Exhibit 10.1


 


FINANCIAL
SECURITY ASSURANCE HOLDINGS LTD.


 


2004 DEFERRED COMPENSATION PLAN


 


 


as of December 17, 2004


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE
  I

  	
  ESTABLISHMENT
  AND PURPOSE OF THE PLAN

  
	
   

  	
   

  
	
  ARTICLE
  II

  	
  DEFINITIONS

  
	
   

  	
   

  
	
  ARTICLE III

  	
  PARTICIPATION

  
	
   

  	
   

  
	
  ARTICLE
  IV

  	
  DEFERRAL
  ELECTIONS

  
	
   

  	
   

  
	
  ARTICLE
  V

  	
  CREDITING
  OF DEFERRAL AMOUNTS AND ACCRUAL OF INVESTMENT GAINS OR LOSSES

  
	
   

  	
   

  
	
  ARTICLE
  VI

  	
  COMMENCEMENT
  OF BENEFITS

  
	
   

  	
   

  
	
  ARTICLE VII

  	
  BENEFICIARY DESIGNATION

  
	
   

  	
   

  
	
  ARTICLE VIII

  	
  MAINTENANCE AND VALUATION OF
  ACCOUNTS

  
	
   

  	
   

  
	
  ARTICLE
  IX

  	
  FUNDING

  
	
   

  	
   

  
	
  ARTICLE
  X

  	
  AMENDMENT
  AND TERMINATION

  
	
   

  	
   

  
	
  ARTICLE
  XI

  	
  FINANCIAL
  HARDSHIP WITHDRAWALS

  
	
   

  	
   

  
	
  ARTICLE XII

  	
  ADMINISTRATION

  
	
   

  	
   

  
	
  ARTICLE XIII

  	
  GENERAL PROVISIONS

  



 





















 


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 was amended and restated as of July
10, 2002, November 14, 2002, May 16, 2003, November 13, 2003 and December 17,
2004.  This plan, as so amended and
restated, is known as the Financial Security Assurance Holdings Ltd. 1995 Deferred
Compensation Plan.  The Company seeks to
establish 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.


 


ARTICLE II



DEFINITIONS


 


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


 


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


 


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2.2           The term “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.


 


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.


 


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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) 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.


 


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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.


 


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 “Specified Employee” shall mean a key employee (as defined in Section
416(i) of the Code, without regard to paragraph (5) thereof) of a corporation
any stock in which is publicly traded on an established securities market or
otherwise.  At December 2004, Section
416(i) of the Code provides that a company’s key employees are (i) officers
(but no more than 50 officers) with annual compensation over $135,000 (for
2005, adjusted thereafter); (ii) employees who are 5% owners of the employer;
and (iii) employees who are 1% owners of the employer with annual compensation
over $150,000.


 


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2.21         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.


 


2.22         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 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.


 


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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 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 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 


 


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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 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


 


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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.


 


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.


 


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.  A Participant may elect to
extend, but not 


 


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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 at least 12
months after the filing of such Form. 
Notwithstanding the foregoing, any Deferral Period for a Specified
Employee that purports to end upon the separation from service of such
Specified Employee shall in no event expire earlier than the date which is six
months after the date of such employee’s separation from service (or, if
earlier, date of death).  Section 409A of
the Code, as interpreted by the Committee in its sole discretion for exclusion
from gross income of amounts deferred under the Plan, shall govern
applicability of the foregoing provisions to participants who become Specified
Employees or cease to be Specified Employees during the course of any Deferral
Period.


 


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 


 


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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 (except as provided in Section 4.6 in respect of a
Participant who is a Specified Employee), on his or her Deferred Compensation
Plan Election Form, the Participant may elect that in the event of his or her
death or (except as provided in Section 4.6 in respect of a Participant who is
a Specified Employee) 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 (except as provided in
Section 4.6 in respect of a Participant who is a Specified Employee) Disability;
and (ii) distribution of his or her entire Account, or of any Deferral Amount,
shall be made either in a lump sum or in installments payable over a specified
number of years, not longer than 15. 
Unless otherwise elected pursuant to the preceding sentence, in the
event of the Participant’s death or (except as provided in Section 4.6 in
respect of a Participant who is a Specified Employee) 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 (except as provided
in Section 4.6 in respect of a Participant who is a Specified Employee) Disability.


 


ARTICLE V



CREDITING OF DEFERRAL AMOUNTS AND

ACCRUAL OF INVESTMENT GAINS OR LOSSES


 


5.1           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.


 


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


 


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Committee.  Nothing in this Article V or in the Committee’s
rules shall give a Participant the right to require the Company or a
Participating Company to acquire any asset for the Account of the Participant,
and if the Company or a Participating Company acquires any asset, or causes a
trustee on its behalf to acquire any asset, to permit it to satisfy its
obligations to pay the Participant’s Deferral Amount, the Participant shall
have no right or interest in any such asset, which shall be held by the Company
or the Participating Company subject to the rights of all unsecured creditors
of the Company or the Participating Company. 
The rights of the Participant with respect to any designation of one or
more investment benchmarks for measuring the value of any Account hereunder
shall be expressly subject to the provisions of Article IX of the Plan.


 


ARTICLE VI



COMMENCEMENT OF BENEFITS


 


6.1           At the end of the Deferral Period
selected by a Participant with respect to each Deferral Amount or, if
applicable, separation from service 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.


 


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.


 


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.


 


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 


 


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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.


 


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


 


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


 


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ARTICLE IX



FUNDING


 


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


 


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


 


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


 


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ARTICLE X



AMENDMENT AND TERMINATION


 


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


 


10.2         The Board may at any time terminate the
Plan; provided, however, that such termination shall not decrease the accrued
benefits or rights of any Participant under the Plan.  Upon any termination of the Plan under this
Section 10.2, each Participant shall cease to make deferrals under the Plan,
and all amounts shall prospectively cease to be deferred for the balance of
such Year.  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 


 


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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.


 


11.2         For purpose of determining the
Participant’s Account under this Article XI, the earnings and investment gains
and losses credited to the Participant’s Account shall be determined pursuant
to Section 5.2 as if the Participant had terminated employment with the Company
as of the date of the relevant hardship withdrawal distribution made hereunder.


 


11.3         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 


 


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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 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.


 


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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 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.


 


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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 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


 


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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.


 


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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