Exhibit 10.1


 


MERIT MEDICAL SYSTEMS, INC.


 


 


DEFERRED COMPENSATION PLAN


 


 


AMENDED AND RESTATED


EFFECTIVE JANUARY 1, 2008


 

















 


Merit Medical Systems, Inc. Deferred Compensation Plan


 


	
  ARTICLE
  I

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Restatement, Application and Purpose

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Definitions

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Eligibility and Participation

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Deferrals

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Company Contributions

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Benefits

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Modifications to Payment Schedules

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Valuation of Account Balances; Investments

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Administration

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Amendment and Termination

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Informal Funding

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Claims

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  General Provisions

  	
  27

  



 

















 


ARTICLE
I


 


Restatement, Application and Purpose


 


1.1           Restatement.  Merit Medical Systems, Inc. (the “Company”)
hereby amends and restates the Merit Medical Systems, Inc. Deferred Compensation
Plan (the “Plan”), effective January 1, 2008.


 


1.2           Application and
Grandfathered Accounts.  The purpose
of this amendment and restatement is to comply with requirements of Code Section 409A
as clarified in the final regulations issued thereunder, and to reformat the
document.  This amendment and restatement
applies only to: (i) amounts deferred under the Plan on or after January 1,
2005, (ii) amounts deferred under the Plan prior to January 1, 2005
as to which the Plan is “materially modified” within the meaning of Treasury
Regulation Section 1.409A-6(a) after October 3, 2004.  Amounts deferred under the Plan prior to January 1,
2005 that were vested as of December 31, 2004 (and as to which the Plan
was not materially modified after October 3, 2004, plus all pre- and post-
January 1, 2005 Earnings thereon, (collectively the “Grandfathered
Accounts”) shall be subject to the provisions of the Plan as in effect on October 3,
2004, as the same may be amended from time to time by the Company without
material modification, it being expressly intended that such Grandfathered
Accounts are to remain exempt from the requirements of Code Section 409A.
Certain provisions of the Plan applicable to Grandfathered Accounts are
reflected in this document for ease of reference.


 


1.3           Purpose.  The purpose of the Plan continues to be to
attract and retain key employees by providing each Participant with an
opportunity to defer receipt of a portion of their salary, bonus, and other
specified compensation. The Plan is not intended to meet the qualification
requirements of Code Section 401(a), but is intended to meet the
requirements of Code Section 409A, and shall be operated and interpreted
consistent with that intent.


 


The Plan constitutes an unsecured promise by a Participating Employer
to pay benefits in the future. Participants in the Plan shall have the status
of general unsecured creditors of the Company or the Adopting Employer, as
applicable. Each Participating Employer shall be solely responsible for payment
of the benefits of its employees and their beneficiaries. The Plan is unfunded
for Federal tax purposes and is intended to be an unfunded arrangement for
eligible employees who are part of a select group of management or highly
compensated employees of the Employer within the meaning of Sections 201(2),
301(a)(3) and 401(a)(1) of ERISA. Any amounts set aside to defray the
liabilities assumed by the Company or an Adopting Employer will remain the
general assets of the Company or the Adopting Employer and shall remain subject
to the claims of the Company’s or the Adopting Employer’s creditors until such
amounts are distributed to the Participants.


 


1

















 


ARTICLE
II


 


Definitions


 


2.1           Account. Account means a bookkeeping
account maintained by the Committee to record the payment obligation of a
Participating Employer to a Participant as determined under the terms of the
Plan. The Committee may maintain an Account to record the total obligation to a
Participant and component Accounts to reflect amounts payable at different
times and in different forms. Reference to an Account means any such Account
established by the Committee, as the context requires. Accounts are intended to
constitute unfunded obligations within the meaning of Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA.


 


2.2           Account Balance. Account Balance
means, with respect to any Account, the total payment obligation owed to a
Participant from such Account as of the most recent Valuation Date.


 


2.3           Adopting Employer. Adopting Employer
means an Affiliate who, with the consent of the Company, has adopted the Plan
for the benefit of its eligible employees. 
Merit Services, Inc. and Merit Sensor Services, Inc. are
Adopting Employers.


 


2.4           Affiliate. Affiliate means a corporation,
trade or business that, together with the Company, is treated as a single
employer under Code Section 414(b) or (c).


 


2.5           Beneficiary. Beneficiary means a
natural person, estate, or trust designated by a Participant to receive
payments to which a Beneficiary is entitled in accordance with provisions of
the Plan. The Participant’s spouse, if living, otherwise the Participant’s
estate, shall be the Beneficiary if: (i) the
Participant has failed to properly designate a Beneficiary, or (ii) all
designated Beneficiaries have predeceased the Participant.


 


In the event of a divorce or other legally recognized dissolution of a
Participant’s marriage other than on account of death, the Participant’s former
spouse shall have no interest under the Plan, as Beneficiary or otherwise,
unless the Participant designates such person as a Beneficiary after
dissolution of the marriage, except to the extent provided under the terms of a
domestic relations order as described in Code Section 414(p)(1)(B).


 


2.6           Business Day.
A Business Day is each day on which the New York Stock Exchange is open for
business.


 


2.7           Change in Control.
Change in Control, with respect to a Participating Employer that is organized
as a corporation, occurs on the date on which any of the following events occur
(i) a change in the ownership of the Participating Employer; (ii) a
change in the effective control of the Participating Employer; (iii) a
change in the ownership of a substantial portion of the assets of the
Participating Employer.


 


For purposes of this Section, a change in the ownership of the
Participating Employer occurs on the date on which any one person, or more than
one person acting as a group, 


 


2

















 


acquires ownership of stock of the Participating Employer that,
together with stock held by such person or group constitutes more than 50% of
the total fair market value or total voting power of the stock of the
Participating Employer. A change in the effective control of the Participating
Employer occurs on the date on which either (i) a person, or more than one
person acting as a group, acquires ownership of stock of the Participating
Employer possessing more than 50% or more of the total voting power of the
stock of the Participating Employer, taking into account all such stock
acquired during the 12-month period ending on the date of the most recent
acquisition, or (ii) a majority of the members of the Company’s Board of
Directors is replaced during any 12-month period by directors whose appointment
or election is not endorsed by a majority of the members of such Board of
Directors prior to the date of the appointment or election, but only if no
other corporation is a majority shareholder of the Company. A change in the
ownership of a substantial portion of assets occurs on the date on which any
one person, or more than one person acting as a group, other than a person or
group of persons that is related to the Participating Employer, acquires assets
from the Participating Employer that have a total gross fair market value equal
to more than 50% of the total gross fair market value of all of the assets of
the Participating Employer immediately prior to such acquisition or
acquisitions, taking into account all such assets acquired during the 12-month
period ending on the date of the most recent acquisition.


 


An event constitutes a Change in Control with respect to a Participant
only if the Participant performs services for the Participating Employer that
has experienced the Change in Control, or Change in Control relates to the
Company, or the Participant’s relationship to the affected Participating
Employer otherwise satisfies the requirements of Treasury Regulation Section 1.409A-3(i)(5)(ii).


 


The determination as to the occurrence of a Change in Control shall be
based on objective facts and in accordance with the requirements of Code Section 409A.


 


Any provision herein to the contrary notwithstanding, with respect to
Grandfathered Accounts, a “Change in Control” shall have the more restrictive meaning
set forth in Section 2.6 of the Plan prior to this amendment and
restatement.


 


2.8           Claimant. Claimant means a
Participant or Beneficiary filing a claim under Article XII of this Plan.


 


2.9           Code. Code means the Internal Revenue
Code of 1986, as amended from time to time.


 


2.10         Code Section 409A. Code Section 409A
means section 409A of the Code, and regulations and other guidance issued by
the Treasury Department and Internal Revenue Service thereunder.


 


2.11         Committee. Committee means the
committee of three or more Employees appointed by the Company’s Chief Executive
Officer, to administer the Plan.  The
Committee shall serve as Plan Administrator. 
The Company’s Chief Executive Officer may remove, and appoint successors
for, any member of the Committee at any time.


 


3

















 


2.12         Company. Company means Merit Medical
Systems, Inc.


 


2.13         Company Contribution. Company
Contribution means a credit by a Participating Employer to a Participant’s
Account(s) in accordance with the provisions of Article V of the
Plan. Company Contributions are credited at the sole discretion of the
Participating Employer and the fact that a Company Contribution is credited in
one year shall not obligate the Participating Employer to continue to make such
Company Contribution in subsequent years. Unless the context clearly indicates
otherwise, a reference to Company Contribution shall include Earnings
attributable to such contribution.


 


2.14         Compensation. Compensation means a
Participant’s base salary, annual bonus, quarterly bonus, commissions, and such
other cash compensation (if any) approved by the Committee as Compensation that
may be deferred under this Plan. Compensation shall not include any
compensation that has been previously deferred under this Plan or any other
arrangement subject to Code Section 409A.


 


2.15         Compensation Deferral Agreement.
Compensation Deferral Agreement means an agreement between a Participant and a
Participating Employer that specifies (i) the amount of each component of
Compensation that the Participant has elected to defer to the Plan in
accordance with the provisions of Article IV, and (ii) the Payment
Schedule applicable to one or more Accounts. The Committee may permit different
deferral amounts for each component of Compensation and may establish a minimum
or maximum deferral amount for each such component. Unless otherwise specified
by the Committee in the Compensation Deferral Agreement, Participants must
defer a minimum of $1,000 and may defer up to 
100% of their Compensation for a Plan Year. A Compensation Deferral
Agreement may also specify the notational investment allocation described in Section 8.4.


 


2.16         Death Benefit. Death Benefit means the
benefit payable under the Plan to a Participant’s Beneficiary(ies) upon the
Participant’s death as provided in Section 6.1 of the Plan.


 


2.17         Deferral. Deferral means a credit to a
Participant’s Account(s) that records that portion of the Participant’s
Compensation that the Participant has elected to defer to the Plan in
accordance with the provisions of Article IV. Unless the context of the
Plan clearly indicates otherwise, a reference to Deferrals includes Earnings
attributable to such Deferrals.


 


Deferrals shall be calculated with respect to the gross cash Compensation
payable to the Participant prior to any deductions or withholdings, but shall
be reduced by the Committee as necessary so that it does not exceed 100% of the
cash Compensation of the Participant remaining after deduction of all required
income and employment taxes, 401(k) and other employee benefit deductions,
and other deductions required by law. Changes to payroll withholdings that
affect the amount of Compensation being deferred to the Plan shall be allowed
only to the extent permissible under Code Section 409A.


 


4

















 


2.18         Disability Benefit. Disability Benefit
means the benefit payable under the Plan to a Participant in the event such
Participant has become Disabled but has not incurred a Separation from Service.


 


2.19         Disabled. Disabled means that a
Participant is, by reason of any medically-determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than twelve months, (i) unable to
engage in any substantial gainful activity, or (ii) receiving income
replacement benefits for a period of not less than three months under an
accident and health plan covering employees of the Participant’s employer. The
Committee shall determine whether a Participant is Disabled in accordance with
Code Section 409A provided, however, that a Participant shall be deemed to
be Disabled if the Social Security Administration determines that he or she is
totally disabled.


 


2.20         Earnings. Earnings means an adjustment,
positive or negative, to the value of an Account to reflect the gain, income,
loss and expense of the notational investments in which the Account is deemed
invested in accordance with Article VIII.


 


2.21         Effective Date. Effective Date means January 1,
2008


 


2.22         Eligible Employee. Eligible Employee
means a member of a “select group of management or highly compensated employees”
of a Participating Employer within the meaning of Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA, who meet the criteria set forth in Section 3.1 as
determined by the Committee from time to time in its sole discretion.


 


2.23         Eligibility Period.  Eligibility Period means the twelve month
period beginning October 1 each year and ending on the succeeding September 30.


 


2.24         Employee. Employee means a common-law
employee of an Employer.


 


2.25         Employer.  Employer means, with respect to Employees it
employs, the Company and each Adopting Employer.


 


2.26         ERISA. ERISA means the Employee
Retirement Income Security Act of 1974, as amended from time to time.


 


2.27         Grandfathered Account. Grandfathered
Account means amounts deferred under the Plan prior to January 1, 2005
that were vested as of December 31, 2004 and with respect to which the
Plan was not “materially modified” within the meaning of Treasury Regulation Section 1.409A-6(a) after
October 3, 2004; and (ii) any Earnings (whether before or after January 1,
2007) on such deferred amounts.


 


2.28         Participant. Participant means an
Eligible Employee who has received notification of his or her eligibility to
defer Compensation under the Plan under Section 3.1 and any other person
with an Account Balance greater than zero, regardless of whether such
individual 


 


5

















 


continues to be an Eligible Employee. A Participant’s continued
participation in the Plan shall be governed by Section 3.2 of the Plan.


 


2.29         Participating
Employer. Participating Employer means the Company, Merit Services, Inc.,
Merit Sensor Services, Inc. and each other Adopting Employer.  The Committee may remove any Affiliate of the
Company as a Participating Employer at any time effective upon written notice
to the Affiliate.


 


2.30         Payment Schedule. Payment Schedule
means the date as of which payment of an Account under the Plan will commence
and the form in which payment of such Account will be made.


 


2.31         Performance-Based Compensation.
Performance-Based Compensation means Compensation where the amount of, or
entitlement to, the Compensation is contingent on the satisfaction of
pre-established organizational or individual performance criteria relating to a
performance period of at least twelve consecutive months. Organizational or
individual performance criteria are considered pre-established if established
in writing by not later than ninety (90) days after the commencement of the
period of service to which the criteria relate, provided that the outcome is
substantially uncertain at the time the criteria are established. The
determination of whether Compensation qualifies as “Performance-Based
Compensation” will be made in accordance with Treas. Reg. Section 1.409A-1(e) and
subsequent guidance.


 


2.32         Plan. Generally, the term Plan means
the “Merit Medical Systems, Inc. Deferred Compensation Plan” as amended and
restated herein and as may be further amended from time to time hereafter.
However, to the extent permitted or required under Code Section 409A, the
term Plan may in the appropriate context also mean a portion of the Plan that
is treated as a single plan under Treas. Reg. Section 1.409A-1(c), or the
Plan or portion of the Plan and any other nonqualified deferred compensation
plan or portion thereof that is treated as a single plan under such section.


 


2.33         Plan Administrator.  Plan Administrator means the Committee.


 


2.34         Plan Year. Plan Year means January 1
through December 31.


 


2.35         Retirement/Termination Account.
Retirement/Termination Account means an Account established by the Committee to
record the amounts payable to a Participant that have not been allocated to a
Specified Date Account. Unless the Participant has established a Specified Date
Account, all Deferrals and Company Contributions shall be allocated to a
Retirement/Termination Account on behalf of the Participant.


 


2.36         Retirement/Termination Benefit.
Retirement/Termination Benefit means the benefit payable to a Participant under
the Plan following the Participant’s Separation from Service for any reason
other than death or Disability.


 


6

















 


2.37         Separation from Service. An Employee
incurs a Separation from Service upon termination of employment with his or her
Employer. Whether a Separation from Service has occurred shall be determined by
the Committee in accordance with Code Section 409A.


 


Except in the case of an Employee on a bona fide leave of absence as
provided below, an Employee is deemed to have incurred a Separation from
Service if the Employer and the Employee reasonably anticipated that the level
of services to be performed by the Employee after a date certain would be
reduced to 20% or less of the average services rendered by the Employee during
the immediately preceding 36-month period (or the total period of employment,
if less than 36 months), disregarding periods during which the Employee was on
a bona fide leave of absence.


 


An Employee who is absent from work due to military leave, sick leave,
or other bona fide leave of absence shall incur a Separation from Service on
the first date immediately following the later of (i) the six-month
anniversary of the commencement of the leave or (ii) the expiration of the
Employee’s right, if any, to reemployment under statute or contract.
Notwithstanding the preceding, however, an Employee who is absent from work due
to a physical or mental impairment that is expected to result in death or last
for a continuous period of at least six months and that prevents the Employee
from performing the duties of his position of employment or a similar position
shall incur a Separation from Service as a result of such leave on the first
date immediately following the 29-month anniversary of the commencement of the
leave.


 


For purposes of determining whether a Separation from Service has
occurred, the Employer means the Employer as defined in Section 2.24 of
the Plan, except that for purposes of determining whether another organization
is an Affiliate of the Company, common ownership of at least 50% shall be
determinative. A mere transfer of employment between Employers shall not be
deemed a Separation from Service.


 


The Committee specifically reserves the right to determine whether a
sale or other disposition of substantial assets to an unrelated party
constitutes a Separation from Service with respect to a Participant providing
services to the seller immediately prior to the transaction and providing
services to the buyer after the transaction. Such determination shall be made
in accordance with the requirements of Code Section 409A.


 


2.38         Specified Date Account. A Specified
Date Account means an Account established pursuant to Section 4.3 that
will be paid (or that will commence to be paid) at a future date as specified
in the Participant’s Compensation Deferral Agreement. Unless otherwise
determined by the Committee, a Participant may maintain no more than five (5) Specified
Date Accounts. A Specified Date Account may be identified in enrollment
materials as an “In-Service Account”.


 


2.39         Specified Date Benefit. Specified Date
Benefit means the benefit payable to a Participant under the Plan in accordance
with Section 6.1(c).


 


7

















 


2.40         Specified Employee. Specified Employee
means an Employee who, as of the date of his Separation from Service, is a “key
employee” of the Company or any Affiliate, any stock of which is actively
traded on an established securities market or otherwise.


 


An Employee  shall be treated as
a key employee for the entire 12-month period beginning on each Specified
Employee Effective Date if he or she meets the requirements of Code Section 416(i)(1)(A)(i),
(ii), or (iii) (applied in accordance with applicable regulations
thereunder and without regard to Code Section 416(i)(5)) at any time
during the 12-month period ending on the applicable Specified Employee
Identification Date.


 


For purposes of determining whether an Employee is a Specified
Employee, the compensation of the Employee shall be determined in accordance
with the definition of compensation provided under Treasury Regulation Section 1.415(c)-2(d)(3) (wages
within the meaning of Code Section 3401(a) for purposes of income tax
withholding at the source, plus amounts excludible from gross income under Code
Section 125(a), 132(f)(4), 402(e)(3), 402(h)(1)(B), 402(k) or 457(b),
without regard to rules that limit the remuneration included in wages
based on the nature or location of the employment or the services performed);
provided, however, that, with respect to a nonresident alien who is a
Participant, compensation shall not include compensation that is not includible
in the gross income of the Employee under Code Sections 872, 893, 894, 911, 931
and 933, provided such compensation is not effectively connected with the
conduct of a trade or business within the United States.


 


Notwithstanding anything in this paragraph to the contrary, (i) if
a different definition of compensation has been designated by the Company with
respect to another nonqualified deferred compensation plan in which a key
employee participates, the definition of compensation shall be the definition
provided in Treasury Regulation Section 1.409A-1(i)(2), and (ii) the
Company may through action that is legally binding with respect to all
nonqualified deferred compensation plans maintained by the Company, elect to
use a different definition of compensation.


 


In the event of corporate transactions described in Treasury Regulation
Section 1.409A-1(i)6), the identification of Specified Employees shall be
determined in accordance with the default rules described therein, unless
the Employer elects to utilize the available alternative methodology through
designations made within the timeframes specified therein.


 


2.41         Specified Employee Identification Date.
Specified Employee Identification Date means with respect to a particular
Specified Employee Effective Date, the December 31 immediately preceding
that Specified Employee Effective Date, unless the Employer has elected a
different date through action that is legally binding with respect to all
nonqualified deferred compensation plans maintained by the Employer.


 


2.42         Specified Employee Effective Date.
Specified Employee Effective Date means April 1 each year, or such earlier
date as is selected by the Committee.


 


8
















 


2.43         Substantial Risk of Forfeiture.
Substantial Risk of Forfeiture shall have the meaning specified in Treasury
Regulation Section 1.409A-1(d).


 


2.44         Unforeseeable Emergency. An
Unforeseeable Emergency means a severe financial hardship to the Participant
resulting from (i) an illness or accident of the Participant, the
Participant’s spouse, the Participant’s dependent (as defined in Code Section 152(a) applied
without regard to Code Section 152(b)(1), 152(b)(2) and
152(d)(1)(B)), or a Beneficiary; (ii) loss of the Participant’s property
due to casualty (including the need to rebuild a home following damage to a
home not otherwise covered by insurance, for example,  as a result of a natural disaster); or (iii) other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant within the meaning and limitations
of Treasury Regulation Section 1.409A-3(i)(3).  In no event shall the need to purchase a home
or pay college tuition qualify as Unforeseeable Emergency.  The types of events which may qualify as an
Unforeseeable Emergency may be limited by the Committee in its sole discretion.


 


2.45         Valuation Date. Valuation Date shall
mean each Business Day.


 


ARTICLE
III


 


Eligibility and Participation


 


3.1           Except as provided in Section 3.2
below, each Employee who satisfies the criteria set forth in subsections (a) and
(b) below during an Eligibility Period shall be an Eligible Employee with
respect to the first Plan Year commencing after that Eligibility Period. No
other Employee may become a Participant or otherwise defer Compensation under
the Plan.


 


(a)           To be eligible an Eligible Employee the
Employee must have the following position and title with the Company or and
Adopting Employer:


 


(1)  
Chief Executive Officer, or


(2)  
Chief Financial Officer; or


(3)  
Qualified Sales Representative; or


(4)  
Chief Information Officer; or


(5)  
Controller — Staff; or


(6)  
Chief Operating Officer; or


(7)  
General Counsel or Staff Attorney; or


(8)  
Director; or


(9)   Executive Vice President; or


(10) Founder; or


(11) General Manager — Staff; or


(12) National Accounts/Packer Sales Manager;
or


(13) National Sales Manager; or


(14) President; or


(15) Regional Sales Manager; or


(16) Site Controller; or


 


9

















 


(17) Site General Manager; or


(18) Site President; or


(19) Vice President; or


(20) Such other positions as permit the
Employee to influence executive management with respect to company policy,
particularly regarding the amount and form of their remuneration for services,
as determined by the Committee in its discretion; and


 


(b)           To be an Eligible Employee, an Employee must
receive Compensation for the Eligibility Period (i) in excess of that
required for “highly compensated employee” status under Code Section 414
with respect to tax-qualified retirement plans, determined as if the
Eligibility Period were the applicable qualified Plan Year and as if highly
compensated employee status were based on compensation for that Plan Year; (ii) sufficient
to place such Employee in the highest six percent (6%) of the Employers’
payroll for that Eligibility Period; and (iii) greater than 250 percent of
the average (mean) Compensation of all Employees during the Eligibility Period.


 


3.2           Duration. A Participant shall be
eligible to defer Compensation and receive allocations of Company
Contributions, subject to the terms of the Plan, for as long as such
Participant remains an Eligible Employee. The Committee may prospectively
revoke an Employee’s status as an Eligible Employee at any time and for any
reason upon written notice to the affected Employee. A Participant who is no
longer an Eligible Employee but has not Separated from Service may not defer
Compensation under the Plan but may otherwise exercise all of the rights of a
Participant under the Plan with respect to his or her Account(s). On and after
a Separation from Service, a Participant shall remain a Participant as long as
his or her Account Balance is greater than zero and during such time may
continue to make notational investment allocation elections as provided in Section 8.4.
An individual shall cease being a Participant in the Plan when all benefits
under the Plan to which he or she is entitled have been paid


 


3.3           Notification.  Each newly Eligible Employee shall be notified
by the Company or Plan Administrator, in writing, of his or her eligibility to
participate in this Plan.


 


ARTICLE IV


 


Deferrals


 


4.1           Deferral Elections,
Generally.


 


(a)           A Participant shall submit a Compensation
Deferral Agreement during the enrollment periods established by the Committee
and in the manner specified by the Committee, but in any event, in accordance
with Section 4.2. A Compensation Deferral Agreement that is not timely
filed with respect to a service period or component of Compensation shall be
considered void and shall have no effect with respect to such service period or
Compensation. The Committee may modify 


 


10

















 


any Compensation Deferral Agreement prior to the date the election
becomes irrevocable under the rules of Section 4.2.


 


(b)           The Participant shall specify on his or her
Compensation Deferral Agreement whether to allocate Deferrals to a
Retirement/Termination Account or to a Specified Date Account. If no
designation is made, all Deferrals shall be allocated to the
Retirement/Termination Account. A Participant may also specify in his or her
Compensation Deferral Agreement the Payment Schedule applicable to his or her
Plan Accounts. If the Payment Schedule is not specified in a Compensation
Deferral Agreement, the applicable form of payment shall be a single lump sum
payment.


 


4.2           Timing
Requirements for Compensation Deferral Agreements.


 


(a)           Prior Year Election.
Except as otherwise provided in this Section 4.2, Participants may elect
to defer Compensation earned for services performed in a particular calendar
year, but only if they file a Compensation Deferral Agreement no later than December 31st
prior to the calendar year in which such services are performed and the
Compensation is earned.  A Compensation
Deferral Agreement described in this paragraph shall become irrevocable with
respect to such Compensation as of January 1 of the year in which such
services are performed. Notwithstanding the foregoing, for purposes of this Section 4.2(a),
as provided in Treasury Regulation Section 1.409A-2(a)(13), Compensation
paid after December 31 of a particular calendar year with respect to a
payroll period that includes but does not end on December 31 of that
calendar year shall be deemed to be paid for services performed in the calendar
year in which such Compensation is actually paid.


 


(b)           Performance-Based
Compensation. Participants may file a Compensation Deferral
Agreement with respect to Performance-Based Compensation no later than the date
that is six months before the end of the performance period, provided that:


 


(i)            the Participant performs services
continuously from the later of the beginning of the performance period or the
date the criteria are established through the date the Compensation Deferral
Agreement is submitted; and


(ii)           the Compensation is not readily
ascertainable as of the date the Compensation Deferral Agreement is filed.


 


A Compensation Deferral Agreement becomes irrevocable with respect to
Performance-Based Compensation as of the day immediately following the latest
date for filing such election. Any election to defer Performance-Based
Compensation that is made in accordance with this paragraph and that becomes
payable as a result of the Participant’s death or disability (as defined in
Treasury Regulation Section 1.409A-1(e)) or upon a Change in Control (as
defined in 


 


11

















 


Treasury Regulation Section 1.409A-3(i)(5)) prior to the satisfaction
of the performance criteria, will be void.


 


(c)           Sales
Commissions. Sales commissions (as defined in Treasury Regulation Section 1.409A-2(a)(12)(i))
are considered to be earned in the taxable year of the Participant in which the
sale occurs and are deemed attributable to the performance of services in the
year in which the sale occurs.  A
Compensation Deferral Agreement with respect to sales commissions for a
particular year must be filed before the last day of the year preceding the
year in which the sales commissions are deemed earned under the preceding
sentence (i.e., by December 31 preceding the year of the sale generating
the commission) and becomes irrevocable after that date.


 


(d)           Short-Term
Deferrals. Compensation that meets the definition of a “short-term
deferral” described in Treasury Regulation Section 1.409A-1(b)(4) may
be deferred in accordance with the rules of Article VII, applied as
if the date the applicable Substantial Risk of Forfeiture lapses is the date
payments were originally scheduled to commence, provided, however, that the
provisions of Section 7.3 shall not apply to payments attributable to a
Change in Control (as defined in Treasury Regulation Section 1.409A-3(i)(5)).


 


(e)           Certain
Forfeitable Rights. With respect to a legally binding right to a
payment in a subsequent year that is subject to a forfeiture condition
requiring the Participant’s continued services for a period of at least twelve
months from the date the Participant obtains the legally binding right, an
election to defer such Compensation may be made on or before the 30th day after
the Participant obtains the legally binding right to the Compensation, provided
that the election is made at least twelve months in advance of the earliest
date at which the forfeiture condition could lapse. The Compensation Deferral
Agreement described in this paragraph becomes irrevocable after such 30th day.
If the forfeiture condition applicable to the payment lapses before the end of
the required service period as a result of the Participant’s death or
disability (as defined in Treas. Reg. Section 1.409A-3(i)(4)) or upon a
Change in Control (as defined in Treas. Reg. Section 1.409A-3(i)(5)), the
Compensation Deferral Agreement will be void unless it would be considered
timely under another rule described in this Section.


 


(f)            Employer
Awards. Participating Employers may unilaterally provide for
deferrals of Company awards prior to the date of such awards. Deferrals of
Company awards (such as sign-on, retention, or severance pay) may be negotiated
with a Participant prior to the date the Participant has a legally binding
right to such Compensation.


 


(g)           “Evergreen”
Deferral Elections. The Committee, in its discretion, may provide in
the Compensation Deferral Agreement that such Compensation Deferral Agreement
will continue in effect for each subsequent year or performance period. Such “evergreen”
Compensation Deferral Agreements will become 


 


12

















 


effective with respect to an item of Compensation
on the date such election becomes irrevocable under this Section 4.2. An
evergreen Compensation Deferral Agreement may be terminated or modified
prospectively with respect to Compensation for which such election remains
revocable under this Section 4.2. A Participant whose Compensation
Deferral Agreement is cancelled in accordance with Section 4.6 will be
required to file a new Compensation Deferral Agreement under this Article IV
in order to recommence Deferrals under the Plan.


 


4.3           Allocation of Deferrals. A
Compensation Deferral Agreement may allocate Deferrals to one or more Specified
Date Accounts and/or to the Retirement/Termination Account. The Committee may,
in its discretion, establish a minimum deferral period for Specified Date
Accounts (for example, the third Plan Year following the year Compensation
subject to the Compensation Deferral Agreement is earned).


 


4.4           Deductions from Pay. The Committee
has the authority to determine the payroll practices under which any component
of Compensation subject to a Compensation Deferral Agreement will be deducted
from a Participant’s Compensation.


 


4.5           Vesting. Participant Deferrals, as
adjusted for Earnings thereon, shall be 100% vested at all times.


 


4.6           Cancellation of Deferrals. The
Committee shall cancel a Participant’s Deferrals (i) for the balance of
the Plan Year in which the Participant receives an Unforeseeable Emergency
payment from the Plan; (ii) if the Participant receives a hardship
distribution pursuant to Treasury Regulation Section 1.401(k)-1(d)(3) under
his or her Employer’s tax-qualified 401(k) plan, through the end of the
Plan Year in which the six-month anniversary of the hardship distribution
falls; and (iii) during periods in which the Participant is unable to
perform the duties of his or her position or any substantially similar position
due to a mental or physical impairment that can be expected to result in death
or last for a continuous period of at least six months. In the event a
Participant receives a voluntary withdrawal from a Grandfathered Account, the
Participant shall not be permitted to make Deferrals to the Plan in the Plan
Year in which the withdrawal occurs or in the following the Plan Year.


 


ARTICLE
V


 


Company Contributions


 


5.1           Discretionary Company Contributions. A
Participating Employer may, from time to time in its sole and absolute
discretion, credit Company Contributions to any Participant in any amount
determined by the Participating Employer. Such contributions will be credited
to a Participant’s Retirement/Termination Account.


 


5.2           Vesting. Company Contributions
described in Section 5.1, above, as adjusted for Earnings thereon, shall
vest in accordance with the vesting schedule(s) established by the 


 


13

















 


Committee at the time that the Company Contribution is made.  If the Company fails to provide a written
vesting schedule in accordance herewith, then the Company Discretionary
Contribution will be 100% vested when made. 
The Participating Employer may, at any time, in its sole discretion,
increase a Participant’s vested interest in a Company Contribution. The portion
of a Participant’s Accounts that remains unvested upon his or her Separation
from Service after the application of the terms of this Section 5.2 shall
be forfeited.


 


14

















 


ARTICLE
VI


 


Benefits


 


6.1           Benefits, Generally. A Participant
shall be entitled to the following benefits under the Plan:


 


(a)           Retirement/Termination
Benefit. Upon the Participant’s Separation from Service for any
reason other than death or Disability, he or she shall be entitled to a
Retirement/Termination Benefit. The Retirement/Termination Benefit shall be
equal to the vested balance of the Participant’s Retirement/Termination Account
plus the vested, unpaid balance of his or her Specified Date Account, as
adjusted for Earnings.  Payment of the
Retirement/Termination Benefit will be made (in the case of a lump sum payment)
or begin (in the case of installment payments) as soon as practicable following
the calendar month in which Separation from Service occurs, on such date as the
Committee determines, but in no event later than 30 days after the end of the
month in which Separation from Service occurs; provided, however, that with
respect to a Participant who is a Specified Employee as of the date such
Participant incurs a Separation from Service, payment will be made (in the case
of a lump sump payment) or begin (in the case of installments) on the first
Business Day of the seventh month following the month in which such Separation
from Service occurs.  In the case of any
quarterly or annual installment payment, any installment after the initial
installment will be paid on the applicable quarterly or annual anniversary date
of the date on which the initial installment is paid.  If the Retirement/Termination Benefit is to
be paid in the form of a lump sum, the Retirement/Termination Benefit payable
will equal the vested portion of the Participant’s Retirement/Termination
Account and any unpaid, vested balances in any Specified Date Accounts of the
Participant as of the Valuation Date immediately preceding the date of
distribution.  If the
Retirement/Termination Benefit is to be paid in the form of installments, the
amount of each installment shall be determined under Section 6.2(g) below
as of the Valuation Date immediately preceding the date the installment
distribution in question is paid.


 


(b)           Specified
Date Benefit. If the Participant has established one or more
Specified Date Accounts, he or she shall be entitled to a Specified Date
Benefit with respect to each such Specified Date Account.  The Specified Date Benefit shall be equal to
the vested balance of the Specified Date Account in question, as adjusted for
Earnings.  Payment of the Specified Date
Benefit will be made (in the case of a lump sum payment) or begin (in the case
of installment payments) on the first Business Day of the month following the
designated month. If the Specified Date Benefit is to be paid in the form of
quarterly or annual installments, any subsequent installment payments after the
initial installment will be paid on the applicable quarterly or annual
anniversary date of the date on which the initial installment is paid.  If the Specified Date Benefit is to be paid
in the form of a lump sum, the Specified Date Benefit payable shall be the
vested portion of the Participant’s Specified Date Account as of the Valuation
Date immediately 


 


15

















 


preceding the date of distribution.  If the Specified Date Benefit is to be paid
in the form of quarterly or annual installments, the amount of each installment
shall be determined under Section 6.2(g) below as of the Valuation
Date immediately preceding the date the installment distribution in question is
paid.


 


(c)           Disability
Benefit. In the event a Participant becomes Disabled on or prior to
his or her Separation from Service, he or she shall be entitled to a Disability
Benefit. The Disability Benefit shall be equal to the Disabled Participant’s
entire Retirement/Termination Account (whether or not otherwise vested) and any
unpaid balances in his or her Specified Date Accounts, as adjusted for
Earnings. The Disability Benefit will be paid (if a lump sum form of payment
applies) or commence to be paid (if an installment form of payment applies) as
soon as practicable following the date of the disabled Participant’s Separation
from Service, on such date as the Committee determines, but in no event later
than 30 days after the date of Participant incurs a Separation from Service. If
the Disability Benefit is to be paid in the form of quarterly or annual
installments, any subsequent installment payments after the initial installment
will be paid on the applicable quarterly or annual anniversary date of the date
the initial installment is paid.   If the
Disability Benefit is to be paid in the form of a lump sum, the Disability
Benefit payable shall be equal to the entire balance of the Participant’s
Accounts as of the Valuation Date immediately preceding the date of
distribution.  If the Disability Benefit
is to be paid in the form of installments, the amount of each installment shall
be determined under Section 6.2(g) below based on the balance in the
Participant’s Accounts as of the Valuation Date immediately preceding the date
the installment distribution in question is paid.


 


(d)           Death
Benefit. In the event of the Participant’s death on or prior to his
or her Separation from Service, his or her designated Beneficiary or
Beneficiaries shall be entitled to a Death Benefit. The Death Benefit shall be
equal to the Participant’s entire Retirement/Termination Account and unpaid
Specified Date Account balance. Additionally, in the event of the Participant’s
death after his or her Separation from Service prior complete distribution of
his or her Retirement/Termination Benefit under Section 6.1(a), his or her
designated Beneficiary or Beneficiaries shall be entitled to a Death Benefit
equal to the Participant’s vested 
Retirement/Termination Account and any unpaid vested balance in his or
her Specified Date Accounts.  In either
case, the Death Benefit shall be based on the value of the deceased Participant’s
Accounts as of the end of the month in which death occurs and will be paid as
soon as practicable following the month in which death occurs, on such date as
the Committee determines, but in no event later than 60 days after the end of
the calendar month in which the Participant dies.


 


(e)           Unforeseeable
Emergency Payments. A Participant who experiences an Unforeseeable
Emergency may submit a written request to the Committee to receive payment of
all or any portion of his or her Accounts. Whether a Participant or Beneficiary
is faced with an Unforeseeable Emergency permitting 


 


16

















 


an emergency payment shall be determined by
the Committee based on the relevant facts and circumstances of each case, but,
in any case, a distribution on account of Unforeseeable Emergency may not be
made to the extent that such emergency is or may be reimbursed through
insurance or otherwise, by liquidation of the Participant’s assets, to the
extent the liquidation of such assets would not cause severe financial
hardship, or by cessation of Deferrals under this Plan. If an emergency payment
is approved by the Committee, the amount of the payment shall not exceed the
amount reasonably necessary to satisfy the need, taking into account the
additional compensation that is available to the Participant as the result of
cancellation of Deferrals to the Plan, including amounts necessary to pay any
taxes or penalties that the Participant reasonably anticipates will result from
the payment. The amount of the emergency payment shall be subtracted first from
the Participant’s Retirement/Termination Account until depleted and then from
the vested Specified Date Accounts, beginning with the Specified Date Account
with the latest payment commencement date. Emergency payments shall be paid in
a single lump sum within the 30-day period following the date the payment is
approved by the Committee.


 


(f)            Voluntary
Withdrawals of Grandfathered Accounts. A Participant may elect at
any time to voluntarily withdraw the amounts credited to his or her
Grandfathered Account. If such a withdrawal is requested, the Participant shall
forfeit an amount equal to 10% of the balance of the Grandfathered Account, and
he or she shall not be permitted to make Deferrals to the Plan in the Plan Year
following the Plan Year in which the withdrawal is made.  The Plan is hereby amended, in accordance
with Reg. 1.409A-6(a)(4), to delete the requirement that deferrals be suspended
for the remainder of the Plan Year during which a Voluntary Withdrawal is
received. The minimum withdrawal amount is $2.500.


 


6.2           Form of Payment.


 


(a)           Retirement/Termination
Benefit. A Participant who is entitled to receive a
Retirement/Termination Benefit shall receive payment of such benefit in a
single lump sum, unless the Participant elects on his or her initial
Compensation Deferral Agreement to have such benefit paid in one of the
following alternative forms of payment (i) quarterly or annual
installments over a period of two to fifteen years, as elected by the
Participant; or (ii) a lump sum payment of a percentage of the balance in
the Retirement/Termination Account, with the balance paid in quarterly or
annual installments over a period of two to fifteen years, as elected by the
Participant.


 


(b)           Specified
Date Benefit. The Specified Date Benefit shall be paid in a single
lump sum, unless the Participant elects on the Compensation Deferral Agreement
with which the account was established to have the Specified Date Account paid
in quarterly or annual installments over a period of two to five years, as
elected by the Participant.


 


17

















 


Notwithstanding any election of a form of
payment by the Participant, upon a Separation from Service the unpaid balance
of a Specified Date Account with respect to which payments have not commenced
shall be paid in accordance with the form of payment applicable to the
Retirement/Termination Benefit.


 


(c)           Disability
Benefit. A Participant who is entitled to receive a Disability
Benefit shall receive payment of such benefit in accordance with the Payment
Schedule applicable to the Retirement/Termination Benefit.


 


(d)           Death
Benefit. A designated Beneficiary who is entitled to receive a Death
Benefit shall receive payment of such benefit in a single lump sum.


 


(e)           Change in
Control. Notwithstanding Section 6.2(a) above, a Participant
will receive a single lump sum payment equal to the unpaid balance of all of
his or her Accounts upon a Separation from Service if such Separation from
Service occurs within 24 months following a Change in Control of his Employer.  Accounts will be valued as of the last day of
the month prior to the Separation from Service and will be paid on such date as
the Committee determines, but in no event later than 30 days after such
Separation from Service.  In addition to
the foregoing, upon a Change in Control, a Participant who has incurred a
Separation from Service prior to the Change in Control, and any Beneficiary of
such Participant who is receiving or is scheduled to receive payments, will
receive the balance of all unpaid Accounts in a single lump sum.  Accounts will be valued as of the last day of
the month prior to the Change in Control and will be paid within 30 days of
said Change in Control.


 


(f)            Small
Account Balances. The Committee may, in its sole discretion which
shall be evidenced in writing no later than the date of payment, elect to pay
the value of the Participant’s Accounts upon a Separation from Service in a
single lump sum if the balance of such Accounts is not greater than the
applicable dollar amount under Code Section 402(g)(1)(B), provided the
payment represents the complete liquidation of the Participant’s Accounts and
interest in the Plan.


 


(g)           Rules Applicable
to Installment Payments. If a Payment Schedule specifies installment
payments, annual payments will be made beginning as of the payment commencement
date for such installments and shall continue on each quarterly or annual
anniversary thereof for the designated period, as applicable, until the number
of installment payments specified in the Payment Schedule has been paid. The
amount of each installment payment shall be determined by dividing (a) by
(b), where (a) equals the vested Account Balance of the Accounts being
paid as of the applicable Valuation Date immediately prior to the date
distribution is sent, and (b) equals the remaining number of installment
payments (including the installment distribution in question).


 


For purposes of Article VII, installment
payments will be treated as a single form of payment. If a lump sum equal to
less than 100% of the Retirement/Termination


 


18
















 


Account is paid, the payment commencement
date for the installment form of payment of the vested balance of the
Participant’s Accounts will be the first annual anniversary date of the date of
payment of the lump sum.


 


6.3           Acceleration of or Delay in Payments.
The Company, in its sole and absolute discretion, may elect to accelerate the
time or form of payment of a benefit owed to the Participant hereunder,
provided such acceleration is permitted under Treasury Regulation Section 1.409A-3(j)(4).
The Company may also, in its sole and absolute discretion, delay the time for
payment of a benefit owed to the Participant hereunder, to the extent permitted
under Treasury Regulation Section 1.409A-2(b)(7), including delays to the
minimum extent necessary to avoid the application of Code Section 162(m) to
payments under the Plan or to void violation of applicable federal securities
and other laws. If the Plan receives a domestic relations order (within the
meaning of Code Section 414(p)(1)(B)) directing that all or a portion of a
Participant’s Accounts be paid to an “alternate payee,” any amounts to be paid
to the alternate payee(s) shall be paid in a single lump sum.


 


ARTICLE
VII


 


Modifications to Payment Schedules


 


7.1           Participant’s Right to Modify.  A Participant may modify any or all of the
alternative Payment Schedules with respect to an Account, consistent with the
permissible Payment Schedules available under the Plan, provided such
modification complies with the requirements of this Article VII.


 


7.2           Time of Election. The date on which a
modification election is submitted to the Committee must be at least twelve
months prior to the date on which payment is scheduled to commence under the
Payment Schedule in effect prior to the modification.


 


7.3           Date of Payment under Modified Payment
Schedule. Except with respect to modifications that relate to the payment
of a Death Benefit or a Disability Benefit, the date payments are to commence
under the modified Payment Schedule must be no earlier than five years after
the date payment would have commenced under the original Payment Schedule.
Under no circumstances may a modification election result in an acceleration of
payments in violation of Code Section 409A.


 


7.4           Effective Date. A modification
election submitted in accordance with this Article VII is irrevocable upon
receipt by the Committee and becomes effective 12 months after such date.


 


7.5           Effect on Accounts. An election to
modify a Payment Schedule is specific to the Account or payment event to which
it applies, and shall not be construed to affect the Payment Schedules of any
other Accounts.


 


7.6           Modifications to Grandfathered Accounts.
Notwithstanding the preceding provisions of this Article VII, a
Participant may modify the time or form of payment applicable to a 


 


19

















 


Grandfathered Account at any time, provided the modification is
submitted in writing at least 13 months in advance of the date the
Grandfathered Account is scheduled to be paid.


 


ARTICLE
VIII


 


Valuation of Account Balances; Investments


 


8.1           Valuation. Deferrals shall be
credited to appropriate Accounts on the date such Compensation would have been
paid to the Participant absent the Compensation Deferral Agreement. Company
Contributions shall be credited to the Retirement/Termination Account at the
times determined by the Committee. Valuation of Accounts shall be performed
under procedures approved by the Committee.


 


8.2           Earnings Credit. Each Account will be
credited with Earnings on each Business Day, based upon the Participant’s
investment allocation among one or more notational investments permitted under
a menu of investment options selected in advance by the Committee, in
accordance with the provisions of this Article VIII (“investment
allocation”).


 


8.3           Investment Options. Investment
options will be determined by the Committee. The Committee, in its sole
discretion, shall be permitted to add or remove investment options from the
Plan menu from time to time, provided that any such additions or removals of
investment options shall not be effective with respect to any period prior to
the date such change is communicated to Participants in writing.


 


8.4           Investment Allocations. A Participant’s
investment allocation constitutes a deemed, not actual, investment among the
notational investment options comprising the investment menu. At no time shall
a Participant have any real or beneficial ownership in any investment option
included in the investment menu, nor shall the Participating Employer or any
trustee acting on its behalf have any obligation to purchase actual securities
as a result of a Participant’s investment allocation. A Participant’s
investment allocation shall be used solely for purposes of adjusting the value
of a Participant’s Account Balances.


 


A Participant shall specify an investment allocation for each of his
Accounts in accordance with procedures established by the Committee.  Allocation among the investment options must
be designated in increments of 1%. The Participant’s investment allocation will
become effective on the same Business Day or, in the case of investment
allocations received after a time specified by the Committee, the next Business
Day.


 


A Participant may change an investment allocation on any Business Day,
both with respect to future credits to the Plan and with respect to existing
Account Balances, in accordance with procedures adopted by the Committee.
Changes shall become effective on the same Business Day or, in the case of
investment allocations received after a time specified by the Committee, the
next Business Day, and shall be applied prospectively.


 


20

















 


8.5           Unallocated Deferrals and Accounts.
If the Participant fails to make an investment allocation with respect to an
Account, such Account shall be invested in an investment option, the primary
objective of which is the preservation of capital, as determined by the
Committee.


 


ARTICLE
IX


 


Administration


 


9.1           Plan Administration. This Plan shall
be administered by the Committee which shall have complete discretionary
authority to make, amend, interpret and enforce all appropriate rules and
regulations for the administration of this Plan and to utilize its discretion
to decide or resolve any and all questions, including but not limited to
eligibility for benefits and interpretations of this Plan and its terms, as may
arise in connection with the Plan. Claims for benefits shall be filed with the
Committee and resolved in accordance with the claims procedures in Article XII.


 


9.2           Expenses of Administration. The
Participating Employers shall: (i) pay all reasonable expenses and fees of
the Committee, (ii) indemnify the Committee (including individuals serving
as Committee) against any costs, expenses and liabilities including, without
limitation, attorneys’ fees and expenses arising in connection with the
performance of the Committee hereunder, except with respect to matters
resulting from the Committee’s gross negligence or willful misconduct and (iii) supply
full and timely information to the Committee on all matters related to the
Plan, any rabbi trust, Participants, Beneficiaries and Accounts as the
Committee may reasonably require.


 


9.3           Withholding. The Participating
Employers shall have the right to withhold from any payment due under the Plan
(or with respect to any amounts credited to the Plan) any taxes required by law
to be withheld in respect of such payment (or credit). Withholdings with
respect to amounts credited to the Plan shall be deducted from Compensation that
has not been deferred to the Plan.


 


9.4           Indemnification. The Participating
Employers shall indemnify and hold harmless each employee, officer, director,
agent or organization, to whom or to which are delegated duties,
responsibilities, and authority under the Plan or otherwise with respect to
administration of the Plan, including, without limitation, the Committee and
its agents, against all claims, liabilities, fines and penalties, and all
expenses reasonably incurred by or imposed upon him or it (including but not
limited to reasonable attorney fees) which arise as a result of his or its
actions or failure to act in connection with the operation and administration
of the Plan to the extent lawfully allowable and to the extent that such claim,
liability, fine, penalty, or expense is not paid for by liability insurance
purchased or paid for by the Participating Employer. Notwithstanding the
foregoing, the Participating Employer shall not indemnify any person or
organization if his or its actions or failure to act are due to gross
negligence or willful misconduct or for any such amount incurred through any
settlement or compromise of any action unless the Participating Employer
consents in writing to such settlement or compromise. Nor shall the 


 


21

















 


Participating Employers have any obligation to indemnify the persons
named herein for income taxes (and interest and penalties associated with such
taxes) incurred with respect to Account balances distributed under this plan to
such persons in their capacity as Participants.


 


9.5           Delegation of Authority. In the
administration of this Plan, the Committee may, from time to time, employ
agents and delegate to them such administrative duties as it sees fit, and may
from time to time consult with legal counsel who shall be legal counsel to the
Company.


 


9.6           Binding Decisions or
Actions. The decision or action of the Committee in respect of any question
arising out of or in connection with the administration, interpretation and
application of the Plan and the rules and regulations thereunder shall be
final and conclusive and binding upon all persons having any interest in the
Plan.


 


9.7           Expenses.  The expenses of administering the Plan shall
be paid by the Company, which shall have a right to contribution and
reimbursement from Participating Employers for the expenses so paid on behalf
of Participants employed (or formerly employed) by that Participating Employer.


 


ARTICLE
X


 


Amendment and Termination


 


10.1         Amendment and Termination. The Company
may at any time and from time to time amend the Plan or may terminate the Plan
as provided in this Article X. Each Participating Employer may also
terminate its participation in the Plan.


 


10.2         Amendments. The Company, by action
taken by its Board of Directors or Chief Executive Officer, may amend the Plan
at any time and for any reason, provided that any such amendment shall not
reduce the vested Account Balances of any Participant accrued as of the date of
any such amendment or restatement (as if the Participant had incurred a
voluntary Separation from Service on such date) or reduce any rights of a
Participant under the Plan or other Plan features with respect to Deferrals
made prior to the date of any such amendment or restatement without the consent
of the Participant. The Board of Directors of the Company or Chief Executive
Officer of the Company may delegate to the Committee the authority to amend the
Plan without the consent of the Board of Directors or Chief Executive Officer
for the purpose of (i) conforming the Plan to the requirements of law, (ii) facilitating
the administration of the Plan, (iii) clarifying provisions based on the
Committee’s interpretation of the document and (iv) making such other
amendments as the Board of Directors may authorize.


 


10.3         Termination. The Company, by action
taken by its Board of Directors, may terminate the Plan and pay Participants
and Beneficiaries their Account Balances in a single lump sum at any time, to
the extent and in accordance with Treasury Regulation Section 1.409A-3(j)(4)(ix).


 


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If a Participating Employer terminates its participation in the Plan,
the benefits of affected Employees shall be paid at the time provided in Article VI.


 


10.4         Accounts Taxable Under Code Section 409A.
The Plan is intended to constitute a plan of deferred compensation that meets
the requirements for deferral of income taxation under Code Section 409A.
The Committee, pursuant to its authority to interpret the Plan, may sever from
the Plan or any Compensation Deferral Agreement any provision or exercise of a
right that otherwise would result in a violation of Code Section 409A.


 


ARTICLE
XI


 


Informal Funding


 


11.1         General Assets. Obligations established
under the terms of the Plan may be satisfied from the general funds of the
Participating Employers, or a trust described in this Article XI. No
Participant, spouse or Beneficiary shall have any right, title or interest
whatever in assets of the Participating Employers. Nothing contained in this
Plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, or a fiduciary relationship, between
the Participating Employers and any Employee, spouse, or Beneficiary. To the
extent that any person acquires a right to receive payments hereunder, such
rights are no greater than the right of an unsecured general creditor of the
Participating Employer.


 


11.2         Rabbi Trust. A Participating Employer
may, in its sole discretion, establish a grantor trust, commonly known as a
rabbi trust, as a vehicle for accumulating assets to pay benefits under the
Plan. Payments under the Plan may be paid from the general assets of the
Participating Employer or from the assets of any such rabbi trust. Payment from
any such source shall reduce the obligation owed to the Participant or
Beneficiary under the Plan.


 


ARTICLE
XII


 


Claims


 


12.1         Filing a Claim. Any controversy or
claim arising out of or relating to the Plan shall be filed in writing with the
Committee which shall make all determinations concerning such claim. Any claim
filed with the Committee and any decision by the Committee denying such claim
shall be in writing and shall be delivered to the Participant or Beneficiary
filing the claim (the “Claimant”).


 


(a)           In General.
Notice of a denial of benefits (other than Disability benefits) will be
provided within ninety (90) days of the Committee’s receipt of the Claimant’s
claim for benefits. If the Committee determines that it needs additional time
to review the claim, the Committee will provide the Claimant with a notice of
the extension before the end of the initial ninety (90) day period. The
extension will not be more than ninety (90) days from the end of the initial
ninety (90) day period and the notice of extension will explain the special
circumstances that 


 


23

















 


require the extension and the date by which the Committee expects to
make a decision.


 


(b)           Disability Benefits.
Notice of denial of Disability benefits will be provided within forty-five (45)
days of the Committee’s receipt of the Claimant’s claim for Disability
benefits. If the Committee determines that it needs additional time to review
the Disability claim, the Committee will provide the Claimant with a notice of
the extension before the end of the initial forty-five (45) day period. If the
Committee determines that a decision cannot be made within the first extension
period due to matters beyond the control of the Committee, the time period for
making a determination may be further extended for an additional thirty (30)
days. If such an additional extension is necessary, the Committee shall notify
the Claimant prior to the expiration of the initial thirty (30) day extension.
Any notice of extension shall indicate the circumstances necessitating the
extension of time, the date by which the Committee expects to furnish a notice
of decision, the specific standards on which such entitlement to a benefit is
based, the unresolved issues that prevent a decision on the claim and any
additional information needed to resolve those issues. A Claimant will be
provided a minimum of forty-five (45) days to submit any necessary additional
information to the Committee. In the event that a thirty (30) day extension is
necessary due to a Claimant’s failure to submit information necessary to decide
a claim, the period for furnishing a notice of decision shall be tolled from
the date on which the notice of the extension is sent to the Claimant until the
earlier of the date the Claimant responds to the request for additional
information or the response deadline.


 


(c)           Contents of Notice.
If a claim for benefits is completely or partially denied, notice of such
denial shall be in writing and shall set forth the reasons for denial in plain
language. The notice shall (i) cite the pertinent provisions of the Plan
document and (ii) explain, where appropriate, how the Claimant can perfect
the claim, including a description of any additional material or information necessary
to complete the claim and why such material or information is necessary. The
claim denial also shall include an explanation of the claims review procedures
and the time limits applicable to such procedures, including a statement of the
Claimant’s right to bring a civil action under Section 502(a) of
ERISA following an adverse decision on review. In the case of a complete or
partial denial of a Disability benefit claim, the notice shall provide a
statement that the Committee will provide to the Claimant, upon request and
free of charge, a copy of any internal rule, guideline, protocol, or other
similar criterion that was relied upon in making the decision.


 


12.2         Appeal of Denied Claims. A Claimant
whose claim has been completely or partially denied shall be entitled to appeal
the claim denial by filing a written appeal with a committee designated to hear
such appeals (the “Appeals Committee”). A Claimant who timely requests a review
of the denied claim (or his or her authorized representative) may review, upon
request and free of charge, copies of all documents, records and other
information relevant to the denial and may submit written comments, documents,
records 


 


24

















 


and other information relevant to the claim to the Appeals Committee.
All written comments, documents, records, and other information shall be
considered “relevant” if the information (i) was relied upon in making a
benefits determination,(ii) was submitted, considered or generated in the
course of making a benefits decision regardless of whether it was relied upon
to make the decision, or (iii) demonstrates compliance with administrative
processes and safeguards established for making benefit decisions. The Appeals
Committee may, in its sole discretion and if it deems appropriate or necessary,
decide to hold a hearing with respect to the claim appeal.


 


(a)           In General.
Appeal of a denied benefits claim (other than a Disability benefits claim) must
be filed in writing with the Appeals Committee no later than sixty (60) days
after receipt of the written notification of such claim denial. The Appeals
Committee shall make its decision regarding the merits of the denied claim
within sixty (60) days following receipt of the appeal (or within one hundred
and twenty (120) days after such receipt, in a case where there are special
circumstances requiring extension of time for reviewing the appealed claim). If
an extension of time for reviewing the appeal is required because of special
circumstances, written notice of the extension shall be furnished to the
Claimant prior to the commencement of the extension. The notice will indicate
the special circumstances requiring the extension of time and the date by which
the Appeals Committee expects to render the determination on review. The review
will take into account comments, documents, records and other information
submitted by the Claimant relating to the claim without regard to whether such
information was submitted or considered in the initial benefit determination.


 


(b)           Disability
Benefits. Appeal of a denied Disability benefits claim must be filed
in writing with the Appeals Committee no later than one hundred eighty (180)
days after receipt of the written notification of such claim denial. The review
shall be conducted by the Appeals Committee (exclusive of the person who made
the initial adverse decision or such person’s subordinate). In reviewing the
appeal, the Appeals Committee shall (i) not afford deference to the
initial denial of the claim, (ii) consult a medical professional who has
appropriate training and experience in the field of medicine relating to the
Claimant’s disability and who was neither consulted as part of the initial
denial nor is the subordinate of such individual and (iii) identify the
medical or vocational experts whose advice was obtained with respect to the
initial benefit denial, without regard to whether the advice was relied upon in
making the decision. The Appeals Committee shall make its decision regarding
the merits of the denied claim within forty-five (45) days following receipt of
the appeal (or within ninety (90) days after such receipt, in a case where
there are special circumstances requiring extension of time for reviewing the
appealed claim). If an extension of time for reviewing the appeal is required
because of special circumstances, written notice of the extension shall be
furnished to the Claimant prior to the commencement of the extension. The
notice will indicate the special circumstances requiring the extension of time
and the date by which the Appeals Committee expects to render the determination
on review. Following its review of any additional information submitted by the 


 


25

















 


Claimant, the Appeals Committee shall render
a decision on its review of the denied claim.


 


(c)           Contents of
Notice. If a benefits claim is completely or partially denied on
review, notice of such denial shall be in writing and shall set forth the
reasons for denial in plain language.


 


The decision on review shall set forth (i) the specific reason or
reasons for the denial, (ii) specific references to the pertinent Plan
provisions on which the denial is based, (iii) a statement that the
Claimant is entitled to receive, upon request and free of charge, reasonable
access to and copies of all documents, records, or other information relevant
(as defined above) to the Claimant’s claim, and (iv) a statement
describing any voluntary appeal procedures offered by the plan and a statement
of the Claimant’s right to bring an action under Section 502(a) of
ERISA.


 


(d)           For the denial of a
Disability benefit, the notice will also include a statement that the Appeals
Committee will provide, upon request and free of charge, (i) any internal
rule, guideline, protocol or other similar criterion relied upon in making the
decision, (ii) any medical opinion relied upon to make the decision and (iii) the
required statement under Section 2560.503-1(j)(5)(iii) of the
Department of Labor regulations.


 


12.3         Legal Action. A Claimant may not bring
any legal action, including commencement of any arbitration, relating to a
claim for benefits under the Plan unless and until the Claimant has followed
the claims procedures under the Plan and exhausted his or her administrative
remedies under such claims procedures.


 


If a Participant or Beneficiary prevails in a legal proceeding brought
under the Plan to enforce the rights of such Participant or any other similarly
situated Participant or Beneficiary, in whole or in part, the Participating
Employer shall reimburse such Participant or Beneficiary for all legal costs,
expenses, attorneys’ fees and such other liabilities incurred as a result of
such proceedings. If the legal proceeding is brought in connection with a
Change in Control, or a “change in control” as defined in a rabbi trust
described in Section 11.2, the Participant or Beneficiary may file a claim
directly with the trustee for reimbursement of such costs, expenses and fees.
For purposes of the preceding sentence, the amount of the claim shall be
treated as if it were an addition to the Participant’s or Beneficiary’s Account


 


12.4         Discretion of Appeals Committee. All
interpretations, determinations and decisions of the Appeals Committee with
respect to any claim shall be made in its sole discretion, and shall be final
and conclusive.


 


26

















 


ARTICLE
XIII


 


General Provisions


 


13.1         Anti-assignment Rule. No interest of
any Participant, spouse or Beneficiary under this Plan and no benefit payable
hereunder shall be assigned as security for a loan, and any such purported
assignment shall be null, void and of no effect, nor shall any such interest or
any such benefit be subject in any manner, either voluntarily or involuntarily,
to anticipation, sale, transfer, assignment or encumbrance by or through any
Participant, spouse or Beneficiary. Notwithstanding anything to the contrary
herein, however, the Committee has the discretion to make payments to an
alternate payee in accordance with the terms of a domestic relations order (as
defined in Code Section 414(p)(1)(B)).


 


13.2         No Legal or Equitable Rights or Interest.
No Participant or other person shall have any legal or equitable rights or
interest in this Plan that are not expressly granted in this Plan.
Participation in this Plan does not give any person any right to be retained in
the service of the Participating Employer. The right and power of a
Participating Employer to dismiss or discharge an Employee is expressly
reserved. The Participating Employers make no representations or warranties as
to the tax consequences to a Participant or a Participant’s beneficiaries
resulting from a deferral of income pursuant to the Plan.


 


13.3         No Employment Contract. Nothing
contained herein shall be construed to constitute a contract of employment
between an Employee and a Participating Employer or to alter the “at-will”
employment relationship of each Participating Employer and its Employees.


 


13.4         Notice. Any notice or filing required
or permitted to be delivered to the Committee under this Plan shall be
delivered in writing, in person, or through such electronic means as is
established by the Committee. Notice shall be deemed given as of the date of
delivery or, if delivery is made by mail, as of the date shown on the postmark
on the receipt for registration or certification. Written transmission shall be
sent by certified mail to:


 


MERIT MEDICAL SYSTEMS, INC.


ATTN: VICE PRESIDENT OF HUMAN RESOURCES


1600 WEST MERIT PARKWAY

SOUTH JORDAN, UTAH 84095 USA


 


Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing or hand-delivered, or sent by
mail to the last known address of  the
Participant.


 


13.5         Headings. The headings of Sections are
included solely for convenience of reference, and if there is any conflict
between such headings and the text of this Plan, the text shall control.


 


13.6         Invalid or Unenforceable Provisions. If
any provision of this Plan shall be held invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provisions hereof and
the Committee may elect in its sole discretion to construe such invalid or 


 


27

















 


unenforceable provisions in a manner that conforms to applicable law or
as if such provisions, to the extent invalid or unenforceable, had not been
included.


 


13.7         Lost Participants or Beneficiaries. Any
Participant or Beneficiary who is entitled to a benefit from the Plan has the
duty to keep the Committee advised of his or her current mailing address. If
benefit payments are returned to the Plan or are not presented for payment
after a reasonable amount of time, the Committee shall presume that the payee
is missing. The Committee, after making such efforts as in its discretion it
deems reasonable and appropriate to locate the payee, shall stop payment on any
uncashed checks and may discontinue making future payments until contact with
the payee is restored.


 


13.8         Facility of Payment to a Minor.  If a distribution is to be made to a minor, or
to a person who is otherwise incompetent, then the Committee may, in its
discretion, make such distribution (i) to the legal guardian, or if none,
to a parent of a minor payee with whom the payee maintains his or her
residence, or (ii) to the conservator or committee or, if none, to the
person having custody of an incompetent payee. Any such distribution shall
fully discharge the Committee, the Company, and the Plan from further liability
on account thereof.


 


13.9         Governing Law. To the extent not
preempted or governed by federal law, the laws of the State of Utah shall
govern the construction and administration of the Plan.


 


IN WITNESS WHEREOF, the undersigned executed this Plan as of the
           day of
                              ,
2008, to be effective as of the Effective Date.


 


 


Merit Medical Systems, Inc.


 


	
  By:

  	
  Rashelle Perry

  
	
   

  
	
  Its:

  	
  Chief Legal Officer

  
	
   

  
	
   

  
	
  /s/ Rashelle Perry

  	
   

  	
  (Signature)

  
					



 


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