Exhibit 10.1


 


The
CORPORATEplan for RetirementSM


EXECUTIVE
PLAN


 


BASIC
PLAN DOCUMENT


 


 


 


IMPORTANT
NOTE


 


This document has not been
approved by the Department of Labor, the Internal Revenue Service or any other
governmental entity.  An Adopting
Employer must determine whether the plan is subject to the Federal securities
laws and the securities laws of the various states.  An Adopting Employer may not rely on this
document to ensure any particular tax consequences or to ensure that the Plan
is “unfunded and maintained primarily for the purpose of providing deferred
compensation to a select group of management or highly compensated employees”
under the Employee Retirement Income Security Act with respect to the Employer’s
particular situation.  Fidelity Management
Trust Company, its affiliates and employees cannot provide you with legal
advice in connection with the execution of this document.  This document should be reviewed by the
Employer’s attorney prior to execution.


 





















 


CORPORATEplan
for EXECUTIVE


BASIC PLAN
DOCUMENT


 


	
  ARTICLE 1

  	
   

  
	
  ADOPTION AGREEMENT

  	
   

  
	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
  DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  2.01 - Definitions

  	
   

  
	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
  PARTICIPATION

  	
   

  
	
   

  	
   

  
	
  3.01 - Date of Participation

  	
   

  
	
  3.02 - Resumption of
  Participation Following Re employment

  	
   

  
	
  3.03 - Cessation or
  Resumption of Participation Following a Change in Status

  	
   

  
	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
  CONTRIBUTIONS

  	
   

  
	
   

  	
   

  
	
  4.01 - Deferral
  Contributions

  	
   

  
	
  4.02 - Matching
  Contributions

  	
   

  
	
  4.03 - Employer
  Contributions

  	
   

  
	
  4.04 - Time of Making
  Contributions

  	
   

  
	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
  PARTICIPANTS’ ACCOUNTS

  	
   

  
	
   

  	
   

  
	
  5.01 - Individual Accounts

  	
   

  
	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
  INVESTMENT OF CONTRIBUTIONS

  	
   

  
	
   

  	
   

  
	
  6.01 - Manner of Investment

  	
   

  
	
  6.02 - Investment Decisions

  	
   

  
	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
  RIGHT TO BENEFITS

  	
   

  
	
   

  	
   

  
	
  7.01 - Normal or Early
  Retirement

  	
   

  
	
  7.02 - Death

  	
   

  
	
  7.03 - Other Termination of
  Employment

  	
   

  
	
  7.04 - Separate Account

  	
   

  
	
  7.05 - Forfeitures

  	
   

  
	
  7.06 - Adjustment for
  Investment Experience

  	
   

  
	
  7.07 - Unforeseeable
  Emergency Withdrawals

  	
   

  
	
  7.08 - Change in Control

  	
   

  
	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
  DISTRIBUTION OF BENEFITS
  PAYABLE AFTER TERMINATION OF SERVICE

  	
   

  
	
   

  	
   

  
	
  8.01 - Distribution of
  Benefits to Participants and Beneficiaries

  	
   

  
	
  8.02 - Determination of
  Method of Distribution

  	
   

  
	
  8.03 - Notice to Trustee

  	
   

  
	
  8.04 - Time of Distribution

  	
   

  



 


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  ARTICLE 9

  	
   

  
	
  AMENDMENT AND TERMINATION

  	
   

  
	
   

  	
   

  
	
  9.01 - Amendment by Employer

  	
   

  
	
  9.02 - Retroactive
  Amendments

  	
   

  
	
  9.03 - Termination

  	
   

  
	
  9.04 - Distribution Upon
  Termination of the Plan

  	
   

  
	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  10.01 - Communication to
  Participants

  	
   

  
	
  10.02 - Limitation of Rights

  	
   

  
	
  10.03 - Nonalienability of
  Benefits

  	
   

  
	
  10.04 - Facility of Payment

  	
   

  
	
  10.05 - Information between
  Employer and Trustee

  	
   

  
	
  10.06 - Notices

  	
   

  
	
  10.07 - Governing Law

  	
   

  
	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
  PLAN ADMINISTRATION

  	
   

  
	
   

  	
   

  
	
  11.01 - Powers and responsibilities
  of the Administrator

  	
   

  
	
  11.02 - Nondiscriminatory
  Exercise of Authority

  	
   

  
	
  11.03 - Claims and Review
  Procedures

  	
   

  



 


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PREAMBLE


 


It is the intention of the
Employer to establish herein an unfunded plan maintained solely for the purpose
of providing deferred compensation for a select group of management or highly
compensated employees as provided in ERISA.


 


Article 1. 
Adoption Agreement.


 


 


Article 2. 
Definitions.


 


 


2.01.  Definitions.


 


(a)                    Wherever used
herein, the following terms have the meanings set forth below, unless a
different meaning is clearly required by the context:


 


(1)  “Account” means
an account established on the books of the Employer for the purpose of
recording amounts credited on behalf of a Participant and any income, expenses,
gains or losses included thereon.


 


(2)  “Administrator”
means the Employer adopting this Plan, or other person designated by the
Employer in

Section 1.01(b).


 


(3)  “Adoption
Agreement” means Article 1, under which the Employer establishes and
adopts or amends the Plan and designates the optional provisions selected by
the Employer.  The provisions of the
Adoption Agreement shall be an integral part of the Plan.


 


(4)  “Beneficiary”
means the person or persons entitled under Section 7.02 to receive
benefits under the Plan upon the death of a Participant.


 


(5)  “Bonus” means
any performance-based Compensation based on services performed for the Employer
over a period of at least 12 months.


 


(6) “Change of
Control” means a change in the ownership or effective control of the Employer,
or a substantial portion of the Employer’s assets as defined in the regulations
under Code Section 409A.


 


(7)    “Code” means the Internal Revenue Code of
1986, as amended from time to time.


 


(8)  “Compensation”
means for purposes of Article 4 (Contributions) wages as defined in Section 3401(a) of
the Code and all other payments of compensation to an employee by the Employer
(in the course of the Employer’s trade or business) for which the Employer is
required to furnish the employee a written statement under Section 6041(d) and
6051(a)(3) of the Code, excluding any items elected by the Employer in Section 1.04,
reimbursements or other expense allowances, fringe benefits (cash and
non-cash), moving expenses, deferred compensation and welfare benefits, but
including amounts that are not includable in the gross income of the
Participant under a salary reduction agreement by reason of the application of
Sections 125, 132(f)(4), 402(e)(3), 402(h) or 403(b) of the
Code.  Compensation shall be determined
without regard to any rules under Section 3401(a) of the Code
that limit the remuneration included in wages based on the nature or location
of the employment or the services performed (such as the exception for
agricultural labor in Section 3401(a)(2) of the Code).


 





















 


Compensation
shall also include amounts deferred pursuant to an election under Section 4.01.


 


In the
case of any Self-Employed Individual or an Owner-Employee, Compensation means
the Self-Employed Individual’s Earned Income.


 


(9)          “Earned Income” means
the net earnings of a Self-Employed Individual derived from the trade or
business with respect to which the Plan is established and for which the
personal services of such individual are a material income-providing factor,
excluding any items not included in gross income and the deductions allocated
to such items, except that for taxable years beginning after December 31,
1989 net earnings shall be determined with regard to the deduction allowed
under Section 164(f) of the Code, to the extent applicable to the
Employer.  Net earnings shall be reduced
by contributions of the Employer to any qualified plan, to the extent a
deduction is allowed to the Employer for such contributions under Section 404
of the Code.


 


(10)  “Employee”
means any employee of the Employer, Self-Employed Individual or Owner-Employee.


 


(11)  “Employer” means the employer named in Section 1.02(a) and
any Related Employers designated in 

Section 1.02(b).


 


(12) “Employment
Commencement Date” means the date on which the Employee first performs an Hour
of Service.


 


(13) “Entry Date” means
the date(s) designated in Section 1.03(b).


 


(14)  “ERISA”
means the Employee Retirement Income Security Act of 1974, as from time to time
amended.


 


(15)  “Fund Share” means the share, unit, or other
evidence of ownership in a Permissible Investment.


 


(16)  “Hour of Service” means, with respect to any
Employee,


 


(A)                              Each
hour for which the Employee is directly or indirectly paid, or entitled to
payment, for the performance of duties for the Employer or a Related Employer,
each such hour to be credited to the Employee for the computation period in
which the duties were performed;


 


(B)                                Each
hour for which the Employee is directly or indirectly paid, or entitled to
payment, by the Employer or Related Employer (including payments made or due
from a trust fund or insurer to which the Employer contributes or pays
premiums) on account of a period of time during which no duties are performed
(irrespective of whether the employ-ment relationship has terminated) due to
vacation, holiday, illness, incapacity, disability, layoff, jury duty, military
duty, or leave of absence, each such hour to be credited to the Employee for
the Eligibility Computation Period in which such period of time occurs, subject
to the following rules:


 


(i)  No more than
501 Hours of Service shall be credited under this paragraph (B) on account
of any single continuous period during which the Employee performs no duties;


 


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(ii)  Hours of
Service shall not be credited under this paragraph (B) for a payment which
solely reimburses the Employee for medically-related expenses, or which is made
or due under a plan maintained solely for the purpose of complying with
applicable workmen’s compensation, unemployment compensation or disability
insurance laws; and


 


(iii)  If the period
during which the Employee performs no duties falls within two or more
computation periods and if the payment made on account of such period is not
calculated on the basis of units of time, the Hours of Service credited with
respect to such period shall be allocated between not more than the first two
such computation periods on any reasonable basis consistently applied with
respect to similarly situated Employees; and


 


(C)                                Each
hour not counted under paragraph (A) or (B) for which back pay,
irrespective of mitigation of damages, has been either awarded or agreed to be
paid by the Employer or a Related Employer, each such hour to be credited to
the Employee for the computation period to which the award or agreement
pertains rather than the computation period in which the award agreement or
payment is made.


 


For
purposes of determining Hours of Service, Employees of the Employer and of all
Related Employers will be treated as employed by a single employer.  For purposes of paragraphs (B) and (C) above,
Hours of Service will be calculated in accordance with the provisions of Section 2530.200b-2(b) of
the Department of Labor regulations, which are incorporated herein by
reference.


 


Solely
for purposes of determining whether a break in service for participation
purposes has occurred in a computation period, an individual who is absent from
work for maternity or paternity reasons shall receive credit for the hours of
service which would otherwise been credited to such individual but for such
absence, or in any case in which such hours cannot be determined, 8 hours of
service per day of such absence.  For
purposes of this paragraph, an absence from work for maternity reasons means an
absence (1) by reason of the pregnancy of the individual, (2) by reason
of a birth of a child of the individual, (3) by reason of the placement of
a child with the individual in connection with the adoption of such child by
such individual, or (4) for purposes of caring for such child for a period
beginning immediately following such birth or placement.  The hours of service credited under this
paragraph shall be credited (1) in the computation period in which the
absence begins if the crediting is necessary to prevent a break in service in
that period, or (2) in all other cases, in the following computation
period.


 


(17)  “Key Employee” means a Participant who is key
employee pursuant to Code Section 416(i), without regard to paragraph (5) thereof.  A Participant will not be considered a Key
Employee unless the Employer is a corporation which has any of its stock
publicly traded according to Code Section 409A and regulations thereunder.


 


(18) “Normal Retirement
Age” means the normal retirement age specified in Section 1.07(f) of
the Adoption Agreement.


 


(19)  “Owner-Employee” means, if the Employer is a
sole proprietorship, the individual who is the sole proprietor, or, if the
Employer is a partnership, a partner who owns more than 10 percent of either
the capital interest or the profits interest of the partnership.


 


(20)  “Participant” means any Employee who
participates in the Plan in accordance with Article 3 hereof.


 


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


 


(22)  “Plan” means the plan established by the
Employer as set forth herein as a new plan or as an amendment to an existing
plan, by executing the Adoption Agreement, together with any and all amendments
hereto.


 


(23)  “Plan Year” means the 12-consecutive-month
period designated by the Employer in Section 1.01(c).


 


(24)  “Related Employer” means any employer other
than the Employer named in Section 1.02(a), if the Employer and such other
employer are members of a controlled group of corporations (as defined in Section 414(b) of
the Code) or an affiliated service group (as defined in Section 414(m)),
or are trades or businesses (whether or not incorporated) which are under
common control (as defined in Section 414(c)), or such other employer is
required to be aggregated with the Employer pursuant to regulations issued
under Section 414(o).


 


(25) “Self-Employed Individual” means an individual who has Earned
Income for the taxable year from the Employer or who would have had Earned
Income but for the fact that the trade or business had no net profits for the
taxable year.


 


(26)  “Service Agreement” means the agreement
between the Employer and Trustee regarding the arrangement between the parties
for recordkeeping services with respect to the Plan.


 


(27)  “Trust” means the trust created by the
Employer.


 


(28)  “Trust Agreement” means the agreement between
the Employer and the Trustee, as set forth in a separate agreement, under which
assets are held, administered, and managed subject to the claims of the
Employer’s creditors in the event of the Employer’s insolvency, until paid to
Plan Participants and their Beneficiaries as specified in the Plan.


 


(29)  “Trust Fund” means the property held in the
Trust by the Trustee.


 


(30)  “Trustee” means the corporation or
individual(s) appointed by the Employer to administer the Trust in accordance
with the Trust Agreement.


 


(31) “Years of Service
for Vesting” means, with respect to any Employee, the number of whole years of
his periods of service with the Employer or a Related Employer (the elapsed
time method to compute vesting service), subject to any exclusions elected by
the Employer in Section 1.07(c).  An
Employee will receive credit for the aggregate of all time period(s) commencing
with the Employee’s Employment Commencement Date and ending on the date a break
in service begins, unless any such years are excluded by Section 1.07(c).  An Employee will also receive credit for any
period of severance of less than 12 consecutive months.  Fractional periods of a year will be
expressed in terms of days.


 


In the
case of a Participant who has 5 consecutive 1-year breaks in service, all years
of service after such breaks in service will be disregarded for the purpose of
vesting the Employer-derived account balance that accrued before such breaks,
but both pre-break and post-break service will count for the purposes of
vesting the Employer-derived account balance that accrues after such
breaks.  Both accounts will share in the
earnings and losses of the fund.


 


In the
case of a Participant who does not have 5 consecutive 1-year breaks in service,
both the pre-break and post-break service will count in vesting both the
pre-break and post-break employer-derived account balance.


 


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A
break in service is a period of severance of at least 12 consecutive
months.  Period of severance is a
continuous period of time during which the Employee is not employed by the
Employer.  Such period begins on the date
the Employee retires, quits or is discharged, or if earlier, the 12-month
anniversary of the date on which the Employee was otherwise first absent from
service.


 


In the
case of an individual who is absent from work for maternity or paternity
reasons, the 12-consecutive month period beginning on the first anniversary of
the first date of such absence shall not constitute a break in service.  For purposes of this paragraph, an absence
from work for maternity or paternity reasons means an absence (1) by
reason of the pregnancy of the individual, (2) by reason of the birth of a
child of the individual, (3) by reason of the placement of a child with
the individual in connection with the adoption of such child by such
individual, or (4) for purposes of caring for such child for a period
beginning immediately following such birth or placement.


 


If the
Plan maintained by the Employer is the plan of a predecessor employer, an
Employee’s Years of Service for Vesting shall include years of service with
such predecessor employer.  In any case
in which the Plan maintained by the Employer is not the plan maintained by a
predecessor employer, service for such predecessor shall be treated as service
for the Employer to the extent provided in Section 1.08.


 


(b)                   Pronouns used
in the Plan are in the masculine gender but include the feminine gender unless
the context clearly indicates otherwise.


 


Article 3. 
Participation.


 


3.01.  Date of Participation.  An eligible Employee (as
set forth in Section 1.03(a)) who has filed an election pursuant to Section 4.01
will become a Participant in the Plan on the first Entry Date coincident with
or following the date on which such election would otherwise become effective,
as determined under Section4.01.


 


3.02.  Resumption of Participation Following
Reemployment.  If a
Participant ceases to be an Employee and thereafter returns to the employ of
the Employer he will again become a Participant as of an Entry Date following
the date on which he completes an Hour of Service for the Employer following
his re employment, if he is an eligible Employee as defined in Section 1.03(a),
and has filed an election pursuant to Section 4.01.


 


3.03.  Cessation or Resumption of Participation
Following a Change in Status.  If any Participant continues in the employ of
the Employer or Related Employer but ceases to be an eligible Employee as
defined in Section 1.03(a), the individual shall continue to be a
Participant until the entire amount of his benefit is distributed; however, the
individual shall not be entitled to make Deferral Contributions or receive an
allocation of Matching or Employer Contributions during the period that he is
not an eligible Employee.  Such
Participant shall continue to receive credit for service completed during the
period for purposes of determining his vested interest in his Accounts.  In the event that the individual subsequently
again becomes an eligible Employee, the individual shall resume full
participation in accordance with Section 3.01.


 


Article 4. 
Contributions.


 


4.01.                     Deferral
Contributions.  Each Participant
may elect to execute a salary reduction agreement with the Employer to reduce
his Compensation by a specified percentage, not exceeding the percentage set
forth in Section 1.05(a) and equal to a whole number multiple of one (1) percent,
per payroll period, subject to any election regarding Bonuses, as set out in
Subsection 1.05(a)(2).  Such
agreement shall become effective on the first day of the period as set forth in
the Participant’s election.  The election
will be effective to defer


 


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Compensation relating to
all services performed in a calendar year subsequent to the filing of such an
election, subject to any election regarding Bonuses, as set out in Subsection 1.05(a)(2).  An election once made will remain in effect
until a new election is made; provided, however that such an election choosing
a distribution date pursuant to 1.06(b)(1)(B) will only be effective for
the Plan Year indicated.  A new election
will be effective as of the first day of the following calendar year and will
apply only to Compensation payable with respect to services rendered after such
date, except that a separate election made pursuant to Section 1.05(a)(2) will
be effective immediately if made no later than 6 months before the end of the
period during which the services on which the Bonus is based are performed.  If the Employer has selected 1.05(a)(2), no
amount will be deducted from Bonuses unless the Participant has made a separate
election.  Amounts credited to a
Participant’s account prior to the effective date of any new election will not
be affected and will be paid in accordance with that prior election.  The Employer shall credit an amount to the
account maintained on behalf of the Participant corresponding to the amount of
said reduction.  Under no circumstances may
a salary reduction agreement be adopted retroactively. To the extent permitted
in regulations under Code Section 409A, a Participant may revoke a salary
reduction agreement for a calendar year during that year, provided, however,
that such revocation shall apply only to Compensation not yet earned.  In that event, the Participant shall be
precluded from electing to defer future Compensation hereunder during the
calendar year to which the revocation applies. 
Notwithstanding the above, in the calendar year in which the Plan first
becomes effective or in the year in which the Participant first becomes
eligible to participate, an election to defer compensation may be made within
30 days after the Participant is first eligible or the Plan is first effective,
which election shall be effective with respect to Compensation payable with respect
to services rendered after the date of the election.


 


4.02.  Matching Contributions.  If so provided by the Employer in Section 1.05(b),
the Employer shall make a “Matching Contribution” to be credited to the account
maintained on behalf of each Participant who had “Deferral Contributions”
pursuant to Section 4.01 made on his behalf during the year and who meets
the requirement, if any, of Section 1.05(b)(3).  The amount of the “Matching Contribution”
shall be determined in accordance with Section 1.05(b).


 


4.03.  Employer Contributions.   If so provided by the
Employer in Section 1.05(c)(1), the Employer shall make an “Employer
Contribution” to be credited to the account maintained on behalf of each
Participant who meets the requirement, if any, of Section 1.05(c)(3) in
the amount required by Section 1.05(c)(1). 
If so provided by the Employer in Section 1.05(c)(2), the Employer
may make an “Employer Contribution” to be credited to the account maintained on
behalf of any Participant in such an amount as the Employer, in its sole
discretion, shall determine.  In making “Employer
Contributions” pursuant to Section 1.05(c)(2), the Employer shall not be
required to treat all Participants in the same manner in determining such
contributions and may determine the “Employer Contribution” of any Participant
to be zero.


 


4.04.  Time of Making Contributions.  The Employer shall remit contributions deemed
made hereunder to the Trust as soon as practicable after such contributions are
deemed made under the terms of the Plan.


 


Article 5.  Participants’ Accounts.


 


5.01.  Individual Accounts.  The Administrator will establish and maintain
an Account for each Participant, which will reflect Matching, Employer and
Deferral Contributions credited to the Account on behalf of the Participant and
earnings, expenses, gains and losses credited thereto, and deemed investments
made with amounts in the Participant’s Account. 
The Administrator will establish and maintain such other accounts and
records as it decides in its discretion to be reasonably required or
appropriate in order to discharge its duties under the Plan.  Participants will be furnished statements of
their Account values at least once each Plan Year.  The Administrator shall provide the Trustee
with information on the amount credited to the separate account of each
Participant maintained by the Administrator in its records.


 


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Article 6.  Investment of Contributions.


 


6.01.  Manner of Investment.  All amounts credited to the Accounts of
Participants shall be treated as though invested and reinvested only in
eligible investments selected by the Employer in the Service Agreement.


 


6.02.  Investment Decisions. Investments
in which the Accounts of Participants shall be treated as invested and
reinvested shall be directed by the Employer or by each Participant, or both,
in accordance with the Employer’s election in Section 1.11(a).


 


(a)                        All
dividends, interest, gains and distributions of any nature that would be earned
in respect of Fund Shares in which the Account is treated as investing shall be
credited to the Account as though reinvested in additional shares of that
Permissible Investment.


 


(b)                       Expenses
that would be attributable to the acquisition of investments shall be charged
to the Account of the Participant for which such investment is treated as
having been made.


 


Article 7.  Right to Benefits.


 


7.01.  Normal or Early Retirement.  If provided by the Employer in Section 1.07(e),
each Participant who attains his Normal Retirement Age or Early Retirement Age
will have a nonforfeitable interest in his Account in accordance with the
vesting schedule(s) elected in Section 1.07.  If a Participant retires on or after
attainment of Normal or Early Retirement Age, such retirement is referred to as
a normal retirement.  On or after his
normal retirement, the balance of the Participant’s Account, plus any amounts
thereafter credited to his Account, subject to the provisions of Section 7.06,
will be distributed to him in accordance with Article 8.


 


If provided by the
Employer in Section 1.07, a Participant who separates from service before
satisfying the age requirements for early retirement, but has satisfied the
service requirement will be entitled to the distribution of his Account,
subject to the provisions of Section 7.06, in accordance with Article 8,
upon satisfaction of such age requirement.


 


7.02.  Death.  If a Participant dies before the distribution
of his Account has commenced, or before such distribution has been completed,
his Account shall become vested in accordance with the vesting schedule(s)
elected in Section 1.07 and his designated Beneficiary or Beneficiaries
will be entitled to receive the balance or remaining balance of his Account,
plus any amounts thereafter credited to his Account, subject to the provisions
of Section 7.06.  Distribution to
the Beneficiary or Beneficiaries will be made in accordance with Article 8.  A distribution to a beneficiary of a Key
Employee is not considered to be a distribution to a Key Employee for purposes
of Sections 1.06 and 7.08.


 


A Participant may
designate a Beneficiary or Beneficiaries, or change any prior designation of
Beneficiary or Beneficiaries, by giving notice to the Administrator on a form
designated by the Administrator.  If more
than one person is designated as the Beneficiary, their respective interests
shall be as indicated on the designation form.


 


A copy of the death certificate or other sufficient
documentation must be filed with and approved by the Administrator.  If upon the death of the Participant there
is, in the opinion of the Administrator, no designated Beneficiary for part or
all of the Participant’s Account, such amount will be paid to his surviving
spouse or, if none, to his estate (such spouse or estate shall be deemed to be
the Beneficiary for purposes of the Plan). 
If a Beneficiary dies after benefits to such Beneficiary have commenced,
but before they have been completed, and, in the opinion of the Administrator,
no person has been designated to receive such remaining benefits, then such
benefits shall be paid to the deceased Beneficiary’s estate.


 


7.03.  Other Termination of Employment.  If provided by the Employer in Section 1.07,
if a Participant terminates his employment for any reason other than death or
normal retirement, he will be entitled to a termination benefit equal to (i) the
vested percentage(s) of the value of the Matching and Employer Contributions to
his Account, as adjusted for income, expense, gain, or loss, such percentage(s)
determined 


 


7





















 


in accordance with the
vesting schedule(s) selected by the Employer in Section 1.07, and (ii) the
value of the Deferral Contributions to his Account as adjusted for income,
expense, gain or loss.  The amount
payable under this Section 7.03 will be subject to the provisions of Section 7.06
and will be distributed in accordance with Article 8.  For purposes of the Plan, a termination of
employment is a separation from service as defined pursuant to Code Section 409A
and regulations thereunder.


 


7.04.  Separate Account.  If a distribution from a Participant’s
Account has been made to him at a time when he has a nonforfeitable right to
less than 100 percent of his Account, the vesting schedule in Section 1.07
will thereafter apply only to amounts in his Account attributable to Matching and
Employer Contributions allocated after such distribution.  The balance of his Account immediately after
such distribution will be transferred to a separate account that will be
maintained for the purpose of determining his interest therein according to the
following provisions.


 


At any relevant time prior to a forfeiture of any
portion thereof under Section 7.05, a Participant’s nonforfeitable
interest in his Account held in a separate account described in the preceding
paragraph will be equal to P(AB + (RxD))-(RxD), where P is the nonforfeitable
percentage at the relevant time determined under Section 7.05; AB is the
account balance of the separate account at the relevant time; D is the amount
of the distribution; and R is the ratio of the account balance at the relevant
time to the account balance after distribution. 
Following a forfeiture of any portion of such separate account under Section 7.05
below, any balance in the Participant’s separate account will remain fully
vested and nonforfeitable.


 


7.05.  Forfeitures.  If a Participant terminates his employment,
any portion of his Account (including any amounts credited after his
termination of employment) not payable to him under Section 7.03 will be
forfeited by him.


 


7.06.  Adjustment for Investment Experience.  If any distribution under this Article 7
is not made in a single payment, the amount remaining in the Account after the
distribution will be subject to adjustment until distributed to reflect the
income and gain or loss on the investments in which such amount is treated as
invested and any expenses properly charged under the Plan to such amounts.


 


7.07.  Unforeseeable Emergency Withdrawals.  Subject to the provisions of Article 8,
a Participant shall not be permitted to withdraw his Account (and earnings
thereon) prior to retirement or termination of employment, except that, to the
extent permitted under Section 1.09, a Participant may apply to the
Administrator to withdraw some or all of his Account if such withdrawal is made
on account of an unforeseeable emergency as determined by the Administrator in
accordance with the requirements of and subject to the limitations provided
within Code Section 409A and regulations thereunder.


 


7.08.  Change in Control Distributions.  If the Employer has elected to apply Section 1.06(c),
then, upon a Change in Control, notwithstanding any other provision of the Plan
to the contrary, all Participants shall have a nonforfeitable right to receive
the entire amount of their account balances under the Plan.  All distributions due to a Change in Control
shall be paid out to Participants as soon as administratively practicable,
except that any such distribution to a Key Employee who has terminated
employment pursuant to Section 7.03 shall not be earlier than the 1st day
of the seventh month following that Key Employee’s termination of employment.


 


Article 8.  Distribution of Benefits.


 


8.01.  Form of Distribution of Benefits to
Participants and Beneficiaries.  The Plan provides for
distribution as a lump sum to be paid in cash on the date specified by
the Employer in Section 1.06 pursuant to the method provided in Section 8.02.  If elected by the Employer in Section 1.10
and specified in the Participant’s deferral election, the distribution will be
paid through a systematic withdrawal plan (installments) for a time period not
exceeding 10 years beginning on the date specified by the Employer in Section 1.06.


 


8





















 


8.02.
Events Requiring Distribution of Benefits to Participants and
Beneficiaries.


 


(a)                        If
elected by the Employer in Section 1.06(a), the Participant will receive a
distribution upon the earliest of the events specified by the Employer in Section 1.06(a),
subject to the provisions of Section 7.08, and at the time indicated in Section 1.06(a)(2).  If the Participant dies before any event in Section 1.06(a) occurs,
the Participant shall be considered to have terminated employment and the
Participant’s benefit will be paid to the Participant’s Beneficiary in the same
form and at the same time as it would have been paid to the Participant
pursuant to this Article 8.


 


(b)                       If
elected by the Employer in Section 1.06(b), the Participant will receive a
distribution of all amounts not deferred pursuant to Section 1.06(b)(1)(B) (and
earnings attributable to those amounts) upon termination of employment, subject
to the delay applicable to Key Employees described therein, as applicable.  If elected by the Employer in Section 1.06(b)(1)(B),
the Participant shall have the election to receive distributions of amounts
deferred pursuant to Section 4.01 (and earnings attributable to those
amounts) after a date specified by the Participant in his deferral election
which is at least 12 months after the first day of the calendar year in which
such amounts would be earned.  Amounts
distributed to the Participant pursuant to Section 1.06(b) shall be
distributed at the time indicated in Section 1.06(b)(2).   Subject to the provisions of Section 7.08,
the Participant shall receive a distribution in the form provided in Section 8.01.  If the Participant dies before any event in Section 1.06(a) occurs,
the Participant shall be considered to have terminated employment and the
Participant’s benefit will be paid to the Participant’s Beneficiary in the same
form and at the same time as it would have been paid to the Participant
pursuant to this Article 8. 
However, if the Participant dies before the date specified by the
Participant in an election pursuant to Section 1.06(b)(1)(B), then the
Participant’s benefit shall be paid to the Participant’s Beneficiary in the
form provided in Section 8.01 as if the Participant had elected to be paid
at termination of employment.


 


8.03.    Determination
of Method of Distribution.  The Participant will determine the method of
distribution of benefits to himself and his Beneficiary, subject to the
provisions of Section 8.02.  Such
determination will be made at the time the Participant makes a deferral
election.  A Participant’s election
cannot be altered, except, if elected by the Employer in Section 1.10(b),
if the Participant’s balance falls below the level described in regulations
under Code Section 409A, the Participant’s benefit payable due to
termination of employment will be distributed in a lump sum rather than
installments.


 


(a) When Section 1.06(a) has
been elected by the Employer.   The
distribution period specified in a Participant’s first deferral election
specifying distribution under a systematic withdrawal plan shall apply to all
subsequent elections of distributions under a systematic withdrawal plan made
by the Participant.  Once a Participant
has made an election for the method of distribution, that election shall be effective
for all contributions made on behalf of the Participant attributable to any
Plan Year after that election was made and before the Plan Year for which that
election has been altered in the manner prescribed by the Administrator.  If the Participant does not designate in the
manner prescribed by the Administrator the method of distribution, such method
of distribution shall be a lump sum at termination of employment.


 


(b)  When Section 1.06(b) has
been elected by the Employer.  The
distribution period for distributions under a systematic withdrawal plan shall
be specified in each Participant’s contribution election selecting payments
under a systematic withdrawal plan.  If
the Participant does not designate in the manner prescribed by the
Administrator the method of distribution, such method of distribution for all
such contributions shall be a lump sum at termination of employment.


 


8.04.  Notice to Trustee.  The Administrator will notify the Trustee,
pursuant to the method stated in the Trust Agreement for providing direction,
whenever any Participant or Beneficiary is entitled to receive benefits under
the Plan.  The Administrator’s notice
shall indicate the form, amount and frequency of benefits that such Participant
or Beneficiary shall receive.


 


8.05.  Time of Distribution.  In no event will distribution to a
Participant be made later than the date specified by the Participant in his
salary reduction agreement. All distributions will be made as soon as


 


9





















 


administratively feasible
following the distribution date specified in Section 1.06 or Section 7.08,
if applicable.


 


Article 9.  Amendment and Termination.


 


9.01  Amendment by Employer.  The Employer reserves the authority to amend
the Plan by filing with the Trustee an amended Adoption Agreement, executed by
the Employer only, on which said Employer has indicated a change or changes in
provisions previously elected by it. 
Such changes are to be effective on the effective date of such amended
Adoption Agreement.  Any such change
notwithstanding, no Participant’s Account shall be reduced by such change below
the amount to which the Participant would have been entitled if he had
voluntarily left the employ of the Employer immediately prior to the date of the
change.  The Employer may from time to
time make any amendment to the Plan that may be necessary to satisfy the Code
or ERISA.  The Employer’s board of
directors or other individual specified in the resolution adopting this Plan
shall act on behalf of the Employer for purposes of this Section 9.01.


 


9.02  Retroactive Amendments.  An amendment made by the Employer in
accordance with Section 9.01 may be made effective on a date prior to the
first day of the Plan Year in which it is adopted if such amendment is
necessary or appropriate to enable the Plan and Trust to satisfy the applicable
requirements of the Code or ERISA or to conform the Plan to any change in
federal law or to any regulations or ruling thereunder.  Any retroactive amendment by the Employer
shall be subject to the provisions of Section 9.01.


 


9.03.  Termination.  The Employer has adopted the Plan with the
intention and expectation that contributions will be continued
indefinitely.  However, said Employer has
no obligation or liability whatsoever to maintain the Plan for any length of
time and may discontinue contributions under the Plan or terminate the Plan at
any time by written notice delivered to the Trustee without any liability
hereunder for any such discontinuance or termination.


 


9.04.  Distribution upon Termination of the Plan.  Upon termination of the Plan, no further
Deferral, Employer or Matching Contributions shall be made under the Plan, but
Accounts of Participants maintained under the Plan at the time of termination
shall continue to be governed by the terms of the Plan until paid out in
accordance with the terms of the Plan.


 


Article 10. 
Miscellaneous.


 


10.01.  Communication to Participants.  The Plan will be communicated to all
Participants by the Employer promptly after the Plan is adopted.


 


10 02.  Limitation of Rights.  Neither the establishment of the Plan and the
Trust, nor any amendment thereof, nor the creation of any fund or account, nor
the payment of any benefits, will be construed as giving to any Participant or
other person any legal or equitable right against the Employer, Administrator
or Trustee, except as provided herein; and in no event will the terms of
employment or service of any Participant be modified or in any way affected
hereby.


 


10.03.  Nonalienability of Benefits.  The benefits provided hereunder will not be
subject to alienation, assignment, garnishment, attachment, execution or levy
of any kind, either voluntarily or involuntarily, and any attempt to cause such
benefits to be so subjected will not be recognized, except to such extent as
may be required by law.


 


10 04.  Facility of Payment.  In the event the Administrator determines, on
the basis of medical reports or other evidence satisfactory to the
Administrator, that the recipient of any benefit payments under the Plan is
incapable of handling his affairs by reason of minority, illness, infirmity or
other incapacity, the Administrator may disburse such payments, or direct the
Trustee to disburse such payments, as applicable, to a person or institution
designated by a court which has jurisdiction over such recipient or a person or
institution otherwise having the legal authority under State law for the care
and control of such recipient. 


10





















 


The receipt by
such person or institution of any such payments shall be complete acquittance
therefore, and any such payment to the extent thereof, shall discharge the
liability of the Trust for the payment of benefits hereunder to such recipient.


 


10.05.  Information between Employer and Trustee.  The Employer agrees to furnish the Trustee,
and the Trustee agrees to furnish the Employer with such information relating
to the Plan and Trust as may be required by the other in order to carry out
their respective duties hereunder, including without limitation information
required under the Code or ERISA and any regulations issued or forms adopted
thereunder.


 


10.06.  Notices.  Any notice or other communication in
connection with this Plan shall be deemed delivered in writing if addressed as
provided below and if either actually delivered at said address or, in the case
of a letter, three business days shall have elapsed after the same shall have
been deposited in the United States mails, first-class postage prepaid and registered
or certified:


 


(a)                      If to the
Employer or Administrator, to it at the address set forth in the Adoption
Agreement, to the attention of the person specified to receive notice in the
Adoption Agreement;


 


(b)                     If to the
Trustee, to it at the address set forth in the Trust Agreement;


 


or, in each case at such other address as the addressee shall have
specified by written notice delivered in accordance with the foregoing to the
addressor’s then effective notice address.


 


10.07.  Governing Law.  The Plan and the accompanying Adoption
Agreement will be construed, administered and enforced according to ERISA, and
to the extent not preempted thereby, the laws of the Commonwealth of
Massachusetts, without regard to its conflicts of law principles.


 


Article 11.  Plan Administration.


 


11.01.  Powers and responsibilities of the
Administrator.  The
Administrator has the full power and the full responsibility to administer the
Plan in all of its details, subject, however, to the applicable requirements of
ERISA.  The Administrator’s powers and
responsibilities include, but are not limited to, the following:


 


(a)                      To make and
enforce such rules and regulations as it deems necessary or proper for the
efficient administration of the Plan;


 


(b)                     To interpret
the Plan, its interpretation thereof in good faith to be final and conclusive
on all persons claiming benefits under the Plan;


 


(c)                      To decide
all questions concerning the Plan and the eligibility of any person to
participate in the Plan;


 


(d)                     To administer
the claims and review procedures specified in Section 11.03;


 


(e)                      To compute
the amount of benefits which will be payable to any Participant, former
Participant or Beneficiary in accordance with the provisions of the Plan;


 


(f)                        To
determine the person or persons to whom such benefits will be paid;


 


(g)                     To authorize
the payment of benefits;


 


(h)                     To comply
with any applicable reporting and disclosure requirements of Part 1 of
Subtitle B of Title I of ERISA;


 


11





















 


(i)                         To appoint
such agents, counsel, accountants, and consultants as may be required to assist
in administering the Plan;


 


(j)                         By
written instrument, to allocate and delegate its responsibilities, including
the formation of an Administrative Committee to administer the Plan;


 


11.02.  Nondiscriminatory Exercise of Authority.  Whenever, in the administration of the Plan,
any discretionary action by the Administrator is required, the Administrator
shall exercise its authority in a nondiscriminatory manner so that all persons
similarly situated will receive substantially the same treatment.


 


11.03.  Claims and Review Procedures.


 


(a)                      Claims
Procedure.  If any person believes he
is being denied any rights or benefits under the Plan, such person may file a
claim in writing with the Administrator. 
If any such claim is wholly or partially denied, the Administrator will
notify such person of its decision in writing. 
Such notification will contain (i) specific reasons for the denial,
(ii) specific reference to pertinent Plan provisions, (iii) a
description of any additional material or information necessary for such person
to perfect such claim and an explanation of why such material or information is
necessary, and (iv) information as to the steps to be taken if the person
wishes to submit a request for review, including a statement of the such person’s
right to bring a civil action under Section 502(a) of ERISA following
as adverse determination upon review. 
Such notification will be given within 90 days after the claim is received
by the Administrator (or within 180 days, if special circumstances require an
extension of time for processing the claim, and if written notice of such
extension and circumstances is given to such person within the initial 90-day
period).


 


If the
claim concerns disability benefits under the Plan, the Plan Administrator must
notify the claimant in writing within 45 days after the claim has been filed in
order to deny it.  If special
circumstances require an extension of time to process the claim, the Plan
Administrator must notify the claimant before the end of the 45-day period that
the claim may take up to 30 days longer to process.  If special circumstances still prevent the
resolution of the claim, the Plan Administrator may then only take up to another
30 days after giving the claimant notice before the end of the original 30-day
extension.  If the Plan Administrator
gives the claimant notice that the claimant needs to provide additional
information regarding the claim, the claimant must do so within 45 days of that
notice.


 


(b)                     Review
Procedure.  Within 60 days after the
date on which a person receives a written notice of a denied claim (or, if
applicable, within 60 days after the date on which such denial is considered to
have occurred), such person (or his duly authorized representative) may (i) file
a written request with the Administrator for a review of his denied claim and
of pertinent documents and (ii) submit written issues and comments to the
Administrator.  This written request may
include comments, documents, records, and other information relating to the
claim for benefits.  The claimant shall
be provided, upon the claimant’s request and free of charge, reasonable access
to, and copies of, all documents, records, and other information relevant to
the claim for benefits.  The review will
take into account all 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.  The Administrator will
notify such person of its decision in writing. 
Such notification will be written in a manner calculated to be
understood by such person and will contain specific reasons for the decision as
well as specific references to pertinent Plan provisions.  The decision on review will be made within 60
days after the request for review is received by the Administrator (or within
120 days, if special circumstances require an extension of time for processing
the request, such as an election by the Administrator to hold a hearing, and if
written notice of such extension and circumstances is given to such person
within the initial 60-day period). The extension notice shall indicate the
special circumstances requiring an extension of time and the date by which the
Plan expects to render the determination on review.


 


12





















 


If the
initial claim was for disability benefits under the Plan and has been denied by
the Plan Administrator, the claimant will have 180 days from the date the
claimant received notice of the claim’s denial in which to appeal that
decision.  The review will be handled
completely independently of the findings and decision made regarding the
initial claim and will be processed by an individual who is not a subordinate
of the individual who denied the initial claim. 
If the claim requires medical judgment, the individual handling the
appeal will consult with a medical professional whom was not consulted
regarding the initial claim and who is not a subordinate of anyone consulted
regarding the initial claim and identify that medical professional to the
claimant.


 


The
Plan Administrator shall provide the claimant with written notification of a
plan’s benefit determination on review. 
In the case of an adverse benefit determination, the notification shall
set forth, in a manner calculated to be understood by the claimant – the
specific reason or reasons for the adverse determinations, reference to the
specific plan provisions on which the benefit determination is based, a
statement that the claimant is entitled to receive, upon the claimant’s request
and free of charge, reasonable access to, and copies of, all documents,
records, and other information relevant to the claim for benefits.


 


13





















 


 


The
CORPORATEplan for RetirementSM


EXECUTIVE
PLAN


 


 


Adoption Agreement


 


 


IMPORTANT NOTE


 


This document has not been approved by the Department of Labor, the
Internal Revenue Service or any other governmental entity.  An Adopting Employer must determine whether
the plan is subject to the Federal securities laws and the securities laws of
the various states.  An Adopting Employer
may not rely on this document to ensure any particular tax consequences or to
ensure that the Plan is “unfunded and maintained primarily for the purpose of
providing deferred compensation to a select group of management or highly
compensated employees” under the Employee Retirement Income Security Act with
respect to the Employer’s particular situation. 
Fidelity Management Trust Company, its affiliates and employees cannot
provide you with legal advice in connection with the execution of this
document.  This document should be
reviewed by the Employer’s attorney prior to execution.


 





















 


ADOPTION AGREEMENT


 


ARTICLE 1


 


	
  1.01

  	
  PLAN
  INFORMATION

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  Name of Plan:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  This is the dj
  Orthopedics Executive Deferred Compensation Plan (the “Plan”).

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  Name of Plan Administrator, if not the Employer:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Phone
  Number:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Plan
  Administrator is the agent for service of legal process for the Plan.

  
	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  Plan Year End is December 31.

  
	
   

  	
   

  	
   

  
	
   

  	
  (d)

  	
  Plan Status (check one):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
  ý

  	
  Effective Date
  of new Plan: 10/01/2005

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
  o

  	
  Amendment
  Effective Date:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  The original
  effective date of the Plan:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.02

  	
  EMPLOYER

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  The Employer is:

  	
  dj Orthopedics,
  LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  	
  2985
  Scott Street

  
	
   

  	
   

  	
   

  	
  Vista,
  CA 92081

  
	
   

  	
   

  	
  Contact’s
  Name:

  	
  Karen
  Sanchez

  
	
   

  	
   

  	
  Telephone
  Number:

  	
  (760) 734-5537

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
  Employer’s Tax
  Identification Number:   52-2165554

  
	
   

  	
   

  	
  (2)

  	
  Business form of
  Employer (check one):

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   (A)

  	
  ý

  	
  Corporation
  (Other than a Subchapter S corporation)

  
	
   

  	
   

  	
   

  	
   (B)

  	
  o

  	
  Other (e.g.,
  Subchapter S corporation, partnership, sole proprietor)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (3)

  	
  Employer’s
  fiscal year end:  12/31

  
								



 


14





















 


	
   

  	
  (b)

  	
  The term “Employer” includes the following Related
  Employer(s)

  
	
   

  	
   

  	
  (as defined in Section 2.01(a)(24)):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  dj Orthopedics
  Development Corporation

  
	
   

  	
   

  	
   

  
	
  1.03

  	
  COVERAGE

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  The following Employees are eligible to participate in the
  Plan:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
  o

  	
  Only those
  Employees listed in Attachment A will be eligible to participate in the Plan.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
  ý

  	
  Only those
  Employees in the eligible class described below will be eligible to
  participate in the Plan:

  
	
   

  	
   

  	
   

  	
   

  	
  Only U.S. based
  employees including:  CEO, President,
  CFO, COO, Executive Vice President, Senior Vice President, Vice President,
  General Manager, Member Board of Directors

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (3)

  	
  o

  	
  Only those
  Employees described in the Board of Directors Resolutions attached hereto and
  hereby made a part hereof will be eligible to participate in the Plan.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  The Entry Date(s) shall be (check
  one):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
   ̈

  	
  each January 1.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
   ̈

  	
  each January 1
  and each July 1.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (3)

  	
   ̈

  	
  each January 1
  and each April 1, July 1 and October 1.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (4)

  	
   ̈

  	
  the first day of
  each month.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (5)

  	
  ý

  	
  immediate upon
  meeting the eligibility requirements specified in Subsection 1.03(a).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.04

  	
  COMPENSATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  For purposes of determining Contributions under the Plan,
  Compensation shall be as defined (check (a) or (b) below, as
  appropriate):

  
	
   

  	
   

  
	
   

  	
  (a)

  	
  ý

  	
  in Section 2.01(a)(8), (check (1) or
  (2) below, if and as appropriate)):

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
  ý

  	
  but excluding
  (check the appropriate box(es)):

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (A)

  	
  ý

  	
  Overtime Pay.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (B)

  	
   ̈

  	
  Bonuses.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (C)

  	
   ̈

  	
  Commissions.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (D)

  	
  ý

  	
  The value of a
  qualified or a non-qualified stock option granted to an Employee by the
  Employer to the extent such value is includable in the Employee’s taxable
  income.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (E)

  	
   ̈

  	
  The following:

  
								



 


15





















 


	
   

  	
   

  	
  (2)

  	
   ̈

  	
  except as
  otherwise provided below:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
   ̈

  	
  in the
                                       Plan
  maintained by the Employer to the extent it is in excess of the limit imposed
  under Code Section 401(a)(17).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.05

  	
  CONTRIBUTIONS
  

  
	
   

  	
   

  
	
   

  	
  (a)

  	
  Employee contributions (Complete all that
  apply)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
  ý                                    Deferral
  Contributions.  The Employer shall make
  a Deferral Contribution in accordance with, and subject to, Section 4.01
  on behalf of each Participant who has an executed salary reduction agreement
  in effect with the Employer for the calendar year (or portion of the calendar
  year) in question, not to exceed 100 % of Compensation, exclusive of
  any Bonus.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
  ý                                    Bonus
  Contributions.  The Employer requires
  Participants to enter into a special salary reduction agreement to make
  Deferral Contributions of any percentage of Employer paid cash Bonuses, up to
  100% of such Bonuses.  (The
  Compensation definition elected by the Employer in Section 1.04 must
  include Bonuses if Bonus contributions are permitted.)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  ý

  	
   

  	
  Matching Contributions (Choose (1) or (2) below,
  and (3) below, as applicable.)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
  ý                                    The
  Employer shall make a Matching Contribution on behalf of each Participant in
  an amount equal to the following percentage of a Participant’s Deferral
  Contributions during the Plan Year (check one):

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (A)

  	
   ̈

  	
  50%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (B)

  	
   ̈

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (C)

  	
   ̈

  	
          %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (D)

  	
   ̈

  	
  (Tiered Match)
                     
  % of the first
                     
  % of the Participant’s Compensation contributed to the Plan.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (E)

  	
  ý

  	
  The percentage
  declared for the year, if any, by a Board of Directors’ resolution.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (F)

  	
   ̈

  	
  Other:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
   ̈                                    Matching
  Contribution Offset.  For each
  Participant who has made 401(k) Deferrals at least equal to the maximum under
  Code Section 402(g) or, if less, the maximum permitted under the
  Qualified Plan, the Employer shall make a Matching Contribution for the
  calendar year equal to (A) minus (B) below:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (A)

  	
   

  	
  The 401(m) Match
  that the Participant would have received under the Qualified Plan for such
  calendar year on the sum of the Participant’s Deferral Contributions and the
  Participant’s 401(k) Deferrals if no limits otherwise imposed by tax law
  applied to 401(m) Match and deeming the Participant’s Deferral Contributions
  to be 401(k) Deferrals.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (B)

  	
   

  	
  The 401(m) Match
  actually allocated to such Participant under the Qualified Plan for the
  calendar year.

  
											



 


16





















 


	
   

  	
   

  	
   

  	
  For purposes of
  this Section 1.05(b): “Qualified Plan” means the Plan; “401(k)
  Deferrals” means contributions under the Qualified Plan’s cash or deferred
  arrangement as defined in Code Section 401(k); and “401(m) Match” means
  a matching contribution as defined in Code Section 401(m).

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (3)

  	
   ̈

  	
  Matching
  Contribution Limits (check the appropriate box(es)):

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (A)

  	
   ̈

  	
  Deferral
  Contributions in excess of
              % of the
  Participant’s Compensation for the period in question shall not be considered
  for Matching Contributions.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Note:            If the Employer elects a percentage limit
  in (A) above and requests the Trustee to account separately for matched
  and unmatched Deferral Contributions, the Matching Contributions allocated to
  each Participant must be computed, and the percentage limit applied, based
  upon each period.

   

  
	
   

  	
   

  	
   

  	
  (B)

  	
   ̈

  	
  Matching
  Contributions for each Participant for each Plan Year shall be limited to $.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (4)

  	
   

  	
  Eligibility
  Requirement(s) for Matching Contributions.  A Participant who makes Deferral
  Contributions during the Plan Year under Section 1.05(a) shall be
  entitled to Matching Contributions for that Plan Year if the Participant
  satisfies the following requirement(s) (Check the appropriate box(es).  Options (B) and (C) may not be
  elected together):

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (A)

  	
   ̈

  	
  Is employed by
  the Employer on the last day of the Plan Year.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (B)

  	
   ̈

  	
  Earns at least
  500 Hours of Service during the Plan Year.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (C)

  	
   ̈

  	
  Earns at least
  1,000 Hours of Service during the Plan Year.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (D)

  	
   ̈

  	
  Other:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (E)

  	
  ý

  	
  No requirements.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Note:      If option (A), (B) or
  (C) above is selected, then Matching Contributions can only be made by the Employer after the Plan Year ends.  Any Matching Contribution made before Plan
  Year end shall not be subject to the eligibility requirements of this Section 1.05(b)(3)).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
   

  	
  Employer Contributions

  
	
   

  	
   

  	
  (1)

  	
   ̈

  	
  Fixed
  Employer Contributions. 
  The Employer shall make an Employer Contribution on behalf of each
  Participant in an amount determined as described below (check at least one):

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (A)

  	
   ̈

  	
  In an amount
  equal to          % of each
  Participant’s Compensation each Plan Year.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (B)

  	
   ̈

  	
  In an amount
  determined and allocated as described below:

  



 


17





















 


	
   

  	
   

  	
   

  	
  (C)

  	
   ̈

  	
  In an amount
  equal to (check at least one):

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (i.)

  	
   

  	
  o

  	
  Any profit
  sharing contribution that the Employer would have made on behalf of the
  Participant under the following qualified defined contribution plan but for
  the limitations imposed by Code Section 401(a)(17):

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (ii.)

  	
   

  	
  o

  	
  Any contribution
  described in Code Section 401(m) that the Employer would have made on
  behalf of the Participant under the following qualified defined contribution
  plan but for the limitations imposed by Code Section 401(a)(17):

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
  ý

  	
   

  	
  Discretionary
  Employer Contributions.  The
  Employer may make Employer Contributions to the accounts of Participants in
  any amount, as determined by the Employer in its sole discretion from time to
  time, which amount may be zero.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (3)

  	
   

  	
   

  	
  Eligibility
  Requirement(s) for Employer Contributions.  A Participant shall only be entitled to
  Employer Contributions under Section 1.05(c)(1) for a Plan Year if
  the Participant satisfies the following requirement(s) (Check the appropriate
  box(es).  Options (B) and (C) may
  not be elected together):

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (A)

  	
   ̈

  	
  Is employed by the Employer on the last day of the
  Plan Year.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (B)

  	
   ̈

  	
  Earns at least 500 Hours of Service during the Plan
  Year.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (C)

  	
   ̈

  	
  Earns at least 1,000 Hours of Service during the
  Plan Year.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (D)

  	
   ̈

  	
  Other:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (E)

  	
  ý

  	
  No requirements.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.06

  	
  DISTRIBUTION DATES

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Distribution
  from a Participant’s Account pursuant to Section 8.02 shall begin upon
  the following date(s) (check either (a) or (b); check (c), if desired):

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
   ̈

  	
  Non-Class Year
  Accounting (complete (1) and (2)).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (1)

  	
  The earliest of
  termination of employment with the Employer (see Plan Section 7.03) and
  the following event(s) (check appropriate box(es); if none selected, all
  distributions will be upon termination of employment):

  
									



 


18





















 


	
   

  	
   

  	
   

  	
  (A)

  	
   ̈

  	
  Attainment of
  Normal Retirement Age
  (as defined in Section 1.07(f)).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (B)

  	
   ̈

  	
  Attainment of
  Early Retirement Age (as defined in Section 1.07(g)).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (C)

  	
   ̈

  	
  The date on
  which the Participant becomes disabled (as defined in Section 1.07(h)).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (2)

  	
  Timing of distribution (check either (A) or
  (B)).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (A)

  	
   ̈

  	
  The distribution
  of the Participant’s Account will be begin in the month following the event
  described in (a)(1) above, however, if the event is termination of
  employment, then such distribution will begin as soon as practicable on or
  after the 1st day of the seventh calendar month following such separation if
  the Participant was a Key Employee.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (B)

  	
  o

  	
  The distribution
  of the Participant’s Account will begin as soon as administratively feasible
  in the calendar year following distribution event described in (a)(1) above,
  provided however, that if the event is termination of employment, in no event
  will such distribution begin earlier than the 1st day of the seventh calendar
  month following such separation if the Participant was a Key Employee.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  ý

  	
  Class Year Accounting (complete (1) and (2)).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (1)

  	
  Upon (check at least one; (A) must be selected
  if plan has contributions pursuant to section 1.05(b) or (c)):

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (A)

  	
  ý         Termination of employment with the
  Employer (see Plan Section 7.03); provided however, that if the event is
  termination of employment, in no event will such distribution begin earlier
  than the 1st day of the seventh calendar month following such separation if
  the Participant was a Key Employee.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (B)

  	
  ý

  	
  The date elected
  by the Participant, pursuant to Plan Section 8.02, and subject to the
  restrictions imposed in Plan Section 8.02 with respect to future Deferral Contributions, in which
  event such date of distribution must be at least one year after the date such
  Deferral Contribution would have been paid to the Participant in cash in the
  absence of the election to make the Deferral Contribution.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (2)

  	
  Timing of distribution subject to Subsection (b)(1)(A) above
  (check either (A) or (B)).

  
									



 


19





















 


	
   

  	
   

  	
   

  	
  See Plan Amendment

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (A)

  	
  o

  	
  The Distribution
  of the Participant’s Account  will
  begin
                   
  (specify month and day) following the event described in (b)(1) above.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (B)

  	
  o

  	
  The Distribution
  of the Participant’s Account will begin
                    
  (specify month and day) of the calendar year following the event described in
  (b)(1) above.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
   ̈

  	
  Upon a Change of
  Control in accordance with Plan Section 7.08.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Note:  Internal Revenue Code Section 280G
  could impose certain, adverse tax consequences on both Participants and the
  Employer as a result of the application of this Section 1.06(c).  The Employer should consult with its
  attorney prior to electing to apply Section 1.06(c).

  
							



 


	
  1.07

  	
  VESTING SCHEDULE

  
	
   

  	
   

  
	
   

  	
  (a)

  	
  The Participant’s
  vested percentage in Matching Contributions elected in Section 1.05(b) shall
  be based upon the schedule(s) selected below.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (1)

  	
  o

  	
  N/A - No
  Matching Contributions

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (2)

  	
  o

  	
  100% Vesting
  immediately

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (3)

  	
  ý

  	
  3 year cliff
  (see C below)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (4)

  	
  o

  	
  5 year cliff
  (see D below)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (5)

  	
  o

  	
  6 year graduated
  (see E below)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (6)

  	
  o

  	
  7 year graduated
  (see F below)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (7)

  	
  o

  	
  G
  below

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (8)

  	
  o

  	
  Other
  (Attachment “B”)

  



 


	
  Years of

  Service for

  	
   

  	
  Vesting Schedule

  	
   

  
	
  Vesting

  	
   

  	
  C

  	
   

  	
  D

  	
   

  	
  E

  	
   

  	
  F

  	
   

  	
  G

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  0

  	
   

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
   

  	
   

  
	
  1

  	
   

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
   

  	
   

  
	
  2

  	
   

  	
  0

  	
  %

  	
  0

  	
  %

  	
  20

  	
  %

  	
  0

  	
  %

  	
   

  	
   

  
	
  3

  	
   

  	
  100

  	
  %

  	
  0

  	
  %

  	
  40

  	
  %

  	
  20

  	
  %

  	
   

  	
   

  
	
  4

  	
   

  	
  100

  	
  %

  	
  0

  	
  %

  	
  60

  	
  %

  	
  40

  	
  %

  	
   

  	
   

  
	
  5

  	
   

  	
  100

  	
  %

  	
  100

  	
  %

  	
  80

  	
  %

  	
  60

  	
  %

  	
   

  	
   

  
	
  6

  	
   

  	
  100

  	
  %

  	
  100

  	
  %

  	
  100

  	
  %

  	
  80

  	
  %

  	
   

  	
   

  
	
  7

  	
   

  	
  100

  	
  %

  	
  100

  	
  %

  	
  100

  	
  %

  	
  100

  	
  %

  	
  100

  	
  %

  



 


20





















 


	
   

  	
  (b)

  	
  The Participant’s
  vested percentage in Employer Contributions elected in Section 1.05(c) shall
  be based upon the schedule(s) selected below.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (1)

  	
  o

  	
  N/A - No Employer
  Contributions

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (2)

  	
  o

  	
  100% Vesting
  immediately

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (3)

  	
  ý

  	
  3 year cliff
  (see C below)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (4)

  	
  o

  	
  5 year cliff
  (see D below)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (5)

  	
  o

  	
  6 year graduated
  (see E below)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (6)

  	
  o

  	
  7 year graduated
  (see F below)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (7)

  	
  o

  	
  G
  below

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (8)

  	
  o

  	
  Other
  (Attachment “B”)

  



 


	
  Years of

  Service for

  	
   

  	
  Vesting Schedule

  	
   

  
	
  Vesting

  	
   

  	
  C

  	
   

  	
  D

  	
   

  	
  E

  	
   

  	
  F

  	
   

  	
  G

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  0

  	
   

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
   

  	
   

  
	
  1

  	
   

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
  0

  	
  %

  	
   

  	
   

  
	
  2

  	
   

  	
  0

  	
  %

  	
  0

  	
  %

  	
  20

  	
  %

  	
  0

  	
  %

  	
   

  	
   

  
	
  3

  	
   

  	
  100

  	
  %

  	
  0

  	
  %

  	
  40

  	
  %

  	
  20

  	
  %

  	
   

  	
   

  
	
  4

  	
   

  	
  100

  	
  %

  	
  0

  	
  %

  	
  60

  	
  %

  	
  40

  	
  %

  	
   

  	
   

  
	
  5

  	
   

  	
  100

  	
  %

  	
  100

  	
  %

  	
  80

  	
  %

  	
  60

  	
  %

  	
   

  	
   

  
	
  6

  	
   

  	
  100

  	
  %

  	
  100

  	
  %

  	
  100

  	
  %

  	
  80

  	
  %

  	
   

  	
   

  
	
  7

  	
   

  	
  100

  	
  %

  	
  100

  	
  %

  	
  100

  	
  %

  	
  100

  	
  %

  	
  100

  	
  %

  



 


	
   

  	
  (c)

  	
  ý  Years of
  Service for Vesting shall exclude (check one):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (1)

  	
  ý

  	
  for new plans,
  service prior to the Effective Date as defined in Section 1.01(d)(1).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (2)

  	
  o

  	
  for existing
  plans converting from another plan document, service prior to the original
  Effective Date as defined in Section 1.01(d)(2).

  
							



 


	
   

  	
  (d)

  	
  ý                  A Participant will forfeit
  his Matching Contributions and Employer Contributions upon the occurrence of
  the following event (s):

  
	
   

  	
   

  	
   

  	
  (a) the
  Participant’s conviction of any crime (whether or not involving the Company)
  constituting a felony in the jurisdiction involved; (b) conduct of the
  Participant related to the Participant’s employment for which either criminal
  or civil penalties against the Participant or the Company may be sought; (c) material
  violation of the Company’s policies, including, but not limited to those
  relating to sexual harassment, the disclosure or misuse of confidential
  information or those set forth in Company manuals or statements of policy; (d) serious
  neglect or misconduct in the performance of the Participant’s duties for the
  Company or willful or repeated failure or refusal to perform such duties.

  



 


21





















 


	
  (e)

  	
   

  	
  A Participant
  will be 100% vested in his Matching Contributions and Employer Contributions
  upon (check the appropriate box(es), if any; if 1.06(c) is selected,
  Participants will automatically vest upon Change of Control as defined in Section 1.12):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
  o

  	
   

  	
  Normal
  Retirement Age (as defined in Section 1.07(f)).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
  o

  	
   

  	
  Early Retirement
  Age (as defined in Section 1.07(g)).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (3)

  	
  ý

  	
   

  	
  Death.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (4)

  	
  ý

  	
   

  	
  The date on
  which the Participant becomes disabled, as determined under
  Section 1.07(h) of the Plan.

  
	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  Normal Retirement
  Age  under the Plan is  (check one):

  
	
   

  	
   

  	
  (1)

  	
  ý

  	
   

  	
  age 65.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
  o

  	
   

  	
  age     (specify
  from 55 through 64).

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (3)

  	
  o

  	
   

  	
  the later of age        (cannot
  exceed 65) or the fifth anniversary of the Participant’s Commencement Date.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If no box is checked in this Section 1.07(f),
  then Normal Retirement Age is 65.

  
	
   

  	
   

  	
   

  
	
   

  	
  (g)

  	
  o

  	
  Early Retirement
  Age is the first day of the month after the Participant attains age         
  (specify 55 or greater) and completes         
  Years of Service for Vesting.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (h)

  	
  ý

  	
  A
  Participant is considered disabled when that Participant (check one):

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
  o

  	
   

  	
  is unable to
  engage in any substantial gainful activity by reason of any medically
  determinable physical or mental impairment which can be expected to result in
  death or can be expected to last for a continuous period of not less than 12
  months.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
  ý

  	
   

  	
  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 12 months, receiving income replacement benefits for
  a period of not less than 3 months under an accident and health plan covering
  employees of the Employer.

  
							



 


22





















 


	
  1.08

  	
  PREDECESSOR EMPLOYER SERVICE

  
	
   

  	
   

  
	
   

  	
  ý

  	
   

  	
   

  	
  Service for purposes of vesting in Section 1.07(a) and
  (b) shall include service with the following employer(s):

  
	
   

  	
   

  	
  (a)

  	
  Smith &
  Nephew Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  DePuy
  Orthopaedic Technology, Inc., Depuy’s Affiliates and/or DePur’s former
  Affiliates

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
  Orthologic
  Corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (d)

  	
  Superior Medical
  Equipment (SME)

  



 


	
  1.09

  	
  UNFORESEEABLE EMERGENCY WITHDRAWALS

  
	
   

  	
  Participant withdrawals for unforeseeable emergency prior
  to termination of employment (check one):

  
	
   

  	
   

  	
  (a)

  	
   

  	
  will be allowed in accordance with Section 7.07,
  subject to a $ 5,000 minimum amount. (Must be at least
  $1,000)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  will not be allowed.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.10

  	
  DISTRIBUTIONS

  
	
   

  	
  Subject to Articles 7 and 8 distributions under the Plan
  are always available as a lump sum. 
  Check below to allow distributions in installment payments:

  
	
   

  	
   

  
	
   

  	
  ý

  	
  under a systematic withdrawal plan (installments) not to
  exceed 10 years which (check one if box for this Section is selected):

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  o

  	
   

  	
  will not be accelerated, regardless of the Participant’s
  Account balance.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  ý

  	
   

  	
  will be accelerated to a lump sum distribution in
  accordance with Section 8.03.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.11

  	
  INVESTMENT
  DECISIONS

  
	
   

  	
   

  
	
   

  	
  (a)

  	
  Investment Decisions

  
	
   

  	
   

  	
  Investments in
  which the Accounts of Participants shall be treated as invested and
  reinvested shall be directed (check one):

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (1)

  	
  o

  	
  by the Employer
  among the options listed in (b) below.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (2)

  	
  ý

  	
  by each Participant
  among the options listed in (b) below.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (3)

  	
  o     in accordance with investment
  directions provided by each Participant for all contribution sources in a
  Participant’s Account except the following sources shall be invested as
  directed by the Employer (check (A) and/or (B)):

  



 


23





















 


	
   

  	
   

  	
   

  	
  (A)

  	
  o

  	
  Nonelective
  Employer Contributions

  	
   

  
	
   

  	
   

  	
   

  	
  (B)

  	
  o

  	
  Matching
  Employer Contributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  The Employer
  must direct the applicable sources among the same investment options made
  available for Participant directed sources listed in the Service Agreement.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  Plan Investment Options

  
	
   

  	
   

  	
  Participant
  Accounts will be treated as invested among the Investment Funds listed in the
  Service Agreement from time to time pursuant to Participant and/or Employer
  directions, as applicable.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Note:

  	
  The method and
  frequency for change of investments will be determined under the rules applicable
  to the selected funds.  Information
  will be provided regarding expenses, if any, for changes in investment
  options.

  
	
   

  	
   

  	
   

  	
   

  
	
  1.12

  	
  RELIANCE
  ON PLAN 

  
	
   

  	
   

  	
   

  
	
   

  	
  An adopting Employer
  may not rely solely on this Plan to ensure that the Plan is “unfunded and
  maintained primarily for the purpose of providing deferred compensation for a
  select group of management or highly compensated employees” with respect to
  the Employer’s particular situation. 
  This Agreement must be reviewed by the 
  Employer’s attorney before it is executed.

  
	
   

  	
   

  
	
   

  	
  This Adoption
  Agreement may be used only in conjunction with the CORPORATEplan for
  Retirement Executive Plan Basic Plan Document.

  



 


24





















 


EXECUTION PAGE


(Fidelity’s Copy)


 


 


IN WITNESS WHEREOF, the
Employer has caused this Adoption Agreement to be executed this 27th
day of July, 2005.


 


 


	
   

  	
  Employer

  	
   dj orthopedics, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title

  	
  Sr Vice
  President & General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Employer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  



 


25





















 


EXECUTION PAGE


(Employer’s Copy)


 


IN WITNESS WHEREOF, the
Employer has caused this Adoption Agreement to be executed this 27th
day of July, 2005.


 


 


	
   

  	
  Employer

  	
   dj orthopedics, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title

  	
  Sr Vice
  President & General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Employer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  



 


26





















 


Attachment A


 


Pursuant
to Section 1.03(a), the following are the Employees who are eligible to
participate in the Plan:


 


 


	
   

  	
  Employer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date

  	
   

  



 


	
  Note:

  	
  The Employer
  must revise Attachment A to add Employees as they become eligible or delete
  Employees who are no longer eligible. Attachment A should be signed and dated
  every time a change is made.

  



 


27





















 


Attachment B


 


	
  (a)

  	
   

  	
   ̈ The Participant’s vested
  percentage in Matching Contributions elected in Section 1.05(b) shall
  be based upon the following schedule:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
   ̈ The Participant’s vested
  percentage in Employer Contributions elected in Section 1.05(c) shall
  be based upon the following schedule:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


28





















 


FIRST AMENDMENT TO THE


dj Orthopedics Executive Deferred Compensation
Plan


 


WHEREAS,
dj Orthopedics, Inc., (the
“Corporation”) has adopted the dj Orthopedics Executive Deferred Compensation
Plan (the “Plan”), by the adoption of The
CORPORATEplan for  RetirementSM
Executive Plan, Fidelity Basic Plan Document by executing an Adoption Agreement
on July 27, 2005; and


 


WHEREAS, Section 9.01
of The CORPORATEplan for  RetirementSM Executive Plan, Fidelity Basic Plan
Document provides for the amendment of the Plan by the Employer, and


 


WHEREAS, the
Employer wants to allow non-employee members of the Board of Directors to
participate in the plan,


 


NOW
THEREFORE, Section 1.03(a)(2) of
the Plan is hereby amended to include the following individuals as eligible to
participate in the plan effective October 1, 2005:


 


“, non-employee members of the Board of Directors”;
and,


 


NOW
THEREFORE, Section 2.01(a)(8) of the Plan is hereby
amended to include the following in the
definition of compensation effective October 1, 2005:


 


“1099-misc non-employee compensation”; and,


 


WHEREAS, the
Employer wants to allow the timing of distribution of the Participant’s Account
following termination to conform to Section 409A of the Code for all
participants,


 


NOW
THEREFORE, Section 1.06(b)(2) of
the Plan is hereby amended in its entirety and replaced by the following
effective October 1, 2005:


 


“The Distribution of the Participant’s Account will begin on
the 1st day of the 7th calendar month following the event
described in (b)(1) above.”


 





















 


IN
WITNESS WHEREOF dj
Orthopedics, LLC has caused this amendment to be executed this
                          
day of                                  ,
200  , by its duly authorized officer.


 


 


	
   

  	
  dj Orthopedics, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  
	
  Attest: