has occurred, the Participant
or Beneficiary may file a written request with the Plan Administrator for
accelerated payment of all or a portion of the amount credited to his or her
Account. After a Participant has filed a written request pursuant to this
subsection, along with all supporting material, the Plan Administrator’s
delegate shall determine within 60 days (or such other number of days that is
necessary if special circumstances warrant additional time) whether the
Participant meets the criteria for an Unforeseeable Emergency. If the Plan
Administrator’s delegate determines that an Unforeseeable Emergency has
occurred, the Participant or Beneficiary shall receive a distribution from his
or her Account as soon as administratively practicable. However, such
distribution shall not exceed the dollar amount necessary to satisfy the
Unforeseeable Emergency plus amounts necessary to pay taxes reasonably
anticipated as a result of the distribution, after taking into account the
extent to which the Unforeseeable Emergency 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).


 


6.06                           Valuation.


 


In determining
the amount of any individual distribution pursuant to this Article, the
Participant’s Deferral Subaccount shall continue to be credited with earnings
and gains (and debited for expenses and losses) as specified in Article V
until the Valuation Date preceding the distribution. In determining the value
of a Participant’s remaining Monetary Fee Subaccount following an installment
distribution, such installment distribution shall reduce the value of the
Participant’s Monetary Fee Subaccount as of the close of the Valuation Date
preceding the payment date for such installment. The amount to be distributed
in connection with any installment payment shall be determined by dividing the
value of a Participant’s Monetary Fee Subaccount as of such preceding Valuation
Date (determined without application of the preceding sentence of this section)
by the remaining number of installments to be paid with respect to the Monetary
Fee Subaccount.


 


17

















 


ARTICLE VII - PLAN ADMINISTRATION


 


7.01                           Plan Administrator.


 


The Plan
Administrator is responsible for the administration of the Plan. The Plan
Administrator has the authority to name one or more delegates to carry out
certain responsibilities hereunder. Any such delegation shall state the scope
of responsibilities being delegated.


 


7.02                           Action.


 


Action by the
Plan Administrator may be taken in accordance with procedures that the Plan
Administrator adopts from time to time or that the Company’s Law Department
determines are legally permissible.


 


7.03                           Powers of the Plan Administrator.


 


The Plan
Administrator shall administer and manage the Plan and shall have (and shall be
permitted to delegate) all powers necessary to accomplish that purpose,
including (but not limited to) the following:


 


(a)                                  To exercise its discretionary
authority to construe, interpret, and administer this Plan;


 


(b)                                 To exercise its discretionary
authority to make all decisions regarding eligibility, participation and
deferrals, to make allocations and determinations required by this Plan, and to
maintain records regarding Participants’ Accounts;


 


(c)                                  To compute and certify to the
Company the amount and kinds of  payments
to Participants or their Beneficiaries, and to determine the time and manner in
which such payments are to be paid;


 


(d)                                 To authorize all disbursements by
the Company pursuant to this Plan;


 


(e)                                  To maintain (or cause to be
maintained) all the necessary records for administration of this Plan;


 


18
















 


(f)                                    To make and publish such rules for
the regulation of this Plan as are not inconsistent with the terms hereof;


 


(g)                                 To authorize its delegates to
delegate to other individuals or entities from time to time the performance of
any of its delegates’ duties or responsibilities hereunder;


 


(h)                                 To establish or to change the
phantom investment options or arrangements under Article V;


 


(i)                                     To hire agents, accountants,
actuaries, consultants and legal counsel to assist in operating and
administering the Plan; and


 


(j)                                     Notwithstanding any other provision
of this Plan, the Plan Administrator may take any action it deems appropriate
in furtherance of any policy of the Company respecting insider trading as may
be in effect from time to time. Such actions may include, but are not limited
to, altering the effective date of allocations or distributions of Accounts or
Deferral Subaccounts.


 


The Plan
Administrator has the exclusive and discretionary authority to construe and to
interpret the Plan, to decide all questions of eligibility for benefits, to
determine the amount and manner of payment of such benefits and to make any
determinations that are contemplated by (or permissible under) the terms of
this Plan, and its decisions on such matters will be final and conclusive on
all parties. Any such decision or determination shall be made in the absolute
and unrestricted discretion of the Plan Administrator, even if (1) such
discretion is not expressly granted by the Plan provisions in question, or (2) a
determination is not expressly called for by the Plan provisions in question,
and even though other Plan provisions expressly grant discretion or call for a
determination. As a result, benefits under this Plan will be paid only if the
Plan Administrator decides in its discretion that the applicant is entitled to
them. In the event of a review by a court, arbitrator or any other tribunal,
any exercise of the Plan Administrator’s discretionary authority shall not be
disturbed unless it is clearly shown to be arbitrary and capricious.


 


7.04                           Compensation, Indemnity and
Liability.


 


The Plan
Administrator will serve without bond and without compensation for services
hereunder. All expenses of the Plan and the Plan Administrator will be paid by
the Company. To the extent deemed appropriate by the Plan Administrator, any
such expense may be charged against specific Participant Accounts, thereby
reducing the obligation of the Company. No member of the Plan Committee, and no
individual acting as the delegate of the Plan Committee, shall be liable for
any act or omission of any other member or individual, nor for any act or
omission on his or her own part, excepting his or her own willful misconduct.
The Company will


 


19

















 


indemnify and
hold harmless each member of the Plan Committee and any employee of the Company
(or an affiliate, if recognized as an affiliate for this purpose by the Plan
Administrator) acting as the delegate of the Plan Committee against any and all
expenses and liabilities, including reasonable legal fees and expenses, arising
out of his or her membership on the Plan Committee (or his or her serving as
the delegate of the Committee), excepting only expenses and liabilities arising
out of his or her own willful misconduct.


 


7.05                           Taxes.


 


If the whole
or any part of any Participant’s Account becomes liable for the payment of any
estate, inheritance, income, employment, or other tax which the Company may be
required to pay or withhold, the Company will have the full power and authority
to withhold and pay such tax out of any moneys or other property in its hand
for the account of the Participant. To the extent practicable, the Company will
provide the Participant notice of such withholding. Prior to making any
payment, the Company may require such releases or other documents from any
lawful taxing authority as it shall deem necessary.


 


7.06                           Conformance with Section 409A.


 


At all times
during each Plan Year, this Plan shall be operated in accordance with the
requirements of Section 409A. Any action that may be taken (and, to the
extent possible, any action actually taken) by the Plan Administrator or the
Company shall not be taken (or shall be void and without effect), if such
action violates the requirements of Section 409A. Any provision in this
Plan document that is determined to violate the requirements of Section 409A
shall be void and without effect. In addition, any provision that is required
to appear in this Plan document that is not expressly set forth shall be deemed
to be set forth herein, and the Plan shall be administered in all respects as
if such provision were expressly set forth.


 


ARTICLE VIII - CLAIMS PROCEDURES


 


8.01                           Claims for Benefits.


 


If a
Participant, Beneficiary or other person (hereafter, “Claimant”) does not
receive timely payment of any benefits which he or she believes are due and
payable under the Plan, he or she may make a claim for benefits to the Plan
Administrator. The claim for benefits must be in writing and addressed to the
Plan Administrator. If the claim for benefits is denied, the Plan Administrator
will notify the Claimant within 90 days after the Plan Administrator initially
received the benefit claim. However, if special circumstances require an
extension of time for processing the claim, the Plan Administrator will furnish
notice of the extension to the Claimant prior to the termination of the initial
90-day period and such extension may not exceed one additional, consecutive
90-day period. Any notice of a denial of benefits should advise the


 


20

















 


Claimant of
the basis for the denial, any additional material or information necessary for
the Claimant to perfect his or her claim, and the steps which the Claimant must
take to appeal his or her claim for benefits.


 


8.02                           Appeals of Denied Claims.


 


Each Claimant
whose claim for benefits has been denied may file a written appeal for a review
of his or her claim by the Plan Administrator. The request for review must be
filed by the Claimant within 60 days after he or she received the notice
denying his or her claim. The decision of the Plan Administrator will be
communicated to the Claimant within 60 days after receipt of a request for
appeal. The notice shall set forth the basis for the Plan Administrator’s
decision. If there are special circumstances which require an extension of time
for completing the review, the Plan Administrator’s decision may be rendered
not later than 120 days after receipt of a request for appeal.


 


8.03                           Special Claims Procedures for
Disability Determinations.


 


If the claim
or appeal of the Claimant relates to Disability benefits, such claim or appeal
shall be processed pursuant to the applicable provisions of Department of Labor
Regulation section 2560.503-1 relating to Disability benefits, including
sections 2560.503-1(d), 2560.503-1(f)(3), 2560.503-1(h)(4) and
2560.503-1(i)(3).


 


ARTICLE IX - AMENDMENT AND
TERMINATION


 


9.01                           Amendments.


 


The applicable
committee of the Board has the right in its sole discretion to amend this Plan
in whole or in part at any time and in any manner, including the manner of
making deferral elections, the terms on which distributions are made, and the
form and timing of distributions, provided that such amendments do not cause
the Plan to fail to comply with Section 409A. However, except for mere
clarifying amendments necessary to avoid an inappropriate windfall, no Plan
amendment shall reduce the amount credited to the Account of any Participant as
of the date such amendment is adopted. Any amendment shall be in writing and
adopted by the committee. All Participants and Beneficiaries shall be bound by
such amendment.


 


9.02                           Termination of Plan.


 


The Company
expects to continue this Plan, but does not obligate itself to do so. The
Company, acting by the committee specified in Section 9.01 or through its
Board, reserves the right to discontinue and terminate the Plan at any time, in
whole or in part, for any reason


 


21

















 


(including a
change, or an impending change, in the tax laws of the United States or any
State), provided that such termination is done in compliance with Section 409A.
Termination of the Plan will be binding on all Participants and their
Beneficiaries, but in no event may such termination reduce the amounts credited
at that time to any Participant’s Account. If this Plan is terminated (in whole
or in part), the termination resolution shall provide for how amounts
theretofore credited to affected Participants’ Accounts will be distributed. In
accordance with these restrictions, the Company intends to have the maximum
discretionary authority to terminate the Plan and make distributions in
connection with a Change in Control, and the maximum flexibility with respect
to how and to what extent to carry this out following a Change in Control, as
is permissible under Section 409A.


 


ARTICLE X - MISCELLANEOUS


 


10.01                     Limitation on Participant’s Rights.


 


Participation
in this Plan does not give any Participant the right to be retained in the
service of the Company (or any right or interest in this Plan or any assets of
the Company other than as herein provided). The Company reserves the right to
terminate the service of any Participant without any liability for any claim
against the Company under this Plan, except for a claim for payment of
deferrals as provided herein.


 


10.02                     Unfunded Obligation of Company.


 


The benefits
provided by this Plan are unfunded. All amounts payable under this Plan to
Participants are paid from the general assets of the Company. Nothing contained
in this Plan requires the Company to set aside or hold in trust any amounts or
assets for the purpose of paying benefits to Participants. Neither a
Participant, Beneficiary, nor any other person shall have any property
interest, legal or equitable, in any specific Company asset. This Plan creates
only a contractual obligation on the part of the Company, and the Participant
has the status of a general unsecured creditor of this Company with respect to
amounts of compensation deferred hereunder. Such a Participant shall not have
any preference or priority over, the rights of any other unsecured general
creditor of the Company. No other entity guarantees or shares such obligation,
and no other entity shall have any liability to the Participant or his or her
Beneficiary.


 


10.03                     Other Plans.


 


This Plan
shall not affect the right of any Eligible Director or Participant to
participate in and receive benefits under and in accordance with the provisions
of any other benefit plans which are now or hereafter maintained by the
Company, unless the terms of such other benefit plan or plans specifically
provide otherwise or it would cause such other plan to violate a


 


22

















 


requirement
for tax favored treatment (or it would cause this Plan or such other plan to
fail to comply with Section 409A).


 


10.04                     Receipt or Release.


 


Any payment to
a Participant in accordance with the provisions of this Plan shall, to the
extent thereof, be in full satisfaction of all claims against the Plan
Administrator and the Company, and the Plan Administrator may require such
Participant, as a condition precedent to such payment, to execute a receipt and
release to such effect (provided that, to the extent the Company or the Plan
Administrator require a Participant to execute a release, the release
requirement shall be structured in a manner that complies with Section 409A).


 


10.05                     Governing Law.


 


This Plan
shall be construed, administered, and governed in all respects in accordance
with applicable federal law and, to the extent not preempted by federal law, in
accordance with the laws of the State of Delaware (other than its laws relating
to choice of law). If any provisions of this instrument shall be held by a
court of competent jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.


 


10.06                     Gender, Tense and Examples.


 


In this Plan,
whenever the context so indicates, the singular or plural number and the
masculine, feminine, or neuter gender shall be deemed to include the other.
Whenever an example is provided or the text uses the term “including” followed
by a specific item or items, or there is a passage having a similar effect,
such passage of the Plan shall be construed as if the phrase “without
limitation” followed such example or term (or otherwise applied to such passage
in a manner that avoids limitation on its breadth of application).


 


10.07                     Successors and Assigns;
Nonalienation of Benefits.


 


This Plan
inures to the benefit of and is binding upon the parties hereto and their
successors, heirs and assigns; provided, however, that the amounts credited to
the Account of a Participant are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution or levy of any kind, either voluntary or involuntary,
and any attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of any right to any benefits payable
hereunder, including, any assignment or alienation in connection with a
separation, divorce, child support or similar arrangement, will be null and
void and not binding on the Plan or the Company. Notwithstanding the foregoing,
the Plan Administrator reserves the right to make payments in accordance with a
divorce decree, judgment or other court order as and when cash payments are
made in


 


23

















 


accordance
with the terms of this Plan from the Deferral Subaccount of a Participant. Any
such payment shall be charged against and reduce the Participant’s Account.


 


10.08                     Facility of Payment.


 


Whenever, in
the Plan Administrator’s opinion, a Participant or Beneficiary entitled to
receive any payment hereunder is under a legal disability or is incapacitated
in any way so as to be unable to manage his or her financial affairs, the Plan
Administrator may direct the Company to make payments to such person or to the
legal representative of such person for his or her benefit, or to apply the
payment for the benefit of such person in such manner as the Plan Administrator
considers advisable. Any payment in accordance with the provisions of this
section shall be a complete discharge of any liability for the making of such
payment to the Participant or Beneficiary under the Plan.


 


24