Exhibit 10.2


 


 


FINANCIAL SECURITY ASSURANCE
HOLDINGS LTD.


2004 DEFERRED COMPENSATION PLAN


 


 


amended and restated as of May 18,
2006















 


TABLE OF CONTENTS


	
  

  	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE I

  	
   

  	
  ESTABLISHMENT AND PURPOSE OF THE PLAN

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
  DEFINITIONS

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  PARTICIPATION

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  DEFERRAL ELECTIONS

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
  CREDITING OF DEFERRAL AMOUNTS AND ACCRUAL OF 

  INVESTMENT GAINS OR LOSSES

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  COMMENCEMENT OF BENEFITS

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
  BENEFICIARY DESIGNATION

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
  MAINTENANCE AND VALUATION OF ACCOUNTS

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
  FUNDING

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
  AMENDMENT AND TERMINATION

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  	
  FINANCIAL HARDSHIP WITHDRAWALS

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
   

  	
  ADMINISTRATION

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
   

  	
  GENERAL PROVISIONS

  	
   

  	
  20

  



 
















 


FINANCIAL SECURITY
ASSURANCE HOLDINGS LTD.

2004 DEFERRED COMPENSATION PLAN


ARTICLE I


ESTABLISHMENT AND
PURPOSE OF THE PLAN


1.1           Effective as of June 1, 1995,
Financial Security Assurance Holdings Ltd. (the “Company”) established for the
benefit of certain of its employees, certain employees of its affiliates or
subsidiaries and certain members of its board of directors an unfunded plan by
which eligible employees or eligible directors can elect to defer,
respectively, receipt of all or a portion of their compensation or fees. This
plan, as amended and restated, is known as the Financial Security Assurance
Holdings Ltd. 1995 Deferred Compensation Plan (the “1995 Deferred Compensation
Plan”). Effective as of December 17, 2004, the Company established a new deferred
compensation plan, serving the same purposes as the 1995 Deferred Compensation
Plan, pursuant to which eligible participants can elect to defer, respectively,
receipt of all or a portion of their compensation or fees earned or vested on
or after January 1, 2005. This new plan, as amended from time to time, is
known as the Financial Security Assurance Holdings Ltd. 2004 Deferred
Compensation Plan (the “Plan”). The Plan was amended and restated as of January 24,
2005 and is further amended and restated as set forth in this Plan document,
effective as of May 18, 2006, to provide that payments due upon a
separation from service shall generally not be paid during the six months
following the separation from service and to make certain other changes.


 









 



 


ARTICLE II


DEFINITIONS


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


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


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


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


2.4           The term “Bonus” shall mean:  (i) bonus compensation payable in cash;
and (ii) an amount payable pursuant to a “Performance Shares” award under
the Equity Participation Plan.


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


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


 



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


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


2.9           The
term “Deferral Amount” shall mean the amount of Compensation that a Participant
defers under the terms of the Plan.


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


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


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


2.13         The
term “Disability” shall mean, in the case of a Participant, that, as determined
by the Committee, the Participant is (i) 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 (ii)


 


 



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


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


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


2.16         The
term “Equity Participation Plan” shall mean the Financial Security Assurance
Holdings Ltd. 1993 Equity Participation Plan or 2004 Equity Participation Plan,
as the case may be, in each case as amended from time to time.


2.17         The
term “Participant” shall mean an Eligible Employee or Eligible Director who
defers payment of Compensation under the terms of the Plan, including any
former Eligible Employee or Eligible Director who is receiving or will become
eligible to receive benefits under the Plan at a later date.


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


 



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2.19         The
term “Plan” shall mean the Financial Security Assurance Holdings Ltd. 2004
Deferred Compensation Plan, as set forth herein and as amended from time to
time.


2.20         The term “Unforeseen Emergency” shall
mean a severe financial hardship to the Participant resulting from an illness
or accident of the Participant, the Participant’s spouse, or a dependent (as
defined in Section 152(a) of the Code) of the Participant, loss of
the Participant’s property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant.


2.21         The
term “Year” shall mean the initial period from January 1, 2005 through December 31,
2005 and each 12-month calendar year thereafter beginning with January 1,
2006.


ARTICLE III


PARTICIPATION


3.1           Each Eligible Employee and each
Eligible Director shall become a Participant, as of the date specified in Section 3.2,
by electing a Deferral Amount in accordance with Section 4.1.


3.2           Subject to Section 3.4, an
Eligible Employee or Eligible Director shall become a Participant in the Plan
as of the date a Deferral Amount is credited to his or her Account and shall
remain a Participant until the complete distribution of the Participant’s
Account, subject to Article VII hereof.


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


 


 



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highly compensated employees, within the meaning of the Employee
Retirement Income Security Act of 1974, as amended from time to time and (b) satisfies
the requirements of Section 409A of the Code for exclusion from gross
income of amounts deferred under the Plan.


3.4           Notwithstanding anything in the Plan to
the contrary, no Deferral Amount may be elected by any Eligible Director or
Eligible Employee if such Deferral Amount would be subject to current income
taxes in any non-U.S. jurisdiction notwithstanding any deferral of such
Compensation under the Plan. To the extent that, due to a change in law or
administrative oversight, a Deferral Amount is credited and would be subject to
taxes as aforesaid, the Company shall distribute such Compensation, adjusted
for gains or losses in accordance with Article V of the Plan, to the
Participant in the form of a lump sum distribution promptly following
confirmation by the Committee of such change in law or administrative
oversight; provided, however, that such distribution shall be made only to the
extent permitted by Section 409A of the Code for exclusion from gross
income of amounts deferred under the Plan.


ARTICLE IV


DEFERRAL ELECTIONS


4.1           In
December of each Year, each Eligible Director then serving and each
Eligible Employee then employed at a Participating Company shall have the right
to determine his or her Deferral Amount for the next Year, subject to the
limitations set forth in this Article IV. Any such Deferral Amount may be
comprised of salary and/or cash Bonus payable in respect of such next Year
and/or “Performance Shares” awarded pursuant to the Equity Participation Plan
having “Performance Cycles” scheduled to end at December 31 of such next
Year; provided that deferrals of salary may only be made with the approval the
Committee (or the Chief Executive in 


 


 



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respect of all Participants). With respect to the initial Year, cash
Bonuses payable in 2005 that were earned in 2004 and deferred in 2003 under the
1995 Deferred Compensation Plan shall be deemed to have been deferred under the
Plan rather than under the 1995 Deferred Compensation Plan to the extent that
the requirements of Section 409A of the Code apply to such deferrals for
exclusion from gross income of such deferred cash Bonuses. With respect to any
individual who becomes an Eligible Employee or Eligible Director for the first
time on or after January 1 but before March 1 in any Year, the
election of a Deferral Amount can be made within thirty days of becoming an
Eligible Employee or Eligible Director but only with respect to Compensation
for services rendered subsequent to the election. Subject to Section 4.3,
such Deferral Amount shall reduce the amount that is to be paid to the
Participant for the Year of reference. Subject to the foregoing, an Eligible
Employee may submit a separate election for a Year with respect to salary
payable in that Year, with respect to a cash Bonus payable for that Year and
with respect to any amount payable in respect of “Performance Shares” awarded
pursuant to the Equity Participation Plan having “Performance Cycles” scheduled
to end at December 31 of that Year. Prior to the commencement of any Year,
the Chief Executive Officer or the Committee may provide, by notice to Eligible
Employees, that salary or other specified components of compensation do not
qualify for deferral under the Plan for that Year.


4.2           An Eligible Employee or Eligible
Director who does not elect a Deferral Amount in December of any Year will
not be permitted to make such an election until the following December,
effective for the following Year; provided that any individual who becomes an
Eligible Employee or Eligible Director for the first time on or after January 1
but before March 1 in any year may elect a Deferral Amount within thirty
days of becoming an Eligible Employee or 


 


 



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Eligible Director but only with respect to Compensation for services
rendered subsequent to the election.


4.3           No deferral agreement with respect to a
Year shall provide for a Deferral Amount of less than $5,000 for such Year;
provided, however, that an election by an Eligible Employee with respect to
salary or Bonus may be conditioned upon the amount of the Eligible Employee’s
salary or Bonus (or component thereof) awarded.


4.4           Any election of a Deferral Amount shall
be effected by the execution of a valid Deferred Compensation Plan Election
Form, timely filed with the Company, and shall be irrevocable for the Year with
respect to which the election is made; provided, however, that anytime prior to
December 31, 2005 (or such earlier date as may be designated by the Chief
Executive Officer or the Committee), Participants shall be entitled to cancel
any deferral election in respect of cash Bonuses payable in 2005 that were
earned in 2004 and deferred in 2003 under the 1995 Deferred Compensation Plan
that have been deemed to have been deferred under the Plan rather than under
the 1995 Deferred Compensation Plan pursuant to Section 4.1. Such
cancellation shall be effective by the execution of a Deferral Cancellation
Form, in the form provided by the Company or accepted by the Committee, timely
filed with the Company and shall be irrevocable.


4.5           Each validly executed and timely filed
Deferred Compensation Plan Election Form shall be effective solely with
respect to the specified Year. An Eligible Director or Eligible Employee who
wishes to elect a Deferral Amount with respect to a succeeding Year must make a
separate and timely election for such Year.


 


 



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4.6           An election with respect to a Deferral
Amount for a Year must specify the Deferral Period applicable to that Deferral
Amount. With respect to a Deferral Amount for any Year, the Participant may
elect a Deferral Period of a specific number of years, provided that in no
event may the number of years be less than three (3). Alternatively, the
Participant may elect a Deferral Period which ends on (a) his or her
separation from service as an employee or director, (b) the date which is
thirteen (13) months after such separation from service, or (c) the
earlier of such separation from service (or the date which is thirteen (13)
months after such separation from service) or a specified number of years
pursuant to the preceding sentence. A Participant may elect a different
Deferral Period for each Year’s Deferral Amount or for any specified portion of
any Year’s Deferral Amounts, except that, unless the Committee (or the Chief
Executive Officer in respect of all Participants) otherwise directs, the
Deferral Period referred to in clause (c) of the preceding sentence may
only be elected by a Participant if so elected for all Deferral Amounts of such
Participant for all Years. A Participant may elect to extend, but not shorten,
a previously elected Deferral Period at any time at least 12 months before the
end of such previously elected Deferral Period by the execution of a valid
Deferred Compensation Plan Election Change Form, timely filed with the Company;
provided that a Deferral Period extension must be a minimum of five years. If
such previously elected Deferral Period ended upon separation from service as
an employee or director, then a Deferred Compensation Plan Election Change Form shall
only be effective in respect of Deferral Amounts that would not otherwise have
been distributed during the 12-month period after the filing of such
Form. Notwithstanding the foregoing, at any time before December 31, 2006
(or such earlier date as the Committee may establish), a Participant shall be
entitled to cancel any previously elected Deferral Period with respect to a
Deferral Amount not otherwise payable in 


 


 



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2006 and elect any new Deferral Period with respect to such Deferral
Amount that the Participant could have elected as an initial Deferral Period,
as set forth above; provided, however, that any newly elected Deferral Period
shall not be required to be at least three years; but further provided that the
new Deferral Period may not end before June 30, 2007. Such cancellation
and new election shall be made by the execution of a Deferral Period Change
Form, in the form provided by the Company or accepted by the Committee, and
shall be irrevocable.


4.7           Each deferral election also must
specify the payment option that will apply for the Deferral Amount, or any
portion thereof, for that Year, and earnings credited on that amount. The
normal form of payment shall be a lump sum payment. A Participant may elect
that the distribution be made in installments payable over a specified number
of years, not longer than 15 years; provided, however, that in no event may
installment payments be elected over a number of years that is more than the
Participant’s life expectancy or the life expectancy of the designated primary
Beneficiary, whichever is greater. If a Participant elects the installment
payment option, the Participant also must elect whether installments should be
made annually, quarterly or, if the Committee (or the Chief Executive Officer
in respect of all Participants) shall direct to offer such alternative,
monthly. Different payment options may be elected with respect to the Deferral
Amount, or any portion thereof, for each Year, and earnings credited on such
amount.


4.8           Anything
in Section 4.6 or 4.7 to the contrary notwithstanding, on his or her
Deferred Compensation Plan Election Form, the Participant may elect that in the
event of his or her death or Disability any Deferral Period or form of
distribution election otherwise applicable to a Deferral Amount is nullified
and: (i) distribution shall be made after the date of death or Disability;
and (ii) distribution of his or her entire Account, or of any Deferral
Amount, shall be 


 


 



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made either in a lump sum or in installments payable
over a specified number of years, not longer than 15. Unless otherwise elected
pursuant to the preceding sentence, in the event of the Participant’s death or
Disability, payment of a Participant’s Account shall be made in the form of a
lump sum as soon as administratively practicable following the date of death or
Disability.


ARTICLE V


CREDITING OF
DEFERRAL AMOUNTS AND

ACCRUAL OF INVESTMENT GAINS OR LOSSES


5.11        All Deferral Amounts will be withheld from
the electing Participant’s Compensation and credited on the Company’s books in
the Account maintained in such Participant’s name.


5.2          Each month, the balance of each
Participant’s Account shall be credited with earnings or investment gains and
losses as provided below. The Committee may establish procedures permitting
Participants to designate one or more investment benchmarks specified by the
Chief Executive Officer or the Committee for the purpose of determining the
earnings or investment gains and losses to be credited or debited to a
Participant’s Account. Investment benchmarks so specified may be made available
to all Participants or selected Participants as the Chief Executive Officer or
the Committee may designate. The Committee shall have the sole discretion to
make such rules as it deems desirable with respect to the administration
of any such investment benchmark procedures, including rules permitting
the Participant to change the designation of investment benchmarks to be used
to measure the value of the Account. The Committee, however, retains the
discretion at any time to change the investment benchmarks available to
Participants, including any investment benchmarks previously specified by the
Chief 


 


 



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



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ARTICLE
VI


COMMENCEMENT
OF BENEFITS


6.1           At
the end of the Deferral Period selected by a Participant with respect to each
Deferral Amount or, if applicable, separation from service with a Participating
Company or of status as an Eligible Director, the amount credited with respect
to such Deferral Amount shall be distributable to such Participant in the form
of payment selected, commencing as soon as administratively practicable. Notwithstanding
the foregoing, effective as of May 18, 2006, any distribution payments due
on account of a Participant’s separation from service and otherwise payable
during the six-month period following the Participant’s separation from service
shall be paid on the first date of the seventh month following the Participant’s
separation from service.


6.2           Notwithstanding
Section 6.1, each Participant’s Account shall be distributed in accordance
with Section 4.8 in the event of the Participant’s death or Disability;
provided, however, that if the Participant becomes entitled to a distribution
pursuant to Section 6.1 on account of the Participant’s separation from
service and the Participant subsequently becomes Disabled, any distribution
payments otherwise payable during the six-month period following the
Participant’s separation from service shall be paid on the first date of the
seventh month following the Participant’s separation from service to the extent
required under Section 409A of the Code to avoid taxation under Section 409A(a)(1),
as interpreted by the Committee in its sole discretion.


6.3           Notwithstanding
any other provision of the Plan to the contrary, the Committee, in its sole
discretion, shall have the right, but shall not be required, to distribute all
or any portion of a Participant’s benefits under the Plan in the form of any
investment or security chosen by the 



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Participant at any time as an investment
benchmark for measuring the value of his or her Account pursuant to Section 5.2
of the Plan.


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


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


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


6.7           Notwithstanding any other provision of the Plan, any payment
required to be made by the Company on a specified date pursuant to the terms of
the Plan, or pursuant to any election made under the Plan, may be made as soon
thereafter as administratively practicable; provided, however, that such
payment will be made no later than the end of the calendar year that includes
the specified date or, if later, by the 15th day of the
third month following the specified date. Amounts in a Participant’s
Account shall continue to be credited with earnings and investment gains and
losses pursuant to Section 5.2 until distributed to the extent
administratively practicable.



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ARTICLE VII


 


BENEFICIARY
DESIGNATION


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


ARTICLE
VIII


MAINTENANCE
AND VALUATION OF ACCOUNTS


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



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


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


ARTICLE
IX


FUNDING


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


9.2           Notwithstanding
anything in the Plan to the contrary, Participants and their Beneficiaries,
heirs, successors and assigns shall have no legal or equitable rights, interest
or claims in any specific property or assets of the Company or any other
Participating Company, nor shall they be beneficiaries of, or have any rights,
claims or interests in, any funds, securities, life insurance policies, annuity
contracts, or the proceeds therefrom, owned or which may be acquired by the
Company. Such funds, securities, policies or other assets shall not be held in
any 


 



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way as collateral security for the
fulfillment of the obligations under the Plan. Any and all of such assets shall
be, and remain, for purposes of the Plan, the general unpledged, unrestricted
assets of the Company or Participating Company, as the case may be.


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


ARTICLE X


AMENDMENT
AND TERMINATION


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


10.2         The Board may at any time terminate the Plan; provided,
however, that such termination shall not decrease the accrued benefits or
rights of any Participant under the Plan. Upon any termination of the Plan
under this Section 10.2, Participants shall thereafter be prohibited from
making deferrals under the Plan and shall be prohibited from making any changes
to any Deferral Periods, and Deferral Amounts shall be paid to Participants as
soon as permissible under Section 409A of the Code as interpreted by the
Committee in its sole 



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discretion for the exclusion from gross
income of amounts deferred under the Plan, notwithstanding any election made by
Participants with respect to Deferral Periods. Accounts shall be maintained and
distributed pursuant to such terms, at such times and upon such conditions as
were effective immediately prior to the termination of the Plan; provided,
however, that the Committee, in its discretion, may direct that all benefits
payable under the Plan be distributed in the form of a lump sum distribution
following the Plan’s termination to the extent permitted by Section 409A
of the Code as interpreted by the Committee for exclusion from gross income of
amounts deferred under the Plan.


ARTICLE
XI


FINANCIAL
HARDSHIP WITHDRAWALS


11.1         Subject
to the provisions set forth herein, a Participant may withdraw up to 100% (one
hundred percent) of his or her Account balance as necessary to satisfy
immediate and heavy financial needs of the Participant which the Participant is
unable to meet from any other resource reasonably available to the Participant
due to the occurrence of an Unforeseen Emergency. The amount of such hardship
withdrawal may not exceed the amount required to meet such need plus taxes
reasonably anticipated as a result of distribution, after taking into account
the extent to which such hardship is or may be relieved through reimbursement
or compensation by insurance or otherwise or by liquidation of the Participant’s
assets (to the extent the liquidation of such assets would not itself cause severe
financial hardship). The Participant shall be required to furnish evidence of
qualification for a financial hardship withdrawal to the Committee on forms
prescribed by or acceptable to the Company.



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11.2         Notwithstanding
any other provision of the Plan to the contrary, upon written application of a
Participant, the Committee may, in the case of financial hardship, authorize
the cessation of deferrals by such Participant to the extent permitted by Section 409A
of the Code as interpreted by the Committee for exclusion from gross income of
amounts deferred under the Plan.


ARTICLE
XII


ADMINISTRATION


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


12.2         The
Committee shall have general charge of the administration of the Plan and shall
have full power and authority to make its determinations effective. All
decisions of the Committee shall be by a vote of the majority of its members
and shall be final and binding unless the Board shall determine otherwise. Members
of the Committee, whether or not Eligible Employees or Eligible Directors,
shall be eligible to participate in the Plan while serving as a member of the
Committee, but a member of the Committee shall not vote or act upon any matter
which relates solely to such member as a Participant. The Committee may
delegate to any agent or to any sub-committee or member of the Committee its
authority to perform any act hereunder, including, without limitation, those
matters involving the exercise of discretion, provided that such delegation
shall be subject to revocation at any time by the Committee.


12.3         In
addition to all other powers vested in it by the Plan, the Committee shall have
power to interpret the Plan, to establish and revise rules and regulations
relating to the Plan and to make any other determinations that it believes
necessary or advisable for the administration of the Plan, including rules restricting
the availability to some or all Participants of deferral period 



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alternatives, investment benchmarks, or
distribution alternatives otherwise available under the Plan. The Committee
shall have absolute discretion and all decisions made by the Committee pursuant
to the exercise of its authority (including, without limitation, any
interpretation of the Plan) shall be final and binding, in the absence of
arbitrary or capricious action, on all persons and shall be accorded the
maximum deference permitted by law.


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


ARTICLE
XIII


GENERAL
PROVISIONS


13.1         Neither
the establishment of the Plan, nor any modification thereof, nor the creation
of an Account, nor the payment of any benefits shall be construed:  (a) as giving the Participant,
Beneficiary or other person any legal or equitable right against the Company
unless such right shall be specifically provided for in the Plan or conferred
by affirmative action of the Company in accordance with the terms and
provisions of the Plan; or (b) as giving an Eligible Employee the right to
be retained in the service of a Participating Company or to continue as a
member of the Board or the board of directors of any Participating Company, and
the Participant shall remain subject to discharge or removal to the same extent
as if the Plan had never been established.


13.2         No interest of any Participant or
Beneficiary hereunder shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by creditors of the Participant or the Participant’s Beneficiary. Notwithstanding




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the foregoing, pursuant to rules comparable
to those applicable to qualified domestic relations orders, as determined by
the Committee, the Committee may direct a distribution prior to any
distribution date otherwise described in the Plan, to an alternate payee (as
defined under the rules applicable to qualified domestic relations orders)
to the extent permitted by Section 409A of the Code as interpreted by the
Committee for exclusion from gross income of amounts deferred under the Plan.


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


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


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


13.6         Any
dispute, controversy or claim between the Company and any Participant,
Beneficiary or other person arising out of or relating to the Plan shall be
settled by arbitration 



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conducted in the City of New York, in accordance
with the Commercial Rules of the American Arbitration Association then in
force and New York law. In any dispute or controversy or claim challenging any
determination by the Committee, the arbitrator(s) shall uphold such
determination in the absence of the arbitrator’s finding of the presence of
arbitrary or capricious action by the Committee. The arbitration decision or
award shall be final and binding upon the parties. The arbitration shall be in
writing and shall set forth the basis therefor. The parties hereto shall abide
by all awards rendered in such arbitration proceedings, and all such awards may
be enforced and executed upon in any court having jurisdiction over the party
against whom enforcement of such award is sought. Each party shall bear its own
costs with respect to such arbitration, including reasonable attorneys’ fees;
provided, however, that:  (i) the
fees of the American Arbitration Association shall be borne equally by the
parties; and (ii) if the arbitration is resolved in favor of the
Participant, Beneficiary or other person asserting a claim under the Plan, such
person’s cost of the arbitration and the fees of the American Arbitration
Association shall be paid by the Company.


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


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



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


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


 



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