Exhibit
10.1


 


JANUS
CAPITAL GROUP INC.


 


AMENDED
AND RESTATED 


INCOME


DEFERRAL
PROGRAM


 


Effective
as of


January 22,
2008


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I – INTRODUCTION

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II – DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.01

  	
   

  	
  ACCOUNT:

  	
   

  	
  1

  
	
  2.02

  	
   

  	
  BASE COMPENSATION:

  	
   

  	
  1

  
	
  2.03

  	
   

  	
  BENEFICIARY:

  	
   

  	
  2

  
	
  2.04

  	
   

  	
  BONUS COMPENSATION:

  	
   

  	
  2

  
	
  2.05

  	
   

  	
  CHANGE IN
  OWNERSHIP:

  	
   

  	
  2

  
	
  2.06

  	
   

  	
  CODE:

  	
   

  	
  3

  
	
  2.07

  	
   

  	
  COMMON STOCK:

  	
   

  	
  3

  
	
  2.08

  	
   

  	
  COMPANY:

  	
   

  	
  3

  
	
  2.09

  	
   

  	
  DEFERRAL
  SUBACCOUNT:

  	
   

  	
  3

  
	
  2.10

  	
   

  	
  DISABILITY:

  	
   

  	
  3

  
	
  2.11

  	
   

  	
  DISTRIBUTION DATE:

  	
   

  	
  3

  
	
  2.12

  	
   

  	
  ELECTION FORM:

  	
   

  	
  4

  
	
  2.13

  	
   

  	
  ELIGIBLE EMPLOYEE:

  	
   

  	
  4

  
	
  2.14

  	
   

  	
  EMPLOYEE:

  	
   

  	
  4

  
	
  2.15

  	
   

  	
  EMPLOYER:

  	
   

  	
  4

  
	
  2.16

  	
   

  	
  EQUITY COMPENSATION:

  	
   

  	
  4

  
	
  2.17

  	
   

  	
  ERISA:

  	
   

  	
  4

  
	
  2.18

  	
   

  	
  KEY EMPLOYEE:

  	
   

  	
  4

  
	
  2.19

  	
   

  	
  MISCONDUCT:

  	
   

  	
  5

  
	
  2.20

  	
   

  	
  PARTICIPANT:

  	
   

  	
  6

  
	
  2.21

  	
   

  	
  PERFORMANCE-BASED
  COMPENSATION:

  	
   

  	
  6

  
	
  2.22

  	
   

  	
  PERIODIC INCENTIVE
  COMPENSATION:

  	
   

  	
  6

  
	
  2.23

  	
   

  	
  PERMISSIBLE EVENTS:

  	
   

  	
  7

  
	
  2.24

  	
   

  	
  PLAN:

  	
   

  	
  7

  
	
  2.25

  	
   

  	
  PLAN ADMINISTRATOR:

  	
   

  	
  7

  
	
  2.26

  	
   

  	
  PLAN YEAR:

  	
   

  	
  7

  
	
  2.27

  	
   

  	
  RESTRICTED STOCK UNIT:

  	
   

  	
  7

  
	
  2.28

  	
   

  	
  RETIREMENT:

  	
   

  	
  7

  
	
  2.29

  	
   

  	
  SECTION 409A:

  	
   

  	
  7

  
	
  2.30

  	
   

  	
  SEPARATION FROM
  SERVICE:

  	
   

  	
  8

  
	
  2.31

  	
   

  	
  SPOUSE:

  	
   

  	
  8

  
	
  2.32

  	
   

  	
  START DATE:

  	
   

  	
  8

  
	
  2.33

  	
   

  	
  UNFORESEEABLE
  EMERGENCY:

  	
   

  	
  8

  
	
  2.34

  	
   

  	
  VALUATION DATE:

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III – ELIGIBILITY AND PARTICIPATION

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.01

  	
   

  	
  ELIGIBILITY TO
  PARTICIPATE

  	
   

  	
  9

  
	
  3.02

  	
   

  	
  TERMINATION OF
  ELIGIBILITY TO DEFER

  	
   

  	
  9

  
	
  3.03

  	
   

  	
  TERMINATION OF
  PARTICIPATION

  	
   

  	
  10

  



 


i

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV –
  DEFERRAL OF COMPENSATION

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.01

  	
   

  	
  DEFERRAL ELECTIONS

  	
   

  	
  10

  
	
  4.02

  	
   

  	
  TIME AND MANNER OF
  DEFERRAL ELECTION

  	
   

  	
  11

  
	
  4.03

  	
   

  	
  INITIAL PERIOD OF
  DEFERRAL

  	
   

  	
  13

  
	
  4.04

  	
   

  	
  INITIAL
  FORM OF PAYMENT

  	
   

  	
  14

  
	
  4.05

  	
   

  	
  SUBSEQUENT
  REVISIONS TO DEFERRAL PERIOD OR FORM OF PAYMENT

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V –
  INTERESTS OF PARTICIPANTS

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.01

  	
   

  	
  ACCOUNTING FOR
  PARTICIPANTS’ INTERESTS

  	
   

  	
  15

  
	
  5.02

  	
   

  	
  PHANTOM INVESTMENT
  OPTIONS

  	
   

  	
  16

  
	
  5.03

  	
   

  	
  PHANTOM INVESTMENT
  OPTION DIRECTIONS AND REALLOCATIONS

  	
   

  	
  16

  
	
  5.04

  	
   

  	
  VESTING OF A
  PARTICIPANT’S ACCOUNT

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI –
  DISTRIBUTIONS

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.01

  	
   

  	
  GENERAL

  	
   

  	
  17

  
	
  6.02

  	
   

  	
  DISTRIBUTION
  PURSUANT TO DEFERRAL ELECTION

  	
   

  	
  17

  
	
  6.03

  	
   

  	
  DISTRIBUTIONS ON
  ACCOUNT OF DEATH

  	
   

  	
  18

  
	
  6.04

  	
   

  	
  ACCELERATION OF
  PAYMENTS

  	
   

  	
  18

  
	
  6.05

  	
   

  	
  FORM OF
  PAYMENTS

  	
   

  	
  19

  
	
  6.06

  	
   

  	
  VALUATION

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII –
  PLAN ADMINISTRATION

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.01

  	
   

  	
  PLAN ADMINISTRATOR

  	
   

  	
  20

  
	
  7.02

  	
   

  	
  ACTION

  	
   

  	
  20

  
	
  7.03

  	
   

  	
  POWERS OF THE PLAN
  ADMINISTRATOR

  	
   

  	
  20

  
	
  7.04

  	
   

  	
  COMPENSATION,
  INDEMNITY AND LIABILITY

  	
   

  	
  22

  
	
  7.05

  	
   

  	
  TAXES

  	
   

  	
  22

  
	
  7.06

  	
   

  	
  CONFORMANCE WITH
  SECTION 409A

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII –
  CLAIMS PROCEDURES

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.01

  	
   

  	
  CLAIMS FOR BENEFITS

  	
   

  	
  23

  
	
  8.02

  	
   

  	
  APPEALS OF DENIED
  CLAIMS

  	
   

  	
  23

  
	
  8.03

  	
   

  	
  SPECIAL CLAIMS
  PROCEDURES FOR DISABILITY DETERMINATIONS

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX –
  AMENDMENT AND TERMINATION

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.01

  	
   

  	
  AMENDMENTS

  	
   

  	
  23

  
	
  9.02

  	
   

  	
  TERMINATION OF PLAN

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X –
  MISCELLANEOUS

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.01

  	
   

  	
  LIMITATION ON
  PARTICIPANT’S RIGHTS

  	
   

  	
  24

  
	
  10.02

  	
   

  	
  UNFUNDED OBLIGATION
  OF INDIVIDUAL EMPLOYER

  	
   

  	
  24

  
	
  10.03

  	
   

  	
  OTHER PLANS

  	
   

  	
  25

  
	
  10.04

  	
   

  	
  RECEIPT OR RELEASE

  	
   

  	
  25

  
	
  10.05

  	
   

  	
  GOVERNING LAW

  	
   

  	
  25

  
	
  10.06

  	
   

  	
  ADOPTION OF PLAN BY
  RELATED EMPLOYERS

  	
   

  	
  25

  



 


ii

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.07

  	
   

  	
  GENDER, TENSE AND
  EXAMPLES

  	
   

  	
  26

  
	
  10.08

  	
   

  	
  SUCCESSORS AND ASSIGNS;
  NONALIENATION OF BENEFITS

  	
   

  	
  26

  
	
  10.09

  	
   

  	
  FACILITY OF PAYMENT

  	
   

  	
  26

  



 


iii

















 


ARTICLE I – INTRODUCTION


 


Janus Capital Group Inc.
(the “Company”) has established the Janus Capital Group Inc. Amended and
Restated Income Deferral Program (the “Plan”) to permit eligible employees to
defer base pay, periodic incentive compensation and certain awards made under
its compensation programs.  The Plan was
originally adopted on November 9, 2004, was amended on each of December 7,
2004, December 15, 2006 and April 30, 2007, and is amended and
restated effective January 22, 2008.


 


This document sets forth
the terms of the Plan, specifying the group of Employees of the Company and
certain affiliated employers 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.


 


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 his or her Employer 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 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.  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                         Base
Compensation:


 


An Eligible Employee’s
adjusted base salary, to the extent paid in U.S. dollars from an Employer’s
U.S. payroll.  For any applicable payroll
period, an Eligible Employee’s adjusted base salary shall be determined after
reductions for applicable tax withholdings, authorized deductions (including
deductions for any qualified retirement plan under Code section 401(a), any
cafeteria plan maintained under Code section 125 and charitable donations), tax
levies, garnishments and such other amounts as the Plan Administrator recognizes
as reducing the amount of base salary available for deferral.


 


1

















 


2.03                         Beneficiary:


 


The person or persons
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 the case of a Participant who has a Spouse
on the date of his or her death, a designation of a Beneficiary other than such
Spouse shall only be effective if such Spouse has provided written consent to
the designation that is witnessed by a notary public.  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.


 


2.04                         Bonus
Compensation:


 


An Eligible Employee’s
adjusted annual cash incentive award under his or her Employer’s annual
incentive or performance plan, to the extent paid in U.S. dollars from an
Employer’s U.S. payroll.  An Eligible
Employee’s annual incentive or performance awards shall be adjusted to reduce
them for applicable tax withholdings, authorized deductions (including
deductions for a qualified retirement plan under Code section 401(a), a
cafeteria plan under Code section 125 and charitable donations), tax levies,
garnishments and such other amounts as the Plan Administrator recognizes as
reducing the amount of such awards available for deferral.


 


2.05                         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

















 


2.06                         Code:


 


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


 


2.07                         Common
Stock:


 


The
common stock, $.01 par value, of the Company.


 


2.08                         Company:


 


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


 


2.09                         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
Base Compensation, Periodic Incentive Compensation, Bonus Compensation, and
Equity Compensation respectively and, as applicable, earnings or losses
credited to such subaccount in accordance with Section 5.01(b).


 


2.10                         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 Participant’s
Employer.


 


2.11                         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.


 


3

















 


2.12                         Election
Form:


 


The form prescribed by
the Plan Administrator’s delegate on which a Participant specifies the amount
of his or her Base Compensation, Periodic Incentive Compensation, Bonus
Compensation and Equity Compensation 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.


 


2.13                         Eligible
Employee:


 


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


 


2.14                         Employee:


 


Any person who is: (a) classified
by his or her Employer as a common-law employee, and (b) receiving
remuneration that is paid in U.S. dollars from an Employer’s U.S. payroll for
personal services rendered in the employment of an Employer.


 


2.15                         Employer:


 


Each division of the
Company and each of the Company’s subsidiaries and affiliates (if any) that is
currently designated by the Plan Administrator as an employer that is
participating in the Plan for the benefit of its Employees.


 


2.16                         Equity
Compensation:


 


An Eligible Employee’s
annual equity award under his or her Employer’s annual incentive or performance
plan, to the extent designated to be paid in restricted shares of Common Stock
or Restricted Stock Units denominated in Company Common Stock.


 


2.17                         ERISA:


 


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


 


2.18                         Key
Employee:


 


Any Eligible Employee or
former Eligible Employee who, as of December 31st of the Plan
Year preceding the Plan Year in which the employee incurs a Separation from
Service, is:


 


4

















 


(a)                                  an
officer of the Employer or an Affiliate of the Employer who maintains a “Vice
President 4” or higher office (or equivalent designation) as defined by the
Human Resources Department of the Company; or


 


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


 


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


 


2.19                         Misconduct:


 


(a)                                Before
the occurrence of a change in control (as defined below), unless otherwise
provided through specific terms included in an Election Form by
authorization of the Plan Administrator, any one or more of the following, as
determined by the Plan Administrator:


 


(1)                                  A
Participant’s commission of a crime which, in the judgment of the Plan
Administrator, resulted or is likely to result in damage or injury to the
Company or a Subsidiary;


 


(2)                                  The
material violation by the Participant of written policies of the Company or a
Subsidiary;


 


(3)                                  The
habitual neglect or failure by the Participant in the performance of his or her
duties to the Company or a Subsidiary (but only if such neglect or failure is
not remedied within a reasonable remedial period after Participant’s receipt of
written notice from the Company which describes such neglect or failure in
reasonable detail and specifies the remedial period); or


 


(4)                                  Action
or inaction by the Participant in connection with his or her duties to the
Company or a Subsidiary resulting, in the judgment of the Plan Administrator,
in material injury to the Company or a Subsidiary; and


 


For purposes of this subsection and
subsection (b) below, the term “change of control” shall have the meaning
that is assigned to such term under the Company’s most recently effective long
term incentive stock plan.


 


(b)                               From
and after the occurrence of a change of control, unless otherwise provided
through specific terms included in an Election Form by the Plan
Administrator, the occurrence of any one or more of the following, as
determined in the good faith and reasonable judgment of the Plan Administrator:


 


(1)                                            Participant’s conviction for committing an act of
fraud, embezzlement, theft, or any other act constituting a felony involving
moral 


 


5

















 


turpitude or causing material damage or injury, financial or otherwise, to
the Company;


 


(2)                                            A demonstrably willful and deliberate act or failure
to act which is committed in bad faith, without reasonable belief that such
action or inaction is in the best interests of the Company, which causes
material damage or injury, financial or otherwise, to the Company (but only if
such act or inaction is not remedied within 15 business days of Participant’s
receipt of written notice from the Company which describes the act or inaction
in reasonable detail); or


 


(3)                                  The consistent gross neglect of duties or consistent
wanton negligence by the Participant in the performance of the Participant’s
duties (but only if such neglect or negligence is not remedied within a
reasonable remedial period after Participant’s receipt of written notice from
the Company which describes such neglect or negligence in reasonable detail and
specifies the remedial period).


 


2.20                         Participant:


 


Any Eligible Employee who
is qualified to participate in this Plan in accordance with Section 3.01
and who has an Account (including, as applicable, any former Employee who has
an Account at the time the Employee terminated employment).  An active Participant is one who is currently
deferring under Section 4.01.


 


2.21                         Performance-Based
Compensation:


 


Any performance-based
compensation (within the meaning of Reg. 1.409A(a)-1(4d)3ii)) based on services
performed over a period of at least 12 months.


 


2.22                         Periodic
Incentive Compensation:


 


An Eligible Employee’s
adjusted periodic cash incentive, commission or performance award under his or
her Employer’s incentive, commission or performance plan, to the extent paid in
U.S. dollars from an Employer’s U.S. payroll. 
An Eligible Employee’s periodic incentive, commission or performance
awards shall be adjusted to reduce them for applicable tax withholdings,
authorized deductions (including deductions for a qualified retirement plan
under Code section 401(a), a cafeteria plan under Code section 125 and
charitable donations), tax levies, garnishments and such other amounts as the
Plan Administrator recognizes as reducing the amount of such payments or awards
available for deferral.


 


6
















 


2.23                         Permissible Events:


 


The events that may be
selected by a Participant to terminate a period of deferral and to trigger a
Plan distribution, i.e.,
Separation from Service ; provided that the event is a permissible payment
event under Section 409A of the Code.


 


2.24                         Plan:


 


The Janus Capital Group
Inc. Amended and Restated Income Deferral Program, as set forth herein and as
it may be amended and restated from time to time.


 


2.25                         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.


 


2.26                         Plan Year:


 


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


 


2.27                         Restricted Stock Unit:


 


A bookkeeping entry
representing the equivalent of one share of Common Stock that is payable in the
form of Common Stock, cash, or any combination of the foregoing.  Restricted Stock Units shall be granted under
the 2005 Long Term Incentive Stock Plan (and any successor plan) and shall be
subject to the terms thereof.


 


2.28                         Retirement:


 


Separation from Service
with the Company and all affiliates (other than for Misconduct) after attaining
eligibility for retirement.  A
Participant attains eligibility for retirement when he or she attains:  (i) at least age 55 with 10 or more
years of service, or (ii) at least age 65.


 


2.29                         Section 409A:


 


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


 


7

















 


2.30                         Separation from Service:


 


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


 


2.31                         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.


 


2.32                         Start Date:


 


The date this Plan
originally became effective, the 9th day of November, 2004.


 


2.33                         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).


 


2.34                         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.


 


8

















 


ARTICLE III – ELIGIBILITY AND
PARTICIPATION


 


3.01                         Eligibility to Participate.


 


(a)                                Only Eligible Employees shall be eligible
to defer 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
Employee.


 


(b)                               An Eligible Employee shall mean any
Employee who is currently classified by the Plan Administrator as satisfying
one or more of the following eligibility criteria:


 


(1)                                  an officer of the Employer who maintains
a “Vice President 4” or higher office (or equivalent designation) as defined by
the Human Resources Department of the Company;


 


(2)                                  a portfolio manager of a Janus mutual
fund, private account, or commingled fund;


 


(3)                                  a senior sales representative having
annual compensation greater than $1,000,000; and


 


(4)                                  a senior officer of a Company subsidiary
that is specifically designated to be eligible by the Plan Administrator or its
delegate.


 


Notwithstanding
the preceding sentence, from time to time the Plan Administrator may modify,
limit or expand the class of Eligible Employees eligible to defer hereunder,
pursuant to criteria for eligibility that need not be uniform among all or any
group of Eligible Employees.


 


(c)                                Each Eligible Employee 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
Employee 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 Employee who is described in
either the first or second sentence of Section 3.01(b).  After termination of an individual’s
eligibility to make future deferrals under the Plan, the individual shall be an
inactive Participant in this Plan.


 


9

















 


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.


 


ARTICLE IV – DEFERRAL OF
COMPENSATION


 


4.01                         Deferral Elections.


 


(a)                                  Each Eligible Employee may make an
election to defer under the Plan any whole percentage of his or her Base
Compensation (up to 50%), Periodic Incentive Compensation (up to 100%), Bonus
Compensation (up to 100%), and Equity Compensation (up to 100%) in the manner
described in Section 4.02.  With
respect to Periodic Incentive Compensation and Bonus Compensation, the
Participant may specify two alternative deferral percentages that will be
applicable to Periodic Incentive Compensation, Bonus Compensation, and/or
Equity Compensation; one deferral percentage will apply to a Participant’s Periodic
Incentive Compensation, Bonus Compensation, and/or Equity Compensation if his
or her bonus is equal to or greater than a specified target amount, and the
other deferral percentage (including 0%) will apply to a Participant’s Periodic
Incentive Compensation, Bonus Compensation, and/or Equity Compensation if his
or her bonus is less than that specified target amount.  Any percentage of Base Compensation deferred
by an Eligible Employee for a Plan Year will be deducted each pay period during
the Plan Year for which he or she has Base Compensation and is an employee of
the Company.  The percentage of Periodic
Incentive Compensation and Bonus Compensation deferred by an Eligible Employee
for a Plan Year will be deducted from his or her payment under the applicable
compensation program at the time it would otherwise be made, provided he or she
remains an employee of the Company at such time.  The percentage of Equity Compensation
deferred by an Eligible Employee for a Plan Year will be granted in the form of
Restricted Stock Units with payment dates in accordance with the Eligible
Employee’s election under the terms of the Plan and will be granted in lieu of
shares of restricted Common Stock or other equity awards that would have
otherwise been granted to the Eligible Employee; provided that the restrictions
on such Restricted Stock Units shall lapse on such dates and under such
circumstances as the restrictions would have lapsed absent the deferral.


 


(b)                                 Notwithstanding subsection (a) above,
the Plan Administrator in its discretion may implement rules and
procedures from time to time that allow Participants:  (1) to elect to defer Base Compensation,
Periodic Incentive Compensation, Bonus Compensation, and/or Equity Compensation
in amounts other than whole percentages, such as in whole dollar amounts or
whole shares of Company Common Stock, or (2) to specify a dollar maximum
that would limit their percentage 


 


10

















 


deferral elections of
Base Compensation, Periodic Incentive Compensation, Bonus Compensation and/or
Equity Compensation.


 


(c)                                  To be effective, an Eligible Employee’s
Election Form must set forth the percentage of Base Compensation, Periodic
Incentive Compensation, Bonus Compensation, and Equity Compensation to be
deferred in accordance with subsection (a) above (or amount in accordance
with subsection (b)), the deferral period under Section 4.03, the form of
payment under Section 4.04, the initial phantom investment option or
options under Section 5.02 to which the deferred amount will be credited
initially (other than for Equity Compensation which shall be deemed to be
invested in shares of Common Stock), the Eligible Employee’s Beneficiary
designation, and any other information that may be required by the Plan
Administrator from time to time.  In
addition, the Election Form must meet the requirements of Section 4.02
below.


 


4.02                         Time and Manner of Deferral Election.


 


(a)                                Deferrals of Base Compensation. 
Subject to the next two sentences, an Eligible Employee must make a
deferral election for a Plan Year with respect to Base Compensation by November 30th
of the year prior to the beginning of the Plan Year in which the Base
Compensation would otherwise be paid.  An
individual who newly becomes an Eligible Employee (and who was not previously
an Eligible Employee 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)), will have 30 days from the date the individual becomes
an Eligible Employee to make an election with respect to compensation earned
for payroll cycles that begin after the election is received (if this 30-day
period ends later than the deadline under the preceding sentence).


 


(b)                               Deferrals of Bonus Compensation and
Equity Compensation.  Bonus Compensation and Equity Compensation
shall be subject to the deferral rules set forth in the following three
paragraphs:


 


(1)                                  Regular Bonus Compensation and Equity
Compensation.  Subject to Paragraphs (2) and (3) below
and the next sentence, an Eligible Employee must make a deferral election with
respect to his or her Bonus Compensation and/or Equity Compensation no later
than the close of the Plan Year preceding the Plan Year in which the services
are performed for which the Bonus Compensation and/or Equity Compensation is
paid.


 


(2)                                  Performance-Based Compensation. 
To the extent permitted by Reg. 1.409A-2(a)(8), if an Eligible Employee’s
Bonus Compensation and/or Equity Compensation for a particular Plan Year will
qualify as Performance-Based Compensation, the Eligible Employee may make a
deferral election for 


 


11

















 


such Bonus Compensation
and/or Equity Compensation no later than six months prior to the end of the
performance period to which such Bonus Compensation and/or Equity Compensation
relates.


 


(3)                                  Newly Eligible Participants. 
An individual who newly becomes an Eligible Employee during a Plan Year
(and who was not previously an Eligible Employee 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 Bonus Compensation and/or Equity Compensation that
is payable for services performed in such Plan Year following the date on which
the election is received so long as the deferral election:  (i) is made within 30 days of the date
the individual becomes an Eligible Employee (or, with respect to
Performance-Based Compensation, such longer period as is permitted by Section 409A),
and (ii) is limited to the maximum portion of such Plan Year’s Bonus
Compensation and/or Equity Compensation as may deferred under Section 409A.


 


(c)                                  Deferrals of Periodic Incentive
Compensation.  Periodic Incentive Compensation shall be
subject to the deferral rules set forth in the following three paragraphs:


 


(1)                                  Regular Periodic Incentive Compensation. 
Subject to Paragraphs (2) and (3) below and the next sentence,
an Eligible Employee must make a deferral election for a Plan Year with respect
to Periodic Incentive Compensation by November 30th of the year
prior to the beginning of the Plan Year in which the Periodic Incentive
Compensation would otherwise be paid.


 


(2)                                  Performance-Based Compensation. 
To the extent permitted by Reg. 1.409A-2(a)(8), if an Eligible Employee’s
Periodic Incentive Compensation for a particular Plan Year will qualify as
Performance-Based Compensation, the Eligible Employee may make a deferral
election for such Periodic Incentive Compensation no later than six months
prior to the end of the performance period to which such Periodic Incentive
Compensation relates.


 


(3)                                  Newly Eligible Participants. 
An individual who newly becomes an Eligible Employee during a Plan Year
(and who was not previously an Eligible Employee 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 Periodic Incentive Compensation that is payable for
services performed in such Plan Year following the date on which the election
is received so long as the deferral election: 
(i) is made within 30 days of the date the individual becomes 


 


12

















 


an Eligible Employee (or,
with respect to Performance-Based Compensation, such longer period as is
permitted by Section 409A), and (ii) is limited to the maximum
portion of such Plan Year’s Periodic Incentive Compensation as may deferred
under Section 409A.


 


(d)                                 General Provisions. 
A separate deferral election must be made by an Eligible Employee for
each category of compensation that is eligible for deferral.  If an Eligible Employee 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 Base Compensation, Periodic Incentive Compensation, Bonus
Compensation or Equity Compensation, 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 Employee and in the interests of orderly Plan
administration (or to avoid undue hardship to an Eligible Employee), 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.


 


(e)                                  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.


 


4.03                         Initial Period of Deferral.


 


An Eligible Employee
making a deferral election shall specify a deferral period on his or her
Election Form by designating a specific payout date, a specific
Permissible Event for payout, or both a specific payout date and a Permissible
Event.  Any Eligible Employee who
specifies Retirement as his or her Permissible Event must also designate a
payout date.  If an Eligible Employee has
designated both a specific payout date and a Permissible Event, the Eligible
Employee’s deferral period shall terminate on the earlier of the specific
payout date and the Permissible Event. 
Any Eligible Employee who 


 


13

















 


designates a payout date
shall be deemed to have elected a payout date that would occur not earlier
than:


 


(a)                                  For Base Compensation, at least until January 1
of the third Plan Year following the Plan Year during which the Base
Compensation would have been paid absent the deferral;


 


(b)                                 For Periodic Incentive Compensation, at
least until January 1 of the third Plan Year following the Plan Year
during which the Periodic Incentive Compensation would have been paid absent
the deferral;


 


(c)                                  For Bonus Compensation, at least 2 years
after the date the Bonus Compensation would have been paid absent the deferral;
and


 


(d)                                 For Equity Compensation, at least 2 years
after the date the equity awards would have no longer been subject to
forfeiture absent the deferral.


 


In addition,
notwithstanding an Eligible Employee’s actual election, if a Participant has
elected a specific payout date that would be after his or her 80th birthday,
the Participant shall be deemed to have elected his or her 80th birthday as his
or her specific payout date.


 


4.04                         Initial Form of Payment.


 


An Eligible Employee
making a deferral election may 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.  If an Eligible
Employee elects installment payments, the Eligible Employee shall also specify
whether installments should be paid quarterly, semi-annually or annually.  However, installment payments shall only be
made for a period beyond 5 years (regardless of the Eligible Employee’s
election) if the Eligible Employee continues in employment with an Employer
through his or her eligibility for Retirement (and in all other cases an
election of installments for more than 5 years shall be deemed to be an
election of installments for 5 years). 
If an Eligible Employee fails to make a form of payment election on the
Election Form, his or her form of payment shall be a lump sum payment.


 


4.05                         Subsequent Revisions to Deferral Period
or Form of Payment.


 


A Participant may make an
election to revise the deferral period or form of payment (or both) that
applies to a Deferral Subaccount 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.  This requirement shall be applied in
accordance with Section 409A to bar, as necessary, an election under this
section from being effective if it occurs too soon before the time a 


 


14

















 


distribution would be
made in connection with a Permissible Event designated by the Participant.  In addition, if a Participant has specified a
date as the end of his or her deferral period, an election under this section
shall not be effective unless it is made at least 12 months prior to the date
the first scheduled payment would be made in connection with such specified
date.  If an election is made under this
section, the first payment pursuant to such election must be deferred at least
5 years from the date such payment would otherwise have been made.  However, an election under this section may
not provide for payments beyond a Participant’s 80th birthday, and
if this requirement conflicts with the minimum 5 years of additional deferral
required under the preceding sentence, then no election under this section
shall be permitted.  So long as a
Participant qualifies under this section to change his or her period of
deferral and/or 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 4.04.  This section shall not apply to a
Beneficiary.  In the case of a
Participant who is an officer within the meaning of Section 16 of the
Securities Exchange Act of 1934, an election under this section shall not be
effective unless approved by the Plan Administrator.


 


ARTICLE V – INTERESTS OF
PARTICIPANTS


 


5.01                         Accounting for Participants’ Interests.


 


(a)                                  Deferral Subaccounts. 
Each Participant shall have at least one separate Deferral Subaccount
for each separate deferral of Base Compensation, Periodic Incentive
Compensation, Bonus Compensation, and Equity Compensation 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 shall be credited to
his or her Account as soon as practicable following the date when the compensation
would have been paid to the Participant in the absence of its deferral.  A Participant’s Account is a bookkeeping
device to track the value of his or her deferrals (and his or her Employer’s
liability therefor).  No assets shall be
reserved or segregated in connection with any Account, and no Account shall be
insured or otherwise secured.


 


(b)                                 Account Earnings or Losses. 
As of each Valuation Date, a Participant’s Account 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 Account 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 Account and the
amount of his or her Employer’s liability to make deferred payments to or on
behalf of the Participant. 
Notwithstanding anything to the contrary in this Article V, Equity
Compensation shall 


 


15

















 


be deferred in the form
of Restricted Stock Units which shall track the value of an equivalent number
of shares of Common Stock.


 


5.02                         Phantom Investment Options.


 


The phantom investment
options that are available under this Plan shall be those Janus mutual funds
that are offered to participants under the Company’s 401(k) plan.  Participant Accounts invested in these
phantom investment options are adjusted to reflect an investment in the
corresponding investment options under the Company’s 401(k) plan.  An amount deferred or transferred into one of
these options is converted to phantom units in the applicable Company 401(k) fund
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 Company 401(k) fund
on such date.  The Plan Administrator may
discontinue any phantom investment option with respect to some or all Accounts,
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).  In the absence of a specific direction by the
Plan Administrator, the discontinuance and replacement of phantom investment
options under this Plan shall mirror what occurs in this regard under the
Company’s 401(k) plan.


 


5.03                         Phantom Investment Option Directions and
Reallocations.


 


(a)                                  In connection with an Eligible Employee’s
first deferral Election Form submitted under the Plan, the Eligible
Employee shall specify in one (1) percent increments how his or her
deferrals are to be invested in one or more of the phantom investment options
offered under Section 5.02. 
Thereafter, the Eligible Employee – (i) may specify a different
investment direction that shall apply to his or her future deferrals, and (ii) may
reallocate the investment of his or her existing Account 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 deferrals shall be made on the Election Form that
relates to such deferrals.  A
reallocation of a Participant’s existing Account shall be made using an
investment change procedure that is 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.  A reallocation election is
considered effective within five (5) business days after the date the
investment reallocation is received by the Plan Administrator’s delegate.


 


16
















 


(b)           Any investment
reallocation of a Participant’s existing Account that is permitted by
subsection (a) shall be effective as of the next Valuation Date that
occurs at least date 30 days after the date 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.


 


(c)           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 Account, the Participant
shall be deemed to have directed that the undesignated portion of the Account
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).


 


5.04         Vesting
of a Participant’s Account.


 


Other than in respect of
Restricted Stock Units, which shall vest in accordance with the same schedule
as a Participant’s Equity Compensation would have vested absent the deferral, 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 Participant’s Employer remains subject to
the claims of the general creditors of the Employer.


 


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 Pursuant
to Deferral Election.


 


(a)           Scheduled Payout
Date.  Subject to subsection (b),
with respect to a specific deferral, such deferral shall be paid (in accordance
with the provisions of Section 6.05) to the Participant as soon as
practicable after the occurrence of the Participant’s “Scheduled Payout Date”
(but in no event later than the later of December 31st of the
year that includes the Scheduled Payout Date and 2 1⁄2 months following the
Scheduled Payment Date).  A Participant’s
“Scheduled Payout Date” shall be the earlier of:


 


(1)           The first Distribution
Date that follows the date selected by the Participant for such deferral in
accordance with Sections 4.03 and 4.05, or


 


17

















 


(2)           The first Distribution
Date that follows the earliest to occur Permissible Event that has been
selected and is in effect for such deferral in accordance with Sections 4.03
and 4.05.


 


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


 


(c)           Special Rule for
Section 16 Officers.  This
subsection shall apply if a distribution would occur in accordance with the
preceding provisions of this section at a time when the Participant is an
officer who is subject to the restrictions of Section 16 of the Securities
Exchange Act of 1934, and if the distribution will result in a disposition of
phantom Company stock by the Participant. 
In this event, then to the extent permitted by Section 409A, the actual
distribution to the Participant shall be delayed to the extent necessary, if
any, in order to allow time for the Plan Administrator to approve the
distribution in accordance with Rule 16b-3(e).


 


6.03         Distributions on
Account of Death.


 


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 as soon as practicable
after the first Distribution Date to occur after the Plan Administrator’s
delegate receives 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 not lie against the Plan,
the Company, any Employer, the Plan Administrator, the Plan Administrator’s
delegate or any other party acting for one or more of them.


 


6.04         Acceleration of
Payments.


 


Pursuant to the rules and
provisions of this Section 6.04, payment of one or more specific deferrals
may be made earlier than specified in Section 6.02.


 


(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.


 


18

















 


(b)           Change in Ownership
Payments.  Each Participant’s Account
shall be distributed in a lump sum payment as soon as practicable following the
occurrence of a Change in Ownership.


 


(c)           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 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).


 


(d)           Cashouts of Small
Amounts.  Subject to the remaining
sentences of this subsection and subsections (b) and (c) of Section 6.02,
if (1) a Participant has a Separation from Service (but not including a
Retirement), and (2) the total value of all of the Participant’s Deferral
Subaccounts, 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, all of the Participant’s Deferral Subaccounts 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.  To the extent required under Section 409A,
a Deferral Subaccount shall not be distributed under this subsection before the
end of the minimum period of additional deferral that is applicable to the
Deferral Subaccount under Section 4.05. 
If the preceding sentence delays payout of a distribution, payout shall
be made as soon as practicable after the minimum period of deferral.


 


6.05         Form of Payments.


 


Unless otherwise provided
in this Article VI, payments made under Section 6.02 shall be made
pursuant to the form of payment elected by the Participant under Section 4.04
or 4.05.  Other than with respect to
Restricted Stock Units which may be settled in shares of Common Stock or cash
or a combination of both in the discretion of the Plan Administrator, payments
under Sections 6.02, 6.03 and 6.04 shall be made in cash, unless the Plan
Administrator makes an advance determination, in its discretion, to settle
deferrals in 


 


19

















 


units of the mutual funds
in which the Participant was invested on a phantom basis at the time such
distribution is processed.  No in-kind
distributions shall be made with respect to deferrals of Base Compensation,
Periodic Incentive Compensation or Bonus Compensation that are invested in a
phantom Company stock fund.


 


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 Section 5.01 until the Valuation
Date preceding the distribution.  In
determining the value of a Participant’s remaining Deferral Subaccount
following an installment distribution, such installment distribution
(determined without application of the last sentence of this section) shall
reduce the value of the Participant’s Deferral 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 Deferral Subaccount as of such preceding Valuation Date by the
remaining number of installments to be paid with respect to such Deferral
Subaccount.


 


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;


 


20

















 


(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 Employer 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 Employer pursuant to this Plan;


 


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


 


(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 


 


21

















 


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 Employer. 
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 Employer.  No
member of the Committee, and no individual acting as the delegate of the
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
Employer will indemnify and hold harmless each member of the 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 Committee
against any and all expenses and liabilities, including reasonable legal fees
and expenses, arising out of his or her membership on the 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 Employer may be
required to pay or withhold, the Employer 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 Employer will provide the Participant
notice of such withholding.  Prior to
making any payment, the Employer 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.


 


22

















 


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 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 of Directors of the Company 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 


 


23

















 


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 of Directors, reserves the
right to discontinue and terminate the Plan at any time, in whole or in part,
for any reason (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.


 


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 Employer’s
or Company’s employ (or any right or interest in this Plan or any assets of the
Company or Employer other than as herein provided).  The Company and Employer reserve the right to
terminate the employment of any Participant without any liability for any claim
against the Company or Employer under this Plan, except for a claim for payment
of deferrals as provided herein.


 


10.02                   Unfunded
Obligation of Individual Employer.


 


The benefits provided by
this Plan are unfunded.  All amounts
payable under this Plan to Participants are paid from the general assets of the
Participant’s individual Employer. 
Nothing contained in this Plan requires the Company or Employer 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 Employer asset. 
This Plan creates only a contractual obligation on the part of a
Participant’s individual Employer, and the Participant has the status of a
general unsecured creditor of this Employer 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 Employer.  No other Employer guarantees or shares such
obligation, and no other Employer shall have any liability to the Participant
or his or her 


 


24

















 


Beneficiary.  In the event, a Participant transfers from
the employment of one Employer to another, the former Employer shall transfer
the liability for deferrals made while the Participant was employed by that
Employer to the new Employer (and the books of both Employers shall be adjusted
appropriately).


 


10.03                   Other
Plans.


 


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


 


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,
the Employer 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 Employer, 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                   Adoption
of Plan by Related Employers.


 


The Plan Administrator
may select as an Employer any division of the Company, as well as any
corporation related to the Company by stock ownership, and permit or cause such
division or corporation to adopt the Plan. 
The selection by the Plan Administrator shall govern the effective date
of the adoption of the Plan by such related Employer.  The requirements for Plan adoption are
entirely within the discretion of the Plan Administrator and, in any case where
the status of an entity as an Employer is at issue, the determination of the
Plan Administrator shall be absolutely conclusive.


 


25

















 


10.07       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).


 


10.08       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 or Employer. 
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 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.


 


10.09       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 Employer 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.


 


26