**Exhibit10.36**

 

#### **Amylin Pharmaceuticals, Inc. 2001Non-Qualified DeferredCompensation Plan**

 

November 2007

** **

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## ***TABLE OF CONTENTS***

## *** ***

**PREAMBLE**

 
| **ARTICLE  1 – GENERAL**            |
|------------------------------------------|
| **1.1**                                  | Plan |
| **1.2**                                  | Effective Dates |
| **1.3**                                  | Amounts Not Subject to  Code Section 409A |
| ** **                               |   |
| **ARTICLE  2 – DEFINITIONS**        |
| **2.1**                                  | Account |
| **2.2**                                  | Account Balance Plan |
| **2.3**                                  | Administrator |
| **2.4**                                  | Adoption Agreement |
| **2.5**                                  | Beneficiary |
| **2.6**                                  | Board or Board of  Directors |
| **2.7**                                  | Bonus |
| **2.8**                                  | Change in Control |
| **2.9**                                  | Code |
| **2.10**                                 | Compensation |
| **2.11**                                 | Director |
| **2.12**                                 | Disabled |
| **2.13**                                 | Eligible Employee |
| **2.14**                                 | Employer |
| **2.15**                                 | ERISA |
| **2.16**                                 | Exchange Act |
| **2.17**                                 | Identification Date |
| **2.18**                                 | Key Employee |
| **2.19**                                 | Participant |
| **2.20**                                 | Performance-Based  Compensation |
| **2.21**                                 | Plan |
| **2.22**                                 | Plan Sponsor |
| **2.23**                                 | Plan Year |
| **2.24**                                 | Related Employer |
| **2.25**                                 | Retirement |
| **2.26**                                 | Separation from Service |
| **2.27**                                 | Specified Date |
| **2.28**                                 | Unforeseeable Emergency |
| **2.29**                                 | Valuation Date |
| **2.30**                                 | Years of Service |
| ** **                               |   |
| **ARTICLE 3****–****PARTICIPATION** |
| **3.1**                                  | Participation |
| **3.2**                                  | Termination of  Participation |

 

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| **ARTICLE 4 – PARTICIPANT ELECTIONS**             |
|--------------------------------------------------------|
| **4.1**                                                | Deferral Agreement |
| **4.2**                                                | Amount of Deferral |
| **4.3**                                                | Timing of Election to  Defer |
| **4.4**                                                | Election of Payment  Schedule and Form of Payment |
| ** **                                             |   |
| **ARTICLE 5 – EMPLOYER CONTRIBUTIONS**            |
| **5.1**                                                | Matching Contributions |
| **5.2**                                                | Other Contributions |
| ** **                                             |   |
| **ARTICLE 6 – ACCOUNTS AND CREDITS**              |
| **6.1**                                                | Establishment of  Account |
| **6.2**                                                | Credits to Account |
| **6.3**                                                | Account Statements |
| ** **                                             |   |
| **ARTICLE 7****–****INVESTMENT OF CONTRIBUTIONS** |
| **7.1**                                                | Investment Options |
| **7.2**                                                | Adjustment of Accounts |
| ** **                                             |   |
| **ARTICLE 8****–****RIGHT TO BENEFITS**           |
| **8.1**                                                | Vesting |
| **8.2**                                                | Death |
| **8.3**                                                | Disability |
| ** **                                             |   |
| **ARTICLE 9 –********DISTRIBUTION OF BENEFITS**   |
| **9.1**                                                | Amount of Benefits |
| **9.2**                                                | Method and Timing of  Distributions |
| **9.3**                                                | Unforeseeable Emergency |
| **9.4**                                                | Payment  Election Overrides |
| **9.5**                                                | Cashouts of Amounts Not  Exceeding Stated Limit |
| **9.6**                                                | Required Delay in  Payment to Key Employees |
| **9.7**                                                | Change in Control |
| **9.8**                                                | Permissible Delays in  Payment |

 

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| **ARTICLE 10 –********AMENDMENT AND TERMINATION**  |
|---------------------------------------------------------|
| **10.1**                                                | Amendment by Plan  Sponsor |
| **10.2**                                                | Plan Termination  Following Change in Control or Corporate Dissolution |
| **10.3**                                                | Other Plan Terminations |
| **10.4**                                                | Plan Suspension |
| ** **                                              |   |
| **ARTICLE 11 –********THE TRUST**                  |
| **11.1**                                                | Establishment of Trust |
| **11.2**                                                | Grantor Trust |
| **11.3**                                                | Investment of Trust  Funds |
| ** **                                              |   |
| **ARTICLE 12****–****PLAN ADMINISTRATION**         |
| **12.1**                                                | Powers and  Responsibilities of the Administrator |
| **12.2**                                                | Claims and Review  Procedures |
| **12.3**                                                | Plan Administrative  Costs |
| **12.4**                                                | No Discretionary  Distributions |
| **12.5**                                                | Permitted Acceleration  of Payment |
| ** **                                              |   |
| **ARTICLE 13 –********SECURITIES LAWS COMPLIANCE** |
| **13.1**                                                | Designation of  Participants |
| **13.2**                                                | Action by Administrator |
| **13.3**                                                | Compliance with  Section 16 |
| **13.4**                                                | Capitalization Changes |
| ** **                                              |   |
| **ARTICLE 14 –********MISCELLANEOUS**              |
| **14.1**                                                | Unsecured  General Creditor of the Employer |
| **14.2**                                                | Employer’s  Liability |
| **14.3**                                                | Limitation  of Rights |
| **14.4**                                                | Anti-Assignment |
| **14.5**                                                | Facility  of Payment |
| **14.6**                                                | Notices |
| **14.7**                                                | Tax  Withholding |
| **14.8**                                                | Indemnification |
| **14.9**                                                | Successors |
| **14.10**                                               | Validity |
| **14.11**                                               | Scrivener’s  Error |
| **14.12**                                               | Disclaimer |
| **14.13**                                               | Governing  Law |

 

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**PREAMBLE**

 

The Plan is intended tobe a “plan which is unfunded and is maintained by an employer primarily for thepurpose of providing deferred compensation for a select group of management orhighly compensated employees” within the meaning of Sections 201(2), 301(a)(3) and401(a)(1) of the Employee Retirement Income Security Act of 1974, asamended, or an “excess benefit plan” within the meaning of Section 3(36)of the Employee Retirement Income Security Act of 1974, as amended, or acombination of both.  The Plan is furtherintended to conform with the requirements of Internal Revenue Code Section 409Aand the final regulations and other guidance issued thereunder (“Section 409A”)and shall be implemented, interpreted and administered in a manner consistenttherewith.  To the extent one or more provisionsof this Plan do not comply with Section 409A, such provision shall beautomatically and immediately voided, and shall be amended as soon asadministratively feasible and shall be administered to so comply.

 

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## ***ARTICLE 1 – GENERAL***

## *** ***

**1.1****                               Plan.**  The Plan will be referred to by the namespecified in the Adoption Agreement.

 

**1.2****                               EffectiveDates.**

 

(a)                                  OriginalEffective Date.  The OriginalEffective Date is the date as of which the Plan was initially adopted.

 

(b)                                 AmendmentEffective Date.  The AmendmentEffective Date is the date specified in the Adoption Agreement as of which thePlan is amended and restated.  Except tothe extent otherwise provided herein or in the Adoption Agreement, from andafter the Amendment Effective Date the amended and restated Plan shall apply toall amounts deferred under the Plan, including amounts deferred before theAmendment Effective Date, and shall apply to any benefit payments made on orafter the Amendment Effective Date.

 

(c)                                  SpecialEffective Date.  A Special EffectiveDate may apply to any given provision if so specified in Appendix A of theAdoption Agreement.  A Special EffectiveDate will control over the Original Effective Date or Amendment Effective Date,whichever is applicable, with respect to such provision of the Plan.

 

**1.3****                               AmountsNot Subject to Code Section 409A**

 

As provided in Section 1.01of the Adoption Agreement, all amounts deferred under the Plan before January 1,2008, including amounts not subject to Code Section 409A, will beadministered in accordance with the terms of this amended and restated Plandocument on and after the Amendment Effective Date.

 

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## ***ARTICLE 2 – DEFINITIONS***

## *** ***

Pronounsused in the Plan are in the masculine gender but include the feminine genderunless the context clearly indicates otherwise. Wherever used herein, the following terms have the meanings set forthbelow, unless a different meaning is clearly required by the context:

 

**2.1****                               “Account”**means an account established for the purpose of recording amounts credited onbehalf of a Participant and any income, expenses, gains, losses ordistributions included thereon.  TheAccount shall be a bookkeeping entry only and shall be utilized solely as adevice for the measurement and determination of the amounts to be paid to aParticipant  or to the Participant’sBeneficiary pursuant to the Plan.

 

**2.2****                               “AccountBalance Plan**” means any non-qualified deferred compensation account balanceplan (as defined in §31.3121(v)(2)-1(c)(1)(ii)(A) of the TreasuryRegulations) sponsored by the Plan Sponsor or any Employer that would beaggregated with the Plan for purposes of Section 409A.

 

**2.3****                               “Administrator”**means the person or persons designated by the Plan Sponsor in Section 1.05of the Adoption Agreement to be responsible for the administration of thePlan.  If no Administrator is designatedin the Adoption Agreement, the Administrator is the Plan Sponsor.

 

**2.4****                               “AdoptionAgreement”** means the agreement adopted by the Plan Sponsor that establishesthe Plan.

 

**2.5****                               “Beneficiary”**means the persons, trusts, estates or other entities entitled under Section 8.2to receive benefits under the Plan upon the death of a Participant.

 

**2.6****                               “Board”or “Board of Directors”** means the Board of Directors of the Plan Sponsor.

 

**2.7****                               “Bonus”**means an amount of incentive remuneration payable by the Employer to aParticipant.

 

**2.8****                               “Changein Control”** means the occurrence of an event involving the Plan Sponsorthat is described in Section 9.7.

 

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

 

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**2.10****                        “Compensation”**has the meaning specified in Section 3.01 of the Adoption Agreement.

 

**2.11****                        “Director”**means a non-employee member of the Board who has been designated by theEmployer as eligible to participate in the Plan.

 

**2.12****                        “Disabled”** means a determination by theAdministrator that the Participant is either (a) unable to engage in anysubstantial gainful activity by reason of any medically determinable physical ormental impairment which can be expected to result in death or can be expectedto last for a continuous period of not less than 12 months, or (b) is, byreason of any medically determinable physical or mental impairment which can beexpected to result in death or last for a continuous period of not less thantwelve months, receiving income replacement benefits for a period of not lessthan three months under an accident and health plan covering employees of theEmployer.  A Participant will beconsidered Disabled if he is determined to be totally disabled by the SocialSecurity Administration or the Railroad Retirement Board.

 

**2.13****                        “EligibleEmployee”** means an employee of the Employer who satisfies the requirementsin Section 2.01 of the Adoption Agreement.

 

**2.14****                        “Employer”**means the Plan Sponsor and any other entity which is authorized by the PlanSponsor to participate in and, in fact, does adopt the Plan.

 

**2.15****                        “ERISA”**means the Employee Retirement Income Security Act of 1974, as amended.

 

**2.16****                        “ExchangeAct”** shall mean the Securities Exchange Act of 1934, as amended.  Reference to a section of the Exchange Actshall include that section and any comparable section or sections of any futurelegislation that amends, supplements or supersedes such section.

 

**2.17****                        “IdentificationDate”** means the date as of which Key Employees are determined which isspecified in Section 1.06 of the Adoption Agreement.

 

**2.18****                        “KeyEmployee”**means an employee who satisfies the conditions set forth in Section 9.6.

 

**2.19****                        “Participant”**means an Eligible Employee or Director who commences participation in thePlan in accordance with Article 3.

 

**2.20****                       **“**Performance-Based Compensation**” means Compensation thatmeets the requirements of performance-based compensation specified in Section 409A(a)(4)(B)(iii) ofthe Code and regulations and other guidance 

 

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promulgatedthereunder.  Performance-BasedCompensation shall be designated as such by the Employer as contingent upon thesatisfaction of performance goals and must relate to services performed by theParticipant during a designated incentive period of at least twelve (12)months.  The performance goals must bepre-established by the Employer in writing no later than ninety (90) days afterthe commencement of the performance period, and the outcome must besubstantially uncertain at the time the criteria are established.

 

**2.21****                        “Plan”**means the unfunded plan of deferred compensation set forth herein,including the Adoption Agreement and any trust agreement, as adopted by thePlan Sponsor and as amended from time to time.

 

**2.22****                        “PlanSponsor”**means the entity identified in Section 1.03 of the AdoptionAgreement.

 

**2.23****                        “PlanYear”**means the period identified in Section 1.02 of the AdoptionAgreement.

 

**2.24****                        “RelatedEmployer”** means the Employer and (a) any corporation that is a memberof a controlled group of corporations as defined in Code Section 414(b) thatincludes the Employer and (b) any trade or business that is under commoncontrol as defined in Code Section 414(c) that includes the Employer.

 

**2.25****                        “Retirement”**has the meaning specified in 6.01(f) of the Adoption Agreement.

 

**2.26****                        “***Separationfrom Service”***** means the date that the Participant dies, retires or otherwisehas a termination of employment with respect to all entities comprising theRelated Employer.  All determinations ofwhether a Separation from Service has occurred will be made in a mannerconsistent with Section 409A and the following provisions, to the extentapplicable.

 

A Separation from Servicedoes not occur if the Participant is on military leave, sick leave or otherbona fide leave of absence if the period of leave does not exceed six months orsuch longer period during which the Participant’s right to re-employment isprovided by statute or contract.  If theperiod of leave exceeds six months and the Participant’s right to re-employmentis not provided either by statute or contract, a Separation from Service willbe deemed to have occurred on the first day following the six-monthperiod.  If the period of leave is due toany medically determinable physical or mental impairment that can be expectedto result in death or can be expected to last for a continuous period of notless than six months, where the impairment causes the Participant to be unableto perform the duties of his or her position of employment or any substantiallysimilar position of employment, a 29 month period of absence may be substitutedfor the six month period.

 

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Whether a termination ofemployment has occurred is based on whether the facts and circumstances,indicate that the Related Employer and the Participant reasonably anticipatedthat no further services would be performed after a certain date or that thelevel of bona fide services the Participant would perform as an employee aftersuch date would permanently decrease to no more than 20 percent of the averagelevel of bona fide services performed over the immediately preceding 36 monthperiod (or the full period of services to the Related Employer if the employeehas been providing services to the Related Employer for less than 36 months).If a Participant continues to provide services to a Related Employer in acapacity other than as an employee, the Participant will not be deemed to havea termination of employment if the Participant is providing services at anannual rate that is at least 50 percent of the services rendered by suchindividual, on average, during the immediately preceding 36 month period ofemployment (or such lesser period of employment) and the annual remunerationfor such services is at least 50 percent of the average annual remunerationearned during the final 36 calendar months of employment (or such less periodof employment).

 

An independent contractoris considered to have experienced a Separation from Service with the RelatedEmployer upon the expiration of the contract (or, in the case of more than onecontract all contracts) under which services are performed for the Related Employerif the expiration constitutes a good-faith and complete termination of thecontractual relationship.

 

If a Participant providesservices as both an employee and an independent contractor of the RelatedEmployer, the Participant must separate from service both as an employee and asan independent contractor to be treated as having incurred a Separation fromService.  If a Participant ceasesproviding services as an independent contractor and begins providing servicesas an employee, or ceases providing services as an employee and beginsproviding services as an independent contractor, the Participant will not beconsidered to have experienced a Separation from Service until the Participanthas ceased providing services in both capacities.

 

If a Participant providesservices both as an employee and as a member of the board of directors of acorporate Related Employer (or an analogous position with respect to anoncorporate Related Employer), the services provided as a director are nottaken into account in determining whether the Participant has incurred aSeparation from Service as an employee for purposes of a nonqualified deferredcompensation plan in which the Participant participates as an employee that isnot aggregated under Code Section 409A with any plan in which theParticipant participates as a director.

 

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If a Participant providesservices both as an employee and as a member of the board of directors of acorporate related Employer (or an analogous position with respect to anoncorporate Related Employer), the services provided as an employee are nottaken into account in determining whether the Participant has experienced aSeparation from Service as a director for purposes of a nonqualified deferredcompensation plan in which the Participant participates as a director that isnot aggregated under Section 409A with any plan in which the Participantparticipates as an employee.  To giveeffect to the foregoing provision, the Plan shall maintain separate accountingfor the portion of the Participant’s Account attributable to Director deferralsand Employer contributions to Director Accounts, and any related earnings anddistributions with respect to such amounts.

 

**2.27****                        “SpecifiedDate”** means a date specified by the Participant on the deferral agreementwhich will trigger distribution of the elected portion of the Participant’sAccount.

 

**2.28****                        “UnforeseeableEmergency”**means a severe financialhardship of the Participant resulting from an illness or accident of theParticipant, the Participant’s spouse, the Participant’s Beneficiary, or theParticipant’s dependent (as defined in Code Section 152, without regard toCode section 152(b)(i), (b)(2) and (d)(i)(B); loss of the Participant’sproperty due to casualty; or other similar extraordinary and unforeseeablecircumstances arising as a result of events beyond the control of theParticipant.

 

**2.29****                        “ValuationDate”**means each business day of the Plan Year.

 

**2.30****                        “Yearsof Service”** means each one year period for which the Participant receivesservice credit in accordance with the provisions of Section 7.01(d) ofthe Adoption Agreement.

 

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**ARTICLE 3– PARTICIPATION**

 

**3.1****                              ****Participation. **The Participants in the Plan shall be those Directorsand employees of the Employer who satisfy the requirements of Section 2.01of the Adoption Agreement.

 

**3.2****                              ****Termination of Participation.** The Administrator may terminate a Participant’s participation in thePlan only in a manner consistent with Code Section 409A.  The Administrator may determine that aParticipant that has not had a Separation from Service shall no longer beeligible to participate in the Plan.  Ifthe Administrator terminates a Participant’s eligibility to participate in thePlan prior to the Participant’s Separation from Service, then the Participant’svested Account balance, if any, shall remain in the Plan and will be paid outin accordance with the terms of this Plan and the applicable deferral election.

 

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**ARTICLE 4 – PARTICIPANT ELECTIONS**

 

**4.1****                              ****Deferral Agreement.**  Ifpermitted by the Plan Sponsor in accordance with Section 4.01 of theAdoption Agreement, each Eligible Employee and Director may elect to defer hisCompensation within the meaning of Section 3.01 of the Adoption Agreementby executing in writing or electronically, a deferral agreement in accordancewith rules and procedures established by the Administrator and theprovisions of this Article 4.

 

A new deferral agreementmust be timely executed for each Plan Year during which the Eligible Employeeor Director desires to defer Compensation. An Eligible Employee or Director who does not timely execute a deferralagreement shall be deemed to have elected zero deferrals of Compensation forsuch Plan Year.

 

A deferral agreement may bechanged or revoked during the period specified by the Administrator.  Except as provided in Section 9.3 of thePlan or in Section 4.01(c) of the Adoption Agreement, a deferralagreement becomes irrevocable at the close of the specified period.

 

**4.2****                              ****Amountof Deferral.**  An EligibleEmployee or Director may elect to defer Compensation in any amount permitted bySection 4.01(a) of the Adoption Agreement.

 

**4.3****                              ****Timing of Election to Defer.**  Each Eligible Employee orDirector who desires to defer Compensation otherwise payable during a Plan Yearmust execute a deferral agreement within the period preceding the Plan Yearspecified by the Administrator.  EachEligible Employee who desires to defer Compensation that is a Bonus mustexecute a deferral agreement within the period preceding the Plan Year duringwhich the Bonus is earned that is specified by the Administrator, except thatif the Bonus can be treated as Performance Based Compensation as described inCode Section 409A(a)(4)(B)(iii), the deferral agreement may be executedwithin the period specified by the Administrator, which period, in no event,shall end after the date which is six months prior to the end of the periodduring which the Bonus is earned, provided that (i) such compensation hasnot yet become readily ascertainable, and (ii) the Participant hasperformed services continuously from the later of (y) the beginning of theperformance period, or (z) the date the performance goals are establishedthrough the date of filing of the deferral agreement.  In addition, if the Compensation qualifies as‘fiscal year compensation’ within the meaning of Reg. Sec. 1.409A -2(a)(6), thedeferral agreement may be made not later than the end of the Employer’s taxableyear immediately preceding the first taxable year of the Employer in which anyservices are performed for which such Compensation is payable.

 

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Exceptas otherwise provided below, an employee who is classified or designated as anEligible Employee during a Plan Year or a Director who is designated aseligible to participate during a Plan Year may elect to defer Compensationotherwise payable during the remainder of such Plan Year in accordance with therules of this Section 4.3 by executing a deferral agreement withinthe thirty (30) day period beginning on the date the employee is classified ordesignated as an Eligible Employee or the date the Director is designated aseligible, whichever is applicable, if permitted by Section 2.01 of theAdoption Agreement.  If Compensation isbased on a specified performance period that begins before the EligibleEmployee or Director executes his deferral agreement, the election will bedeemed to apply to the portion of such Compensation equal to the total amountof Compensation for the performance period multiplied by the ratio of thenumber of days remaining in the performance period after the election becomesirrevocable and effective over the total number of days in the performanceperiod.

 

Thedeferral election cannot apply during the first year that the Participant firstbecomes eligible to participate in the Plan if the Participant previously waseligible to participate in any other Account Balance Plan.  For purposes of the initial eligibilityelection, a Participant that previously ceased to be eligible to participate inthe Plan will also be treated as being initially eligible to participate in thePlan if the Participant has not been eligible to participate in the Plan (otherthan the accrual of earnings) at any time during the 24-month period ending onthe date the Participant again becomes eligible to participate in the Plan.

 

**4.4****                              ****Election of****Payment****Scheduleand Form of Payment.**

 

Allelections of a payment schedule and a form of payment will be made in accordancewith rules and procedures established by the Administrator and theprovisions of this Section 4.4.

 

(a)           If the Plan Sponsor has elected topermit annual distribution elections in accordance with Section 6.01(h) ofthe Adoption Agreement the following rules apply.  At the time an Eligible Employee of Directorcompletes a deferral agreement, the Eligible Employee or Director must elect adistribution event (which includes a specified time) and a form of payment forthe Compensation subject to the deferral agreement and for any Employercontributions that may be credited to the Participant’s Account during the PlanYear from among the options the Plan Sponsor has made available for thispurpose and which are specified in 6.01(b) of the Adoption Agreement.  If an Eligible Employee or Director fails toelect 

 

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adistribution event, he shall be deemed to have elected Separation from Serviceas the distribution event.  If he failsto elect a form of payment, he shall be deemed to have elected a lump sum formof payment.

 

(b)           If the Plan Sponsor has elected notto permit annual distribution elections in accordance with Section 6.01(h) ofthe Adoption Agreement the following rules apply.  At the time an Eligible Employee or Directorfirst completes a deferral agreement, the Eligible Employee or Director mustelect a distribution event (which includes a specified time) and a form ofpayment for amounts credited to his Account from among the options the PlanSponsor has made available for this purpose and which are specified in Section 6.01(b) ofthe Adoption Agreement.  If an EligibleEmployee or Director fails to elect a distribution event, such Participantshall be deemed to have elected Separation from Service in the distributionevent.  If the Participant fails to electa form of payment, the Participant shall be deemed to have elected a lump sumform of payment.

 

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**ARTICLE 5 – EMPLOYER CONTRIBUTIONS**

 

**5.1****                              ****Matching Contributions.**  If elected by the Plan Sponsor in Section 5.01(a) ofthe Adoption Agreement, the Employer will credit the Participant’s Account witha matching contribution determined in accordance with the formula specified in Section 5.01(a) ofthe Adoption Agreement.  The matchingcontribution will be treated as allocated to the Participant’s Account at thetime specified in Section 5.01(a)(iii) of the Adoption Agreement.

 

**5.2****                              ****Other Contributions.**  If elected by the Plan Sponsor in Section 5.01(b) ofthe Adoption Agreement, the Employer will credit the Participant’s Account witha contribution determined in accordance with the formula or method specified inSection 5.01(b) of the Adoption Agreement.  The contribution will be treated as allocatedto the Participant’s Account at the time specified in Section 5.01(b)(iii) ofthe Adoption Agreement.

 

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**ARTICLE 6 – ACCOUNTS AND CREDITS**

 

**6.1****                              ****Establishment of Account. **Foraccounting and computational purposes only, the Administrator will establishand maintain an Account on behalf of each Participant which will reflect thecredits made pursuant to Section 6.2, distributions or withdrawals, alongwith the earnings, expenses, gains and losses allocated thereto, attributableto the hypothetical investments made with the amounts in the Account asprovided in Article 7.  TheAdministrator will establish and maintain such other records and accounts, asit decides in its discretion to be reasonably required or appropriate todischarge its duties under the Plan.

 

**6.2****                              ****Credits to Account. **AParticipant’s Account will be credited for each Plan Year with the amount ofhis elective deferrals under Section 4.1 at the time the amount subject tothe deferral election would otherwise have been payable to the Participant andthe amount of Employer contributions treated as allocated on his behalf under Article 5.

 

**6.3****                              ****Account Statements.**  Participants shall receive Plan Accountstatements at least annually in accordance with procedures established by theAdministrator.

 

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**ARTICLE 7 – INVESTMENT OF CONTRIBUTIONS**

 

**7.1****                              ****Investment Options. **Theamount credited to each Account shall be treated as invested in the investmentoptions designated for this purpose by the Administrator.

 

**7.2****                              ****Adjustment of Accounts. **Theamount credited to each Account shall be adjusted for hypothetical investmentearnings, expenses, gains or losses in an amount equal to the earnings,expenses, gains or losses attributable to the investment options selected bythe party designated in Section 9.01 of the Adoption Agreement from amongthe investment options provided in Section 7.1.  If permitted by Section 9.01 of theAdoption Agreement, a Participant (or the Participant’s Beneficiary after thedeath of the Participant) may, in accordance with rules and proceduresestablished by the Administrator, select the investments from among the optionsprovided in Section 7.1 to be used for the purpose of calculating futurehypothetical investment adjustments to the Account or to future credits to theAccount under Section 6.2 effective as of the Valuation Date coincidentwith or next following notice to the Administrator.  Each Account shall be adjusted as of eachValuation Date to reflect: (a) the hypothetical earnings, expenses, gainsand losses described above; (b) amounts credited pursuant to Section 6.2;and (c) distributions or withdrawals. In addition, each Account may be adjusted for its allocable share of thehypothetical costs and expenses associated with the maintenance of thehypothetical investments provided in Section 7.1.

 

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**ARTICLE 8 – RIGHT TO BENEFITS**

 

**8.1****                              ****Vesting. **AParticipant, at all times, has the 100% nonforfeitable interest in the amountscredited to his Account attributable to his elective deferrals made inaccordance with Section 4.1.

 

AParticipant’s right to the amounts credited to his Account attributable toEmployer contributions made in accordance with Article 5 shall bedetermined in accordance with the relevant schedule and provisions in Section 7.01of the Adoption Agreement.

 

**8.2****                              ****Death. **The Plan Sponsor may elect to accelerate vestingupon the death of the Participant in accordance with Section 7.01(c) ofthe Adoption Agreement and/or to accelerate distributions upon Death inaccordance with Section 6.01(b) or Section 6.01(d) of theAdoption Agreement.  If the Plan Sponsordoes not elect to accelerate distributions upon death in accordance with Section 6.01(b) orSection 6.01(d) of the Adoption Agreement, the vested amount creditedto the Participant’s Account will be paid in accordance with the provisions of Article 9.

 

**                                               **A Participant maydesignate a Beneficiary or Beneficiaries, or change any prior designation ofBeneficiary or Beneficiaries in accordance with rules and proceduresestablished by the Administrator.

 

Acopy of the death notice or other sufficient documentation must be filed withand approved by the Administrator.  Ifupon the death of the Participant there is, in the opinion of theAdministrator, no designated Beneficiary for part or all of the Participant’svested Account, such amount will be paid to his estate (such estate shall bedeemed to be the Beneficiary for purposes of the Plan) in accordance with theprovisions of Article 9.

 

**8.3****                              ****Disability. **If the Plan Sponsor has elected to acceleratevesting upon the occurrence of a Disability in accordance with Section 7.01(c) ofthe Adoption Agreement and/or to permit distributions upon Disability inaccordance with Section 6.01(b) or Section 6.01(d) of theAdoption Agreement, the determination of whether a Participant has incurred aDisability shall be made by the Administrator in a manner consistent with therequirements of Section 409A.

 

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** **

**ARTICLE 9 – DISTRIBUTION OF BENEFITS**

 

**9.1****                              ****Amount of Benefits. **Thevested amount credited to a Participant’s Account as determined under Articles6, 7 and 8 shall determine and constitute the basis for the value of benefitspayable to the Participant under the Plan.

 

**9.2****                              ****Method and Timing of Distributions. **Except as otherwise provided in this Article 9, distributions under the Planshall be made in accordance with the elections made or deemed made by theParticipant under Article 4. Subject to the provisions of Section 9.6 requiring a six monthdelay for certain distributions to Key Employees, distributions following apayment event shall commence at the time specified in Section 6.01(a) ofthe Adoption Agreement.  If permitted by Section 6.01(g) ofthe Adoption Agreement, a Participant may elect, at least twelve months beforea scheduled distribution event, to delay the payment date for a minimum periodof sixty months from the originally scheduled date of payment.  The distribution election change must be madein accordance with procedures and rules established by theAdministrator.  The Participant may, atthe same time the date of payment is deferred, change the form of payment butsuch change in the form of payment may not effect an acceleration of payment inviolation of Code Section 409A or the provisions of Reg. Sec.1.409A-2(b).  For purposes of this Section 9.2,a series of installment payments is always treated as a single payment and notas a series of separate payments.

 

Notwithstandinganything to the contrary set forth herein, in accordance with the transitionrelief available under IRS Notice 2007-86 and any applicable proceduresestablished by the Administrator, a Participant may at any time on or before December 31,2008, upon approval of the Administrator, elect to change his or her priorelection with respect to the time and/or form of payment of all or any portionof the Participant’s Account balance, and may make separate election changeswith respect to portions of the Account balance attributable to amountsdeferred for different Plan Years.  Suchelection changes may apply only to that portion of the Account balance thatwould not otherwise be payable in the year such election is made, and may notcause any portion of the Account balance to be paid in the year such electionis made that would not otherwise be payable in such year.  Such election changes shall be made by filinga new election form with the Administrator on or before December 31, 2008,in such form as the Administrator may determine.

 

**9.3****                              ****Unforeseeable Emergency.**  A Participant may request a distribution dueto an Unforeseeable Emergency if the Plan Sponsor has elected to permitUnforeseeable Emergency withdrawals under Section 8.01(a) of the

 

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AdoptionAgreement.  The request must be inwriting and must be submitted to the Administrator along with evidence that thecircumstances constitute an Unforeseeable Emergency. The Administrator has thediscretion to require whatever evidence it deems necessary to determine whethera distribution is warranted, and may require the Participant to certify thatthe need cannot be reasonably met from other sources.   Whether a Participant has incurred anUnforeseeable Emergency will be determined by the Administrator on the basis ofthe relevant facts and circumstances in its sole discretion, but, in no event,will an Unforeseeable Emergency be deemed to exist if the hardship can berelieved:  (a) through reimbursementor compensation by insurance or otherwise, (b) by liquidation of theParticipant’s assets to the extent such liquidation would not itself causesevere financial hardship, or (c) by cessation of deferrals under thePlan.  A distribution due to anUnforeseeable Emergency must be limited to the amount reasonably necessary tosatisfy the emergency need and may include any amounts necessary to pay anyfederal, state or local income tax penalties reasonably anticipated to resultfrom the distribution.  Thedistribution will be made in the form of a single lump sum cash payment.  If permitted by Section 8.01(b) ofthe Adoption Agreement, a Participant’s deferral elections for the remainder ofthe Plan Year will be cancelled upon a withdrawal due to an UnforeseeableEmergency.  If the payment of all or anyportion of the Participant’s vested Account is being delayed in accordance withSection 9.6 at the time he experiences an Unforeseeable Emergency, theamount being delayed shall not be subject to the provisions of this Section 9.3until the expiration of the six month period of delay required by section 9.6.

 

**9.4****                              ****Payment Election Overrides****. **Ifthe Plan Sponsor has elected one or more payment election overrides inaccordance with Section 6.01(d) of the Adoption Agreement, thefollowing provisions apply.  Upon theoccurrence  of the first event selectedby the Plan Sponsor, the remaining vested amount credited to the Participant’sAccount shall be paid in the form designated by the Participant or hisBeneficiary regardless of whether the Participant had made different electionsof time and/or form of payment or whether the Participant was receivinginstallment payments at the time of the event.

 

**9.5****                              ****Cashouts Of Amounts Not Exceeding StatedLimit. **Ifthe vested amount credited to the Participant’s Account does not exceed thelimit established for this purpose by the Plan Sponsor in Section 6.01(e) ofthe Adoption Agreement at the time he separates from service with the RelatedEmployer for any reason, the Employer shall distribute such amount to theParticipant at the time specified in Section 6.01(a) of the AdoptionAgreement in a single lump sum cash payment following such terminationregardless of whether the Participant had made different elections of time orform of payment as to the vested amount credited to his Account or whether theParticipant was receiving installments at the time of such termination.  A Participant’s Account, for purposes of thisSection 9.5, shall include any amounts described in Section 1.3.

 

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**9.6****                              ****Required Delay in Payment to Key Employees**.  Except as otherwise provided in this Section 9.6,a distribution made on account of Separation from Service (or Retirement, ifapplicable) to a Participant who is a Key Employee as of the date of hisSeparation from Service (or Retirement, if applicable) shall not be made beforethe date which is six months after the Separation from Service (or Retirement,if applicable).

 

(a) AParticipant is treated as a Key Employee if (i) he is employed by aRelated Employer any of whose stock is publicly traded on an establishedsecurities market, and (ii) he satisfies the requirements of Code Section 416(i)(1)(A)(i),(ii) or (iii), determined without regard to Code Section 416(i)(5),at any time during the twelve month period ending on the Identification Date,which would generally include:

 

(i)            An officer of an Employer having anannual compensation greater than $130,000, as adjusted at the same time and inthe same manner as under Section 415(d) of the Code, except that thebase period shall be the calendar quarter beginning July 1, 2001 (whichamount is $135,000 for the Plan Year beginning January 1, 2005, $140,000for the Plan Year beginning January 1, 2006, and $145,000 for the Plan Yearbeginning January 1, 2007).  Notmore than fifty (50) employees or, if less, the greater of three (3) employeesor ten percent (10%) of the Employer’s employees shall be considered asofficers for purposes of this subsection.

 

(ii)           A five percent owner of the Employer.

 

(iii)          A one percent owner of the Employerhaving an annual Compensation from the Employer of more than $150,000.

 

Whetheran Employee is a five percent owner or a one percent owner shall be determinedin accordance with Section 416(i)(1)(B) of the Code.

 

(b) AParticipant who is a Key Employee on an Identification Date shall be treated asa Key Employee for purposes of the six month delay in distributions for thetwelve month period beginning on the first day of a month no later than the fourthmonth following the Identification Date. The Identification Date and the effective date of the delay indistributions shall be determined in accordance with Section 1.06 of theAdoption Agreement.

 

(c) ThePlan Sponsor may elect to apply an alternative method to identify Participantswho will be treated as Key Employees for purposes of the six month delay indistributions if the method satisfies each of the following requirements.  The alternative method is reasonably designedto include 

 

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allKey Employees, is an objectively determinable standard providing no direct orindirect election to any Participant regarding its application, and results ineither all Key Employees or no more than 200 Key Employees being identified inthe class as of any date.  Use of analternative method that satisfies the requirements of this Section 9.6(c )will not be treated as a change in the time and form of payment for purposes ofReg. Sec. 1.409A-2(b).

 

(d) The six month delay does not apply topayments described in Section 13.9 or to payments that occur after thedeath of the Participant.  If the paymentof all or any portion of the Participant’s vested Account is being delayed inaccordance with this Section 9.6 at the time he incurs a Disability whichwould otherwise require a distribution under the terms of the Plan, no amountshall be paid until the expiration of the six month period of delay required bythis Section 9.6.

 

**9.7****                              ****Change in Control.**  If the Plan Sponsor has elected to permitdistributions upon a Change in Control, the following provisions shallapply.  A distribution made upon a Changein Control will be made at the time specified in Section 6.01(a) ofthe Adoption Agreement in the form elected by the Participant in accordancewith the procedures described in Article 4.  Alternatively, if the Plan Sponsor haselected in accordance with Section 11.02 of the Adoption Agreement torequire distributions upon a Change in Control, the Participant’s remaining vestedAccount shall be paid to the Participant or the Participant’s Beneficiary atthe time specified in Section 6.01(a) of the Adoption Agreement as asingle lump sum payment.  A Change inControl, for purposes of the Plan, will occur upon a change in the ownership ofthe Plan Sponsor, a change in the effective control of the Plan Sponsor or achange in the ownership of a substantial portion of the assets of the PlanSponsor, but only if elected by the Plan Sponsor in Section 11.03 of theAdoption Agreement.  The Plan Sponsor,for this purpose, includes any corporation identified in this Section 9.7.  All distributions made in accordance withthis Section 9.7 are subject to the provisions of Section 9.6.

 

Ifa Participant continues to make deferrals in accordance with Article 4after he has received a distribution due to a Change in Control, the residualamount payable to the Participant shall be paid at the time and in the formspecified in the elections he makes in accordance with Article 4 or uponhis death or Disability as provided in Article 8.

 

Whethera Change in Control has occurred will be determined by the Administrator inaccordance with the rules and definitions set forth in this Section 9.7.  A distribution to the Participant will betreated as occurring upon a Change in Control if the Plan Sponsor terminatesthe Plan in accordance with Section 10.2 and distributes the Participant’sbenefits within twelve months of a Change in Control as provided in Section 10.3.

 

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(a)                      **Relevant Corporations.** To constitute a Change in Control for purposes of the Plan, the eventmust relate to (i) the corporation for whom the Participant is performingservices at the time of the Change in Control, (ii) the corporation thatis liable for the payment of the Participant’s benefits under the Plan (or allcorporations liable if more than one corporation is liable) but only if eitherthe deferred compensation is attributable to the performance of services by theParticipant for such corporation (or corporations) or there is a bona fidebusiness purpose for such corporation (or corporations) to be liable for suchpayment and, in either case, no significant purpose of making such corporation(or corporations) liable for such payment is the avoidance of federal incometax, or (iii) a corporation that is a majority shareholder of acorporation identified in (i) or (ii), or any corporation in a chain ofcorporations in which each corporation is a majority shareholder of anothercorporation in the chain, ending in a corporation identified in (i) or(ii).  A majority shareholder is definedas a shareholder owning more than fifty percent (50%) of the total fair marketvalue and voting power of such corporation.

 

(b)                     **Stock Ownership.** Code Section 318(a) applies for purposes of determining stockownership.  Stock underlying a vestedoption is considered owned by the individual who owns the vested option (andthe stock underlying an unvested option is not considered owned by theindividual who holds the unvested option). If, however, a vested option is exercisable for stock that is notsubstantially vested (as defined by Treasury Regulation Section 1.83-3(b) and(j)) the stock underlying the option is not treated as owned by the individualwho holds the option.

 

(c)                      **Change in the Ownership of aCorporation.**  A change in the ownership of a corporationoccurs on the date that any one person or more than one person acting as agroup, acquires ownership of stock of the corporation that, together with stockheld by such person or group, constitutes more than fifty percent (50%) of thetotal fair market value or total voting power of the stock of suchcorporation.  If any one person or morethan one person acting as a proxy is considered to own more than fifty percent(50%) of the total fair market value or total voting power of the stock of acorporation, the acquisition of additional stock by the same person or personsis not considered to cause a change in the ownership of the corporation (or tocause a change in the effective control of the corporation as discussed belowin Section 9.7(d)).  An increase inthe percentage of stock owned by any one person, or persons acting as a group,as a result of a transaction in which the corporation acquires its stock in 

 

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exchange forproperty will be treated as an acquisition of stock.  Section 9.7(c) applies only whenthere is a transfer of stock of a corporation (or issuance of stock of acorporation) and stock in such corporation remains outstanding after thetransaction.  For purposes of this Section 9.7(c),persons will not be considered to be acting as a group solely because theypurchase or own stock of the same corporation at the same time or as a resultof a public offering.  Persons will,however, be considered to be acting as a group if they are owners of acorporation that enters into a merger, consolidation, purchase or acquisitionof stock, or similar business transaction with the corporation.  If a person, including an entity, owns stockin both corporations that enter into a merger, consolidation, purchase oracquisition of stock, or similar transaction, such shareholder is considered tobe acting as a group with other shareholders in a corporation prior to thetransaction giving rise to the change and not with respect to the ownershipinterest in the other corporation.

 

(d)                     **Change in the effective controlof a corporation.**  A change in the effective control of acorporation occurs on the date that either (i) any one person, or morethan one person acting as a group, acquires (or has acquired during the twelvemonth period ending on the date of the most recent acquisition by such personor persons) ownership of stock of the corporation possessing thirty (30%) ormore of the total voting power of the stock of such corporation, or (ii) amajority of members of the corporation’s board of directors is replaced duringany twelve month period by directors whose appointment or election is notendorsed by a majority of the members of the corporation’s board of directorsprior to the date of the appointment or election, provided that for purposes ofthis paragraph (ii), the term corporation refers solely to the relevantcorporation identified in Section 9.7(a) for which no othercorporation is a majority shareholder for purposes of Section 9.7(a).  In the absence of an event described in Section 9.7(d)(i) or(ii), a change in the effective control of a corporation will not haveoccurred.  A change in effective controlmay also occur in any transaction in which either of the two corporationsinvolved in the transaction has a change in the ownership of such corporationas described in Section 9.7(c) or a change in the ownership of asubstantial portion of the assets of such corporation as described in Section 9.7(e).  If any one person, or more than one personacting as a group, is considered to effectively control a corporation withinthe meaning of this Section 9.7(d), the acquisition of additional controlof the corporation by the same person or persons is not considered to cause achange in the effective control of the corporation or to cause a change in theownership of the corporation within the meaning of Section 9.7(c).  For purposes of this Section 9.7(d),persons will or will not be considered to be acting as a group in accordancewith 

 

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rules similarto those set forth in Section 9.7(c) with the followingexception.  If a person, including anentity, owns stock in both corporations that enter into a merger,consolidation, purchase or acquisition of stock, or similar transaction, suchshareholder is considered to be acting as a group with other shareholders in acorporation only with respect to the ownership in that corporation prior to thetransaction giving rise to the change and not with respect to the ownershipinterest in the other corporation.

 

(e)                      **Changein the ownership of a substantial portion of a corporation’s assets.**  A change in the ownership of a substantialportion of a corporation’s assets occurs on the date that any one person, ormore than one person acting as a group (as determined in accordance with rules similarto those set forth in Section 9.7(d)), acquires (or has acquired duringthe twelve month period ending on the date of the most recent acquisition bysuch person or persons) assets from the corporation that have a total grossfair market value equal to or more than forty percent (40%) of the total grossfair market value of all of the assets of the corporation immediately prior tosuch acquisition or acquisitions.  Forthis purpose, gross fair market value means the value of the assets of thecorporation of the value of the assets being disposed of determined withoutregard to any liabilities associated with such assets.  There is no Change in Control event underthis Section 9.7(e) when there is a transfer to an entity that iscontrolled by the shareholders of the transferring corporation immediatelyafter the transfer.  A transfer of assetsby a corporation is not treated as a change in ownership of such assets if theassets are transferred to (i) a shareholder of the corporation(immediately before the asset transfer) in exchange for or with respect to itsstock, (ii) an entity, fifty percent (50%) or more of the total value orvoting power of which is owned, directly or indirectly, by the corporation, (iii) aperson, or more than one person acting as a group, that owns, directly orindirectly, fifty percent (50%) or more of the total value or voting power ofall the outstanding stock of the corporation, or (iv) an entity, at leastfifty (50%) of the total value or voting power of which is owned, directly orindirectly, by a person described in Section 9.7(e)(iii).  For purposes of the foregoing, and except asotherwise provided, a person’s status is determined immediately after thetransfer of assets.

 

**9.8****                              ****Permissible Delays in Payment.**  Distributions may be delayed beyond the datepayment would otherwise occur in accordance with the provisions of Articles 8and 9 in any of the following circumstances as long as the Employer treats allpayments to similarly situated Participants on a reasonably consistent basis.

 

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(a)                        The Employermay delay payment if it reasonably anticipates that its deduction with respectto such payment would be limited or eliminated by the application of Code Section 162(m).  Payment must be made during the Participant’sfirst taxable year in which the Employer reasonably anticipates, or shouldreasonably anticipate, that if the payment is made during such year thededuction of such payment will not be barred by the application of Code Section 162(m) orduring the period beginning with the Participant’s Separation from Service andending on the later of the last day of the Employer’s taxable year in which theParticipant separates from service or the 15th day of the third month followingthe Participant’s Separation from Service. If a scheduled payment to a Participant is delayed in accordance withthis Section 9.8(a), all scheduled payments to the Participant that couldbe delayed in accordance with this Section 9.8(a) will also bedelayed.

 

(b)                       The Employermay also delay payment if it reasonably anticipates that the making of thepayment will violate federal securities laws or other applicable laws providedpayment is made at the earliest date on which the Employer reasonablyanticipates that the making of the payment will not cause such violation.

 

(c)                        The Employerreserves the right to amend the Plan to provide for a delay in payment uponsuch other events and conditions as the Secretary of the Treasury may prescribein generally applicable guidance published in the Internal Revenue Bulletin.

 

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**ARTICLE 10 – AMENDMENT AND TERMINATION**

 

**10.1****                       *****Amendmentby Plan Sponsor*****. **The Plan Sponsor reserves the right toamend the Plan (foritself and each Employer) through action of its Boardof Directors.  No amendment can directly orindirectly deprive anycurrent or former Participant or Beneficiary of all orany portion of hisAccount which had accrued and become vested prior to the amendment.

 

**10.2****                       *****PlanTermination Following Change in Control or Corporate Dissolution.**** *If so elected by the Plan Sponsor in11.01 of the AdoptionAgreement, the Plan Sponsor reserves theright to terminate the Plan anddistribute all amounts credited to allParticipant Accounts within the 30days preceding or thetwelve months following a Change in Control asdetermined inaccordance with the rules set forth in Section 9.7. For thispurpose, the Plan willbe treated as terminated only if all agreements, methods, programs and otherarrangements sponsored by the Related Employer immediately after the Change inControl which are treated as a single plan under Reg. Sec. 1.409A-1(c)(2) arealso terminated so that all participants under the Plan and all similararrangements are required toreceive all amounts deferred under theterminated arrangements withintwelve months of the date the PlanSponsor irrevocably takes all necessary action to terminate the arrangements.In addition,the Plan Sponsor reserves the right toterminate the Plan within twelve monthsof a corporatedissolution taxed under Code Section 331 or with theapproval of abankruptcy court pursuant to 11 U. S. C. Section 503(b)(1)(A) providedthat amounts deferred under the Plan are includedin the gross incomesof Participants in the latest of (a) the calendar year inwhich the termination occurs,(b) the first calendar year in which the amount isno longer subject to asubstantial risk of forfeiture, or (c) the first calendaryear in which paymentis administratively practicable.

 

**10.3****                       *****OtherPlan Terminations.****** ***The Plan Sponsorretains the discretionto terminate the Plan if (a) all arrangementssponsored by the PlanSponsor that would be aggregated with any terminatedarrangement under  Code Section 409A and Reg. Sec.1.409A-1(c)(2) are terminated, (b) nopayments other thanpayments that would be payable under the terms ofthe arrangements ifthe termination had not occurred are made withintwelve months of thetermination of the arrangements, (c) all paymentsare made withintwenty-four months of the termination of thearrangements, (d) thePlan Sponsor does not adopt a new arrangement thatwould be aggregatedwith any terminated arrangement under Code Section 409A and theregulations thereunder at any time within the three year period following thedate of termination ofthe arrangement, and (e) the termination does not occur proximate to adownturn in the financial health of the Plan sponsor.  The Plan Sponsor also reserves theright to amend

 

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thePlan to provide that termination of the Plan will occur under such conditions and events as maybeprescribed by the Secretary of the Treasury ingenerally applicableguidance published in the InternalRevenue Bulletin.

 

**10.4****                       ****Plan Suspension.** The Plan may be suspended or “frozen” at any time by the Plan Sponsorwith respect to new contributions.  Inthe event that the Plan is suspended or “frozen,” benefits shall be held in thePlan and paid out in accordance with the terms of the Plan and any applicabledeferral election.

 

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**ARTICLE 11 – THE TRUST**

 

**11.1****                       ****Establishment of Trust. **ThePlan Sponsor may but is not required to establish a trust to hold amounts whichthe Plan Sponsor may contribute from time to time to correspond to some or allamounts credited to Participants under Section 6.2.  If the Plan Sponsor elects to establish atrust in accordance with Section 10.01 of the Adoption Agreement, theprovisions of Sections 11.2 and 11.3 shall become operative.

 

**11.2****                       ****Grantor Trust. **Any trust established bythe Plan Sponsor shall be between the Plan Sponsor and a trustee pursuant to aseparate written agreement under which assets are held, administered andmanaged, subject to the claims of the Plan Sponsor’s creditors in the event ofthe Plan Sponsor’s insolvency.  The trustis intended to be treated as a grantor trust under the Code, and theestablishment of the trust shall not cause the Participant to realize currentincome on amounts contributed thereto. The Plan Sponsor must notify the trustee in the event of a bankruptcy orinsolvency.

 

**11.3****                       ****Investment of Trust Funds. **Anyamounts contributed to the trust by the Plan Sponsor shall be invested by thetrustee in accordance with the provisions of the trust and the instructions ofthe Administrator.  Trust investmentsneed not reflect the hypothetical investments selected by Participants under Section 7.1for the purpose of adjusting Accounts and the earnings or investment results ofthe trust need not affect the hypothetical investment adjustments toParticipant Accounts under the Plan.

 

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**ARTICLE 12 – PLAN ADMINISTRATION**

 

**12.1****                       ****Powers and Responsibilities of theAdministrator. **TheAdministrator has the full power and the full responsibility to administer thePlan in all of its details, subject, however, to the applicable requirements ofERISA.  The Administrator’s powers andresponsibilities include, but are not limited to, the following:

 
| (a)    |   | To  make and enforce such rules and procedures as it deems necessary or  proper for the efficient administration of the Plan;                              |
|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                            |
| (b)    |   | To  interpret the Plan, its interpretation thereof to be final, except as  provided in Section 12.2, 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 12.2;                                                                                 |
|   |   |                                                                                                                                                            |
| (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 the reporting and disclosure requirements of Part 1 of  Subtitle B of Title I of ERISA;                                                    |
|   |   |                                                                                                                                                            |
| (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.          |

 

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**12.2****       *****Claims and Review Procedures*****.**

 

(a)           ClaimsProcedure.

 

Ifany 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 partiallydenied, the Administrator will notify such person of its decision in writing.  Such notification will contain (i) specificreasons for the denial, (ii) specific reference to pertinent Planprovisions, (iii) a description of any additional material or informationnecessary for such person to perfect such claim and an explanation of why suchmaterial or information is necessary, and (iv) a description of the Plan’sreview procedures and the time limits applicable to such procedures, includinga statement of the person’s right to bring a civil action  following an adverse decision on review.  Such notification will be given within 90days (45 days in the case of a claim regarding Disability) after the claim isreceived by the Administrator.  TheAdministrator may extend the period for providing the notification by 90 days(30 days in the case of a claim regarding Disability) if special circumstancesrequire an extension of time for processing the claim and if written notice ofsuch extension and circumstance is given to such person within the initial 90day period (45 day period in the case of a claim regarding Disability).  If such notification is not given within suchperiod, the claim will be considered denied as of the last day of such periodand such person may request a review of his claim.

 

(b)           ReviewProcedure.

 

Within60 days (180 days in the case of a claim regarding Disability) after the dateon which a person receives a written notification of denial of claim (or, ifwritten notification is not provided, within 60 days (180 days in the case of aclaim regarding Disability) of the date denial is considered to have occurred),such person (or his duly authorized representative) may (i) file a writtenrequest with the Administrator for a review of his denied claim and ofpertinent documents and (ii) submit written issues and comments to theAdministrator.  The Administrator willnotify such person of its decision in writing. Such notification will be written in a manner calculated to beunderstood by such person and will contain specific reasons for the decision aswell as specific references to pertinent Plan provisions.  The notification will explain that the personis entitled to receive, upon request and free of charge, 

 

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reasonableaccess to and copies of all pertinent documents and has the right to bring acivil action following an adverse decision on review.  The decision on review will be made within 60days (45 days in the case of a claim regarding Disability).  The Administrator may extend the period formaking the decision on review by 60 days (45 days in the case of a claimregarding Disability) if special circumstances require an extension of time forprocessing the request such as an election by the Administrator to hold ahearing, and if written notice of such extension and circumstances is given tosuch person within the initial 60-day period (45 days in the case of a claimregarding Disability).  If the decisionon review is not made within such period, the claim will be considered denied.

 

Nolegal action for benefits under the Plan may be brought until the claimant (i) hassubmitted a written application for benefits in accordance with the proceduresdescribed above, (ii) has been notified by the Administrator that theapplication is denied, (iii) has filed a written request for a review ofthe application in accordance with the appeal procedure described above, and (iv) hasbeen notified in writing that the Administrator has denied the appeal.

 

**12.3****                       *****PlanAdministrative Costs*****.**** **All reasonable costs and expenses(including legal,accounting, and employee communication fees) incurredby the Administratorin administering the Plan shall be paid by Planto the extent not paid by the Employer.

 

**12.4****                       ****No Discretionary Distributions.**  Except as expressly provided herein, theAdministrator shall not exercise discretion with respect to the timing or formof distributions from the Plan, but shall make distributions at the time and inthe form elected by the Participant or as otherwise specified in the Plan.  Notwithstanding anything to the contrary setforth herein, the Administrator retains the right, in its sole discretion, todelay or accelerate distributions under the Plan to the extent permitted by Section 409A.

 

**12.5****                       *****PermittedAcceleration of Payment******.***  The Administrator may permit acceleration ofthe time or schedule of any payment or amount scheduled to be paid pursuant toa payment under the Plan provided such acceleration would be permitted by theprovisions of Reg. Sec. 1.409A-3(j)(4), including the following events:

 
| (a)    |   | **Domestic  Relations Order.** A payment may be  accelerated if such payment is made to an alternate payee pursuant to and  following the receipt and qualification of a domestic relations order as  defined in Section 414(p) of the Code. |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   | ** **                                                                                                                                                                                                                                             |
| (b)    |   | **Compliance  with Ethics Agreements and Legal Requirements.**  A payment may be accelerated as may be necessary to comply                                                                                                                             |

 

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|   |   | with  ethics agreements with the Federal government or as may be reasonably  necessary to avoid the violation of Federal, state, local or foreign ethics  law or conflicts of laws, in accordance with the requirements of Section 409A.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
| (c)    |   | **De  Minimis Amounts.**  A payment will be accelerated if (i) the  amount of the payment is not greater than the applicable dollar amount under Section 402(g)(1)(B) of  the Code, (ii) at the time the payment is made the amount constitutes  the Participant’s entire interest under the Plan and all other Account  Balance Plans.                                                                                                                                                                                                                                                                                                                                                                        |
|   |   | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |
| (d)    |   | **FICA  Tax.**  A payment may be accelerated to the extent  required to pay the Federal Insurance Contributions Act tax imposed under  Sections 3101, 3121(a) and 3121(v)(2) of the Code with respect to  compensation deferred under the Plan (the “FICA Amount”).  Additionally, a payment may be accelerated  to pay the income tax on wages imposed under Section 3401 of the Code on  the FICA Amount and to pay the additional income tax at source on wages  attributable to the pyramiding Section 3401 wages and taxes.  The total payment under this subsection (d) may  not exceed the aggregate of the FICA Amount and the income tax withholding  related to the FICA Amount. |

 
| (e)    |   | **Section 409A  Additional Tax.**  A payment may be accelerated if the Plan  fails to meet the requirements of Section 409A; provided that such  payment may not exceed the amount required to be included in income as a  result of the failure to comply with the requirements of Section 409A.                                                                                                                                                                                                                      |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
| (f)    |   | **Offset.**  A payment may be accelerated in the  Administrator’s discretion as satisfaction of a debt of the Participant to  the Employer, where such debt is incurred in the ordinary course of the  service relationship between the Participant and the Employer, the entire  amount of the reduction in any of the Employer’s taxable years does not  exceed $5,000, and the reduction is made at the same time and in the same  amount as the debt otherwise would have been due and collected from the  Participant. |
|   |   | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
| (g)    |   | **Other  Events.**  A payment may be accelerated in the  Administrator’s discretion in connection with such other events and  conditions as permitted by Section 409A.                                                                                                                                                                                                                                                                                                                                                      |

 

4

----

 

**ARTICLE 13 – SECURITIES LAWS COMPLIANCE**

 

**13.1****                       ****Designation of Participants.** Notwithstanding anything to the contrary setforth herein, with respect to any Director, only the Board or its CompensationCommittee may designate such Director as eligible to participate in the Plan**.**

 

**13.2****                       ****Action by Administrator. **Withrespect to any Participant who is then subject to Section 16 of theExchange Act, notwithstanding anything to the contrary set forth herein, anyfunction of the Administrator under the Plan relating to such Participant shallbe performed solely by the Board or its Compensation Committee, if and to theextent required to ensure the availability of an exemption under Section 16of the Exchange Act for any transaction relating to such Participant under thePlan.

 

**13.3****                       ****Compliance with Section 16. **Notwithstandingany other provision of the Plan or any rule, instruction, election form orother form, the Plan and any such rule, instruction or form shall be subject toany additional conditions or limitations set forth in any applicable exemptive rule underSection 16 of the Exchange Act (including any amendment to Rule 16b-3)that are requirements for the application of such exemptive rule.  To the extent permitted by applicable law,such provision, rule, instruction or form shall be deemed amended to the extentnecessary to conform to such applicable exemptive rule.

 

**13.4****                       ****Capitalization Changes. **Inthe event of capitalization changes affecting the Plan Sponsor’s common stock,the Board or its Compensation Committee shall make an appropriate and equitableadjustment to the number of Plan Sponsor shares credited to the Director’sAccount.

 

1

----

 

**ARTICLE 14 – MISCELLANEOUS**

 

***14.1******                       ******UnsecuredGeneral Creditor of the Employer*****.**** **Participantsand their Beneficiaries, heirs, successors and assigns shall have no legal orequitable rights, interests or claims in any property or assets of theEmployer.  For purposes of the payment ofbenefits under the Plan, any and all of the Employer’s assets shall be, andshall remain, the general, unpledged, unrestricted assets of the Employer.  Each Employer’s obligation under the Planshall be merely that of an unfunded and unsecured promise to pay money in the future.

 

***14.2******                       ******Employer’sLiability******.***** **EachEmployer’s liability for the payment of benefits under the Plan shall bedefined only by the Plan and by the deferral agreements entered into between aParticipant and the Employer.  AnEmployer shall have no obligation or liability to a Participant under the Planexcept as provided by the Plan and a deferral agreement or agreements.  An Employer shall have no liability toParticipants employed by other Employers.

 

***14.3******                       ******Limitationof Rights******.***  Neither the establishment of the Plan, norany amendment thereof, nor the creation of any fund or account, nor the paymentof any benefits, will be construed as giving to the Participant or any otherperson any legal or equitable right against the Employer, the Plan or the Administrator,except as provided herein; and in no event will the terms of employment orservice of the Participant be modified or in any way affected hereby.

 

***14.4******                       ******Anti-Assignment******.***  Except as may be necessary to fulfill adomestic relations order within the meaning of Code Section 414(p), noneof the benefits or rights of a Participant or any Beneficiary of a Participantshall be subject to the claim of any creditor. In particular, to the fullest extent permitted by law, all such benefitsand rights shall be free from attachment, garnishment, or any other legal orequitable process available to any creditor of the Participant and his or herBeneficiary.  Neither the Participant norhis or her Beneficiary shall have the right to alienate, anticipate, commute, pledge,encumber, or assign any of the payments which he or she may expect to receive,contingently or otherwise, under the Plan, except the right to designate aBeneficiary to receive death benefits provided hereunder.

 

***14.5******                       ******Facilityof Payment******.***  If the Administrator determines, on the basisof medical reports or other evidence satisfactory to the Administrator, thatthe recipient of any benefit payments under the Plan is incapable of handlinghis affairs by reason of minority, illness, infirmity or other incapacity, theAdministrator may direct the Employer to disburse such payments to a person orinstitution designated by a court which has jurisdiction over such recipient ora person or institution otherwise having the legal authority under State lawfor the care 

 

1

----

 

andcontrol of such recipient. The receipt by such person or institution of anysuch payments therefore, and any such payment to the extent thereof, shalldischarge the liability of the Employer, the Plan and the Administrator  for the payment of benefits hereunder to suchrecipient.

 

***14.6******                       ******Notices*****.**  Any notice or other communication to theEmployer or Administrator in connection with the Plan shall be deemed deliveredin writing if addressed to the Plan Sponsor at the address specified in Section 1.03of the Adoption Agreement and if either actually delivered at said address or,in the case or a letter, 5 business days shall have elapsed after the sameshall have been deposited in the United States mails, first-class postageprepaid and registered or certified.

 

***14.7******                       ******TaxWithholding******.***** If the Employer concludes that tax is owingwith respect to any deferral or payment hereunder, the Employer shall withholdsuch amounts from any payments due the Participant, as permitted by law, orotherwise make appropriate arrangements with the Participant or his Beneficiaryfor satisfaction of such obligation. Tax, for purposes of this Section 14.7 means any federal, state,local or any other governmental income tax, employment or payroll tax, excisetax, or any other tax or assessment owing with respect to amounts deferred, anyearnings thereon, and any payments made to Participants under the Plan.  By electing to make a deferral under thisPlan, the Participant authorizes any required withholding from, at the Employer’selection, distributions and any other amounts payable to the Participant, andthe Participant otherwise agrees to make adequate provision for any sumsrequired to satisfy the federal, state, local and foreign tax withholdingobligations of the Employer, if any, which arise in connection with paymentsfrom this Plan.  Unless the taxwithholding obligations of the Employer are satisfied, the Employer shall haveno obligation to make distributions under this Plan.  For each Plan Year in which a deferral amountis being contributed to the Plan, if applicable, the Employer shall withholdfrom that portion of the Participant’s Compensation that is not being deferred,in a manner determined by the Employer, the Participant’s share of FICA andother employment taxes on such deferral amount. If necessary, the Employer may reduce the deferral amount in order tocomply with this Section 14.7.

 

***14.8******                       ******Indemnification******.**** *EachEmployer shall indemnify and hold harmless each employee, officer, or directorof an Employer to whom is delegated duties, responsibilities, and authoritywith respect to the Plan against all claims, liabilities, fines and penalties,and all expenses reasonably incurred by or imposed upon him (including but notlimited to reasonable attorney fees) which arise as a result of his actions orfailure to act in connection with the operation and administration of the Planto the extent lawfully allowable and to the extent that such claim, liability, fine,penalty, or expense is not paid for by liability insurance purchased or paidfor by an Employer. Notwithstanding the foregoing, an Employer shall notindemnify any person for any such amount incurred through any settlement orcompromise of any action unless 

 

2

----

 

theEmployer consents in writing to such settlement or compromise.  Indemnification under this Section 13.8shall not be applicable to any person if the cost, loss, liability, or expenseis due to the person’s gross negligence, fraud or willful misconduct or if theperson refuses to assist in the defense of the claim against him.

 

***14.9******                       *****Successors.**  The provisions of this Plan shall bind andinure to the benefit of the Plan Sponsor, the Participant’s Employer and theirsuccessors and assigns and the Participant and the Participant’s designatedBeneficiaries.

 

***14.10******                *****Validity**.  In case any provision of this Plan shall beillegal or invalid for any reason, said illegality or invalidity shall notaffect the remaining parts hereof, but this Plan shall be construed andenforced as if such illegal or invalid provision had never been insertedherein.

 

***14.11******                *****Scrivener’s Error.**  Notwithstanding any other provision of thisPlan to the contrary, if there is a scrivener’s error in properly transcribingthis Plan document, it shall not be a violation of the Plan terms to operatethe Plan in accordance with its proper provisions, rather than in accordancewith the terms of the Plan document, pending correction of the Plan documentthrough an amendment.  In addition, anyprovisions of the Plan document improperly added as a result of scrivener’serror shall be considered null and void as of the date such error occurred.

 

***14.12******                *****Disclaimer.**  It is the Plan Sponsor’s intention that thisarrangement comply with the requirements of Section 409A.  Notwithstanding the foregoing or anythingelse to the contrary in the Plan, neither the Plan Sponsor nor any Employershall have any liability to any Participant should any provision of the Planfail to satisfy the requirements of Section 409A.

 

***14.13******                ******GoverningLaw******.***** **The Plan will be construed, administeredand enforcedaccording to the laws of theState specified by thePlan Sponsor in Section 12.01 of the Adoption Agreement.

 

3

----

 

**AMYLIN PHARMACEUTICALS, INC.**

 

**2001 NON-QUALIFIED DEFERRED COMPENSATION PLAN**

 

**ADOPTION AGREEMENT**

 

**Capitalizedterms not otherwise defined herein have the meanings set forth in the AmylinPharmaceuticals, Inc. 2001 Non-Qualified Deferred Compensation Plan document**

 

**1.01        PREAMBLE**

 

Bythe execution of this Adoption Agreement the Plan Sponsor hereby [complete (a) or(b)]

 

(a)   o    adopts a new plan as of                      [month, day, year]

 

(b)   x   amends and restates its existing plan as of 01/01/2008  [month, day, year] which is the AmendmentEffective Date.  All deferrals made underthe existing plan prior to the Amendment Effective Date shall also be governedby the terms of this amended and restated Plan on and after the AmendmentEffective Date.

 

Original Effective Date:  04/01/2000[month, day, year]

 

Pre-409A Grandfathering:      o Yes      x No

 

**1.02        PLAN**

 

Plan Name: AmylinPharmaceuticals, Inc. 2001 Non-Qualified Deferred Compensation Plan

 

Plan Year:  the annual period ending 12/31

 

**1.03        PLANSPONSOR**

 
| Name:       |   Amylin  Pharmaceuticals, Inc.            |
|-------------|-----------------------------------------------------------|
| Address:    |   9360  Towne Center Drive, San Diego, CA 92121 |
| Phone  # :  |   (858)  309-7529                               |
| EIN:        |   33-0266089                                    |
| Fiscal  Yr: |   Ends  12/31                                   |

 

Isstock of the Plan Sponsor, any Employer or any Related Employer publicly tradedon an established securities market?

 
| x Yes |   | o No |
|------------|--------|-----------|

 

**1.04       ****EMPLOYER**

 

Thefollowing entities have been authorized by the Plan Sponsor to participate inand have adopted the Plan (insert “Not Applicable” if none have beenauthorized):

 

1

----

 
| Entity |   | Publicly Traded on Est. Securities Market |
|--------|--------|-------------------------------------------|

 
|                               |   | Yes |   | No |
|------------------------------------|--------|-----|--------|----|
| Amylin  Pharmaceuticals, Inc. |   | x   |   | o  |
|                               |   | o   |   | o  |
|                               |   | o   |   | o  |
|                               |   | o   |   | o  |
|                               |   | o   |   | o  |
|                               |   | o   |   | o  |

 

**1.05****                       ****ADMINISTRATOR**

 

ThePlan Sponsor has designated the following party or parties to be responsiblefor the administration of the Plan prior to a Change in Control.  From and after any Change in Control,responsibility for administration of the Plan shall be as set forth on AppendixC.

 
| Name:    |   Amylin  Pharmaceuticals, Inc.            |
|----------|-----------------------------------------------------------|
| Address: |   9360  Towne Center Drive, San Diego, CA 92121 |

 

Note:                 The Administrator is the person or personsdesignated by the Plan Sponsor to be responsible for the administration of thePlan.  Neither Fidelity Employer ServicesCompany nor any other Fidelity affiliate can be the Administrator.

 

**1.06****                       ****KEY EMPLOYEE DETERMINATION DATES**

 

The Employer has designated December 31       as the Identification Date for purposes of determining Key Employees.

 

In the absence of a designation, the IdentificationDate is December 31.

 

The Employer has designated April 1       as the effective date for purposes of applying the six month delay indistributions to Key Employees.

 

In the absence of a designation, the effective date isthe first day of the fourth month following the Identification Date.

 

2

----

 

**2.01****                       ****PARTICIPATION**

 

(a)  x    Employees[complete (i), (ii) or (iii)]

 

(i)    o    EligibleEmployees are selected by the Employer.

 

(ii)   x   EligibleEmployees are those employees of the Employer who satisfy the followingcriteria:

 

The Employer shall determine in its sole discretion the Employees who mayparticipate in the Plan, which may include Employees internally designated as“directors” or higher and whose compensation exceeds the amount defined in Section 414(q) ofthe Internal Revenue Code by at least $10,000.

 

(iii)  o   Employeesare not eligible to participate.

 

(b)  x    Directors[complete (i), (ii) or (iii)]

 

(i)    x   AllDirectors who are non-employee board members are eligible to participate.

 

(ii)   o   OnlyDirectors selected by the Employer are eligible to participate.

 

(iii)  o   Directorsare not eligible to participate.

 

3

----

 

**3.01       ****COMPENSATION**

 

For purposes of determining Participant contributions under Article 4and Employer contributions under Article 5, Compensation shall be definedin the following manner [complete (a) or (b) and select (c) and/or(d), if applicable]:

 
|  (a) | x      |   | Employee Compensation is defined as:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |
|-----------|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|
|      |   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |
|      |   |   | the Eligible Employee’s “Base Salary” and “Employee  Performance Bonus.” 

 

·      “Base Salary” shall mean the  Eligible Employee’s base pay including any severance benefit payments made on  or before termination of employment, but excluding incentive pay, premium  pay, commissions, overtime, bonuses, other forms of variable compensation,  and any post-termination severance benefit payments.

·      “Employee Performance Bonus”  shall mean the Eligible Employee’s bonus which is determined based upon the  Eligible Employee’s and/or the Employer’s achievement of performance goals  over a designated performance period. |   |
|      |   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |
|  (b) | o      |   | Compensation as defined in [insert name of  qualified plan] without regard to the limitation in  Section 401(a)(17)  of the Code for such Plan Year.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |   |
|      |   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |
|  (c) | x      |   | Director Compensation is defined as:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |
|      |   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |
|      |   |   | All cash fees paid to Directors by an Employer                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |   |
|      |   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |
|  (d) | o      |   | Compensation shall, for all Plan purposes, be  limited to $          .                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |   |
|      |   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |   |
|  (e) | o      |   | Not Applicable.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |   |

 

**3.02****                       ****BONUSES**

 

Compensation,as defined in Section 3.01 of the Adoption Agreement, includes thefollowing type of bonuses:

 
| Type                        | Will be treated as Performance

Based Compensation |
|-----------------------------|----------------------------------------------------|
|                        |                                               |
|                        |                                               | Yes |   | No |   |
| Employee  Performance Bonus |                                               | x |   | o |   |
|                        |                                               | o |   | o |   |
|                        |                                               | o |   | o |   |
|                        |                                               | o |   | o |   |
|                        |                                               | o |   | o |   |

 
| o | Not  Applicable. |
|---|------------------|

 

4

----

 

**4.01       ****PARTICIPANT CONTRIBUTIONS**

 

If Participant contributions are permitted, complete (a), (b), and(c).  Otherwise complete (d).

 

**(a)          ****Amountof Deferrals**

 

AParticipant may elect within the period specified in Section 4.01(b) ofthe Adoption Agreement to defer the following amounts of remuneration.  For each type of remuneration listed,complete “dollar amount” and / or “percentage amount”.

 

(i)             Compensation Other than Bonuses [do not completeif you complete (iii)]

 
| ** **                              | ** ** | **Dollar Amount** | ** ** | **% Amount** | ** ** | ** ** | ** ** |
|-----------------------------------------|------------|------------------------|------------|-------------------|------------|------------|------------|
| **Type of Remuneration**      | ** ** | **Min**                | ** ** | **Max**           | ** ** | **Min**    | ** ** | **Max** | ** ** | **Increment** | ** ** |
| (a)    Base  Salary |       |                   |       |              |       | 0          | %          | 80 | % | 1 | % |
| (b)                                     |       |                   |       |              |       |       |       |   |   |   |   |
| (c)                                     |       |                   |       |              |       |       |       |   |   |   |   |

 

Note:  The increment is required to determine thepermissible deferral amounts.  Forexample, a minimum of 0% and maximum of 20% with a 5% increment would allow anindividual to defer 0%, 5%, 10%, 15% or 20%.

 

(ii)          Bonuses [do not complete if you complete (iii)]

 
| ** **                           | ** ** | **Dollar Amount** | ** ** | **% Amount** | ** ** | ** ** | ** ** |
|--------------------------------------|------------|------------------------|------------|-------------------|------------|------------|------------|
| **Type of Bonus**          | ** ** | **Min**                | ** ** | **Max**           | ** ** | **Min**    | ** ** | **Max** | ** ** | **Increment** | ** ** |
| (a) Employee  Performance Bonus |       |                   |       |              |       | 0          | %          | 80 | % | 1 | % |
| (b)                                  |       |                   |       |              |       |       |       |   |   |   |   |
| (c)                                  |       |                   |       |              |       |       |       |   |   |   |   |

 

(iii)       Compensation [do not complete if you completed (i) and (ii)]

 
| **Dollar Amount** | ** ** | **% Amount** | ** ** | ** ** | ** ** |
|------------------------|------------|-------------------|------------|------------|------------|
| **Min**                | ** ** | **Max**           | ** ** | **Min**    | ** ** | **Max** | ** ** | **Increment** | ** ** |
|                   |       |              |       |       |       |   |   |   |   |

 

(iv)      Director Compensation

 
| ** **               | ** ** | **Dollar Amount** | ** ** | **% Amount** | ** ** | ** ** | ** ** |
|--------------------------|------------|------------------------|------------|-------------------|------------|------------|------------|
| **Type of Compensation** | ** ** | **Min**                | ** ** | **Max**           | ** ** | **Min**    | ** ** | **Max** | ** ** | **Increment** | ** ** |
| Cash Fees                |       |                   |       |              |       | 0          | %          | 100 | % | 1 | % |
| Other:                   |       |                   |       |              |       |       |       |   |   |   |   |
| Other:                   |       |                   |       |              |       |       |       |   |   |   |   |

 

5

----

 

**(b)          ****ElectionPeriod**

 

(i)    PerformanceBased Compensation

 

Aspecial election period

 
| o | Does |   | x | Does  Not |
|---|------|--------|---|-----------|

 

applyto each eligible type of performance based compensation referenced in Section 3.02of the Adoption Agreement.

 

Thespecial election period, if applicable, will be determined by the Employer.

 

(ii)          Newly Eligible Participants

 

Anemployee or Director who is classified or designated as an Eligible Employee orDirector during a Plan Year

 
| x | May |   | o | May Not |
|---|-----|--------|---|--------------|

 

electto defer Compensation earned during the remaining eligible period of the PlanYear by completing a deferral agreement within the 30 day period beginning onthe date he is eligible to participate in the Plan.  Such election shall become effectivecommencing with the first day of the first quarterly period that commencesfollowing the effective date of the deferral election.

 

**(c)****                                 ****Revocation of Deferral Agreement**

 

A Participant’s deferral agreement

 
| x | Will      |
|---|-----------|
| o | Will  Not |

 

becancelled for the remainder of any Plan Year during which he receives ahardship distribution of elective deferrals from a qualified cash or deferredarrangement maintained by the Employer. If cancellation occurs, the Participant may resume participation inaccordance with Article 4 of the Plan.

 

**(d)****                                 ****No Participant Contributions**

 

o                          Participant contributions are not permittedunder the Plan.

 

6

----

 

**5.01****                       ****EMPLOYER CONTRIBUTIONS**

 

If Employer contributions are permitted, complete (a) and/or(b).  Otherwise complete (c).

 

**(a)****                                 ****Matching Contributions**

 

(i)             Amount

 

For each Plan Year, the Employer shall make a Matching Contribution onbehalf of each Participant who defers Compensation for the Plan Year andsatisfies the requirements of Section 5.01(a)(ii) of the AdoptionAgreement equal to [complete the ones that are applicable]:

 
| (A)    | o      |              [insert  percentage] of the Compensation the Participant has elected to defer for the  Plan Year                                                                                                                                     |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                               |
| (B)    | o      | An amount determined by the Employer in its sole  discretion                                                                                                                                                                                                                                                       |
|   |   |                                                                                                                                                                                                                                                                                                               |
| (C)    | o      | Matching Contributions for each Participant shall be  limited to $                  and/or                 % of  Compensation. |
|   |   |                                                                                                                                                                                                                                                                                                               |
| (D)    | o      | Other:                                                                                                                                                                                                                                                                                                             |
|   |   |                                                                                                                                                                                                                                                                                                               |
|   |   |                                                                                                                                                                                                                                                                                                               |
| (E)    | o      | Not Applicable [Proceed to Section 5.01(b)]                                                                                                                                                                                                                                                                   |
|   |   |                                                                                                                                                                                                                                                                                                               |

(ii)    Eligibility for Matching Contribution

 

A Participant who defers Compensation for the Plan Year shall receivean allocation of Matching Contributions determined in accordance with Section 5.01(a)(i) providedhe satisfies the following requirements [complete the ones that areapplicable]:

 
|  (A)  o | Describe  requirements:                                                                                 |
|------------------------|---------------------------------------------------------------------------------------------------------|
|                   |                                                                                                    |
|                   |                                                                                                    |
|                   |                                                                                                    |
|  (B)  o | Is  selected by the Employer in its sole discretion to receive an allocation of  Matching Contributions |
|                   |                                                                                                    |
|  (C)  o | No  requirements                                                                                        |

 

7

----

 

(iii)       Time of Allocation

 

Matching Contributions, if made, shall be treated as allocated [selectone]:

 
| (A)  o | As  of the last day of the Plan Year                                                                                                         |
|------------------|----------------------------------------------------------------------------------------------------------------------------------------------|
|             |                                                                                                                                         |
| (B)  o | At  such times as the Employer shall determine in it sole discretion                                                                         |
|             |                                                                                                                                         |
| (C)  o | At  the time the Compensation on account of which the Matching Contribution is  being made would otherwise have been paid to the Participant |
|             |                                                                                                                                         |
| (D)  o | Other:                                                                                                                                       |
|             |                                                                                                                                         |
|             |                                                                                                                                         |

 

**(b)          ****OtherContributions**

 

(i)    Amount

 

The Employer shall make a contribution on behalf of each Participantwho satisfies the requirements of Section 5.01(b)(ii) equal to[complete the ones that are applicable]:

 
| (A)  o | An  amount equal to              [insert  number] % of the Participant’s Compensation                              |
|------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|             |                                                                                                                                                                                          |
| (B)  x | An  amount determined by the Employer in its sole discretion                                                                                                                                  |
|             |                                                                                                                                                                                          |
| (C)  o | Contributions  for each Participant shall be limited to $                       |
|             |                                                                                                                                                                                          |
| (D)  o | Other:                                                                                                                                                                                        |
|             |                                                                                                                                                                                          |
|             |                                                                                                                                                                                          |
|             |                                                                                                                                                                                          |
| (E)  o | Not  Applicable [Proceed to Section 6.01]                                                                                                                                                |

 

8

----

 

(ii)          Eligibility for Other Contributions

 

A Participant shall receive an allocation of other Employercontributions determined in accordance with Section 5.01(b)(i) forthe Plan Year if he satisfies the following requirements [complete the one thatis applicable]:

 
| (A)  o | Describe  requirements:                                                                                       |
|------------------|---------------------------------------------------------------------------------------------------------------|
|             |                                                                                                          |
|             |                                                                                                          |
|             |                                                                                                          |
| (B)  x | Is  selected by the Employer in its sole discretion to receive an allocation of  other Employer contributions |
|             |                                                                                                          |
| (C)  o | No  requirements                                                                                              |

 

(iii)       Time of Allocation

 

Employer contributions, if made, shall be treated as allocated [selectone]:

 
| (A)  o | As  of the last day of the Plan Year                                          |
|------------------|-------------------------------------------------------------------------------|
|             |                                                                          |
| (B)  x | At  such time or times as the Employer shall determine in its sole discretion |
|             |                                                                          |
| (C)  o | Other:                                                                        |
|             |                                                                          |
|             |                                                                          |

 

**(c)          ****NoEmployer Contributions**

 

o         Employer contributions are not permitted under thePlan.

 

9

----

 

**6.01        DISTRIBUTIONS**

 

Thetiming and form of payment of distributions made from the Participant’s vestedAccount shall be made in accordance with the elections made in this Section 6.01of the Adoption Agreement except when Section 9.6 of the Plan requires asix month delay for certain distributions to Key Employees of publicly tradedcompanies. Distributions shall be made in cash, except as noted in Appendix B.

 

**(a)****         ****Timing of Distributions**

 
| (i)    | All  distributions shall commence in accordance with the following [choose one]:                                  |
|--------|-------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                              |
|   | (A)                                                                                                               | o | As  soon as administratively feasible following the distribution event |
|   | (B)                                                                                                               | x | Monthly  on specified day 15th [insert day] |
|   | (C)                                                                                                               | o | Annually  on specified month and day         [insert  month and day] |
|   | (D)                                                                                                               | o | Calendar  quarter on specified month and day [          month of quarter (insert 1,2 or 3);          day (insert day)] |
|   |                                                                                                              |   |   |
| (ii)   | The  timing of distributions as determined in Section 6.01(a)(i) shall  be modified by the adoption of: |
|   |                                                                                                              |   |   |
|   | (A)                                                                                                               | x | Event  Delay – Distribution events other than those based on Specified Date or  Specified Age will be treated as not having occurred for 1 month  following such event, except as follows: |
|   |                                                                                                              |   |   | A  distribution event applicable to any Director or Key Employee will be treated  as not having occurred for 6 months following such event in the case  of any distribution event to such Participant (other than due to a selected  Specified Date or Specified Age).

A  distribution event due to any Participant’s death will be treated as not  having occurred for 6 months following such event. |
|   |                                                                                                              |   |   |   |
|   | (B)                                                                                                               | o | Hold  Until Next Year – Distribution events other than those based on Specified  Date or Specified Age will be treated as not having occurred for twelve  months from the date of the event if payment pursuant to Section 6.01(a)(i) will  thereby occur in the next calendar year or on the first payment date in the  next calendar year in all other cases. |
|   |                                                                                                              |   |   |
|   | (C)                                                                                                               | o | Immediate  Processing – The timing method selected by the Plan Sponsor under  Section 6.01(a)(i) shall be overridden for the following  distribution events [insert events]: |
|   |                                                                                                              |   |   |
|   | (D)                                                                                                               | o | Not  applicable. |

 

10

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**(b)****         ****Distribution Events**

 

Participants may elect the following payment eventsand form of payment. If multiple events are selected, the earliest to occurwill trigger payment. If a Specified Date event is followed by either aRetirement event or a Change in Control event, the Retirement or Change inControl election will govern the distribution of any then unpaid remainingportion of the Account applicable to such election, if applicable. If aRetirement event is followed by a Change in Control event, the Participant’sChange in Control election will govern the distribution of any then unpaidremaining portion of the Account applicable to such election, if applicable. Forexample, if a Participant elects 10 installment payments for a Specified Datedistribution event and 15 installment payments for a Change in Controldistribution event, and a Change in Control occurs after 2 Specified Datedistribution event installment payments have already been made, the portion ofthe Participant’s Account that would otherwise have been paid in 8 remainingSpecified Date installment payments in the absence of a Change in Control willinstead be paid in 15 annual installment payments following the Change inControl.

 

For installments, insert the range of availableperiods (e.g., 5-15) or insert the periods available (e.g., 5,7,9).

** **
| ** ** | ** ** | ** **                                                                                                                                                                        | **Lump** | ** ** | ** **       |
|------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------|------------|------------------|
| ** ** | ** ** | ** **                                                                                                                                                                        | **Sum**  | ** ** | **Installments** |
|       |       |                                                                                                                                                                              |     |       |             |
| (i)        | x          | Specified  Date                                                                                                                                                                   | x        |       | 2-15 years       |
|       |       |                                                                                                                                                                              |     |       |             |
| (ii)       | o          | Specified  Age                                                                                                                                                                    |     |       | years            |
|       |       |                                                                                                                                                                              |     |       |             |
| (iii)      | x          | Separation  from Service                                                                                                                                                          | x        |       | years            |
|       |       |                                                                                                                                                                              |     |       |             |
| (iv)       | o          | Separation  from Service plus 6 months                                                                                                                                            |     |       | years            |
|       |       |                                                                                                                                                                              |     |       |             |
| (v)        | o          | Separation  from Service plus              months  [not to exceed          months] |     |       | years            |
|       |       |                                                                                                                                                                              |     |       |             |
| (vi)       | x          | Retirement                                                                                                                                                                        | x        |       | 2-15 years       |
|       |       |                                                                                                                                                                              |     |       |             |
| (vii)      | o          | Retirement  plus 6 months                                                                                                                                                         |     |       | years            |
|       |       |                                                                                                                                                                              |     |       |             |
| (viii)     | o          | Retirement  plus            months [not  to exceed          months]                     |     |       | years            |
|       |       |                                                                                                                                                                              |     |       |             |
| (ix)       | o          | Later  of Separation from Service or Specified Age                                                                                                                                |     |       | years            |
|       |       |                                                                                                                                                                              |     |       |             |
| (x)        | o          | Later  of Separation from Service or Specified Date                                                                                                                               |     |       | years            |
|       |       |                                                                                                                                                                              |     |       |             |
| (xi)       | o          | Disability                                                                                                                                                                        |     |       | years            |
|       |       |                                                                                                                                                                              |     |       |             |
| (xii)      | o          | Death                                                                                                                                                                             |     |       | years            |
|       |       |                                                                                                                                                                              |     |       |             |
| (xiii)     | x          | Change  in Control                                                                                                                                                                | x        |       | 2-15 years       |

 

11

----

 

The minimum deferral periodfor Specified Date or Specified Age event shall be 1 year.

 

Installments may be paid[select each that applies]

 
| o | Monthly   |
|---|-----------|
| o | Quarterly |
| x | Annually  |

 

(c)          Specified Date and SpecifiedAge elections may not extend beyond age         [insert age or “Not Applicable”if no maximum age applies].

 

12

----

 

(d)         Payment Election Override

 

Payment of the remaining vested balance of the Participant’s Accountwill automatically occur at the time specified in Section 6.01(a) ofthe Adoption Agreement in the form indicated upon the earliest to occur of thefollowing events [check each event that applies and for each event include onlya single form of payment]:

 
| ** ** | **EVENTS**                               | ** ** | **FORM OF PAYMENT** |
|------------|------------------------------------------|------------|--------------------------|
| o          | Separation from Service                  |       |                     | Lump sum | Installments |
| x          | Separation fromService before Retirement |       | x                        | Lump sum | Installments |
| x          | Death                                    |       | x                        | Lump sum | Installments |
| o          | Disability                               |       |                     | Lump sum | Installments |
| o          | Not Applicable                           |       |                     |   |   |

 

(e)          Involuntary Cashouts

 
| x      | If  the Participant’s vested Account at the time of his Separation from Service  does not exceed $IRC 402(g) limit ($15,500 indexed) distribution  of the vested Account shall automatically be made in the form of a single  lump sum in accordance with Section 9.5 of the Plan. |
|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                              |
| o      | There  are no involuntary cashouts.                                                                                                                                                                                                                                                               |

 

(f)            Retirement

 
| x      | Retirement  shall be defined as a Separation from Service that occurs on or after the  Participant [insert description of requirements]: |
|--------|------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                     |
|   | Attains  age 55 or older with 5 or more Years of Service, or attains age 65                                                              |
|   |                                                                                                                                     |
| o      | No  special definition of Retirement applies.                                                                                            |

 

13

----

 

(g)         Distribution Election Change

 

A Participant

 
| x | Shall     |
|---|-----------|
| o | Shall Not |

 

be permitted to modify ascheduled distribution date and/or payment option in accordance with Section 9.2of the Plan.

 

A Participant shallgenerally be permitted to elect such modification any number of times.

 

Administratively, allowabledistribution events will be modified to reflect all options necessary tofulfill the distribution change election provision.

 

(h)         Frequency of Elections

 

The Plan Sponsor

 
| x | Has     |
|---|---------|
| o | Has Not |

 

Electedto permit annual elections of a time and form of payment for amounts deferredunder the Plan.

 

14

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** **

**7.01****                       ****VESTING**

 

**(a)****        ****Matching Contributions**

 

The Participant’s vested interest in the amount credited to his Accountattributable to Matching Contributions shall be based on the followingschedule:

 
| o      | Years of Service                  | Vesting % |                                                    |
|--------|-----------------------------------|-----------|---------------------------------------------------------|
|   | 0                                 |      | (insert  ‘100’ if there is immediate vesting) |
|   | 1                                 |      |                                                    |
|   | 2                                 |      |                                                    |
|   | 3                                 |      |                                                    |
|   | 4                                 |      |
|   | 5                                 |      |
|   | 6                                 |      |
|   | 7                                 |      |
|   | 8                                 |      |
|   | 9                                 |      |
|   |                              |      |
| o      | Other:                            |      |
|   |                              |      |
|   |                              |      |
|   |                              |      |
| o      | Class year  vesting applies. |
|   |                              |      |
|   |                              |      |
| x      | Not applicable.                   |      |
|        |                                   |           |                                                         |  |

 

**(b)****        ****Other Employer Contributions**

 

A Director’s vested interest in the amount credited to his Accountattributable to Employer contributions shall be immediately 100% vested. TheEligible Employee’s vested interest in the amount credited to his Accountattributable to Employer contributions other than Matching Contributions shallbe based on the following schedule:

 
| x      | Years of Service                  | Vesting % |                                                    |
|--------|-----------------------------------|-----------|---------------------------------------------------------|
|   | 0                                 | 0%        | (insert  ‘100’ if there is immediate vesting) |
|   | 1                                 | 25%       |                                                    |
|   | 2                                 | 50%       |                                                    |
|   | 3                                 | 75%       |                                                    |
|   | 4                                 | 100%      |                                                    |
|   | 5                                 |      |                                                    |
|   | 6                                 |      |                                                    |
|   | 7                                 |      |                                                    |
|   | 8                                 |      |                                                    |
|   | 9                                 |      |                                                    |
|   |                              |      |                                                    |
| o      | Other:                            |      |                                                    |
|   |                              |      |                                                    |
|   |                              |      |                                                    |
|   |                              |      |                                                    |
| o      | Class year  vesting applies. |      |
|   |                              |      |                                                    |
|   |                              |      |                                                    |
| o      | Not  applicable.                  |      |                                                    |

 

15

----

 

**(c)****         ****Clawback Provision:** In the eventthat an Eligible Employee or Director is terminated for “Cause” all Employercontributions to such Participant’s account, whether or not vested, will beimmediately forfeited and neither the Plan Sponsor, any Employer or the Planshall be liable for the payment of such forfeited amounts, and neither theParticipant nor his or her beneficiaries shall thereafter have any rights withrespect to such forfeited amounts. “Cause” means, with respect to aParticipant, that, in the reasonable determination of the Company, suchParticipant has (i) been convicted of or pleaded guilty or nolo contendereto a felony or any crime involving moral turpitude or dishonesty; (ii) participatedin a fraud or act of dishonesty against the Company; (iii) willfully andmaterially breached a Company policy; (iv) intentionally damaged theCompany’s property; (v) willfully and materially breached such Participant’sProprietary Information and Inventions Agreement with the Company; (vi) engagedin conduct that demonstrates gross unfitness to serve; or (vii) repeatedlyfailed to satisfactorily perform job duties to which such Participantpreviously agreed in writing. The conduct described under clauses (iii), (vi) and(vii) above will only constitute Cause if such conduct is not cured within90 days after the Participant’s receipt of written notice from the Companyspecifying the particulars of the conduct that may constitute Cause.

 

**(d)****         ****Acceleration of Vesting**

 

A Participant’s vested interest in his Account will automatically be100% upon the occurrence of the following events: [select the ones that areapplicable]:

 
| (i)    | x      | Death                       |
|--------|--------|-----------------------------|
|   |   |                        |
| (ii)   | o      | Disability                  |
|   |   |                        |
| (iii)  | o      | Change  in Control          |
|   |   |                        |
| (iv)   | x      | Eligibility  for Retirement |
|   |   |                        |
| (v)    | o      | Other:                      |
|   |   |                        |
|   |   |                        |
| (vi)   | o      | Not  applicable.            |

 

**(e)****         ****Years of Service**

 

(i)                    A Participant’s Years ofService shall include all service performed for the Employer and

 
| x | Shall      |
|---|------------|
| o | Shall  Not |

 

includeservice performed for the Related Employer.

 

16

----

 

(ii)                    Years of Service shall alsoinclude service performed for the following entities:

 

 

(iii)                 Years of Service shall bedetermined in accordance with (select one)

 
| (A)  x | The  elapsed time method in Treas. Reg. Sec.  1.410(a)-7                 |
|------------------|-------------------------------------------------------------------------------|
|             |                                                                          |
| (B)  o | The  general method in DOL Reg. Sec. 2530.200b-1 through b-4                  |
|             |                                                                          |
| (C)  o | The  Participant’s Years of Service credited under [insert name of plan] |
|             |                                                                          |
|             |                                                                          |
| (D)  o | Other:                                                                        |

 

(iv)                o Notapplicable.

 

17

----

** **

**8.01****                       ****UNFORESEEABLEEMERGENCY**

 

(a)           A withdrawal due to an UnforeseeableEmergency as defined in Section 2.24:

 
| x | Will                                                                                                |
|---|-----------------------------------------------------------------------------------------------------|
| o | Will  Not [if Unforeseeable Emergency withdrawals are not permitted, proceed to  Section 9.01] |

 

beallowed.

 

(b)                                 Upon awithdrawal due to an Unforeseeable Emergency, a Participant’s deferral electionfor the remainder of the Plan Year:

 
| x | Will      |
|---|-----------|
| o | Will  Not |

 

becancelled. If cancellation occurs, the Participant may resume participation inaccordance with Article 4 of the Plan.

 

18

----

 

**9.01****       ****INVESTMENT DECISIONS**

 

Investmentdecisions regarding the hypothetical amounts credited to a Participant’sAccount shall be made by:

 
| (a) |   | x |   | The  Participant or his Beneficiary, except as specified in 9.01(b) and  subject to the specifications in Appendix B. |
|-----|--------|---|--------|---------------------------------------------------------------------------------------------------------------------------------|
| (b) |   | x |   | The  Employer to the extent specified in Appendix B.                                                                            |

 

19

----

 

**10.01****     ****GRANTORTRUST**

 

TheEmployer [select one]:

 
| x |   | Does      |
|---|--------|-----------|
| o |   | Does  Not |

 

intendto establish a grantor trust in connection with the Plan.

 

20

----

 

**11.01****     ****TERMINATIONUPON CHANGE IN CONTROL**

 

ThePlan Sponsor

 
| x |   | Reserves          |
|---|--------|-------------------|
| o |   | Does  Not Reserve |

 

theright to terminate the Plan and distribute all vested amounts credited toParticipant Accounts upon a Change in Control as described in Section 9.7.

 

**11.02****     ****AUTOMATIC  DISTRIBUTION UPON CHANGE IN CONTROL**

 

Distributionof the remaining vested balance of each Participant’s Account

 
|   |   | o |   | Shall      |
|--------|--------|---|--------|------------|
|   |   | x |   | Shall  Not |

 

automaticallybe paid as a lump sum payment upon the occurrence of a Change in Control asprovided in Section 9.7.

 

**11.03****     ****CHANGEIN CONTROL**

 

AChange in Control for Plan purposes includes the following [select eachdefinition that applies]:

 
| (a)    |   | x      |   | A  change in the ownership of the Employer as described in  Section 9.7(c) of the Plan.                                        |
|--------|--------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |   |   |                                                                                                                                     |
| (b)    |   | x      |   | A  change in the effective control of the Employer as described in  Section 9.7(d) of the Plan.                                |
|   |   |   |   |                                                                                                                                     |
| (c)    |   | x      |   | A  change in the ownership of a substantial portion of the assets of the  Employer as described in Section 9.7(e) of the Plan. |
|   |   |   |   |                                                                                                                                     |
| (d)    |   | o      |   | Not  Applicable.                                                                                                                         |

 

21

----

 

**12.01****     ****GOVERNINGSTATE LAW**

 

Thelaws of California  shall apply inthe administration of the Plan to the extent not preempted by ERISA.

 

22

----

 

**EXECUTION PAGE**

 

ThePlan Sponsor has caused this Adoption Agreement to be executed this 21st day ofDecember, 2007.

 
|   | PLAN SPONSOR: |   | Amylin  Pharmaceuticals, Inc.                         |
|--------|---------------|--------|------------------------------------------------------------|
|   |          |   |                                                       |
|   | By:           |   | /s/  Lloyd A. Rowland                                      |
|   |          |   |                                                       |
|   | Title:        |   | Vice  President, Governance and Compliance,  and Secretary |

 

23

----

 

**APPENDIX A**

 

**SPECIAL EFFECTIVE DATES**

 

24

----

 

**APPENDIX B**

 

**STOCK INVESTMENT OPTIONS**

 

The investment options made available toParticipants in accordance with Section 7.1 shall be subject to thefollowing restrictions:

 

With respect to Employees, the AmylinPharmaceuticals Common Stock Fund (RTLC) shall not be an available investmentoption.

 

With respect to Directors, the AmylinPharmaceuticals Common Stock Fund (RTLC) shall be an available investmentoption.

 

To the extent that a distribution is to be madeunder the Plan on behalf of a Director, any amounts treated as invested in theAmylin Pharmaceuticals Common Stock Fund (RTCL) shall be distributed in-kind asstock.

 

With respect to Employer contributions, theEmployer shall determine the applicable investment option for suchcontributions.

 

25

----

 

**APPENDIX C**

 

**PLAN ADMINISTRATION UPON A CHANGEIN CONTROL**

 

Upon and after the occurrence of a Change in Control, the PlanAdministrator shall be a committee of not fewer than three nor more than fiveindividuals to be selected by the person who was, immediately prior to suchevent, the Plan Sponsor’s Chief Executive Officer or, if no one was serving insuch capacity or such person refuses to act, the Plan Sponsor’s highest rankingofficer at such time who is willing to so act (the “Appointing Officer”);provided, however, the Administrator, as constituted immediately prior to aChange in Control, shall continue to act as the Administrator of this Planuntil the date on which the persons selected by the Appointing Officer haveaccepted the responsibilities of administrator under this Plan.

 

The persons administering the Plan following a Change in Control shallhave all of the powers accorded to the Administrator under the Plan, includingunder Article 12 of the Plan, at such time as they accept theresponsibilities of Administrator under the Plan; provided, however, upon andafter the occurrence of a Change in Control, the Administrator shall have nopower to direct the investment of Plan or Trust assets or select any investmentmanager or custodial firm for the Plan or Trust, which decisions shall be madeby the Plan Sponsor.  Upon and after theoccurrence of a Change in Control, the Plan Sponsor must: (1) pay allreasonable administrative expenses and fees of the Administrator; (2) indemnifythe Administrator against any costs, expenses and liabilities including,without limitation, attorney’s fees and expenses arising in connection with theperformance of the administrator hereunder, except with respect to mattersresulting from the gross negligence or willful misconduct of the Administratoror its employees or agents; and (3) supply full and timely information tothe Administrator on all matters relating to the Plan, the Trust, theParticipants and their Beneficiaries, the Account Balances of the Participants,the date and circumstances of the disability, death or termination ofemployment of the Participants, and such other pertinent information as theAdministrator may reasonably require. Upon and after a Change in Control, the Administrator may only beterminated (and a replacement appointed) by the Appointing Officer.  Upon and after a Change in Control, theAdministrator may not be terminated by the Plan Sponsor or its rights orresponsibilities diminished by any amendment to the Plan.”

 

26

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