Exhibit 10.2


 


TRUST AGREEMENT


 


Between


 


 


dj Orthopedics, LLC


 


And


 


FIDELITY MANAGEMENT TRUST COMPANY


 


 


dj Orthopedics Executive Deferred Compensation Plan


 


 


TRUST


 


 


Dated as of October 1, 2005


 





















 


TABLE OF
CONTENTS


 


	
  Section

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  2

  	
  Trust

  	
   

  
	
  (a)

  	
  Establishment

  	
   

  
	
  (b)

  	
  Grantor
  Trust

  	
   

  
	
  (c)

  	
  Trust
  Assets

  	
   

  
	
  (d)

  	
  Non-Assignment

  	
   

  
	
   

  	
   

  	
   

  
	
  3

  	
  Payments to Sponsor

  	
   

  
	
   

  	
   

  	
   

  
	
  4

  	
  Disbursements

  	
   

  
	
  (a)

  	
  Directions from Administrator

  	
   

  
	
  (b)

  	
  Limitations

  	
   

  
	
   

  	
   

  	
   

  
	
  5

  	
  Investment of Trust

  	
   

  
	
  (a)

  	
  Selection of Investment Options

  	
   

  
	
  (b)

  	
  Available Investment Options

  	
   

  
	
  (c)

  	
  Investment Directions

  	
   

  
	
  (d)

  	
  Funding
  Mechanism

  	
   

  
	
  (e)

  	
  Mutual
  Funds

  	
   

  
	
  (f)

  	
  Trustee
  Powers

  	
   

  
	
   

  	
   

  	
   

  
	
  6

  	
  Recordkeeping and
  Administrative Services to Be Performed

  	
   

  
	
  (a)

  	
  General

  	
   

  
	
  (b)

  	
  Accounts

  	
   

  
	
  (c)

  	
  Inspection and Audit

  	
   

  
	
  (d)

  	
  Effect of Plan Amendment

  	
   

  
	
  (e)

  	
  Returns, Reports and Information

  	
   

  
	
   

  	
   

  	
   

  
	
  7

  	
  Compensation and Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
  8

  	
  Directions and Indemnification

  	
   

  
	
  (a)

  	
  Identity of Administrator

  	
   

  
	
  (b)

  	
  Directions from Administrator

  	
   

  
	
  (c)

  	
  Directions from Participants

  	
   

  
	
  (d)

  	
  Indemnification

  	
   

  
	
  (e)

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  
	
  9

  	
  Resignation or Removal of
  Trustee

  	
   

  
	
  (a)

  	
  Resignation and Removal.

  	
   

  
	
  (b)

  	
  Termination

  	
   

  
	
  (c)

  	
  Notice
  Period

  	
   

  
	
  (d)

  	
  Transition Assistance

  	
   

  
	
  (e)

  	
  Failure to Appoint Successor

  	
   

  
	
   

  	
   

  	
   

  
	
  10

  	
  Successor Trustee

  	
   

  
	
  (a)

  	
  Appointment

  	
   

  
	
  (b)

  	
  Acceptance

  	
   

  
	
  (c)

  	
  Corporate
  Action

  	
   

  
	
   

  	
   

  	
   

  
	
  11

  	
  Resignation, Removal, and
  Termination Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  12

  	
  Duration

  	
   

  



 


i





















 


	
  13

  	
  Insolvency of Sponsor

  	
   

  
	
   

  	
   

  	
   

  
	
  14

  	
  Amendment or Modification

  	
   

  
	
   

  	
   

  	
   

  
	
  15

  	
  Electronic Services

  	
   

  
	
   

  	
   

  	
   

  
	
  16

  	
  General

  	
   

  
	
  (a)

  	
  Performance by Trustee, its
  Agents or Affiliates

  	
   

  
	
  (b)

  	
  Entire
  Agreement

  	
   

  
	
  (c)

  	
  Waiver

  	
   

  
	
  (d)

  	
  Successors and Assigns

  	
   

  
	
  (e)

  	
  Partial
  Invalidity

  	
   

  
	
  (f)

  	
  Section Headings

  	
   

  
	
   

  	
   

  	
   

  
	
  17

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  
	
  18

  	
  Force
  Majeure

  	
   

  
	
   

  	
   

  	
   

  
	
  19

  	
  Confidentiality

  	
   

  
	
   

  	
   

  	
   

  
	
  20

  	
  Governing
  Law

  	
   

  
	
  (a)

  	
  Massachusetts Law Controls

  	
   

  
	
  (b)

  	
  Trust Agreement Controls

  	
   

  



 


ii





















 


  TRUST AGREEMENT,
dated as of October 1, 2005, between dj Orthopedics, LLC a Delaware
corporation, having an office at 2985 Scott Street, Vista, CA 92081 (the “Sponsor”),
and FIDELITY MANAGEMENT TRUST  COMPANY, a Massachusetts trust company,
having an office at 82 Devonshire Street, Boston, Massachusetts 02109 (the “Trustee”).


 


WITNESSETH:


 


WHEREAS,
the Sponsor is the sponsor of the dj Orthopedics Executive Deferred
Compensation Plan (the “Plan”); and


 


WHEREAS,
the Sponsor wishes to establish an irrevocable trust and to
contribute to the trust assets that shall be held therein, subject to the
claims of Sponsor’s creditors in the event of Sponsor’s Insolvency, as herein
defined, until paid to Participants and their beneficiaries in such manner and
at such times as specified in the Plan; and


 


WHEREAS,
it is the intention of the parties that this Trust shall constitute an unfunded
arrangement and shall not affect the status of the Plan as an unfunded plan
maintained for the purpose of providing deferred compensation for a select
group of management or highly compensated employees for purposes of Title I of
the Employee Retirement Income Security Act of 1974 (“ERISA”); and


 


WHEREAS,
it is the intention of the Sponsor to make contributions to the trust to
provide itself with a source of funds to assist it in the meeting of its
liabilities under the Plan; and


 


WHEREAS,
the Trustee is willing to hold and invest the aforesaid plan assets in trust
among several investment options selected by the Sponsor; and


 


WHEREAS,
the Sponsor wishes to have the Trustee perform certain ministerial
recordkeeping and administrative functions under the Plan; and


 


WHEREAS,
dj Orthopedics, LLC (the “Administrator”) is the administrator of the Plan; and


 


WHEREAS,
the Trustee is willing to perform recordkeeping and administrative services for
the Plan if the services are purely ministerial in nature and are provided
within a framework of plan provisions, guidelines and interpretations conveyed
in writing to the Trustee by the Administrator.


 


NOW,
THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the Trustee
agree as follows:


 


1





















 


1                         Definitions


 


The following terms as used in this Trust Agreement have the meaning
indicated unless the context clearly requires otherwise:


 


(a)                      “Administrator”
shall mean, with respect to the Plan, the person or entity which is the “administrator”
of such Plan.


 


(b)                     “Agreement”
shall mean this Trust Agreement, as the same may be amended and in effect from
time to time.


 


(c)                        “Business
Day” shall mean any day on which the New York Stock Exchange (NYSE) is
open.


 


(d)                     “Code”
shall mean the Internal Revenue Code of 1986, as it has been or may be amended
from time to time.


 


(e)                      “ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as it has been
or may be amended from time to time.


 


(f)                        “Fidelity
Mutual Fund” shall mean any investment company advised by Fidelity
Management & Research Company or any of its affiliates.


 


(g)                     “Mutual
Fund” shall refer both to Fidelity Mutual Funds and Non-Fidelity Mutual
Funds.


 


(h)                     “Non-Fidelity
Mutual Fund” shall mean certain investment companies not advised by Fidelity
Management & Research Company or any of its affiliates.


 


(i)                         “Participant”
shall mean, with respect to the Plan, any employee (or former employee) with an
account under the Plan, which has not yet been fully distributed and/or
forfeited, and shall include the designated beneficiary(ies) with respect to
the account of any deceased employee (or deceased former employee) until such
account has been fully distributed and/or forfeited.


 


(j)                         “Permissible
Investment” shall mean the investments specified by the Employer as
available for investment of assets of the Trust and agreed to by the Trustee
and the Prototype Sponsor. The Permissible Investments under the Plan shall be
listed in the Service Agreement.


 


(k)                      “Plan”
shall mean the dj Orthopedics Executive Deferred Compensation Plan.


 


(l)                         “Reconciliation
Period” shall mean the period beginning on the date of the initial transfer
of assets to the Trust and ending on the date of the completion of the
reconciliation of Participant records.


 


(m)                   “Reporting
Date” shall mean the last day of each calendar quarter, the date as of
which the Trustee resigns or is removed pursuant to this Agreement and the date
as of which this Agreement terminates pursuant to Section 9 hereof.


 


(n)                     “Service
Agreement” shall mean the agreement between the Trustee and the Sponsor for
the Trustee, through certain affiliates and related companies, to provide
administrative and recordkeeping services for the Plan.


 


(o)                     “Sponsor”
shall mean dj Orthopedics, LLC a Delaware corporation, or any successor to all
or substantially all of its businesses which, by agreement, operation of law or
otherwise, assumes the responsibility of the Sponsor under this Agreement.


 


(p)                     “Trust”
shall mean the dj Orthopedics Executive Deferred Compensation Plan Trust, being
the trust established by the Sponsor and the Trustee pursuant to the provisions
of this Agreement.


 


(q)                     “Trustee”
shall mean Fidelity Management Trust Company, a Massachusetts trust company and
any successor to all or substantially all of its trust business.  The term Trustee shall also include any
successor trustee appointed pursuant to this agreement to the extent such
successor agrees to serve as Trustee under this Agreement.


 


2





















 


2                 Trust


 


(a)          Establishment


 


The Sponsor hereby
establishes the Trust, with the Trustee. 
The Trust shall consist of an initial contribution of money or other
property acceptable to the Trustee in its sole discretion, made by the Sponsor
or transferred from a previous trustee under the Plan, such additional sums of
money as shall from time to time be delivered to the Trustee under the Plan,
all investments made therewith and proceeds thereof, and all earnings and
profits thereon, less the payments that are made by the Trustee as provided
herein, without distinction between principal and income.  The Trustee hereby accepts the Trust on the
terms and conditions set forth in this Agreement.  In accepting this Trust, the Trustee shall be
accountable for the assets received by it, subject to the terms and conditions
of this Agreement.


 


(b)          Grantor Trust


 


The Trust is intended to
be a grantor trust, of which the Sponsor is the grantor, within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the Code, as amended,
and shall be construed accordingly.


 


(c)          Trust Assets


 


The principal of the
Trust, and any earnings thereon shall be held separate and apart from other
funds of the Sponsor and shall be used exclusively for the uses and purposes of
Participants and general creditors as herein set forth.  Participants and their beneficiaries shall
have no preferred claim on, or any beneficial ownership interest in, any assets
of the Trust.  Any rights created under
the Plan and this Trust Agreement shall be mere unsecured contractual rights of
Participants and their beneficiaries against the Sponsor.  Any assets held by the Trust will be subject
to the claims of the Sponsor’s general creditors under federal and state law in
the event of Insolvency, as defined in this Agreement.


 


(d)          Non-Assignment


 


Benefit payments to
Participants and their beneficiaries funded under this Trust may not be
anticipated, assigned (either at law or in equity), alienated, pledged,
encumbered, or subjected to attachment, garnishment, levy, execution, or other
legal or equitable process.


 


3                 Payments to Sponsor


 


Except as provided under this Agreement, the Sponsor shall have no
right to retain or divert to others any of the Trust assets before all payment
of benefits have been made to the Participants and their beneficiaries pursuant
to the terms of the Plan.


 


4                 Disbursements


 


(a)          Directions from
Administrator


 


(i)                         If it is
indicated in the Service Agreement that the Trustee will make distributions of
Plan benefits directly to Participants and beneficiaries, the Trustee shall
disburse monies to Participants and their beneficiaries for benefit payments in
the amounts that the Administrator directs from time to time in writing.  The Trustee shall have no responsibility to
ascertain whether the Administrator’s direction complies with


 


3





















 


the terms of the Plan or
of any applicable law.  The Trustee shall
be responsible for Federal or State income tax reporting or withholding with
respect to such Plan benefits.  The
Trustee shall not be responsible for FICA (Social Security and Medicare), any
Federal or State unemployment or local tax with respect to Plan distributions.


 


(ii)                    If it is
indicated in the Service Agreement that the Sponsor shall be responsible for
making distributions of benefits to Participants and beneficiaries, then the
Trustee shall disburse monies to the Administrator for benefit payments in the
amounts that the Administrator directs from time to time in writing.  The Trustee shall have no responsibility to
ascertain whether the Administrator’s direction complies with the terms of the
Plan or any applicable law.  The Trustee
shall not be responsible for:  (1) making
benefit payments to Participants under the Plan, (2) any Federal, State or
local income tax reporting or withholding with respect to such Plan benefits,
and (3) FICA (Social Security and Medicare) or any Federal or State
unemployment tax with respect to Plan distributions.


 


(b)          Limitations


 


The Trustee shall not be
required to make any disbursement in excess of the net realizable value of the
assets of the Trust at the time of the disbursement.  The Trustee shall not be required to make any
disbursement in cash unless the Administrator has provided a written direction
as to the assets to be converted to cash for the purpose of making the
disbursement.


 


5                 Investment of Trust


 


(a)          Selection of Investment
Options


 


The Trustee shall have no
responsibility for the selection of investment options under the Trust and
shall not render investment advice to any person in connection with the
selection of such options.


 


(b)          Available Investment
Options


 


The Sponsor shall direct
the Trustee as to what investment options the Trust shall be invested in (i) during
the Reconciliation Period, and (ii) following the Reconciliation Period,
subject to the following limitations. 
The Sponsor may determine to offer as investment options only
Permissible Investments as described in the Service Agreement; provided,
however, that the Trustee shall not be considered a fiduciary with investment
discretion.  The Sponsor may add or
remove investment options with the consent of the Trustee and upon mutual
amendment of the Service Agreement to reflect such additions.


 


(c)          Investment Directions


 


In order to provide for
an accumulation of assets comparable to the contractual liabilities accruing
under the Plan, the Sponsor may direct the Trustee in writing to invest the
assets held in the Trust to correspond to the hypothetical investments made for
Participants in accordance with their direction under the Plan.


 


(d)          Funding Mechanism


 


The Sponsor’s designation
of available investment options under paragraphs (a) and (b) above,
the maintenance of accounts for each Plan Participant and the crediting of
investments to such accounts, and the exercise by Participants of any powers
relating to investments under this Section 5 are solely for the purpose of
providing a mechanism for measuring the obligation of the Sponsor to any
particular Participant under the applicable Plan.  As further provided in this Agreement, no
Participant or beneficiary will have any preferential claim to or beneficial
ownership interest in any asset or investment held in the Trust, and the rights
of any Participant and his or her beneficiaries under the applicable Plan and
this Agreement are solely those of an unsecured general creditor of the Sponsor
with respect to the benefits of the Participant under the Plan.


 


4





















 


(e)          Mutual Funds


 


The Sponsor hereby
acknowledges that it has received from the Trustee a copy of the prospectus for
each Mutual Fund selected by the Sponsor as a Plan investment option.  Trust investments in Mutual Funds shall be
subject to the following limitations:


 


(i)                                    Execution
of Purchases and Sales


 


Purchases and sales of Permissible Investments (other
than for Exchanges) shall be made on the date on which the Trustee receives
from the Sponsor in good order all information and documentation necessary to
accurately effect such purchases and sales (or in the case of a purchase, the
subsequent date on which the Trustee has received a wire transfer of funds
necessary to make such purchase). 
Exchanges of Permissible Investments shall be made on the same Business
Day that the Trustee receives a proper direction if received before market
close (generally 4:00 p.m. eastern time); if the direction is received
after market close (generally 4:00 p.m. eastern time), the exchange shall
be made the following Business Day.


 


(ii)                                  Voting


 


At the time of mailing of notice of each annual or
special stockholder’s meeting of any Mutual Fund, the Trustee shall send a copy
of the notice and all proxy solicitation materials to the Sponsor, together
with a voting direction form for return to the Trustee or its designee.  The Trustee shall vote the shares held in the
Trust in the manner as directed by the Sponsor. 
The Trustee shall not vote shares for which it has received no
corresponding directions from the Sponsor. 
The Sponsor shall also have the right to direct the Trustee as to the
manner in which all shareholder rights, other than the right to vote, shall be
exercised.  The Trustee shall have no
duty to solicit directions from the Sponsor.


 


(f)            Trustee Powers


 


The Trustee shall have
the following powers and authority:


 


(i)                       Subject to
paragraphs (b), (c) and (d) of this Section 5, to sell,
exchange, convey, transfer, or otherwise dispose of any property held in the
Trust, by private contract or at public auction.  No person dealing with the Trustee shall be
bound to see to the application of the purchase money or other property
delivered to the Trustee or to inquire into the validity, expediency, or
propriety of any such sale or other disposition.


 


(ii)                    To cause any
securities or other property held as part of the Trust to be registered in the
Trustee’s own name, in the name of one or more of its nominees, or in the
Trustee’s account with the Depository Trust Company of New York and to hold any
investments in bearer form, but the books and records of the Trustee shall at
all times show that all such investments are part of the Trust.


 


(iii)                 To keep that
portion of the Trust in cash or cash balances as the Sponsor or Administrator
may, from time to time, deem to be in the best interest of the Trust.


 


(iv)                To make, execute,
acknowledge, and deliver any and all documents of transfer or conveyance and to
carry out the powers herein granted.


 


(v)                   To borrow funds
from a bank or other financial institution not affiliated with the Trustee in
order to provide sufficient liquidity to process Plan transactions in a timely
fashion, provided that the cost of borrowing shall be allocated in a reasonable
fashion to the investment fund(s) in need of liquidity.


 


(vi)                To settle,
compromise, or submit to arbitration any claims, debts, or damages due to or
arising from the Trust; to commence or defend suits or legal or administrative
proceedings; to represent the Trust in all suits and legal and administrative
hearings; and to pay all reasonable expenses arising from any such action, from
the Trust if not paid by the Sponsor.


 


(vii)             To employ legal,
accounting, clerical, and other assistance as may be required in carrying out
the provisions of this Agreement and to pay their reasonable expenses and
compensation from the Trust if not paid by the Sponsor.


 


5





















 


(viii)          To do all other acts
although not specifically mentioned herein, as the Trustee may deem necessary
to carry out any of the foregoing powers and the purposes of the Trust.


 


Notwithstanding any
powers granted to Trustee pursuant to this Trust Agreement or to applicable
law, Trustee shall not have any power that could give this Trust the objective
of carrying on a business and dividing the gains therefrom, within the meaning
of Section 301.7701-2 of the Procedure and Administrative Regulations
promulgated pursuant to the Internal Revenue Code.


 


6                 Recordkeeping and
Administrative Services to Be Performed


 


(a)          General


 


The Trustee shall perform
those recordkeeping and administrative functions described in the Service
Agreement attached hereto.  These
recordkeeping and administrative functions shall be performed within the
framework of the Administrator’s written directions regarding the Plan’s
provisions, guidelines and interpretations.


 


(b)          Accounts


 


The Trustee shall keep
accurate accounts of all investments, receipts, disbursements, and other
transactions hereunder, and shall report the value of the assets held in the
Trust as of the last day of each fiscal quarter of the Plan and, if not on the
last day of a fiscal quarter, the date on which the Trustee resigns or is
removed as provided in this Agreement or is terminated as provided in this
Agreement.  Within thirty (30) days
following each Reporting Date or within sixty (60) days in the case of a
Reporting Date caused by the resignation or removal of the Trustee, or the
termination of this Agreement, the Trustee shall file with the Administrator a
written account setting forth all investments, receipts, disbursements, and
other transactions effected by the Trustee between the Reporting Date and the
prior Reporting Date, and setting forth the value of the Trust as of the
Reporting Date.  Except as otherwise
required under applicable law, upon the expiration of six (6) months from
the date of filing such account with the Administrator, the Trustee shall have
no liability or further accountability to anyone with respect to the propriety
of its acts or transactions shown in such account, except with respect to such
acts or transactions as to which the Sponsor shall within such six (6) month
period file with the Trustee written objections.


 


(c)          Inspection and Audit


 


All records generated by
the Trustee in accordance with paragraphs (a) and (b) shall be open
to inspection and audit, during the Trustee’s regular business hours prior to
the termination of this Agreement, by the Administrator or any person
designated by the Administrator.  Upon
the resignation or removal of the Trustee or the termination of this Agreement,
the Trustee shall provide to the Administrator, at no expense to the Sponsor,
in the format regularly provided to the Administrator, a statement of each
Participant’s accounts as of the resignation, removal, or termination, and the
Trustee shall provide to the Administrator or the Plan’s new recordkeeper such
further records as are reasonable, at the Sponsor’s expense.


 


(d)          Effect of Plan Amendment


 


The Trustee’s provision
of the recordkeeping and administrative services set forth in this Section shall
be conditioned on the Sponsor delivering to the Trustee a copy of any amendment
to the Plan as soon as administratively feasible following the amendment’s
adoption, and on the Administrator providing the Trustee on a timely basis with
all the information the Administrator deems necessary for the Trustee to
perform the recordkeeping and administrative services and such other
information as the Trustee may reasonably request.


 


6





















 


(e)          Returns, Reports and
Information


 


Except as set forth in the Service Agreement, the Administrator shall
be responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law.  The Trustee shall provide the Administrator
with such information as the Administrator may reasonably request to make these
filings.  The Administrator shall also be
responsible for making any disclosures to Participants required by law.


 


7                 Compensation and Expenses


 


Sponsor shall pay to
Trustee, within thirty (30) days of receipt of the Trustee’s bill, the fees for
services in accordance with the Service Agreement.  All fees for services are specifically
outlined in the Service Agreement and are based on any assumptions identified
therein.


 


All reasonable
expenses of plan administration as shown on the Service Agreement, as amended
from time to time, shall be a charge against and paid from the appropriate plan
Participants’ accounts, except to the extent such amounts are paid by the Plan
Sponsor in a timely manner.


 


All expenses of
the Trustee relating directly to the acquisition and disposition of investments
constituting part of the Trust, and all taxes of any kind whatsoever that may
be levied or assessed under existing or future laws upon or in respect of the
Trust or the income thereof, shall be a charge against and paid from the
appropriate Participants’ accounts.


 


8                 Directions and
Indemnification


 


(a)          Identity of
Administrator


 


The Trustee shall be
fully protected in relying on the fact that the Administrator under the Plan is
the individual or persons named as such above or such other individuals or
persons as the Sponsor may notify the Trustee in writing.


 


(b)          Directions from
Administrator


 


Whenever the
Administrator provides a direction to the Trustee, the Trustee shall not be
liable for any loss, or by reason of any breach, arising from the direction if
the direction is contained in a writing (or is oral and immediately confirmed
in a writing) signed by any individual whose name and signature have been
submitted (and not withdrawn) in writing to the Trustee by the Administrator in
the manner described in the Service Agreement, provided the Trustee reasonably
believes the signature of the individual to be genuine.  Such direction may be made via electronic
data transfer (“EDT”) in accordance with procedures agreed to by the
Administrator and the Trustee; provided, however, that the Trustee shall be
fully protected in relying on such direction as if it were a direction made in
writing by the Administrator.  The
Trustee shall have no responsibility to ascertain any direction’s (i) accuracy,
(ii) compliance with the terms of the Plan or any applicable law, or (iii) effect
for tax purposes or otherwise.


 


(c)          Directions from
Participants


 


The Trustee shall not be
liable for any loss, which arises, from any Participant’s exercise or
non-exercise of rights under this Agreement over the hypothetical assets in the
Participant’s accounts.


 


7





















 


(d)          Indemnification


 


The Sponsor shall
indemnify the Trustee against, and hold the Trustee harmless from, any and all
loss, damage, penalty, liability, cost, and expense, including without
limitation, reasonable attorneys’ fees and disbursements, that may be incurred
by, imposed upon, or asserted against the Trustee by reason of any claim,
regulatory proceeding, or litigation arising from any act done or omitted to be
done by any individual or person with respect to the Plan or Trust, excepting
only any and all loss, etc., arising solely from the Trustee’s negligence or bad
faith.


 


(e)          Survival


 


The provisions of this Section 8
shall survive the termination of this Agreement.


 


9                 Resignation or Removal of
Trustee


 


(a)          Resignation and Removal.


 


(i)        The
Trustee may resign at any time in accordance with the notice provisions set
forth below.


 


(ii)       The
Sponsor may remove the Trustee at any time in accordance with the notice
provisions set forth below.


 


(b)          Termination


 


This Agreement may be
terminated at any time by the Sponsor upon prior written notice to the Trustee
in accordance with the notice provisions set forth below.


 


(c)          Notice Period


 


In the event either party
desires to terminate this Agreement or any Services hereunder, the party shall
provide at least sixty-(60) days prior written notice of the termination date
to the other party; provided, however, that the receiving party may agree, in
writing, to a shorter notice period.


 


(d)          Transition Assistance


 


In the event of
termination of this Agreement, if requested by Sponsor, Fidelity shall assist
Sponsor in developing a plan for the orderly transition of the Plan Data, cash
and assets then constituting the Trustee and Services provided by Fidelity
hereunder to Sponsor or its designee. Fidelity shall provide such assistance
for a period not extending beyond sixty (60) days from the termination date of
this Agreement.  Fidelity shall provide
to Sponsor, or to any person designated by Sponsor, at a mutually agreeable
time, one file of the Plan Data prepared and maintained by Fidelity in the
ordinary course of business, in Fidelity’s format.  Fidelity may provide other or additional
transition assistance as mutually determined for additional fees, which shall
be due and payable by the Sponsor prior to any termination of this Agreement.


 


(e)          Failure to Appoint
Successor


 


If, by the termination
date, the Sponsor has not notified the Trustee in writing as to the individual
or entity to which the assets and cash are to be transferred and delivered, the
Trustee may bring an appropriate action or proceeding for leave to deposit the assets
and cash in a court of competent jurisdiction. 
The Trustee shall be reimbursed by the Sponsor for all costs and
expenses of the action or proceeding including, without limitation, reasonable
attorneys’ fees and disbursements.


 


8





















 


10          Successor Trustee


 


(a)          Appointment


 


If the office of Trustee
becomes vacant for any reason, the Sponsor may in writing appoint a successor
trustee under this Agreement.  The
successor trustee shall have all of the rights, powers, privileges,
obligations, duties, liabilities, and immunities granted to the Trustee under
this Agreement.  The successor trustee
and predecessor trustee shall not be liable for the acts or omissions of the
other with respect to the Trust.


 


(b)          Acceptance


 


When the successor
trustee accepts its appointment under this Agreement, title to and possession
of the Trust assets shall immediately vest in the successor trustee without any
further action on the part of the predecessor trustee.  The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or reasonably may
be requested in writing by the Sponsor or the successor trustee to vest title
to all Trust assets in the successor trustee or to deliver all Trust assets to
the successor trustee.


 


(c)          Corporate Action


 


Any successor of the
Trustee or successor trustee, through sale or transfer of the business or trust
department of the Trustee or successor trustee, or through reorganization,
consolidation, or merger, or any similar transaction, shall, upon consummation
of the transaction, become the successor trustee under this Agreement.


 


11          Resignation, Removal, and
Termination Notices


 


All notices of
resignation, removal, or termination under this Agreement must be in writing
and mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to the Sponsor at the address
designated in the Service Agreement, and to the Trustee c/o John M. Kimpel,
Fidelity Investments, 82 Devonshire Street, F7A, Boston, Massachusetts 02109,
or to such other addresses as the parties have notified each other of in the
foregoing manner.


 


12          Duration


 


This Trust shall continue
in effect without limit as to time, subject, however, to the provisions of this
Agreement relating to amendment, modification, and termination thereof.


 


13          Insolvency of Sponsor


 


(a)                      Trustee
shall cease disbursement of funds for payment of benefits to Participants and
their beneficiaries if the Sponsor is Insolvent.  Sponsor shall be considered “Insolvent” for
purposes of this Trust Agreement if (i) Sponsor is unable to pay its debts
as they become due, or (ii) Sponsor is subject to a pending proceeding as
a debtor under the United States Bankruptcy Code.


 


(b)                   All times during
the continuance of this Trust, the principal and income of the Trust shall be
subject to claims of general creditors of the Sponsor under federal and state
law as set forth below.


 


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(i)                      The
Board of Directors and the Chief Executive Officer of the Sponsor shall have
the duty to inform Trustee in writing of Sponsor’s Insolvency.  If a person claiming to be a creditor of the
Sponsor alleges in writing to Trustee that Sponsor has become Insolvent,
Trustee shall determine whether Sponsor is Insolvent and, pending such
determination, Trustee shall discontinue disbursements for payment of benefits
to Participants or their beneficiaries.


 


(ii)                   Unless Trustee
has actual knowledge of Sponsor’s Insolvency, or has received notice from
Sponsor or a person claiming to be a creditor alleging that Sponsor is
Insolvent, Trustee shall have no duty to inquire whether Sponsor is
Insolvent.  Trustee may in all events
rely on such evidence concerning Sponsor’s solvency as may be furnished to
Trustee and that provides Trustee with a reasonable basis for making a
determination concerning Sponsor’s solvency.


 


(iii)                If at any time
Trustee has determined that Sponsor is Insolvent, Trustee shall discontinue
disbursements for payments to Participants or their beneficiaries and shall
hold the assets of the Trust for the benefit of Sponsor’s general
creditors.  Nothing in this Trust
Agreement shall in any way diminish any rights of Participants or their
beneficiaries to pursue their rights as general creditors of Sponsor with
respect to benefits due under the Plan or otherwise.


 


(iv)               Trustee shall
resume disbursement for the payment of benefits to Plan Participants or their
beneficiaries in accordance with this Agreement only after Trustee has
determined that Sponsor is not Insolvent (or is no longer Insolvent).


 


(c)                    Provided that
there are sufficient assets, if Trustee discontinues the payment of benefits
from the Trust pursuant to (a) hereof and subsequently resumes such
payments, the first payment following such discontinuance shall include the
aggregate amount of all payments due to Participants or their beneficiaries
under the terms of the Plan for the period of such discontinuance, less the
aggregate amount of any payments made to Participants or their beneficiaries by
Sponsor in lieu of the payments provided for hereunder during any such period
of discontinuance.


 


14          Amendment or Modification


 


This Agreement may be
amended or modified at any time and from time to time only by an instrument
executed by both the Sponsor and the Trustee.


 


15          Electronic Services


 


(a)                      The Trustee
may provide communications and services (“Electronic Services”) and/or software
products (“Electronic Products”) via electronic media, including, but not
limited to Fidelity Plan Sponsor WebStation. 
The Sponsor and its agents agree to use such Electronic Services and
Electronic Products only in the course of reasonable administration of or
participation in the Plan and to keep confidential and not publish, copy, broadcast,
retransmit, reproduce, commercially exploit or otherwise re disseminate the
Electronic Products or Electronic Services or any portion thereof without the
Trustee’s written consent, except, in cases where Trustee has specifically
notified the Sponsor that the Electronic Products or Services are suitable for
delivery to Sponsor’s Participants, for non-commercial personal use by
Participants or beneficiaries with respect to their participation in the Plan
or for their other retirement planning purposes.


 


(b)                     The Sponsor
shall be responsible for installing and maintaining all Electronic Products,
(including any programming required to accomplish the installation) and for
displaying any and all content associated with Electronic Services on its
computer network and/or intranet so that such content will appear exactly as it
appears when delivered to Sponsor.  All
Electronic Products and Services shall be clearly identified as originating
from the Trustee or its affiliate.  The
Sponsor shall promptly remove Electronic Products or


 


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Services from its
computer network and/or intranet, or replace the Electronic Products or
Services with updated products or services provided by the Trustee, upon
written notification (including written notification via facsimile) by the
Trustee.


 


(c)                    All Electronic
Products shall be provided to the Sponsor without any express or implied legal
warranties or acceptance of legal liability by the Trustee, and all Electronic
Services shall be provided to the Sponsor without acceptance of legal liability
related to or arising out of the electronic nature of the delivery or provision
of such Services.  Except as otherwise
stated in this Agreement, no rights are conveyed to any property, intellectual
or tangible, associated with the contents of the Electronic Products or
Services and related material. The Trustee hereby grants to the Sponsor a
non-exclusive, non-transferable revocable right and license to use the
Electronic Products and Services in accordance with the terms and conditions of
this Agreement.


 


(d)                   To the extent
that any Electronic Products or Services utilize Internet services to transport
data or communications, the Trustee will take, and Sponsor agrees to follow,
reasonable security precautions, however, the Trustee disclaims any liability
for interception of any such data or communications. The Trustee reserves the
right not to accept data or communications transmitted via electronic media by
the Sponsor or a third party if it determines that the media does not provide
adequate data security, or if it is not administratively feasible for the
Trustee to use the data security provided. The Trustee shall not be responsible
for, and makes no warranties regarding access, speed or availability of
Internet or network services, or any other service required for electronic
communication.  The Trustee shall not be
responsible for any loss or damage related to or resulting from any changes or
modifications to the Electronic Products or Services after delivering it to the
Sponsor.


 


16          General


 


(a)          Performance by Trustee,
its Agents or Affiliates


 


The Sponsor acknowledges
and authorizes that the services to be provided under this Agreement shall be
provided by the Trustee, its agents or affiliates, including but not limited to
Fidelity Investments Institutional Operations Company, Inc. or its
successor, and that certain of such services may be provided pursuant to one or
more other contractual agreements or relationships.


 


(b)          Entire Agreement


 


This Agreement contains
all of the terms agreed upon between the parties with respect to the subject
matter hereof.


 


(c)          Waiver


 


No waiver by either party
of any failure or refusal to comply with an obligation hereunder shall be
deemed a waiver of any other or subsequent failure or refusal to so comply.


 


(d)          Successors and Assigns


 


The stipulations in this
Agreement shall inure to the benefit of, and shall bind, the successors and
assigns of the respective parties.


 


(e)          Partial Invalidity


 


If any term or provision
of this Agreement or the application thereof to any person or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,


 


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shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.


 


(f)            Section Headings


 


The headings of the
various sections and subsections of this Agreement have been inserted only for
the purposes of convenience and are not part of this Agreement and shall not be
deemed in any manner to modify, explain, expand or restrict any of the
provisions of this Agreement.


 


17          Assignment


 


This Agreement, and any
of its rights and obligations hereunder, may not be assigned by any party
without the prior written consent of the other party(ies), and such consent may
be withheld in any party’s sole discretion. 
Notwithstanding the foregoing, Trustee may assign this Agreement in
whole or in part, and any of its rights and obligations hereunder, to a
subsidiary or affiliate of Trustee without consent of the Sponsor.  All provisions in this Agreement shall extend
to and be binding upon the parties hereto and their respective successors and
permitted assigns.


 


18          Force Majeure


 


No party shall be deemed
in default of this Agreement to the extent that any delay or failure in
performance of its obligation(s) results, without its fault or negligence, from
any cause beyond its reasonable control, such as acts of God, acts of civil or
military authority, embargoes, epidemics, war, riots, insurrections, fires,
explosions, earthquakes, floods, unusually severe weather conditions, power
outages or strikes.  This clause shall
not excuse any of the parties to the Agreement from any liability which results
from failure to have in place reasonable disaster recovery and safeguarding
plans adequate for protection of all data each of the parties to the Agreement
are responsible for maintaining for the Plan.


 


19          Confidentiality


 


Both parties to this
Agreement recognize that in the course of implementing and providing the
services described herein, each party may disclose to the other confidential
information.  All such confidential
information, individually and collectively, and other proprietary information
disclosed by either party shall remain the sole property of the party
disclosing the same, and the receiving party shall have no interest or rights
with respect thereto if so designated by the disclosing party to the receiving
party.  Each party agrees to maintain all
such confidential information in trust and confidence to the same extent that
it protects its own proprietary information, and not to disclose such
confidential information to any third party without the written consent of the
other party.  Each party further agrees
to take all reasonable precautions to prevent any unauthorized disclosure of
confidential information.  In addition,
each party agrees not to disclose or make public to anyone, in any manner, the
terms of this Agreement, except as required by law, without the prior written
consent of the other party.


 


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20          Governing Law


 


(a)          Massachusetts Law
Controls


 


This Agreement is being made in the Commonwealth of Massachusetts, and
the Trust shall be administered as a Massachusetts trust.  The validity, construction, effect, and
administration of this Agreement shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Massachusetts, except to the
extent those laws are superseded under Section 514 of ERISA.


 


(b)          Trust Agreement Controls


 


The Trustee is not a party to the Plan, and in the event of any
conflict between the provisions of the Plan and the provisions of this
Agreement, the provisions of this Agreement shall control.


 


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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their duly
authorized officers as of the day and year first above written.


 


	
  Plan Sponsor Name:

  	
   

  	
     dj
  Orthopedics, LLC

  



 


 


	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date:

  	
   

  



 


 


 


	
   

  	
   

  	
   

  	
  FIDELITY
  MANAGEMENT TRUST COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date:

  	
   

  



 


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  IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their duly
authorized officers as of the day and year first above written.


 


	
  Plan Sponsor Name:

  	
   

  	
     dj
  Orthopedics, LLC

  



 


 


	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date:

  	
   

  



 


 


 


	
   

  	
   

  	
   

  	
  FIDELITY
  MANAGEMENT TRUST COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date:

  	
   

  



 


15