**Exhibit10.1**

** **

**JANUSCAPITAL GROUP INC.**

 

**AMENDEDAND RESTATED**

**INCOME**

**DEFERRALPROGRAM**

 

**Effectiveas of**

**January 22,2008**

 

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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         |

 

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TABLE OF CONTENTS

 
| ** **                                       | ** ** | **P**age                                                         |
|--------------------------------------------------|------------|------------------------------------------------------------------|
| ** **                                       | ** ** | ** **                                                       |
| **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 |

 

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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       |

#  

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# ARTICLE I – INTRODUCTION

#  

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

 

This document sets forththe terms of the Plan, specifying the group of Employees of the Company andcertain affiliated employers who are eligible to make deferrals, the proceduresfor electing to defer compensation and the Plan’s provisions for maintainingand 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 adifferent meaning is plainly required by the context:

 

2.01                         Account:

##  

The account maintainedfor a Participant on the books of his or her Employer to determine, from timeto time, the Participant’s interest under this Plan.  The balance in such Account shall bedetermined by the Plan Administrator’s delegate.  Each Participant’s Account shall consist ofat least one Deferral Subaccount for each separate deferral under Section 4.02.  The Plan Administrator’s delegate may alsoestablish such additional Deferral Subaccounts as it deems necessary for theproper administration of the Plan.  ThePlan Administrator’s delegate may also combine Deferral Subaccounts to theextent it deems separate accounts are not needed for sound recordkeeping.  Where appropriate, a reference to aParticipant’s Account shall include a reference to each applicable DeferralSubaccount that has been established thereunder.

 

2.02                         BaseCompensation:

 

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

 

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2.03                         Beneficiary:

 

The person or personsproperly designated by a Participant, as determined by the Plan Administrator’sdelegate, to receive the amounts in one or more of the Participant’s DeferralSubaccounts in the event of the Participant’s death.  To be effective, any Beneficiary designationmust be in writing, signed by the Participant, and filed with the PlanAdministrator’s delegate prior to the Participant’s death.  In the case of a Participant who has a Spouseon the date of his or her death, a designation of a Beneficiary other than suchSpouse shall only be effective if such Spouse has provided written consent tothe designation that is witnessed by a notary public.  In addition, the designation must meet suchother standards as the Plan Administrator shall require from time to time.  If no designation is validly in effect at thetime of a Participant’s death or if all designated Beneficiaries havepredeceased the Participant, then the Participant’s Beneficiary shall be his orher Spouse.  If the Participant has noSpouse or if the Participant’s Spouse has predeceased the Participant, then theParticipant’s Beneficiary shall be his or her children (paid on a per stirpesbasis).  If the Participant has nochildren 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 byname (or name and relationship) remains in effect regardless of any change inthe designated individual’s relationship to the Participant.  A Beneficiary designation solely byrelationship (for example, a designation of “Spouse,” that does not give thename of the Spouse) shall designate whoever is the person in that relationshipto the Participant at his or her death. An individual who is otherwise a Beneficiary with respect to aParticipant’s Account ceases to be a Beneficiary when all payments have beenmade from the Account.

 

2.04                         BonusCompensation:

 

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

 

2.05                         Changein Ownership:

 

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

 

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2.06                         Code:

 

The Internal Revenue Codeof 1986, as amended from time to time.

 

2.07                         CommonStock:

 

Thecommon 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                         DeferralSubaccount:

 

A subaccount of aParticipant’s Account maintained to reflect his or her interest in the Planattributable to each deferral (or separately tracked portion of a deferral) ofBase Compensation, Periodic Incentive Compensation, Bonus Compensation, andEquity Compensation respectively and, as applicable, earnings or lossescredited to such subaccount in accordance with Section 5.01(b).

 

2.10                         Disability:

 

A Participant shall beconsidered to suffer from a Disability if, in the judgment of the PlanAdministrator’s delegate, the Participant:

 

(a)                                  Is unable to engage in any substantialgainful activity by reason of any medically determinable physical or mentalimpairment which can be expected to result in death or can be expected to lastfor a continuous period of not less than 12 months, or

 

(b)                                 Is, by reason of any medicallydeterminable physical or mental impairment which can be expected to result indeath or can be expected to last for a continuous period of not less than 12months, receiving income replacement benefits for a period of not less than 3months under an accident and health plan covering employees of the Participant’sEmployer.

 

2.11                         DistributionDate:

 

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

 

3

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2.12                         ElectionForm:

 

The form prescribed bythe Plan Administrator’s delegate on which a Participant specifies the amountof his or her Base Compensation, Periodic Incentive Compensation, BonusCompensation and Equity Compensation to be deferred pursuant to the provisionsof Article IV.  An Election Form neednot exist in a paper format, and it is expressly contemplated that the PlanAdministrator’s delegate may adopt such technologies, including voice responsesystems, emails, electronic forms and internet or intranet sites, as it deemsappropriate from time to time.

 

2.13                         EligibleEmployee:

 

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

 

2.14                         Employee:

 

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

 

2.15                         Employer:

 

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

 

2.16                         EquityCompensation:

 

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

 

2.17                         ERISA:

 

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

 

2.18                         KeyEmployee:

 

Any Eligible Employee orformer Eligible Employee who, as of December 31st of the PlanYear preceding the Plan Year in which the employee incurs a Separation fromService, is:

 

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(a)                                  anofficer of the Employer or an Affiliate of the Employer who maintains a “VicePresident 4” or higher office (or equivalent designation) as defined by theHuman Resources Department of the Company; or

 

(b)                                 a5 percent owner of the Employer; or

 

(c)                                  a1-percent owner of the Employer having annual compensation of more than$150,000.

 

2.19                         Misconduct:

 

### (a)                                Beforethe occurrence of a change in control (as defined below), unless otherwiseprovided through specific terms included in an Election Form byauthorization of the Plan Administrator, any one or more of the following, asdetermined by the Plan Administrator:

###  

#### (1)                                  AParticipant’s commission of a crime which, in the judgment of the PlanAdministrator, resulted or is likely to result in damage or injury to theCompany or a Subsidiary;

####  

#### (2)                                  Thematerial violation by the Participant of written policies of the Company or aSubsidiary;

####  

#### (3)                                  Thehabitual neglect or failure by the Participant in the performance of his or herduties to the Company or a Subsidiary (but only if such neglect or failure isnot remedied within a reasonable remedial period after Participant’s receipt ofwritten notice from the Company which describes such neglect or failure inreasonable detail and specifies the remedial period); or

####  

#### (4)                                  Actionor inaction by the Participant in connection with his or her duties to theCompany 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 andsubsection (b) below, the term “change of control” shall have the meaningthat is assigned to such term under the Company’s most recently effective longterm incentive stock plan.

 

(b)                               Fromand after the occurrence of a change of control, unless otherwise providedthrough specific terms included in an Election Form by the PlanAdministrator, the occurrence of any one or more of the following, asdetermined in the good faith and reasonable judgment of the Plan Administrator:

 

(1)                                            Participant’s conviction for committing an act offraud, embezzlement, theft, or any other act constituting a felony involvingmoral 

 

5

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turpitude or causing material damage or injury, financial or otherwise, tothe Company;

 

(2)                                            A demonstrably willful and deliberate act or failureto act which is committed in bad faith, without reasonable belief that suchaction or inaction is in the best interests of the Company, which causesmaterial damage or injury, financial or otherwise, to the Company (but only ifsuch act or inaction is not remedied within 15 business days of Participant’sreceipt of written notice from the Company which describes the act or inactionin reasonable detail); or

 

(3)                                  The consistent gross neglect of duties or consistentwanton negligence by the Participant in the performance of the Participant’sduties (but only if such neglect or negligence is not remedied within areasonable remedial period after Participant’s receipt of written notice fromthe Company which describes such neglect or negligence in reasonable detail andspecifies the remedial period).

 

2.20                         Participant:

 

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

 

2.21                         Performance-BasedCompensation:

 

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

 

2.22                         PeriodicIncentive Compensation:

 

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

 

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2.23                         Permissible Events:

 

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

 

2.24                         Plan:

 

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

 

2.25                         Plan Administrator:

 

The Board or a committeeappointed by the Board to administer the Plan (“Plan Committee”).  The Plan Committee shall consist of two ormore 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 PlanCommittee shall from time to time be increased or decreased, and shall besubject to such conditions, in each case as the Board deems appropriate topermit transactions in securities (including derivative securities) of theCompany pursuant to the Plan to satisfy such conditions of Rule 16b-3 asthen in effect.

 

2.26                         Plan Year:

 

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

 

2.27                         Restricted Stock Unit:

 

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

 

2.28                         Retirement:

 

Separation from Servicewith the Company and all affiliates (other than for Misconduct) after attainingeligibility for retirement.  AParticipant attains eligibility for retirement when he or she attains:  (i) at least age 55 with 10 or moreyears of service, or (ii) at least age 65.

 

2.29                         Section 409A:

 

Section 409A of theCode and the applicable regulations and other guidance of general applicabilitythat is issued thereunder.

 

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2.30                         Separation from Service:

 

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

 

2.31                         Spouse:

 

An individual shall beconsidered a Participant’s Spouse for purposes of this Plan if:  (i) the individual is of the oppositegender to the Participant, (ii) the individual and the Participant areconsidered to be legally married (including a common law marriage, if thecommon law marriage was formed in one of the states that permit the formationof a common law marriage), and (iii) the marriage of the individual andthe Participant is recognized on the relevant day as valid in the state wherethe Participant resides.

 

2.32                         Start Date:

 

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

 

2.33                         Unforeseeable Emergency:

 

A severe financialhardship to the Participant resulting from –

 

(a)                                  An illness or accident of theParticipant, the Participant’s Spouse or a dependent (as defined in Code section152(a)) of the Participant;

 

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

 

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

 

The Plan Administrator’sdelegate shall determine the occurrence of an Unforeseeable Emergency inaccordance with Section 409A(a)(2)(B)(ii).

 

2.34                         Valuation Date:

 

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

 

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# ARTICLE III – ELIGIBILITY ANDPARTICIPATION

#  

3.01                         Eligibility to Participate.

 

(a)                                Only Eligible Employees shall be eligibleto defer compensation under this Plan. During the period an individual satisfies all of the eligibilityrequirements of this Section, he or she shall be referred to as an EligibleEmployee.

 

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

 

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

 

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

 

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

 

(4)                                  a senior officer of a Company subsidiarythat is specifically designated to be eligible by the Plan Administrator or itsdelegate.

 

Notwithstandingthe 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 anygroup of Eligible Employees.

 

(c)                                Each Eligible Employee becomes an activeParticipant on the date an amount is first withheld from his or hercompensation pursuant to an Election Form submitted by the EligibleEmployee to the delegate of the Plan Administrator in accordance with Section 4.01.

 

3.02                         Termination of Eligibility to Defer.

##  

A Participant’seligibility to make future deferrals under Section 4.01 shall terminateupon the date he or she ceases to be an Eligible Employee who is described ineither the first or second sentence of Section 3.01(b).  After termination of an individual’seligibility to make future deferrals under the Plan, the individual shall be aninactive Participant in this Plan.

 

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##  

3.03                         Termination of Participation.

##  

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

 

# ARTICLE IV – DEFERRAL OFCOMPENSATION

#  

4.01                         Deferral Elections.

##  

(a)                                  Each Eligible Employee may make anelection to defer under the Plan any whole percentage of his or her BaseCompensation (up to 50%), Periodic Incentive Compensation (up to 100%), BonusCompensation (up to 100%), and Equity Compensation (up to 100%) in the mannerdescribed in Section 4.02.  Withrespect to Periodic Incentive Compensation and Bonus Compensation, theParticipant may specify two alternative deferral percentages that will beapplicable to Periodic Incentive Compensation, Bonus Compensation, and/orEquity Compensation; one deferral percentage will apply to a Participant’s PeriodicIncentive Compensation, Bonus Compensation, and/or Equity Compensation if hisor her bonus is equal to or greater than a specified target amount, and theother deferral percentage (including 0%) will apply to a Participant’s PeriodicIncentive Compensation, Bonus Compensation, and/or Equity Compensation if hisor her bonus is less than that specified target amount.  Any percentage of Base Compensation deferredby an Eligible Employee for a Plan Year will be deducted each pay period duringthe Plan Year for which he or she has Base Compensation and is an employee ofthe Company.  The percentage of PeriodicIncentive Compensation and Bonus Compensation deferred by an Eligible Employeefor a Plan Year will be deducted from his or her payment under the applicablecompensation program at the time it would otherwise be made, provided he or sheremains an employee of the Company at such time.  The percentage of Equity Compensationdeferred by an Eligible Employee for a Plan Year will be granted in the form ofRestricted Stock Units with payment dates in accordance with the EligibleEmployee’s election under the terms of the Plan and will be granted in lieu ofshares of restricted Common Stock or other equity awards that would haveotherwise been granted to the Eligible Employee; provided that the restrictionson such Restricted Stock Units shall lapse on such dates and under suchcircumstances as the restrictions would have lapsed absent the deferral.

 

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

 

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deferral elections ofBase Compensation, Periodic Incentive Compensation, Bonus Compensation and/orEquity Compensation.

 

(c)                                  To be effective, an Eligible Employee’sElection Form must set forth the percentage of Base Compensation, PeriodicIncentive Compensation, Bonus Compensation, and Equity Compensation to bedeferred in accordance with subsection (a) above (or amount in accordancewith subsection (b)), the deferral period under Section 4.03, the form ofpayment under Section 4.04, the initial phantom investment option oroptions under Section 5.02 to which the deferred amount will be creditedinitially (other than for Equity Compensation which shall be deemed to beinvested in shares of Common Stock), the Eligible Employee’s Beneficiarydesignation, and any other information that may be required by the PlanAdministrator from time to time.  Inaddition, the Election Form must meet the requirements of Section 4.02below.

 

4.02                         Time and Manner of Deferral Election.

##  

(a)                                Deferrals of Base Compensation. Subject to the next two sentences, an Eligible Employee must make adeferral election for a Plan Year with respect to Base Compensation by November 30thof the year prior to the beginning of the Plan Year in which the BaseCompensation would otherwise be paid.  Anindividual who newly becomes an Eligible Employee (and who was not previouslyan Eligible Employee during prior Plan Years and was not eligible toparticipate in any plan of the Company that would be aggregated with the Planunder Reg. 1.409A-1(c)), will have 30 days from the date the individual becomesan Eligible Employee to make an election with respect to compensation earnedfor payroll cycles that begin after the election is received (if this 30-dayperiod ends later than the deadline under the preceding sentence).

 

(b)                               Deferrals of Bonus Compensation andEquity Compensation.  Bonus Compensation and Equity Compensationshall be subject to the deferral rules set forth in the following threeparagraphs:

 

(1)                                  Regular Bonus Compensation and EquityCompensation.  Subject to Paragraphs (2) and (3) belowand the next sentence, an Eligible Employee must make a deferral election withrespect to his or her Bonus Compensation and/or Equity Compensation no laterthan the close of the Plan Year preceding the Plan Year in which the servicesare performed for which the Bonus Compensation and/or Equity Compensation ispaid.

 

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

 

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

 

(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 andwas not eligible to participate in any plan of the Company that would beaggregated with the Plan under Reg. 1.409A-1(c)), may make a deferral electionwith respect to his or her Bonus Compensation and/or Equity Compensation thatis payable for services performed in such Plan Year following the date on whichthe election is received so long as the deferral election:  (i) is made within 30 days of the datethe individual becomes an Eligible Employee (or, with respect toPerformance-Based Compensation, such longer period as is permitted by Section 409A),and (ii) is limited to the maximum portion of such Plan Year’s BonusCompensation and/or Equity Compensation as may deferred under Section 409A.

 

(c)                                  Deferrals of Periodic IncentiveCompensation.  Periodic Incentive Compensation shall besubject 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 respectto Periodic Incentive Compensation by November 30th of the yearprior to the beginning of the Plan Year in which the Periodic IncentiveCompensation would otherwise be paid.

 

(2)                                  Performance-Based Compensation. To the extent permitted by Reg. 1.409A-2(a)(8), if an Eligible Employee’sPeriodic Incentive Compensation for a particular Plan Year will qualify asPerformance-Based Compensation, the Eligible Employee may make a deferralelection for such Periodic Incentive Compensation no later than six monthsprior to the end of the performance period to which such Periodic IncentiveCompensation 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 andwas not eligible to participate in any plan of the Company that would beaggregated with the Plan under Reg. 1.409A-1(c)), may make a deferral electionwith respect to his or her Periodic Incentive Compensation that is payable forservices performed in such Plan Year following the date on which the electionis received so long as the deferral election: (i) is made within 30 days of the date the individual becomes 

 

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

 

(d)                                 General Provisions. A separate deferral election must be made by an Eligible Employee foreach category of compensation that is eligible for deferral.  If an Eligible Employee fails to file a properlycompleted and executed Election Form with the Plan Administrator’sdelegate by the prescribed time, he or she will be deemed to have elected notto defer any Base Compensation, Periodic Incentive Compensation, BonusCompensation or Equity Compensation, as the case may be, for the applicablePlan Year.  An election is irrevocableonce received and determined by the delegate of the Plan Administrator to beproperly completed.  Increases ordecreases in the amount or percentage a Participant elects to defer shall notbe permitted once an election has become irrevocable.  Notwithstanding the preceding provisions ofthis Section, to the extent necessary because of circumstances beyond thecontrol of the Eligible Employee and in the interests of orderly Planadministration (or to avoid undue hardship to an Eligible Employee), the PlanAdministrator may grant an extension of any election period or may permit thecomplete revocation of an election, but such extension or revocation shall notpermit an election or revocation to be made after the latest time permissiblefor initial elections under Section 409A.

 

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

 

4.03                         Initial Period of Deferral.

##  

An Eligible Employeemaking a deferral election shall specify a deferral period on his or herElection Form by designating a specific payout date, a specificPermissible Event for payout, or both a specific payout date and a PermissibleEvent.  Any Eligible Employee whospecifies Retirement as his or her Permissible Event must also designate apayout date.  If an Eligible Employee hasdesignated both a specific payout date and a Permissible Event, the EligibleEmployee’s deferral period shall terminate on the earlier of the specificpayout date and the Permissible Event. Any Eligible Employee who 

 

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designates a payout dateshall be deemed to have elected a payout date that would occur not earlierthan:

 

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

 

(b)                                 For Periodic Incentive Compensation, atleast until January 1 of the third Plan Year following the Plan Yearduring which the Periodic Incentive Compensation would have been paid absentthe deferral;

 

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

 

(d)                                 For Equity Compensation, at least 2 yearsafter the date the equity awards would have no longer been subject toforfeiture absent the deferral.

 

In addition,notwithstanding an Eligible Employee’s actual election, if a Participant haselected 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 hisor her specific payout date.

 

4.04                         Initial Form of Payment.

 

An Eligible Employeemaking a deferral election may specify a form of payment on his or her ElectionForm by designating either a lump sum payment or installment payments for5, 10, 15 or 20 years.  If an EligibleEmployee elects installment payments, the Eligible Employee shall also specifywhether installments should be paid quarterly, semi-annually or annually.  However, installment payments shall only bemade for a period beyond 5 years (regardless of the Eligible Employee’selection) if the Eligible Employee continues in employment with an Employerthrough his or her eligibility for Retirement (and in all other cases anelection of installments for more than 5 years shall be deemed to be anelection of installments for 5 years). If an Eligible Employee fails to make a form of payment election on theElection Form, his or her form of payment shall be a lump sum payment.

 

4.05                         Subsequent Revisions to Deferral Periodor Form of Payment.

 

A Participant may make anelection to revise the deferral period or form of payment (or both) thatapplies to a Deferral Subaccount in accordance with this section.  An election made under this section must bemade at least 12 months prior to the date of the first scheduled payment andthe election shall not be effective for 12 months after it is made.  This requirement shall be applied inaccordance with Section 409A to bar, as necessary, an election under thissection from being effective if it occurs too soon before the time a 

 

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distribution would bemade in connection with a Permissible Event designated by the Participant.  In addition, if a Participant has specified adate as the end of his or her deferral period, an election under this sectionshall not be effective unless it is made at least 12 months prior to the datethe first scheduled payment would be made in connection with such specifieddate.  If an election is made under thissection, the first payment pursuant to such election must be deferred at least5 years from the date such payment would otherwise have been made.  However, an election under this section maynot provide for payments beyond a Participant’s 80th birthday, andif this requirement conflicts with the minimum 5 years of additional deferralrequired under the preceding sentence, then no election under this sectionshall be permitted.  So long as aParticipant qualifies under this section to change his or her period ofdeferral and/or form of payment, there is no limit on the number of electionsthat may be made under this section.  Anyform of payment elected under this section must be authorized and available tothe Participant under the terms of Section 4.04.  This section shall not apply to aBeneficiary.  In the case of aParticipant who is an officer within the meaning of Section 16 of theSecurities Exchange Act of 1934, an election under this section shall not beeffective unless approved by the Plan Administrator.

 

# ARTICLE V – INTERESTS OFPARTICIPANTS

#  

5.01                         Accounting for Participants’ Interests.

##  

(a)                                  Deferral Subaccounts. Each Participant shall have at least one separate Deferral Subaccountfor each separate deferral of Base Compensation, Periodic IncentiveCompensation, Bonus Compensation, and Equity Compensation made by theParticipant under this Plan.  However,the Plan Administrator’s delegate may also combine Deferral Subaccounts to theextent it deems separate accounts are not needed for sound recordkeeping.  A Participant’s deferral shall be credited tohis or her Account as soon as practicable following the date when the compensationwould have been paid to the Participant in the absence of its deferral.  A Participant’s Account is a bookkeepingdevice to track the value of his or her deferrals (and his or her Employer’sliability therefor).  No assets shall bereserved or segregated in connection with any Account, and no Account shall beinsured or otherwise secured.

 

(b)                                 Account Earnings or Losses. As of each Valuation Date, a Participant’s Account shall be creditedwith earnings and gains (and shall be debited for expenses and losses)determined as if the amounts credited to his or her Account had actually beeninvested as directed by the Participant in accordance with this Article.  The Plan provides only for “phantominvestments,” and therefore such earnings, gains, expenses and losses arehypothetical and not actual.  However,they shall be applied to measure the value of a Participant’s Account and theamount of his or her Employer’s liability to make deferred payments to or onbehalf of the Participant. Notwithstanding anything to the contrary in this Article V, EquityCompensation shall 

 

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

 

5.02                         Phantom Investment Options.

##  

The phantom investmentoptions that are available under this Plan shall be those Janus mutual fundsthat are offered to participants under the Company’s 401(k) plan.  Participant Accounts invested in thesephantom investment options are adjusted to reflect an investment in thecorresponding investment options under the Company’s 401(k) plan.  An amount deferred or transferred into one ofthese options is converted to phantom units in the applicable Company 401(k) fundof equivalent value by dividing such amount by the value of a unit in such fundon the date as of which the amount is treated as invested in this option by thePlan Administrator.  Thereafter, aParticipant’s interest in each such phantom option is valued as of a ValuationDate by multiplying the number of phantom units credited to his or her Accounton such date by the value of a unit in the applicable Company 401(k) fundon such date.  The Plan Administrator maydiscontinue any phantom investment option with respect to some or all Accounts,and it may provide rules for transferring a Participant’s phantominvestment from the discontinued option to a specified replacement option(unless the Participant selects another replacement option in accordance withsuch requirements as the Plan Administrator may apply).  In the absence of a specific direction by thePlan Administrator, the discontinuance and replacement of phantom investmentoptions under this Plan shall mirror what occurs in this regard under theCompany’s 401(k) plan.

 

5.03                         Phantom Investment Option Directions andReallocations.

##  

(a)                                  In connection with an Eligible Employee’sfirst deferral Election Form submitted under the Plan, the EligibleEmployee shall specify in one (1) percent increments how his or herdeferrals are to be invested in one or more of the phantom investment optionsoffered under Section 5.02. Thereafter, the Eligible Employee – (i) may specify a differentinvestment direction that shall apply to his or her future deferrals, and (ii) mayreallocate the investment of his or her existing Account by specifying, in one (1) percentincrements, how such amounts are to be invested among the phantom investmentoptions then offered under the Plan.  ThePlan Administrator may provide that such initial allocations or reallocationsare to be made in a different increment specified by the PlanAdministrator.  A new investmentdirection for future deferrals shall be made on the Election Form thatrelates to such deferrals.  Areallocation of a Participant’s existing Account shall be made using aninvestment change procedure that is provided by the Plan Administrator’sdelegate for this purpose.  Thisprocedure may include the use of written or electronic forms, as well as theuse of a voice-response system, as determined by the Plan Administrator’sdelegate.  A reallocation election isconsidered effective within five (5) business days after the date theinvestment reallocation is received by the Plan Administrator’s delegate.

 

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(b)           Any investmentreallocation of a Participant’s existing Account that is permitted bysubsection (a) shall be effective as of the next Valuation Date thatoccurs at least date 30 days after the date the investment reallocation isreceived by the Plan Administrator’s delegate. If more than one reallocation is received on a timely basis, thereallocation that the Plan Administrator’s delegate determines to be the mostrecent shall be followed.

 

(c)           If the PlanAdministrator’s delegate possesses at any time investment directions as to thephantom investment of less than all of a Participant’s Account, the Participantshall be deemed to have directed that the undesignated portion of the Accountbe invested in a money market phantom investment option offered under the Plan(or if no money market investment option is offered, the investment option thatmost nearly resembles a money market investment option).

 

5.04         Vestingof a Participant’s Account.

 

Other than in respect ofRestricted Stock Units, which shall vest in accordance with the same scheduleas a Participant’s Equity Compensation would have vested absent the deferral, aParticipant’s interest in the value of his or her Account shall at all times be100 percent vested, which means that it will not forfeit as a result of his orher Separation from Service.  However, aParticipant’s right to be paid by the Participant’s Employer remains subject tothe claims of the general creditors of the Employer.

 

# ARTICLE VI – DISTRIBUTIONS

#  

6.01         General.

 

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

 

6.02         Distribution Pursuantto Deferral Election.

 

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

 

(1)           The first DistributionDate that follows the date selected by the Participant for such deferral inaccordance with Sections 4.03 and 4.05, or

 

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

 

(b)           Special Rule forSeparation from Service Events.  Ifthe Participant’s Scheduled Payout Date is the result of the Participant’sSeparation from Service and such Participant is a Key Employee as of December 31stof the year prior to the year in which the Separation from Service occurs, thenno distribution may be made before the date which is 6 months after the date ofthe Separation from Service (or, if earlier, the date of death of theParticipant).

 

(c)           Special Rule forSection 16 Officers.  Thissubsection shall apply if a distribution would occur in accordance with thepreceding provisions of this section at a time when the Participant is anofficer who is subject to the restrictions of Section 16 of the SecuritiesExchange Act of 1934, and if the distribution will result in a disposition ofphantom Company stock by the Participant. In this event, then to the extent permitted by Section 409A, the actualdistribution to the Participant shall be delayed to the extent necessary, ifany, in order to allow time for the Plan Administrator to approve thedistribution in accordance with Rule 16b-3(e).

 

6.03         Distributions onAccount of Death.

 

Upon a Participant’sdeath, his or her Beneficiary shall be paid each Deferral Subaccount stillstanding to the Participant’s credit under the Plan as soon as practicableafter the first Distribution Date to occur after the Plan Administrator’sdelegate receives notification of the Participant’s death.  Any claim to be paid any amounts standing tothe credit of a Participant in connection with the Participant’s death must bereceived by the Plan Administrator at least 14 days before any such amount ispaid out by the Plan Administrator.  Anyclaim received thereafter is untimely, and it shall not lie against the Plan,the Company, any Employer, the Plan Administrator, the Plan Administrator’sdelegate or any other party acting for one or more of them.

 

6.04         Acceleration ofPayments.

 

Pursuant to the rules andprovisions of this Section 6.04, payment of one or more specific deferralsmay be made earlier than specified in Section 6.02.

 

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

 

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(b)           Change in OwnershipPayments.  Each Participant’s Accountshall be distributed in a lump sum payment as soon as practicable following theoccurrence of a Change in Ownership.

 

(c)           UnforeseeableEmergency.  If a Participant believesan Unforeseeable Emergency has occurred, the Participant or Beneficiary mayfile a written request with the Plan Administrator for accelerated payment ofall or a portion of the amount credited to his or her Account.  After a Participant has filed a writtenrequest pursuant to this subsection, along with all supporting material, thePlan Administrator’s delegate shall determine within 60 days (or such othernumber of days if special circumstances warrant additional time) whether theParticipant meets the criteria for an Unforeseeable Emergency.  If the Plan Administrator’s delegatedetermines that an Unforeseeable Emergency has occurred, the Participant orBeneficiary shall receive a distribution from his or her Account as soon asadministratively practicable.  However,such distribution shall not exceed the dollar amount necessary to satisfy theUnforeseeable Emergency plus amounts necessary to pay taxes reasonablyanticipated as a result of the distribution, after taking into account theextent to which the Unforeseeable Emergency is or may be relieved throughreimbursement or compensation by insurance or otherwise or by liquidation ofthe Participant’s assets (to the extent the liquidation of such assets wouldnot itself cause severe financial hardship).

 

(d)           Cashouts of SmallAmounts.  Subject to the remainingsentences of this subsection and subsections (b) and (c) of Section 6.02,if (1) a Participant has a Separation from Service (but not including aRetirement), and (2) the total value of all of the Participant’s DeferralSubaccounts, as of the first Distribution Date next following the Separationfrom Service, is less than the applicable dollar amount under Section 402(g)(1)(B) ofthe Code, all of the Participant’s Deferral Subaccounts shall be distributed tothe Participant as a single lump sum as soon as practicable after the firstDistribution 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 theend of the minimum period of additional deferral that is applicable to theDeferral Subaccount under Section 4.05. If the preceding sentence delays payout of a distribution, payout shallbe made as soon as practicable after the minimum period of deferral.

 

6.05         Form of Payments.

 

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

 

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

 

6.06         Valuation.

 

In determining the amountof any individual distribution pursuant to this Article, the Participant’s DeferralSubaccount shall continue to be credited with earnings and gains (and debitedfor expenses and losses) as specified in Section 5.01 until the ValuationDate preceding the distribution.  Indetermining the value of a Participant’s remaining Deferral Subaccountfollowing an installment distribution, such installment distribution(determined without application of the last sentence of this section) shallreduce the value of the Participant’s Deferral Subaccount as of the close ofthe Valuation Date preceding the payment date for such installment.  The amount to be distributed in connectionwith any installment payment shall be determined by dividing the value of aParticipant’s Deferral Subaccount as of such preceding Valuation Date by theremaining number of installments to be paid with respect to such DeferralSubaccount.

 

# ARTICLE VII – PLAN ADMINISTRATION

#  

7.01         Plan Administrator.

 

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

 

7.02         Action.

 

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

 

7.03         Powers of the PlanAdministrator.

 

The Plan Administratorshall 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 itsdiscretionary authority to construe, interpret, and administer this Plan;

 

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

 

(c)           To compute and certifyto the Employer the amount and kinds of payments to Participants or theirBeneficiaries, and to determine the time and manner in which such payments areto be paid;

 

(d)           To authorize alldisbursements by the Employer pursuant to this Plan;

 

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

 

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

 

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

 

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

 

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

 

(j)            Notwithstanding anyother provision of this Plan, the Plan Administrator may take any action itdeems appropriate in furtherance of any policy of the Company respectinginsider trading as may be in effect from time to time.  Such actions may include, but are not limitedto, altering the effective date of allocations or distributions of Accounts orDeferral Subaccounts.

 

The Plan Administratorhas the exclusive and discretionary authority to construe and to interpret thePlan, to decide all questions of eligibility for benefits, to determine theamount and manner of payment of such benefits and to make any determinationsthat are contemplated by (or permissible under) the terms of this Plan, and itsdecisions on such matters will be final and conclusive on all parties.  Any such decision or determination shall bemade in the absolute and unrestricted discretion of the Plan Administrator,even if (1) such discretion is not expressly granted by the Planprovisions in question, or (2) a determination is not expressly called forby the Plan provisions in question, and even though other Plan provisionsexpressly grant discretion or call for a determination.  As a result, benefits under this Plan will be paid only if thePlan Administrator decides in its discretion that the applicant is entitled tothem.  In the event of a review by acourt, arbitrator 

 

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or any other tribunal,any exercise of the Plan Administrator’s discretionary authority shall not bedisturbed unless it is clearly shown to be arbitrary and capricious.

 

7.04         Compensation,Indemnity and Liability.

 

The Plan Administratorwill serve without bond and without compensation for services hereunder.  All expenses of the Plan and the PlanAdministrator will be paid by the Employer. To the extent deemed appropriate by the Plan Administrator, any suchexpense may be charged against specific Participant Accounts, thereby reducingthe obligation of the Employer.  Nomember of the Committee, and no individual acting as the delegate of theCommittee, shall be liable for any act or omission of any other member orindividual, nor for any act or omission on his or her own part, excepting hisor her own willful Misconduct.  TheEmployer will indemnify and hold harmless each member of the Committee and anyemployee of the Company (or an affiliate, if recognized as an affiliate for thispurpose by the Plan Administrator) acting as the delegate of the Committeeagainst any and all expenses and liabilities, including reasonable legal feesand expenses, arising out of his or her membership on the Committee (or his orher serving as the delegate of the Committee), excepting only expenses andliabilities arising out of his or her own willful Misconduct.

 

7.05         Taxes.

 

If the whole or any partof any Participant’s Account becomes liable for the payment of any estate,inheritance, income, employment, or other tax which the Employer may berequired to pay or withhold, the Employer will have the full power andauthority to withhold and pay such tax out of any moneys or other property inits hand for the account of the Participant. To the extent practicable, the Employer will provide the Participantnotice of such withholding.  Prior tomaking any payment, the Employer may require such releases or other documentsfrom any lawful taxing authority as it shall deem necessary.

 

7.06         Conformance with Section 409A.

 

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

 

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# ARTICLE VIII – CLAIMS PROCEDURES

#  

8.01         Claims for Benefits.

 

If a Participant,Beneficiary or other person (hereafter, “Claimant”) does not receive timelypayment of any benefits which he or she believes are due and payable under thePlan, he or she may make a claim for benefits to the Plan Administrator.  The claim for benefits must be in writing andaddressed to the Plan Administrator.  Ifthe claim for benefits is denied, the Plan Administrator will notify theClaimant within 90 days after the Plan Administrator initially received thebenefit claim.  However, if specialcircumstances require an extension of time for processing the claim, the PlanAdministrator will furnish notice of the extension to the Claimant prior to thetermination of the initial 90-day period and such extension may not exceed oneadditional, consecutive 90-day period. Any notice of a denial of benefits should advise the Claimant of thebasis for the denial, any additional material or information necessary for theClaimant to perfect his or her claim, and the steps which the Claimant musttake to appeal his or her claim for benefits.

 

8.02         Appeals of DeniedClaims.

 

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

 

8.03         Special ClaimsProcedures for Disability Determinations.

 

If the claim or appeal ofthe Claimant relates to Disability benefits, such claim or appeal shall beprocessed pursuant to the applicable provisions of Department of LaborRegulation section 2560.503-1 relating to Disability benefits, includingsections 2560.503-1(d), 2560.503-1(f)(3), 2560.503-1(h)(4) and2560.503-1(i)(3).

 

# ARTICLE IX – AMENDMENT AND TERMINATION

#  

9.01         Amendments.

 

The applicable Committeeof the Board of Directors of the Company has the right in its sole discretionto amend this Plan in whole or in part at any time and in any manner, includingthe manner of making deferral elections, the terms on which distributions 

 

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are made, and the formand timing of distributions, provided that such amendments do not cause thePlan to fail to comply with Section 409A. However, except for mere clarifying amendments necessary to avoid aninappropriate windfall, no Plan amendment shall reduce the amount credited tothe Account of any Participant as of the date such amendment is adopted.  Any amendment shall be in writing and adoptedby the Committee.  All Participants andBeneficiaries shall be bound by such amendment.

 

9.02                         Terminationof Plan.

 

The Company expects tocontinue this Plan, but does not obligate itself to do so.  The Company, acting by the Committeespecified in Section 9.01 or through its Board of Directors, reserves theright 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 ofthe United States or any State), provided that such termination is done incompliance with Section 409A. Termination of the Plan will be binding on all Participants and theirBeneficiaries, but in no event may such termination reduce the amounts creditedat that time to any Participant’s Account. If this Plan is terminated (in whole or in part), the terminationresolution shall provide for how amounts theretofore credited to affectedParticipants’ Accounts will be distributed.

 

# ARTICLE X – MISCELLANEOUS

#  

10.01                   Limitationon Participant’s Rights.

 

Participation in thisPlan does not give any Participant the right to be retained in the Employer’sor Company’s employ (or any right or interest in this Plan or any assets of theCompany or Employer other than as herein provided).  The Company and Employer reserve the right toterminate the employment of any Participant without any liability for any claimagainst the Company or Employer under this Plan, except for a claim for paymentof deferrals as provided herein.

 

10.02                   UnfundedObligation of Individual Employer.

 

The benefits provided bythis Plan are unfunded.  All amountspayable under this Plan to Participants are paid from the general assets of theParticipant’s individual Employer. Nothing contained in this Plan requires the Company or Employer to setaside or hold in trust any amounts or assets for the purpose of paying benefitsto Participants.  Neither a Participant,Beneficiary, nor any other person shall have any property interest, legal orequitable, in any specific Employer asset. This Plan creates only a contractual obligation on the part of aParticipant’s individual Employer, and the Participant has the status of ageneral unsecured creditor of this Employer with respect to amounts ofcompensation deferred hereunder.  Such aParticipant shall not have any preference or priority over, the rights of anyother unsecured general creditor of the Employer.  No other Employer guarantees or shares suchobligation, and no other Employer shall have any liability to the Participantor his or her 

 

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Beneficiary.  In the event, a Participant transfers fromthe employment of one Employer to another, the former Employer shall transferthe liability for deferrals made while the Participant was employed by thatEmployer to the new Employer (and the books of both Employers shall be adjustedappropriately).

 

10.03                   OtherPlans.

 

This Plan shall notaffect the right of any Eligible Employee or Participant to participate in andreceive benefits under and in accordance with the provisions of any otheremployee benefit plans which are now or hereafter maintained by any Employer,unless the terms of such other employee benefit plan or plans specificallyprovide otherwise or it would cause such other plan to violate a requirementfor tax favored treatment.

 

10.04                   Receiptor Release.

 

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

 

10.05                   GoverningLaw.

 

This Plan shall beconstrued, administered, and governed in all respects in accordance withapplicable federal law and, to the extent not preempted by federal law, inaccordance with the laws of the State of Delaware (other than its laws relatingto choice of law).  If any provisions ofthis instrument shall be held by a court of competent jurisdiction to beinvalid or unenforceable, the remaining provisions hereof shall continue to befully effective.

 

10.06                   Adoptionof Plan by Related Employers.

 

The Plan Administratormay select as an Employer any division of the Company, as well as anycorporation related to the Company by stock ownership, and permit or cause suchdivision or corporation to adopt the Plan. The selection by the Plan Administrator shall govern the effective dateof the adoption of the Plan by such related Employer.  The requirements for Plan adoption areentirely within the discretion of the Plan Administrator and, in any case wherethe status of an entity as an Employer is at issue, the determination of thePlan Administrator shall be absolutely conclusive.

 

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10.07       Gender, Tense andExamples.

 

In this Plan, wheneverthe 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 textuses the term “including” followed by a specific item or items, or there is apassage having a similar effect, such passage of the Plan shall be construed asif the phrase “without limitation” followed such example or term (or otherwiseapplied to such passage in a manner that avoids limitation on its breadth ofapplication).

 

10.08       Successors and Assigns;Nonalienation of Benefits.

 

This Plan inures to thebenefit of and is binding upon the parties hereto and their successors, heirsand assigns; provided, however, that the amounts credited to the Account of aParticipant are not subject in any manner to anticipation, alienation, sale,transfer, assignment, pledge, encumbrance, charge, garnishment, execution orlevy of any kind, either voluntary or involuntary, and any attempt toanticipate, alienate, sell, transfer, assign, pledge, encumber, charge orotherwise dispose of any right to any benefits payable hereunder, including,any assignment or alienation in connection with a separation, divorce, childsupport or similar arrangement, will be null and void and not binding on thePlan or the Company or Employer. Notwithstanding the foregoing, the Plan Administrator reserves the rightto make payments in accordance with a divorce decree, judgment or other courtorder as and when cash payments are made in accordance with the terms of thisPlan from the Deferral Subaccount of a Participant.  Any such payment shall be charged against andreduce the Participant’s Account.

 

10.09       Facility of Payment.

 

Whenever, in the PlanAdministrator’s opinion, a Participant or Beneficiary entitled to receive anypayment hereunder is under a legal disability or is incapacitated in any way soas to be unable to manage his or her financial affairs, the Plan Administratormay direct the Employer to make payments to such person or to the legalrepresentative of such person for his or her benefit, or to apply the paymentfor the benefit of such person in such manner as the Plan Administratorconsiders advisable.  Any payment inaccordance with the provisions of this Section shall be a completedischarge of any liability for the making of such payment to the Participant orBeneficiary under the Plan.

 

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