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Exelixis, Inc. 401(k) Plan

Exhibit 10.13

VOLUME SUBMITTER

DEFINED CONTRIBUTION PLAN

FIDELITY BASIC PLAN DOCUMENT NO. 14

Fidelity Advisor 401(k) Program

© 2008 FMR Corp.

All rights reserved.

Exelixis, Inc. 401(K) Plan

PREAMBLE.

   1
ARTICLE 1.   

    ADOPTION AGREEMENT.

   1
ARTICLE 2.   

    DEFINITIONS.

   1
2.01.   

DEFINITIONS.

   1
2.02.   

INTERPRETATION AND CONSTRUCTION OF TERMS.

   10
2.03.   

SPECIAL EFFECTIVE DATES.

   10
ARTICLE 3.   

    SERVICE.

   10
3.01.   

CREDITING OF ELIGIBILITY SERVICE.

   10
3.02.   

RE-CREDITING OF ELIGIBILITY SERVICE FOLLOWING TERMINATION OF EMPLOYMENT.

   11
3.03.   

CREDITING OF VESTING SERVICE.

   11
3.04.   

APPLICATION OF VESTING SERVICE TO A PARTICIPANTS ACCOUNT FOLLOWING A BREAK IN VESTING SERVICE.

   11
3.05.   

SERVICE WITH PREDECESSOR EMPLOYER.

   11
3.06.   

CHANGE IN SERVICE CREDITING.

   11
ARTICLE 4.   

    PARTICIPATION.

   12
4.01.   

DATE OF PARTICIPATION.

   12
4.02.   

TRANSFERS OUT OF COVERED EMPLOYMENT.

   12
4.03.   

TRANSFERS INTO COVERED EMPLOYMENT.

   12
4.04.   

RESUMPTION OF PARTICIPATION FOLLOWING REEMPLOYMENT.

   12
ARTICLE 5.   

    CONTRIBUTIONS.

   13
5.01.   

CONTRIBUTIONS SUBJECT TO LIMITATIONS.

   13
5.02.   

COMPENSATION TAKEN INTO ACCOUNT IN DETERMINING CONTRIBUTIONS.

   13
5.03.   

DEFERRAL CONTRIBUTIONS.

   13
5.04.   

EMPLOYEE CONTRIBUTIONS.

   15
5.05.   

No DEDUCTIBLE EMPLOYEE CONTRIBUTIONS.

   15
5.06.   

ROLLOVER CONTRIBUTIONS.

   15
5.07.   

QUALIFIED NONELECTIVE EMPLOYER CONTRIBUTIONS.

   16
5.08.   

MATCHING EMPLOYER CONTRIBUTIONS.

   17
5.09.   

QUALIFIED MATCHING EMPLOYER CONTRIBUTIONS.

   17
5.10.   

NONELECTIVE EMPLOYER CONTRIBUTIONS.

   17
5.11.   

VESTED INTEREST IN CONTRIBUTIONS.

   19
5.12.   

TIME FOR MAKING CONTRIBUTIONS.

   19
5.13.   

RETURN OF EMPLOYER CONTRIBUTIONS.

   20
5.14.   

FROZEN PLAN.

   20
ARTICLE 6.   

    LIMITATIONS ON CONTRIBUTIONS.

   20
6.01.   

SPECIAL DEFINITIONS.

   20
6.02.   

CODE SECTION 402(G) LIMIT ON DEFERRAL CONTRIBUTIONS.

   26
6.03.   

ADDITIONAL LIMIT ON DEFERRAL CONTRIBUTIONS (“ADP” TEST).

   27
6.04.   

ALLOCATION AND DISTRIBUTION OF “EXCESS CONTRIBUTIONS”.

   28
6.05.   

REDUCTIONS IN DEFERRAL CONTRIBUTIONS TO MEET CODE REQUIREMENTs.

   28
6.06.   

LIMIT ON MATCHING EMPLOYER CONTRIBUTIONS AND EMPLOYEE CONTRIBUTIONS (“ACP” TEST).

   28

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© 2008 FMR Corp.

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i

6.07.   

ALLOCATION, DISTRIBUTION, AND FORFEITURE OF “EXCESS AGGREGATE CONTRIBUTIONS”.

   30
6.08.   

INCOME OR LOSS ON DISTRIBUTABLE CONTRIBUTIONS.

   30
6.09.   

DEEMED SATISFACTION OF “ADP” TEST.

   31
6.10.   

DEEMED SATISFACTION OF “ACP” TEST WITH RESPECT TO MATCHING EMPLOYER CONTRIBUTIONS.

   32
6.11.   

CHANGING TESTING METHODS.

   33
6.12.   

CODE SECTION 415 LIMITATIONS.

   34
ARTICLE 7.   

    PARTICIPANTS’ ACCOUNTS.

   36
7.01.   

INDIVIDUAL ACCOUNTS.

   36
7.02.   

VALUATION OF ACCOUNTS.

   37
ARTICLE 8.   

    INVESTMENT OF CONTRIBUTIONS.

   37
8.01.   

MANNER OF INVESTMENT.

   37
8.02.   

INVESTMENT DECISIONS.

   37
8.03.   

PARTICIPANT DIRECTIONS TO TRUSTEE.

   38
ARTICLE 9.   

    PARTICIPANT LOANS.

   38
9.01.   

SPECIAL DEFINITION.

   38
9.02.   

PARTICIPANT LOANS.

   38
9.03.   

SEPARATE LOAN PROCEDURES.

   38
9.04.   

AVAILABILITY OF LOANS.

   38
9.05.   

LIMITATION ON LOAN AMOUNT.

   38
9.06.   

INTEREST RATE.

   38
9.07.   

LEVEL AMORTIZATION.

   38
9.08.   

SECURITY.

   39
9.09.   

LOAN REPAYMENTS.

   39
9.10.   

DEFAULT.

   39
9.11.   

EFFECT OF TERMINATION WHERE PARTICIPANT HAS OUTSTANDING LOAN BALANCE.

   39
9.12.   

DEEMED DISTRIBUTIONS UNDER CODE SECTION 72(P).

   39
9.13.   

DETERMINATION OF VESTED INTEREST UPON DISTRIBUTION WHERE PLAN LOANS IS OUTSTANDING.

   40
ARTICLE 10.   

    IN-SERVICE WITHDRAWALS.

   40
10.01.   

AVAILABILITY OF IN-SERVICE WITHDRAWALS.

   40
10.02.   

WITHDRAWAL OF EMPLOYEE CONTRIBUTIONS.

   40
10.03.   

WITHDRAWAL OF ROLLOVER CONTRIBUTIONS.

   40
10.04.   

AGE 59  1/2 WITHDRAWALS.

   40
10.05.   

HARDSHIP WITHDRAWALS.

   41
10.06.   

PRESERVATION OF PRIOR PLAN IN-SERVICE WITHDRAWAL RULES.

   42
10.07.   

RESTRICTIONS ON IN-SERVICE WITHDRAWALS.

   43
ARTICLE 11.   

    RIGHT TO BENEFITS.

   43
11.01.   

NORMAL OR EARLY RETIREMENT.

   43
11.02.   

LATE RETIREMENT.

   43
11.03.   

DISABILITY RETIREMENT.

   43
11.04.   

DEATH.

   43
11.05.   

OTHER TERMINATION OF EMPLOYMENT.

   44
11.06.   

APPLICATION FOR DISTRIBUTION.

   44
11.07.   

APPLICATION OF VESTING SCHEDULE FOLLOWING PARTIAL DISTRIBUTION.

   44
11.08.   

FORFEITURES.

   44
11.09.   

APPLICATION OF FORFEITURES.

   45
11.10.   

REINSTATEMENT OF FORFEITURES.

   45
11.11.   

ADJUSTMENT FOR INVESTMENT EXPERIENCE.

   45

Fidelity Advisor 401(k) Program

© 2008 FMR Corp.

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ii

ARTICLE 12.   

    DISTRIBUTIONS.

   46
12.01.   

RESTRICTIONS ON DISTRIBUTIONS.

   46
12.02.   

TIMING OF DISTRIBUTION FOLLOWING RETIREMENT OR TERMINATION OF EMPLOYMENT.

   46
12.03.   

PARTICIPANT CONSENT TO DISTRIBUTION.

   47
12.04.   

REQUIRED COMMENCEMENT OF DISTRIBUTION TO PARTICIPANTS.

   47
12.05.   

REQUIRED COMMENCEMENT OF DISTRIBUTION TO BENEFICIARIES.

   47
12.06.   

WHEREABOUTS OF PARTICIPANTS AND BENEFICIARIES.

   48
ARTICLE 13.   

    FORM OF DISTRIBUTION.

   49
13.01.   

NORMAL FORM OF DISTRIBUTION UNDER PROFIT SHARING PLAN.

   49
13.02.   

CASH OUT OF SMALL ACCOUNTS.

   49
13.03.   

MINIMUM DISTRIBUTIONS.

   49
13.04.   

DIRECT ROLLOVERS.

   52
13.05.   

NOTICE REGARDING TIMING AND FORM OF DISTRIBUTION.

   53
13.06.   

DETERMINATION OF METHOD OF DISTRIBUTION.

   54
13.07.   

NOTICE TO TRUSTEE.

   54
ARTICLE 14.   

    SUPERSEDING ANNUITY DISTRIBUTION PROVISIONS.

   54
14.01.   

SPECIAL DEFINITIONS.

   54
14.02.   

APPLICABILITY.

   54
14.03.   

ANNUITY FORM OF PAYMENT.

   55
14.04.    QUALIFIED JOINT AND SURVIVOR ANNUITYANDQUALIFIED PRERETIREMENT SURVIVOR ANNUITY” REQUIREMENTS.    55
14.05.    WAIVER OF THEQUALIFIED JOINT AND SURVIVOR ANNUITYAND/OR “QUALIFIED PRERETIREMENT SURVIVOR ANNUITY” RIGHTS.    56
14.06.   

SPOUSES CONSENT TO WAIVER.

   56
14.07.   

NOTICE REGARDINGQUALIFIED JOINT AND SURVIVOR ANNUITY”.

   57
14.08.   

NOTICE REGARDINGQUALIFIED PRERETIREMENT SURVIVOR ANNUITY”.

   57
14.09.   

FORMER SPOUSE.

   57
ARTICLE 15.   

    TOP-HEAVY PROVISIONS.

   57
15.01.   

DEFINITIONS.

   57
15.02.   

APPLICATION.

   59
15.03.   

MINIMUM CONTRIBUTION.

   59
15.04.   

DETERMINATION OF MINIMUM REQUIRED CONTRIBUTION.

   60
15.05.   

ACCELERATED VESTING.

   60
15.06.   

EXCLUSION OF COLLECTIVELY-BARGAINED EMPLOYEES.

   60
ARTICLE 16.   

    AMENDMENT AND TERMINATION.

   60
16.01.   

AMENDMENTS BY THE EMPLOYER THAT DO NOT AFFECT VOLUME SUBMITTER STATUS.

   60
16.02.    AMENDMENTS BY THE EMPLOYER ADOPTING PROVISIONS NOT INCLUDED IN VOLUME SUBMITTER SPECIMEN PLAN.    61
16.03.   

AMENDMENT BY THE VOLUME SUBMITTER SPONSOR.

   61
16.04.   

AMENDMENTS AFFECTING VESTED INTEREST AND/OR ACCRUED BENEFITS.

   61
16.05.   

RETROACTIVE AMENDMENTS MADE BY VOLUME SUBMITTER SPONSOR.

   61
16.06.   

TERMINATION AND DISCONTINUATION OF CONTRIBUTIONS.

   62
16.07.   

DISTRIBUTION UPON TERMINATION OF THE PLAN.

   62
16.08.   

MERGER OR CONSOLIDATION OF PLAN; TRANSFER OF PLAN ASSETS.

   62

Fidelity Advisor 401(k) Program

© 2008 FMR Corp.

All rights reserved.

iii

ARTICLE 17.   

    AMENDMENT AND CONTINUATION OF PRIOR PLAN; TRANSFER OF FUNDS TO OR FROM OTHER QUALIFIED PLANS.

   62
17.01.   

AMENDMENT AND CONTINUATION OF PRIOR PLAN.

   62
17.02.   

TRANSFER OF FUNDS FROM AN EXISTING PLAN.

   63
17.03.   

ACCEPTANCE OF ASSETS BY TRUSTEE.

   64
17.04.   

TRANSFER OF ASSETS FROM TRUST.

   64
ARTICLE 18.   

    MISCELLANEOUS.

   65
18.01.   

COMMUNICATION TO PARTICIPANTS.

   65
18.02.   

LIMITATION OF RIGHTS.

   65
18.03.   

NONALIEN ABILITY OF BENEFITS.

   66
18.04.   

QUALIFIED DOMESTIC RELATIONS ORDERS PROCEDURES.

   66
18.05.   

APPLICATION OF PLAN PROVISIONS FOR MULTIPLE EMPLOYER PLANS.

   66
18.06.   

VETERANS REEMPLOYMENT RIGHTS.

   67
18.07.   

FACILITY OF PAYMENT.

   67
18.08.   

INFORMATION BETWEEN EMPLOYER AND/OR ADMINISTRATOR AND TRUSTEE.

   67
18.09.   

EFFECT OF FAILURE TO QUALIFY UNDER CODE.

   67
18.10.   

DIRECTIONS, NOTICES AND DISCLOSURE.

   67
18.11.   

GOVERNING LAW.

   68
18.12.   

DISCHARGE OF DUTIES BY FIDUCIARIES.

   68
ARTICLE 19.   

    PLAN ADMINISTRATION.

   68
19.01.   

POWERS AND RESPONSIBILITIES OF THE ADMINISTRATOR.

   68
19.02.   

DELEGATION OF AUTHORITY TO INVESTMENT PROFESSIONAL.

   68
19.03.   

NONDISCRIMINATORY EXERCISE OF AUTHORITY.

   68
19.04.   

CLAIMS AND REVIEW PROCEDURES.

   68
19.05.   

NAMED FIDUCIARY.

   68
19.06.   

COSTS OF ADMINISTRATION.

   68
ARTICLE 20.   

    TRUST AGREEMENT.

   69
20.01.   

ACCEPTANCE OF TRUST RESPONSIBILITIES.

   69
20.02.   

ESTABLISHMENT OF TRUST FUND.

   69
20.03.   

EXCLUSIVE BENEFIT.

   69
20.04.   

POWERS OF TRUSTEE.

   69
20.05.   

ACCOUNTS.

   70
20.06.   

APPROVAL OF ACCOUNTS.

   70
20.07.   

DISTRIBUTION FROM TRUST FUND.

   70
20.08.   

TRANSFER OF AMOUNTS FROM QUALIFIED PLAN.

   71
20.09.   

TRANSFER OF ASSETS FROM TRUST.

   71
20.10.   

SEPARATE TRUST OR FUND FOR EXISTING PLAN ASSETS.

   71
20.11.   

SELF-DIRECTED BROKERAGE OPTION.

   72
20.12.   

EMPLOYER STOCK INVESTMENT OPTION.

   73
20.13.   

VOTING; DELIVERY OF INFORMATION.

   77
20.14.   

COMPENSATION AND EXPENSES OF TRUSTEE.

   78
20.15.   

RELIANCE BY TRUSTEE ON OTHER PERSONS.

   78
20.16.   

INDEMNIFICATION BY EMPLOYER.

   78
20.17.   

CONSULTATION BY TRUSTEE WITH COUNSEL.

   78
20.18.   

PERSONS DEALING WITH THE TRUSTEE.

   78
20.19.   

RESIGNATION OR REMOVAL OF TRUSTEE.

   78
20.20.   

FISCAL YEAR OF THE TRUST.

   79
20.21.   

AMENDMENT.

   79
20.22.   

PLAN TERMINATION.

   79
20.23.   

PERMITTED REVERSION OF FUNDS TO EMPLOYER.

   79
20.24.   

GOVERNING LAW.

   80
20.25.   

ASSIGNMENT AND SUCCESSORS.

   80

Fidelity Advisor 401(k) Program

© 2008 FMR Corp.

All rights reserved.

iv

Preamble.

This volume submitter plan consists of three parts: (1) an Adoption Agreement that is a separate document incorporated by reference into this Basic Plan Document; (2) this Basic Plan Document; and (3) a Trust Agreement that is a part of this Basic Plan Document and is found in Article 20. Each part of the volume submitter plan contains substantive provisions that are integral to the operation of the plan. The Adoption Agreement is the means by which an adopting Employer elects the optional provisions that shall apply under its plan. The Basic Plan Document describes the standard provisions elected in the Adoption Agreement. The Trust Agreement describes the powers and duties of the Trustee with respect to plan assets.

The volume submitter plan is intended to qualify under Code Section 401 (a). Depending upon the Adoption Agreement completed by an adopting Employer, the volume submitter plan may be used to implement a profit sharing plan with or without a cash or deferred arrangement intended to qualify under Code Section 40l(k). Provisions appearing on the Additional Provisions Addendum of the Adoption Agreement, if present, supplement or alter provisions appearing in the Adoption Agreement in the manner described therein. Provisions appearing on the Additional Provisions Addendum of the Basic Plan Document, if present, supplement or alter provisions appearing in the Basic Plan Document in the manner described therein. Provisions appearing on the Superseding Provisions Addendum of the Adoption Agreement, if present, supersede any conflicting provisions appearing in the Adoption Agreement, Basic Plan Document or any addendum to either in the manner described therein.

Article 1. Adoption Agreement.

Article 2. Definitions.

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

(a) “Account” means an account established for the purpose of recording any contributions made on behalf of a Participant

and any income, expenses, gains, or losses incurred thereon. The Administrator shall establish and maintain sub-accounts within a Participant’s Account as necessary to depict accurately a Participant’s interest under the Plan.

(b) “Active Participant” means any Eligible Employee who has met the requirements of Article 4 to participate in the Plan and who may be entitled to receive allocations under the Plan.

(c) “Administrator” means the Employer adopting this Plan, as listed in Subsection 1.02(a) of the Adoption Agreement, or any other person designated by the Employer in Subsection 1.01(c) of the Adoption Agreement.

(d) “Adoption Agreement” means Article 1, under which the Employer establishes and adopts, or amends the Plan and Trust and designates the optional provisions selected by the Employer, and the Trustee accepts its responsibilities under Article 20. The provisions of the Adoption Agreement shall be an integral part of the Plan.

(e) “Annuity Starting Date” means the first day of the first period for which an amount is payable as an annuity or in any other form permitted under the Plan.

(f) “Basic Plan Document” means this Fidelity volume submitter plan document, qualified with the Internal Revenue Service as Basic Plan Document No. 14.

(g) “Beneficiary” means the person or persons (including a trust) entitled under Section 11.04 or 14.04 to receive benefits under the Plan upon the death of a Participant.

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(h) “Break in Vesting Service” means a 12-consecutive-month period beginning on an Employee’s Severance Date or any anniversary thereof in which the Employee is not credited with an Hour of Service.

Notwithstanding the foregoing, the following special rules apply in determining whether an Employee who is on leave has incurred a Break in Vesting Service:

(1) If an individual is absent from work because of maternity/paternity leave on the first anniversary of his Severance Date, the 12-consecutive-month period beginning on the individual’s Severance Date shall not constitute a Break in Vesting Service. For purposes of this paragraph, “maternity/paternity leave” means a leave of absence (i) by reason of the pregnancy of the individual, (ii) by reason of the birth of a child of the individual, (iii) by reason of the placement of a child with the individual in connection with the adoption of such child by the individual, or (iv) for purposes of caring for a child for the period beginning immediately following such birth or placement.

(2) If an individual is absent from work because of FMLA leave and returns to employment with the Employer or a Related Employer following such FMLA leave, he shall not incur a Break in Vesting Service due to such FMLA leave. For purposes of this paragraph, “FMLA leave” means an approved leave of absence pursuant to the Family and Medical Leave Act of 1993.

(i) “Catch-Up Contribution” means any Deferral Contribution made to the Plan by the Employer in accordance with the provisions of Subsection 5.03(a).

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

(k) “Compensation” means wages as defined in Code Section 3401(a) and all other payments of compensation to an Eligible Employee by the Employer (in the course of the Employer’s trade or business) for services to the Employer while employed as an Eligible Employee for which the Employer is required to furnish the Eligible Employee a written statement under Code Sections 604l(d) and 6051(a)(3). Compensation must be determined without regard to any rules under Code Section 3401 (a) that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code Section 3401(a)(2)). Compensation shall include amounts that are not includable in the gross income of the Participant under a salary reduction agreement by reason of the application of Code Section 125, 132(f)(4), 402(g)(3), 402(h), 403(b), or 457.

For any Self-Employed Individual, Compensation means Earned Income; provided, however, that if the Employer elects to exclude specified items from Compensation, such Earned Income shall be adjusted in a similar manner so that it is equivalent under regulations issued under Code Section 414(s) to Compensation for Participants who are not Self-Employed Individuals.

Compensation shall generally be based on the amount actually paid to the Eligible Employee during the Plan Year or, for purposes of Article 5, if so elected by the Employer in Subsection 1.05(b) of the Adoption Agreement, during that portion of the Plan Year during which the Eligible Employee is an Active Participant. Notwithstanding the preceding sentence, Compensation for purposes of Section 6.12 (Code Section 415 Limitations) and Article 15 (Top-Heavy Provisions) shall be based on the amount actually paid or made available to the Participant during the Limitation Year for purposes of Section 6.12 and during the Plan Year for purposes of Article 15.

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If the initial Plan Year of a new plan consists of fewer than 12 months, calculated from the Effective Date listed in Subsection 1.01(g)(1) of the Adoption Agreement through the end of such initial Plan Year, Compensation for such initial Plan Year shall generally be determined as follows:

(1) For purposes of determining Highly Compensated Employees under Subsection 2.01(cc) and, if selected in Subsection 1.05(b)(1)(A) or (2)(A) of the Adoption Agreement, for purposes of allocating Nonelective Employer Contributions under Section 1.12 of the Adoption Agreement (other than 401(k) Safe Harbor Nonelective Employer Contributions), the initial Plan Year shall be the 12-month period ending on the last day of the Plan Year.

(2) For purposes of Section 6.12 (Code Section 415 Limitations), if the Employer has designated in Subsection 1.01(f) of the Adoption Agreement that the Limitation Year is based on the Plan Year, the Limitation Year shall be the 12-month period ending on the last day of the Plan Year.

(3) For all other purposes, the initial Plan Year shall be the period from the Effective Date listed in Subsection 1.01(g)(1) of the Adoption Agreement through the end of the initial Plan Year.

The annual Compensation of each Active Participant taken into account for determining benefits provided under the Plan for any 12-month determination period shall not exceed the annual Compensation limit under Code Section 401(a)(17) as in effect on the first day of the determination period (e.g., $210,000 for determination periods beginning in 2005). A “determination period” means the Plan Year or other 12-consecutive-month period over which Compensation is otherwise determined for purposes of the Plan (e.g., the Limitation Year).

The annual Compensation limit under Code Section 401(a)(17) shall be adjusted by the Secretary to reflect increases in the cost of living, as provided in Code Section 401(a)(17)(B); provided, however, that the dollar increase in effect on January 1 of any calendar year is effective for determination periods beginning in such calendar year. If a Plan determines Compensation over a determination period that contains fewer than 12 calendar months (a “short determination period”), then the Compensation limit for such “short determination period” is equal to the Compensation limit for the calendar year in which the “short determination period” begins multiplied by the ratio obtained by dividing the number of full months in the “short determination period” by 12; provided, however, that such proration shall not apply if there is a “short determination period” because (i) the Employer elected in Subsection 1.05(b) of the Adoption Agreement to determine contributions based only on Compensation paid during the portion of the Plan Year during which an individual was an Active Participant or (ii) an Employee is covered under the Plan less than a full Plan Year.

In lieu of requiring an Active Participant to cease making Deferral Contributions for a Plan Year after his Compensation has reached the annual Compensation limit under Code Section 401(a)(17), the annual Compensation limit shall be applied with respect to Deferral Contributions by limiting the total Deferral Contributions an Active Participant may make for a Plan Year to the product of (i) such Active Participant’s Compensation for the Plan Year up to the annual Compensation limit multiplied by (ii) the deferral limit specified in Subsection 1.07(a)(1)(A) of the Adoption Agreement or Subsection 5.03(a), as applicable.

(1) “Contribution Period” means the period for which Matching Employer and Nonelective Employer Contributions are made and calculated. The Contribution Period for Matching Employer Contributions described in Subsection 1.11 of the Adoption Agreement is the period specified by the Employer in Subsection 1.1l(d) of the Adoption Agreement.

The Contribution Period for Nonelective Employer Contributions is the Plan Year, unless the Employer designates a different Contribution Period in Subsection 1.12(c) of the Adoption Agreement.

(m) “Deferral Contribution” means any contribution made to the Plan by the Employer in accordance with the provisions of Section 5.03.

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(n) “Early Retirement Age” means the early retirement age specified in Subsection 1.14(b) of the Adoption Agreement, if any.

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

(p) “Effective Date” means the effective date specified by the Employer in Subsection 1.01(g)(l). The Employer may select special Effective Dates with respect to specified Plan provisions, as set forth in Section (a) of the Special Effective Dates Addendum to the Adoption Agreement. In the event that another plan is merged into and made a part of the Plan, the effective date of the merger shall be reflected in the Plan Mergers Addendum to the Adoption Agreement.

(q) “Eligibility Computation Period” means each 12-consecutive-month period beginning with an Employee’s Employment Commencement Date and each anniversary thereof.

(r) “Eligibility Service” means an Employee’s service that is taken into account in determining his eligibility to participate in the Plan as may be required under Subsection 1.04(b) of the Adoption Agreement. Eligibility Service shall be credited in accordance with Article 3.

(s) “Eligible Employee” means any Employee of the Employer who is in the class of Employees eligible to participate in the Plan. The Employer must specify in Subsection 1.04(d) of the Adoption Agreement any Employee or class of Employees not eligible to participate in the Plan. Regardless of the provisions of Subsection 1.04(d) of the Adoption Agreement, the following Employees are automatically excluded from eligibility to participate in the Plan:

(1) any individual who is a signatory to a contract, letter of agreement, or other document that acknowledges his status as an independent contractor not entitled to benefits under the Plan or who is not otherwise classified by the Employer as a common law employee, even if such individual is later determined to be a common law employee; and

(2) any Employee who is a resident of Puerto Rico.

If the Employer elects, in Subsection 1.04(d)(2)(A) of the Adoption Agreement, to exclude collective bargaining employees from the eligible class, the exclusion applies to any Employee of the Employer included in any unit of Employees covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee representatives and one or more employers, unless the collective bargaining agreement requires the Employee to be covered under the Plan. The term “employee representatives” does not include any organization more than half the members of which are owners, officers, or executives of the Employer.

If the Employer does not elect, in Subsection 1.04(d)(2)(C) of the Adoption Agreement, to exclude Leased Employees from the eligible class, contributions or benefits provided by the leasing organization which are attributable to services performed for the Employer shall be treated as provided by the Employer and there shall be no duplication of benefits under this Plan.

Anything to the contrary herein notwithstanding, unless the Employer elects to exclude statutory employees who are full-time life insurance salespersons (as described in Code Section 7701(a)(20)) from the eligible class in Subsection 1.04(d)(2)(E) of the Adoption Agreement, such statutory employees are Eligible Employees.

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(t) “Employee” means any common law employee (or statutory employee who is a full-time life insurance salesperson as described in Code Section 7701(a)(20)) of the Employer or a Related Employer, any Self-Employed Individual, and any Leased Employee. Notwithstanding the foregoing, a Leased Employee shall not be considered an Employee if Leased Employees do not constitute more than 20 percent of the Employer’s non-highly compensated work-force (taking into account all Related Employers) and the Leased Employee is covered by a money purchase pension plan maintained by the leasing organization and providing (1) a nonintegrated employer contribution rate of at least 10 percent of compensation, as defined for purposes of Code Section 415(c)(3), (2) full and immediate vesting, and (3) immediate participation by each employee of the leasing organization.

(u) “Employee Contribution” means any after-tax contribution made by an Active Participant to the Plan.

(v) “Employer” means the employer named in Subsection 1.02(a) of the Adoption Agreement and any Related Employer designated in the Participating Employers Addendum to the Adoption Agreement. If the Employer has elected in Subsection (b) of the Participating Employers Addendum to the Adoption Agreement that the term “Employer” includes all Related Employers, an employer that becomes a Related Employer as a result of an asset or stock acquisition, merger or other similar transaction shall not be included in the term “Employer” for periods prior to the first day of the second Plan Year beginning after the date of such transaction, unless the Employer has designated therein to accept such Related Employer as a participating employer prior to that date. Notwithstanding the foregoing, the term “Employer” for purposes of authorizing any particular action under the Plan means solely the employer named in Subsection 1.02(a) of the Adoption Agreement.

If the organization or other entity named in the Adoption Agreement is a sole proprietor or a professional corporation and the sole proprietor of such proprietorship or the sole shareholder of the professional corporation dies, then the legal representative of such sole proprietor or shareholder shall be deemed to be the Employer until such time as, through the disposition of such sole proprietor’s or sole shareholder’s estate or otherwise, any organization or other entity succeeds to the interests of the sole proprietor in the proprietorship or the sole shareholder in the professional corporation. The legal representative of a sole proprietor or shareholder shall be (1) the person appointed as such by the sole proprietor or shareholder prior to his death under a legally enforceable power of attorney, or, if none, (2) the executor or administrator of the sole proprietor’s or shareholder’s estate.

If a participating Employer designated through Subsection 1.02(b) of the Adoption Agreement is not related to the Employer (hereinafter “un-Related Employer”), the term “Employer” includes such un-Related Employer and the provisions of Section 18.05 shall apply.

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

(x) “Entry Date” means the date(s) specified by the Employer in Subsection 1.04(c) of the Adoption Agreement as of which an Eligible Employee who has met the applicable eligibility requirements begins to participate in the Plan. The Employer may specify different Entry Dates for purposes of eligibility to participate in the Plan for purposes of (1) making Deferral Contributions and (2) receiving allocations of Matching and/or Nonelective Employer Contributions.

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

(z) “401(k) Safe Harbor Matching Employer Contribution” means any Matching Employer Contribution made by the Employer to the Plan in accordance with Subsection 1.11(a)(3) of the Adoption Agreement, the 401(k) Safe Harbor Matching Employer Contributions Addendum to the Adoption Agreement, and Section 5.08, that is intended to satisfy the requirements of Code Section 401(k)(12)(B).

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(aa) “401(k) Safe Harbor Nonelective Employer Contribution” means any Nonelective Employer Contribution made by the Employer to the Plan in accordance with Subsection 1.12(a)(3) of the Adoption Agreement, the 401(k) Safe Harbor Nonelective Employer Contributions Addendum to the Adoption Agreement, and Section 5.10, that is intended to satisfy the requirements of Code Section 401(k)(12)(C).

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

(cc) “Highly Compensated Employee” means both highly compensated active Employees and highly compensated former Employees.

A highly compensated active Employee includes any Employee who performs service for the Employer during the “determination year” and who (1) at any time during the “determination year” or the “look-back year” was a five percent owner or (2) received Compensation from the Employer during the “look-back year” in excess of the dollar amount specified in Code Section 414(q)(l)(B)(i) adjusted pursuant to Code Section 415(d) (e.g., $95,000 for “determination years” beginning in 2005 and “look-back years” beginning in 2004) and, if elected by the Employer in Subsection 1.06(d)(l) of the Adoption Agreement, was a member of the top-paid group for such year.

For this purpose, the “determination year” shall be the Plan Year. The “look-back year” shall be the twelve-month period immediately preceding the “determination year”, unless the Employer has elected in Subsection 1.06(c)(l) of the Adoption Agreement to make the “look-back year” the calendar year beginning within the preceding Plan Year.

A highly compensated former Employee includes any Employee who separated from service (or was deemed to have separated) prior to the “determination year”, performs no service for the Employer during the “determination year”, and was a highly compensated active Employee for either the separation year or any “determination year” ending on or after the Employee’s 55th birthday, as determined under the rules in effect for determining Highly Compensated Employees for such separation year or “determination year”.

The determination of who is a Highly Compensated Employee, including the determinations of the number and identity of Employees in the top-paid group, shall be made in accordance with Code Section 414(q) and the Treasury Regulations issued thereunder.

(dd) “Hour of Service”, with respect to any individual, means:

(1) Each hour for which the individual is directly or indirectly paid, or entitled to payment, for the performance of duties for the Employer or a Related Employer, each such hour to be credited to the individual for the Eligibility Computation Period in which the duties were performed;

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

(A) No more than 501 Hours of Service shall be credited under this paragraph (2) on account of any single continuous period during which the individual performs no duties, unless the individual performs no duties because of military


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