Exhibit 10.47


 


BIOSITE INCORPORATED


 


409A NONQUALIFIED DEFERRED
COMPENSATION PLAN


 





















 


Table of Contents


 


	
   

  	
  Article 1 -
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Account.

  	
   

  
	
  1.2

  	
  Administrator.

  	
   

  
	
  1.3

  	
  Board.

  	
   

  
	
  1.4

  	
  Bonus.

  	
   

  
	
  1.5

  	
  Code.

  	
   

  
	
  1.6

  	
  Commission.

  	
   

  
	
  1.7

  	
  Compensation.

  	
   

  
	
  1.8

  	
  Deferrals.

  	
   

  
	
  1.9

  	
  Deferral Election.

  	
   

  
	
  1.10

  	
  Disability.

  	
   

  
	
  1.11

  	
  Effective Date.

  	
   

  
	
  1.12

  	
  Eligible Employee.

  	
   

  
	
  1.13

  	
  Employee.

  	
   

  
	
  1.14

  	
  Employer
  Discretionary Contribution.

  	
   

  
	
  1.15

  	
  Investment Fund or
  Funds.

  	
   

  
	
  1.16

  	
  Participant.

  	
   

  
	
  1.17

  	
  Plan Year.

  	
   

  
	
  1.18

  	
  Performance-based
  Compensation.

  	
   

  
	
  1.19

  	
  Retirement.

  	
   

  
	
  1.20

  	
  Salary.

  	
   

  
	
  1.21

  	
  Trust.

  	
   

  
	
  1.22

  	
  Trustee.

  	
   

  
	
  1.23

  	
  Years of Service.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Article 2 -
  Participation

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Commencement of
  Participation.

  	
   

  
	
  2.2

  	
  Loss of Eligible
  Employee Status.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Article 3 -
  Contributions

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Deferrals.

  	
   

  
	
  3.2

  	
  Employer
  Discretionary Contributions.

  	
   

  
	
  3.3

  	
  Time of Contributions.

  	
   

  
	
  3.4

  	
  Form of
  Contributions.

  	
   

  



 





















 


	
   

  	
  Article
  4 - Vesting

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Vesting of Deferrals.

  	
   

  
	
  4.2

  	
  Vesting
  of Employer Discretionary Contributions.

  	
   

  
	
  4.3

  	
  Vesting
  in Event of Retirement, Disability, Death or Change in Control.

  	
   

  
	
  4.4

  	
  Change in Control.

  	
   

  
	
  4.5

  	
  Amounts Not Vested.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Article 5
  - Accounts

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Accounts.

  	
   

  
	
  5.2

  	
  Investments, Gains
  and Losses.

  	
   

  
	
  5.3

  	
  Forfeitures.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Article 6 -
  Distributions

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Distribution Election.

  	
   

  
	
  6.2

  	
  Payment
  Options.

  	
   

  
	
  6.3

  	
  Changes to
  Distribution Elections.

  	
   

  
	
  6.4

  	
  Commencement
  of Payment upon Death, Disability or Termination.

  	
   

  
	
  6.5

  	
  Distributions
  to Specified Employee.

  	
   

  
	
  6.6

  	
  Minimum Distribution.

  	
   

  
	
  6.7

  	
  Unforeseeable Emergency

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Article 7 -
  Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Beneficiaries.

  	
   

  
	
  7.2

  	
  Lost Beneficiary.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Article 8
  - Funding

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Prohibition Against
  Funding.

  	
   

  
	
  8.2

  	
  Deposits in Trust.

  	
   

  
	
  8.3

  	
  Indemnification of
  Trustee.

  	
   

  
	
  8.4

  	
  Withholding
  of Employee Contributions.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Article 9 -
  Claims Administration

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  General.

  	
   

  
	
  9.2

  	
  Claims Procedure.

  	
   

  
	
  9.3

  	
  Right
  of Appeal.

  	
   

  
	
  9.4

  	
  Review
  of Appeal.

  	
   

  
	
  9.5

  	
  Designation.

  	
   

  



 





















 


	
   

  	
  Article 10 -
  General Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Administrator.

  	
   

  
	
  10.2

  	
  No
  Assignment.

  	
   

  
	
  10.3

  	
  No Employment Rights.

  	
   

  
	
  10.4

  	
  Incompetence.

  	
   

  
	
  10.5

  	
  Identity.

  	
   

  
	
  10.6

  	
  Other
  Benefits.

  	
   

  
	
  10.7

  	
  No
  Liability.

  	
   

  
	
  10.8

  	
  Expenses.

  	
   

  
	
  10.9

  	
  Insolvency.

  	
   

  
	
  10.10

  	
  Plan Amendment.

  	
   

  
	
  10.11

  	
  Plan Termination.

  	
   

  
	
  10.12

  	
  Employer Determinations.

  	
   

  
	
  10.13

  	
  Construction.

  	
   

  
	
  10.14

  	
  Governing
  Law.

  	
   

  
	
  10.15

  	
  Severability.

  	
   

  
	
  10.16

  	
  Headings.

  	
   

  
	
  10.17

  	
  Terms.

  	
   

  



 





















BIOSITE INCORPORATED


409A NONQUALIFIED DEFERRED COMPENSATION PLAN


 


Biosite Incorporated, a Delaware corporation, and its
affiliates and subsidiaries (the “Employer”), hereby adopts this Biosite
Incorporated 409A Nonqualified Deferred Compensation Plan (the “Plan”) for the
benefit of a select group of management or highly compensated employees.  This plan is an unfunded arrangement and is
intended to be exempt from the participation, vesting, funding, and fiduciary
requirements set forth in Title I of the Employee Retirement Income Security
Act of 1974, as amended (ERISA).  It is
intended to comply with Internal Revenue Code Section 409A.  This Plan is effective January 1, 2005.


 


Article 1 - Definitions


 


1.1                               Account.


The bookkeeping account established for each Participant as provided in
section 5.1 hereof.


 


1.2                               Administrator.


An administrative committee appointed by the Board of
Directors.


 


1.3                               Board.


The Board of Directors of the Employer.


 


1.4                               Bonus.


Remuneration which is designated as such by the Employer and which
relates to services performed during an incentive period by an Eligible
Employee, including any pretax elective deferrals from said Bonus to any
Employer sponsored plan that includes amounts deferred under a Deferral
Election or a qualified cash or deferred arrangement under Code Section 401(k)
or cafeteria plan under Code Section 125.


 


1.5                               Code.


The Internal Revenue Code of 1986, as amended.


 


1.6                               Commission.


Remuneration which is designated as such by the Employer and which
relates to services performed during an incentive period by an Eligible
Employee, including any pretax elective deferrals from said Commission to any
Employer sponsored plan that includes amounts deferred under a Deferral
Election or a qualified cash or deferred arrangement under Code Section 401(k)
or cafeteria plan under Code Section 125.


 


1.7                               Compensation.


The Participant’s earned income, including Salary, Bonus, Commission,
and Performance-based Compensation, if any, and other remuneration from the
Employer.


 


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1.8                               Deferrals.


The portion of Compensation that a Participant elects to defer in
accordance with section 3.1 hereof.


 


1.9                               Deferral Election.


The separate written agreement, submitted to the Administrator, by
which an Eligible Employee agrees to participate in the Plan and make Deferrals
thereto.


 


1.10                        Disability.


Provided that such definition does not fail to comply with Code Section 409A(a)(1)(C) and
regulations, a participant shall be considered disabled if the participant is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for continuous period of not less than 12
months.


 


1.11                        Effective Date.


January 1, 2005.


 


1.12                        Eligible Employee.


An Employee shall be considered an Eligible Employee if such Employee
is designated as an Eligible Employee by the Administrator


 


1.13                        Employee.


Any person employed by the Employer.


 


1.14                        Employer Discretionary Contribution.


A discretionary contribution made by the Employer to the Trust and that
is credited to one or more Participant’s Accounts in accordance with the terms
of section 3.2 hereof.


 


1.15                        Investment Fund or Funds.


Each investment(s) which serves as a means to measure value, increases
or decreases with respect to a Participant’s Accounts.


 


1.16                        Participant.


An Eligible Employee who is a Participant as provided in Article 2.


 


1.17                        Plan
Year.


The calendar year.


 


1.18                        Performance-based Compensation.


Remuneration which meets the requirements of “performance-based
compensation” as defined by Code Section 409A(a)(4)(B)(iii) and
related regulations, and is designated as such by the Employer and which
relates to services performed during an incentive period by an Eligible
Employee, including any pretax elective deferrals from said Performance-based
Compensation to any Employer sponsored plan that includes amounts deferred
under a Deferral Election or a 


 


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qualified cash or deferred arrangement under Code Section 401(k)
or cafeteria plan under Code Section 125.


 


1.19                        Retirement.


Retirement means the Participant has separated service from the
Employer, and the Participant has completed at least five (5) Years of
Service with the Employer, and a combination of the Participant’s age and Years
of Service equals at least fifty-five (55).


 


1.20                        Salary.


An Eligible Employee’s base salary rate or rates in effect at any time
during a Plan Year, including any pretax elective deferrals from said Salary to
any Employer sponsored plan that includes amounts deferred under a Deferral
Election or a qualified cash or deferred arrangement under Code Section 401(k)
or cafeteria plan under Code Section 125.


 


1.21                        Trust.


The agreement between the Employer and the Trustee under which the
assets of the Plan are held, administered and managed, which shall conform to
the terms of Rev. Proc. 92-64.


 


1.22                        Trustee.


Investors Bank and Trust Company or such other successor that shall
become trustee pursuant to the terms of the Biosite Incorporated 409A
Nonqualified Deferred Compensation Plan.


 


1.23                        Years of Service.


A Participant’s “Years of Service” shall be measured by employment
during a twelve (12) month period commencing with the Participant’s date of
hire and anniversaries thereof.


 


Article 2 - Participation


 


2.1                               Commencement of
Participation.


Each Eligible Employee shall become a Participant at the earlier of the
date on which his or her Deferral Election first becomes effective or the date
on which an Employer Discretionary Contribution is first credited to his or her
Account.


 


2.2                               Loss of Eligible
Employee Status.


 


(a)                                  A
Participant who is no longer an Eligible Employee shall not be permitted to
submit a Deferral Election and all Deferrals for such Participant shall cease
as of the end of the Plan Year in which such Participant is determined to no
longer be an Eligible Employee.


 


(b)                                 Amounts
credited to the Account of a Participant described in subsection (a) shall
continue to be held, pursuant to the terms of the Plan and shall be distributed
as provided in Article 6.


 


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Article 3 - Contributions


 


3.1                               Deferrals.


 


(a)                                  The
Employer shall credit to the Account of a Participant an amount equal to the
amount designated in the Participant’s Deferral Election for that Plan
Year.  Such amounts shall not be made
available to such Participant, except as provided in Article 6, and shall
reduce such Participant’s Compensation from the Employer in accordance with the
provisions of the applicable Deferral Election; provided, however, that all such
amounts shall be subject to the rights of the general creditors of the Employer
as provided in Article 8.


 


(b)                                 Each
Eligible Employee shall deliver a Deferral Election to the Employer before any
Deferrals can become effective.  Such
Deferral Election shall be void with respect to: (i) any Deferral Election
associated with Salary, Bonus or Commission unless submitted before the
beginning of the calendar year during which the amount to be deferred will be
earned, (ii) any Deferral Election associated with Performance-based
Compensation unless submitted at least 6 months prior to the end of the 12
month period over which the services for such Performance-based Compensation are
performed; provided, however, that in the year in which the Plan is first
adopted or an Employee is first eligible to participate, such Deferral Election
shall be filed within thirty (30) days after the date on which the Plan is
adopted or the date on which an Employee is first eligible to participate,
respectively, with respect to Compensation to be earned during the remainder of
the calendar year.


 


(c)                                  The
Deferral Election shall, subject to the limitation set forth in Section 3.1(g),
below, designate the amount of Compensation deferred by each Participant, the
subaccount, if any, as set forth in subsection (e), below, the beneficiary
or beneficiaries of the Participant and such other items as the Administrator
may prescribe.  Such designations shall
remain effective unless amended as provided in subsection (d), below.


 


(d)                                 A
Participant may amend his or her Deferral Election from time to time; provided,
however, that the timing of, and the effective date of any such amendment to
the amount of a Participant’s Deferrals shall comply with the provisions of subsection (b),
above and the provisions of Code Section 409A and the regulations
promulgated thereunder.


 


(e)                                  A
Participant may direct his or her Deferral to be credited to one or more
subaccounts as may be established, as provided in Article 5, by the
Participant at the time of the Deferral Election.


 


(f)                                    The
minimum amount that may be deferred each Plan Year is the greater of one
thousand dollars ($1,000) or one percent (1%) of the Participant’s
Compensation.


 


(g)                                 The
maximum amount that may be deferred each Plan Year is twenty-five percent (25%)
of the Participant’s Salary, one hundred percent (100%) of the Participant’s
Bonus, net of applicable taxes, and one hundred percent (100%) of the
Participant’s Commission, net of applicable taxes.


 


4





















 


3.2                               Employer Discretionary Contributions.


The Employer reserves the right to make Employer Discretionary Contributions
to Participants’ Accounts in such amount and in such manner as may be
determined by the Employer.


 


3.3                               Time of Contributions.


 


(a)                                  Deferrals
shall be credited to the Accounts of Participants as soon as administratively
feasible following each payroll period.  The
Employer shall also transmit to the recordkeeper or trust, in the event of
trust usage, at that time any necessary instructions regarding the allocation
of such amounts among the Accounts of Participants.


 


(b)                                 Employer
Discretionary Contributions shall be credited to the Accounts of Participants at
such time as the Employer shall determine. 
The Employer shall also transmit to the recordkeeper or trust, in the
event of trust usage, at that time any necessary instructions regarding the
allocation of such amounts among the Accounts of Participants.


 


3.4                               Form of
Contributions.


All Deferrals and Employer Discretionary Contributions, if any, to the
Trust shall be made in the form of cash or cash equivalents of US currency.


 


Article 4 - Vesting


 


4.1                               Vesting of Deferrals.


A Participant shall have a vested right to the portion of his or her
Account attributable to Deferrals.


 


4.2                               Vesting of Employer
Discretionary Contributions.


A Participant shall have a vested right to the portion of his or her
Account attributable to Employer Discretionary Contribution(s) and any earnings
or losses on the investment of such Employer Discretionary Contribution(s)
according to such vesting schedule as the Employer shall determine at the
time an Employer Discretionary Contribution is made.


 


4.3                               Vesting in Event of
Retirement, Disability, Death or Change in Control.


 


(a)                                  A
Participant who terminates employment due to Retirement shall be fully vested
in the amounts credited to his or her Account.


 


(b)                                 A
Participant who terminates employment due to Disability shall be fully vested
in the amounts credited to his or her Account.


 


(c)                                  A
Participant who terminates employment due to death shall be fully vested in the
amounts credited to his or her Account.


 


(d)                                 Upon
a Change in Control, as defined in Section 4.4, all Participants shall be
fully vested in the amounts credited to their Accounts.


 


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4.4                               Change in Control.


Provided that such definition does not fail to comply with Code Section 409A
and related regulations, a “Change in Control” of the Employer means the first
occurrence of any of the following events:


 


(a)                                  The
date that any one person or persons acting as a group acquires ownership of
Employer stock constituting more than fifty percent (50%) of the total fair
market value or total voting power of the Employer;


 


(b)                                 The
date that any one person or persons acting as a group acquires (or has acquired
during the 12-month period ending on the date of the most recent acquisition by
such person or persons) ownership of the stock of the Employer possessing
thirty-five percent (35%) or more of the total voting power of the stock of the
Employer;


 


(c)                                  The
date that any one person or persons acting as a group acquires assets from the
Employer that have a total gross fair market value equal to or more than forty
percent (40%) of the total gross fair market value of all of the assets of the
Employer immediately prior to such acquisition; or


 


(d)                                 The
date that a majority of members of the Employer’s Board is replaced during any
12-month period by directors whose appointment or election is not endorsed by a
majority of the members of the Board prior to the date of the appointment or
elections.


 


4.5                               Amounts Not Vested.


Any amounts credited to a Participant’s Account that are not vested at
the time of his or her termination of employment with the Employer shall be
forfeited.


 


Article 5 - Accounts


 


5.1                               Accounts.


The Administrator shall establish and maintain a bookkeeping account in
the name of each Participant.  The Administrator
shall also establish subaccounts, as provided in subsection (a) and (b),
below, as elected by the Participant pursuant to Article 3.  A Participant may have a maximum of ten (10) subaccounts
at any time.


 


(a)                                  A
Participant may establish a Retirement Account by so designating in such
Participant’s Deferral election.  Each
Participant’s Retirement Account shall be credited with Deferrals (as specified
in the Participant’s Deferral Election), Employer Discretionary Contributions,
if any (as specified in the Participant’s Deferral Election), and the
Participant’s allocable share of any earnings or losses on the foregoing.  Each Participant’s Account shall be reduced
by any distributions made plus any federal and state tax withholding and any
social security withholding tax as may be required by law.  Distributions from a Retirement Account to a
Specified Employee, as defined in Section 6.5, shall be subject to the
requirements of Section 6.5.


 


6





















 


(b)                                 A
Participant may elect to establish one or more In-Service Accounts by
designating in such Participant’s Deferral Election the year in which payment
shall be made at the time the account is initially established.  The minimum initial deferral period for an In-Service
Account shall be three (3) years. 
Each Participant’s In-Service Account shall be credited with Deferrals,
Employer Discretionary Contributions (as specified in the Participant’s
Deferral Election), and the Participant’s allocable share of any deemed
earnings or losses on the foregoing. 
Each Participant’s In-Service Account shall be reduced by any distributions
made plus any federal and state tax withholding and any social security
withholding tax as may be required by law.


 


5.2                               Investments, Gains and
Losses.


 


(a)                                  Trust
assets shall be invested in the discretion of the Trustee.  The Trustee may consider any investment
suggestions received by the Employer or by a Participant with respect to his or
her own Account.


 


(b)                                 The
Administrator shall adjust the amounts credited to each Participant’s Account
to reflect Deferrals, Employer Discretionary Contributions, investment
experience, distributions and any other appropriate adjustments.  Such adjustments shall be made as frequently
as is administratively feasible.


 


(c)                                  A
Participant may direct that his or her Retirement Account and or In-Service Account(s)
established pursuant to Section 5.1 may be valued as if they were invested
in one or more Investment Funds multiples of one percent (1%) of the balance in
an Account.  A Participant may change his
or her selection of Investment Funds no more than six (6) times each Plan
Year.  An election shall be effective as
soon as administratively feasible following the date of the change as indicated
in writing by the Participant.


 


5.3                               Forfeitures.


Any forfeitures from a Participant’s Account shall continue to be held
in the Trust, shall be separately invested as directed by the Administrator and
shall be used to reduce succeeding Employer Discretionary Contributions until
such forfeitures have been entirely so applied. 
If no further Employer Discretionary Contributions will be made, then
such forfeitures shall be returned to the Employer.


 


Article 6 - Distributions


 


6.1                               Distribution Election.


Each Participant shall designate on his or her initial Deferral
Election the form and timing of his or her distribution by indicating the type
of account as described under Section 5.1, and by designating the manner
in which payments shall be made from the choices available under Section 6.2
hereof.  In the event a Participant fails
to make a timely distribution election, distributions shall be made in the
lump-sum form.


 


7





















 


6.2                               Payment Options.


 


(a)                                  Retirement
Account payouts shall commence as soon as administratively feasible immediately
after the Participant’s Retirement and are payable in one of the following
forms: (i) in a lump-sum payment; or (ii) in annual installments over
a period of up to ten (10) years (as elected by Participant on a form
provided by the Administrator).


 


(b)                                 In-Service
Account payouts shall begin as soon as administratively feasible following January 1
of the calendar year designated by the Participant, on a properly submitted
Deferral Election and in accordance with the requirements of Code Section 409A,
and are payable in either a lump sum or substantially equal annual installments
over a period of five (5) years (as elected by Participant on a form a
provided by the Administrator).


 


(c)                                  The
amount of the substantially equal payments described in subsections (a) and
(b) above shall be determined by multiplying the Participant’s Retirement
or In-Service Account by a fraction, the denominator of which in the first year
of payment equals the number of years over which benefits are to be paid, and
the numerator of which is one (1).  The
amounts of the payments for each succeeding year shall be determined by
multiplying the Participant’s Retirement or In-Service Account as of the
applicable anniversary of the payout by a fraction, the denominator of which
equals the number of remaining years over which benefits are to be paid, and
the numerator of which is one (1).


 


(d)                                 Payments
under this Section 6.2 are subject to the requirements of Section 6.5.


 


6.3                               Changes to Distribution
Elections.


 


(a)                                  In
the event Participant desires to modify his or her elected form of distribution,
i.e., lump-sum payment or annual installments, Participant’s election to change
must be submitted to the Employer at least twelve (12) months prior to the
distribution commencement date and shall not take effect until twelve (12)
months after the election is made, provided however that any change may not
accelerate benefit payments as provided under Code Section 409A and
related regulations promulgated thereunder.


 


(b)                                 In
the event Participant desires to postpone the distribution commencement date
for his or her Retirement Account or In-Service Accounts, Participant’s election
to postpone said distribution commencement date must be submitted to the
Employer at least twelve (12) months prior to the distribution commencement
date and shall not take effect until twelve (12) months after the election is
made and the new distribution commencement date must be at least five (5) years
subsequent to the date when distributions would otherwise commence.  Moreover, any election to change a
Participant’s distribution commencement date, pursuant to this section, shall
only be permitted to extend the deferral period.


 


8





















 


6.4                               Commencement of Payment
upon Death, Disability or Termination.


 


(a)                                  Upon
the death of a Participant, all amounts credited to his or her Account(s) shall
be paid, as soon as administratively feasible, to his or her beneficiary or
beneficiaries, as determined under Article 7 hereof, in a lump sum.


 


(b)                                 Upon
the Disability of a Participant, all amounts credited to his or her Account(s)
shall be paid to the Participant in a lump-sum payment, as soon as
administratively feasible.


 


(c)                                  Upon
the termination of employment of a Participant, all amounts credited to his or
her Account(s) shall be paid to the Participant in a lump-sum payment, as soon
as administratively feasible subject to Section 6.5 below.


 


6.5                               Distributions to
Specified Employee.


 


(a)                                  If
any employee is a “Specified Employee,” as defined in subsection (b) below,
upon a termination of employment for any reason other than Disability or death,
a distribution may not be made before the date which is six (6) months
after the date of separation from service (or, if earlier, the date of death of
the employee).


 


(b)                                 Pursuant
to Code Section 409A, a “Specified Employee” means a key employee (as
defined in Code Section 416(i) without regard to paragraph (5) thereof)
of a corporation any stock in which is publicly traded on an established securities
market or otherwise.


 


6.6                               Minimum Distribution.


Notwithstanding any provision to the contrary, and subject to Section 6.5,
above, if the balance of a Participant’s Account at the time of a termination
due to Retirement is $10,000 or less, then the Participant shall be paid his or
her benefits as a single lump sum as soon as administratively feasible
following said termination.


 


Notwithstanding any provision to the contrary, if the balance of a
Participant’s In-Service subaccount at the time of a scheduled In-Service
Account distribution is $10,000 or less, then the Participant shall be paid his
or her benefits as a single lump sum.


 


6.7                               Unforeseeable Emergency


The Administrator may permit an early distribution of part or all of
any deferred amounts; provided, however, that such distribution shall be made
only if the Administrator, in its sole discretion, determines that the
Participant has experienced an unforeseeable emergency.  An unforeseeable emergency is defined as a
severe financial hardship resulting from an illness or accident of the
Participant, the Participant’s spouse, or a dependent (as defined in Code Section 152(a))
of the Participant, loss of the Participant’s property due to casualty or other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant. 
If an unforeseeable emergency is determined to exist, a distribution may
not exceed the amounts necessary to satisfy such emergency plus amounts
necessary to pay taxes


 


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reasonably anticipated as a result of the distribution,
after taking into account the extent to which such hardship is or may be relieved
through reimbursement or compensation by insurance or otherwise or by
liquidation of the Participant’s assets (to the extent the liquidation of such
assets would not itself cause severe financial hardship).


 


Article 7 - Beneficiaries


 


7.1                               Beneficiaries.


Each Participant may from time to time designate one or more persons
(who may be any one or more members of such person’s family or other persons,
administrators, trusts, foundations or other entities) as his or her
beneficiary under the Plan.  Such
designation shall be made on a form prescribed by the Administrator.  Each Participant may at any time and from
time to time, change any previous beneficiary designation, without notice to or
consent of any previously designated beneficiary, by amending his or her
previous designation on a form prescribed by the Administrator.  If the beneficiary does not survive the
Participant (or is otherwise unavailable to receive payment) or if no
beneficiary is validly designated, then the amounts payable under this Plan
shall be paid to the Participant’s estate. 
If more than one person is the beneficiary of a deceased Participant,
each such person shall receive a pro rata share of any death benefit payable
unless otherwise designated on the applicable form.  If a beneficiary who is receiving benefits
dies, all benefits that were payable to such beneficiary shall then be payable
to the estate of that beneficiary.


 


7.2                               Lost Beneficiary.


 


(a)                                  All
Participants and beneficiaries shall have the obligation to keep the
Administrator informed of their current address until such time as all benefits
due have been paid.


 


(b)                                 If
a Participant or beneficiary cannot be located by the Administrator exercising
due diligence, then, in its sole discretion, the Administrator may presume that
the Participant or beneficiary is deceased for purposes of the Plan and all
unpaid amounts (net of due diligence expenses) owed to the Participant or
beneficiary shall be paid accordingly or, if a beneficiary cannot be so
located, then such amounts may be forfeited. 
Any such presumption of death shall be final, conclusive and binding on
all parties.


 


Article 8 - Funding


 


8.1                               Prohibition Against Funding.


Should any investment be acquired in connection with the liabilities
assumed under this Plan, it is expressly understood and agreed that the
Participants and beneficiaries shall not have any right with respect to, or
claim against, such assets nor shall any such purchase be construed to create a
trust of any kind or a fiduciary relationship between the Employer and the
Participants, their beneficiaries or any other person.  Any such assets shall be and remain a part of
the general, unpledged, unrestricted assets of the Employer, subject to the
claims of its general creditors.  It is
the express intention of the parties hereto that this arrangement shall be
unfunded for tax purposes and for purposes of Title I of the ERISA.  Each Participant and beneficiary shall


 


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be required to look to the provisions of this Plan and
to the Employer itself for enforcement of any and all benefits due under this
Plan, and to the extent any such person acquires a right to receive payment
under this Plan, such right shall be no greater than the right of any unsecured
general creditor of the Employer.  The
Employer or the Trust shall be designated the owner and beneficiary of any investment
acquired in connection with its obligation under this Plan.


 


8.2                               Deposits in Trust.


Notwithstanding Section 8.1, or any other provision of this Plan
to the contrary, the Employer may deposit into the Trust any amounts it deems
appropriate to pay the benefits under this Plan.  The amounts so deposited may, but need not, include
all contributions made pursuant to a Deferral Election by a Participant, and any
Employer Discretionary Contributions.


 


8.3                               Indemnification of
Trustee.


 


(a)                                  The
Trustee shall not be liable for the making, retention, or sale of any
investment or reinvestment made by it, as herein provided, nor for any loss to,
or diminution of, the Trust assets, unless due to its own negligence, willful
misconduct or lack of good faith.


 


(b)                                 Such
Trustee shall be indemnified and saved harmless by the Employer from and
against all personal liability to which it may be subject by reason of any act
done or omitted to be done in its official capacity as Trustee in good faith in
the administration of the Plan and Trust, including all expenses reasonably
incurred in its defense in the event the Employer fails to provide such defense
upon the request of the Trustee.  The
Trustee is relieved of all responsibility in connection with its duties
hereunder to the fullest extent permitted by law, short of breach of duty to
the beneficiaries.


 


8.4                               Withholding of Employee
Contributions.


The Administrator is authorized to make any and all necessary
arrangements with the Employer in order to withhold the Participant’s Deferrals
under Section 3.1 hereof from his or her Compensation.  The Administrator shall determine the amount
and timing of such withholding.


 


Article 9 - Claims
Administration


 


9.1                               General.


If a Participant, Beneficiary or his or her representative is denied
all or a portion of an expected Plan benefit for any reason and the
Participant, Beneficiary or his or her representative desires to dispute the decision
of the Administrator, he or she must file a written notification of his or her
claim with the Administrator.


 


9.2                               Claims Procedure.


Upon receipt of any written claim for benefits, the Administrator shall
be notified and shall give due consideration to the claim presented.  If any Participant or Beneficiary claims to
be entitled to benefits under the Plan and the Administrator determines that
the claim should be denied in whole or in part, the Administrator shall, in
writing, notify such claimant within ninety (90) days following receipt of the
claim that the claim has been denied. 
The Administrator may 


 


11





















 


extend the period of time for making a determination
with respect to any claim for a period of up to ninety (90) days, provided that
the Administrator determines that such an extension is necessary because of
special circumstances and notifies the claimant, prior to the expiration of the
initial ninety (90) day period, of the circumstances requiring the extension of
time and the date by which the Plan expects to render a decision.  If the claim is denied to any extent by the
Administrator, the Administrator shall furnish the claimant with a written
notice setting forth:


 


(a)                                  the
specific reason or reasons for denial of the claim;


 


(b)                                 a
specific reference to the Plan provisions on which the denial is based;


 


(c)                                  a
description of any additional material or information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary; and


 


(d)                                 an
explanation of the provisions of this Article.


 


9.3                               Right of Appeal.


A claimant who has a claim denied wholly or partially under Section 9.2
may appeal to the Administrator for reconsideration of that claim.  A request for reconsideration under this section must
be filed by written notice within sixty (60) days after receipt by the claimant
of the notice of denial under Section 9.2.


 


9.4                               Review of Appeal.


Upon receipt of an appeal the Administrator shall promptly take action
to give due consideration to the appeal. 
Such consideration may include a hearing of the parties involved, if the
Administrator feels such a hearing is necessary.  In preparing for this appeal the claimant
shall be given the right to review pertinent documents and the right to submit
in writing a statement of issues and comments. 
After consideration of the merits of the appeal the Administrator shall
issue a written decision which shall be binding on all parties.  The decision shall specifically state its
reasons and pertinent Plan provisions on which it relies.  The Administrator’s decision shall be issued
within sixty (60) days after the appeal is filed, except that the Administrator
may extend the period of time for making a determination with respect to any
claim for a period of up to sixty (60) days, provided that the Administrator
determines that such an extension is necessary because of special circumstances
and notifies the claimant, prior to the expiration of the initial sixty (60)
day period, of the circumstances requiring the extension of time and the date
by which the Plan expects to render a decision.


 


9.5                               Designation.


The Administrator may designate any other person of its choosing to
make any determination otherwise required under this Article.  Any person so designated shall have the same
authority and discretion granted to the Administrator hereunder.


 


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Article 10 - General
Provisions


 


10.1                        Administrator.


 


(a)                                  The
Administrator is expressly empowered to limit the amount of compensation that
may be deferred; to deposit amounts into trust in accordance with Section 8.2
hereof; to interpret the Plan, and to determine all questions arising in the
administration, interpretation and application of the Plan; to employ
actuaries, accountants, counsel, and other persons it deems necessary in
connection with the administration of the Plan; to request any information from
the Employer it deems necessary to determine whether the Employer would be
considered insolvent or subject to a proceeding in bankruptcy; and to take all
other necessary and proper actions to fulfill its duties as Administrator.


 


(b)                                 The
Administrator shall not be liable for any actions by it hereunder, unless due
to its own negligence, willful misconduct or lack of good faith.


 


(c)                                  The
Administrator shall be indemnified and saved harmless by the Employer from and
against all personal liability to which it may be subject by reason of any act
done or omitted to be done in its official capacity as Administrator in good
faith in the administration of the Plan and Trust, including all expenses
reasonably incurred in its defense in the event the Employer fails to provide
such defense upon the request of the Administrator.  The Administrator is relieved of all
responsibility in connection with its duties hereunder to the fullest extent
permitted by law, short of breach of duty to the beneficiaries.


 


10.2                        No Assignment.


Benefits or payments under this Plan shall not be subject in any manner
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors of the Participant or the Participant’s
beneficiary, whether voluntary or involuntary, and any attempt to so
anticipate, alienate, sell, transfer, assign, pledge, encumber, attach or
garnish the same shall not be valid, nor shall any such benefit or payment be
in any way liable for or subject to the debts, contracts, liabilities,
engagement or torts of any Participant or beneficiary, or any other person
entitled to such benefit or payment pursuant to the terms of this Plan, except
to such extent as may be required by law. 
If any Participant or beneficiary or any other person entitled to a
benefit or payment pursuant to the terms of this Plan becomes bankrupt or
attempts to anticipate, alienate, sell, transfer, assign, pledge, encumber,
attach or garnish any benefit or payment under this Plan, in whole or in part,
or if any attempt is made to subject any such benefit or payment, in whole or
in part, to the debts, contracts, liabilities, engagements or torts of the
Participant or beneficiary or any other person entitled to any such benefit or
payment pursuant to the terms of this Plan, then such benefit or payment, in
the discretion of the Administrator, shall cease and terminate with respect to
such Participant or beneficiary, or any other such person.


 


10.3                        No Employment Rights.


Participation in this Plan shall not be construed to confer upon any
Participant the legal right to be retained in the employ of the Employer, or
give a Participant or beneficiary, or any other person, any right to any
payment whatsoever, except to the extent of the benefits provided


 


13





















 


for hereunder. 
Each Participant shall remain subject to discharge to the same extent as
if this Plan had never been adopted.


 


10.4                        Incompetence.


If the Administrator determines that any person to whom a benefit is
payable under this Plan is incompetent by reason of physical or mental
disability, the Administrator shall have the power to cause the payments
becoming due to such person to be made to another for his or her benefit
without responsibility of the Administrator or the Employer to see to the
application of such payments.  Any
payment made pursuant to such power shall, as to such payment, operate as a
complete discharge of the Employer, the Administrator and the Trustee.


 


10.5                        Identity.


If, at any time, any doubt exists as to the identity of any person
entitled to any payment hereunder or the amount or time of such payment, the
Administrator shall be entitled to hold such sum until such identity or amount
or time is determined or until an order of a court of competent jurisdiction is
obtained.  The Administrator shall also
be entitled to pay such sum into court in accordance with the appropriate rules of
law.  Any expenses incurred by the
Employer, Administrator, and Trust incident to such proceeding or litigation
shall be charged against the Account of the affected Participant.


 


10.6                        Other Benefits.


The benefits of each Participant or beneficiary hereunder shall be in
addition to any benefits paid or payable to or on account of the Participant or
beneficiary under any other pension, disability, annuity or retirement plan or
policy whatsoever.


 


10.7                        No Liability.


No liability shall attach to or be incurred by any manager of the
Employer, Trustee or any Administrator under or by reason of the terms,
conditions and provisions contained in this Plan, or for the acts or decisions
taken or made thereunder or in connection therewith; and as a condition
precedent to the establishment of this Plan or the receipt of benefits thereunder,
or both, such liability, if any, is expressly waived and released by each
Participant and by any and all persons claiming under or through any
Participant or any other person.  Such
waiver and release shall be conclusively evidenced by any act or participation
in or the acceptance of benefits or the making of any election under this Plan.


 


10.8                        Expenses.


All expenses incurred in the administration of the Plan, whether
incurred by the Employer or the Plan, shall be paid by the Employer.


 


10.9                        Insolvency.


Should the Employer be considered insolvent (as defined by the Trust),
the Employer, through its Board and chief executive officer, shall give
immediate written notice of such to the Administrator of the Plan and the
Trustee.  Upon receipt of such notice,
the Administrator or Trustee shall cease to make any payments to Participants
who were Employees of the Employer or their beneficiaries and shall hold any
and all assets attributable to the Employer for the benefit of the general
creditors of the Employer.


 


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10.10                 Plan Amendment.


 


(a)                                  Right
to Amend.  The Board of the Employer and
any authorized committee by written instrument, shall have the right to amend
the Plan at any time and with respect to any provisions hereof, and all parties
hereto or claiming any interest hereunder shall be bound by such amendment;
provided, however, that no such amendment shall deprive the Participant or any
Beneficiary(s) of any rights accrued hereunder prior to the date of the
amendment, including the right to receive the payment of his or her benefit
upon a benefit entitlement event, or earlier as provided herein.


 


(b)                                 Amendment
Required by Law.  Notwithstanding
anything to the contrary, the Plan may be amended at any time, retroactively if
required, if found necessary, in the opinion of the Board of the Employer, in
order to ensure that the Plan is characterized as a non-tax-qualified plan of
deferred supplemental retirement compensation maintained for members of a
select group of management or highly compensated employees as described under
Code Sections 451 and 409A, ERISA Sections 201(2), 301(a) (3) and 401
and to conform the Plan to the provisions and requirements of any applicable
law (including ERISA) and the Code.


 


10.11                 Plan Termination.


 


(a)                                  Employer’s
Right to Terminate Plan.  Subject to
applicable law, the Board of the Employer reserves the right, at any time, to
terminate the Plan; provided however, that no such termination shall deprive
the Participant or any Beneficiary of a right accrued hereunder prior to the
date of termination and provided that, upon termination, the Participant shall
become fully and immediately vested in his or her Account and such Account
shall be held in the Plan until an appropriate distribution event as provided
by this Plan and Code Section 409A.


 


(b)                                 Termination
of Plan Upon Dissolution.  Subject to
applicable law, the Plan shall terminate automatically upon the dissolution of
the Employer.  No such termination shall
deprive the Participant or Beneficiary(s) of a right accrued hereunder prior to
the date of termination and provided that, upon termination, the Participant
shall become fully and immediately vested in his or her Account and such
Account shall be held in the Plan until an appropriate distribution event as
provided by this Plan and Code Section 409A.


 


(c)                                  Termination
of Plan Due to Change in Control.  The
Employer may decide in its discretion to terminate the Plan in the event a
Change in Control (as defined in Section 4.4) and distribute all
Participants Accounts within twelve (12) months of the effective date of the
Change in Control as allowed by law.  Any
corporation or other business organization that is a successor to the Employer
by reason of a Change in Control shall have the right to become a party to the
Plan by adopting the same by resolution of the entity’s board of directors or
other appropriate governing body.  If
within thirty (30) days from the effective date of the Change in Control such
new entity does not become a party hereto, as above provided, the full amount
of the Participant’s Account shall become immediately distributable to the
Participant.


 


15





















 


10.12                 Employer Determinations.


Any determinations, actions or decisions of the Employer (including but
not limited to, Plan amendments and Plan termination) shall be made by the
Board in accordance with its established procedures or by such other
individuals, groups or organizations that have been properly delegated by the
Board to make such determination or decision.


 


10.13                 Construction.


All questions of interpretation, construction or application arising
under or concerning the terms of this Plan shall be decided by the
Administrator, in its sole and final discretion, whose decision shall be final,
binding and conclusive upon all persons.


 


10.14                 Governing Law.


This Plan shall be governed by, construed and administered in
accordance with the applicable provisions of ERISA, and any other applicable
federal law, provided, however, that to the extent not preempted by federal law
this Plan shall be governed by, construed and administered under the laws of
the state of Delaware, other than its laws respecting choice of law.


 


10.15                 Severability.


If any provision of this Plan is held invalid or unenforceable, its
invalidity or unenforceability shall not affect any other provision of this
Plan and this Plan shall be construed and enforced as if such provision had not
been included therein.  If the inclusion
of any Employee (or Employees) as a Participant under this Plan would cause the
Plan to fail to comply with the requirements of sections 201(2), 301(a)(3) and
401(a)(1) of ERISA, or Code Section 409A, then the Plan shall be
severed with respect to such Employee or Employees, who shall be considered to
be participating in a separate arrangement.


 


10.16                 Headings.


The Article headings contained herein are inserted only as a
matter of convenience and for reference and in no way define, limit, enlarge or
describe the scope or intent of this Plan nor in any way shall they affect this
Plan or the construction of any provision thereof.


 


Remainder of page intentionally blank


 


16





















 


10.17                 Terms.


Capitalized terms shall have meanings as defined herein.  Singular nouns shall be read as plural,
masculine pronouns shall be read as feminine, and vice versa, as appropriate.


 


IN WITNESS WHEREOF, Biosite Incorporated has caused
this instrument to be executed by its duly authorized officer, effective as of
this                
day of                         ,
20     .


 


	
   

  	
  Biosite Incorporated

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
  ATTEST:

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  
	
  Title:

  	
   

  	
   

  
								



 


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