Exhibit 10.06


 


CITIGROUP INC.


 


DEFERRED CASH AWARD PLAN


 


(as Amended and
Restated Effective as of January 1, 2010)


 

















 


CITIGROUP INC.


 


DEFERRED CASH AWARD PLAN


 


Purpose


 


Citigroup
Inc. (the “Company”) has adopted this Citigroup Inc. Deferred Cash Award
Plan, as amended and restated effective as of January 1, 2010 (the “Plan”),
for certain eligible employees of the Company and other Affiliated Employers in
order to provide such eligible employees with a pre-tax deferred cash incentive
compensation opportunity.


 


ARTICLE I



DEFINITIONS


 


As
used herein, the following terms have the meanings set forth below.


 


“Account”
means a bookkeeping account maintained on the books and records of the Company
to record Deferred Cash Award(s) and Return(s) credited in accordance
with the Plan.  An Account is established
only for purposes of measuring a deferred benefit and not to segregate assets
or to identify assets that may be used to make payments hereunder.


 


“Account
Balance” means the amount reflected on the books and records of the Company
as the value of a Participant’s Account at any date of determination, as
determined in accordance with the Plan.


 


“Affiliated
Employer” means any company or other entity that is related to the Company
as a member of a controlled group of corporations in accordance with Section 1.409A-1(h)(3) of
the Treasury Regulations promulgated pursuant to Section 409A of the Code.


 


“Anniversary
Date” shall mean each January 20th of the Year following the Year in which the
Award Date occurs, or such other date in the Year following the Year in which
the Award Date occurs as the Plan Administrator may determine in its sole
discretion.


 


“Award” means, for any Year, a Participant’s Deferred Cash Award
for the relevant Year.


 


“Award Agreement” means a written or electronic document setting
forth individualized information relating to a Participant’s deferral under the
Plan in respect of any given Year.  The
Plan Administrator may require a Participant to sign (or acknowledge receipt
of) an Award Agreement as a condition to participation in the Plan.


 


“Award
Date” means the third Tuesday in January of the Year in which the
Award is granted, or such other date as determined by the Plan Administrator in
its sole discretion.


 


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“Bona
Fide Leave” means a “bona fide leave of absence” within the
meaning of that term under Section 409A-1(h)(1)(i) of the Treasury
Regulations promulgated pursuant to Section 409A of the Code.


 


“CAP” means the Citigroup Inc. Capital Accumulation Program.


 


“Cause”
means gross misconduct as determined by the Plan Administrator, and includes,
without limitation, conduct that is in competition (as determined by the Plan
Administrator) with the Firm’s business operations, that breaches any obligation
to the Firm or duty of loyalty, or that is materially injurious to the Firm,
monetarily or otherwise.


 


“Change
in Control” means a “change in the ownership or effective control” or a “change
in the ownership of a substantial portion of the assets” of the Employer,
within the meaning of Section 1.409A-3(i)(5) of the Treasury
Regulations promulgated pursuant to Section 409A of the Code.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Committee”
means the Personnel & Compensation Committee of the Board of Directors
of the Company.


 


“Competitive
Activity” means a Participant’s employment by a Significant Competitor.


 


“Deferred
Cash Award” has the meaning set forth in Section 3.01.


 


“Disabled”
means a Participant is determined to be totally disabled by the U.S. Social
Security Administration and has provided appropriate documentation to the Plan
Administrator.


 


“Eligible
Employee” means, unless otherwise provided by the Plan Administrator, a U.K.
Employee or U.S. Employee who receives Total Incentive Compensation in respect
of a relevant Year that equals or exceeds the threshold for participation in
CAP for such Year.


 


“Employer”
means an Affiliated Employer by which the Participant is then employed.


 


“Firm”
means the Company and each Affiliated Employer.


 


“Participant”
means an Eligible Employee selected to participate in the Plan pursuant to the
procedures set forth in Article II.


 


“Permissible
Leave Period” has the meaning set forth in Section 6.01(e)(1)(A).


 


“Performance
Option” means the performance option(s) designated by the Plan
Administrator (from time to time in its sole discretion) to measure the Return
to be credited (or debited) to a Participant’s Account Balance; provided, that the
Plan Administrator may change or amend such designated performance option(s) at
any time in its sole discretion.


 


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“Plan
Administrator” means the Committee or such other person or persons
appointed from time to time by the Committee.


 


“Retirement”
means a Participant’s termination of employment for any reason other than Cause
under one of the following circumstances:


 


(1)           Participant does not meet the Rule of
75 (as defined below) and either (a) Participant is age 50 or older, has
completed at least five full years of service with the Firm, and his or her age
plus completed full years of service with the Firm equals at least 60 on the
date his or her employment terminates or (b) Participant is under age 50,
has completed at least twenty full years of service with the Firm, and his or
her age plus completed full years of service with the Firm equals at least 60
on the date his or her employment terminates (the “Rule of 60”);


 


(2)           The sum of the Participant’s age and
completed full years of service with the Firm equals at least 75 on the date
his or her employment terminates (the “Rule of 75”); or


 


(3)           Participant is at least age 55 and is
a legacy Citibank employee who participates in (i) the grandfathered
Citibank formula of the U.S. Citigroup Pension Plan or (ii) the
grandfathered Citibank formula of the Head Office Guarantee Plan;


 


in each case provided that the Participant has not engaged in any
Competitive Activity prior to or following the date of termination of
employment.


 


“Return”
has the meaning set forth in Section 4.02.


 


“Separation
from Service” means a termination of a Participant’s employment with the
Firm; provided such termination constitutes a “separation from service” within
the meaning of Treasury Regulation 1.409A-1(h) promulgated pursuant to Section 409A
of the Code.


 


“Significant
Competitor” means any entity which the Plan Administrator determines is a “significant
competitor” and includes on the list of significant competitors that will be
made available to Participants and which may be updated from time to time; provided,
however, that no entity shall be considered “significant competitor” unless it
was included in the list in effect at the time Participant’s employment with
the Firm terminated.


 


“Specified
Employee” means a “specified employee,” as defined in Section 409A of
the Code.


 


“Total
Incentive Compensation” means the amount of a Participant’s aggregate cash
and non-cash incentive compensation for a given Year, prior to giving effect to
any deferral under the Plan.  Total
Incentive Compensation does not include base salary or any multi-year incentive
award, unless otherwise provided by the Plan Administrator.


 


“U.K.
Employee” means an employee employed by an Employer who is working in
the United Kingdom or an expatriate who is tax-equalized to the United Kingdom.



 


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“U.S.
Employee” means an employee employed by Employer who (i) is (A) working
in the United States (which for purposes of the Plan shall include Puerto Rico)
or (B) an expatriate who is tax-equalized to the United States, and (ii) does
not qualify for Retirement on the Award Date.


 


“Vesting
Date” has the meaning set forth in Section 4.03.


 


“Year”
means the calendar year.


 


ARTICLE II



PARTICIPATION


 


Section 2.01  
Participants.  Each Year,
the Plan Administrator will select certain Eligible Employees to participate in
the Plan, subject to the terms of the Plan.


 


ARTICLE III



DEFERRALS


 


Section 3.01   Awards Generally.  Deferrals
under the Plan shall be automatic and mandatory and shall be equal to a
specified percentage of the Participant’s Total Incentive Compensation,
determined by the Plan Administrator in its sole discretion.  The amount deferred pursuant to this Section 3.01
(which may be denominated in stock units, with each stock unit having a value
equal to the fair market value, as determined by the Plan Administrator in its
discretion, of one share of Citigroup Inc. common stock as reported on the New
York Stock Exchange for the applicable date or, if the shares are not traded on
such date, the most recent trading date prior to such date) is referred to as
the Participant’s “Deferred Cash Award” for the relevant Year.


 


Section 3.02  
Deferral Period.  A
Participant’s Deferred Cash Award (and any Return thereon) for a relevant Year
will be deferred for the period beginning on the applicable Award Date and
ending on the applicable Vesting Date.


 


ARTICLE IV



ACCOUNTS


 


Section 4.01  
Maintenance of Accounts.


 


(a)   The Company will maintain an Account on its
books and records for each Participant. 
The Account will be a book entry credit reflecting a Participant’s Award
and will periodically be credited or charged with the Return attributable to
such Award pursuant to Section 4.02. 
A Participant’s Account will be charged with distributions to the
Participant or the Participant’s estate.


 


(b)   For administrative purposes, a Participant’s
Account may be divided into sub-Accounts, for purposes of tracking different
Performance Options (if more than one) or maturity 


 


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schedules,
in each case as applicable, or otherwise as necessary for purposes of
reflecting the Participant’s Award for a given Year and the Return thereon.


 


(c)   Each Participant shall receive a written or
electronic statement (at least annually) of his or her Account Balance;
provided, however, that if a Participant is able to access his or her Account
Balance through the Plan Administrator’s (or a third party vendor’s) website,
the Plan Administrator shall have no obligation to provide such Participant
with a written or electronic statement of his or her Account Balance.


 


Section 4.02   Return on Awards.  Awards will be
credited with a return (positive or negative) (the “Return”) on a
monthly basis, or such other schedule as the Plan Administrator shall determine
in its sole discretion, to reflect the equivalent of the earnings and losses
that a Participant’s Account would have experienced had such amounts actually
been invested in the Performance Option, as determined by the Plan
Administrator in its sole discretion. 
The Plan Administrator shall from time to time designate such
Performance Option(s) as it shall determine and the Plan Administrator
may, in its sole discretion, make a different Performance Option(s) available
to different Participants.  The Plan
Administrator shall communicate the assigned or available Performance Option(s) on
or about the Award Date and any change or amendments to the assigned or
available Performance Option(s) shall be communicated to Participants in
accordance with Section 8.01.  In
the event that a Participant’s Deferred Cash Award is denominated in stock
units, the Return on each stock unit will be equal to the fair market value, as
determined by the Plan Administrator in its discretion, of one share of
Citigroup Inc. common stock as reported on the New York Stock Exchange for the
applicable date or, if the shares are not traded on such date, the most recent
trading date prior to such date.


 


(a)   A Participant’s Account will not be invested
in any Performance Option and such Account does not represent the Participant’s
ownership of, or any ownership interest in, any Performance Option.


 


(b)   Notwithstanding any provision of this Plan to
the contrary, the Plan Administrator may, in its sole discretion, alter,
modify, eliminate or replace any Performance Option, as applicable, that is
used to calculate the Return on a Participant’s Accounts under the Plan.  In the event the Plan Administrator alters,
modifies or eliminates any Performance Option, the Plan Administrator may, in
its sole discretion, provide the affected Participants another Performance
Option under the Plan.


 


Section 4.03  
Vesting.  Except as
otherwise determined by the Plan Administrator and subject to Article VI,
twenty-five percent (25%) of a Participant’s Award and the Return thereon will
vest on each of the first through fourth Anniversary Dates following the Award Date
(each, a “Vesting Date”).  In the event
that the Plan Administrator changes the vesting schedule described in the
preceding sentence with respect to an Award, the affected Participant shall
receive a brochure or other communication describing such change and, if
applicable, such Participant’s Award Agreement shall include the revised
vesting schedule.


 


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ARTICLE V



PAYMENTS


 


Section 5.01  
Payments Generally. 
Subject to Article VI and Section 9.04 hereof, the vested
portion of a Participant’s Account Balance will be paid or distributed to the
Participant in a single sum as soon as practicable after the occurrence of the
applicable Vesting Date, but in any event no later than (a) the end of the Year in which the Vesting Date occurs or (b) if
later, the fifteenth day of the third month following the Vesting Date.


 


Section 5.02  
Payment in Cash.  Unless the
Plan Administrator determines otherwise in its sole discretion, distributions
under the Plan will either be made (a) with respect to Participants who
reside within the United States at the time such distributions are made, in
U.S. dollars, and (b) with respect to Participants who reside outside the
United States at the time such distributions are made, in cash in the local
currency of the country in which the Participant resides.  The Plan Administrator may determine, in its
sole discretion, the foreign exchange rates that are used to convert
Participants’ vested Account Balances into local currencies.  Except as provided above, Participants will
have no right to any specific form of payment.


 


Section 5.03  
No Withdrawals or Loans. 
Prior to payment as provided for herein, a Participant will have no
rights under the Plan to make withdrawals from his or her Account for any
reason.  In no event will a Participant
be entitled to receive loans from the Firm based upon his or her Account
Balance.


 


Section 5.04  
Taxes and Withholding.  All
payments under the Plan are subject to applicable withholdings and employment
or other taxes.  As a condition to any
payment or distribution pursuant to the Plan, the Firm may require a
Participant to pay such sum to the Firm as may be necessary to discharge the
Firm’s obligations with respect to any taxes, assessments or other governmental
charges, whether of the United States or any other jurisdiction, imposed on
property or income received by the Participant hereunder.  In addition, the Firm may require a
Participant to pay the Firm an amount necessary to discharge the Firm’s
obligations with respect to any payroll taxes that may be owed on the
Participant’s Account Balance that are no longer subject to a substantial risk
of forfeiture.


 


Section 5.05  
Liability for Payment. 
Each Employer shall be liable for the amount of any payment owed to a
Participant pursuant to Section 5.01 or Article VI who is employed by
such Employer during the deferral period applicable to an Award; provided,
however, that in the event that a Participant is employed by more than
one Employer during the deferral period applicable to an Award, each Employer
shall be liable for its allocable portion of such payment.


 


ARTICLE VI



TERMINATION OF EMPLOYMENT, DEATH OR DISABILITY


 


Section 6.01  
Generally.  Except as
otherwise provided in this Article VI and subject to Sections 9.04 and
9.08, upon termination of a Participant’s employment with the Firm 


 


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for any reason, the portion of a Participant’s Account Balance that is
not already vested will be forfeited, and any portion of such Account Balance
that has previously vested shall continue to be governed by Section 5.01.


 


(a)   Cause. 
Upon a Participant’s Separation from Service as a result of a
termination of the Participant’s employment by the Firm for Cause, such
Participant’s Account Balance, whether or not vested, shall be forfeited
without any payment.


 


(b)   Resignation.


 


(i)            Except as provided in clause (b)(ii) below or
as otherwise provided in this Section 6.01, upon a Participant’s
Separation from Service with the Firm as a result of the Participant’s
resignation for any reason, such Participant’s unvested Account Balance shall
be forfeited without any payment.


 


(ii)           Upon (A) a Participant’s election to pursue an
alternate career (1) in government service, (2) for a bona fide
charitable institution, or (3) as a teacher at a bona fide educational
institution and (B) the advanced written approval of the Senior Human
Resources Officer of such Participant’s business of such alternate career, such
Participant’s unvested Account Balance shall be 100% vested and paid to the
Participant following his or her Separation from Service.


 


(c)   Death.  Upon the Participant’s death, such
Participant’s unvested Account Balance shall be 100% vested and paid to the
Participant’s estate.


 


(d)   Disability.  In
the event a Participant becomes Disabled, such Participant’s unvested Account
Balance shall be 100% vested and paid to the Participant.


 


(e)   Leave of Absence.


 


(i)            In the event
that a Participant takes a Bona Fide Leave:


 


(A)          during the first six months
of such Bona Fide Leave or, if longer, (1) the period following
commencement of the Bona Fide Leave
during which the Participant is on a statutory leave or (2) 12
months, if the Participant has a medically determinable physical or mental
impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than six months, where such impairment
causes the Participant to be unable to perform the duties of his or her
position or any substantially similar position (the “Permissible Leave
Period”), subject to clause
(e)(ii) below, the Participant’s unvested Account Balance shall be
credited with the same vesting schedule, and shall be paid out in accordance
with Section 5.01, as if his or her employment had not been interrupted by
such Bona Fide Leave, and


 


(B)           if the
Bona Fide Leave exceeds the Permissible Leave Period, then, subject to clause
(e)(ii) below, on the first date following the Permissible Leave Period, the unvested
portion of such Participant’s Account Balance shall be forfeited without any
payment and the vested portion, if any, shall be paid out in accordance with Section 5.01.


 


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(ii)           Notwithstanding
the foregoing, (A) if on the last day of the Permissible Leave Period, the
Participant otherwise qualifies for Retirement, clause (e)(i)(B) above
shall not apply and the Participant’s unvested Account Balance
shall continue to be credited with the same vesting schedule, and to be paid
out in accordance with Section 5.01, as if his or her employment had not
been interrupted by such Bona Fide Leave, (B) if
Participant incurs a Separation from Service during his or her Bona Fide Leave,
this clause (e) shall cease to apply and the Participant’s Account shall
be subject to all provisions of this Article VI applicable upon
such Separation from Service and (C) if
at any time the Participant engages in Competitive Activity during the period
in which he or she is receiving vesting credit, his or her entire unvested
Account Balance as of the date of such activity will be forfeited without
payment.


 


(f)    Without Cause.  Upon a Participant’s Separation from Service
as a result of a termination of the Participant’s employment by the Firm
without Cause, such Participant’s unvested Account Balance shall be 100% vested
and paid to the Participant  following
his or her Separation from Service.


 


(g)   Retirement.


 


(i)            Notwithstanding
anything to the contrary in Sections 6.01(b) through (f), in the event
that, upon the Participant’s Separation from Service other than as a result of
a termination of the Participant’s employment by the Firm for Cause or on
account of death or Disability, the Participant qualifies for Retirement, such
Participant will continue to have the unvested portion of his or her Account
Balance credited with the same vesting schedule, and his or her Account Balance
shall be distributed in accordance with Section 5.01, as if he or she had
continued to be employed with the Firm; provided, however, if
such Participant engages in Competitive Activity during the period in which he
or she is receiving vesting credit, his or her entire unvested Account Balance
as of the date of such activity will be forfeited without payment.


 


(ii)           Notwithstanding
Section 6.01(g)(i), if Participant’s Separation from Service is without
Cause and the Participant qualifies for Retirement on the date of his or her
Separation from Service, such Participant will continue to have the unvested portion of his or
her Account Balance credited with the same vesting schedule, and his or her
Account Balance shall be distributed in accordance with Section 5.01, as
if he or she had continued to be employed with the Firm irrespective of whether
such Participant engages in Competitive Activities.


 


(h)   Transfer Within Citigroup.  If a Participant’s employment is transferred
to an Affiliated Employer, then such Participant will continue to have the
unvested portion of his or her Account Balance credited with the same vesting
schedule, and his or her Account Balance shall be distributed in accordance
with Section 5.01, as if he or she had continued to be employed with the
Company.  Notwithstanding the
foregoing, if any such transfer results in the Participant’s Separation from Service or, following such transfer, the
Participant incurs a Separation from Service, the
Participant’s Account Balance will be subject to the applicable provisions of
this Article VI.


 


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(i)    Change in Control.  Notwithstanding the foregoing, in the event
of a Change in Control, such Participant’s unvested Account Balance shall be
100% vested and paid to the Participant following the Change in Control.


 


(j)    Notwithstanding
the foregoing, the Company may, upon the Participant’s Separation from Service
as a condition to any additional vesting of such Participant’s Account Balance,
require the Participant to certify on such form and in such manner as the Plan
Administrator shall determine that the Participant has not engaged, and will
not engage in Competitive Activity, and any failure to so certify shall result
in the Participant forfeiting such Participant’s Account Balance.


 


(k)   Notwithstanding
any provision of this Article VI to the contrary and subject to Sections
9.04 and 9.08, the Plan Administrator may change any termination provision
contained in Section 6.01 prior to the Award Date, provided that each affected Participant receives an Award Agreement,
brochure or other communication describing such change.


 


Section 6.02   Nontransferability.


 


(a)   No benefit under the Plan shall be subject in any manner to
alienation, sale, transfer, assignment, pledge or encumbrance, other than by
will or the laws of descent and distribution. 
Any attempt to violate the foregoing prohibition shall be void.


 


(b)   In the event of the Participant’s death,
payments due under the Plan shall be distributed to the Participant’s
estate.  Payment to the executors or
administrators of the estate of a Participant may be conditioned on the
delivery to the Company of such tax waivers, letters testamentary and other
documents as the Plan Administrator may reasonably request.


 


ARTICLE VII



ADMINISTRATION


 


Section 7.01  
Plan Administrator.


 


(a)           The Plan shall be
administered by the Plan Administrator. 
The Plan Administrator shall have discretionary authority to interpret
the Plan, to make all legal and factual determinations and to determine all
questions arising in the administration of the Plan, including without
limitation the reconciliation of any inconsistent provisions, the resolution of
ambiguities, the correction of any defects, and the supplying of
omissions.  Each interpretation,
determination or other action made or taken pursuant to the Plan or any Award Agreement
under the Plan by the Plan Administrator shall be final and binding on all
persons, subject to the provisions of Section 9.06 hereof, and the
provisions of any Award Agreement, concerning arbitration.


 


(b)   The Company may enter into Award Agreements
with each Participant in a form approved by the Plan Administrator.  Award Agreements shall contain terms
consistent with this Plan and such other terms, including without limitation
representations and warranties by the Participant, as the Plan Administrator
considers advisable or appropriate.


 


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Section 7.02  
Indemnification.  The Plan
Administrator shall not be liable to any Participant for any action or
determination.  The Plan Administrator
shall be indemnified by the Firm against any liabilities, costs, and expenses
(including, without limitation, reasonable attorneys’ fees) incurred by him or
her as a result of actions taken or not taken in connection with the Plan.


 


Section 7.03  
Sub Plans.  The Plan
Administrator may, in its sole discretion, create separate sub-plans (“Sub
Plans”) under this Plan, which shall provide for participation in the Plan
by Participants employed outside of the United States.  Each Sub Plan shall comply with local laws
applicable to deferred compensation plans. 
This Plan shall be a separate and independent plan from the Sub Plans.


 


ARTICLE VIII



AMENDMENTS AND TERMINATION


 


Section 8.01  
Right to Amend or Terminate the Plan.  The Plan Administrator may alter, amend,
modify, suspend or terminate the Plan or any Award Agreement entered into with
a Participant at any time in its sole discretion provided that no such
alteration, amendment, modification, suspension or termination shall cause an
Award or any portion of an Account or the Plan to violate Section 409A of
the Code.  No further Awards will be made
after the effective date of termination of the Plan.  Following such termination, payment in
respect of each Participant’s Accounts will be made as provided in Section 8.02.  To the extent the Plan Administrator deems it
necessary or appropriate to modify or amend an Award, the Plan or an Award Agreement
pursuant to this Section 8.01, the each affected Participant shall receive
a supplemental communication describing such changes.  For the avoidance of doubt, no action
permitted to be taken by the Plan Administrator pursuant to this Section 8.01
shall require the consent of any Participant.


 


Section 8.02  
Payment Following Termination of the Plan.  Upon termination of the Plan, the Plan
Administrator may take such action with respect to each Participant’s Accounts
as it reasonably determines is necessary or desirable; provided, however, that
the Plan Administrator may take no action which will result in accelerated
taxation or tax penalties under Section 409A of the Code in respect of any
Participant’s Account(s).  No termination
of the Plan or any Participant’s Award Agreement will give rise to a claim of
constructive termination of employment by any Participant.


 


ARTICLE IX


 


GENERAL PROVISIONS


 


Section 9.01  
Unfunded Status of the Plan. 
The Plan is unfunded.  A
Participant’s Account shall represent at all times an unfunded and unsecured
contractual obligation of each Employer that employed Participant during the
deferral period applicable to an Award. 
Each Participant (or his or her estate) will be unsecured creditors of
each Employer at which such Participant is or was employed with respect to all
obligations owed to Participant (or his or her estate) under the Plan or any Award
Agreement.  Amounts payable under the
Plan and 


 


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any Award Agreement will be satisfied solely out of the general assets of
an Employer subject to the claims of its creditors.  A Participant (or his or her estate) will not
have any interest in any fund or in any specific asset of an Employer of any
kind by reason of any Return credited to him or her hereunder, nor shall the
Participant (or his or his estate) have any right to receive any payment or
distribution under the Plan or any Award Agreement except as, and to the
extent, expressly provided in the Plan or Award Agreement.  No Employer will segregate any funds or
assets to provide for the distribution of an Account Balance or issue any notes
or security for the payment thereof.  Any
reserve or other asset that an Employer may establish or acquire to assure
itself of the funds to provide payments required under the Plan shall not serve
in any way as security to any Participant (or his or her estate) for the
performance of the Employer under the Plan.


 


Section 9.02  
No Right to Continued Employment. 
Neither the Plan, any Award Agreement nor any action taken or omitted to
be taken pursuant to or in connection with the Plan shall be deemed (i) to
create or confer on a Participant any right to be retained in the employ of the
Firm, (ii) to interfere with or to limit in any way the Firm’s right to
terminate the employment of a Participant at any time, or (iii) to confer
on a Participant any right or entitlement to compensation in any specific
amount for any future Year.  In addition,
selection of an individual as a Participant for a given Year shall not be
deemed to create or confer on the Participant any right to participate in the
Plan, or in any similar plan or program that may be established by the Company,
in respect of any future Year.


 


Section 9.03  
Offset Rights. 
Notwithstanding any provisions of the Plan to the contrary, the Company
may, if the Plan Administrator in its sole discretion shall determine, offset
any amounts which a Participant may owe to the Firm against the Account Balance
and any distributions that would have otherwise been made to the Participant
under the Plan, but only to the extent that such offset will not cause any tax
to become due pursuant to Section 409A of the Code.


 


Section 9.04  
Code Section 409A.


 


(a)   Notwithstanding
anything to the contrary herein or in any applicable Award Agreement, all payments and distributions due hereunder and
thereunder are intended to comply with Section 409A of the Code and
the guidance issued thereunder, and this Plan
and any applicable Award Agreement shall be construed accordingly.


 


(b)   Notwithstanding the foregoing, if a Participant is a
Specified Employee at the time of his or her Separation from Service, any
payment(s) with respect to any Award subject to Section 409A of the
Code to which such Participant would otherwise be entitled by reason of such
Separation from Service shall be made on the date that is six months after the
Participant’s Separation from Service (or, if earlier, the date of the
Participant’s death).  All payments
hereunder and under any applicable Award Agreement
that have been delayed pursuant to this Section 9.04 shall be paid
(without interest, dividends, dividend equivalents or any compensation for any
loss in market value or otherwise which occurs during such period) to the
Participant in a lump sum.


 


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(c)           Each Participant or the Participant’s estate, as the case
may be, is solely responsible and liable for the satisfaction of all taxes and
penalties that may be imposed on or for the account of such Participant in
connection with this Plan or any other nonqualified deferred compensation plan
sponsored or maintained by the Firm (including without limitation any taxes and
penalties under Section 409A of the Code), and the Firm shall have no
obligation to indemnify or otherwise hold such Participant or the Participant’s
estate harmless from any or all of such taxes or penalties.


 


Section 9.05  
Successors.  The
obligations of the Company under this Plan shall be binding upon the successors
of the Company.


 


Section 9.06  
Governing Law.  The Plan
and each Award Agreement entered into with a Participant shall be subject to
and construed in accordance with the laws of the State of New York, without
regard to any conflicts or choice of law rule or principle that might
otherwise refer the interpretation of the Award to the substantive law of
another jurisdiction.  All disputes under
the Plan shall be subject to final and binding arbitration in accordance with
the Firm’s arbitration policy.


 


Section 9.07  
Construction.  The headings
in this Plan have been inserted for convenience of reference only and are to be
ignored in any construction of any provision hereof.  Use of one gender includes the other, and the
singular and plural include each other.


 


Section 9.08   EESA
Compliance.  If any Award granted
under the Plan is subject to Section 111 of the Emergency Economic
Stabilization Act of 2008, as amended, and any regulations, determinations or
interpretations that may from time to time be promulgated thereunder (“EESA”),
then any payment of any kind provided for under the Plan and any applicable Award
Agreement or brochure must comply with EESA, and the Plan or any applicable Award
Agreement or brochure, shall be interpreted or reformed to so comply.  If the making of any payment pursuant to this
Plan or any applicable Award Agreement or brochure would violate EESA, or if
the making of such payment may in the judgment of the Plan Administrator limit
or adversely impact the ability of the Firm to participate in, or the terms of
the Firm’s participation in, the Troubled Asset Relief Program, the Capital
Purchase Program, or to qualify for any other relief under EESA, each
Participant whose Award is or may become subject to the restrictions imposed on
the Firm under EESA shall be deemed to have waived his or her right to such
payment.  In addition, if applicable, the
Award will be subject to forfeiture or repayment if the Award is based on
performance metrics that are later determined to be materially inaccurate.  If applicable, any Participant whose Award is
subject or may become subject to the restrictions imposed on the Firm under
EESA also hereby grants to the U.S. Treasury (or other body of the U.S.
government) and to the Firm a waiver releasing the U.S. Treasury (or other
body) and the Firm from any claims that such Participant may otherwise have as
a result of the issuance of any regulations, determinations or interpretations
that adversely modify the terms of the Award or any benefits plans,
arrangements and agreements to eliminate any provisions that would not be in
compliance with the executive compensation and corporate governance
requirements of EESA or any securities purchase agreement or other agreement
entered into between the Firm and U.S. Treasury (or other body) pursuant to
EESA.


 


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