EX-10.12





Exhibit 10.12


Gen-Probe Incorporated


Deferred Compensation Plan


Effective June 30, 2005


Amended and Restated January 1, 2008


 









 





Table of Contents




	 	 	 	 	 
	 	 	Page
	ARTICLE I.
	 	 	 	 
	Establishment and Purpose
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II.
	 	 	 	 
	Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE III.
	 	 	 	 
	Eligibility and Participation
	 	 	8	 
	 
	 	 	 	 
	ARTICLE IV.
	 	 	 	 
	Deferral Elections
	 	 	9	 
	 
	 	 	 	 
	ARTICLE V.
	 	 	 	 
	Company Contributions
	 	 	13	 
	 
	 	 	 	 
	ARTICLE VI.
	 	 	 	 
	Valuation of Accounts; Deemed Investments
	 	 	15	 
	 
	 	 	 	 
	ARTICLE VII.
	 	 	 	 
	Distribution and Withdrawals
	 	 	16	 
	 
	 	 	 	 
	ARTICLE VIII.
	 	 	 	 
	Administration
	 	 	19	 
	 
	 	 	 	 
	ARTICLE IX.
	 	 	 	 
	Amendment and Termination
	 	 	21	 
	 
	 	 	 	 
	ARTICLE X.
	 	 	 	 
	Informal Funding
	 	 	22	 
	 
	 	 	 	 
	ARTICLE XI.
	 	 	 	 
	Claims
	 	 	23	 
	 
	 	 	 	 
	ARTICLE XII.
	 	 	 	 
	Beneficiary Designation
	 	 	26	 
	 
	 	 	 	 
	ARTICLE XIII.
	 	 	 	 
	General Conditions
	 	 	27	 






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ARTICLE I.




Establishment and Purpose



The purpose of this Plan is to provide a select group of management or highly compensated employees
and non-employee members of the Board of Gen-Probe Incorporated, a Delaware corporation and its
affiliates or subsidiaries, if any, with the opportunity to defer a portion of their compensation
and to receive contributions from their employers. The Plan is not intended to meet the
qualification requirements of Section 401(a) of the Code, but is intended to meet the requirements
of Section 409A of the Code, and to be an unfunded arrangement providing deferred compensation to
eligible employees who are part of a select group of management or highly compensated employees of
Participating Employers within the meaning of Sections 201, 301 and 401 of ERISA. The Plan is
intended to be exempt from the requirements of Parts 2, 3 and 4 of Title I of ERISA as a “top hat”
plan, and to be eligible for the alternative method of compliance for reporting and disclosure
available for unfunded “top hat” plans.




ARTICLE II.




Definitions





	2.1	 	Account. Account means a bookkeeping account maintained by the Plan Administrator to
record deferrals allocated to it by the Participant, Company Contributions (if any), Deemed
Investments, distributions, and such other transactions, if any, that may be required to
properly administer the Plan. An Account shall be utilized solely as a device for the
measurement of the value of the Account Balance to be paid by a Participating Employer to a
Participant under the Plan. The Plan Administrator shall maintain appropriate sub-Accounts to
reflect amounts payable at different times and in different forms, in accordance with the
terms of the Plan. The Account shall not constitute or be treated as an escrow, trust fund,
or any other type of funded account for the Code or ERISA purposes and amounts credited
thereto shall not be considered “plan assets” for federal income tax or ERISA purposes.
	 
	2.2	 	Account Balance. Account Balance means, with respect to the Deferred Compensation
Account or any component Account, the value of such Account as of the most recent Valuation
Date.
	 
	2.3	 	Allocation Election. Allocation Election means a choice by a Participant of one or
more Investment Options, and the allocation among them, in which future Participant deferrals
and/or existing Account Balances are Deemed Invested for purposes of determining earnings in a
particular Account.
	 
	2.4	 	Beneficiary. Beneficiary means one or more persons, trusts, estates or other
entities, designated in accordance with Article XII, that are entitled to receive benefits
under the Plan upon the death of a Participant.
	 
	2.5	 	Beneficiary Designation Form. Beneficiary Designation Form means the form
established from time to time by the Committee that a Participant completes, signs, and
returns to the Committee (or its designated agent) to designate one or more Beneficiaries.




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	2.6	 	Business Day. A Business Day is each day on which the New York Stock Exchange is
open for business.
	 
	2.7	 	Change in Control. A Change in Control occurs on the date on which there is (a) a
change in the ownership of the Company, (b) a change in the effective control of the Company
or (c) a change in the ownership of a substantial portion of the Company’s assets, in each
case, as described herein, provided that the transaction will constitute a change in the
ownership or effective control or a change in the ownership of a substantial portion of the
assets, as described in Treasury Regulation Section 1.409A-3(i)(5). For purposes of this
Section, a change in ownership of the Company occurs on the date on which any one person or
more than one person acting as a group acquires ownership of stock of the Company that,
together with stock held by such person or group constitutes more than 50% of the total fair
market value or total voting power of the stock of the Company. A change in the effective
control of the Company occurs on the date on which either (i) a person or more than one person
acting as a group acquires ownership of stock of the Company possessing 51% or more of the
total voting power of the stock of the Company or (ii) a majority of members of the Company’s
board of directors is replaced during any 12-month period by directors whose appointment or
election is not endorsed by a majority of the members of the Company’s board of directors
prior to the date of the appointment or election. A change in the ownership of a substantial
portion of assets of the Company occurs on the date on which any one person or more than one
person acting as a group acquires assets from the Company that have a total gross fair market
value equal to or more than 51% of the total gross fair market value of all of the assets of
the Company immediately prior to such acquisition or acquisitions. With respect to a
Participating Employer other than the Company, a Change in Control shall occur on the date
that the Company or its affiliates (or any combination of the foregoing) shall cease to be the
beneficial owners of at least 50% of the total fair market value or total voting power of the
outstanding voting securities of the Participating Employer or a sale of substantially all of
the assets of a Participating Employer to a party other than the Company or one of its
affiliates, provided that in either case, the transaction will constitute a change in the
ownership or effective control or a change in the ownership of a substantial portion of the
assets, as described in Treasury Regulation Section 1.409A-3(i)(5).
	 
	2.8	 	Code. Code means the Internal Revenue Code of 1986, as amended from time to time.
	 
	2.9	 	Committee. Committee means the Compensation Committee of the Board of Directors of
the Company, or such individuals appointed by the Board of Directors to act as the Committee
with duties and responsibilities to administer the Plan and to make such other discretionary
decisions as are relegated to the Committee herein.
	 
	2.10	 	Company. Company means Gen-Probe Incorporated, a Delaware corporation.
	 
	2.11	 	Company Discretionary Contribution. Company Discretionary Contribution means a
Company Contribution made in the sole discretion of a Participating Employer in accordance
with Section 5.1 or 5.2 of the Plan.




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	2.12	 	Company Contribution Account. Company Contribution Account means the Participant’s
share of (a) Discretionary Company Matching Contributions (as described in Section 5.1(a))
plus (b) Discretionary Matching Make-Up Contributions (as described in Section 5.1(b) plus (c)
changes in value of the Deemed Investments hereon credited (or debited) in accordance with
Section 2.16, net of all distributions from such account.
	 
	2.13	 	Compensation. Compensation means, for purposes of this Plan, base salary (including
any deferred salary under a Code Section 401(k) or 125 plan), bonus, commission, Directors’
Fees and such other cash compensation (if any) approved by the Plan Administrator as
Compensation for purposes of this Plan. Compensation shall not include payroll deductions
pursuant to any other employee benefit plan or any contract or arrangement between the
Participant and the Participating Employer or any deduction required by law or court order.
	 
	2.14	 	Compensation Deferral Agreement. Compensation Deferral Agreement means an agreement
submitted to the Plan Administrator in which a Participant makes an initial deferral election,
which election shall comply with the applicable requirements of Code Section 409A, including:
(a) making an election to defer Compensation in accordance with Article IV, (b) designating a
payment date(s) or event(s) which is/are permissible under the applicable requirements of Code
Section 409A and the terms of the Plan and (c) specifying a Payment Schedule with respect to
distributions from the Plan. In the discretion of the Plan Administrator, a Compensation
Deferral Agreement may also be used to make an Allocation Election and/or to make subsequent
deferral elections in accordance with the applicable requirements of Code Section 409A.
Unless otherwise provided in Section 4.2 hereof, a Compensation Deferral Agreement remains in
effect from Plan Year to Plan Year until modified in accordance with the Plan.
Notwithstanding the foregoing, and subject to the provisions of Section 3.3, the Plan
Administrator may modify a Participant’s Compensation Deferral Agreement at any time as
necessary (and only as necessary and permitted under the applicable requirements of Code
Section 409A) to conform the Compensation Deferral Agreement and the Plan to applicable law.
	 
	2.15	 	Death Benefit. Death Benefit shall mean a distribution of the total amount of the
Participant’s Deferred Compensation Account Balance, including any remaining unpaid In Service
Account balances, to the Participant’s Beneficiary(ies) in accordance with Article VII of the
Plan.
	 
	2.16	 	Deemed Investment. A Deemed Investment means the conversion of a dollar amount of
deferred Compensation and Company Contributions (if any) credited to a Participant’s Deferred
Compensation Account into notional shares or units or ownership (or a fraction of such
measures of ownership, if applicable) of a security (e.g. mutual fund, company stock, or other
investment) which is referred to by the Investment Option(s) selected by the Participant. The
conversion shall occur as if shares (or units) of the designated investment were being
purchased (or sold, in the case of a distribution) at the purchase price as of the close of
business of the day on which the Deemed Investment occurs. At no time shall a Participant
have any real or beneficial ownership in the actual security to which the Investment Option
refers, irrespective of whether such a Deemed Investment is




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	 	 	mirrored by an actual identical investment by the Company or a trustee acting on behalf of
the Company.


	2.17	 	Deferred Compensation Account. Deferred Compensation Account means the Account
maintained by the Plan Administrator that records the total amount of liability of a
Participating Employer to a Participant at any point in time, and includes all unpaid In
Service Accounts, the Retirement/Termination Account, and any other Account maintained by the
Plan Administrator (e.g. a separate Company Contribution Account) to properly administer the
Plan.
	 
	2.18	 	Directors. Directors means non-employee members of the Board of Directors of the
Company.
	 
	2.19	 	Directors’ Fees. Directors’ Fees means retainers, meeting fees, chairperson fees and
any other cash remuneration paid by the Company for services as a member of the Board of
Directors.
	 
	2.20	 	Disability. Disability means that a Participant (a) is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (b) is, by reason of any medically
determinable physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than 3 months under an accident and health plan
covering employees of the Participant’s employer. The determination of the existence of a
Disability shall be made by the Plan Administrator in accordance with Section 409A of the Code
and the regulations and guidance promulgated thereunder.
	 
	2.21	 	Disability Benefit. Disability Benefit means payment by a Participating Employer to
a Participant of the Deferred Compensation Account Balance, including any remaining unpaid In
Service Account balances, due to the Participant’s Disability.
	 
	2.22	 	Effective Date. Effective Date means January 1, 2008.
	 
	2.23	 	Eligible Employee. Eligible Employee means an Employee who is part of a select group
of management or highly compensated employees of the Company or a Participating Employer
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, and who is selected
by the Committee to participate in the Plan.
	 
	2.24	 	Employee. Employee means a full-time salaried employee of a Participating Employer.
	 
	2.25	 	ERISA. ERISA means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
	 
	2.26	 	In Service Account. In Service Account means each Account established pursuant to
Section 4.6 to identify the portion of a Participant’s Deferred Compensation Account to be
paid on each In Service Distribution Date. Each In Service Account shall be credited with
deferrals as specified in the Participant’s Compensation Deferral Agreements, plus




4









 






	 	 	earnings on Deemed Investments in accordance with such Participant’s Allocation Election.
Unless otherwise specified by the Plan Administrator on the Compensation Deferral Agreement,
a Participant may have a maximum of five (5) In Service Accounts with balances greater than
zero at any given time (or such other maximum amount as determined by the Plan
Administrator). A single In Service Account shall be maintained with respect to each In
Service Distribution Date and all elections with respect thereto shall apply to the entire
In Service Account Balance.


	2.27	 	In Service Distribution. In Service Distribution means a payment by a Participating
Employer to a Participant from an In Service Account on or after the In Service Distribution
Date.
	 
	2.28	 	In Service Distribution Date. In Service Distribution Date means the date on which
payment of an In Service Account Balance will commence in accordance with a Payment Schedule.
	 
	2.29	 	Investment Option. Investment Option means a notional security such as a mutual
fund, life insurance policy separate account, company stock, or other investment approved by
the Plan Administrator for use as part of an Investment Option menu, which a Participant may
elect as a measuring device to determine Deemed Investment earnings (positive or negative) to
be valued in the Participant’s Account(s). The Participant has no real or beneficial
ownership in the security or other investment represented by the Investment Option.
	 
	2.30	 	Participant. Participant means a Director or an Eligible Employee employed by a
Participating Employer who: (a) has elected to defer Compensation in accordance with the
Plan; (b) has received a Company Contribution; or (c) has a Deferred Compensation Account
Balance greater than zero, regardless of whether the Participant is employed by a
Participating Employer or continues to provide services as a Director. A Participant’s
continued participation in the Plan shall be governed by Section 3.2 of the Plan.
	 
	2.31	 	Participating Employer. Participating Employer means the Company and any subsidiary
or affiliate of the Company that has adopted the Plan and that assumes exclusive
responsibility for payment of benefits to its employees and Directors who are Participants in
accordance with the terms of the Plan. A Participating Employer’s liabilities under this Plan
shall be limited to the benefit obligations owed to its employees and Directors and shall not
extend to the obligations owed to employees or Directors of any other Participating Employer
arising hereunder.
	 
	2.32	 	Payment Schedule. Payment Schedule means the form of payment for a distribution
under the Plan. Unless otherwise indicated by the Plan Administrator on the Compensation
Deferral Agreement, the Retirement Benefit of a Participant may be paid (a) in a lump sum
between 0% and 100% of the Participant’s Deferred Compensation Account and (b) the balance, if
any, in annual installments from two (2) to fifteen (15) years. In the event a Participant
elects a lump sum payment less than 100% of the Deferred Compensation Account Balance (a
“partial lump sum”), the “partial lump sum” shall at all times with respect to the amounts
deferred be treated as a separate payment,




5









 






	 	 	and the installment payments for the balance of the Deferred Compensation Account Balance
shall, at all times with respect to the amounts deferred, be treated as a single separate
payment. An In Service Account may be paid in a lump sum equal to 100% of the In Service
Account Balance or in annual installments from two (2) to five (5) years.


	2.33	 	Performance-Based Compensation. Performance-Based Compensation means Compensation
based on services performed over a period of not less than twelve months and which meets the
following requirements: (a) the payment of the Compensation or the amount of the Compensation
is contingent upon the satisfaction of pre-established organizational or individual
performance criteria and (b) the performance criteria are not substantially certain to be met
at the time a Compensation Deferral Agreement is submitted to the Plan Administrator. For
purposes hereof and beginning on and after January 1, 2007, “pre-established organizational or
individual performance criteria” shall mean criteria which are established in writing by not
later than ninety (90) days after the commencement of the period of service to which the
criteria relates, provided that the outcome is substantially uncertain at the time the
criteria are established. Performance criteria may be subjective but must relate to the
performance of the Participant, a group of Employees that includes the Participant or a
business unit (which may include the Company) for which the Participant provides services.
The determination that any subjective performance criteria have been met shall not be made by
the Participant or by a family member of the Participant. Performance-Based Compensation does
not include any amount or portion of any amount that will be paid regardless of performance or
which is based on a level of performance that is substantially certain to be met at the time
the criteria is established.
	 
	2.34	 	Plan. Plan means the Gen-Probe Incorporated Deferred Compensation Plan as amended
and restated herein, and as it may be amended from time to time hereafter.
	 
	2.35	 	Plan Administrator. Except as provided in Article VIII hereof, Plan Administrator
means the individual or individuals appointed by the Committee. The Plan Administrator is
responsible for such recordkeeping and other administrative responsibilities delegated to it
by the Committee and as are specified under the Plan.
	 
	2.36	 	Plan Year. Plan Year means January 1 through December 31 starting with 2005. The
first Plan Year shall be a short Plan Year beginning June 30, 2005.
	 
	2.37	 	Retirement. Retirement, with respect to a Participant who was an Eligible Employee,
shall mean the Separation from Service with a Participating Employer after reaching age 55
with at least five (5) Years of Service with the Company (including all Participating
Employers). Retirement shall also mean, with respect to a Director, a Separation from
Service. Any determination of whether a Separation from Service constitutes Retirement for
purposes of this Plan shall be made in the sole discretion of the Committee.
	 
	2.38	 	Retirement Benefit. Retirement Benefit shall mean a payment by the Company of a
Participant’s Deferred Compensation Account Balance (including all unpaid In Service Account
Balances) to the Participant upon such Participant’s Retirement, in accordance




6









 






	 	 	with the Participant’s Payment Schedule election or as otherwise specified in Article V of
the Plan.


	2.39	 	Retirement/Termination Account. Retirement/Termination Account shall mean, prior to
the payment of a Retirement or Termination Benefit, that portion of the Deferred Compensation
Account not allocated to In Service Accounts. Unless otherwise provided by the Plan
Administrator, the Retirement/Termination Account shall be maintained as a single Account and
all elections with respect thereto (other than an Allocation Election) shall apply to the
entire Retirement/Termination Account Balance.
	 
	2.40	 	Separation from Service. Separation from Service shall mean the termination of a
Participant’s employment or service with a Participating Employer for any reason which
constitutes a “separation from service” within the meaning of Section 409A of the Code and the
regulations promulgated thereunder, including Treasury Regulation Section 1.409A-1(h).
	 
	2.41	 	Specified Employee. Specified Employee shall mean any Participant who is determined
to be a “key employee” (as defined under Code Section 416(i) without regard to paragraph (5)
thereof) for the applicable period, as determined annually by the Committee in accordance with
Treasury Regulation Section 1.409A-1(i).
	 
	2.42	 	Termination Benefit. Termination Benefit shall mean a payment by the appropriate
Participating Employer of a Participant’s Deferred Compensation Account Balance (including all
unpaid In Service Account Balances) upon Separation from Service with a Participating Employer
for a reason other than Retirement or death, as specified in Article V of the Plan.
	 
	2.43	 	Unforeseeable Emergency. An unforeseeable emergency is a severe financial hardship
to the Participant resulting from a sudden and unexpected illness or accident of the
Participant or of a dependent (as defined in Code Section 152(a)) of the Participant, loss of
the Participant’s property due to casualty, or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the Participant, as defined
in Treasury Reg. Section 1.409A-3(i)(3)(i). The Plan Administrator, in its sole discretion
and subject to the requirements of Section 409A of the Code and the regulations thereunder,
shall determine whether a Participant has experienced an Unforeseeable Emergency.
	 
	2.44	 	Valuation Date. Valuation Date shall mean each Business Day except as specified
below.






	 	(a)	 	The Valuation Date for a Retirement Benefit and for a Termination Benefit shall
be the last day of the month in which the Participant’s Separation from Service occurs.
In the case of a Retirement Benefit or Termination Benefit payable to a Specified
Employee, the Valuation Date shall be the last day of the month following the date
which is six months following such Participant’s Separation from Service.
	 
	 	(b)	 	The Valuation Date for an In Service Distribution shall be the last day of the
month in which the In Service Distribution Date occurs.




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	 	(c)	 	The Valuation Date for a Disability Benefit shall be the last Business Day of
the month in which the Plan Administrator determines that the Participant is Disabled.
	 
	 	(d)	 	The Valuation Date for a Death Benefit is the last day of the month in which
the Participant’s death occurs.






	 	 	For purposes of calculating the amount of an installment payment, the Valuation Date is the
anniversary of the Valuation Date on which such installment payments commenced.
	 
	2.45	 	Year of Service. Year of Service shall be computed in the same manner as provided
under the Company’s tax-qualified profit sharing or 401(k) arrangement. If more than one such
arrangement exists, the Committee shall identify the appropriate plan document or documents
for the determination of Years of Service. If there is no such arrangement or the arrangement
does not provide a definition of Year of Service, a Year of Service shall be based on a
methodology adopted by the Plan Administrator, applied consistently to all Participants.





ARTICLE III.




Eligibility and Participation





	3.1	 	Eligibility and Participation. Each Director and Eligible Employee shall be eligible
to participate in this Plan. A Director or an Eligible Employee becomes a Participant upon
submission of a Compensation Deferral Agreement to the Plan Administrator (or, if earlier, the
date on which a credit of Company Contributions is made to such individual’s Account).
	 
	3.2	 	Duration. A Participant shall be eligible to defer Compensation and receive
allocations of Company Contributions subject to the terms of the Plan as long as such
Participant is an Eligible Employee or a Director. A Participant who is no longer an Eligible
Employee but continues to be employed by a Participating Employer may not defer Compensation
but may otherwise exercise all of the rights of a Participant under the Plan with respect to
his or her Deferred Compensation Account. On and after a Separation from Service, a
Participant shall remain a Participant as long as his or her Deferred Compensation Account is
greater than zero and during such time may continue to make Allocation Elections. An
individual shall cease participation in the Plan when all benefits under the Plan to which he
or she is entitled have been paid.
	 
	3.3	 	Revocation of Future Participation. Notwithstanding the provisions of Section 3.2,
the Committee may, in its discretion, revoke such Participant’s eligibility to make future
deferrals under this Plan. Such revocation will not affect in any manner a Participant’s
Deferred Compensation Account or other terms of this Plan.
	 
	3.4	 	Notification. Each newly eligible Director and each newly Eligible Employee shall be
notified by the Plan Administrator, in writing, of his or her eligibility to participate in
this Plan.




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	3.5	 	Leave of Absence.






	 	(a)	 	Paid Leave of Absence. If a Participant is authorized by his or her
Participating Employer for any reason to take a paid leave of absence from the
employment or service of the Participating Employer, and such leave of absence does not
constitute a Separation from Service, the Participant shall continue to be considered
actively employed by or in the service of the Participating Employer for purposes
hereof and the Compensation Deferral Agreement continue to apply to any Compensation
paid during such leave of absence.
	 
	 	(b)	 	Unpaid Leave of Absence. If a Participant is authorized by the his or
her Participating Employer for any reason to take an unpaid leave of absence from the
employment of or service with the Participating Employer, the Participant shall
continue to be considered actively employed by the Participating Employer for purposes
hereof. Upon the earlier of the date the leave of absence expires or the date the
Participant returns to paid employment or service, deferrals shall resume for the
remaining portion of the Plan Year in which the expiration or return occurs, based on
the Compensation Deferral Agreement, if any, in effect for that Plan Year. If no
deferral election was made for that Plan Year, no Plan deferrals shall be withheld from
Compensation for the remainder of the Plan Year.





ARTICLE IV.




Deferral Elections





	4.1	 	Deferral Elections. A Participant shall make deferral elections by completing and
submitting to the Plan Administrator the Compensation Deferral Agreement which shall specify
the deferral, investment and distribution information as described in this Article IV.
	 
	4.2	 	Time of Election.






	 	(a)	 	Initial Eligibility. In the case of the Plan Year in which an
individual first becomes a Director eligible to participate in the Plan or an Employee
first becomes an Eligible Employee, a Compensation Deferral Agreement that defers
Compensation with respect to services to be performed in such Plan Year and subsequent
to the election must be submitted to the Plan Administrator within thirty (30) days
after such individual first becomes eligible to participate in the Plan. In the case
of compensation that is earned based upon a specified performance period (for example,
an annual bonus), where a deferral election is made in the first year of eligibility
but after the beginning of the service period, the election will apply to the portion
of the compensation equal to the total amount of the compensation for the service
period multiplied by the ratio of the number of days remaining in the performance
period after the election over the total number of days in the performance period. A
Compensation Deferral Agreement submitted pursuant to this Section 4.2(a) shall become
irrevocable no later than the end of the thirty (30) day period described herein.




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	 	(b)	 	Subsequent Plan Years. Any changes to a Compensation Deferral
Agreement for any subsequent Plan Year shall be made in accordance with Section 4.4 and
any such Compensation Deferral Agreement containing the election to defer Compensation
for services performed during such Plan Year must be submitted to the Plan
Administrator no later than the close of the preceding Plan Year (except with respect
to a deferral of Performance-Based Compensation made in accordance with Section
4.2(c)). A Compensation Deferral Agreement submitted pursuant to this Section 4.2(b)
shall become irrevocable no later than the first day of the Plan Year to which it first
applies.
	 
	 	(c)	 	Performance-Based Compensation. A Compensation Deferral Agreement
containing an election to defer Performance-Based Compensation must be submitted to the
Plan Administrator no later than six (6) months prior to the end of the period in which
the services are performed and in accordance with the Section 409A of the Code and
Treasury Regulation Section 1.409A-2(a)(8). A Compensation Deferral Agreement submitted
pursuant to this Section 4.2(c) shall become irrevocable as of the day immediately
following the latest date for filing such election.






	4.3	 	Amount of Deferral. The deferral election under a Compensation Deferral Agreement
shall designate a dollar amount or whole percentage of Compensation to be deferred. The Plan
Administrator may establish a minimum or maximum deferral amount for each component of
Compensation and may permit separate elections for each component of Compensation. Unless
otherwise specified by the Plan Administrator in the Compensation Deferral Agreement,
Participants may defer up to 80% of their base salary, bonus or Directors’ Fees and up to 100% of all
other Compensation for a Plan Year.
	 
	4.4	 	Changes To A Deferral Election.






	 	(a)	 	Right to Modify Prospectively. Unless otherwise specified by the
Committee, an election to defer Compensation applies to the Plan Year specified in the
Compensation Deferral Agreement and remains in effect for each subsequent Plan Year
until modified or revoked. A Participant may modify or revoke an election to defer
Compensation during any enrollment period or other time designated by the Plan
Administrator. A modification or revocation of an election to defer Compensation will
be effective beginning on the first day of the Plan Year following the Plan Year during
which the modification or revocation of the deferral election was made.
Notwithstanding the foregoing, the Committee, in its discretion, may provide that for a
subsequent Plan Year, a Compensation Deferral Agreement will be effective for a single
Plan Year and that a new Compensation Deferral Agreement must be made in order to defer
Compensation during the following Plan Year.
	 
	 	(b)	 	Performance-Based Compensation. An election to defer Performance-Based
Compensation applies to the service period specified in the Compensation Deferral
Agreement and remains in effect for future Performance-Based Compensation which is
based upon the same service period in subsequent Plan




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	 	 	 	Years (or fiscal years, if appropriate) until modified or revoked during an
enrollment period designated by the Plan Administrator. A modification or
revocation will apply prospectively to the Performance-Based Compensation described
in the enrollment materials.


	 	(c)	 	Unforeseeable Emergency. A Participant’s election to defer
Compensation during the Plan Year in which such Compensation is earned (or, in the case
of Performance-Based Compensation, after the deadline specified in the enrollment
materials) shall be canceled following a distribution as a result of an Unforeseeable
Emergency as described in Section 7.6.






	4.5	 	Allocation Elections. A Participant’s Deferred Compensation Agreement may also
specify the Investment Options in which deferrals will be deemed to be invested in accordance
with Section 6.2.
	 
	4.6	 	In Service Distributions.






	 	(a)	 	Initial Election. A Participant’s Compensation Deferral Agreement may
designate an In Service Distribution Date. The Plan Administrator shall create an In
Service Account for the In Service Distribution Date to be credited with the deferred
Compensation designated under the Compensation Deferral Agreement. In order for a
deferral to be credited to an In Service Account, the In Service Distribution Date must
be specified no later than the applicable submission deadline described in Section 4.2
for the Compensation Deferral Agreement under which the deferral is made. Any portion
of a deferral not designated for an In Service Distribution will be credited to the
Retirement/Termination Account. Unless otherwise specified by the Plan Administrator
on the Compensation Deferral Agreement, a newly established In Service Distribution
Date may be no earlier than three (3) years following the end of the Plan Year during
which Compensation will first be credited to the newly created In Service Account.
	 
	 	(b)	 	Modification. The Participant may modify an In Service Distribution
Date provided: (i) the request to modify is submitted to the Plan Administrator at
least twelve (12) months prior to the existing In Service Distribution Date; and (ii)
the modified In Service Distribution Date occurs no earlier than five (5) years
following the In Service Distribution Date which is being modified. In Service
Distribution Dates may not be accelerated. The election to modify an In Service
Distribution Date is specific to the In Service Account to which it refers, and shall
not affect other In Service Accounts (except to the extent the change results in two In
Service Accounts with the same In Service Distribution Date, in which case the Accounts
are merged) or the ability of the Participant to designate new In Service Distribution
Dates with respect to future Compensation deferrals. The modification of an In Service
Distribution Date shall be made in compliance with Code Section 409A and any applicable
guidance and Treasury regulations promulgated thereunder.




11









 












	4.7	 	Payment Schedule. A Compensation Deferral Agreement may specify the Payment Schedule
for a Participant’s In Service Distribution(s) and Retirement Benefit. If no designation is
in effect, a distribution will be made in a single lump sum.






	 	(a)	 	Modification-Retirement Benefit. A Participant may modify his or her
Retirement Benefit Payment Schedule, provided (i) such election is made at least twelve
(12) months prior to the date the Participant Retires and the date the first payment is
scheduled to be made and (ii) the first payment with respect to which such election is
made must be deferred for a period of not less than (5) five years from the date such
payment would otherwise have been made. Any modification of a Payment Schedule made
within twelve (12) months of a Retirement shall be null and void, and the most recent
Payment Schedule dated at least twelve (12) months prior to the Retirement shall be
deemed to be in effect.
	 
	 	(b)	 	Modification-In Service Distribution. A Participant shall be permitted
to change each In Service Payment Schedule, provided (i) such election is made at least
twelve (12) months prior to the In Service Distribution Date and (ii) the first payment
with respect to which such election is made must be deferred for a period of not less
than five years from the date such payment would otherwise have been made. Any
modification of a Payment Schedule made within twelve (12) months of the In Service
Distribution Date shall be null and void, and the most recent Payment Schedule dated at
least twelve (12) months prior to the In Service Distribution Date shall be deemed to
be in effect.
	 
	 	(c)	 	Opportunity to Make New (or Revise Existing) Distribution Elections.
Notwithstanding the foregoing required deadlines for the submission of a Compensation
Deferral Agreement with respect to a distribution election, the Committee may, to the
extent permitted by Notice 2007-86, provide a limited period in which Participants may
make new distribution elections, or revise existing distribution elections, with
respect to amounts subject to the terms of the Plan, by submitting a Compensation
Deferral Agreement on or before the deadline established by the Committee, which in no
event shall be later than December 31, 2008. Any distribution election(s) made by a
Participant, and accepted by the Committee, in accordance with this Section shall not
be treated as a change in either the form or timing of a Participant’s benefit payment
for purposes of Code Section 409A or the Plan. If any distribution election submitted
by a Participant in accordance with this Section either (i) relates to an amount that
would otherwise be paid to the Participant in 2008, or (ii) would cause an amount to be
paid to the Participant in 2008 which would have been paid in a subsequent year, such
election shall not be effective.






	4.8	 	Company’s Right to Modification for Section 409A of the Code. The Plan Administrator
may modify a Payment Schedule election as necessary (and only as necessary) to conform the
Payment Schedule to applicable law, to the extent that such modification is permissible
pursuant to Section 409A of the Code and the regulations and other guidance promulgated
thereunder.




12









 











ARTICLE V.




Company Contributions





	5.1	 	Company Discretionary Contributions.






	 	(a)	 	Discretionary Company Matching Contribution. If a Participant is
contributing the maximum deferral contribution limit specified under the plan sponsored
by the Company which is qualified under Section 401(a) of the Code and contains a Code
Section 401(k) cash or deferred arrangement (the “401(k) Plan”) for a Plan Year, the
Company may, in its sole discretion, but it is not required to, cause to be credited to
a Participant’s Company Contribution Account for such Plan Year an amount equal to the
Company contributions (including matching and discretionary contributions) that would
have been made on the Participant’s behalf and allocated to his account under the
401(k) Plan for such Plan Year, but which could not be made because of limitations
imposed by the 401(k) Plan pursuant to the Code, including, but not limited to, (a) any
reduction in matching contributions under the 401(k) Plan attributable either to a
limitation on the Participant’s 401(k) contributions under the 401(k) Plan pursuant to
Section 401(k) of the Code or limitations imposed on the matching contributions under
the 401(k) Plan pursuant to Section 401(m) of the Code, (b) the limitations contained
in Section 402(g) of the Code, (c) any reduction that occurs as a result of the
application of the compensation limitations contained in Section 401(a)(17) of the
Code, and (d) any reduction that occurs as a result of the application of the
limitations contained in Section 415 of the Code. All such amounts shall be credited
to a Participant’s Company Contribution Account as of the date or dates such amounts
would have been credited to the Participant’s account(s) in the 401(k) Plan if such
amounts had in fact been credited to his account(s) in the 401(k) Plan.
	 
	 	(b)	 	Discretionary Matching Make-Up Contributions. Each Plan Year, the
Company may make, in its discretion, a Company Discretionary Matching Contribution on
behalf of each eligible active Participant who had deferral contributions attributable
to the maximum deferral contribution limit made on his or her behalf during the
contribution period to the 401(k) Plan and deferred an amount to the Plan. All
Discretionary Matching Make Up Contributions will be computed by the Company based on
the Participant’s compensation during the relevant contribution period.






The amount of the Discretionary Matching Make Up Contribution shall be determined to be any
amount necessary to satisfy or replace any lost benefit due to the Participant’s
participation in the Plan. The calculation for the Discretionary Matching Make Up
Contribution, if any, shall be determined as follows:




Step 1. Calculate the maximum Company matching contribution of the 401(k) Plan as if this
Plan did not exist.



13









 






Step 2. Calculate the maximum Company matching contribution of the 401(k) Plan taking into
account the existence of this Plan.




Step 3. Determine the amount of any potential lost benefit to the Participant of
maintaining the Plan by subtracting the amount calculated in Step 2 from the amount
calculated in Step 1.




The Company may designate all or a portion of any matching contributions for a Plan Year and
allocate such amounts to the Company Contribution Account.




The following is an example of the determination process outlined in Steps 1 through 3:




Assumptions:




	 	•	 	Employee’s total compensation is $150,000
	 
	 	•	 	The Company matching contribution for the 401(k) Plan is 50% of the first 6% of
compensation
	 
	 	•	 	Employee defers 10% into the Plan and 10% into the 401(k) Plan:





	 	 	 	 	 
	Gross Compensation
	 	$	150,000.00	 
	 
	 	 	 	 
	Plan Employee Deferral
	 	$	(15,000.00	)
	 
	 	 	 	 
	Net Compensation before 401(k) Plan Employee Deferral
	 	$	135,000.00	 
	 
	 	 	 	 
	401(k) Plan Employee Deferral
	 	$	(13,500.00	)
	 
	 	 	 	 
	Net Compensation
	 	$	121,500.00	 







Step 1:




	 	•	 	Total Compensation is multiplied by the Company matching contribution for the
401(k) Plan
	 
	 	•	 	$150,000.00 x 6% x 50% = $4,500.00
	 
	 	•	 	The maximum 401(k) match if the Plan did not exist is $4,500.00






Step 2:




	 	•	 	Net Compensation before 401(k) Plan Employee Deferral is multiplied by the
Company matching contribution for the 401(k) Plan
	 
	 	•	 	$135,000.00 x 6% x 50% = $4,050.00
	 
	 	•	 	The maximum 401(k) match with the Plan is $4,050.00






Step 3:




	 	•	 	The maximum 401(k) match in Step 2 is subtracted from the 401(k) match in Step 1




14









 






	 	•	 	$4,500.00 — $4,050.00 = $450.00
	 
	 	•	 	The Discretionary Matching Make Up Contribution Amount for the Plan is $450.00






The Company, in its discretion, may change the formula used to determine the discretionary
Company Matching Contributions or the Discretionary Matching Make Up Contributions.




	5.2	 	Other Company Discretionary Contributions. Each Participating Employer may, in its
sole and absolute discretion, make other Company Discretionary Contributions to one, some, or
all of the Participant(s) it employs by crediting to such Participants’ Retirement/Termination
Accounts an amount determined in the sole and absolute discretion of such Participating
Employer. A Company Discretionary Contribution may be made at any time during the Plan Year.
A Participating Employer shall be under no obligation to make Company Discretionary
Contributions unless it so obligates itself under an employment agreement or other agreement.
	 
	5.3	 	Vesting.






	 	(a)	 	The Discretionary Company Matching Contribution and Other Company
Discretionary Contributions in Section 5.1 and 5.2 above, and the Deemed Investment
earnings thereon, shall vest in accordance with the vesting schedule determined and
communicated by the Company with respect to each Company Discretionary Contribution.
	 
	 	(b)	 	The foregoing provisions concerning vesting of Company Discretionary
Contributions notwithstanding, and subject to the requirements of Treasury regulations
promulgated under Section 409A of the Code, all Company Discretionary Contributions
shall become 100% vested upon the occurrence of the earliest of: (i) Retirement; (ii)
death of the Participant; (iii) Disability of the Participant; and (iv) Change in
Control of the Company (or with respect to a Participant who is employed by a
Participating Employer, a Change in Control of such Participating Employer). The
Participating Employer may, at any time, in its sole discretion, increase a Participant
vested interest in Company Discretionary Contributions.





ARTICLE VI.




Valuation of Accounts; Deemed Investments





	6.1	 	Valuation. The valuation of a Participant’s Accounts will be adjusted as of each
Valuation Date to reflect deferrals, earnings on Deemed Investments and distributions since
the previous Valuation Date. Valuation of Accounts shall be performed under procedures
approved by the Plan Administrator. Deferrals pertaining to base salary shall be deducted on
a proportionate basis from each paycheck the Participant receives during the Plan Year and
credited to the Participant’s Accounts as of the date such Compensation would have otherwise
been paid. Deferrals pertaining to other forms of




15









 






	 	 	Compensation shall be credited to the Participant’s Accounts as of the day such Compensation
otherwise would have been paid.


	6.2	 	Allocation Elections. Participants may make an Allocation Election pursuant to which
their Accounts will be credited with earnings on Deemed Investments. A Participant may make a
new Allocation Election with respect to future deferrals or current Account Balances (or
both), provided that such new allocations shall be in increments of one percent (1%) and apply
to the entire Account Balance. Subject to restrictions on the timing and number of permitted
changes to Allocation Elections within certain time periods (if any) established by the Plan
Administrator, new Allocation Elections may be made on any Business Day, and will become
effective on the same Business Day or, in the case of Allocation Elections received after a
cut-off time established by the Plan Administrator, the following Business Day. All deferrals
shall be credited to the appropriate Account and a Deemed Investment shall be made in the
investment(s) represented by the Investment Option(s) elected by the Participant as of the
close of business on the deferral date or as otherwise provided by the Plan Administrator.






	6.3	 	Investment Options. Deemed Investments shall consist of a menu of Investment Options
provided by the Committee. Investment Options do not represent actual ownership of, or
ownership rights in or to, the securities or other investments to which the Investment Options
refer. The Committee, in its sole discretion, shall be permitted to add or remove Investment
Options provided that any such additions or removals of Investment Options shall not be
effective with respect to any period prior to the effective date of such change. Any portion
of an Account or new deferrals which has not been allocated or which cannot be allocated under
a Participant’s Allocation Election shall be deemed to be invested in a default Investment
Option specified by the Plan Administrator. Such Investment Option shall have, as its primary
objective, the preservation of capital.
	 
	6.4	 	Notional Investments. Notwithstanding anything in this section to the contrary, the
Committee shall have the sole and exclusive authority to invest any or all amounts deferred in
any manner, regardless of any Allocation Elections by any Participant. A Participant’s
Allocation Election and Deemed Investments shall be used solely for purposes of determining
the value of such Participant’s Account Balances and the amount of the corresponding liability
of the participating Employer in accordance with this Plan.





ARTICLE VII.




Distribution and Withdrawals





	7.1	 	Retirement Benefit Distribution. The Retirement Benefit will be paid (or the first
payment will be made) by the appropriate Participating Employer as soon as administratively
practicable following the Valuation Date (but in no event later than sixty (60) days following
such date).
	 
	7.2	 	Termination Benefit. The Termination Benefit shall be paid by the appropriate
Participating Employer in a single lump sum as soon as administratively practicable following
the Valuation Date (but in no event later than sixty (60) days following such date).




16









 






	7.3	 	In Service Distributions. Each in Service Distribution shall be paid in accordance
with the Payment Schedule election made with respect thereto, beginning as soon as
administratively practicable following the Valuation Date (but in no event later than sixty
(60) days following such date). In the event a Participant has elected installment payments
for an In Service Distribution, the installment payments shall be determined as set forth in
Section 7.9 of the Plan.
	 
	7.4	 	Death Benefit. In the event of a Participant’s death before the complete
distribution of his or her Deferred Compensation Account, such Participant’s Beneficiary,
named on the most recently filed Beneficiary Designation Form, shall be paid a Death Benefit
in the amount of the remaining Deferred Compensation Account Balance as of the Valuation Date
in a single lump sum as soon as practicable following the end of the month in which the
Participant’s death occurred (but in no event later than sixty (60) days following such
date). A Death Benefit shall conform to the requirements of the Section 409A of the Code and
the regulations and guidance promulgated thereunder in order to avoid an “acceleration” of a
payment.
	 
	7.5	 	Disability Benefit. In the event that a Participant incurs a Disability, the
appropriate Participating Employer shall pay the Disability Benefit in a single lump sum as
soon as administratively practicable following the Valuation Date (but in no event later than
sixty (60) days following such date).
	 
	7.6	 	Unforeseeable Emergency. A Participant may request, in writing to the Plan
Administrator, a withdrawal from his or her Deferred Compensation Account if the Participant
experiences an Unforeseeable Emergency. Withdrawals of amounts because of an Unforeseeable
Emergency are limited to the extent reasonably needed to satisfy the emergency need, which
cannot be met with other resources of the Participant (as determined in accordance with
Treasury Regulation 1.409A-3(i)(3)(i), including any cessation of deferrals under the Plan)
plus amounts necessary to pay federal, state, or local income taxes or penalties reasonably
anticipated as a result of the distribution. The amount of such withdrawal shall be
subtracted first from the vested portion of the Participant’s Retirement/Termination Account
until depleted and then from the In Service Distribution Accounts (if any) beginning with the
Account with the latest In Service Distribution Date. Values for purposes of determining the
source of the withdrawal under this Section shall be determined on the date the Plan
Administrator approves the amount of the Unforeseeable Emergency withdrawal, or such other
date determined by the Plan Administrator. In addition, in the event of such approval of a
withdrawal due to an Unforeseeable Emergency, the Participant’s outstanding deferral elections
under the Plan shall be cancelled.
	 
	7.7	 	Domestic Relations Order. Notwithstanding the Payment Schedule(s) and In Service
Distribution Dates selected by a Participant and any other provision of this Plan, the Plan
Administrator shall divide such Participant’s Accounts with and distribute a portion of such
Participant’s Accounts to one or more “alternate payees” at the time and in the manner
specified in a court order described in Section 414(p)(1)(B) of the Code.




17









 






	7.8	 	Installment Payments. If the Participant has elected installment payments for such
Participant’s Retirement/Termination Benefit distribution or an In Service Distribution,
annual cash payments will be made beginning as soon as administratively practicable following
the applicable Valuation Date, or, in the event of a partial lump sum election, following the
first anniversary of the partial lump sum payment made following Separation from Service (or
scheduled payment date, if any such payment is subject to delay pursuant to Section 7.10 or
7.11). Such payments shall continue annually on or about the anniversary of the previous
installment payment until the number of installment payments elected has been paid. The
installment payment amount shall be determined annually as the result of a calculation,
performed on the Valuation Date, where (a) is divided by (b):






	 	(a)	 	equals the value of the applicable Account on the Valuation Date; and
	 
	 	(b)	 	equals the remaining number of installment payments.






	7.9	 	Small Account Balance Lump Sum Payment. Anything to the contrary in this Plan
notwithstanding, in the event that a Participant’s Retirement/Termination Account Balance is
less than $10,000 on the applicable Valuation Date, the Retirement Benefit shall be paid in a
single lump sum and any form of payment election to the contrary shall be null and void.
	 
	7.10	 	Six-Month Delay. Notwithstanding the preceding or any other provision of the Plan to
the contrary, if a distribution of a Retirement Benefit or Termination Benefit is to be made
as a result of a Separation from Service of a Participant who is a Specified Employee on the
date his Separation from Service occurs, to the extent delayed commencement of any portion of
the benefits to which the Participant is entitled hereunder is required in order to avoid a
prohibited distribution under Code Section 409A(a)(2)(B)(i), such portion of the Participant’s
benefits shall not be provided prior to the earlier of six (6) months and one (1) day
following the date of his Separation from Service (or if earlier, upon his death), and upon
the first business day following the applicable date, all payments deferred pursuant to this
sentence shall be paid in a lump sum, and any remaining payments due under the Plan shall be
paid as otherwise provided herein. For purposes of Section 409A of the Code, a Participant’s
right to receive more than one payment pursuant to the Plan shall be treated as a right to
receive a series of separate payments and accordingly, each payment shall at all times be
considered a separate and distinct payment.
	 
	7.11	 	Deduction Limitation on Benefit Payments. Notwithstanding the foregoing, if a
Participating Employer reasonably anticipates that the Participating Employer’s deduction with
respect to any distribution from the Plan would be limited or eliminated by application of
Code Section 162(m), then to the extent permitted by Treasury Regulation Section
1.409A-2(b)(7)(i), payment shall be delayed as deemed necessary to ensure that the entire
amount of any distribution from this Plan is deductible. Any amounts for which distribution
is delayed pursuant to this Section shall continue to be credited/debited with additional
amounts in accordance with Article VI. The delayed amounts (and any amounts credited thereon)
shall be distributed to the Participant (or his




18









 






	 	 	or her Beneficiary in the event of the Participant’s death) at the earliest date the
Participating Employer reasonably anticipates that the deduction of the payment of the
amount will not be limited or eliminated by application of Code Section 162(m). In the
event that such date is determined to be after a Participant’s Separation from Service and
the Participant to whom the payment relates is determined to be a Specified Employee, then
to the extent deemed necessary to comply with Section 7.10 and Treasury Regulation Section
1.409A-3(i)(2), the delayed payment shall not made before the end of the six-month period
following such Participant’s Separation from Service.





ARTICLE VIII.




Administration





	8.1	 	Plan Administration. Except as provided in Section 8.2, this Plan shall be
administered by the Plan Administrator, which shall have discretionary authority to make,
amend, interpret and enforce all appropriate rules and regulations for the administration of
this Plan and to utilize its discretion to decide or resolve any and all questions, including
but not limited to eligibility for benefits and interpretations of this Plan and its terms, as
may arise in connection with the Plan. Claims for benefits shall be filed with the Plan
Administrator and resolved in accordance with the claims procedures in Article XII.
	 
	8.2	 	Plan Administration after a Change in Control.






	 	(a)	 	Replacement of Plan Administrator. Upon a Change in Control, the
individual who, immediately prior to the Change in Control, was the Chief Executive
Officer of the Company or, in the event there was no person with the title of Chief
Executive Officer prior to the Change in Control, then the highest ranking officer of
the Company prior to the Change in Control (“Ex-CEO”), shall have the power to appoint
an independent third party as the Plan Administrator to replace the Plan Administrator
under this Plan. The previous Plan Administrator shall relinquish responsibility for
administration of the Plan as soon as the newly appointed Plan Administrator accepts
responsibility for administration of the Plan in writing addressed to the previous Plan
Administrator. The newly appointed Plan Administrator shall have all powers and duties
of the previous Plan Administrator, as set forth in this Plan, except that the newly
appointed Plan Administrator shall have no power to direct the investment of Trust
assets or to select any investment manager or custodial firm for the Trust. After a
change in Control, the Company shall: (1) pay all reasonable administrative expenses
and fees of the newly appointed Plan Administrator; (2) indemnify the newly appointed
Plan Administrator against any costs, expenses, and liabilities including, without
limitation, attorney’s fees and expenses arising in connection with the performance of
the newly appointed Plan Administrator hereunder, except with respect to matters
resulting from the gross negligence or willful misconduct of the administrator or its
employees or agents; and (3) supply full and timely information to the newly appointed
Plan Administrator on all matters relating to the Plan, the Trust, the Participants and
their Beneficiaries, the Account Balances of the Participants, the date and
circumstances of the Disability, death or Separation from Service of the Participants,
and such other pertinent information




19









 






	 	 	 	as the newly appointed Plan Administrator may reasonably require. After a Change in
Control, the newly appointed Plan Administrator may only be terminated (and a
replacement appointed) by the Ex-CEO or, in the event the ex-CEO is no longer a Plan
Participant, his or her appointee who is a Plan Participant, and the Company shall
have no right nor power to terminate or replace the newly appointed Plan
Administrator.


	 	(b)	 	Review of Denied Claims. After a Change in Control, the Committee, as
constituted immediately prior to the Change in Control, shall continue to review denied
claims as provided in Article XI of the Plan. In the event any member of the Committee
resigns or is unable to perform the duties of a member of the Committee, successors to
such members shall be selected by the Ex-CEO. After a Change in Control, the Committee
shall have the discretionary power and authority to determine all questions arising in
connection with the review of a denied claim as provided in Section 11.2 of the Plan.
After a Change in Control, the Company shall: (1) pay all reasonable administrative
expenses and fees of the Committee; (2) indemnify the Committee against any costs,
expenses and liabilities including, with limitation, attorney’s fees and expenses
arising in connection with the performance of the Committee hereunder, except with
respect to matters resulting from the gross negligence or willful misconduct of the
Committee or its employees or agents; and (3) supply full and timely information to the
Committee on all matters relating to the Plan, the Trust, the Participants and their
Beneficiaries, the Account Balances of the Participants, the date and circumstances of
the Disability, death or Separation from Service of the Participants, and such other
pertinent information as the Committee may reasonably require. After a Change in
Control, a member of the Committee may not be removed by the Company, and may only be
removed (and a replacement appointed) by the Ex-CEO.






	8.3	 	Withholding. The Participating Employer shall have the right to withhold from any
payment made under the Plan (or any amount deferred into the Plan) any taxes required by law
to be withheld in respect of such payment (or deferral).
	 
	8.4	 	Indemnification. The Company shall indemnify and hold harmless each employee,
officer, director, agent or organization, to whom or to which is delegated duties,
responsibilities, and authority under the Plan or otherwise with respect to administration of
the Plan, including, without limitation, the Plan Administrator, the Committee and their
agents, against all claims, liabilities, fines and penalties, and all expenses reasonably
incurred by or imposed upon him or it (including but not limited to reasonable attorney fees)
which arise as a result of his or its actions or failure to act in connection with the
operation and administration of the Plan to the extent lawfully allowable and to the extent
that such claim, liability, fine, penalty, or expense is not paid for by liability insurance
purchased or paid for by the Company. Notwithstanding the foregoing, the Company shall not
indemnify any person or organization if his or its actions or failure to act are due to gross
negligence or willful misconduct or for any such amount incurred through any settlement or
compromise of any action unless the Company consents in writing to such settlement or
compromise.




20









 












	8.5	 	Expenses. The expenses of administering the Plan shall be paid by the Company.
	 
	8.6	 	Delegation of Authority. In the administration of this Plan, the Plan Administrator
may, from time to time, employ agents and delegate to them such administrative duties as it
sees fit, and may from time to time consult with legal counsel who may be legal counsel to the
Company.
	 
	8.7	 	Binding Decisions or Actions. The decision or action of the Plan Administrator in
respect of any question arising out of or in connection with the administration,
interpretation and application of the Plan and the rules and regulations thereunder shall be
final and conclusive and binding upon all persons having any interest in the Plan.





ARTICLE IX.




Amendment and Termination





	9.1	 	Termination. Although each Participating Employer anticipates that it will continue
the Plan for an indefinite period of time, there is no guarantee that any Participating
Employer will continue the Plan or will not terminate the Plan at any time in the future.
Accordingly, each Participating Employer reserves the right to discontinue its sponsorship of
the Plan and/or to terminate the Plan at any time with respect to any or all of its
participating Eligible Employees (and Directors, with respect to the Company), by action of
its Board of Directors or other similar governing body. Upon the termination of the Plan with
respect to any Participating Employer, the participation of the affected Participants who are
employed by that Participating Employer shall terminate. However, after the Plan termination
the Account Balances of such Participants shall continue to be credited with Compensation
deferrals attributable to a deferral election that was in effect prior to the Plan termination
to the extent deemed necessary to comply with Code Section 409A and related Treasury
Regulations, and additional amounts shall continue to credited or debited to such
Participants’ Account Balances pursuant to Article VI. To the extent permitted in regulations
promulgated under Section 409A of the Code, including Treasury Regulation Section
1.409A-(3)(j)(4)(ix), the Committee may provide for the distribution of all Account Balances
to such Participants following a termination of the Plan, subject to and in accordance with
any rules established by the Committee and any requirements of Treasury Regulation Section
1.409A-(3)(j)(4)(ix). Unless distributions are otherwise permissible under such regulations,
payments to Participants shall be made at the times specified in a Participant’s Compensation
Deferral Agreements and the terms of the Plan applicable to such Agreements prior to the
Plan’s termination.
	 
	9.2	 	Amendment.






	 	(a)	 	A Participating Employer, by action taken by its Board of Directors or similar
governing body, may amend the Plan at any time and for any reason, provided that any
such amendment shall not reduce the vested Account Balances of any Participant accrued
as of the date of any such amendment or restatement (as if the Participant had incurred
a voluntary Separation from Service on such date) or reduce any rights of a Participant
under the Plan or other Plan features with respect to his or her Account Balance as of
the date of any such amendment or




21









 






	 	 	 	restatement without the consent of the Participant. The Committee shall have the
authority to amend the Plan without the consent of the Board of Directors (or other
similar governing body) of the Company or any Participating Employer for the purpose
of (i) conforming the Plan to the requirements of law (which amendments,
notwithstanding any provisions in this Section 9.2 to the contrary, may also be made
without the consent of any Participant), (ii) facilitating the administration of the
Plan, (iii) clarifying provisions based on the Committee’s interpretation of the
document and (iv) making such other amendments as the Company’s Board of Directors
may authorize.


	 	(b)	 	Notwithstanding anything to the contrary in the Plan, if and to the extent the
Committee shall determine that the terms of the Plan may result in the failure of the
Plan, or amounts deferred by or for any Participant under the Plan, to comply with the
requirements of Code Section 409A, or any applicable regulations or guidance
promulgated by the Secretary of the Treasury in connection therewith, the Committee
shall have authority to take such action to amend, modify, cancel or terminate the Plan
(effective with respect to all Participating Employers) or distribute any or all of the
amounts deferred by or for a Participant, as it deems necessary or advisable, including
without limitation:






	 	(i)	 	Any amendment or modification of the Plan to conform the Plan
to the requirements of Code Section 409A or any regulations or other guidance
thereunder (including, without limitation, any amendment or modification of the
terms of any applicable to any Participant’s Accounts regarding the timing or
form of payment).
	 
	 	(ii)	 	Any cancellation or termination of any unvested interest in a
Participant’s Accounts without any payment to the Participant.
	 
	 	(iii)	 	Any cancellation or termination of any vested interest in any
Participant’s Accounts, with immediate payment to the Participant of the amount
otherwise payable to such Participant.
	 
	 	(iv)	 	Any such amendment, modification, cancellation, or termination
of the Plan that may adversely affect the rights of a Participant without the
Participant’s consent.





ARTICLE X.




Informal Funding





	10.1	 	General Assets. All benefits in respect of a Participant under this Plan shall be
paid directly from the general funds of the applicable Participating Employer or a Rabbi Trust
created for the purpose of informally funding the Plan, and other than such Rabbi Trust, if
created, no special or separate fund shall be established and no other segregation of assets
shall be made to assure payment. No Participant, spouse or Beneficiary shall have any right,
title or interest whatever in or to any investments that the Company or a Participating
Employer may make to aid the Participating Employer in meeting its




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	 	 	obligation hereunder. Nothing contained in this Plan, and no action taken pursuant to its
provisions, shall create or be construed to create a trust of any kind, or a fiduciary
relationship, between the Company, a Participating Employer or any if its subsidiaries or
affiliated companies and any Employee, spouse, or Beneficiary. To the extent that any
person acquires a right to receive payments from a Participating Employer hereunder, such
rights are no greater than the right of an unsecured general creditor of the Participating
Employer.






	10.2	 	Rabbi Trust. The Company and/or Participating Employer may, at its sole discretion,
establish a grantor trust, commonly known as a Rabbi Trust, as a vehicle for accumulating the
assets needed to pay the promised benefit, but the Company or Participating Employer shall be
under no obligation to establish any such trust or any other informal funding vehicle.





ARTICLE XI.




Claims





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






	 	(a)	 	In General. Notice of a denial of benefits (other than Disability
benefits) will be provided within 90 days of the Plan Administrator’s receipt of the
Claimant’s claim for benefits. If the Plan Administrator determines that it needs
additional time to review the claim, the Plan Administrator will provide the Claimant
with a notice of the extension before the end of the initial 90-day period. The
extension will not be more than 90 days from the end of the initial 90-day period and
the notice of extension will explain the special circumstances that require the
extension and the date by which the Plan Administrator expects to make a decision.
	 
	 	(b)	 	Disability Benefits. Notice of denial of Disability benefits will be
provided within forty-five (45) days of the Plan Administrator’s receipt of the
Claimant’s claim for Disability benefits. If the Plan Administrator determines that it
needs additional time to review the Disability claim, the Plan Administrator will
provide the Claimant with a notice of the extension before the end of the initial
45-day period. If the Plan Administrator determines that a decision cannot be made
within the first extension period due to matters beyond the control of the Plan
Administrator, the time period for making a determination may be further extended for
an additional 30 days. If such an additional extension is necessary, the Plan
Administrator shall notify the Claimant prior to the expiration of the initial 30-day
extension. Any notice of extension shall indicate the circumstances necessitating the
extension of time, the date by which the Plan Administrator expects to furnish a notice
of decision, the specific standards on which such entitlement to a benefit is based,
the unresolved issues that prevent a decision on the claim and any additional
information needed to resolve those issues. A




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	 	 	 	Claimant will be provided a minimum of 45 days to submit any necessary additional
information to the Plan Administrator. In the event that a 30-day extension is
necessary due to a Claimant’s failure to submit information necessary to decide a
claim, the period for furnishing a notice of decision shall be tolled from the date
on which the notice of the extension is sent to the Claimant until the earlier of
the date the Claimant responds to the request for additional information or the
response deadline.


	 	(c)	 	Contents of Notice. If a claim for benefits is completely or partially
denied, notice of such denial shall be in writing and shall set forth the reasons for
denial in plain language. The notice shall (1) cite the pertinent provisions of the
Plan document and (2) explain, where appropriate, how the Claimant can perfect the
claim, including a description of any additional material or information necessary to
complete the claim and why such material or information is necessary. The claim denial
also shall include an explanation of the claims review procedures and the time limits
applicable to such procedures, including a statement of the Claimant’s right to bring a
civil action under Section 502(a) of ERISA following an adverse decision on review. In
the case of a complete or partial denial of a Disability benefit claim, the notice
shall provide a statement that the Plan Administrator will provide to the Claimant,
upon request and free of charge, a copy of any internal rule, guideline, protocol, or
other similar criterion that was relied upon in making the decision.






	11.2	 	Appeal of Denied Claims. A Claimant whose claim has been completely or partially
denied shall be entitled to appeal the claim denial by filing a written appeal with the
Committee. A Claimant who timely requests a review of the denied claim (or his or her
authorized representative) may review, upon request and free of charge, copies of all
documents, records and other information relevant to the denial and may submit written
comments, documents, records and other information relevant to the claim to the Committee.
All written comments, documents, records, and other information shall be considered “relevant”
if the information (1) was relied upon in making a benefits determination, (2) was submitted,
considered or generated in the course of making a benefits decision regardless of whether it
was relied upon to make the decision, or (3) demonstrates compliance with administrative
processes and safeguards established for making benefit decisions. The Committee may, in its
sole discretion and if it deems appropriate or necessary, decide to hold a hearing with
respect to the claim appeal.






	 	(a)	 	In General. Appeal of a denied benefits claim (other than a Disability
benefits claim) must be filed in writing with the Committee no later than sixty (60)
days after receipt of the written notification of such claim denial. The Committee
shall make its decision regarding the merits of the denied claim within sixty (60) days
following receipt of the appeal (or within one hundred and twenty (120) days after such
receipt, in a case where there are special circumstances requiring extension of time
for reviewing the appealed claim). If an extension of time for reviewing the appeal is
required because of special circumstances, written notice of the extension shall be
furnished to the Claimant prior to the commencement of the extension. The notice will
indicate the special circumstances requiring the




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	 	 	 	extension of time and the date by which the Committee expects to render the
determination on review. The review will take into account comments, documents,
records and other information submitted by the Claimant relating to the claim
without regard to whether such information was submitted or considered in the
initial benefit determination.






	 	(b)	 	Disability Benefits. Appeal of a denied Disability benefits claim must
be filed in writing with the Committee no later than one hundred eighty (180) days
after receipt of the written notification of such claim denial. The review shall be
conducted by the Committee (exclusive of the person who made the initial adverse
decision or such person’s subordinate). In reviewing the appeal, the Committee shall
(1) not afford deference to the initial denial of the claim, (2) consult a medical
professional who has appropriate training and experience in the field of medicine
relating to the Claimant’s disability and who was neither consulted as part of the
initial denial nor is the subordinate of such individual and (3) identify the medical
or vocational experts whose advice was obtained with respect to the initial benefit
denial, without regard to whether the advice was relied upon in making the decision.
The Committee shall make its decision regarding the merits of the denied claim within
forty-five (45) days following receipt of the appeal (or within ninety (90) days after
such receipt, in a case where there are special circumstances requiring extension of
time for reviewing the appealed claim). If an extension of time for reviewing the
appeal is required because of special circumstances, written notice of the extension
shall be furnished to the Claimant prior to the commencement of the extension. The
notice will indicate the special circumstances requiring the extension of time and the
date by which the Committee expects to render the determination on review. Following
its review of any additional information submitted by the Claimant, the Committee shall
render a decision on its review of the denied claim.
	 
	 	(c)	 	Contents of Notice. If a benefits claim is completely or partially
denied on review, notice of such denial shall be in writing and shall set forth the
reasons for denial in plain language.






	 	(i)	 	The decision on review shall set forth (a) the specific reason
or reasons for the denial, (b) specific references to the pertinent Plan
provisions on which the denial is based, (c) a statement that the Claimant is
entitled to receive, upon request and free of charge, reasonable access to and
copies of all documents, records, or other information relevant (as defined
above) to the Claimant’s claim, and (d) a statement describing any voluntary
appeal procedures offered by the plan and a statement of the Claimant’s right
to bring an action under Section 502(a) of ERISA.
	 
	 	(ii)	 	For the denial of a Disability benefit, the notice will also
include a statement that the Committee will provide, upon request and free of
charge, (a) any internal rule, guideline, protocol or other similar criterion
relied upon in making the decision, (b) any medical opinion relied upon to




25









 






	 	 	 	make the decision and (c) the required statement under Section
2560.503-1(j)(5)(iii) of the Department of Labor regulations.






	11.3	 	Legal Action. A Claimant may not bring any legal action relating to a claim for
benefits under the Plan unless and until the Claimant has followed the claims procedures under
the Plan and exhausted his or her administrative remedies under such claims procedures.
	 
	11.4	 	Discretion of Committee. All interpretations, determinations and decisions of the
Committee with respect to any claim shall be made in its sole discretion, and shall be final
and conclusive.





ARTICLE XII.




Beneficiary Designation





	12.1	 	Beneficiary. Each Participant shall have the right, at any time, to designate his or
her Beneficiary (both primary as well as contingent) to receive any benefits payable under the
Plan to a Beneficiary upon the death of a Participant. The Beneficiary designated under this
Plan may be the same as or different from the Beneficiary designation under any other benefit
plan of a Participating Employer in which the Participant participates.
	 
	12.2	 	Beneficiary Designation; Change; Spousal Consent. A Participant shall designate his
or her Beneficiary by completing and signing the Beneficiary Designation Form, and returning
it to the Committee or its designated agent. A Participant shall have the right to change a
Beneficiary by completing, signing, and otherwise complying with the terms of the Beneficiary
Designation Form and the Committee’s rules and procedures, as in effect from time to time.
Where required by law or by the Committee, in its sole and absolute discretion, if the
Participant names someone other than his or her spouse as a Beneficiary, a spousal consent, in
the form designated by the Committee, must be signed by that Participant’s spouse and returned
to the Committee. Upon the acceptance by the Committee of a new Beneficiary Designation Form,
all Beneficiary designations previously filed shall be canceled. The Committee shall be
entitled to rely on the last Beneficiary Designation Form filed by the Participant and
accepted by the Committee prior to his or her death.
	 
	12.3	 	Acknowledgement. No designation or change in designation of a Beneficiary shall be
effective until received, accepted and acknowledged in writing by the Committee or its
designated agent.
	 
	12.4	 	No Beneficiary Designation. If a Participant fails to designate a Beneficiary as
provided in Sections 12.1, 12.2, and 12.3 above, or, if all designated Beneficiaries
predecease the Participant or die prior to complete distribution of the Participant’s
benefits, then the Participant’s designated Beneficiary shall be his or her surviving spouse.
If the Participant has no surviving spouse, the benefits remaining under the Plan shall be
paid to the Participant’s issue upon the principle of representation and if there is no such
issue, to the Participant’s estate.




26









 












	12.5	 	Doubt as to Beneficiary. If the Committee has any doubt as to the proper Beneficiary
to receive payments pursuant to this Plan, the Committee shall have the right, exercisable in
its sole and absolute discretion, to cause the Participating Employer to withhold such
payments until this matter is resolved to the Committee’s satisfaction.
	 
	12.6	 	Discharge of Obligations. The payment of benefits under the Plan to a Beneficiary
shall fully and completely discharge all Participating Employers and the Committee from all
further obligations under this Plan with respect to the Participant, and that Participant’s
interest in the Plan shall terminate upon such full payment of benefits.





ARTICLE XIII.




General Conditions





	13.1	 	Anti-assignment Rule. No interest of any Participant, spouse or Beneficiary under
this Plan and no benefit payable hereunder shall be assigned as security for a loan, and any
such purported assignment shall be null, void and of no effect, nor shall any such interest or
any such benefit be subject in any manner, either voluntarily or involuntarily, to
anticipation, sale, transfer, assignment or encumbrance by or through any Participant, spouse
or Beneficiary.
	 
	13.2	 	No Legal or Equitable Rights or Interest. No Participant or other person shall have
any legal or equitable rights or interest in this Plan that are not expressly granted in this
Plan. Participation in this Plan does not give any person any right to be retained in the
service of the Company or any of its subsidiaries or affiliated companies. The right and
power of the Company to dismiss or discharge an Employee is expressly reserved.
Notwithstanding the provisions of Section 9.2, the Company makes no representations or
warranties as to the tax consequences to a Participant or a Participant’s beneficiaries
resulting from a deferral of income pursuant to the Plan or that the Plan complies in form or
operation with Section 409A of the Code and regulations issued thereunder.
	 
	13.3	 	No Employment Contract. Nothing contained herein shall be construed to constitute a
contract of employment between an Employee and the Company or any of its subsidiaries or
affiliated companies.
	 
	13.4	 	Headings. The headings of Sections are included solely for convenience of reference,
and if there is any conflict between such headings and the text of this Plan, the text shall
control.
	 
	13.5	 	Invalid or Unenforceable Provisions. If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect any other
provisions hereof and the Plan Administrator may elect in its sole discretion to construe such
invalid or unenforceable provisions in a manner that conforms to applicable law or as if such
provisions, to the extent invalid or unenforceable, had not been included.
	 
	13.6	 	Governing Law. To the extent not preempted by ERISA, the laws of the State of
California shall govern the construction and administration of the Plan.




27









 










IN WITNESS WHEREOF, the undersigned executed this Plan as of the 14th day of November
2008 to be effective as of the Effective Date.



	 	 	 	 	 
	Gen-Probe Incorporated

a Delaware Corporation	 	 
	 
	 	 	 	 
	By:

	 	/s/ Diana De Walt	 	 
	 

	 	 	 	 
	 
	Its:
	 	Senior Vice President, Human Resources	 	 





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